Transcript
MR. JAMES B. STEINBERG: Good morning ladies and gentlemen, and welcome to Brookings.
It's a very great honor for me to welcome Professor Adam Roberts here for a discussion today on "Counterterrorism and the Laws of War: A Critique of the U.S. Approach".
The timeliness of today's session is an issue that's been of course debated since the beginning of the war in Afghanistan, but the timeliness became very clear yesterday for those of you who read the New York Times "Week in Review" section which had a feature called "Who is a prisoner of war? You can look it up, maybe." And I think the maybe is exactly the question that we're going to be discussing today.
It is a real privilege to have Professor Roberts here who is one of the most prolific and thoughtful commentators on international law and international relations. He's a Montague Burton Professor of International Relations at Oxford where he's been since 1986. Prior to that he was at St. Anthony's College at Oxford. Prior to that at the London School of Economics. He is, as I said, a prolific writer on the issues of international relations and international law and has co-authored with some of the most distinguished thinkers in our field including Alistair Bucken [ph] and Philip Windsor, two great mentors of mine as well. I had the privilege of being in London with Adam in the mid 1980s when I was a Fellow at the International Institute for Strategic Studies.
After Professor Roberts' remarks we will have comments by Ambassador David Scheffer. Ambassador Scheffer, as many of you know, served in the Clinton Administration, most recently as Ambassador for War Crimes. When he left the Administration he joined the Institute of Peace, U.S. Institute of Peace as a Senior Fellow. And David is now in his last days at USIP and is about to become Senior Vice President for the United Nations Association of the United States, and I have happily learned that part of the time he will be in the Carnegie building next door, so we will be continuing to see a lot of David.
David, in addition to being a very knowledgeable commentator on international law and international relations is a very distinguished professor in his own right. He's recently written a special report for USIP called "Options for Prosecuting International Terrorists" which I urge you to rush out and obtain your own copies.
I don't want to spend a lot of time introducing the subject because I think it is a familiar one. The challenge of thinking about how the laws of war apply to the problem of battling terrorism is a very critical one, not only because the are a lot of legal ambiguities, but they actually play out not just in the academic debate but in the real world as we have seen in Afghanistan and in Guantanamo, and this is surely not the last time that we're going to confront these issues as we see an increasing resort to the use of force as an element of the overall strategy to deal with the problem of counterterrorism. So our discussion today is timely, and I don't want to take any more time from our distinguished speakers. So let me turn it over to Professor Roberts.
MR. ADAM ROBERTS: Ladies and gentlemen, it doesn't need me to tell you that it's been six months to the day since those awful events, and I don't intend to do any kind of general survey or accounting of the extraordinary changes since that day— a day when among other things we discovered that there were absolutely no limits which restrained what terrorists might do. I think many of us up to that point had subconsciously believed that there were certain limits, certain things that it would be dysfunctional, counterproductive, all those usual words for them to do. And clearly we were conscious, at least in that respect, in facing a new situation after that awful date.
From the very moment when that attack occurred, I wasn't in any doubt, and I just wanted to sort of lay this out from the start that there would be a military response and that a military response was justified. It was pretty evident right from the word go, to be honest, that the al Qaeda network, Osama bin Laden already having taken credit for one attack on the World Trade Center was behind this one.
I was in London when I heard the awful news and was immediately sure and gloomy that it would mean a war. I had to get back to Oxford that afternoon and the bus driver—bus drivers always have clear views on things— expressed the view that there would be a war. I think his view, like mine, was as it were accepting that this was inevitable and even necessary.
What I want to look at is a particular sub-aspect of the events that have unfolded since the 11th of September and particular grounds for concern about that sub-aspect, the sub-aspect obviously being the role of the laws of war. But this does have to be seen against a background which I think I'd better lay out because it is a background of deep suspicion between Europe and the United States greater than at any time I can recollect in my professional career and I think it's a huge cause for concern.
I could crudely summarize that suspicion by saying that in the U.S. government there's a view that Europeans are simply no longer serious about the conduct of war. They're seen as having low defense budgets, perhaps as being too legalistic, and being reluctant to face up to the fact that some crises do actually require the use of force and even engaging in controversial actions involving the use of force.
Meanwhile, on the other side of the pond, many Europeans including some governments view the United States as having adopted an unnecessarily unilateralist stance, at least on certain issues, and the Americans are seen as risking, jeopardizing, the undoubted achievements of the campaign since 11 September by threatening the use of force in circumstances where it might not be the first option or might be less appropriate than it was in Afghanistan, and in this light the Americans are also seen sometimes as being selective, almost to the point of rejectionism, in their attitude to international law and organization.
Now I don't intend to go into the rights and wrongs of these suspectives, but note one central thing about them. On both sides of the ledger issues to do with the international law feature. They're not the only issues, but they are among them and they have proved among the poisonous elements that divide our respective societies. And even in Britain some of the elements of what I described as a European suspicion of the United States play quite large.
Obviously what I presented is a caricature. Obviously within the United States and within each European country there are more gradations of opinion than that caricature allows. But the problem, nonetheless, is I think a real and deep one.
About the role of law in this crisis let me say one thing loud and clear at the beginning. When there is a war it isn't just a matter if you're interested in the laws of armed conflict, of judging the belligerent by the standard of the law of armed conflict, and seeing how they perform and either praising them or criticizing them as you are minded.
It's also, and importantly, a matter of assessing the adequacy or otherwise of the law faced with a special and unique set of circumstances. That is particularly the case with this war, with a counterterror war. In other words it's not just the conduct of the parties that needs to be looked at, although it does, but also the adequacy of the law itself.
Against that background I want to look at three questions. First, are the laws of war formally applicable in antiterrorist military operations? Secondly, in the event that such operations involve situations that are different from the kind of war envisaged in the main international agreement, should nevertheless the attempt still be made to apply that body of law? And third, are captured personnel suspected of involvement in terrorist organizations entitled to prisoner of war status?
It's obvious that the answers to these three very general questions may vary in different circumstances, and the most prominent manifestation of the U.S. led war on terror, Operation Enduring Freedom, is likely to be very different from subsequent phases of the war on terror. And in particular, subsequent phases of the war on terror may well involve collaboration with governments which have authority over their own territories and will assume a very different character from most of what we have seen up to now.
My training is in history and as a historical fact I think it's hard to dispute that most antiterrorist operations are largely internal matters conducted by governments within their own territories, often within certain legal and prudential limits that derive from that particular society and its norms.
Within functioning states terrorist campaigns have often been defeated through slow and patient police methods, sometimes with military assistance, rather than by major military campaign. That was true of the campaign against the Red Army Faction in Germany, the Red Brigades in Italy, and also some colonial experiences rather similar— the British campaign against communist terrorists in Malaya after 1948 being a good example. And likewise, and in my view especially, the 30 year struggle against terrorism in Northern Ireland had very much that character of a slow, patient, governmental come military process which did not aim at military spectaculars but which did slowly grind down the hope that the terrorists may have had that they could achieve significant results through that course of action.
I'm laying this out partly to indicate my own prejudices about counterterrorism which is in general, and this doesn't necessarily apply to every campaign, but in general it is a matter of slow grinding campaigns against terrorism.
And in particular one has to bear in mind that the strongest single argument against terrorism, apart from the awfulness of the crimes that terrorists commit, is the fact that terrorism is or becomes, wherever it takes root it becomes a social habit. Started by one level of nationalists it gets taken up by another; started by the left, gets taken up by the right; started by religious groups, it gets taken up by secular groups; or vice versa.
And granted, the fundamental problem of terrorism is it's a social habit which is deeply debilitating in certain regions and countries. One must not expect something which is in the nature of a habit to be rooted out in a single blow. It has to be worn down slowly and carefully over time.
In other words, most aspects of the war on terror we can expect to be very different from what we have seen so far in the first six months of this campaign.
Now the laws of war aspects of this— I want first of all to stress that the laws of war are not just a high-minded creation of Geneva. They have their origins as much in the interest of coalitions as they have in the interest of international, those concerned with international humanitarian issues.
The first major Convention in the field was the 1857 Paris Declaration which resulted precisely from a concern of allies— in this case Britain and France—about having congruent treatment of the issue of neutral trade and neutral shipping during an armed conflict. And in coalitions from that day to this a variety of laws of war issued have been of fundamental importance, and one of the principle underlying t