[iwar] [fc:Are.We.Really.at.War?]

From: Fred Cohen (fc@all.net)
Date: 2001-12-13 06:12:28
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Date: Thu, 13 Dec 2001 06:12:28 -0800 (PST)
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Are We Really at War?

By Lieutenant Colonel Gary D. Solis, U.S. Marine Corps (Retired)

President George Bush declared that the United States is at war in his 20
September address to Congress. This "war on terrorism" in response to the 11
September attacks raises questions about the meaning of the term war.

Is the war on terrorism actually a war? If not, what is it, and how will the
actions of our armed forces be viewed in terms of international law? Are
terrorists ordinary criminals to be tried in domestic courts, or are they
enemy combatants? If captured, are al Qaeda fighters prisoners of war? May
we try terrorists for war crimes in federal courts or by military
commissions? As timely as these questions are, they are questions our
country has faced before. We can look to history and to legal precedent for
the answers.

What Constitutes a War?

In the context of the war on terrorism, the term war is "a metaphor to
signify struggle, commitment, endurance," according to a New York Times
op-ed piece by Michael Walzer, author of the classic book Just and Unjust
Wars.1 But this is no metaphorical war. This is war, plain and simple.2 Even
before our counterattacks on Afghanistanąs Taliban and the al Qaeda
terrorists, the United States was engaged in a war. We were at war at 0845
on 11 September 2001, a war "declared" by the Commander-in-Chief in his 20
September address before a joint session of Congress. Congress swiftly
followed his declaration with a joint resolution supporting the use of force
against terrorists. Our armed forces are now fighting that war, Professor
Walzerąs assessment notwithstanding.

But what legally constitutes a war? There is no court case, no text, no
treaty that conclusively answers the question or defines the word. Only
Congress can declare war‹which it has not done‹but can a state of war exist
without a congressional declaration? On the basis of history alone, the
answer is yes. The United States, which has employed military force more
than 220 times in its history, has declared war only five times, most
recently more than half a century ago.3 Korea, Vietnam, and the Gulf War all
were undeclared combat actions.

Some say that war exists if there are armed hostilities between nations, or
between citizens of the same nation. In 1846 President James Polk expressed
this view in words pertinent to our situation today: "After reiterated
menaces, Mexico has passed the boundary of the United States, has invaded
our territory and shed American blood upon the American soil. She has
proclaimed that hostilities have commenced, and that the two nations are now
at war. . . . We are called upon by every consideration of duty and
patriotism to vindicate with decision and honor, the rights and the
interests of our country."4

So it is with the 11 September terrorists. Behind the cry of "Jihad!" agents
of Osama bin Laden and al Qaeda crossed our border and killed more American
citizens in a single day than on any day since the Civil War. If estimates
are correct, al Qaeda murdered more than 30 times the 148 U.S. battle deaths
suffered in the Gulf War. We are at war, and no formal declaration is
necessary.

Even if war can exist in the absence of a congressional declaration, can war
be made on an individual, or a non-state group, such as "terrorists"? Indeed
it can. In 1801, President Thomas Jefferson made undeclared war on the
Barbary pirates, sending Marine Lieutenant Presley OąBannon to the shores of
Tripoli. It is true that in customary international law, war is a hostile
contention by means of armed forces between states. The 1907 Hague
Regulation III speaks of war being a circumstance between "states." But al
Qaeda, Hamas, Hizballah, and other terrorist armed forces of international
reach have taken the world community beyond what is customary. Nor is this a
case of one manąs terrorist, another manąs freedom fighter. These fanatical
groups are not resisting colonial governments, or fighting an alien
occupation, or defying a racist regime. They breach borders to kill and
destroy, intentionally targeting noncombatants and civilian locations, for
reasons most Westerners find difficult even to articulate.

There is a well-reasoned argument that in international law, a declaration
of war is passé, a policy relic of a not-so-distant past. That is because
the U.N. Charter, ratified by the United States and thus the law of our
land, requires that U.N. members "refrain in their international relations
from the threat or use of force" unless directed by the United Nations.5
That provision prohibits force against "any state." Other charter provisions
require that members "settle their international disputes by peaceful
means."6 Those provisions, taken together, indicate little room today for a
stateąs unilateral declaration of war.

The U.N. Charter does allow for force to be used in self-defense, however.
In years past, self-defense has been described as requiring "a necessity of
self-defense, instant, overwhelming, leaving no choice of means, and no
moment for deliberation."7 That description does not closely fit our
counterstrikes on the Taliban and al Qaeda. But international law, like all
institutions, evolves and continues to mature. There is heated debate as to
whether a state may, under the U.N. Charter or under customary international
law, exercise anticipatory self-defense‹that is, whether a threatened state
may strike first. Twenty years ago, when Israel destroyed an Iraqi nuclear
reactor shortly before it went critical, it cited anticipatory self-defense
as justification and was condemned roundly by the United States and other
governments. Fifteen years ago, however, our view was moderated when we
bombed Libya after a Libyan-sponsored attack murdered two U.S. soldiers in a
German discotheque. Although we were censored in international forums,
anticipatory self-defense was the basis of our bombing.

If a nationąs enemy masses on its border, that nation should not be required
to await attack, providing a static target; to do so only invites a greater
danger. It would border on the suicidal for the United States to stand
docile and simply await the next armed terrorist assault. Reflecting
evolving international law, there has been virtually no criticism of our war
on terrorism, whether it be called self-defense or anticipatory
self-defense. Even the United Nations, in rare support of the use of force,
seconds the war and has voted to require U.N. members to act against
terrorism.8

Moreover, just as the get-away driver in a bank robbery is guilty of the
robbery, so are the states that sponsor and succor terrorists guilty of the
terroristsą crimes. Materially aiding and abetting terrorism in itself
constitutes terrorism. Our extension of the war to such governments is no
legal novelty, no breaking of new international ground.

So, yes, we are engaged in a war as surely as any formally declared war in
our nationąs history. An armed force that repeatedly has declared its intent
to make war on us has breached our borders. It has murdered American
civilians and killed our combatants. The initial battles of what promises to
be a long conflict have been joined.

Are Terrorists Combatants or Criminals?

The United States traditionally has viewed terrorists merely as common-law
criminals. Terrorism goes unmentioned in the 1949 Geneva Conventions and in
Army Field Manual 27-10, The Law of Land Warfare. Even after elements of the
Lebanese Party of God killed 220 Marines in the 1983 bombing of a Beirut
barracks, and five years later kidnapped and murdered Marine Colonel William
R. Higgins, the United States took no decisive military action. Since then,
the United States has continued to view terrorism as a political issue,
beyond the ambit of military solution. Six fundamentalists behind the 1993
bombing of the World Trade Center were tried and convicted in U.S. federal
court. There are many other examples. U.S. armed forces sometimes delivered
retaliation, usually little more than punitive slaps at the periphery rather
than significant blows to the terrorists' leadership or infrastructure. But
on 11 September, terrorism graduated from criminality to clear-cut military
attack.

If we accept that we are at war, the 1949 Geneva Conventions‹the most widely
observed treaties in the world, counting even Afghanistan among their
signatories‹lay out four requirements for fighters to be considered
combatants, entitled to the protections of the law of armed conflict and
prisoner-of-war status if captured: they must (1) be commanded by one
responsible for their conduct, (2) have a fixed and distinctive sign that is
recognizable at a distance, (3) bear arms openly, and (4) follow the law of
war.9

Terrorists ignore these requirements‹even as they are diluted by the 1977
Protocols to the Conventions. In the law of armed conflict, that means
terrorists are illegal combatants, not meriting prisoner-of-war status if
captured and liable to trial for their acts. Of course, as illegal
combatants, terrorists remain legitimate targets. To kill Osama bin Laden,
for example, whether in an Afghan terrorist training camp or in his bed in
Kabul, would be the lawful killing of an illegal enemy combatant.

The targeting of bin Laden should not be confused with assassination
(simplistically, a murder for political reasons). U.S. military law first
prohibited assassination in the 1863 Lieber Code, promulgated as Army
General Orders 100.10 Although the Geneva Conventions are silent on the
subject, todayąs Law of Land Warfare field manual continues the prohibition,
as do the Defense Intelligence Agency and the Department of the Armyąs
policy on special operations.11 Most notably, however, Executive Order
12333, reissued by every president since Gerald Ford, details a series of
prohibitions against assassination in both peacetime and war. But, again
accepting that we are at war, no order or manual precludes attack on
individual soldiers or officers of the enemy, whether in the zone of
hostilities, in occupied territory, or elsewhere. Thus it was within the law
of war when, in 1943, U.S. Army pilots shot down and killed Japanese Admiral
Isoruku Yamamoto, an officer of the enemy in a zone of hostilities. The 1942
killing of SS Obergruppenführer Reinhard Heydrich by British-trained Czech
agents was a lawful killing of an enemy officer in an occupied country. The
specific targeting of Osama bin Laden‹a combatant, albeit an illegal one,
who leads an enemy armed force‹is not assassination.

President Bushąs statement that Osama bin Laden is wanted, dead or alive, is
more problematic. Field Manual 27-10, The Law of Land Warfare, explains that
Article 23(b) of the Annex to 1907 Hague Convention IV "is construed as
prohibiting assassination . . . or putting a price upon an enemyąs head, as
well as offering a reward for an enemy 'dead or alive.'" But the provision
cited by the field manual is hardly a clear prohibition of any of those
acts: "It is especially forbidden (b) To kill or wound treacherously
individuals belonging to the hostile nation or army." There is no reference
in the Hague Convention, even oblique, to either a bounty or a dead-or-alive
policy. There is little law on the subject, although it generally is
accepted that bounties and dead-or-alive pronouncements are not in
conformance with customary international law. In any event, bin Ladenąs
illegal combatant status makes him a legitimate target who may lawfully be
killed. Should he one day offer to surrender, we are, of course, obligated
to accept that surrender.

Where May Terrorists Be Tried?

When captured, terrorists may be tried for crimes they have committed. If
being an unlawful combatant is itself a crime under the law of armed
conflict, who may try the violator, and where, and in what forum?

Besides engaging in combat operations unlawfully, the crimes of the 11
September terrorists include multiple murder and hijacking, to name only the
most obvious. A charge of genocide also appears appropriate. Terrorism,
murder, and hijacking are domestic crimes within the jurisdiction of United
States district courts‹federal offenses. As many terrorists have found in
past trials, federal sentences can be harsh. There is no federal crime of
genocide per se. Murder, hijacking, and genocide, when committed by illegal
combatants, also are violations of the law of armed conflict that can be
tried under Article 18 of the Uniform Code of Military Justice (UCMJ), which
is federal law. 

There is no international tribunal now in existence that might try
law-of-war violations. The jurisdiction of the International Criminal
Tribunal for the Former Yugoslavia, established by the United Nations, is
limited to crimes committed in Yugoslavia. The U.N.-established Rwandan
Tribunal also is limited by geography. The World Court exercises
jurisdiction over consenting nations, but not individuals. Although opposed
by the United States, the International Criminal Court, once it comes into
existence, will be a standing court with jurisdiction over war crimes, but
its jurisdiction would not extend to acts alleged before it was established.
The United Nations could establish another ad hoc international tribunal to
try 11 September terrorists and their sponsors, but that possibility is not
on the legal horizon. Any U.N. tribunal would exclude the possibility of the
death penalty.

Although there is no suitable international tribunal, there is another
method of putting terrorists on trial. In customary international law,
violations of the law of armed conflict are universal crimes, that is, every
nation considers them crimes, and any nation that has implementing
legislation and has custody of accused war criminals may either try them or
hand them over to another state willing to prosecute them. In other words,
11 September terrorists may be tried in the domestic courts of any nation
holding them.

Captured enemy terrorists, then, face a broad variety of potential accusers.
There is every possibility that some leaders of al Qaeda eventually will be
captured, either following the fall of the Afghan Taliban government or
through a military snatch operation. If captured by the forces of a country
allied with the U.S. war on terrorism, the suspect quite likely would be
turned over to the United States, with its greater interest in prosecution.

Presuming a U.S. prosecution, would trial be by a federal court or by a
military tribunal? There will be no conclusive answer until the day of
decision arrives, but there are compelling factors that suggest trial by
military commission. The 1949 Geneva Conventions provide for trial of
illegal combatants, allowing for trial by commission. In addition, Congress
has provided for trial by military commission for offenses committed by
illegal combatants, precluding any terrorist claim that military trial is
not permitted because there were no ongoing hostilities between his group
and the United States.

The military commission, a wartime court, first arose in 1847, when General
Winfield Scott sought a means to try enemy civilians for criminal offenses
against U.S. soldiers in the war with Mexico. In that day, as today,
civilians, including civilians of the enemy state, were not subject to the
Articles of War, the predecessors to the UCMJ, so General Scott established
and employed military commissions. Essentially general courts-martial by
another name, they are provided for in the Manual for Courts-Martial.
Commissions are rare today, but were not always so. They were used
frequently following the Civil War and after World War II. In 1865 a
military commission convicted and sentenced to death Confederate Major Henry
Wirz, the commandant of the Andersonville, Georgia, prisoner-of-war camp,
where an estimated 12,000 Union soldiers died. In the same year another
commission sentenced Dr. Samuel Mudd to life imprisonment for aiding and
abetting the assassination of President Lincoln. General Tomoyuki Yamashita
was the first major war criminal to be tried following World War II,
sentenced to death by a military commission, as was Japanese Lieutenant
General Masaharu Homma.

The United Statesą most notable military commission was held in 1942, after
eight Nazi saboteurs‹uniformed terrorists in many respects‹were landed by
submarine on U.S. shores: four on Long Island, New York, and four at Ponte
Vedra, Florida. They were captured within days, before they could execute
their missions, and President Franklin Roosevelt ordered a military
commission convened. The three-week trial was conducted in secret and was
prosecuted personally by the Armyąs Judge Advocate General. After the
Supreme Court denied an accelerated jurisdictional appeal, all eight were
convicted and the President approved the proceedings. Six were executed, and
the other two received sentences of 30 years and life imprisonment.

The trial procedures employed by World War II commissions would in some
specifics not be permitted today. There were troubling prosecution tactics
and evidentiary rulings in all of the World War II commissions mentioned.
The 1949 Geneva Conventions cure this problem by requiring that the legal
procedure employed in trying prisoners of war be the same as that for trials
of the prosecuting nationąs own troops. A commissionąs procedure and
evidentiary rules may vary, however.

What makes a military commission preferable to a domestic court for the
trial of an al Qaeda terrorist accused of multiple murder as an illegal
combatant is that commissions may be conducted in secret. In contrast, in
federal court the prosecutionąs proof, including the disclosure of our most
secret intelligence-gathering means and techniques, would have to be
revealed. Further, courtroom security is simpler in trials conducted on
military bases, and military jurors would be less susceptible than civilian
jurors to possible terrorist retribution.

As illegal combatants in a technically undeclared war that is no less a war
for that fact, terrorists are subject to trial in federal court as
criminals, and for their law of war violations in a variety of forums,
including U.S. military commissions. They may not claim prisoner-of-war
status. Terrorists who invade our nation to kill and destroy, and who
survive our self-defense efforts and are captured, will face the full weight
of justice.

 

1 Michael Walzer, "First, Define the Battlefield," New York Times, 21
September 2001, p. A27. back to article
2 For a full argument that we are engaged in a war in the legal sense, see
Spencer J. Crona and Neal A. Richardson, "Justice for War Criminals of
Invisible Armies: A New Legal and Military Approach to Terrorism," Oklahoma
City University Law Review 21 (1966): p. 349. back to article
3 The War of 1812 against the British; in 1847 against Mexico; in 1898
against Spain; and World Wars I and II. back to article
4 Cited in John Norton Moore et al., National Security Law (Durham: Carolina
Academic Press, 1990), pp. 823-24. back to article
5 Charter of the United Nations, Article 2.4. back to article
6 Charter of the United Nations, Article 2.3. back to article
7 The Caroline Case, British and Foreign Papers, 195 (1842). back to article
8 U.N. Resolution 1373, 28 September 2001. back to article
9 Army Field Manual 27-10 para. 61.A.(2); 1949 GPW. Article 4. Protocol I,
Article 43, blurs the distinction between combatants and noncombatants by
not requiring a fixed distinctive sign or that arms be carried openly. The
United States has not ratified the protocols. back to article
10 Lieber Code, paragraph 148: "The law of war does not allow proclaiming
either an individual belonging to the hostile army . . . or a subject of the
hostile government, an outlaw, who may be slain without trial." back to
article
11 Respectively, Intelligence Law Handbook, CC-0000-181-95, September 1995,
p. 3-3.; and HQDA letter 525-86-1, dated 10 July 1986. back to article

Colonel Solis is the Marine Corpsą Chief of Oral History. His doctorate is
in the law of war, which he taught for five years at the U.S. Military
Academy.

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