The 9/11 attacks against the US have forced every discipline related to the study of international relations and war to question its discourse and methods. As the reasons and justifications for declaring war (jus ad bellum) change, the actors and methods used in war (jus in bello) logically follow suit. This on-going challenge for International Humanitarian Law (IHL) has called into question its applicability in certain contexts. In War, Torture and Terrorism: Ethics and War in the 21st Century[1], David Rodin assembles a series of essays to discuss the moral and legal frameworks within which some of these war methods, such as targeted killings[2] and torture[3], are being used against new and relatively undefined actors, for instance terrorists. According to Rodin, the post-9/11 era has witnessed three developments: the prosecution of an apparently endless war on terror, the emergence of an asymmetric war and the attempt to establish radical new norms of international conduct. These developments are at the source of his evaluation of war and the ethics of war in the 21st century.
The authors thus offer an examination of the different trends that are appearing, both ad bellum and in bello. In looking to establish whether ethics of war can be violated or modified in the face of exceptional forms of threat, Rob Lawlor starts by defining the term ‘justification’ and the role luck has to play in the final evaluation of an action. He argues that justification cannot be restricted to whether an action was eventually successful or not. Deane-Peter Baker assesses the concept of ‘national-defence wars’ as the right held by states to defend the common life of the community, while Daniel Statman attempts to evaluate the legality of ‘supreme emergencies’, that is, claiming the right to engage in grave violations of the ethics of war in order to avoid a greater catastrophe – for instance, the intentional killing of civilians. Throughout these essays, a common attempt is made to explore the possibility of curtailing rights and civil liberties on the grounds of national security and the increasing prominence of asymmetric wars, with a particular focus on Iraq.
I will focus this review on the three essays that examine the operational tactics of war today. Michael L. Gross gives an evaluation of the legal basis for targeted killings in “Assassination and Targeted Killing: Law Enforcement, Execution or Self-Defence?”, after which the practice of torture is explored from two perspectives: First Uwe Steinhoff’s famous defence of the ticking bomb argument in “Torture – the Case for Dirty Harry and against Alan Dershowitz;” and second, its refutation in “Torture, Terrorism and the State: a Refutation of the Ticking-Bomb Argument” by Vittorio Bufacchi and Jean Maria Arrigo.
The practice of targeted killings
In his essay, Gross starts by defining ‘targeted assassinations’ as, “first compiling lists of certain individuals who comprise specific threats and second, killing them when the opportunity presents itselfduring armed conflict” (83, emphasis added). In order to analyse the practice, he offers two paradigms through which we can approach targeted killings: war and law enforcement. From a law enforcement perspective, it is reasonable to suspect that terrorists are guilty of war crimes and criminal activity in general, and non-combatant status does not preclude death penalty. However, without due process these executions are extra-judicial, and therefore inapplicable to this situation. Within the war paradigm however, soldiers are considered to be morally innocent of killing during an armed conflict. Yet, execution or prolonged imprisonment is not permitted in the case of combatants who are not directly participating in hostilities. In practice, it is easier to justify named killings as self-defence than as a legal process. Israel, for example, changed its discourse from the latter to the former when a number of abuses were pointed out.[4] Gross concludes the war paradigm is better suited to the issue.
Gross then explores possible justifications for targeted killings of terrorists by assessing their status under IHL.[5] Protocol I requires combatants to carry arms openly so they can be differentiated from civilians. Gross extends this idea and claims that since terrorists do not wear insignia or uniforms, they can change their identity at will. Naming then becomes a method to establish combatant status, not necessarily implying guilt or imputing special responsibility. However, in practice, placing responsibility is difficult to separate from the process of naming. Gross emphasises the difference between the uneducated, poor and coerced member of a terrorist group, and the ‘real’ terrorist looking to cause damage and harm civilians. This successfully places a limit to the practice, and reminds us of the reasons why a change in the theoretical discourse could have dramatic consequences on the ground.
Forced to leave morality and responsibility aside, Gross assesses the efficacy and proportionality of this response to the terrorist threat. Un-uniformed fighters are impossible to identify without a network of collaborators, who are generally responding to threats and highly detrimental to society. He claims that it will be difficult to assess how efficient these killings are until they have been put into place and admits: “While one may appeal to the long-term hope that named killings will forestall terror in spite of its high short-term costs, there are no clear indications that they were or will be effective” (93). Gross thus concludes that the high costs of targeted killings should limit them to extreme situations and overwhelming threats, however this conclusion seems slightly optimistic. In the war on terror, once it is accepted that the end justifies the means, it is nearly impossible to reverse the process.
An Evaluation of Torture
Gross’ examination of IHL in the post-9/11 wars assesses whether methods of warfare need to be adapted to new actors. The two articles that follow explore the applicability, morality and legality of torture of prisoners.[6] Uwe Steinhoff offers a highly theoretical refutation of the arguments made for a universal and unequivocal ban of torture as a practice of war, whereas Vittorio Bufacchi and Jean Maria Arrigo search for empirical evidence to argue for the abolishment of torture as a rule and as a practice.
From the beginning both articles take radically different stances in their evaluation of torture as a war method today. Steinhoff starts by destabilising the reader: He claims that the only reason torture is considered a fate worse than death is because we have the ability to empathise with pain whereas we cannot with death. Moreover, he counters Henry Shue’s posit that attacking the defenceless is illegal by arguing that this is in no way forbidden by IHL, and that it is a purely emotional response to the practice. He thus claims that there are no grounds to believe that torture is qualitatively worse than killing, and therefore that like killing, its practice can be justified in certain specific contexts. Arrigo and Bufacchi begin their article with a stronger legal framework, by defining torture and emphasising Article 2.2 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ratified in 1987, which clearly states that: “No exceptional circumstances whatever […] may be invoked as a justification of torture’ (116). Their defence is based on the fact that torture is a degradation of human life and a practice that is widely condemned from both a moral and legal standpoint.
Steinhoff’s argumentation remains simplistic and highly theoretical. For instance, he claims that should ten prisoners be given the choice between certain and immediate death or a few hours of torture, they would all choose torture (99). This is an over-simplification not only because these choices are never given, but also because torture is rarely experienced for just a few hours. Moreover, his statement ignores multiple cases of torture victims that attempt to take their own lives while in captivity. Steinhoff’s main example is fictional: he discusses whether Dirty Harry[7] was justified when he stepped on a kidnapper’s wound to get information about a missing girl. In this case, Dirty Harry is justified because he eventually finds the girl and saves her, thus excusing his decision to torture a criminal rather than risk the life of an innocent girl. On the other hand, Arrigo and Bufacchi look at empirical evidence in order to make their arguments against torture. They review the arguments made for torture and assess whether it is reasonable, justified and efficient to do so. They explore situations in which torture was used against terrorists, but also base their understanding on past use of torture, for instance in Algeria and Israel. This type of argumentation seems more accessible to the reader than Steinhoff’s detached, extreme and sometimes ironical tone.
A series of questions emerge throughout both articles, and I now wish to put forward a comparative study of their views on the efficiency of interrogative torture, the argument of self-defence – the ticking-bomb argument – and the risks torture presents to society and liberalism.
First, Steinhoff dismisses the claim that interrogative torture does not work by saying that, ‘that is simply wrong’ (102). He gives a hypothetical example claiming that should an aggressor attack an innocent person, the defender would be justified in using a pain-inflicting gun on the aggressor. For Bufacchi and Arrigo, however, “there is no guarantee that the suspects being interrogated are in fact terrorists, or, even if they are involved with a terrorist group, that they in fact have the information that we seek.” (121). The fact that intelligence is never infallible is all too easily dismissed by Steinhoff.
Second, Steinhoff argues that in cases where the lives of innocent people are at risk, torture should be permissible and justifiable. Similarly to situations of self-defence, certainty of the aggressor’s culpability can never be assured so it cannot be held as an argument against torture. Moreover, the individual should be blamed for becoming a suspect, since ‘hanging around with the wrong people in the wrong situation can also make you liable to attack’ (103). If there is a ticking-bomb and the only option to potentially find the bomb is to torture a terrorist suspect, Steinhoff argues that it is a justified decision to do so. However, as Arrigo and Bufacchi point out, there is very little empirical evidence to suggest that torture is effective in obtaining information within a limited time period. Counter-interrogation training usually requires that prisoners resist torture for 24 hours, to give time to colleagues to alter plans. Torture usually takes place over months before any kind of information has been retrieved, at which point the ticking-bomb argument is no longer valid.
Third, Steinhoff dismisses the risks that torture presents to liberalism and our societies in general by weakly claiming that liberalism is about the liberty of the innocent, and not about dignity, otherwise it would be called ‘dignism’. Especially since there is ‘no problem in liberalism to kill aggressors or deprive them of their liberty if this is the only way to protect innocent people from these aggressors’ (104). On the other hand, Arrigo and Bufacchi argue that the consequences of practicing torture on military, legal and medical establishments are terrible. It is a perversion of the medical profession to ask doctors to participate in such activities, and training young men to be torturers is a cost that too often ignored. Unlike soldiers, who suffer psychological trauma from the act of killing, the torturer’s sacrifice is accompanied by stigmatization, guilt and disdain rather than honour and recognition.
Both articles disagree with Alan Dershowitz’ idea that implementing a torture warrant ‘would probably reduce the frequency severity and duration of torture’ (106). Steinhoff argues that the instance in which torture is used should remain rare and extreme, and therefore a wider practice of torture should not be encouraged. The legalisation of torture therefore has a ‘metastatic tendency’ (110) that makes Steinhoff uncomfortable. Moreover, argue Bufacchi and Arrigo, the efficacy of torture is based on a wide variety of facts and circumstances that would make it impossible to institutionalise the practice. Both articles therefore dismiss the question of torture warrants, although Steinhoff supports the legalisation of the practice in extreme situations. Arrigo and Bufacchi focus on the alternatives to torture-interrogation, such as the practice of culturally- and linguistically-aware interrogation. All in all, they give a more convincing argumentation than Steinhoff, partly because they are more scientific in their analysis.
To conclude this review, it should be added that according to the Third Geneva Convention, if there is doubt as to whether a person falls under the category of combatant, then they should be treated as Prisoners of War until such a time as their status has been determined.[8] This proscribes against torture and other forms of abuse. IHL is constantly being adapted as the face of conflict changes, and it is now in the process of adjusting to the post-9/11 world. To apply IHL to cases that seem nonconventional, each case has to be assessed individually as pre-determined definitions are being questioned and remodelled. These three essays offer an insight into this process, suggesting that the war on terror is shaking our society to the very core of its legal and moral foundations. This reconsideration of the moral framework within which IHL is applied thus allows us to look into the applicability of legal norms to nonconventional-armed conflicts today.
Clémentine de Montjoye (Sciences Po)
[1] David Rodin (ed), War, Torture and Terrorism: Ethics and War in the 21st Century (Blackwell: Oxford, 2007)
[2] Although there is no official definition of ‘targeted killings’ under international law, refer to this article for an in-depth analysis of the emergence of the practice: Gabriella Blum and Philip Heymann, “Law and Policy of Targeted Kiiling”, Harvard Law School National Security Journal, I (June 2010)
[3] For the ICRC’s definition of torture see: http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_rule90
[4] Otto, Roland, Targeted killings and international law: with special regard to human rights and international humanitarian law, (Springer: London, 2012)
[5] For more information on the status of terrorists under IHL see: Marco Sossòli, “The Status of Persons Held in Guantánamo under International Humanitarian Law”, Journal of International Criminal Justice 2(2004), 96-106
[6] For more information on the Geneva Conventions protecting prisoners see:http://www.icrc.org/eng/war-and-law/protected-persons/prisoners-war/overview-detainees-protected-persons.htm
[7] In reference to the 1970s film directed by Don Siegel
[8] Geneva Convention III, supra note 3, Art. 5(2)
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