36 War on Terror Semantics and Practices

Prof. Vik Kanwar

Table of Contents

1. Learning Outcomes

2. What is “War on Terror”?

3. War on Terror: Terrorism equitable to war

4 .A war against terrorism: An unwarranted rhetoric

5. U.S Strategy:

5.1 Goals and Objectives

5.2 Ways: Concepts and Implementation

6. Radical Islamic Strategy:

6.1 Goals and Objectives

6.2 Ways: Concepts and Implementation

7. Applicability of IHL in ‘War on Terror’

8. Applicability of Common Article 3 of The Geneva Conventions to detainees

9. Summary

1.Learning Outcomes

• To give students the ontological roots and an overview on the semiotics of Global War on Terror took place, and the ramifications it had on IHL
• By the end of the chapter, the students will have an understanding of International
• Humanitarian Law’s applicability in GWOT, along with its semantics and practices.

2. What is “War on Terror”?

September 11 marked the date for all to know that it was an act of war. The magnitude of attacks, the violence as well as the worldwide impact showed the situation to be nothing less than a war. A little less than 10 days, George Bush, the then president of the United States, announced its war on ‘terrorism with a global reach’, and announced that this war would only end with that eradication of this evil. The struggle after that has involved multiple level operations which has included police and judicial repression, intelligence and diplomatic and military diktats. The war on terrorism is comparable to war on drugs, or war on crime; all but ensure its non-achievable, non-attainable and an unascertained reality. To label them as war is not designated to an enemy, but rather the ideological rhetoric on eliminating the idea and its force. The indeterminable nature of this war, is exactly it’s a contentious and controversial term. By expressing the war onto something metaphorical entity and to fight those responsible are no less than wartime enemies.

The ensuing struggle at the aftermath of 11 September 2001, is a long-term, multi-faceted undertaking, involving police and judicial repression and intelligence, as well as diplomatic and military actions. The impossibility of a war has allowed the United States government to gain a strategic leverage for multiple unwarranted military interventions, justification for which is the aforementioned rhetoric.

3. War on Terror: Terrorism equitable to war

There are many reasons behind why terrorism is taking an ontological root equivalent to war. This concept of war is taking root; firstly, as a result of the methods and reach of destruction that modern terrorism can cause. For the first time in American History, the 9/11 attacks affirmed a war like status that modern terrorism achieved in terms of suddenness, scale of destruction, the disorganization and costs that it caused as well as the nature of attacks comparable to the effects of a military operation in a typical war. Therefore, the attacks proved to show the destructive capacity of a non-state actor, i.e. The Al Qaeda, to be comparable to a state when it attacks. The Security Council and the Atlantic Council recognized these attacks to be in nature of an armed attack, and allowed the United States to a right to self-defence, against those who have ordered or encouraged it outside.

Secondly, America as a nation found itself living at war, psychologically. It suffered an unprovoked and unjustified attack, which furthered its insecurity and frailty as a sovereign nation against something which was nowhere to be traced. The grief and anger that amalgamated as a result of this attack was immense and led to a huge patriotic outrage. The US via its media and opinions pressurized the US government to take a strict military response commensurate with the insult. As a result of such outrage and political upheaval, the Bush administration came up with the USA Patriot Act, in October 2001 that took its legal sources from the law of armed conflict, to repress terrorism, both inside and abroad, bringing within its scope the fight against terrorism closer to actual war with its legal underpinnings.

Thirdly, the war on terror took on a new dimension when it declared its episode of the campaign in Afghanistan. After getting the slightest of The Taliban’s whereabouts, the terrorists targeted and hunted on Afghan soil was in the nature of a war. As its justification, it stated on an ultimatum (to hand over the terrorists, instrumental to the 9/11 bombings), failure to which was the premise for the US Army to declare war. While the Security Council did give its green signal, however implicitly, the Afghan war came to be known as a legitimate self-defense and also entertained unanimous international support. The result of this support catalyzed the US to call the Afghan campaign, Phase One, and need for further action was becoming an article of faith in Washington.

4. A war against terrorism: An unwarranted rhetoric

The view of using the word war to fight against terrorism was a noble term as a consequence of widespread destruction 9/11 attacks did, economically, psychologically and politically, however became clear that in reality it was a war that intended to transgress beyond its noble objective, where Afghan Phase was the one that crossed the line. The global struggle against terrorism, and it to be flagged as a war, didn’t come with their own sets of criticisms.

To call the fight against international terrorism, a war is problematic and entails major drawbacks. The problems that entail from this concept are many fold: the use of the war gives unwarranted status and legitimacy to the adversary. Secondly, it exaggerates the role of military power and defeats the purpose and object of IHRL and IHL. Thirdly, The United States bending both its internal judicial rules and international law leading to forcibly accommodate in international, delegitimizing the role of UN and its faith. Fourthly, the connection drawn by US towards preventative war and war on terrorism has undermined the anti-terrorist coalition. The linkage with war against pervades that problem, while heightening of anti-American feeling in the Islamic and Middle Eastern parts.

Under IHL, to call this a war would imply the degree of commonality between parties (Also having to fight terrorism, the State has to name the adversary), and subsequent to that certain rights. This allows certain terrorist groups to proclaim themselves at war with legitimizing their power, rendering this a legitimized platform. For Al-Qaeda to achieve a status of a State’s peer, it is equitable to being called a State entity, is concerning. The latter obviously would want to equate them to criminals, but that would disallow the matter to come under IHL, as IHL protects parties to armed conflict. This has led to inadvertently giving Al-Qaeda increased stature and a sense of legitimacy. It has reinforced their self-construction of being warriors and put them in the same pedestal as the US, something that they have very well extracted from being given a title of a war party.

5. U.S Strategy:

5.1 Goals and Objectives

The United States had formulated its strategy for its proposed conflict entitled ‘The National Strategy for Combating Terrorism’. Prior to the events of 9/11, international terrorism was considered an issue of law enforcement. Following the aftermath of 9/11 attacks, Al Qaeda and other fundamentalist groups attained status of being radical ideological movements with revolutionary motives. Osama Bin Laden had issued his interest in the eradication of the western influence by carrying out several attacks before 9/11, however the potentiality of his threats were realized when it happened; U.S. could no longer delay its unified national effort that proposed to curb the same.

The current U.S. Strategy has described two macro-level strategic visions: The first aims to achieve the short-term goals regarding capture individuals who have irrevocably crossed the line into violent extremism. The second was the all-pervasive propaganda to create a global environment that makes the existence of such radical terrorism, obsolete and inhospitable. The two larger goals of the United States have foreshadowed various military armed interventions to attain the latter ideological goals. The ideological reinforcement was a vital strategy by the U.S. to severely immobilize and curtail potential recruiters that would be born from such radical groups to wage war against U.S. and the West.

5.2. Ways: Concepts and Implementation

The current U.S Strategy has identified key national actions that are imperative to achieve the ends identified. These six priorities employ all the DIME instruments of national power (diplomatic, informational, military, and economic).

The first is to prevent any future attacks by terrorist networks. Secondly, to make sure all measure of international pressure and force are mobilized to deny weapons of mass destruction to rogue states and terrorist allies who seek to use them. Thirdly, deny the terrorists control of any nation they use as a launching pad and base for propagation of terror. Fourthly, implant the American democratic institutions and values to instable governments to turn their state democratic, hence being the long-term antidote to the idea of terrorism. Fifthly, lay the foundations and build the institutions and structures we need to carry the fight forward against terror and help ensure their success.

The first four actions that support the short-term goals have been largely pursued through military and economic means. U.S. Strategy has largely been successful in capturing and killing members of al-Qaeda and till now have been able to prevent further attacks in the United States. This execution of such a strategy has had dastardly effects on thousands of lives of Muslims who were not committed to the extremist ideology. The United States has estimated over 34,000 Iraqis died in 2006 alone. The latter steps towards the end have been taken by institutionalizing international standards of accountability for national governments. Under the aegis of the 12 UN conventions, protocols have been developed that obligate governments to stem terrorist activities and to share Intel to winning against terrorism. Hence, with the U.N. persuading many networks under the states, make sure that terrorists are increasingly isolated from the rest of the world, depriving them of resources to carry out their agenda.

6. Radical Islamic Strategy

6.2 Goals and Objectives

In August 1996, Osama Bin Laden had issued a fatwa that specified three objectives. The first was the need to remove Western influence from the Middle East, Saudi Arabia. His statement that there is no more important duty than pushing the “American enemy out of the holy land” goes on to show the utter animosity that he had for western influences. Bin Laden further explained that he believed that the Saudi King had betrayed the umma by allowing the United States to base military forces in Saudi. As a result of what he calls a betrayal, he called for the removal of the King as his second objective. His third objective was the removal of Israel from Jerusalem. The ultimate goal of Islam, according to him was the establishment of a single nation or community of Islam governed by rule of Sharia Law-by re-establishment of the Caliphate. Here, Caliphate means a theocratic entity in which the state is infused with Islam. The 1979 Iranian revolution was the first step in the Shiite fulfilment of this objective. However the Iranian sharia government has not been described in Caliph Terms and its authority unrecognized by Sunnis.

6.2 Ways: Concepts and Implementation

In order to accomplish that the revolutionary Islamic Vanguard has identified, the Islamic extremists must match their ways with available means. The ways used by Al-Qaeda can be looked into by way of DIME approach.

Diplomatically, they have used very little diplomacy. The issuing of fatwas and bin Laden’s calls for the United States to leave the middle east was the only extent of diplomatic means, which was to create diplomatic fissures between United States and their allies. The use of Information element of power has been advantageously used by the Vanguard. By heavy employment of media and use of information operations, they have called to spread rumours, fear and discouragement among the members of the enemy forces. The fatwas can themselves be characterized a certain form of information with the primary intent to rally umma to their cause. The military power that Al-Qaeda had was minuscule in comparison to U.S., and used a lot of fundings by the united states and the soviets. He further used these funds to initiate a guerrilla warfare, to force the US out of the military. He also mentioned that considering the disparity of power between warring parties, fast moving light forces must be adopted that operate very secretively. He also employed the use of bombs, hijacking planes with a view to destroy both lives as well as economic institutions. Economically, he could have used any sanctions or apply limited power. However, he did call for all Muslims to boycott American goods, creating economic sanctions against the United States. He clearly understood the vital role economics played when co-ordinated with other elements of power.

7. Applicability of IHL in ‘War on Terror’

In the US Supreme Court Case of Hamdan v. Rumsfield, it was held that The military commissions that used grotesque forms of torture for 9/11 suspects and detainees violated the four Geneva Conventions, most notable being Common Article 3, that protects prisoners of war in the controversial Guantanamo Bay detention camps, illegal without the approval of the congressional authority, as well as contravening the Geneva Conventions envisaged under Uniform Code of Military Justice. A lot of this cognized the fact that a war on terrorism is indeed a case of armed conflict, and required the United States to comply with the Geneva Conventions, being applicable as a result of this status. Soon after such cases were dealt with, applicability of IHL principles and norms were hotly debated in specific reference to Afghanistan, in the fight against Taliban. The United States argued that the prisoner of war status could not be accorded to the Taliban, as they did not come under the purview of ‘State actors’ as defined within the conventions, and actually were a de facto non-state actors, and hence the protection guaranteed by Common Article 3 would not be availed against them. Even Geneva Convention IV which ensures protection of people from grotesque and barbaric detentions were largely ignored, even if they comprised civilians. The application of IHL came to the fore during the invasion of Iraq and the occupation of the same called into question the ethical treatment involving security detainees. Article 4 of the Geneva Convention’s applicability towards security detainees have yet to be debated. However the U.S. have not been able to properly define what kinds of derogation may be permitted under the article. Article 4 allows certain degree of derogation with only respect to rendering the detainees’ incommunicado meaning isolating them from all forms of communications, for a limited amount of time and it obviously does not include restraining from exercising the right against coercion, unethical forms of torture and other arbitrary practices.

8. Applicability of Common Article 3 of The Geneva Conventions to detainees

The main question behind the treatment of detainees and their relevance to IHL has to be the rights that protect them from arbitrary forms of torture and detainment, and what, under the IHL framework, could they be protected from. The detainees from the Afghan Conflict, that were held at Guantanamo Bay in Cuba, raised serious questions to the application of Geneva Convention, with specific relevance to Common Article 3 that prescribes rules taken by parties to war, when it comes to prisoners of war. Hence, the moot question being whether security detainees, can avail such protection from Common Article 3, as ‘prisoners of war’? Secondly, whether the kinds of detention, interrogation and trial are consistent with the rules prescribed within this article, and how would they enable themselves to invoke such a right.

This led to a serious of legal discourse to determine whether non-US citizens who were subjected through arbitrary and unchecked detainment, have the right to be protected under the IHL laws, and even within domestic laws. In the landmark case of Rasul v. Bush, the court held that even the non-citizens have the right to habeas corpus at Guantanamo despite exceptional executive control over the location in Cuba. The Hamdan Case further strengthened the rights of the prisoners, and this led to the court ruling in applying Common article 3 in the Afghan Conflict with Al-Qaeda, as well as invalidated Military Commissions that violated this article and hence, did not comply with the Uniform Code of Military Justice, which operates under this article. By acknowledging the cases of the people detained as prisoners of war, the United States had inadvertently allowed the United Nations, its legal realm of international law, to be applicable and hence, consider terrorism to be governed as an armed conflict, in the nature of a war. While the Bush Administration might have been able to invoke a strategy that allowed widespread impunity in terms of detainment, allowed itself to wage war on a foreign territory, and gained an impregnable autonomy on the sovereign states, the characterization of war in nature of armed conflict, allowed the conventions to take force and invoke Common Article 3, to take over.

The inclusion of armed conflict in terrorism has had a paucity of precedent legally, due to the only times such a legal question has been in the case of U.S. or Israel. However, the definition of armed conflict may as well be described via alternative legislations that are nevertheless under the aegis of the Geneva conventions, namely Protocol II. Protocol II further sets the scope of the application of armed conflict, in decidedly narrow terms. According to Paragraph I of the protocol, in order for non-international armed conflict to be given the status of the same, the non-state actors that form the opponents, must be dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of (the State’s) territory as to enable them to carry out sustained and concerted military operations and to implement this protocol. (PROTOCOL II )

The instant ratification of the limiting nature of conflicts to be intervened by international law, was something that states certainly took to their advantage. Such a niched legislation that defines the inclusion of certain events as armed conflict, while excluding others, on such anachronistic terms, narrows the understanding of ‘armed conflict’ under IHL. While it may not have a direct causative effect on limiting the application of the Conventions, considering the lack of clarity in definition of armed conflicts, it does have some credence. The protocols, however, were not influencing the scope of the definition in the case of Prosecutor v. Tadie, a case involving International Criminal Tribunal for the Former Yugoslavia held that an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”  The court hence, broadened the scope of application to include armed conflicts that clearly exceeded the intensity requirements of both International and internal armed conflict.

9. Summary

The module would be able to explain the ontological status of war that GWOT achieved, the ramifications it had on IHL, with specific references to judgements, the applicability of the Geneva Conventions, with reference to Common Article 3, and the rights of the detainees and POWs.

Reference

• Gilles Andréani (2004) The ‘War on terror’: Good cause, wrong concept,
• Andrew Dobrot, Laurence. “The Global War on Terrorism: A Religious War?” Strategic Studies Institute, 2007. http://www.StrategicStudiesInstitute.army.mil/.Morsink, Johannes. The universal declaration of human rights: Origins, drafting, and intent. University of Pennsylvania Press, 1999.
• Jinks, Derek, The Applicability of the Geneva Conventions to the ‘Global War on Terrorism’. U of Texas Law, Public Law Research Paper No. 93; Virginia Journal of International Law, Vol. 46, 2006.
• Record, Jeffrey. “Bounding the Global War on Terrorism”. December, 2007. Strategic Studies Institute. http://www.strategicstudiesinstitute.army.mil/pdffiles/pub207.pdf
• Lizardo, Omar. “Defining and Theorizing Terrorism: A Global Actor-Centered Approach”. University of Notre Dame. https://www3.nd.edu/~olizardo/papers/jwsr-defining.pdf
• Yin, Tung. “ENDING THE WAR ON TERRORISM ONE TERRORIST AT A TIME: A NONCRIMINAL DETENTION MODEL FOR HOLDING AND RELEASING GUANTANAMO BAY DETAINEES” Harvard Journal of Law and Public Policy. Vol. 29. http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No1_Yin.pdf