by Mary Ellen O’Connell (ed.). Leiden/Boston: Martinis Nijhoff Publishers, 2012, 495pp. Cloth $253.00. ISBN: 978-90-04-17234-0
Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University.
Email: d.w.jackson [at] tcu.edu
This quite expensive book is about a critically important topic, for it seeks to consider the conceptual meaning of war (or armed conflict, as it is coming to be called) in our post 9/11 world ‒ a legal/political world in which our customary concepts and categories may not serve us well. We need to devise better ways of thinking about armed conflict so that we may have a better chance of constraining more effectively the collective uses of violence, but especially a better chance of stopping what often seems to be capricious violence. While proper definitions may not have much impact on the physical grounds where actual conflicts happen, the rule of law can only have consequences through the use of words ‒ and the bundles of obligations and rights that those words suggest ‒ and sometimes through the consequences that those words help produce.
In May 2005, the Executive Council of the International Law Association (ILA), under the leadership of Professor Mary Ellen O’Connell of Notre Dame Law School, created ao Committee on the Use of Force that was to study and report on the contemporary definition of war in international law. This book chiefly presents the evolution of the committee’s thinking on that subject. Professor O’Connell became chair of that committee. “THE FINAL REPORT ON THE MEANING OF ARMED CONFLICT IN INTERNATIONAL LAW” was delivered at a meeting of the ILA at The Hague in 2010.
Parts I and II of this book together consist of eight chapters that reflect upon the meaning of war from various international law perspectives. In my judgment, they represent the strongest portion of the book. All of the international law papers in Part II were written in 2006. Part III of the book consists of twelve background chapters on the meaning of war, also written in 2006, from the perspectives of political science, military and military history, journalism, ethics and peace research. While my reactions may well reflect my perspective as a political scientist, the contribution of political scientist John Mueller of Ohio State was the most helpful contribution in Part III, but more specifics on that below. In general, the other background papers in Part III are not as helpful as those written from the perspectives of international law in Part II.
Part IV of the book concludes by tracing the work of the ILA Committee on the Use of Force up to its Final Report at The Hague in 2010.
A chronology of the events that led many of us to be concerned about the [*510] proper application of legal concepts to the “War on Terror,” as well-reflected in O’Connell’s edited book, appears below. Of course, the chronology begins with the attacks of September 11, 2001, and then progresses through the listing of other key events, which serve to remind us of the sequence of events that we must remember carefully in finding new ways of thinking. The chronology set forth below, and the understandings suggested both in this book and in the Final Report of the ILA Committee (2010), are important because many readers may not have easy access to the book due to its cost.
September 11: The major terrorist attack on the United States (9/11).
September 14: Authorization for the Use of Military Force (AUMF) was passed by a Joint Resolution of the U.S. Congress.
October 7: Operation Enduring Freedom in Afghanistan began, and President George W. Bush declared our “War on Terrorism.”
October 26: Patriot Act signed into law by President Bush.
November 13: President Bush issued a “Military Order on Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism.”
January 18: President George W. Bush refuses to accord POW status to “terrorism detainees” held at Guantánamo Bay.
February 7: President Bush decides detainees at Guantánamo have no rights under the Geneva Conventions.
June 19: The “end of international conflict in Afghanistan,” as marked by the establishment of a new Afghan government.
September 17: President Bush’s National Security Strategy Document was issued, asserting a doctrine of pre-emptive war.
October 10 and 11: U.S. House and Senate approve resolution authorizing President Bush to take military actions to deprive Iraq of weapons of mass destruction (WMD), if diplomacy under UN auspices fails.
November 8: UN Security Council unanimously approves Resolution 1441 providing President Saddam Hussein of Iraq a “last chance” to comply with disarmament or face “serious consequences.”
November 27: Department of Defense counsel recommends approval of new interrogation techniques.
December 26: “Extraordinary Renditions” of suspects for interrogations disclosed by Dana Priest and Barton Gellman, investigative reporters for The Washington Post.
March 19-20: Operation Iraqi Freedom launched by U.S. attack on Iraq (WMD).
May 1: President Bush declares “Mission Accomplished” aboard the U.S. aircraft carrier Abraham Lincoln, claiming our “success” in Iraq. [*511]
December 13: Saddam Hussein captured near Tikrit.
April 28: Abu Ghraib ‒ Abusive treatment of detainees first disclosed on American television.
June 28: The Supreme Court of the United States ruled in Hamdi v. Rumsfeld that citizens/detainees held at Guantánamo had the right to challenge their detention.
October 9: Certiorari denied by the U.S. Supreme Court in the extraordinary rendition case of El Masri v. Tenet in which the United States successfully asserted the “state secrets” privilege.
April 2: Disclosure of 81-page opinion reflecting approval of harsh interrogation techniques written in 2003 by John C. Yoo, who had been a Deputy Assistant Attorney General in the Office of Legal Counsel in the Department of Justice during the Bush administration but signed by Assistant Attorney General Jay S. Bybee, who was head of the Office of Legal Counsel.
December 2: President Obama announces approval of a surge of 30,000 troops to be shifted to Afghanistan.
May 1: Osama Bin Laden killed at Abbotabad, Pakistan, through a Navy Seal attack.
May 16: Certiorari denied by the U.S. Supreme Court in case of Binyam Mohamed, et al v. Jeppesen Dataplan, Inc., a case in which the United State again successfully asserted the “state secrets” privilege.”
September 30: U.S. citizen by birth (and collaborator/leader of al-Qaeda in the Arabian Peninsula) Anwar al-Awlaki was killed in Yemen by a U.S. drone strike.
December 31: Withdrawal from primary U.S. authority and responsibility in Iraq.
From the sequence of events set out above, we know when the so-called “War on Terror” started through the Authorization for the Use of Military Force of 9/14/01, but we do not know, either de facto or de jure, when this war will end. What does a “War on Terror” mean? When and how might such a war start? How long might it last? How long may individuals taken as prisoners be detained during such a war? Is detention of captives lawful even when such a war goes on for many years? When might such a war be over, and how will we know for sure that the end has come?
We also do not know what legal rights or responsibilities ought to accrue to either individuals, groups, or nation-states as participants in the events such as those cited in the chronology, nor how enforced. This book should help us understand. Sometimes it does, but not always. There is much work yet to be done.
In her introductory chapter, Professor O’Connell notes that one of the basic problems with being engaged in a state of war is that traditionally this has meant that certain “important human rights may be curtailed, including such basic [*512] rights such as the right to life, the right to trial, and respect for private property.” However, when the United States declared “War on Terror” through the AUMF three days after the 9/11 attack, we did not even know, “against whom the war was being waged” (p.5). In his Executive Order of 11/13/01, President Bush claimed wartime powers that would apply to terrorism suspects, wherever they might be found, and that they might be treated as unlawful enemy combatants. This led proximately to the use of the military prison at Guantánamo Bay. Professor O’Connell reports that the work of her committee has confirmed that among international lawyers and scholars the term “war’ has been replaced by “armed conflict,” and she suggests that after more than ten years since the 9/11 attack, the United States may be quite alone as a nation-state in arguing for its sui generis capacity to define “armed conflict” (p.11).
In the ILA Committee’s Proposal to Study the Meaning of War in International Law (presented in Chapter 2) perhaps the most important contribution is that “armed conflict” is “triggered upon facts of fighting, not formal declarations,” citing the United Nations Charter as authority (p.14). Formal declarations of war indeed are from a quite different time. This contemporary understanding, based on actual armed conflicts, may work well enough when we deal with conflicts between nation-states, but not so well when we must deal with acts of terror that are committed by non-state actors. The realities of non-state actors and of non-state sponsors of terrorist acts requires an understanding of a world in which geographic nation-state boundaries sometimes are no longer so relevant. This reality is critical to devising new ways of thinking about armed conflict.
Chapter 3 by Professor Elzbieta Mikos Skuza of the University of Warsaw takes up the transition from “War” to “Armed Conflicts” and early on notes that the concept of “a ‘war on terror’ suggests an enduring state of struggle – a never-ending fight against terror and its relentless onslaughts” (p.20). She concludes that the “old concept of ‘war’ has been abandoned and replaced by a concept of international armed conflicts.” She adds that a “war on terror” ought not to be taken as war in the legal sense, but admits that, “There is no universally adopted definition of non-international armed conflicts” and suggests that most extant treaties do not apply (p.29).
Chapter 4 by Jutta Brunnée of the University of Toronto continues the themes we have addressed so far by acknowledging that the concept of jus ad bellum was developed to govern the resort to war between two or more nation-states. Thus, Art. 2(4) of the UN Charter seeks to prohibit “threat or use of force between two nation-states” (p.32), while Art. 51 outlines a nation-state’s right of self-defense. Self defense under that article may be broad enough to apply to attacks begun by non-state actors, but that leaves open the questions about the defensive rights, if any, of non-state actors when they are preemptively attacked, or even when defensively attacked under Art. 51. We may go further by asking what may be the application of international law to an armed conflict between two or more (separate) non-state actors. One way to [*513] deal with such questions is to attribute the acts of non-state actors to the nation-state venue of their primary operation, but even then, there may be conflicts within a single nation-state. It may be necessary to deal with the actuality that some, if not most, non-state actors have their primary venues either in entirely failed states, or in those states that are so weak that their governments do not have effective control there. Yet these may not be regarded entirely as “rogue states.” There also are difficult questions involved in instances of anticipatory or preemptive self defense. The United States indeed has claimed such a right, and has based its claim chiefly on “necessity” (p.40). It is certainly easy to understand why a nation-state would prefer to prevent terrorist attacks, rather than to punish them afterwards, even as a matter of self-defense, but our concepts have not entirely caught up with this reality.
By far the most interesting selection in Part II is found in Chapter 6 by Christine Gray of Cambridge University. She devotes a section of her chapter expressly to the war on terror in which she couples the views of President Bush, and of Prime Minister Tony Blair, as they “conflate[d] different terrorist attacks and groups all over the world despite their different historical contexts” (p.91). The International Committee on the Red Cross agreed in 2003 that “the world is faced with a new kind of violence to which the laws of armed conflict should be applicable.” Gray agrees that the war on terror “does not fit the definition of international armed conflict because it is not waged among states, and does not correspond to the traditional understanding of non-international armed conflict because it takes place across a wide geographic area” (p.91; and see Cole, 2009). U.S. policy did change eventually (Goldsmith, 2009). Nonetheless, Gray notes that the United States claims the right to target suspected terrorists (as in the instance of Anwar al-Awlaki in Yemen) and to detain “combatants” indefinitely. Clearly, a big problem will be to secure the full application of Common Article 3 of the Geneva Convention to such situations.
Of the background papers written from other than an International Law perspective, as I noted above the contribution by John Mueller in Chapter 10 is the most helpful for providing a useful perspective on terrorism and for keeping a nuanced view of its real threat (but see also Doyle, 1998). Some critics of the U.S. treatment of the “War on Terror” have argued that our policy should have been that of attempting to apply our criminal law and process, rather than proceeding under the rubric of armed conflict. However, Mueller notes an important distinction, arguing that “Terrorists operate in pursuit of a political goal and are frequently willing to die in that effort, while criminals are in the game for fun and profit and are distinctly unwilling to die in the process” (p.141). That seems to be a compelling difference. In the Final Report of the ILA Committee in 2010, discussed below, the Committee suggests that armed conflicts should be defined by two criteria: 1) the existence of an organized armed group, and 2) the continuing engagement of that group in high intensity fighting. Intensity and organization thus become the defining characteristics of armed conflict, but both of those characteristics may also identify non-state terrorist groups. Their [*514] political objectives and their goals to have an impact come what may (and certainly without regard to either fun or profit) suggests that organized terrorism (though perhaps not acts of a “lone wolf” actor) must also be classed as armed conflict and dealt with under laws appropriate to such. Thus it may be argued that terroristic non-state actors should subject to the application of international humanitarian law as reflected in the Geneva Conventions.
However, Mueller goes on to suggest that we need to differentiate between disciplined and criminal warfare. In doing so, he argues that terrorism is usually a relatively “petty event” that most of the time causes relative little damage; this is more akin to criminal warfare, and would not count as armed conflict. However, he acknowledges that when terrorism becomes widespread and continuous, it may become war ‒ or in terms of the ILA report it becomes an “armed conflict.” If we follow that argument, then because of the scope, scale and continuity of terrorist acts, Mueller seems to agree that terrorism would become “armed conflict.” and it is most important to recognize this so that the laws of such conflict will apply.
Mueller also argues that we tend to overreact to terrorism. Fair enough. This should cause us to pause and reflect on the several occasions in our history when we have indeed overacted to threats of violence and armed conflict, especially following World War I and during our long Cold War with the Soviet Union. We have good cause to be concerned that fear and overreaction may simply form the predicates for pursuing other political objectives, even by democracies. Therein, the War on Terrorism becomes an excuse. He concludes with the observation that just as is true with respect to crime and criminal prosecuion, “Policing such activities in order to draw down their frequency and destructiveness may be sensible policy. Seeking to eradicate them entirely, however, is illusory” (p.158). Mueller’s excellent book, Overblown (2006) should be read to appreciate the dangers of overreaction.
Chapter 9 by Michael Doyle and Geoffrey Carlson on historical conceptions of international law among major thinkers is also a useful contribution, but should be supplemented by Doyle’s lectures as presented in his book, Striking First (2008). We have yet to deal very effectively with the assertions of the George W. Bush administration on the uses of prevention in international conflict.
Chapter 24 in Part IV presents the Final Report on the Definition of Armed Conflict in International Law, and Chapter 25 presents Professor O’Connell’s reflections on that report. She viewed their mandate as that of defining armed conflict with, “respect to terrorism, asylum rights, neutrality, treaty law, arms control and combatant privileges.” That was a big order, and the problem of defining and constraining terrorism is huge taken alone (p.370). She acknowledges that the United States “continues to operate under a concept of armed conflict not consistent with the definition issued in the Committee’s Final Report” (p.371). The chief difference she describes is that the United States continues to describe its armed conflict with al Qaeda, or with the Taliban, that led to U.S. military [*515] operations in 12 states, “that included killing and detention without trial, regardless of the presence of intense fights by organized armed groups” as being entirely lawful (emphasis added, p.371). The standard of organized groups engaging in intense continuing conflicts is not used.
The book does not consider another important issue that may have continuing consequences ‒ the assertion by the U.S. government of the “state secrets privilege.” Louis Fisher’s important book (2007) describes the privilege, but the Supreme Court continues to avoid the issue, as it denied certiorari in the cases of Khalid El-Masri (2007) and Binyam Mohamed (2011). There is not space here to do more than describe the issue. In the instance of alleged violations by the federal government either of American or international law (such as in renditions or harsh interrogations) (Cole, 2009 and Goldsmith, 2009), the assertion by the U.S. government of the “state secrets privilege” in a civil action brought to challenge our government’s actions may entirely stop the lawsuit. Such claims are in effect barred when the state secrets privilege is asserted and upheld by our courts, as it has been so far.
We should note that there is such a great supply of books that cover different perspectives on the “War on Terror” that studying their varying premises and findings is both difficult and exhausting. Apart from academic works, investigative journalists such as David Sanger (2011) and Jane Meyer (2008) should be read for the perspectives they bring to the contemporary American presidency, including both Presidents George W. Bush and Obama. Also, the books written by John Yoo in 2010, and with Dean Reuter in 2011, should be read for their quite different perspectives, which mostly justify the U.S. government’s policies and actions under President George W. Bush.
I must close by emphasizing our urgent need to develop concepts and programs that may help us to deal more effectively with what Nathan Myhvold (2013) has described as the pressing issues associated with “Strategic Terrorism,” which often transcend our world views and still tend to be founded on the primacy of nation-states and the ways of dealing with inter-state armed conflicts.
Cole, David (ed.). 2009. THE TORTURE MEMOS: RATIONALIZING THE UNTHINKABLE. New York. The New Press.
Doyle, Michael W. 2008. STRIKING FIRST: PREEMPTION AND PREVENTION IN INTERNATIONAL CONFLICT. Princeton. Princeton University Press.
Fisher, Louis. 2007. IN THE NAME OF NATIONAL SECURITY: UNCHECKED PRESIDENTIAL POWER AND THE REYNOLDS CASE. Lawrence, Kansas. University Press of Kansas.
Goldsmith, Jack. 2009. THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION. New York. W.W. Norton & Co.
Mayer, Jane. 2008. THE DARK SIDE: THE INSIDE STORY OF HOW THE WAR ON TERROR TURNED INTO A WAR ON AMERICAN IDEALS. New York. Doubleday. [*516]
Mueller, John. 2006. OVERBLOWN: HOW POLITICIANS AND THE TERRORISM INDUSTRY INFLATE NATIONAL SECURITY INTERESTS. New York. Free Press.
Myhrvold, Nathan. 2013. STRATEGIC TERRORISM: A CALL TO ACTION. Available at:
http://www.lawfareblog.com/2013/07/nathan-myhrvold-on-strategic-terrorism-a-call-to-action-lawfare-research-paper-series/ (accessed July 4, 2013).
Reuter, Dean and John Yoo. 2011. CONFRONTING TERROR: 9/11 AND THE FUTURE OF AMERICAN NATIONAL SECURITY. New York. Encounter Books.
Sands, Philippe. 2008. TORTURE TEAM: RUMSFELD’S MEMO AND THE BETRAYAL OF AMERICAN VALUES. New York. Palgrave Macmillan.
Sanger, David E. 2011. CONFRONT AND CONCEAL: OBAMA’S SECRET WARS AND SURPRISING USE OF AMERICAN POWER. New York. Crown Publishers.
Yoo, John. 2010. CRISIS AND COMMAND: A HISTORY OF EXECUTIVE POWER FROM GEORGE WASHINGTON TO GEORGE W. BUSH. New York. Kaplan Publishing Company.
BINYAM MOHAMED, ET AL V. JEPPESEN DATAPLAN, INC., 614 F.3d 1070 (9th Cir. 2010), cert. denied 2011.
KALID EL-MASRI V. TENET, 478 F.3d 296 (4th Cir. 2007), cert. denied 2007.
Copyright 2013 by the Author, Donald W. Jackson.