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The administration of U.S President George W. Bush has been characterized by some spectacular gaffes, such as terming the war "a crusade" or using the racist epithet, "Paki." Yet, when it counts most, the U.S. government has chosen all the right words.
Take the terming of the terrorist attacks of September 11 as an "act of war."
Bush has repeatedly described the attacks as an "act of war," such as in a September 17th address to employees of the Pentagon wherein he stated: "An act of war has been committed on this country."
There never seemed any question that this was an act of war with bipartisan use of the term.
In a press release issued immediately after the attacks, Senator Bill Frist of Tennessee said: "It is an unprecedented act of war against our nation." In a statement issued on September 12, Senator Domenici said, "The American people can judge the barbarians who committed the act of war yesterday."
On September 13, Congressman Pete Sessions introduced legislation in the U.S. House of Representatives declaring that September 11 was an act of war.
An act of war or a crime?
But was it really an act of war?
The insurance industry certainly doesn't think so. Most insurers have an Act of War exclusion that serves to prevent insurers from paying overwhelming claims in the event of a war. Despite that, leading insurers such as Chubb Group, Swiss Re, Northwestern Mutual, Hartford Financial Services all determined that it was not an act of war and thus would make payments on claims. A Reuters news item on September 17th described the position of the insurance industry versus the position of Bush: "Although President Bush has repeatedly called the attack an “act of war,” it is generally accepted that the exclusion only applies in the case of a declared war between two or more sovereign nations."
The significance of labeling September 11 an act of war is perhaps not immediately obvious and certainly holds greater implications than merely to harden the resolve of the American people.
Sidestepping the U.N. charter
As a member of the United Nations, the United States is bound to comply by the U.N. charter. The charter clearly specifies the rules under which a member state may use military force against another nation. Article 2 (3), for instance, compels the member state to first exhaust all peaceful means of dispute resolution before it may use international force. Article 33 elucidates this principal in more detail, describing the methods that states should employ to find peaceful solutions to international conflict. The methods include, "negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice."
As has been pointed out by experts in international law, such as Francis Boyle of the University of Illinois, there are over 13 international treaties that could have been invoked in order to deal with the events of September 11.
Instead, the United States overlooked its obligations to search for a peaceful solution and, instead, rushed into a military solution.
By terming September 11 "an act of war," the U.S. attempted to cobble together a legal argument under Section 51 of the same U.N. charter that bound them to explore peaceful methods of resolution. Section 51 gives the member state the right to self-defense in order to repel an attack that is ongoing or imminent until the U.N. Security Council is able to convene and take the necessary steps to restore international peace and security.
The mobilization of the most powerful military machine in the world against arguably the poorest country in Asia was therefore considered "self defense." Likewise, the promise of a war that would potentially last years and cover an unknown number of countries was described as the U.S. defending itself against terrorism. An endless war fought on the pretext of self-defense.
An interesting argument that, to be fair, is not without some precedence in the annals of legal history. Indeed, it was the same argument the Nazis used during the Nuremberg Tribunals of 1946. Lawyers representing Nazi defendants argued that they reserved the right to defend themselves under the Kellog-Briand Pact of 1928 (the precursor to the U.N. charter), and that they themselves could arbitrarily determine what constituted "self defense." The Nazis argued, in essence, that all of World War II was fought in "self-defense," and that no one has the standing to disagree with such an assessment.
The Tribunal subsequently rejected the argument and ruled, quite reasonably, that what constituted self-defense could only be determined through direct reference to international law (which must itself be determined by a tribunal), and that no state has the right to make this determination arbitrarily.
Prisoners of war or illegal combatants?
Despite all the legal gymnastics performed by the United States and her allies to define September 11 as an act of war and the response as a war on terror, the U.S. will not consider Taliban soldiers caught fighting in the war as prisoners of that same war. U.S. Defense Secretary Rumsfeld and Attorney General John Ashcroft have termed these captured Taliban and al-Qa’eda operatives as "illegal combatants."
To an observer, such a distinction may seem as casual as the difference between Americans pronouncing tomato as "Tom-ay-to" and the British saying "Tom-aa-to." The reality, however, is that the difference between such terms, like the use of the "act of war" description, have serious and far reaching implications.
Under international law there are three types of combatants: soldiers, spies and mercenaries. Only the latter two categories can legitimately be denied Prisoner of War status. Clearly, the captured soldiers are not spies. The Geneva Protocol of 1977 defines a mercenary as someone who "is motivated to take part in the hostilities essentially by desire for private gain." That gain means monetary or other material compensation and does not extend to include martyrdom.
The Geneva Convention demands the following: Prisoners of war should be held in conditions that are similar to those of U.S. soldiers. They are not compelled to give any information other than their name, rank, serial number and date of birth. They cannot be tried for simply having taken up arms against enemy combatants. They must be allowed access to the delegates of the International Committee of the Red Cross. At the end of hostilities, unless they are being charged with war crimes, they must be repatriated.
The basic principal, under Article 51 of Protocol 1 of the Geneva Conventions, is that any person who is participating in armed conflict and is captured, is automatically presumed to be a Prisoner of War. Article 45 then states that this presumed status remains "until such time as [the person's] status has been determined by a competent tribunal."
The arbitrary declaration by Bush, Ashcroft, or Rumsfeld does not constitute a competent tribunal under international conventions. Until such a tribunal assesses the captured soldiers, they must, under the Conventions, be treated as POWs and afforded the above-mentioned rights.
Yet, in defending their ruling that the captured soldiers are outside the Geneva Convention, the U.S. administration is claiming that they fought without uniforms and that they did not operate under a formal command structure. They are thus, "unlawful combatants." A strange term that seems more appropriate in the pages of Orwell's dystopian epic "1984".
Yet the term “unlawful combatant” was not invented by Rumsfeld or Ashcroft. It was used by former Democrat U.S. President Franklin D. Roosevelt (FDR) in reference to a group of Germans who entered the U.S. during the height of World War II to commit acts of sabotage. Perhaps one reason why there has been so little criticism of the Republican Bush administration's moves to set up military courts is because the Democrats know that FDR established the very precedent that Bush is now invoking. Whereas FDR limited the scope to just the captured Germans, Bush is establishing such courts as an open-ended and undefined institution.
In the case of the Germans, lawyers argued that the accused were still entitled to "a speedy, and public trial, by an impartial jury" under the Sixth Amendment of the U.S. Constitution. Under the Fifth Amendment, it was argued that a Grand Jury was necessary. As such, they opposed the use of military tribunals to try the German saboteurs.
The Supreme Court denied the request, citing long-standing U.S. law, dating from the Revolutionary War, that recognized only two classes of belligerents: uniformed enemy soldiers who followed the traditional "lawful" rules of war, and should be held as prisoners of war, and enemy spies or saboteurs skulking about in disguise.
In supporting their ruling, the case of British Army Major John Andrew was used, who was convicted and hung in 1780 by a tribunal for spying. Some reference was also made to a Civil War order that enemy troops not wearing their uniforms, "if found within, or lurking about the lines of the captor, are treated as spies, and suffer death."
The court concluded: "Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful."
In the case of the Germans, the punishment meted out by the military court was death. A similar threat hangs over the head of the soldiers being held in Cuba.
The important distinction between these soldiers and those about whom these precedents and rulings speak is that the rulings apply to those people who come to the United States, or behind U.S. lines covertly, in order to sabotage or spy. The prisoners being held in Cuba are people who were captured in Afghanistan, presumably fighting on the side of the Taliban when war broke out between the United States and the Taliban regime.
U.S. Vice President Dick Cheney himself attested to such a distinction. On November 16, he defined the "illegal combatant" rather more narrowly than Rumsfled and Ashcroft are now defining it. He said, "Somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans - men, women and children - is not a lawful combatant. They don't deserve to be treated as a prisoner of war."
Conversely, according to Cheney’s logic, those who did not come to the United States, who did not conduct terrorist operations killing thousands of innocent Americans - men, women and children - are legal combatants. They do deserve to be treated as prisoners of war.
If the U.S. rules they are not prisoners of war - and certainly such a ruling can only be made by an independent body and not the arbitrary declaration of the administration - then they must either be innocent or they are common criminals. Clearly, they are not mercenaries or spies.
Yet, even if they are deemed conventional criminals, then their rights are still enshrined in both U.S. domestic and international law. The U.S. is still bound by the International Covenant on Civil and Political Rights, ratified by the U.S. in 1992, and the U.N. Body of Principles for the Protection of Any Form of Detention and Imprisonment. Such conventions give all detainees the right to challenge the lawfulness of their detention, to be brought before an independent tribunal, the right to maintain their silence, and access to legal counsel. Under the U.S. Constitution, their rights are protected by the Sixth Amendment, which reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which districts shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
On every level and under both domestic and international law, these men being held in Cuba are prisoners of war, entitled to all the protections of the Geneva Convention.
It is hard not to think that all of this is politically motivated. After months of being demonized, the popular perception of the captured soldiers is that they are dangerous wild animals. Prior to being flown to Cuba, they had sacks placed over their heads, and at least one was sedated. General Richard Myers, U.S. Chief of Joint Staffs explained that they are "so dangerous that they would gnaw through the hydraulic cables" on the transport plane to bring it down. To then give them all their rights under the Geneva Convention would be perceived as "going soft" on the "terrorists."
With the war being a spectacular failure in delivering on its stated objectives - to capture Osama bin Laden and those responsible for September 11 - these men are being offered as a ritual slaughter to the altar of American public opinion.
A popular childhood retort is that whilst "sticks and stones may break my bones; names will never hurt me." For captured soldiers facing the threat of execution in military courts, names do hurt, and for those labeled "unlawful combatants," names can kill.
The war against terror has been marketed as a war between good and evil, law and lawlessness and civilization and barbarians. The use of semantics to sidestep the very laws that supposedly define the civilized side in this conflict demonstrates that whilst fighting terror may be a "just cause," this is far from being a "just war."
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