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Title: War On terror
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Copyright © Manchester University Press 2009
While copyright in the volume as a whole is vested in Manchester University Press, copyright in individual
chapters belongs to their respective authors, and no chapter may be reproduced wholly or in part without
the express permission in writing of both author and publisher
...
They do not reﬂect the positions of Amnesty International, Oxford
Amnesty Lectures or Manchester University Press
...
manchesteruniversitypress
...
uk
Distributed in the United States exclusively by
Palgrave Macmillan, 175 Fifth Avenue, New York,
NY 10010, USA
Distributed in Canada exclusively by
UBC Press, University of British Columbia, 2029 West Mall,
Vancouver, BC, Canada V6T 1Z2
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data applied for
ISBN 978 07190 7974 0 hardback
ISBN 978 07190 7975 7 paperback
First published 2009
18 17 16 15 14 13 12 11 0 09

10 9 8 7 6 5 4 3 2 1

The publisher has no responsibility for the persistence or accuracy of URLs for external or any third-party
internet websites referred to in this book, and does not guarantee that any content on such websites is, or
will remain, accurate or appropriate
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Contents

Preface
Acknowledgements
Notes on contributors
Introduction: some notes on ‘terror’ Chris Miller

page vii
viii
ix
1

1 The function of narrative in the ‘war on terror’ Ahdaf Soueif
Response to Ahdaf Soueif Elleke Boehmer

28
43

2 Terrorism, war and international law Michael Byers
Response to Michael Byers Dino Kritsiotis

47
74

3 Human rights in an age of counter-terrorism Conor Gearty
Response to Conor Gearty Sandra Fredman

83
99

4 Terrorism: reﬂections on harming the innocent Thomas Pogge
Response to Thomas Pogge David Miller

105
136

5 War/terror/politics Bat-Ami Bar On
Response to Bat-Ami Bar On Thomas Dublin

141
156

6 War, terrorism and the ‘war on terror’ Jeff McMahan
Response to Jeff McMahan David Rodin

159
185

7 Islamic law, human rights and neo-colonialism Khaled Abou El Fadl
Response to Khaled Abou El Fadl Shayk Muhammad Aﬁﬁ al-Akiti
and Dr
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A
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Contents

vi

9 Defending the transgressed by censuring the reckless against
the killing of civilians Shayk Muhammad Aﬁﬁ al-Akiti
I
...

III
...

Index

Introduction and Taqriz Shaykh Gibril F
...
Haddad

253
253
255
279
280
285

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Its purpose is to raise funds
for Amnesty International and to raise awareness of human rights in the academic
and wider communities
...
It
began as a fund-raising project for the Oxford Amnesty group and is now one of
the world’s leading lecture series
...

9780719079740_A01
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I should
like to thank the lecturers – Khaled Abou El Fadl, Joanna Bourke, Conor Gearty,
Jeff McMahan, Bat-Ami Bar On, Thomas Pogge and Ahdaf Soueif – for coming to
Oxford to speak and for giving us permission to publish their lectures in aid of Amnesty
International
...
Haddad for his introduction and taqriz and glossary to the fatwa and to
both for their assistance in stylistic revision
...
A
...
All of the contributors have been
most generous in dealing with my queries, comments and editing; my contact with
them has been a pleasure and a privilege
...
Remaining errors are
my own
...
The members of the organizing committee for OAL 2006 were Tim Chesters, Melissa
McCarthy, Chris Miller, Nick Owen, Fabienne Pagnier, Deana Rankin, Richard
Scholar, Stephen Shute, Kate Tunstall, Katrin Wehling and Wes Williams
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Notes on contributors

is Professor of Law and the Alﬁ Distinguished Chair in
Islamic Law at the University of California, Los Angeles (UCLA) School of Law
...
Among his best known books are: The
Search for Beauty in Islam: A Conference of the Books (2006); The Great Theft:
Wrestling Islam from the Extremists (2005); and Speaking in God’s Name: Islamic
Law, Authority and Women (2001)
...

Trained in Muslim seminaries of the Far East with a long tradition in Shaﬁ‘i
jurisprudence, he has recently completed his doctorate on a newly discovered
theological text of al-Ghazali
...

She is the author of Stories of Women: Gender and Narrative in the Postcolonial
Nation (2005), Nelson Mandela: Postcolonial Thinker (2008), and of four
novels including Nile Baby (2008)
...

A distinguished social historian, she won the Fraenkel (1998) and Wolfson (2000)
Prizes for An Intimate History of Killing (1998)
...

MICHAEL BYERS holds the Canadian Research Chair in International Politics and Law
at the University of British Columbia
...

THOMAS DUBLIN is Co-Director of the Center for Historical Study of Women and
Gender and the Center for the Teaching of American History at the State
University of New York, Binghamton
...

KHALED ABOU EL FADL

9780719079740_A01
...
She is the author of
Human Rights Transformed: Positive Rights and Positive Duties (2008), Women
and the Law (1997) and Discrimination Law (2002)
...
U
...
K
...

CONOR GEARTY is Director of the Centre for Human Rights and Professor of
Human Rights Law at the London School of Economics
...
He has appeared
in human rights cases in the House of Lords, the Court of Appeal and the High
Court
...
GIBRIL FOUAD HADDAD embraced Islam as a graduate student at
Columbia University
...

His latest book is The Four Imams and Their Schools: Abu Hanifa, Malik, al-Shaﬁ‘i,
Ahmad ibn Hanbal
...
H
...
HELLYER is Senior Research Fellow of the Centre for Research in Ethnic
Relations at Warwick University, a Member of the Oxford Centre for Islamic
Studies, and founding director of the Visionary Consultants Group
...

DINO KRITSIOTIS is Reader in Public International Law at the University of Nottingham and Visiting Professor at the University of Michigan Law School
...

JEFF MCMAHAN is Professor of Philosophy at Rutgers University
...

DAVID MILLER is Professor of Political Theory at the University of Oxford
...

AVNER OFFER is Chichele Professor of Economic History, Oxford University, and a
Fellow of All Souls College
...

BAT-AMI BAR ON is Professor of Philosophy and Women’s Studies at Binghamton
University – SUNY
...

THOMAS POGGE is Professor of Philosophy at Yale and Professorial Fellow at ANU’s
Centre for Applied Philosophy and Public Ethics
...

SANDRA FREDMAN

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...
He is the author of
War and Self-Defense (2002) and editor of War, Torture and Terrorism (2007)
...
She divides
her life between Cairo and London and ﬁction and journalism
...
Her essays are published in
Mezzaterra (2004)
...

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Chris Miller

Introduction: some notes on ‘terror’

Terrorism is a form of human sacriﬁce
...
It asks no permissions of those whose lives it takes
or mars; they are sacriﬁced to a cause that they may never have heard of
...
For a society afﬂicted by terrorism, the easy choice
is to suppose that the deaths and traumas inﬂicted by terrorism are like those inﬂicted
by ritual sacriﬁce; that terrorism too is mistaken in its methods and as futile as it
is murderous
...

On this point, we must shift the grounds of our analogy
...
On the contrary, it seeks to provoke the powerful
...
And the ‘gods’ whom this terrorism provokes, like those to whom it sacriﬁces,
are invariably political
...
From the point of view of the victims and their loved ones, of course,
terrorism is nothing other than human sacriﬁce
...
But there is some evidence to show that,
however repugnant the practice, when terrorism sacriﬁces other human beings to
a cause, it not only ensures that the cause for which they are sacriﬁced is not forgotten but that ultimately, if the non-state terrorism persists, realistic questions
will eventually be asked as to the terrorists’ motives
...

For, when inquiry is made into the motives of non-state terrorism, it frequently
emerges that an injustice has occurred; that ‘Others’ in a speciﬁed place and time
have previously been sacriﬁced to ‘higher interests’ and that the survivors of this
injustice are not prepared simply to concede defeat, abandon their own dignity and

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...
And insofar as human societies have a concern with justice, nor should they
...
In principle, none of us wishes to perpetuate
a recognized injustice, however difﬁcult we may ﬁnd it to perceive the injustice of
our actions
...
And this, I
think, we cannot say
...
But even
this formulation must be attenuated
...

The standard deﬁnitions of terrorism involve variants on the following: terrorism
means inﬂicting violence on the innocent for political purposes
...
2 Jeff McMahan in this volume
deﬁnes ‘acts of terrorism’ as ‘intentional efforts to kill or seriously harm innocent
people as a means of affecting other members of a group with which the immediate victims are identiﬁed’
...
But the experience of terrorist outrages has told us all too clearly what
is meant
...
3 Osama bin Laden writes: ‘And
know that targeting Americans and Jews the length and breadth of the world is one
of the greatest duties’
...
It is customarily divided into ‘jus ad bellum,
the justice of war’ and ‘jus in bello, justice in war’
...
I wish to make just two points about
it here
...
There are grounds for saying that the Bush government has sought and even obtained a change in international law in favour of preemptive aggression
...
Second,
the function of the codes of war is or should be that of ensuring that, if war breaks
out, as little harm as possible is done by the belligerents to innocents on either
side
...
Who, then, are the terrorists? The terrorists from whom
everyone has most to fear are states
...
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3

state
...
(This is an understanding promoted, as Conor Gearty
argues here, in order to let state terrorism off the hook
...
If you want to frighten people, ﬁre-bombing an entire city is more effective than blowing up a bus or a train
...
6
We have come to two new points here: terrorist actions may be accomplished
during wartime as they may during peace
...
World War II is conventionally and justiﬁably thought of as
a ‘just war’ par excellence, unavoidably fought against an aggressive, tyrannical and
genocidal regime
...
‘The two sorts of judgement are logically independent
...
7 There is an obligation to discriminate between the combatant and the non-combatant and a requirement to observe the two principles of
necessity and proportionality
...
The RAF
bombing of Dresden took place late in World War II (February 1945), at a point
at which it seemed clear that defeating Nazi Germany was simply a matter of time
...
8 Its bombing was intended to strike a blow at morale, not least by
destroying a city of little military but immense cultural value
...
It was a culturecidal and a terrorist act
...
10 This policy was not observed by the United
States in the European theatre of combat, but in the war against Japan it was
...
11 As Ami Bar On notes,

9780719079740_A02
...

Who, then, are the innocent? This is the ‘technical point’ referred to earlier
...
We say nothing about their moral
character when we refer to ‘innocents’
...
Others may have
colluded with Nazism only as the victims of a tyrannical state
...
But the victims’ innocence
in this context was and is that of non-combatants, a category whose targeting is
forbidden in the laws of war developed in the aftermath of World War II
...
This is a
different sense of innocent, but is the one from which the former sense derives
...
The non-combatant has the right not to be killed
...

Incendiary bombs cannot be used to further the rule of law
...
The innocence of the non-combatant is ultimately reducible
to innocence before the law
...
However, I do not wish to suggest that terrorism is ever
justiﬁed by injustice
...
It is, however,
generally motivated by injustice or the perception of injustice
...
12
Where it is the only strategy available, their dilemma is indeed a desperate one
...

Terrorism is a training in moral insensitivity and a deplorable preparation for civil
government, as many post-independence ‘liberation’ regimes have shown
...
We might wish to distinguish the
actions of insurrectionary groups that target strategic property or infrastructure (with
only accidental loss of life) from those of terrorists who deliberately target the innocent civilian
...
It did not initially target people
...
Once
insurrectionary violence has begun against an efﬁciently oppressive state, this form

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...
We should contrast Umkhonto’s initial principles with those of the Real IRA and those responsible for 9/11
...
13 It did, however, issue several warnings before the bomb
went off
...
14 When planes were ﬂown into the
Twin Towers on 11 September 2001, no warning was given and the maximum possible loss of life was clearly sought
...

What should a government faced with non-state terrorists do? The outrage of its
citizenry at seeing their innocent compatriots blown up normally results in a punitive military reaction: a ‘crackdown’
...
But we have said that terrorism often arises out of injustice and though its method might seem to disgrace its cause, the next thing that a
government should do is attempt to recognize and deal with that injustice
...
If we take the example of Umkhonto, the apartheid state was dedicated to
racial injustice: that was its primary function, in the name of which it justiﬁed torture and killing
...
Northern Ireland is a classic case
...
But this is what the U
...
government (at ﬁrst secretly) did
...

To point this out is to point out that a ‘war on terror’ could never be successful
...
15 If the object was to reduce the incidence of
either state or non-state terrorism in the world, it has failed
...
16 Those who wish to reduce the incidence of Jihadist terror
will have to go about in a different way
...
But no such thing has been attempted by either of the main participants in the ‘war on terror’, the U
...
A
...
K
...
His writings are in some respects
exemplary and in the Arab street he holds a symbolic position perhaps analogous
to that once held by Che Guevara for the European left
...
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‘War on terror’

concern is Saudi Arabia
...
His principal objection is to its inviting ‘inﬁdel’ (U
...
)
troops into Saudi Arabia against Wahhabi tradition but his objections do not stop
there
...
It is, he says, a tyrannical and unjust government and he
believes that Muslims should therefore take up arms against it, citing Koranic
instructions to rebel against the unjust ruler
...
practise real consultative government’
...
18 If a democratically elected government came
to power in Saudi Arabia tomorrow and if its actions were not constrained by
American inﬂuence, a Wahhabi version of Shari‘a (Islamic law) would surely be
instituted, almost certainly as repressive and cruel as that of the current regime and
at least as oppressive towards women
...
A situation might prevail in Sunni Saudi Arabia not unlike that of Shi‘ite
Iran in the immediate aftermath of the Iranian revolution
...

The question then arises, whether democracy in Saudi Arabia would be a bad thing?
This question is at the heart of the issues raised in this volume, notably in Abou El
Fadl’s essay
...
Nor is this the place to discuss a point ably discussed by Abou
El Fadl in his symposium Islam and the Challenge of Democracy
...

The second issue with which Bin Laden is concerned is what he describes as the
‘Judaeo-Christian’ or ‘Zionist-Crusader’ alliance (‘Judaeo-American’ alliance is also
found)
...
The conﬂicts in which he sees Muslims being killed
include Palestine, Lebanon, Afghanistan, Iraq, Kashmir, Bosnia and Chechnya
...
Indeed, it is a misunderstanding of a kind
precisely analogous to the misunderstanding represented by the ‘war on terror’
...
Judaism and Christianity are not – to take one example – responsible for the
repression exercised by India in Kashmir
...
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7

vidual states were given the authority to decide whether their states should form
part of India or Pakistan
...
A ceaseﬁre between India and Pakistan was brokered by the U
...
, which
incorporated an obligation on the part of India to discover by means of a plebiscite
the preference of the Kashmiris
...
The injustice is
clear though it may no longer be soluble simply by the implementation of the U
...

resolution
...
S
...
R
...
The Russian interest in Chechnya is strictly imperialist and is not guided
by Russian Orthodox religion
...
Nor was
Russian support for the Serbs of primarily religious motivation
...
The U
...
was ofﬁcially in charge of Srebrenica when in July 1995 the largest
act of mass murder in Europe since the end of World War II took place, the genocidal massacre of 8,000 Bosniac (Bosnian Muslim) boys and men
...
It will be noted, however, that I
have not yet entered into any detail of the Middle Eastern conﬂicts cited
...
Russian oppression of Chechnya is clearly imperialist in tendency, and in
this imperialist perspective retention of control of Chechnya is clearly more important than the lives of its inhabitants
...
Imperialism is not known for excessive caution with the lives of those it regards as its subjects
...
Some of those close
to him do speak in terms of colonialism
...
Colonialism is either direct
or veiled’) and uses the name ‘Karzai’ as an equivalent of ‘Quisling’
...
It is inconceivable that the United Kingdom would have been
allowed by the international community to combat terrorism in Ulster in the way

9780719079740_A02
...

In his most explicit attack on the U
...
, ‘To the Americans’ (dated 6 October, 2002),
Bin Laden’s sentiments echo those of many who would never accept his terrorist
goals
...
23 (The creation of
Israel in Palestine was indeed made possible by the U
...
and the U
...
A
...
24 (We have dealt
with two of these heads above; the last is, of course, true if we substitute Israeli for
Jewish
...
25 (This is a reference to the U
...
troops
in Saudi Arabia and precedes the invasion of Iraq
...
It is a wonder that more than 1
...
Yet when 3,000 of your people died, the entire world rises up and has not
yet sat down’
...
) Bin Laden goes on to talk about democracy: ‘When
the Islamic party in Algeria wanted to practice democracy and they won the election, you unleashed your collaborators in the Algerian army on them, and attacked
them with tanks and guns, imprisoned them and tortured them – a new lesson from
the “American book of democracy” ’
...
It is not an
isolated case
...
The party was
elected having clearly stated its non-recognition of Israel but was required to
reverse this policy before any other government was prepared to recognize it
...
) Bin Laden continues: ‘You are the last ones to respect the resolutions and
policies of International Law, yet you claim to want to selectively punish anyone
who does the same
...
N
...
30 (Between 1972 and
2006, the U
...
A
...
N
...
)31
He adds: ‘You have claimed to be the vanguards of Human Rights, and your Ministry
of Foreign Affairs issues annual reports containing statistics of those countries that

9780719079740_A02
...
However, all these values vanished when the mujahidin
hit you [on 9/11] and you then implemented the methods of the same documented
governments that you used to curse’
...
‘Extraordinary rendition’ means
handing over terrorist suspects, some of them kidnapped from allied countries such
as Italy, to the security services of countries in which torture is routinely used
...
S
...
33 We know, of course, that the U
...
A
...
The subject is eloquently dealt with in this volume
by Thomas Pogge, Joanna Bourke and Khaled Abou El Fadl
...
35 This surely is true
...
When he adds: ‘You are a nation
that exploits women like consumer products or advertising tools’36 and ‘You also
permit drugs, and only forbid the trade of them, even though your nation is the
largest consumer of them’,37 there is also considerable truth in what he writes
...
Bin Laden, of course, does not regard the U
...

population as innocent
...
That is why the American people
cannot be considered innocent of all the crimes committed by the Americans and
Jews against us’
...
Even
in the country responsible for the Holocaust, it was members of the executive who
were charged with responsibility for the atrocities committed and they were individually charged
...
But I should emphasize again that the innocence of
the non-combatant is the innocence of the individual before the law
...
A democracy can indeed consider itself tarred by its
leaders’ policies
...

In 1995, NATO intervened in former Yugoslavia to end the ethnic cleansing conducted by the Bosnian Serb Army, which had proceeded by means of massacre,
rape and demolition
...
The purpose of ethnic cleansing is not generally genocidal
...
Demolitions are conducted so that return becomes
unattractive
...
We know that the ethnic groups in historical

9780719079740_A02
...
This was also true in pre-Zionist Palestine
...
This requires a brief
historical excursus
...
Much
of the responsibility for the injustice committed belongs to the British government,
under whose mandate the Jewish desire for a homeland in Palestine was effectively
authorized and the interests of the Palestinians explicitly sacriﬁced to this end
...
The four great
powers are committed to Zionism, and Zionism, be it right or wrong, good or bad,
is rooted in age-long tradition, in present needs, in future hopes, of far profounder
import than the desires and prejudices of the 700,000 Arabs who now inhabit that
ancient land [Palestine]’
...
K
...
The vote was obtained
by intense U
...
pressure on countries such as Liberia and the Philippines that
had much to lose from U
...
disfavour
...
Yet in 1947, only one-third of the
Palestinian population was Jewish and most of them had arrived since the 1920s
...
42 As Hirst puts it, ‘Overnight, the comity of nations solemnly laid the
foundations of a new moral order by which the Jews, the great majority of whom
had been in Palestine less than thirty years, were deemed to have claims equal, indeed
superior, to those of the Arabs who had lived there since time immemorial’
...
The Zionists were glad to have their state recognized
but had no intention of accepting its proposed dimensions
...
e
...
44 The plan for implementing
it was Plan Dalet (Plan D)
...
The plan’s prime mover was David Ben-Gurion, subsequently for many
years Israel’s prime minister
...
Only a state with at least 80%
Jews is a viable and stable state’
...
Houses
were blown up during the night with the occupants still inside
...
So barrels of explosives were rolled

9780719079740_A02
...

Car bombs were sent for ‘repair’ in Palestinian garages
...
The
Wadi Rushmiyya neighbourhood of Haifa was ‘cleansed’ on the same day and its
houses demolished
...
48 The Stern Gang (led by
another future Israeli Prime Minister, Menachem Begin) issued pamphlets to its
activists: ‘Destroy Arab neighbourhoods and punish Arab villages’
...
Thirty-ﬁve houses were blown up while
the families slept inside them
...
50 The implementation of Plan Dalet began in April 1948
...
So the Irgun and Stern
Gang were sent in instead
...
51 The Deir
Yassin massacre took place before the end of the British Mandate and outside the
area assigned to the Jewish state
...

The cleansing of Haifa was assisted by the British withdrawal; British troops were
in Haifa in great numbers and could have prevented it
...
52
The ﬂeeing Palestinians gathered in Haifa market, near the port gate
...
53 In Acre, which held out for
a while, the water supply was poisoned with typhoid germs
...
This was part of a biological warfare effort directed by
Aharon and Ephraim Katzir
...
)54
In a standard procedure, villages were attacked simultaneously from three sides
...
These were summarily shot
...

The intervention of the Arab Liberation Army has been presented in Zionist
history as a threat to the existence of Israel as severe as the Nazi threat to the
existence of European Jews
...
receive
in time the arms we have already purchased
...
We can face all the Arab forces
...
a
cold and rational calculation based on practical examination’
...
Around a million Palestinians were expelled from their villages at gunpoint
...
Pine forests were
often planted over their remains
...
Names from Biblical times replaced Palestinian ones
...
A culturecide was attempted
...

9780719079740_A02
...
Beit Nuba, Imwas, Yalu, Beit Marsam, Beit Awa, Habla and Jiﬂiq
were demolished and their inhabitants driven out
...
56 Even before
this, other land-grabbing processes had been established
...
‘For under the new law any
person who left his usual place of residence between 29 November 1947 and 1
September 1948 for any place outside Palestine, or any place inside Palestine but
outside Jewish control, was considered to be an absentee’, no matter why or for how
long absent
...
In cases where the
Custodian was mistaken, the law provided that the decision would remain the same
‘even if it is later proved that such property was not absentee property at that time’
...
The Ministry of Defence could declare a
Palestinian area ‘closed’
...
No permits were given to farmers
...
Therefore it was, in
accordance with the law, handed over to those who would cultivate it: the nearest
Jewish colony
...
So it was bombed
by Israeli Defence Force aircraft and razed to the ground
...
Its ﬁrst Prime Ministers were David Ben-Gurion (1948–53,
1955–63) and Moshe Sharett (1954–55), the two architects of the ethnic cleansing of Palestine
...

Yitzhak Shamir (1983–84, 1986–92) was one of the leaders of the LEHI (Fighters
for the Freedom of Israel), a terrorist organization responsible for the assassination of U
...
Peace Mediator Count Bernadotte
...
The operation ‘reminded even proIsraeli newspapers like the New York Post of [the Nazi atrocity at] Lidice’
...
The Israeli forward command post was a seven-storey building with
a direct view of the camps, ‘like the front row of the theatre’
...
‘Women and small girls were raped, sometimes half a dozen
times, before, breasts severed, they were ﬁnished off with axes’
...
63 These
facts make Israeli objections to terrorism exercised against the Israeli state look rather
hollow
...
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13

and then against the Palestinians
...
These are matters about which no well-informed Israeli
citizen can any longer claim to be ignorant
...
Let us therefore return to Bin Laden’s expression
‘Judaeo-American alliance’
...

Throughout the history of Israel, the United States has supported Israel to an extraordinary extent
...
S
...
S
...

This equates to a per capita subsidy of $500 per Israeli (the number two recipient,
Egypt, receives $20 per person)
...
It is also famously hostile to the proliferation of WMD in the Middle East
...
S
...
However, Israel had long since developed such a weapon by means
of ‘systematically lying’ to the United States and its inspectors throughout the process, exactly as Iraq was alleged to have done
...
66 Yet it conserves its alliance with
a nation founded on terrorism
...
S
...
What purpose is served
today by U
...
aid to Israel? When George W
...
67 Apparently, U
...
aid does not even provide the U
...
with a lever
for enforcing its own policies
...
Moreover, we remember
that this is not Bin Laden’s only complaint
...
N
...
To this he can now add the estimated 10,000 innocent dead
in the Afghan War68 and the innumerable Iraqi civilians killed in the occupation of
Iraq,69 in a war wholly unrelated to terrorism
...
As we shall see,
both the U
...
and the U
...
have supported political Islam (as they did Saddam
Hussein) when it suited them
...
qxd

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‘War on terror’

associated with four points: the killing of Muslims worldwide; American and
Israeli occupation of Islamic holy sites; the establishment of non-representative proAmerican governments in Islamic countries; and the project of Eretz Israel
...
71 We have dealt
with the ﬁrst head above
...
S
...
He regards the holy places of Saudi
Arabia as being, in this limited sense, occupied, and considers them profaned by
this occupation
...
S
...
And
today the Shi‘ite holy cities of Karbala and Najaf are militarily occupied by the U
...

For the West, this notion of occupation may seem absurd
...
And
it will be seen below that this notion of occupation clearly resonates with suicide
terrorists
...
On the third
head, Bin Laden asks: ‘Who was it that installed the rulers of the Gulf States? It
was the Crusaders, the same people who installed the Karzai of Pakistan, who installed
the Karzai of Kuwait, the Karzai of Bahrain, Qatar and others
...
to ﬁght on their side against the Ottoman state?’72 Though
all these states have some form of parliamentary democracy (however limited the
suffrage), none of them choose their own heads of state with the exception of Pakistan
– where the ‘Karzai’ in question, General Musharaff, took power by a military coup
largely unopposed and subsequently favoured by the West
...
K
...

This would bring the northern borders of Eretz Israel close to Medina and is the
deﬁnition proposed by the ‘founder’ of Zionism, Theodor Herzl
...
S
...
Bin Laden, however, believes that there
is no distinction between Israeli and U
...
policy
...
S
...
The study group that drafted it included inﬂuential ‘neo-cons’ such
as Richard Perle, Douglas Feith and David Wurmser, all of them part of the Bush

9780719079740_A02
...
In 2000, the plan was presented
not to the U
...
government but to the Israeli PM Benjamin Netanyahu
...
this effort can focus on removing Saddam Hussein from power in Iraq – an important Israeli strategic objective
in its own right’
...
75 We also know that
this possibility was raised at the National Security Council by then Secretary of
Defense, Donald Rumsfeld, another neo-con, as early as 12/11: ‘Rumsfeld was raising the possibility that they could take advantage of the opportunity offered by the
terrorist attacks to go after Saddam immediately’ – and that he was afterwards furious that this fact was known
...
S
...
But there
are also grounds for thinking that, as Saudi Arabia came to seem less politically
stable, Iraq’s potential 220–300 billon barrels of undiscovered oil were increasingly tempting
...
78 A combination of motives is
not ruled out
...
This is a case of Christian religious support for Israeli expansionism
...
If we acknowledge, for example, that countries should not keep
territory outside their own borders occupied in the course of war defensive or aggressive, we are bound to acknowledge that (at very least) Israeli occupation of the West
Bank is indefensible
...
The United States
alone has the political and economic authority to insist that Israel return this land
and has not done so
...
The expression ‘Zionist-Crusader alliance’ is therefore misleading insofar as it suggests either that the destruction of Islam is a Western goal or
that the West is much concerned to occupy the holy places of Islam
...
The United States’ unyielding
loyalty to Israel, regardless of its acts, suggests that it is not wholly opposed to the
advance of Israeli settlements
...
But it would not be hard to make the distinctions clearer
...
qxd

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Who then are the non-state terrorists? In the context of the ‘War on Terror’, they
are the Islamist suicide bombers
...
They come into two categories: the ﬁrst
comprises the Jihadists of Middle Eastern political Islam, the second the ‘homegrown’ terrorists
...
79 Pape has
shown that suicide terrorism is a response to the occupation by a democracy of a
country of different religious belief – occupation including cases such as the U
...

soldiers stationed in Saudi Arabia
...
It seems
to be a calculated strategy of the occupied to obtain political gains, predicated on
the belief that democracies will not long persist in the face of the losses suicide terrorism can inﬂict
...
80 Surveying suicide attacks in Sri
Lanka, Lebanon, India, Palestine, and Turkish Kurdistan, Pape indicates a 50 per
cent success rate in the attainment of the attackers’ objectives, a level higher than
that expected of international military and economic coercion
...
They and other such groups are motivated by nationalism and not religious
fanaticism
...
82 There is no pan-Islamic project
for suicide terrorism
...
83 Al-Qaeda is Sunni and Salaﬁyya84 but few countries combining these two inﬂuences are represented among the al-Qaeda suicide
terrorists: ‘the overwhelming majority [of al-Qaeda suicide terrorists] emanate from
a narrow range of Muslim countries, those with American combat troups stationed
on or immediately adjacent to their soil and those that received substantial military backing by the United States’
...
The criterion of success
is taken seriously, as it must be, given the Islamic taboo on suicide: ‘The self-martyring operation is not permitted unless it can convulse the enemy
...
Self-martyring operations are not fatal accidents but legal obligations governed
by rules’
...
This point takes us to one of the recurrent topics in the discussions of ‘just war’ theory, the ‘supreme emergency’ as a

9780719079740_A02
...
It is discussed in the sixteenth
chapter of Walzer’s Just and Unjust Wars and is taken up in John Rawls’s The Law
of Peoples
...
Walzer’s
answer in that volume is a qualiﬁed ‘yes’: ‘Utilitarian calculation can force us to
violate the rules of war only when we are face-to-face with a defeat likely to bring
disaster to a human community’
...
89 Walzer’s ﬁrst formulation seems to be substantiated in practice by Pape’s
researches
...
90 Moreover, ‘disaster’ is precisely the translation of
nakba, the word used by the Palestinians to refer to their expulsion from most of
Palestine
...
S
...
Even Nazi
Germany was a community and defended itself as such
...
Though Walzer is right to argue
against realpolitik even in cases where a country or community faces imminent defeat,
I believe he is closer to the mark when he says about terrorism: ‘Certainly, there
are historical moments when armed struggle is necessary for the sake of human freedom
...
One can argue that such attacks are
the inevitable products of oppression, and in a sense, I suppose, that is right’
...
I can see that the
former choice is unacceptable
...

The reaction in the United States to 9/11 seemed to suggest that the ambitions of
political Islam were previously unheard of, limited as we have seen that they are in
their terrorist form
...
In fact, though
frequently involved in violence, political Islam has enjoyed the steady support of
the major imperialist powers: the U
...
before World War II and the United States
after it
...
) What is perhaps the
founding force in political Islam, the Egyptian Muslim Brotherhood, was founded
by Hassan al-Banna with the aid of a grant from the British Suez Canal Company,

9780719079740_A02
...
92 The Brotherhood was a strange mixture of Salaﬁyya Islam and European fascism
...
But its principal inﬂuence came after
World War II when an Islamic revival was combined with the race for oil
...
93 Banned in Egypt, it began spreading its
inﬂuence through Jordan, Syria and Kuwait
...
94 Ramadan met Eisenhower in 1953
...
And the enemy of either imperialism was socialist nationalism
...

As Saudi Arabia grew richer on oil revenue, it was a precious source of funds
for organizations such as the Muslim Brotherhood, since its claim to rule was based
on its alliance with the Wahhabi clerisy and so it was anxious to be seen to export
the Wahhabi version of Islam, which chimed nicely with the Salaﬁyya tendencies
in political Islam
...
The wave of revolts in Arab countries in the
mid- to late 1950s seemed to suggest that an entire socialist, nationalist Arab bloc
might be built
...
(In the Yemen, where
Nasser sponsored a coup against the Yemeni monarchy, there was the surreal
spectacle of Yemeni Jews from Israel disguised as Arab Yemenis serving as military
instructors to the Saudi-sponsored royalist opposition
...
97 In the 1970s,
Sadat brought the Muslim Brotherhood back into mainstream politics, where its
youth wing, the jama’at Islamiyya returned to old Brotherhood tactics, intimidating students on the campuses
...
99
Rich in petro-dollars, the Islamic banking movement became a vehicle for
exporting Islam – and for sponsoring violence
...
‘ “Israel started Hamas”, says Charles Freeman, the veteran U
...
diplomat
...
100 Shin Bet was assisted
by the Saudis
...
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Introduction: some notes on ‘terror’

Page 19

19

has proved so wonderfully productive in disrupting the peace process that one begs
to doubt this
...
101
And the division of the Gaza Strip and the occupied territories into Hamas and Al
Fatah territories is a clear strategic advance for the Israelis, who can claim that there
is no one to negotiate with while continuing to alter ‘the facts on the ground’
...
102 The culminating action in Western incitement of militant Islam
against Soviet Communism came, of course, in Afghanistan, where the CIA supported Islamist opposition to the Soviet invasion of 1979
...
)103 Even before the Soviet
invasion, in the 1970s, the CIA and the Shah’s secret service, the Savak, had cooperated in promoting the Brotherhood in Afghanistan, where it and other Islamist
organizations conducted a terrorist assassination campaign against secular and
educated Afghanis
...
Afghanistan became the Spanish Civil War of the Jihadists
...
105 In Afghanistan, the result was the Taliban, initially
encouraged by the United States, which saw in a uniﬁed Afghanistan the possibility of a pipeline from Central Asia that avoided the Ayatollah’s Iran combined with
the further possibility of a clampdown on Afghanistan’s opium crop
...
If you wanted a mosque (or a university department), the
petro-dollars came with a doctrine
...
The spectre of large-scale
Jihadism (of which al-Qaeda is only part) was therefore conjured from the frustration of the pan-Arabic socialism of the Nasser years, the failings of the autocratic
Arabic states (along with the Shah’s Iran) and the alliance of the CIA with
Wahhabi petro-dollars
...
The Saudi rejection of this
offer and its repression of the clerics who favoured it was one of the main factors
in Bin Laden’s break with the Saudi regime
...
108 For some, delinquents for whom the freedoms of the West had meant
sex, drugs and alcohol, a reversion to a strict form of Islam imparted a moral ﬁbre

9780719079740_A02
...
A Jihadi outlook further identiﬁed them with the umma and gave
them a sense of destiny
...
At this point, the scenes
of violence in Chechnya, Bosnia, Iraq, and above all the intiﬁda in Palestine gave
them a new sense of the West constantly attempting to repress Islam
...
Where discrimination in the West induces Muslims
to identify principally with their co-religionists, this view is entirely predictable
...

It would be proper to understand this as ﬁnally imposing on the West standards
in foreign policy such as would beﬁt its treatment of its own citizenry (this is the
doctrine known as ‘human rights’)
...
In the past, it was clearly not our literal neighbours whom we
were exploiting and oppressing abroad
...
As
Conor Gearty argues here, the standard notion of terrorism in the West has been
that of individual agents and there has therefore has been a failure to perceive state
terrorism in ‘counter-terrorist’ wars
...
109 This is not just a matter of occasional
military errors
...
This in turn is a consequence
of U
...
domestic policies and a kind of bottleneck in neo-con policy
...
S
...
But to attain
political goals by military force will mean U
...
soldiers returning in bodybags and
this tends to alienate the electorate
...
S
...
There is therefore a tendency for the
U
...
army to prefer (for example) air strikes to house-to-house ﬁghting, an understandable choice but one which will always tend to look a little one-sided to the
viewer not associating the householders with evil-doers or al-Qaeda but with
neighbours, family, or co-religionists
...
The doctrines of proportionality and necessity are carefully considered in this
volume but a question arises whether proportionality is something that can any longer
be expected on the part of a Western democracy in a non-conventional war
...
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Introduction: some notes on ‘terror’

Page 21

21

come
...

A hi-tech war fought against insurrectionists who are all but indistinguishable
from the rest of the population does not and perhaps cannot meet the criteria of
‘just war’
...
The reason for this emphasis is that the very formulation ‘War on Terror’
suggests that the West is the innocent victim of some inexplicable animus now
taking terrorist form
...
Throughout the twentieth
century, the Arab-speaking world and Iran have experienced constant interference
in their affairs by the West
...
) The ﬁssiparous nature of a state such as Iraq is owed
very largely to the arbitrary carve-up of the region agreed by the European powers
in the wake of the defeat of the Ottoman Empire in World War I
...
Western attitudes to the Arab-speaking world seem to have been compounded
of a profound contempt mitigated only by the consideration due to petro-dollars
...
The role of the U
...
and the U
...
in the Palestinian catastrophe or nakba
has already been touched on
...
110 This treatment continues in the project of Eretz Israel, which should be compared with the policy of
Lebensraum
...
They have been rewarded with further oppression
...
No doubt the promotion of rights by the West has often taken this
form
...
And no historical lessons have been learnt by
the West from its previous encounters with terrorism and insurrection in its colonies
...
K
...
qxd

22

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‘War on terror’

by the award of the best agricultural land in the country to white settlers
...
Thus in 1957 a French lieutenant in the paras, drunk and requesting a drink
after hours, was so incensed by the barman’s refusal that he arrested him and took
him away for torture
...

Uninterested by historical precedent, the Bush administration in the aftermath of
9/11 has broken almost every rule prescribed by the post-World War II human rights
settlement
...
The torture chambers of countries such as Egypt,
Syria and Jordan, previously stigmatized by the State Department, have been put
to use through ‘extraordinary rendition’
...
For Vice-President Cheney, ‘dunking’ of
this kind is famously a ‘no-brainer’
...
114 Meanwhile the United States continues to ﬁght an insurrectionary urban war in Iraq with air-strikes and punitive demolitions
...
If the theorists of human rights are correct in alleging that certain
freedoms are in fact universally desired, this ground may eventually be won back
by democratic impetus in the United States and in the many countries such as Burma
where a human rights settlement is urgently desired by the population if not by the
government
...
For now, political activism in support of human rights is more urgently required than ever
...

Notes
1 ‘One of the most positive effects of our attacks on New York and Washington was to
expose the reality of the struggle between the Crusaders and the Muslims, and to demonstrate the enormous hostility that the Crusaders feel toward us’
...
qxd

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Introduction: some notes on ‘terror’

2

3

4
5
6
7
8
9

10

11
12
13
14
15

16

17
18

19
20

Page 23

23

Lawrence, ed
...

‘Its method is the random murder of innocent people’
...
(New York: Basic
Books, 2000), 197
...
We might
categorize them as terrorist assassinations
...

Just and Unjust Wars (note 2), 21
...
C
...

Just and Unjust Wars (note 2), 21
...

‘If Operation Gomorrah [the ﬁre-bombing of Hamburg] was unnecessary and disproportionate
...
Among the Dead Cities (note 6), 272 (original emphasis)
...
Among the
Dead Cities (note 6), 168
...
, 260
...

See Kevin Connolly, ‘How the Omagh Case Unravelled’, http://news
...
co
...
stm
...
bbc
...
uk/1/hi/events/
northern_ireland/latest_news/153818
...

See Robert Pape, Dying to Win (New York: Random House, 2005), 42: ‘Winning the
war on terrorism requires a clear conception of victory
...
This is a tactic that has existed throughout history and that will continue to exist
long after the threat to the United States and its allies comes to an end’
...
S
...
Dying to Win (note 15), 258
...

In Dying to Win (note 15), 42, Pape notes ‘over 95% of Saudi society reportedly agrees
with Osama Bin Laden in this matter’
...
nytimes
...
html?res=950CE4DD153AF934A15752C0A9649C8B63
...

Messages to the World (note 1): ‘Judaeo-Christian alliance’, 25–6, 27, 42, 60, 73;
‘Zionist-Crusader alliance’, 191, 214, 215, 218–19, 246, 251
...
qxd

24

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‘War on terror’

21 For a summary of this situation, see the Commons Library Research Paper at
www
...
uk/commons/lib/research/rp2004/rp04-028
...

22 See Dying to Win (note 15), 118, especially note 25
...
He has long since referred to ‘puppet’ Arabic
governments (Messages to the World (note 1), 197, 38)
...

24 Ibid
...

25 Ibid
...
, 164
...
, 169
...

29 Documents have recently come to light showing that the United States attempted to
foment a civil war between Fatah and Hamas in order to overthrow this democratic
decision
...

30 Messages to the World (note 1), 169
...
Mearsheimer and S
...
Walt, The Israel Lobby and U
...
Foreign Policy
...

32 Messages to the World (note 1), 170
...
Grey, Ghost Plane: The Inside Story of the CIA’s Secret Rendition Programme (London:
C
...

34 For a particular instructive case, see www
...
org/en/news-and-updates/featurestories/former-detainee-reveals-details-secret-cia-program-20080314
...

36 Ibid
...

37 Ibid
...
A state realized along the lines of Bin Laden’s views would, from the
Western secular perspective, be like a puritanical Fascist state
...
The views that I have selected here emphasize the
hypocrisy of the West and on this point alone I ﬁnd it hard to disagree with him
...

39 I
...

40 See Edward W
...
B
...

41 David Hirst, The Gun and the Olive Branch, new edn
...

42 Ibid
...

43 Ibid
...

44 The Ethnic Cleansing of Palestine (note 39), 27
...
, 48
...
, 57
...
qxd

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9:18 AM

Introduction: some notes on ‘terror’

47
48
49
50

51

52
53
54
55
56
57
58
59
60
61

62
63

64
65
66

67
68

69

Page 25

25

Ibid
...

Ibid
...

Ibid
...

Ibid
...
The record is that of Moshe Kalman, who led the attack: ‘We left behind
35 demolished houses and some 60–80 dead bodies’
...
, All
That Remains: The Palestinian Villages Occupied and Depopulated by Israel in 1948
(Washington, DC: Washington Institute for Palestinian Studies, 1992), 181–2
...
Hirst notes that the Palmach (an elite
section of the Haganah) nevertheless took part
...

The Ethnic Cleansing of Palestine (note 39), 95
...
, 96
...
, 101
...
, 46
...

Ibid
...

Ibid
...

Ibid
...

Ibid
...

Hirst’s source here (The Gun and the Olive Branch (note 41), 558) is an Israeli ofﬁcer
cited in the study by the Israeli journalist Amnon Kapeliouk, Sabra et Chatila: enquête
sur un massacre (Paris: Seuil, 1982), 30
...

The Gun and the Olive Branch (note 41), 558
...
In addition, responsibility
is to be imputed to the Minister of Defense for not ordering appropriate measures for
preventing or reducing the danger of massacre as a condition for the Phalangists’ entry
into the camps
...
See www
...
org/Kahan_report
...

See The Israel Lobby (note 31), 26
...

Prior to 9/11, the U
...
A
...
When it objects
to Iranian ‘meddling’ in Iraq, it is objecting to precisely the kind of action it undertook
against the Soviet invasion of Afghanistan: funding and arming local militias
...

Michael Mann notes that the civilian deaths in Afghanistan caused by U
...
bombing
‘must have been close to 10,000’ (Michael Mann, Incoherent Empire (London: Verso,
2003), 30)
...
jhsph
...
html for
a revised estimate conﬁrming the results of the famous estimate published in the Lancet
...
qxd

26

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‘War on terror’

70 Messages to the World (note 1), 188
...
, 189
...
, 197
...
K
...
Robert Dreyfuss, Devil’s Game: How the United States Helped
Unleash Fundamentalist Islam (New York: Henry Holt, 2005), 42
...
, The Complete Diaries of Theodor Herzl, tr
...
2 (New
York/London, Yoseloff Press, 1973), 711
...

74 Messages to the World (note 1), 60, 143, etc
...
South America?’, Newsweek, 9 August 2006
...
This was also the
policy of Rumsfeld’s deputy, Paul D
...
For Rumsfeld’s anger, see ibid
...

77 Jim Holt, ‘It’s the Oil’, London Review of Books 29
...

lrb
...
uk/v29/n20/holt01_
...

78 See Graham Petersen, ‘Alan Greenspan Claims Iraq War Was Really About
Oil’, Times Online, 16 September 2007, www
...
co
...
ece
...
Bin Laden refers disparagingly to the claims by America’s
‘idiotic leader’ that ‘we despise their way of life’ (Messages to the World (note 1), 193),
though he also refers to ‘the deceptive idea of democracy’ (191)
...

81 Ibid
...

82 Ibid
...

83 Ibid
...

84 Derived from the word salaf (ancestors or predecessors), the word is currently used
to refer to a kind of prisco more Islam associated with the ﬁrst generations after the Prophet
and therefore translating as ‘fundamentalism’
...

85 Dying to Win (note 15), 125
...
, 190
...

87 John Rawls, The Law of Peoples with ‘The Idea of Public Reason Revisited’, 4th printing
(Cambridge, MA/London, England: Harvard University Press, 2004), §14
...

The ﬁrst ‘draft’ of Rawls’ ideas on the ‘Law of Peoples’ was of course given as an Oxford
Amnesty Lecture on 12 February 1993
...

89 It is worth observing that, according to the U
...
ofﬁcial quoted by Pogge, the U
...

policies in Iraq met this condition
...

90 Dying to Win (note 15), 42
...
The Tamil Tigers occupy a part of Sri Lanka
that has no ofﬁcial ‘homeland’ status
...

9780719079740_A02
...

92 Robert Dreyfuss, Devil’s Game: How the United States Helped Unleash Fundamentalist
Islam (New York: Henry Holt, 2006), 47 and 51
...
, 63
...
, 74–5
...
, 72
...
, 141
...
, 142
...
, 149–53
...
, 164–6
...
, 191
...
, 212 and The Gun and the Olive Branch (note 41), 73: ‘Again, in 2002, only
twenty minutes before Hamas’s Yassin was to announce a ceaseﬁre, Israel bombed a
Hamas headquarters in Gaza, killing seventeen people, including eleven children’
...

103 Ibid
...

104 Ibid
...

105 Ahmed Rashid, Taliban: The Story of the Afghan Warlords, new edn
...

106 See ibid
...

107 Khaled Abou El Fadl, The Great Theft: Wrestling Islam from the Extremists (San
Francisco: Harper San Francisco, 2005)
...

109 The leader of the 7/7 London bombers stated ‘democratically elected governments continuously perpetrate atrocities against my people all over the world’
...

110 See The Gun and the Olive Branch (note 41), 391–2: ‘It is not as though there was a
Palestinian people
...
They did not exist’
...

111 For an account of this, see David Anderson, Histories of the Hanged: The Dirty War in
Kenya and the End of Empire (New York: W
...
Norton, 2005) and Caroline Elkins,
Britain’s Gulag: The Brutal End of Empire in Kenya (London: Jonathan Cape, 2005)
...

113 See www
...
co
...
His spokesman later denied that this was
a reference to waterboarding
...

114 See www
...
com, ‘Cheney Offended by Amnesty Criticism’, 31 May 2005
...

9780719079740_C01
...
He distinguishes between three types of subject for historical research:
1 Traces: archaeological remains that are objectively what they are and from
which we attempt to construct a picture of a particular moment; shards of pottery, tools, bones
...

3 Myth: which, he says, ‘is not to be understood as “in opposition” to history
...

Myths are the basic ﬁgures of memory
...
1
It is almost irrelevant to Assmann’s study whether any particular event in the past
actually occurred
...
are in many ways uncertain,
controversial, coloured, or else
...
2 The function of these narratives is to give a meaningful structure to the world
in which we live, act and feel
...
3
Amnesty has rightly described this ‘war on terror’ as a war on human rights
...
The President of the
United States and the Prime Minister of Britain tell us that what is under threat
today is a set of values and a way of life – Western of course, and American speciﬁcally – that constitute civilization itself
...
qxd

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Page 29

The function of narrative in the ‘war on terror’

29

they’ve learned to add, not from Islam itself, or at least not from what they call ‘moderate’ Islam
...
To be American
is to be Good
...
Some are
true and good
...
And, of course,
the gaps are obvious
...
They are meant to show off our best self: the self that we communally aspire to
...
Still, if the narrative is what we use to give
coherence to our lives and meaning to our actions, surely it can only diverge from
reality up to a point?
If we transfer this conceit to an individual it becomes clear that, when a wide
enough distance opens up between the way a person sees himself and the way others
see him, he is considered delusional
...

We all know that you can have a domestic face and a face for the outside world
...
In fact you did have something like that with old-fashioned colonialism:
reasonably well behaved at home but horrid abroad
...
qxd

30

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‘War on terror’

created to accommodate this dissonance
...
This position was
elaborated by (otherwise ﬁne) intellectuals
...
Regere imperio populos, that is our
vocation
...
Turn the adventurers who disturb European society
into a ver sacrum, a horde like those of the Franks, the Lombards, or the Normans,
and every man will be in his right role
...
Let each do
what he is made for, and all will be well
...
But that was
colonialism old-style
...
For Britain the watershed came –
or was supposed to have come – with Anthony Eden’s Suez adventure, when the
British people – even though they did not know the full extent of the plotting that
their Prime Minister had engaged in with France and Israel – came out on the streets
to reject the war
...

Several things about the world today contribute to the Bush administration’s
difﬁculties in reconciling what they are doing on the ground with America’s story
about herself
...
Or, if you
like, the story that the world now tells about itself rejects colonialism
...
As our great friend and
example, Edward Said, said when he gave a lecture in the ﬁrst of the Amnesty-Oxford
series in 1992: ‘Constructing a “new universality” has preoccupied various international authorities since World War II
...
In addition
a wide range of nongovernmental, national, and international agencies, such as
Amnesty, or the Organisation for Human Rights, or the Human Rights Watch committees, monitor and publicise human rights abuses’
...
Liberating themselves from
colonization is the central plank, the main theme, of the modern part of their story

9780719079740_C01
...
Indeed, they attribute their failings and misfortunes postliberation to the legacy the colonial powers left behind and to the fact that these
powers never stopped interfering in their affairs
...
All the tactics of the
colonizer are familiar to them: the ﬁne words, the ‘we have come to make your lives
better’, ‘we’ll only be here for a while’, the puppet rulers, the divide-and-stir-upstrife policies – they are all clichéd tropes
...

(3) So the war, or conﬂict or insurgency or resistance, lasts and lasts
...
And even though
the mainstream Western media are fairly docile – not to say supine – sometimes
the news is so sensational (as in the case of the Abu Ghraib photographs) that they
have to run it
...
So when
the White House website claims that ‘Since the terrorist attacks of September 11th,
the United States has waged two of the swiftest and most humane wars in history’6
everyone who cares to know, knows that they’re being lied to – on a massive scale
...
That’s the thing about these founding narratives; that even
if to begin with parts of them are constructed by the authorities, they become the
property of the people, and the people use them as compasses or yardsticks or at
least as backdrops for their lives
...
A great many Americans see themselves also as co-owners of the
global move to universality and human rights that Edward Said described
...
7 Nor is it surprising that these groups have proliferated and that their level of both dismay and commitment is very high indeed
...
It is also a narrative that insists on its own exceptionalism – in a world
that is trying to construct a universalist story
...

9780719079740_C01
...
S
...
is of central importance
to the unfolding events in the so-called ‘war on terror’
...

We may look at the Israeli narrative in three parts
...
This
is basically the Jewish narrative up to the beginning of the twentieth century and
it is not to my purpose to attempt a full account of it
...
They were subject to
tyranny in Egypt and ﬂed to safety in Palestine where they established their kingdom
...

Their history has been one of persecution but also of survival
...
When not subject to persecution they have excelled
...
In the main it is the ofﬁcial history of the state of
Israel plus the Holocaust in Europe: Jewish people, after centuries of persecution
in Europe, started to come back to their homeland at the beginning of the century
...

They wanted to be friendly with the Arabs and to bring them modernity
...
The Jews refused to be victims any longer; they organized and armed
...
The Jews fought a War of Independence against
them
...

Some of them managed to ﬂee to Israel
...
The U
...
acknowledged it as a state and Israel
was born
...
The
Arabs refuse to recognize Israel: they hate it, ﬁght wars and mount terror attacks
against it
...

(3) This part may be called the abstract part of the story, the one that articulates the qualities of the community: Israel is the only democracy in the region
...
It is a beacon of civilization in
a sea of backwardness and barbarity
...
It is cosmopolitan and varied and technological and artistic and advanced
...
Israel is willing to live in peace with its neighbours, to make big sacriﬁces
and to give them some contested land so that the Palestinians can have their own

9780719079740_C01
...
But it can never ﬁnd a partner for peace
...
The Israeli
army is a Defence Force
...
It adheres to
‘purity of arms’
...

As with the American national narrative it is clear that some elements here are
true and some are false
...
It is challenged and defended because its acceptance
or rejection crucially affects the lives of millions of people
...
) – are still
very much the province of research
...

The four fronts I described earlier that are causing problems for the American
narrative are causing more acute problems for the Israeli one – which is also facing one challenge the American narrative has been spared
...
Among these
are ‘Jews for Justice for Palestinians’, ‘Naturei Karta’, ‘Rabbis of Palestine’, ‘Rabbis
for Peace’ and others
...
9
(2) One could say that, as far as Israel is concerned, the ‘spirit of the age’ in the
West is or has been conﬂicted
...
Until the 1980s,
for example, you were hard pressed to ﬁnd a voice in the Western liberal press that
would criticize Israel’s policies even though they ran counter to the new universalist spirit of respect for international law and human rights
...
N
...
It took not just the invasion of Lebanon in 1982 but the massacres of Sabra and Chatila for the world to wake up to the activities of the Israeli
generals
...
When families that had been unable to return to Safad or Yafa or Ramle
in 1948 come under attack today in their refugee camps or in the homes they have
managed to build in Tulkarm or Jenin or Nablus, they sit on the rubble of their
homes and declare that they will not leave
...
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scholars have pointed out (in great detail) can be done without displacing any Israelis
...
And their narrative contradicts the Israeli narrative
...

(4) The information is out there; available for anyone who wants it, unavoidable
for anyone who isn’t deliberately closing their eyes
...
And then there
is the information co-ordinated and produced from within the Occupied Territories
via the Web
...
S
...
And this resistance is very vocal
...
13 A quarter of the people who work for
the International Solidarity Movement in the U
...
A
...

The state’s account of Israel’s modern period up to 1948 has been discredited
by what have come to be known as ‘revisionist’ Israeli historians and now by
Jewish grass-roots organizations, which aim to remind people of 1948
...

This is not to say that the Israeli community as a whole is challenging its narrative
...
Nor is it to say that the dissidents want Israel dismantled or even
that they all want it to become a secular democracy
...
And Israeli (like American) dissidents are drawing both on their own narrative of Jewishness which puts a premium on bearing
witness to the truth, on critical thought and noisy dissent and argumentativeness,
and on their sense of belonging to a universal community which guarantees that
what happened to their ancestors can never happen to them
...
Or as Amira Hass has said ‘Never will
I be a bystander and watch as the event goes by’
...
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The function of narrative in the ‘war on terror’

35

American narrative, the U
...
A
...

It also would probably not be in Iraq, nor would it be threatening Iran and Syria
...
They also share the imagery
of the taming of the frontier and making the desert bloom
...
You then obliterate their history and appropriate their culture
...
S
...

Support that went well beyond the ofﬁcial $3 billion per annum
...
That is Israel’s prerogative
...
We endorse that
...
15

You might have thought support couldn’t come much stronger
...
The
policies they dreamed of before coming to power are well documented
...

That day four major Israeli politicians, Ehud Barak, Benyamin Netanyahu, Shimon
Peres and Ariel Sharon, took to the TV screens to assert that the terror just suffered by Americans was the identical terror endured by Israel since its establishment – to ﬁnally drive home the point Israel had been pushing for years: that Israel’s
enemies were America’s enemies
...
17
Narrative strategies
In the wake of September 11, the U
...
administration introduced an elaboration
into the current episode of the American narrative: it adopted Israel’s enemy as its
very own
...
‘Palestinian’,
‘Arab’ and ‘Muslim’ dissolved into each other and swam into the focusing lens of the
unfolding narrative – as ‘terrorist’
...
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motivated not by economics, history or politics but only by a fanatical ideology –
was born
...
And the world
was prepared to consider, as Arundhati Roy put it, the ‘long road it took the bomber
to get to where he did’
...
S
...
Look up ‘terror’ and the U
...

administration website will direct you to a report by the RAND Corporation with
examples of events that can be classed as terrorist events
...
g
...
’ This, naturally, would be classed as a terrorist act
...
third example: a member of the Hamas bombs the house of a government ofﬁcial
...
20
The U
...
set out to do battle while Ariel Sharon re-invaded the West Bank
...
S
...
g
...
g
...
g
...
23
The identiﬁcation between the U
...
and Israel was now a manifest fact
...
And now
the unwillingness of Iraqis to fall in with the American scenario, not to mention
the folly and ill-preparedness of the project to ‘tame’ Iraq, is such that the episode
has come to erode the U
...
administration’s own credibility
...

Today the sound of dissent is growing louder
...
Huge advertisements are taken out
...

We see, in response, the articulation of a number of strategies for control of the
narrative:

9780719079740_C01
...

• Minimizing the importance of the information that does get out: taking women hostage
in Iraq to pressure their menfolk to surrender is ‘ungentlemanly conduct’,24
pornographic torture is carried out by ‘a few bad apples’
...
25 Infamous examples are
Daniel Pipes’s Campus Watch campaign, his David Project and the activities of
UCLAProfs
...

• Inventing alternative narratives such as the story of Private Jessica Lynch and creating platforms for them such as the American-ﬁnanced Iraqi TV station, al-Hurra,
and radio station, Radio Sawa
...

• Discrediting anyone who points to unwelcome facts by using labels such as ‘un-American’
or ‘anti-Semitic’ or even ‘self-hating Jew’
...

Strategies also include attempts to change the interpretation of the law (so that the
word ‘torture’, for example, no longer means what everyone knows it means), to
introduce new laws (against protests, against ‘glorifying terror’) and generally to
adopt practices that have such far-reaching effects that they in essence alter the nature
of the state
...
But there is another current which seeks to address the
divergence between narrative and fact by stretching, or if need be smashing, the
narrative to accommodate the reality
...
27 Here the neo-conservatives express a preference for power politics over
diplomacy, a disdain for international law and its institutions, and a belief in the
desirability of military spread – even into space
...
It is ﬁltering down to the
soldiers in the army
...
Kaplan, accepting that ‘Despite our anti-imperial
traditions, and despite the fact that imperialism is delegitimised in public discourse,

9780719079740_C01
...
The war on terrorism was really about
taming the frontier’
...
And we have an updating of it into a contemporary, desirable, consumerist image; an American soldier
in Afghanistan celebrates: ‘You get to see places tourists never do
...
29
Israel too is moving to a more publicly brutal discourse
...
The
Guardian report of 7 February 2002 bears reading in its entirety for its tracking of
the development of openly racist and violent discourse in Israel
...
30
What now?
Jan Assmann, describing some critical moments in Egyptian history, could be
analysing the period the U
...
and Israel are living through now:
Periods of crisis, junctures where civilisation breaks with its own traditions, regularly engender discourses that illuminate the terms of reference within which that
civilisation has been operating
...
31

Assmann is describing a speciﬁc crisis that Egyptians went through some four thousand years ago when, after ﬁfteen centuries of living a reasonably well-ordered life
within a deﬁned and congenial system, it seemed as if their world was coming apart
...
This was the time
historians call the First Intermediate
...
But out of this time of fragmentation
there emerged the Egypt of the Middle Kingdom; an era of economic prosperity,
of scientiﬁc achievement, artistic ﬂowering and a media revolution
...
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The function of narrative in the ‘war on terror’

39

in that image, at what they were in imminent danger of losing, and then they reformulated it all into what became the nation’s story about itself
...
Ra, the solar deity declares: ‘I made the four winds that every man might
breathe thereof like his fellow in his time
...
I made every man like his fellow, I did not
command that they do evil: it was their hearts which violated what I said’ (Cofﬁn
Text no
...
32 If people are unequal that is because of an imbalance in the world
...
The law exists to guarantee equality and
to protect the poor and the weak from the rich and the strong
...
With patience, love shall
prevail over hatred and life over death (the story of Isis and Osiris)
...
‘The ethic of self-effacement, integration and altruism [was] certainly fundamental to civilisation in Egypt’
...
All of which is not to say that every Egyptian
from then on behaved impeccably
...
But it is a noteworthy example of a people appealing at a time of crisis to the highest ideals of their narrative – ideals still worthy of
our attention today
...
35
Four thousand years ago, with their world in ruins, some Egyptians decided they
would not allow that moment to be the end of their society and its aspirations
...
36 In effect, those early thinkers gambled
on the ‘malleability’ of man; on people’s ability to be whatever they decide to be
...
It gave their
nation two thousand further years of success
...

9780719079740_C01
...
S
...
And there is, now, a global voice that is making itself heard
...
It tells of how man
started to fashion tools and weapons a million years ago, but started to fashion an
ethical vision of life only ﬁve thousand years ago
...
Now, in the twenty-ﬁrst century, it remains to be seen whether it can lead to a uniﬁed narrative for all
mankind
...

Notes
1 Jan Assmann, The Mind of Egypt (Cambridge, MA: Harvard University Press, 2003),
10
...
, 7, quoting Jakob Burckhardt, Die Kunst der Betrachtung: Aufsätze und Vorträge zur
Bildenden Kunst, ed
...

3 The Mind of Egypt (note 1), 8
...
Joan Pinkham (New York: Monthly Review Press, 1972),
16
...
Said, ‘Nationalism, Human Rights and Interpretation’, in Freedom
and Interpretation: The Oxford Amnesty Lectures 1992, ed
...
Johnson (New York: Basic
Books, 1993), 184–5
...

6 www
...
gov/infocus/achievement/chap1-nrn
...

7 See www
...
net/index
...

8 The websites of World Can’t Wait, CodePink and Another Day in the Empire are well
worth a visit and lead to a multitude of other sites
...
jfjfp
...

10 See Salman H
...

11 See particularly http://electronicintifada
...
shtml
...

13 For Rachel Corrie, see www
...
co
...
israel (Editor’s
note)
...
See www
...
org/lf/cf/
detail/amira-hass-with-ahdaf-soueif/
...
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The function of narrative in the ‘war on terror’

41

15 See Ahdaf Soueif, ‘The Israelisation of America’, Al-Ahram Weekly, 11–17 September
2003 and www
...
org/archives/7-00-6
...

16 See Ahdaf Soueif, Mezzaterra: Fragments from the Common Ground (London:
Bloomsbury, 2004), 127 and footnote 4
...

18 See the ‘Letter to President Bush on Israel’, The Project for the New American Century,
3 April 2002
...

20 www
...
org/RandSummary
...

21 Mezzaterra (note 16), 130
...

23 Examples are the killing of Reuters photographer (the Palestinian) Mazen Da’na on assignment in Baghdad, the bombing of the Al Jazeera ofﬁces in Kabul and Baghdad, the arrest
and killing of Al Jazeera staff
...

25 David Price, ‘How the FBI Spied on Edward Said’, Counterpunch, 13 January 2006
...
guardian
...
uk/
elsewhere/journalist/story/0,7792,773258,00
...

guardian
...
uk/israel/comment/0,,778373,00
...
com, 24 November 2004 at www
...
com/cole/?articleid=4047
...
newamericancentury
...

28 ‘The Project for the New American Century, Rebuilding America’s Defenses: Strategy, Forces and Resources for a New Century’
...
newamericancentury
...
pdf
...
Kaplan, Imperial Grunts: The American Military on the Ground (New York:
Random House, 2006) quoted in New York Review of Books, 12 January 2006 in a review
by John Gray
...

31 The Mind of Egypt (note 1), 6
...

33 The two mythical stories are best dealt with together
...
He was envied by his brother Set, who arranged
a banquet in honour of Osiris, where he presented a beautiful ivory chest; this was to
belong to the person it ﬁtted
...
Set became the ruler of Egypt
...
But when she found it, Set discovered its hiding place and tore the body of
Osiris into pieces, scattering them throughout Egypt
...
Set now attempted to destroy Horus, the son of Isis and Osiris
...
A
jury of gods gave judgement in his favour but Set nevertheless fought Horus for eighty

9780719079740_C01
...
In some versions of the story, Set is ﬁnally vanquished
...

34 The Mind of Egypt (note 1), 125
...
Stephen Shute and Susan Hurley (New York:
Basic Books, 1993), 115
...

9780719079740_C01
...
1 This is a territory that has been and
still is riven by powerful divergent forces that she terms narratives, thus suggesting
the imaginative, structural and visceral power ascribed to them
...
2
For Ahdaf Soueif the novelist, narrative is how the dominant ideology of a society or nation translates into individual or community lives
...
As this suggests, the founding narratives of nations – America as the
land of opportunity, Israel as the promised land, Australia as the lucky country –
work on us most powerfully when we are least aware of them
...

People live by and are willing to die for the stories they tell about themselves: this
is Soueif ’s central message
...
In The Map of Love, she evokes
Egypt’s love affair with Western modernity and its simultaneous insistence on sticking to its own cultural path and values; its ﬁerce resistance to being represented
as underling or victim or as lacking in humanity
...
4
We must never stop scrutinizing the narratives that generate our central hates
and resentments
...
And

9780719079740_C01
...
But how can such vigilance be achieved, given that these
stories comfort us and underpin the way we think about ourselves? Pointing to the
gaps that can open between the actual and the ideal, between the world we live in
and the world as we imagine it, Soueif points out a pathway to such vigilance
...
For example, we take the truism
that America is the land of the free, or that the West is the world’s honest broker
and we produce these potentially troubling questions: Is America repressive
abroad? Are the stories that the West tells about others always true?
Ahdaf Soueif ’s relentless piling-up of examples shows how, in the conﬂicted situation of Israel-and-Palestine where different stories striate the same communities,
we are bound to interrogate the major narratives and turn the rooted truisms on
their heads
...

Israel claims that it has, since 1948, been ﬁghting a war on terror, a war against the
combined forces of Muslim fanaticism and fundamentalism
...
S
...
S
...
In
Soueif ’s opinion, the U
...
would not be ﬁghting a war on terror today had this fusion
not taken place
...

Ahdaf Soueif’s call is clear: let us not so much overturn (this may be impossible) as relentlessly investigate the worst in the narratives that produce the conﬂict
...
We are forced to
see that these governing symbols no longer help us to address the dilemmas of our
time
...

In this respect, David Scott’s Conscripts of Modernity, an analysis of the ‘colonial enlightenment’ played out in the Caribbean, is useful
...
5
This does not mean generating alternatives in a hit-and-miss way, one of which may
eventually work better than the current one
...
This too, Scott says, is a problem of narrative: of thinking outside
the mythic frame–romance, comedy, epic or tragedy – in which we are effectively
caught
...
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The function of narrative in the ‘war on terror’

45

– then perhaps a new story, differing from the romance of liberation, is entering the
frame
...
How does one go about thinking outside the myths
and stories that shape our consciousness? How, to modify Derek Walcott’s words
in his early poem ‘A Far Cry from Africa’, do we stand apart from these bloodline
stories and still live; how do we move beyond the ideas and images that structure
how we think and are? The sign of this difﬁculty in Soueif ’s lecture is that she grasps
at (to her) familiar stories from ancient history in order, however uncertainly and
tentatively, to seek alternatives to the hell-bent stories overlaid on the Middle East
and the West today
...
Poetically convincing
and full of regenerative tragedy as they are, the stories of Ancient Egypt – of Ra
the equalizer and of Isis retrieving the dismembered Osiris’s body – may not possess the political and institutional endorsement required to produce general agreement today
...
We
are constantly bumping up against one another, physically and otherwise
...
The mezzaterra so valued by Soueif has come under
intense pressure
...
As Tabish Khair writes,
on the ﬁeld where the so-called clash of civilizations is being fought out, the
in-between spaces are getting compressed; moderate views are being inexorably
squeezed
...
We need to ﬁnd ways
of living together
...
But the survival of that common ground depends
on slow, arduous, unglamorous processes
...
And that in turn depends on listening and waiting, on careful translation, on doing comparative work between rival narratives, on ﬁnding sources of
courage and honesty within our own narratives, on the willingness to shuttle back
and forth across the middle ground
...
In the words of Kwame Anthony Appiah, we need to begin
with the human in humanity
...
This is challenging
...
She speaks out emphatically where she feels an act of inhospitality has been committed
...
Perhaps the most eloquent homage to her achievement is her own
homage to her long-time mentor and friend, Edward Said
...
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‘War on terror’

in 2003, she spoke of the importance to him of ‘[holding] on to our humanity, our
tolerance, our inclusiveness, always
...
[And perhaps above all] to keep our friendships in good
repair’
...
See also Mourid Barhouti, I Saw Ramallah, tr
...

2 Edward W
...

3 Ahdaf Soueif, The Map of Love (London: Bloomsbury, 1999)
...

5 David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment (London and
Durham: Duke University Press, 2001), especially page 6
...

7 Tabish Khair, Commentary, The Guardian, 7 February 2006
...

9 Mezzaterra (note 1), 317
...
2 ( July 2007), 65–73
...
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Michael Byers

Terrorism, war and international law

Introduction
Most of humanity shares two searing memories: the collapse of the World Trade
Center on 11 September 2001; and a hooded man standing on a box with wires
dangling from his outstretched hands
...
But while
non-state actors can violate international law, only states are able to change the law,
making their breaches of greater potential consequence
...
I conclude by arguing that even a disproportionately
powerful state is constrained, in its ability to change international law, by the actions
of other countries and public opinion – both at home and abroad
...
‘Customary international
law’ is an informal, unwritten body of rules deriving from a combination of ‘state
practice’ and opinio juris
...
Rules of customary international law usually apply universally: they
bind all countries and all countries contribute to their development and change
...
A new rule will
not come into force until it receives widespread support, either expressly or tacitly
...
They are contractual,
written instruments entered into by two or more countries and registered with a
third party, nowadays usually the U
...
Secretary-General
...

9780719079740_C02
...
And because they can, countries such
as the United States deliberately seek to modify international law in accordance
with their changing interests, for instance, by pushing for a right of self-defence against
terrorism, or more ﬂexible rules concerning the treatment of detainees
...
For international law is nowadays
made and changed by nearly two hundred countries and indirectly inﬂuenced by
an even larger number of non-state actors, including human rights NGOs and other
activist groups
...
S
...
Bush has pushed hard for change to international rules, the
potential for countervailing inﬂuences has always remained present, giving hope to
those who envisage a more peaceful and humane world
...

Although the U
...
government chose not to support the rebels directly, it failed to
prevent a private militia from being formed in upstate New York
...
The British responded with a night raid, capturing the vessel as it was docked at Fort Schlosser, New York
...

The incident caused disquiet in Washington
...
Some careful diplomacy
followed, with U
...
Secretary of State Daniel Webster suggesting that the use of
force in self-defence could be justiﬁed when ‘the necessity of that self-defence is
instant, overwhelming, leaving no choice of means, and no moment of deliberation’, and provided that nothing ‘unreasonable or excessive’ was done
...
Over time,
as other countries expressed similar views on the law, the Caroline criteria – often
referred to simply as ‘necessity and proportionality’ – were transformed into a new
right of self-defence in customary international law
...
At San Francisco, the
drafters of the U
...
Charter – heavily inﬂuenced by U
...
negotiators – included selfdefence as an exception to their new, general prohibition on the use of force
...
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Terrorism, war and international law

Page 49

49

self-defence had to be reported immediately to the Security Council; and (3) the
right to respond would terminate as soon as the Council took action
...
N
...
And so, while the right of self-defence has
been codiﬁed in an almost universally ratiﬁed treaty, its parameters have evolved
gradually – or at least become more easily discernible – as a result of the behaviour
of countries since 1945
...
Such use was, until recently, proscribed by international law
...
S
...
Two weeks later, the United States responded by bombing several targets in Libya
...
3 But the
legal claim was rejected by many other countries, including France and Spain – both
NATO allies of the United States – which refused to allow their airspace to be used
by the planes conducting the raid
...

Instead, the process of legal change began after bombs exploded outside the
U
...
embassies in Kenya and Tanzania in 1998
...
U
...
intelligence sources indicated that al-Qaeda was responsible for the attacks
...
Again, the United States claimed that the strikes were legally
justiﬁed acts of self-defence
...
Without having time to consult their legal experts, all three agreed
– and made concurring public statements immediately after the U
...
action
...
This in
turn helped obfuscate the limits of self-defence, rendering the rule more susceptible to change in any subsequent situation
...
The United States quickly implicated the Taliban
who, by giving refuge to al-Qaeda and refusing to hand them over, were alleged to
have knowingly facilitated and endorsed their actions
...
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‘War on terror’

framed its legal claim in a manner that encompassed action against the state of
Afghanistan, rather than asserting a right to use force against terrorists regardless
of their location
...
The collective self-defence provisions
of the 1949 North Atlantic Treaty and the 1947 Inter-American Treaty of Reciprocal
Assistance were engaged, and both NATO and the OAS formally deemed the events
of 11 September an ‘armed attack’ – legally relevant language under the self-defence
provision of the U
...
Charter
...
6 Just as importantly, only two countries – Iraq
and Cuba – publicly opposed the U
...
claim
...
The long-term consequences of this development may be signiﬁcant
...

Pre-emptive self-defence
In 1981, Israel bombed a nuclear reactor under construction near Baghdad and
claimed pre-emptive self-defence, on the basis that a nuclear-armed Iraq would constitute an unacceptable threat
...
N
...
7 Since the U
...
Charter imposes certain restraints on the ‘inherent’ right of self-defence, including the words ‘if an armed attack occurs’, both
customary international law and the so-called ‘law of treaties’ were at issue
...
8 Applying this approach, any pre-existing right of preemption is apparently superseded by the ‘if an armed attack occurs’ clause
...
N
...
For this reason, it has been argued that pre-emption remains
justiﬁed whenever there is a ‘necessity of
...
instant, overwhelming,
leaving no choice of means, and no moment of deliberation’ – the Caroline criteria in their full expression
...
The United States implausibly
justiﬁed its 1962 blockade of Cuba as ‘regional peacekeeping’
...
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Terrorism, war and international law

51

strikes that initiated the 1967 Six-Day War as a response to a prior act of aggression
...
For the most part, these
and other countries chose not to claim or condone a right of pre-emptive self-defence
during the Cold War when nuclear missile submarines on hair-trigger alert ensured
‘mutually assured destruction’ if things went wrong
...

In the ﬁrst few years of the twenty-ﬁrst century, the situation looked quite
different – at least from the perspective of the Bush administration
...
In
June 2002, George W
...
9
The ‘Bush doctrine’ made no attempt to satisfy the Caroline criteria
...
S
...
Relatively few countries possess enough of a military deterrence to be
able to contemplate a world without the combined protections of the U
...
Charter
and the Caroline criteria
...
The National Security Strategy released in September 2002
explicitly adopted, and sought to extend, the traditional criteria:
For centuries, international law recognized that nations need not suffer an attack
before they can lawfully take action to defend themselves against forces that present an imminent danger of attack
...

We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries
...
It did so, ﬁrst, by omitting any mention of the U
...
Charter, thus
implicitly asserting that the pre-1945 customary rule remained the applicable law
...
It did this within a context that at least
suggested the need for legal change, since few would contest that terrorism and
weapons of mass destruction are serious problems
...
Instead, all

9780719079740_C02
...

As recast in the National Security Strategy, the claim was designed to appear
patently reasonable and therefore deserving of widespread support
...
By stretching imminence to encompass
new perceived threats, the approach being advocated would have created further
ambiguity which would, in turn, have permitted power and inﬂuence to play a greater
role
...
And the ability of the powerful to inﬂuence
these assessments is considerable, given the various forms of political, economic
and military pressure that can be brought to bear
...
Under the Bush
doctrine, agreement on the existence of an imminent threat would have been
much more likely when the United States wished to act militarily, than when others wished to do the same
...

A few regional powers, notably India, Israel and Russia, responded favourably
to the claim set out in the National Security Strategy, as did Australian Prime Minister
John Howard, who suggested that the U
...
Charter be amended to allow for a right
of unilateral pre-emptive action
...
Other countries such as Japan voiced support for a right of pre-emptive
self-defence but were careful to conﬁne their claims to the Caroline criteria
...
More recently, it was revealed that the British
Attorney General deemed the Bush doctrine illegal in an opinion provided to Tony
Blair in March 2003
...
As the Iraq crisis escalated, it also contributed to bringing
the United States to the U
...
Security Council where Resolution 1441 was then
adopted unanimously in November 2002
...
The Bush
administration relied on both this argument and pre-emptive self-defence to justify
the 2003 Iraq War, while Britain and Australia relied solely on the resolutions
...

9780719079740_C02
...
In December 2004,
the U
...
Secretary General’s High Level Panel on Threats, Challenges and Change,
a group of sixteen former prime ministers, foreign ministers and ambassadors, presented its own highly authoritative response:
The short answer is that if there are good arguments for preventive military action,
with good evidence to support them, they should be put to the Security Council,
which can authorize such action if it chooses to
...

For those impatient with such a response, the answer must be that, in a world
full of perceived potential threats, the risk to the global order and the norm of nonintervention on which it continues to be based is simply too great for the legality
of unilateral preventive action, as distinct from collectively endorsed action, to be
accepted
...
13

So far, the Bush doctrine has failed as an attempt to change international law,
though it has resulted in a small degree of legal modiﬁcation, or at least clariﬁcation
...
The debates
over the signiﬁcance of ‘if an armed attack occurs’ have been replaced by a general
acceptance that a narrow right of pre-emptive self-defence does exist, as it did before
1945, in ‘cases in which the necessity of that self-defence is instant, overwhelming,
leaving no choice of means, and no moment of deliberation’
...

Self-defence and Iran
As I write, it seems possible that the Bush administration will soon launch air strikes
against targets in Iran, including facilities that are allegedly part of a nuclear weapons
programme
...

The Bush administration has already asserted that Iran is supporting terrorists
who are attacking U
...
forces in Iraq, notably by providing sophisticated explosive
devices
...
14 Here, the Bush administration is working towards the same legal argument that it used against the Taliban
government of Afghanistan in 2001
...
Clear and unassailable evidence

9780719079740_C02
...
S
...

And even then, the violence must rise to the level of an ‘armed attack’ before it can
justify military action within the territory of a sovereign Iran
...

For this reason, the Bush administration is also working towards an argument
of pre-emptive self-defence
...
15 The Bush doctrine, as reformulated in the 2002 National Security
Strategy, is being brought back into play
...
For
the moment, this requirement is far from being met with regard to Iran
...
16 On 5 March 2007, ElBaradei said that his agency had ‘not
seen any diversion of nuclear materials
...
17 The Bush administration’s assertions to the contrary can hardly
be taken seriously, given the misrepresentations about weapons of mass destruction made in 2002–3
...

Some of George W
...
In his
March 2007 New Yorker piece, Seymour Hersh quotes Flynt Leverett, a former Bush
administration National Security Council ofﬁcial, speaking of ‘a campaign of provocative steps to increase the pressure on Iran
...
18 As was demonstrated by the arrest of ﬁfteen British sailors in March 2007,
it would be easy to provoke some sort of incident involving Iran and one of the
very many U
...
naval vessels in the region
...

International humanitarian law
International humanitarian law – the jus in bello – imposes restraints on how wars
may be fought
...
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55

jus ad bellum of the U
...
Charter and self-defence
...

Today, the rules of international humanitarian law are found primarily in the
four Geneva Conventions of 1949
...

Protection of civilians
More than 300 Iraqi civilians died on 13 February 1991 when U
...
stealth bombers targeted the Al’Amiriya bunker in Baghdad
...

Pentagon ofﬁcials, who claimed to have intelligence indicating the bunker was a
command and control centre, denied knowledge of the civilian presence
...
As Article
51(2) of Additional Protocol One explains:
The civilian population as such, as well as individual civilians, shall not be the object
of attack
...
19

It follows that civilians cannot be collectively punished
...
The actions of U
...
forces in Fallujah, Iraq in April 2004, following the killing
and mutilation of four U
...
contractors, certainly looked like war crimes from afar
...
S
...
Then,
immediately after the U
...
presidential election on 2 November 2004, the marines
moved back into Fallujah
...
Fuel-air explosives
were dropped on residential neighbourhoods and virtually every house was struck
by U
...
tank, machine-gun or riﬂe ﬁre
...
The ‘carpet bombing’ of North Vietnam in the
early 1970s was a violation of international humanitarian law, as were moves to

9780719079740_C02
...
Iraq
violated the same rule when it ﬁred eleven Scud missiles at Tel Aviv during the 1991
Gulf War, as did Hezbollah when it launched thousands of missiles at Tiberias and
Haifa in the summer of 2006
...
On the later
occasion, Israel also violated the rules
...
Others were hit because
blasted roads, bridges and gasoline stations had made it impossible for them to ﬂee
...

Given the indiscriminate character of the assault on Fallujah in 2004, the duty
to protect civilians was probably also violated when U
...
forces refused to allow
men between the ages of 15 and 45 to leave the city beforehand
...
And
the United States continued to breach international humanitarian law by refusing
to count and document the Iraqi dead
...
[and] shall prepare
...
In this, and in
too many other circumstances, the United States has committed war crimes that
could easily be avoided
...
In order to be considered soldiers, individuals
should be in a chain of command, wear identiﬁable insignia, carry their weapons openly
and act in accordance with the laws of war
...
The rationale is that individuals who
do not ﬁght fairly – wearing uniforms, carrying their weapons openly, etc
...
The distinction simultaneously rewards
soldiers for being readily identiﬁable and deters civilians from entering the fray, thereby
keeping the line between combatants and civilians as discernible as possible and
maximizing civilian safety
...
The increasing use of private contractors by the
U
...
military, in some cases very near or even in combat zones, raises questions
as to what, if any, rights – beyond international human rights – these individuals
have if captured by opposing armies
...
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57

the all-important distinction between combatants and civilians, with potentially serious consequences
...
For
this reason, journalists may not be targeted by military forces, though they put themselves at risk of being accidentally or incidentally harmed whenever they approach
or enter a combat zone
...

The protection afforded civilians is not absolute, for wars are fought to be won
...
This obligation includes some
general constraints: attacks must be deliberate and tend towards the military defeat
of the enemy; they must not cause harm to civilians or civilian objects that is excessive in relation to the direct military advantage anticipated; and military necessity
does not justify violating other rules of international humanitarian law
...
For example, the tower of a mosque is normally inviolable,
especially since places of worship and cultural property enjoy special protection,
but may become a legitimate target if used by an enemy sniper
...
Desert Storm was the ﬁrst major combat operation undertaken by the
United States after the Vietnam War
...
Adherence to the rule of law was further aided
by the fact that the United States was part of a thirty-member coalition
...

Some two hundred military lawyers were dispatched to the Gulf, where they
vetted every targeting decision
...
Those legal controversies that
arose stemmed from differing interpretations of the law, rather than any desire to
ignore legal constraints
...
A similar divergence of views arose over
the use of earthmovers and tank-mounted ploughs to bury Iraqi soldiers alive in
their trenches, thus avoiding the dangers of hand-to-hand combat
...
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humanitarian law forbids methods of warfare that cause ‘unnecessary suffering or
superﬂuous injury’, but where one sets the balance between military necessity and
humanitarian concerns also depends, perhaps inevitably, on where one is coming
from – during the 1990s, the U
...
government was particularly concerned to avoid
American casualties
...
This assumption has been fuelled by events
...
The September 2001 attacks
on the Twin Towers breached international humanitarian law as ‘crimes against
humanity’, deﬁned as violent acts committed as part of a systematic attack on a civilian population
...
If your enemy is going to cheat, why bother playing by the rules?
Former Defense Secretary Donald Rumsfeld was a key proponent of this kind
of thinking, a position that put him at loggerheads with the professional lawyers
in the Pentagon
...
The air strike to kill Omar was called off because a lawyer
at U
...
Central Command was concerned about the risk of disproportionate civilian casualties
...
20 The Secretary subsequently took steps
to reduce the number of lawyers in uniform
...
This kind of thinking was popular during World War II – as evidenced by
the ﬁre-bombing of Dresden, Hamburg and several cities in Japan – but was subsequently rejected during the negotiation of the 1949 Geneva Conventions
...
According to this view, each ring represents a different
facet of a society: political leadership, economic system, supporting infrastructure,
population and military forces
...
In this context, the indirect harm caused to civilians
– through the destruction of bridges, electrical grids, oil reﬁneries and waterﬁltration plants – is considered justiﬁed because it promotes dissatisfaction within
the regime and thus hastens the course of the conﬂict
...
The health
consequences for civilians were severe, but the strikes were legal because Iraqi
military communications depended heavily on the grid
...
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59

Milosevic’s forces proved much more resilient than expected, the United States pushed
for the adoption of a looser approach which led to more questionable military
tactics
...

Equally problematic was the targeting of the State Serbian Television and
Radio station in April 1999, as well as the Iraqi State Television station in March
2003
...
Again, applying the rules often has as much to do with ﬁner points of fact
as it does with those of law
...
Less accurate high-altitude strikes by
B-52s were restricted to targets well clear of civilian areas
...
As a result of the high altitudes, NATO pilots were sometimes unable
to distinguish between military and civilian targets, with disastrous results for
several refugee convoys
...

Again, as a result of the United States taking a somewhat different approach to
these issues, there is now a different reckoning of the balance between military necessity and humanitarian concerns
...
21 His forces
bombed Beirut’s international airport, striking at the heart of Lebanon’s tourismbased economy
...

Precision-guided munitions give rise to a further complication
...
There are those who argue that this requirement imposes an unfair burden on the United States, given the substantial production
costs of smart missiles and bombs
...
Applying such calculations
to rules designed to protect human beings is not only inappropriate, but also immoral
...
Explosive or expanding (‘dum-dum’)

9780719079740_C02
...
A special treaty – the 1925 Geneva Protocol – precludes the use of poisonous
gas and biological weapons
...
Other
weapons, such as anti-personnel landmines, have been banned by most but not all
countries
...
In 2002, Canadian
soldiers operating in Afghanistan were ordered by their U
...
commander to lay mines
around their camp
...
S
...

Depleted uranium, cluster bombs and fuel-air explosives are among the weapons
whose use remains legally uncertain
...
Given the scientiﬁc uncertainty as to the extent
of the risk, humanitarian concerns should prevail – though depleted uranium was
used extensively by American and British forces during the 2003 invasion of Iraq
...
A single cluster bomb contains hundreds of individual bomblets which are deliberately scattered
over a wide area, killing everything there
...
They lie in wait until disturbed by an unsuspecting passer-by, usually a
civilian, often a child
...
The use of cluster bombs
by the Israeli Defence Forces in 2006 attracted particular attention, in part because
90 per cent of the cluster bomb strikes occurred in the last 72 hours of the conﬂict,
when everyone knew that the hostilities were about to end
...

At an arms control conference in Geneva in November 2006, the United States
and Britain defeated a proposal to begin negotiations on a treaty banning cluster
bombs
...
S
...
N
...
The same two countries had used the exact same tactic when
opposing a ban on anti-personnel landmines a decade earlier
...
Its foreign minister, Jonas Gahr Stoere,
immediately announced: ‘We must now establish concrete measures that will put
an end to the untold human suffering caused by cluster munitions
...
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61

organize an international conference in Oslo to start a process toward an international ban on cluster munitions that have unacceptable humanitarian consequences’
...
24
Although nuclear weapons are not banned, their use is subject to the general
constraints of international humanitarian law
...
In March 2002, the Pentagon issued a Nuclear Posture
Review that cited the need for new nuclear weapons speciﬁcally designed to
destroy deeply buried command centres and biological weapon facilities
...
25
Protection of prisoners
Soldiers are legitimate targets during armed conﬂict
...
Still, soldiers – referred to under
international humanitarian law as ‘combatants’ – beneﬁt from some protections,
including the prohibitions on certain types of weapons discussed above
...

Soldiers who have been wounded are deemed ‘hors de combat’ (out of combat) and accorded protections similar to those that apply to civilians
...
Wounded
soldiers and prisoners of war cannot be killed, used as human shields, held hostage,
or used to clear landmines
...
Medical personnel beneﬁt from
similarly strict protections, while medical facilities, ambulances and hospital ships
are off-limits as targets unless used as locations from which to launch attacks
...
In 1992 and early 1993, the main hospital in Sarajevo, BosniaHerzegovina, was hit by no less than 172 mortar shells while full of patients
...
Against the advice of the
Pentagon’s professional lawyers in the State Department and Pentagon and despite
expressions of concern from a number of European leaders, Donald Rumsfeld insisted
the detainees could not be prisoners of war and refused to convene the tribunals
required under the Geneva Conventions to determine their status
...
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more than ﬁve years after the intervention in Afghanistan, hundreds of the detainees
have neither been charged nor granted access to lawyers
...
The President
and his advisers have consistently maintained that the naval base, located on leased
land in Cuba, is beyond the reach of U
...
law and courts
...
In November 2002,
the English Court of Appeal described the position of the Guantánamo Bay detainees as ‘legally objectionable’; it was as if they were in a ‘legal black hole’
...
S
...
On behalf
of a 6–3 majority of judges, Justice John Paul Stevens wrote:
Executive imprisonment has been considered oppressive and lawless since John, at
Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed,
or exiled save by judgment of his peers or by the law of the land
...
26

Sadly, the judicial victory was short-lived
...
27
The Bush administration is now moving ahead with the ﬁrst prosecutions of
Guantánamo Bay detainees before special ‘military commissions’ designed to restrict
the release of evidence to defence counsel and journalists
...
The ﬁrst prosecution took place in March 2007 against David
Hicks, an Australian charged with providing ‘material support for terrorism’ as a
result of having guarded a tank for the Taliban
...
In return for promising never to allege that he was mistreated in U
...
custody, Hicks will serve just nine
months in an Australian prison
...
In
November 2001, a prisoner revolt at Mazar-i-Sharif, Afghanistan, was put down with
air-to-surface missiles and B-52 launched bombs
...
In December 2002, the
Washington Post reported on the use of ‘stress and duress’ techniques at Bagram
Air Base
...
30 That same month, the New

9780719079740_C02
...
S
...
31 The form gave the pathologist four choices for ‘mode of death’:
‘natural, accident, suicide, homicide’
...

In July 2003, U
...
Secretary-General Koﬁ Annan reported that his Special
Representative for Iraq had expressed concern to the United States about its treatment of detained Iraqis
...
S
...
32 The reports attracted little attention until
March 2004 when CBS television aired photographs showing prisoners at Abu Ghraib
prison in Iraq who had been stripped naked, sexually and culturally ridiculed,
terrorized with dogs and threatened with electrocution
...

Additional violations were committed when the International Committee of the
Red Cross was denied access to some detainees, as reportedly occurred in Iraq early
in 2004
...
Although the ICRC traditionally does not publicly denounce governments that fail to uphold the law – in order to preserve its neutrality, thereby ensuring future access to individuals in need – it has, on several occasions since 2001,
openly expressed concern about the actions of the United States
...
N
...
The principle we once believed to be unassailable – the inherent right to physical integrity and dignity of the person – is becoming a casualty of
the so-called war on terror
...
However, these denials have failed to address either the sharp distinction
between the international deﬁnition of torture and the more ﬂexible deﬁnition
favoured by the Bush administration, or their fall-back position: that any method
of interrogation may still be used if authorized by the American president
...
34 The Bush
administration prefers a standard articulated by the Justice Department in an

9780719079740_C02
...
35 Many methods
of what is generally understood as ‘torture’ would be permitted by this deﬁnition
...
36
Still, the replacement memorandum refused to address a key aspect of the ﬁrst,
namely its expansive interpretation of the president’s powers to ignore or override
domestic legislation and even international law, and to apply whichever deﬁnition
of torture he sees ﬁt
...
In December
2005, Yoo had the following exchange with University of Notre Dame professor
Douglas Cassel during a debate in Chicago:
Cassel: If the president deems that he’s got to torture somebody, including by
crushing the testicles of the person’s child, there is no law that can stop him?
Yoo: No treaty
...

Yoo: I think it depends on why the president thinks he needs to do that
...
These techniques include ‘water boarding’, whereby a
prisoner is made to believe that he or she will drown
...
38
Not all Americans agree with the Vice-President
...
39 In 2005, McCain sponsored legislation conﬁrming that ‘No
individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment’
...
The
legislation was ﬁercely opposed by Cheney, who – by invoking the threat of a presidential veto – successfully negotiated some important exemptions
...
It provides U
...
government employees with legal immunity for
acts of torture that were ‘ofﬁcially authorized and determined to be lawful at the
time that they were conducted’
...
41

9780719079740_C02
...
This outright rejection of Congressional intent is breathtaking; as Sidney Blumenthal observed, it reﬂects
‘a basic ideology of absolute power’
...
43

The former Secretary of State was seeking to extinguish a scandal over the use
of European airspace and airports for the ‘extraordinary rendition’ of terrorist suspects, either to secret CIA prisons, or into the hands of foreign intelligence services
notorious for torture, such those of Jordan, Egypt and Syria
...
His words could not change the fact that those who facilitate these
activities – for instance, by allowing the CIA aircraft to land and refuel – might themselves be engaged in international crimes
...
Criminal suspects who ﬂee overseas are usually returned on
the basis of extradition treaties
...
Most extradition treaties also require
that some evidence of the crime be presented
...
In the late 1990s, Augusto
Pinochet made full use of this right – before being released by the British government on the basis of a dementia which then, remarkably, disappeared
...
Provided they are not being returned to face
trial, the protections provided by extradition law are unnecessary
...

Courts tend to frown upon so-called ‘disguised extraditions’
...

9780719079740_C02
...
In 1994, the terrorist Carlos the Jackal was deported from Sudan to France
to face trial
...
However, it is illegal to deport or otherwise
return someone when, in the words of the 1984 Torture Convention, ‘there are
substantial grounds for believing that he would be in danger of being subjected to
torture’
...
The judgment was properly criticized by Manfred Nowak, the U
...
Special Rapporteur on Torture, on the basis
that ‘diplomatic assurances are unreliable and ineffective’, not least because they
‘are sought usually from States where the practice of torture is systematic’
...

In 1960, Mossad agents captured Adolf Eichmann in Argentina and ﬂew him to
Israel where he was tried and executed
...
In 1990,
a Mexican doctor named Humberto Alvarez Machain was abducted to face trial
for the torture and murder of a U
...
drug enforcement agent
...
S
...
S
...
In 1999, Turkish commandos
lured Kurdish rebel leader Abdullah Öcalan out of the Greek embassy in Nairobi,
where he had sought refuge, and ﬂew him to Turkey
...

The U
...
practice of ‘extraordinary rendition’ involves a mix of deportations and
abductions
...

Bush signed a presidential ﬁnding that provided the CIA with broad authorization
to disrupt terrorist activity, including by killing, capturing or detaining al-Qaeda
members anywhere in the world
...
S
...
45
In September 2002, Maher Arar – a Canadian who is also Syrian by virtue of
that country’s refusal to accept renunciations of citizenship – was arrested while
transiting through New York’s JFK Airport
...
An independent factﬁnder appointed by a Canadian judicial inquiry later determined conclusively that
Arar was tortured, including by being beaten with an electrical cable and by being
conﬁned for ten months to a cell measuring 6 feet long, 3 feet wide and 7 feet high
...
Binyam Mohamed, an

9780719079740_C02
...
47 Khalid Shaikh Mohammed, the alleged mastermind of
the 11 September 2001 attacks, disappeared into U
...
custody in March 2003; the
New York Times later reported that he was subjected to ‘graduated levels of force,
including
...
48 And in Macedonia, a German citizen named
Khaled el-Masri was arrested, handed over to U
...
agents and transferred to a secret
CIA prison in Afghanistan where he claims to have been psychologically tortured
...
49
Other renditions have involved straightforward abductions
...
As the men left prison, they were seized by U
...
military personnel and ﬂown to Guantánamo Bay
...
The Italian authorities, incensed at this interference in
their own investigation, have pressed charges against twenty-ﬁve CIA agents and
a U
...
Air Force colonel
...
regardless of
their motive’
...
S
...
53 A further
violation occurred when the suspects, before being transferred out of Iraq, were
never registered as detainees, and were moved around within and between prisons, to conceal their existence from the International Committee of the Red Cross
...
54 The parallels to these secret prisons – the Soviet Gulag and the Latin
American ‘disappearances’ – are obvious, as is their international illegality
...
It is this latter aspect that has attracted the
attention of the Council of Europe and European Parliament, both of which have
condemned European governments for their involvement in extraordinary rendition, as well as their ongoing reluctance to admit – or co-operate with investigations into – their roles
...
56 In addition, British
agents are alleged to have conducted interrogations under threat of torture, at

9780719079740_C02
...
57 It also seems
the British government has used information obtained by other governments through
torture
...
58 When Murray questioned the practice, the government produced a legal opinion which, by focusing narrowly on the express language of the
Torture Convention, carefully sidesteps two decisive points: the convention codiﬁes
a general prohibition on complicity in torture, and international law requires that
any treaty’s provisions must be interpreted in light of its ‘object and purpose’
...

There has also been Canadian complicity, above and beyond the Arar affair
...
60 Many more
rendition ﬂights presumably crossed Canadian airspace, given that the shortest ﬂightlines from the United States to Europe or the Middle East cross that country’s vast
territory
...
Bush ﬁnally admitted
the existence of the secret prisons – and declared that they’d been closed
...
According to a report in the New York
Times, U
...
intelligence ofﬁcials had questioned several of the detainees in Ethiopian
prisons
...
The mass of violations can then lead to the undermining and eventual change of international rules
...
Bush’s presidency, the United States often acted as a
champion of robust legal protections for both combatants and civilians
...

Conclusion
At ﬁrst, many experts predicted that the terrorist attacks of 11 September 2001 would
prompt the United States to adopt a mutilateralist approach
...
But they were then

9780719079740_C02
...
N
...
Most disturbing, however, were some of the threats uttered by George
W
...
The assertion that ‘you’re either with us or against us’ obviated a central
aspect of state sovereignty – the right not to be involved – and recast the United States
as the ultimate arbiter of right and wrong
...

Powerful countries have always shaped the international system to their advantage
...
In the eighteenth century,
France developed the modern concepts of borders and the ‘balance of power’ to
suit its continental strengths
...
George W
...

The international legal system has grown more complex, with a far broader and
denser network of customary international law and treaties and an unprecedented
multiplicity and diversity of actors, both state and non-state
...

That said, a role for non-state actors has long been recognized in the domain
of international humanitarian law
...

During the last few years, the public conscience has had a discernible effect on
the conduct of war
...
Even governments that
disrespect international rules do their best to court public opinion, and to avoid
sustained and public criticism
...
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the location, treatment and due process rights of detainees
...
In 2003, public opinion kept Canada and Germany out of the Iraq
War; in 2004 and 2005, it led to the withdrawal of Spanish and Italian forces from
that country; in 2005–7, it caused nineteen NATO governments to hold back from
deploying forces to Afghanistan’s volatile south
...
S
...
N
...
The November 2006
mid-term elections constituted a ‘pummelling’ – to quote George W
...
S
...
For this reason, public opinion should ideally be marshalled
before military force is used and then applied not only to potential belligerents but
to all governments and other actors on which the belligerents might potentially rely
...
The same holds true for international humanitarian law, which is too often ignored until after violations have
been committed
...

To some degree, the Bush administration was able to disregard so much of international law because our fellow citizens understood so little about it
...

Notes
1 See: R
...
Jennings, ‘The Caroline and McLeod Cases’, American Journal of International Law 32 (1938), 82
...
N
...
un
...
html
...
g
...
Shultz, Low-Intensity Warfare
Conference, National Defense University, Washington, D
...
, 15 January 1986’, reproduced in International Legal Materials 25 (1986), 204
...
g
...

5 See Michael Byers, ‘Terrorism, the Use of Force and International Law after 11
September’, International and Comparative Law Quarterly 51 (2002), 401; reprinted in
International Relations 16 (2002), 155
...
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6 SC Res
...
N
...
SC/7143; SC Res
...
N
...
SC/7158; both available
at www
...
org/Docs/scres/2001/sc2001
...

7 SC Res
...
un
...
htm
...
un
...
htm
...
Bush at 2002 Graduation Exercise of the United States
Military Academy West Point, New York, www
...
gov/news/releases/2002/
06/20020601-3
...

10 National Security Strategy of the United States, 20 September 2002, p
...

whitehouse
...
html
...
For the original document, see http://image
...
co
...
pdf
...
1441 (2002), available at www
...
org/Docs/scres/2002/sc2002
...

13 ‘A More Secure World: Our Shared Responsibility
...
63, www
...
org/
secureworld/
...
Hersh, ‘The Redirection: Is the Administration’s New Policy Beneﬁting
Our Enemies in the War on Terrorism?’ New Yorker, 5 March 2007
...

16 Daniel Dombey, ‘FT Interview: Mohamed ElBaradei’, Financial Times, 19 February 2007
...
iaea
...
html
...

19 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conﬂicts (Protocol 1), 8 June 1977, available at www
...
org/Wes/Eng/siteeng0
...

20 Seymour M
...

21 Donald Macintyre, ‘Israel Launches Ferocious Assault on Lebanon After Capture of
Troops’, Independent, 13 July 2006, 4
...

23 Associated Press, ‘Norway Leads Move to Ban Cluster Bombs Despite Objections of
U
...
’, 17 November 2006, available at www
...
com/story/0,2933,230278,00
...

24 Doug Mellgren (Associated Press), ‘46 Nations Push for Cluster Bomb Treaty’,
Washington Post, 24 February 2007
...

26 Rasul v
...
3d 1134, 8 June 2004, available at http://supct
...
cornell
...
ZO
...

27 Military Commissions Act of 2006, S
...

28 Carol J
...

9780719079740_C02
...
S
...

30 Don Van Natta, Jr
...

31 Carlotta Gall, ‘U
...
Military Investigating Death of Afghan in Custody’, New York
Times, 4 March 2003, A14
...
amnesty
...

33 Louise Arbour, ‘No Exceptions to the Ban on Torture’, International Herald Tribune,
6 December 2005
...
ohchr
...
htm
...
Jeffrey Smith, ‘Memo Offered Justiﬁcation for Use of Torture; Justice
Dept
...
Greenberg and
Joshua L
...

36 ‘Memorandum of 30 December 2004 from Daniel Levin, Acting Assistant Attorney
General, Ofﬁce of Legal Counsel, for James B
...
S
...
§§2340–2340A’, available at
www
...
gov/olc/2004opinions
...

37 Nat Hentoff, ‘Don’t Ask, Don’t Tell: The Bush Team Chants, “We do not torture”, but
Nobody Around the World Believes Them’, Village Voice, 27 January 2006, available at
www
...
com/2006-01-24/news/don-t-ask-don-t-tell/
...

38 Dan Eggen, ‘Cheney’s Remarks Fuel Torture Debate; Critics Say He Backed Waterboarding’, Washington Post, 27 October 2006, A09
...
msnbc
...
com/id/10019179/site/newsweek/
...
milnet
...
html
...
3930, overturning Rasul v
...
3d 1134,
8 June 2004, available at http://supct
...
cornell
...
ZO
...

42 Sidney Blumenthal, ‘Bush’s War On Professionals’, Salon
...
salon
...

43 ‘Powell Raps Europe on CIA Flights’, BBC News, 17 December 2005, http://
news
...
co
...
stm
...
N
...

A/60/316, available at www
...
org/english/issues/torture/rapporteur/
...
Martin’s Press, 2006)
...
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46 Commission of Inquiry into the Actions of Canadian Ofﬁcials in Relation to Maher Arar,
Report of the Events Relating to Maher Arar: Analysis and Recommendations, 18 September 2006, available at www
...
ca/eng/AR_English
...

47 Colin Brown, ‘Straw Faces MPs Over Claims MI6 Delivered Suspect for Torture’,
Independent, 12 December 2005; Ghost Plane (note 45), 45–61
...
Lewis, ‘Harsh C
...
A
...

49 Dana Priest, ‘Wrongful Imprisonment: Anatomy of a CIA Mistake’, Washington Post, 4
December 2005, A1; Ghost Plane (note 45), 79–102
...

51 Sarah Delaney and Craig Whitlock, ‘Milan Court Indicts 26 Americans in Abduction’,
Washington Post, 17 February 2007, A01; Ghost Plane (note 45), 190–213
...

Geneva, 12 August 1949, available at www
...
org/Wes/Eng/siteeng0
...

53 Dana Priest, ‘Memo Lets CIA Take Detainees Out of Iraq’, Washington Post, 24 October 2004, A1
...

55 See ‘PACE Calls for Oversight of Foreign Intelligence Agencies Operating in Europe’,
27 June 2007, http://assembly
...
int/ASP/Press/StopPressView
...
europarl
...
eu
...

57 Stephen Grey and Ian Cobain, ‘Suspect’s Tale of Travel and Torture’, Guardian, 2 August
2005; Ghost Plane (note 45), 54
...
K
...
com/murray/
Telegram
...

59 See Legal Opinion from Michael Wood, Foreign Ofﬁce Legal Adviser, 13 March 2003,
available at http://dahrjamailiraq
...
php; Ghost Plane (note 45), 182
...

61 Jeffrey Gettleman and Mark Mazzetti, ‘Ethiopia Holding 41 Suspects Who Fought With
Somali Islamists, Ofﬁcials Conﬁrm’, New York Times, 11 April 2007, A12
...
org/
reports/display
...

9780719079740_C02
...
Bush on al-Qaeda and ‘every terrorist group of global reach’
...
As Byers makes clear, international law has done so via the separate canons of the jus ad bellum and the jus in
bello – though, to these, we might wish to add the jus post bellum, or the rights and
responsibilities that accrue in the aftermath of armed conﬂict
...
They tell us which of the detailed prescriptions – which of the
principles and rules – of international law are relevant to our purposes, and, by implication, they tell us which are not
...

And it matters a great deal what answers are reached in this respect, for they in
turn will instruct us as to what the governing legal regimen is – what legal rights
and obligations are active and applicable to the facts before us
...
Did they also initiate an armed conﬂict and, in so doing, trigger
the laws of the jus in bello? Or did those acts form part of an existing armed conﬂict
that stretched as far back as Osama bin Laden’s Declaration of War Against the
Americans Occupying the Two Holy Places of August 1996, or, possibly, farther than

9780719079740_C02
...
S
...
Consider the interpretations
of the June 1981 Israeli strike on the nuclear reactor at Osiraq in Iraq
...
7
None of the member states of the United Nations was prepared to share Israel’s
understanding of an expanded scope of this right: Israel was not deemed by any
state to be under any speciﬁc or imminent threat from Iraq at that point in
time, the threshold that has come to deﬁne the right of (anticipatory) self-defence
since the time of the Caroline correspondence (1838–42)
...

We can see how a very different outcome on the lawfulness of Israel’s action might
have been reached had Israel’s action been viewed as an aspect of an existing armed
conﬂict between Israel and Iraq – as some have argued9 – for, then, the laws of the
jus in bello would have required us to ask whether the nuclear reactor at Osiraq
met the requirements for a military objective as set out in the 1977 Additional Protocol
One
...
We need to be sensitive to this issue because both
of these branches of international law comprise a multitude of provisions and
argumentative possibilities (the jus in bello, it must be said, much more so than the
jus ad bellum)
...
In his essay, Byers focuses on the right of
self-defence in his treatment of the jus ad bellum, and he is of course right to do
so
...
Here, we marvel at international law in action – at the
dynamics of its evolution and change, at the episodes of state practice collecting

9780719079740_C02
...
11 Yet, as the Bush administration discovered in proclaiming a right
of pre-emptive self-defence,12 there can be no guarantees that an argument will be
acceptable to other states – including one’s own allies
...

But the laws of the jus ad bellum do go beyond the mere prohibition of force
and the right of self-defence, for Article 2(4) of the Charter proscribes the threat
as well as the use of force
...
So the Security
Council seemed to say in Resolution 487 (1981) when it advised Israel against making any ‘threats’ of force
...
Their refusal to do
so will result in military conﬂict, commenced at a time of our choosing’
...
15 As the International Court of Justice put it in its Nuclear
Weapons Advisory Opinion of July 1996, ‘if the envisaged use of force is itself
unlawful, the stated readiness to use it would be a threat prohibited under [Article
2(4)]
...
the Charter stand
together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal
...
16 Does this mean, then, that when the United
States made good on its threat of force and intervened in Iraq with its allies on 19
March 2003, both of the Charter’s prohibitions of force were violated? For its part
in the charged politics of the Middle East, Iran later notiﬁed the Security Council
of the ‘public and thinly veiled threats of resort to force’ made against it by the United
States, actions it considered forbidden under Charter law
...
18
The jus in bello, meanwhile, becomes applicable in the event of ‘declared war
or of any other armed conﬂict which may arise between two or more of the High
Contracting Parties [to the four Geneva Conventions of August 1949], even if the
state of war is not recognized by one of them’ (common Article 2) or of an ‘armed

9780719079740_C02
...
These provisions need to be read
with considerable care, for they mark out the modern provenance(s) of the jus in
bello and, as is immediately clear, they remove the tremendous signiﬁcance that the
jus in bello has traditionally attached to a legal state of ‘war’
...

As far as international law is concerned, therefore, it is incumbent on us to
cut through the considerable political verbiage that has accompanied the ‘war on
terror’ – including the very term ‘war on terror’ itself – in order to determine whether
the laws of the jus in bello are applicable, and, if so, which of these laws are applicable
...
According to
these schemata, common Article 2 concerns international armed conﬂicts, to which
the full panoply of rules in the Geneva Conventions then becomes applicable, and
common Article 3 concerns non-international armed conﬂicts, to which the more
limited coda – contained in common Article 3 – becomes applicable:
(1) Persons taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause, shall in all circumstances be treated
humanely, without any adverse distinction founded on race, colour, religion or faith,
sex, birth or wealth, or any other similar criteria
...

(2) The wounded and sick shall be collected and cared for
...
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territory of one of the High Contracting Parties’
...
It is another thing to compel such punishment in circumstances where such violations have substantially occurred in consequence of conﬂict between different formations within the same state in respect
of the permissible political direction which that state should take with regard to the
structures of the state and the parameters of its political policies and where it
becomes necessary after the cessation of such conﬂict for the society traumatised
by such a conﬂict to reconstruct itself
...
They have to live with each other and work
with each other and the state concerned is best equipped to determine what measures may be most conducive for the facilitation of such reconciliation and reconstruction
...
21

Given these particularities of deﬁnition, the question must arise as to whether
an armed conﬂict between the United States and al-Qaeda can exist in law at all
...
Does their relationship not fall into a regulatory gap of the jus
in bello, an ‘armed conﬂict’ not envisaged by the schemata of the Geneva Conventions? Or should we analyse their relationship within the traditional framework
of the international armed conﬂicts that the United States has entered with
Afghanistan and then Iraq? Or perhaps this set of experiences has been constitutive of a new normative paradigm, ushering in a new arrangement not known to
the law before 11 September 2001? Byers appears to pinpoint 11 September 2001
as a critical date in his reasoning, but he does so in problematic fashion when he
refers to the ‘breach[ing] [of ] international humanitarian law as “crimes against
humanity” ’
...
22 By deﬁnition,
international humanitarian law, a more contemporary periphrasis for the jus in bello,
cannot)
...
Rumsfeld,
Secretary of Defense, et al
...
23 There, the Supreme Court was content
to follow the lead of the International Court of Justice in Military and Paramilitary
Activities In and Against Nicaragua (Nicaragua v
...
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law’ in common Article 3 of the Conventions
...
24
Why the International Court of Justice adopted this approach rather than reafﬁrm
the customary rules applicable to ‘the actions of the United States in and against
Nicaragua’25 – that is, the custom applicable to international armed conﬂicts – is
not clear
...
26
Appealing though these jurisprudential pronouncements might be, it remains
the case that determinations as to the form of an armed conﬂict are necessary in
order to map out the range – the full extent – of the rights and obligations of the
jus in bello
...
And
we need to be vigilant on the decisions that are and have been made on this front
– whether by governments or national judiciaries (in Hamdan, the United States
Supreme Court concluded that ‘Common Article 3 [of the Geneva Conventions] is applicable here and
...
)
As we try to make sense of this detail, we should remain conscious of the efforts
that have been undertaken to ‘humanize’ the jus in bello, to make its substantive
components for international and non-international armed conﬂicts as equal or as
identical as possible
...
28 The law thus affords protections to all combatants in an international armed conﬂict: it is no longer a question (as Byers appears to assume in parts)
of whether unlawful combatants have protections, but of what the scope and
meaning of these protections might be
...
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the mercenary as it is (and always has been) for those who have fought as members of the regular armed forces of a state
...
whitehouse
...
html
...
“jus post bellum”? Rethinking the
Conception of the Law of Armed Force’, European Journal of International Law 17 (2006),
943
...
Knopf, 2006), 188–9
...

5 The United States has also used force against similar targets in Somalia – on more than
one occasion: see David S
...
S
...
S
...

6 See, for instance, Yoram Dinstein, War, Aggression and Self-Defence 4th edn
...

7 U
...
Doc
...
2280 (12 June 1981), 38
...
Y
...

9 See War, Aggression and Self-Defence (note 6)
...
52(2) of the Protocol, ‘military objectives are limited to those
objects which by their nature, location, purpose or use make an effective contribution
to military action and whose total or partial destruction, capture or neutralization, in
the circumstances ruling at the time, offers a deﬁnite military advantage’
...

11 Though in Byers’ recounting of the history of this point of law on the invocation of the
right of self-defence in response to acts of terrorism, there is a curious omission of the
U
...
action against Iraq in June 1993: see Dino Kritsiotis, ‘The Legality of the 1993 US
Missile Strike on Iraq and the Right of Self-Defence in International Law’, International and Comparative Law Quarterly 45 (1996), 173
...

13 See the remarks of British Prime Minister Tony Blair before the Liaison Committee of
the House of Commons on 21 January 2003: www
...
the-stationery-ofﬁce
...
uk/
pa/cm200203/cmselect/cmliaisn/uc334-i/uc33402
...

9780719079740_C02
...
whitehouse
...
html (17
March 2003)
...
The United States and other nations did nothing to
deserve or invite this threat
...
Instead of drifting
along toward tragedy, we will set a course toward safety
...
See further Nikolas Sturkler,
The Threat of Force in International Law (Cambridge: Cambridge University Press, 2007),
157–68
...

16 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) I
...
J
...

225 (§47)
...
N
...
S/2006/178 (22 March 2006) and U
...
Doc
...

18 See Ewen MacAskill and Chris McGreal, ‘Israel Should Be Wiped Off the Map, Says
Iran’s President’ Guardian, 27 October 2005, 1
...
See
‘Iranian’s Remark on Israel is Condemned’, New York Times, 5 June 2007, A9
...

20 We would need to make accommodation for the additional treaty rules developed
for international armed conﬂicts in the 1977 Additional Protocol One and for noninternational armed conﬂicts in the 1977 Additional Protocol Two – as well as, of
course, for the customary arrangements for both forms of armed conﬂict as identiﬁed,
for instance, in Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005), vols
...

21 Case CCT 17/96, Azanian Peoples Organization et al
...
The President of South Africa,
Constitutional Court of South Africa: Judgment of 25 July 1996 (§31)
...
Article 7 of the 1998 Rome Statute of the International Criminal Court and Article
3 of the 1994 Statute of the International Tribunal for Rwanda with Art
...
) (Emphasis added
...
3d 33 (2006)
...
e
...

9780719079740_C02
...
United States
of America) (Merits) (1986) I
...
J
...
14 (§218)
...
Albania) (Merits) (1949)
I
...
J
...
22 (§215)
...

26 Case No
...
Tadic, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, para
...
Chamber, 2 October 1995)
...
Rumsfeld, Secretary of Defense, et
al
...

27 See especially Theodor Meron, ‘The Humanization of Humanitarian Law’, American
Journal of International Law 94 (2000), 239
...
e
...
Taft, IV, ‘The Law of Armed Conﬂict After 9/11: Some Salient Features’, Yale Journal
of International Law 28 (2003), 319, 321–2
...
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Conor Gearty

Human rights in an age of counter-terrorism

Terror and terrorism
For many years I worried with all the other so-called ‘terrorism experts’ about the
fact that there was no proper, objective deﬁnition of terrorism
...
In the end I wrote a book on terrorism that was more about
language and the power of labels than it was about killing and kidnapping
...
The importance of the subject, its
utility to those who mattered, relied upon the impossibility of it ever being tied down
...
2 Take as an example a straightforward deﬁnition,
one that sees as terrorist violence the intentional or reckless killing or injuring of
non-combatants or the doing of severe damage to their property, in order to communicate a political message
...
It can, it is true, be used by the kind of
weak group that has few other military or political options in its locker: the alQaedas and ETAs of this world
...
In failed
states it is available, among other brutal techniques, to all the ambitious, powerhungry factions
...
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1986 – or in tandem with other kinds of violence in the context of a serious armed
conﬂict – examples that come to mind would be the allied bombing of Dresden
and other German cities towards the end of World War II and the nuclear attacks
on Hiroshima and Nagasaki in 1945
...
The
question of morality is separate from the issue of classiﬁcation
...

Now of course this is not at all how we use the term today
...
So we have terrorist organizations, terrorist groups, terrorist leaders and so on, and these labels do not require
evidence of speciﬁc actions in order to be made to stick, to secure coherence in
our discourse
...
4 Once a group is labelled terrorist by
reference to one or other of this wide set of criteria, it is then terrorist, not only (as
I earlier said) regardless of what it does but also sometimes in spite of what it does
...
It might still be terrorist even when it is involved in speciﬁcally
non-violent actions
...
That ‘therefore’ is important
...
To contemporary ears, to call something terrorist is at the same time to condemn it as morally wrong: the value judgement
is packed into the description, the ‘is’ has been elided into the ‘ought’ or, more
accurately in this case, the ‘ought not’
...
Even if what the state does
is both violent and designed to spread terror among its own people – a sadly not
uncommon occurrence as is obvious from a perusal of the recent annual reports
from Amnesty5 and Human Rights Watch6 – it nevertheless cannot be described
as terror or terrorist action because those terms have now come to be invariably
applied to sub-state actors
...
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85

in other words as inherently good in the same way that terrorism is inherently
bad
...
It is a movement in language that operates wholly in favour of state
authorities, taking their conduct, however horrible, out of the realm of terror,
while at the same time giving them the opportunity to dump this powerfully
opprobrious label on their political opponents
...
None of this explains, however, a further twist in deployment of
the language of terrorism, one that has great and direct relevance today
...
In its contemporary form, terrorism is
no longer a particular kind of violence that this or that gang or group in this or that
country does; rather it is said to be part of a pattern of systematic international violence against which a ‘global war on terror’ now needs to be waged
...
Exploring
its origins takes us back to the very beginnings of the modern distortion of our subject, the late 1960s
...
Until 1968, descriptions of post-World War II sub-state political violence were largely informed by an anti-colonial narrative, one that saw the
use of such force as designed to secure freedom for local people from domination
by this or that Western power
...
The ﬁrst attempts to force Israel to concede a Palestinian
state were entirely conventional, involving acts of war and guerrilla action
...

So the Palestinians turned to isolated acts of political violence, by both ofﬁcial and
renegade factions, on occasion very bloody it is true, but as not much more than
a kind of consolation prize that had to be accepted because it was all that was available
...
7

9780719079740_C03
...
During this period as well, some Palestinian factions took
their ﬁght to the streets and airports of Europe with occasional forays into extremely
bloody violence
...
If there were any doubt about this then all that needs to be recalled are
the invasions of Lebanon that took place in 1978 and 1982, and in particular the
two-month siege of Beirut that took place during the summer of the latter year
...
Assisted by the aforementioned internationalization of the violence by some Palestinian factions, a brilliantly successful campaign was then conducted by U
...
and Israeli strategists and
their academic and intellectual allies to castigate Palestinian violence as terrorist
and therefore as uniquely evil
...
What helped here was that
the generally very peaceful West was indeed suffering from occasional acts of subversive violence, from leftist ideological groups in Germany and Italy (the Red Brigades
and the Bader-Meinhoff gang respectively) and from irredentist nationalist groups
in Corsica, Spain and Northern Ireland
...
S
...
All
these groups became elided together under the general terrorist rubric, one within
which, in the 1970s, the violent exponents of the Palestinian cause now also found
themselves becoming helplessly enmeshed
...
All the talk was of
‘terrorists’ and ‘terrorism’
...
S
...
One book from this period for example,
Terrorism: How the West Can Win, contained a contribution from Israel’s ambassador to the United Nations Benjamin Netanyahu which described the ‘war against
terror’ as ‘part of a much larger struggle, one between the forces of civilization and the
forces of barbarism’
...
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87

‘terrorism expert’ and was to become Israeli prime minister in due course – was
published seven years before Samuel Huntingdon’s famous article on the ‘clash of
civilisations’
...
12 It was named after the Israeli commando who had died in the
raid on Entebbe in 1976
...
S
...
13
The joint interest of the West and Israel in developing a common front against
terrorism was consolidated in the 1980s
...
A succession
of books and articles and terrorist commentaries made the link between the Soviet
Union and the sponsorship of international terrorism in general and of the PLO
in particular
...
Books with titles like The Soviet
Strategy of Terror,14 The Grand Strategy of the Soviet Union,15 The Soviet Union and
Terrorism,16 The Soviet Connection: State Sponsorship of Terrorism17 and the evocatively titled Hydra of Carnage18 ﬂowed from the presses and the think-tanks
...
19 The point being made
by all this academic scholarship was that Soviet support for the Palestinian
cause essentially made it a Godfather of international terrorism the world over
...
K
...
An eye for an eye has never been the counter-terrorist’s
motto in the Middle East, more like 10,000 eyes for every eye
...

This framework for seeing the Israeli-Arab conﬂict, embedded so brilliantly
in our public discourse in the 1970s as part of a worldwide contagion of irrational
terror, remains with us to this day
...
Where once
it was the Kremlin it is now al-Qaeda
...

9780719079740_C03
...
S
...
In a book for the Institute
for the Study of Conﬂict, entitled The New Terrorism and published as early as 1986,
the terrorism expert William Gutteridge, sounded the following warning note
about the future:
The new wave of political violence in the Middle East and South Asia in the mid
1980s in which religious sectarianism is a potent factor has added other dangerous
dimensions to the problem and at the same time focused attention sharply on the
real danger to civilisation and international order which epidemic terrorism could
pose
...

This was when Hamas got properly under way
...
The
government of Ariel Sharon repeated the triumph of an earlier generation of Israeli
strategists in linking its private quarrel with the Palestinians to this global epidemic
of terror
...
The state of Israel has been
ﬁghting the Arab, Palestinian and Islamic fundamentalist’s terror for over 120
years
...
The bereavement of the American people is known well to us
...
A war of the free world
coalition against the forces of terror
...

We know this as we have been in this battle for many years now
...
Arafat
chose the strategy of terror and formed a coalition of terror
...

We must remember it was Arafat who gave the legitimacy to hijacking planes,
and it was the Palestinian terror groups that started sending suicide bombers
...

There is no such thing as terrorists who are ‘good guys’ as there is no such thing
as terrorists who are ‘bad guys’, they are all bad
...
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I applaud President Bush for his decision to form a coalition against terror
...
21

As was the case in the 1980s, a large number of intellectuals, politicians and
non-governmental bodies promptly echoed this theme of a new global war on Israel
and the West, one which embraced all elements of the Palestinian resistance as well
as the al-Qaeda ‘terror network’
...
No attention, or no serious attention, needs to be paid to the political violence – by Israeli forces, by the Russian army in Chechnya, or by U
...
forces and
other armies in the latest ‘Coalition of the Willing’ – which creates the conditions
for this subversive violence and helps to ensure its perpetuation
...

Human rights and terrorism
Thus the greatest violence the term ‘terrorism’ does to human rights is the way in
which it frames public discussion
...
The terrorism model blows a
hole in this system, one rooted in fair procedures, settled rules and carefully calibrated international co-operation against deﬁned criminal mischiefs
...
U
...
law has certainly drifted in this direction,
with administrative powers rooted in executive judgments about involvement in
terrorism (very broadly deﬁned) being used against individuals and groups without the safeguards that would be regarded as normal if the criminal justice model
were being followed
...
This has been achieved by a combination of, on the one hand, a code of human
rights law that concedes within itself the need for occasional state action to safeguard national security and, on the other, an executive branch that has been sensitive to the need to give up some of the power it wants in order to secure a satisfactory
human rights outcome
...
24 There is an executive power to ban
political associations but an independent tribunal (albeit without the security of a

9780719079740_C03
...
25 The anti-terrorism control orders
provided for in the terrorism law enacted in 2005 by way of a response to the Belmarsh
decision accept the need for some judicial safeguards, although these do appear very
weak when looked at from the perspective of criminal law
...
Some believe
that this packaging of terrorism law in a kind of ersatz due process is merely brilliant salesmanship, a clever way of attacking human rights while seemingly complying with them, of salving the conscience of New Labour authoritarians
...
26
It is certainly right that we would be better off with an improved code of criminal
law outlining speciﬁc offences and providing mainstream procedural safeguards
against abuse
...
Given that terrorism laws are unlikely to disappear any
time soon, this is certainly a goal worth working towards
...
K
...
In that jurisdiction, of course,
there are no human rights as such to control the security instincts of the federal
authorities, but there is supposed to be the Constitution; and guaranteeing its omnipotence, and thereby the supremacy of the rule of law, is supposed to be the main
task of the U
...
Supreme Court
...
This is playing the game
essentially by the old rules: you push something through Congress before you do
what it will empower you to do, and you hope that the powers will not be struck
down by the courts
...
But it
is now clear that this was only a small part of the administration’s response, and
that in fact the major commitment was to executive action without the authority
of any law whatsoever
...
S
...
S
...
It is estimated that
hundreds, perhaps thousands, of people have been under such surveillance
...
27 These
may be good arguments as to why there should be such a law, but these are
not reasons in themselves for bypassing the law-making process altogether
...
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91

language of terrorism provides the justiﬁcation for these egregious breaches of
the right to privacy: they could not have arisen if we had stuck to the criminal
model
...
In November 2005, the Pentagon conceded that the
U
...
had detained more than 80,000 people in facilities from Afghanistan to Cuba
since the attacks on 11 September
...
29 Naturally enough lawyers can be found who will argue that
the U
...
policy of detentions is in accord with international law, just as there are
some who say that the president can do what he wants within the jurisdiction as
well
...
Unfortunately they occupy positions of immense power
...
For it has to be acknowledged that scepticism about the rule of law
goes right to the very heart of this American administration
...
Ever more brutally to the point, this is how Defense Secretary
Rumsfeld put it in the 2005 National Defense Strategy of the United States: ‘Our strength
as a nation state will continue to be challenged by those who employ a strategy of
the weak using international fora, judicial processes, and terrorism’
...

And then of course there is the torture
...
S
...
This is to put it mildly and – contra the idealists like Senator John McCain
– ahistorical
...
S
...
Mechanisms of no-touch torture based on sensory deprivation and self-inﬂicted pain were developed as part of the Phoenix
program during that conﬂict and were then exported to Latin America and Asia
under the guise of police training programs
...
What was new after 11 September was the openness with which the previously covert policy was now being
promulgated
...
It was also asserted
that the Geneva Conventions did not apply to the unlawful combatants held by
the U
...
authorities, and that the Convention against Torture did not apply to actions
against non-Americans outside the United States
...
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as such only where it produced pain equivalent to that from serious physical injury, such as organ failure, impairment of bodily function, or even death
...
33
The details of the various moves that the Bush White House has made away
from democratic accountability, the rule of law and human dignity, all in the name
of the ‘Global War on Terror’ that it says it has to ﬁght, need not to detain us here
...
We have already seen how the discourse
of terrorism challenges universality and by positing a version of the world rooted
in good and evil makes possible the kinds of subversions of our subject that I have
been discussing
...
The majority of progressives and public intellectuals have
been ﬁerce in their denunciations
...
A substantial number of lawyers, media commentators and academics,
particularly in the United States, have supported, either in whole or in part, the actions
of the administration
...
This
is not to say that they all give the Bush White House carte blanche; enough differences are maintained for critical distance to continue to appear to be preserved
...
Some of them do not go as far as
others in what they would permit: at their conferences and in each other’s edited
books they argue among themselves about the morality of this or that kind of sensory
deprivation and sometimes they even come down against indeﬁnite detention
without charge
...
The unspeakable is no longer
unspoken
...

It is not hard to see how President Bush, Vice-President Cheney and then-Defense
Secretary Rumsfeld took such a position
...
Those who take the line I have just outlined tend also to accept
the idea of a global campaign of terrorism that threatens us all
...
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93

the reasons why the West considers its culture to be superior to that of others
...
On this analysis respect for human rights becomes this abstract thing that
we in the West have and which we must defend against those who would by destroying our culture also wreck this precious but vulnerable commitment
...
35
To Ignatieff, we are faced with ‘evil’ people and ‘either we ﬁght evil with evil or we
succumb’
...
The
‘we’ here is unavoidable because pervasive: intellectuals like Michael Ignatieff
writing about the dangers of terrorism are speaking for the decent ‘West’ against
a horrible other; it is a conversation with friends about what to do about the neighbour from hell
...
Just as in the 1970s global war on terror against
the ‘Evil Empire’, Israel is our friend, the bastion of our values in a hostile zone, a
beacon of good in a region of evil
...
The human rights justiﬁcation goes along the
following lines
...
Those values commit them to respecting the moral
status of human beings and to guaranteeing ‘to respect the rights of those who have
shown no respect for rights at all, to show mercy to those who are merciless, [and]
to treat as human those who have behaved inhumanly’
...
37 So if we change our rules
to allow us to respond in an evil way, or our operatives stray over the boundary
into evil behaviour without our explicit authorization, it is really not so bad (ﬁne
even?) because all that is happening is that evil is being met with (lesser/theoretically accountable) evil
...
Our evil is better (because
less bad) than theirs
...

9780719079740_C03
...
A kind of militant humanitarianism had grown up during the late 1990s,
which argued for a more robust strategy of intervention to secure human rights goals
in faraway lands
...
S
...
39 While Stephen Holmes is right when
he says that the ‘heady support’ of ‘certain sparkling intellects
...
40 Had the Iraqi occupation turned out as
Washington strategists intended, there can be little doubt that the focus would now
be on Syria’s abysmal human rights record and its unlawful interference with
Lebanon’s affairs
...

(How would the U
...
react if Mexico and Canada were invaded and occupied by
Iranian forces in possession of weapons of mass destruction of which it had none?)
But we can be equally sure that, in this hypothetical future following a successful
pacifying of Iraq, about Israel there would not have been a single murmur: its development of nuclear-weapon capacity would have remained unpunished, its illegal
occupation of Palestinian land would have gone largely unnoticed, its invasion
of neighbouring countries would still be a thing of the past, to be glossed over or
forgotten
...

Conclusion: human rights ﬁghts back
In order to ensure its survival, the human rights idea needs to stand ﬁrmly against
this kind of distortion of its essence, this move to turn it into a basis for selective
aggression abroad and an alibi for brutality at home
...
For once these grand terms are deployed in the discussion, all bets are off as far as equality of esteem is concerned
...
Why
esteem the evildoer in the same way as he or she who does good? These are not
now any longer human beings simpliciter but different kinds of humans: one good,
one bad
...
The wonder is not that we
good guys abuse their human rights but that we continue to use human rights

9780719079740_C03
...
And who is this ‘they’ that ﬁlls the category of lesser
(because evil) humans? In theory of course the Bush administration and the liberal advocates of necessary evil agree that it is just the members of the terrorist
brigades, the few truly rotten apples intent on destroying all that we civilized, good
people stand for
...
When this occurs,
there is a danger of consistent discrimination against it; ‘they’ (‘we’ say) shelter terrorists and their human rights are likely to suffer in consequence
...
The
danger is all the greater when terrorists claim to be acting in the name of a major
world religion and an entire religious community is therefore likely to be stigmatized by association
...

Again we are back with the single most disastrous legacy of the war on terror
from a human rights point of view, the supersession of the criminal model based
on justice and due process by a security model that is based on fear and suspicion
...
The ‘just war’ theory having the rather fatal ﬂaw that ‘justice’ is in the eye of the beholder, it was thought
far better to tie states down to speciﬁc rules and treaties into which morality (rival
versions of good and evil) did not stray
...
Now,
thanks primarily to the crude actions of this American administration but also to
the willingness of important liberals to embrace the ‘moral’ language, we are back
in a pre-rule phase where, in effect, despite the liberals’ best hopes, anything goes
...
Various
axes of evil bestride the world, with the exact centres of evil depending entirely on
where you are standing
...
But the signs are that the mood is turning and that resistance to this
narrative is gathering momentum
...
Rice during a visit to Europe in December 2005
...
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Ghraib and conceding a little in the face of international opinion, the Bush administration has returned to the traditional U
...
approach to torture, that of plausible
deniability
...
Even better would be a move,
possibly led by the European Union42 or the Council of Europe, for far better enforcement of the Convention against Torture, and for the punishment of those states –
allegedly some of them European – that have facilitated the U
...
desire to ill-treat
captives in a deniable way
...
S
...
K
...
44 Perhaps this is a consequence of the exposure of the faultiness of much of the intelligence with which
the general public in both countries were persuaded to back the invasion and occupation of Iraq
...
But the subject of human
rights will not be truly safe until the language of terrorism, and with it all dangerous talk of good and evil, is removed entirely from political rhetoric and from national
and international law
...
And for either of these outcomes to be regarded even
as possibilities, a just solution must ﬁrst be found to the political problems in Palestine
and Israel
...
A
...

2 For an elaboration on what follows see C
...
Gearty, ‘Terrorism and Morality’,
European Human Rights Law Review (2003), 377
...
1 is a good case in point
...
N
...
37
(A/57/37), 11 February 2002
...
Saul, ‘Deﬁning “Terrorism” to Protect Human Rights’, Fride Working Paper, Madrid
2006
...

6 Human Rights Watch, World Report 2006 (New York: Human Rights Watch and
Seven Stories Press, 2006)
...
See his The Age of Terrorism (London:
Weidenfeld and Nicolson, 1987) where he makes this point about terrorism groups generally and not just the PLO
...
Fisk, Pity the Nation: Lebanon at War (London: A
...

9780719079740_C03
...
Guelke, The Age of Terrorism
and the International Political System (London: I
...
Tauris Publishers, 1995)
...
Netanyahu, ed
...
See also B
...

11 S
...

12 Terrorism: How the West Can Win (note 10), ix
...
Wardlaw,
Political Terrorism: Theories, Tactics and Counter-Measures, 2nd edn
...

14 S
...
Francis, The Soviet Strategy of Terror (Washington DC: The Heritage Foundation, 1981)
...
Luttwak, The Grand Strategy of the Soviet Union (London: Weidenfeld and Nicolson,
1983)
...
Goren, The Soviet Union and Terrorism (London: Allen and Unwin, 1984)
...
Becker, The Soviet Connection: State Sponsorship of Terrorism (London: Institute for
European and Defence and Strategic Studies, Occasional Paper No
...

18 U
...
L
...
H
...
Halperin and I
...

19 C
...

20 W
...
, The New Terrorism (London: Mansell Publishers, 1986), ix
...
9
...
pmo
...
il/PMO/Archive/Speeches/2001/09/Speeches5175
...
Many thanks
to Abigail Eshel (M
...
student, 2005–6) for ﬁnding the quotation and for the
translation
...
Burnett and D
...

23 For further details, see C
...
Gearty, ‘11 September 2001, Counter-terrorism and the
Human Rights Act’, Journal of Legal Studies 32 (2005), 18
...
K
...
Ewing, ‘The
Futility of the Human Rights Act’, Public Law (2004), 829
...

25 Ibid
...

26 C
...
Gearty, ‘Human Rights in an Age of Counter-Terrorism: Injurious, Irrelevant or
Indispensable?’, Current Legal Problems 58 (2005), 31
...

28 Guardian, 18 November 2005
...

30 The deﬁnitive account is Mark Danner, ed
...
There is a good summary by A
...

31 See K
...
Greenberg, ‘Secrets and Lies’, The Nation, 26 December 2005, 40
...
Klein, ‘ “Never Before!” Our Amnesiac Torture Debate’, The Nation, 26 December 2005, 11–12
...

9780719079740_C03
...
Levinson, ed
...
A
...
Roth and M
...
, Torture: Does It Make Us Safer? Is It Ever OK? (New York: The New Press,
Human Rights Watch, 2005); A
...
Dershowitz, Why Terrorism Works: Understanding
the Threat, Responding to the Challenge (New Haven: Yale University Press, 2002)
...

35 The Lesser Evil: Political Ethics in an Age of Terror (Edinburgh: Edinburgh University
Press, 2004)
...
A
...
)
36 The Lesser Evil (note 35), 34
...
, 8
...
, 144
...
Chandler, From Kosovo to Kabul and Beyond: Human Rights and International
Intervention, new edn
...

40 ‘The War of the Liberals’, The Nation, 14 November 2005, 29
...
Oberleitner, ‘A Just War Against Terror’, Peace Review 16 (2004), 263
...
U
...

43 See M
...

44 Thus both the U
...
Parliament and the American Senate have recently taken liberal initiatives, on detention and torture respectively
...
Secretary of State for the Home Department (No
...
See www
...
parliament
...
htm
...
K
...

9780719079740_C03
...
From Guantánamo Bay to Belmarsh, human rights are seen as increasingly disposable in the name of preserving democracy against terrorism
...
Yet as Lord
Hoffmann recently put it: ‘The real threat to the life of the nation
...
1
Terrorism poses grave dilemmas for democratic governments
...
Yet as Chief Justice
Barak stated when the Israeli Supreme Court struck down torture: ‘It is the destiny of democracy that not all means are acceptable to it, and not all practices
employed by its enemies are open before it
...
Preserving
the Rule of Law and recognition of an individual’s liberty constitutes an important
component in its understanding of security
...
2
Lord Hoffmann and Chief Justice Barak are, sadly, increasingly lone voices in
a world in which counter-terrorism is seen as a ready excuse for giving up on human
rights
...
Gearty’s focus is on ideology
...
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internationally
...
By the same sleight of hand,
terror by the state is artfully reclassiﬁed as counter-terrorism, which is ‘inherently
good in the same way that terrorism is inherently bad’
...

Instead, it should be replaced ‘with a code of law that emphasizes the primacy of
the criminal model over that of emergency or national-security driven approaches’
...
He is also right to propose that it be replaced with a more
nuanced approach
...
Indeed, a
central mission of the paper seems to be to unmask those posing as champions of
the ‘good’ or ‘counter-terrorism’ and show them up as perpetrators of true ‘terrorism’;
while those currently labelled as ‘evil’ or ‘terrorist’ should be recognized as ‘good’
and victims of overwhelming power
...
On his account, one country, Israel, aided and abetted by the U
...
, has masterminded the rhetoric of terrorism
...
S
...
Having unmasked the real source of evil, he argues that ‘terrorism’ can be
seen to be the ‘weapon of the weak’
...
against anybody’
...
For the Arab countries who attempted to eliminate Israel by
conventional wars, the ‘ruthless implacability of the Israeli reaction’ meant that acts
of political violence, ‘on occasion very bloody it is true’ were just a consolation prize
against the ‘lavishly equipped’ Israeli army, ‘which used extreme, terror-inducing

...
S
...

His passing mention of Syria’s ‘abysmal human rights record’ and its unlawful interference with Lebanon is immediately countered by his depiction of Syria as the next
in a series of victims of U
...
aggression
...
Demonization of Israel and the corresponding elevation of al-Qaeda and other groups reintroduces the language of good and evil in a
way which does Gearty’s own argument for the primacy of human rights a great
disservice
...
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101

ical events are represented as straightforward conﬂicts between right and wrong
...
Israel’s illegal occupation of the West Bank and Gaza and its use of
disproportionate force in its response to attacks are rightly condemned by international law as breaches of human rights
...
But to cite these abuses
as justiﬁcations for the acts and rhetoric of those carrying out violence against innocent civilians is an unhelpful distortion
...
Thus Gearty cites statements of right-wing Israeli leaders without
mentioning the stream of statements by both governments and sub-state groups
declaring their commitment to the destruction of Israel
...
We shall enter it with its soil saturated in blood’
...

The immediate aim: perfection of Arab military might
...
3 Nor have these in any sense waned in recent years
...
It is only
by accounting for the full complexity of the struggles in the Middle East that a
credible role for a human rights approach can be re-established
...
On the contrary, to focus on Israel alone is to negate the very real
claims to human rights protection of victims of other perpetrators of terror, whether
state or sub-state
...
More difﬁcult to access but equally problematic are actions of
state terror committed by governments which give little access to the international
press
...
Lebanese dissidents accuse Syria of consistently carrying out terrorist attacks in Syria, killing civilians and assassinating political leaders, culminating in a series of assassinations of high-proﬁle Lebanese leaders
in 2005
...
N
...
5 In addition, Syria
regularly suppresses its own dissidents
...
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solitary conﬁnement; the ‘disappearance’ following arrest of many Syrian and Lebanese nationals; the constant and ‘duly substantiated’ allegations of torture including
cases in Syrian prisons, and violation of the right to fair trial in trials conducted by
the State Security Court and the military courts
...
7 Gearty’s brief mention of Syria’s
human rights record in the context of its vulnerability to U
...
attack belies the very
cogent claim of these people to human rights protection
...
Particularly problematic is the fact that
Darfur gets no mention at all, rendering entirely invisible the effects of a combination of state and sub-state terrorism, leading to one of today’s ‘worst humanitarian crises directly caused by war crimes and crimes against humanity for which
the Sudanese government is responsible’
...
The result has been the
brutal killing of hundreds of thousands of black Sudanese and a further 1
...
Amnesty concludes that ‘there is a large amount of
information pointing at the responsibility of the Sudanese government in the human
rights violations committed in Darfur
...
It has engaged
in arbitrary arrests, incommunicado detentions, “disappearances” and torture in order
to punish human rights activists, lawyers, leaders and members of communities in
Darfur
...
9
It is particularly unfortunate that Gearty has chosen to devote this lecture largely
to a polemical account of the history of the language of terrorism and counterterrorism, rather than using his piercing mind and considerable legal skills to address
the very real challenges to human rights created by violent acts targeted at innocent civilians
...
However, he gives little clue as
to how this would operate
...
K
...
Given that terrorism laws are unlikely to

9780719079740_C03
...
However,
in view of the acute danger that ‘terrorism law’ will dilute human rights, it is deeply
disappointing that Gearty does not use this occasion to develop his model, either
to establish how to ensure that a criminal model complies with human rights or to
show how his model can work at an international level, involving both state and
sub-state actors
...
It is not enough to refer to a criminal model, since criminal models can themselves breach human rights, if they deﬁne
criminal action broadly or in vague terms, if they prescribe excessive or degrading
punishments, or if they subject the accused to long delays, poor legal representation or other similar procedural obstacles
...
First and foremost, the central principle of
human rights is that of human dignity
...
However
important or legitimate their cause, and however deep their grievance, both state
and non-state bodies commit a cardinal breach of this fundamental principle when
they kill and maim people as a means to further their political ends
...
The innocent person shot by a soldier or a policeman has been subject to a breach of their most fundamental rights
...
This is true
in Mumbai, in Barcelona, in London and in New York no less than in Tel Aviv, in
Gaza and in Baghdad
...

But equally, and implacably, human rights must stand up for the rights of those
accused of such terrorism
...
The fear and panic caused by arbitrary and random killings
of ordinary people in the name of a higher cause have led many to argue for an
exceptional approach, a justiﬁcation for breaches of human rights
...
To counter such responses, human rights must hold the line unﬂinchingly
...
Collective punishment
cannot be condoned; nor can detention without proof of guilt
...

9780719079740_C03
...
In Britain, the
Joint Committee on Human Rights has made a useful start
...
10 Ultimately, however, human
rights can only operate in a framework in which all can accept that conﬂict must
be resolved through rights
...

Similarly, constitutional human rights have been a key part of the replacement of
apartheid by a democratic settlement in South Africa
...
As the closing paragraphs of South
Africa’s Interim Constitution put it in 1993, truth and reconciliation is a bridge
between ‘the past of a deeply divided society characterised by strife, conﬂict,
untold suffering and injustice, and a future founded on the recognition of human
rights, democracy and peaceful coexistence and development opportunities for all
South Africans, irrespective of colour, race, class, belief or sex’
...
It is a challenge which has to be faced by moving forwards from revenge politics to reconciliation through objective and consistent application of human rights principles, both in rhetoric and reality
...
Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 W
...
R
...

2 Public Committee Against Torture in Israel v
...
C
...
C
...
C
...
C
...
C
...
C
...
C
...

3 Alfred J
...

4 www
...
org/Terror/Syrian%20Terrorism%20Against%20Lebanese
...
209, at www
...
org/News/dh/docs/
mehlisreport/
...
amnesty
...

7 http://web
...
org/library/eng-syr/index&start=1
...
amnesty
...

9 Ibid
...
publications
...
uk/pa/jt200506/jtselect/jtrights/240/24002
...

11 Constitution of the Republic of South Africa Act 1993, s
...

9780719079740_C04
...
More accurately: the governments of some of these countries are conducting a war against terrorists
...
The most notable attack until then was the car bomb attack on the
U
...
embassies in Dar es Salaam and Nairobi of 7 August 1998, which killed 257
people including 12 U
...
citizens
...

Why wage war against these terrorists? Offhand, one might think that such
a grand response to terrorism is undeserved
...
K
...
S
...
S
...
K
...
And even in the U
...
in 2001, the corresponding ratio
was about one in 750, that is, 0
...
It would seem that even a small increase
in the effort to combat cardiovascular disease, cancer, road accidents, or any of
several other, similar threats would do much more to protect our survival and
well-being, at lower cost, than revving up the war on terror
...
1 Since 2001,
the Global Fund to Fight AIDS, Tuberculosis and Malaria, funded by all willing
governments and devoted to combating diseases that kill about 6 million people
each year, has committed about $10
...
05 billion
...
Between 2001 and 2006, the U
...

government alone has spent $438 billion on the war on terror
...
S
...
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fatality
...
Such a war on poverty and disease would also avoid the substantial
human costs of the war on terror: some 5,000 coalition soldiers have been killed
and several tens of thousands wounded in Iraq and Afghanistan
...

So why is terrorism being taken so seriously? This question requires nuances
...
And we need to differentiate the various groups involved in this war
...
One explanation is that public attention to terrorism serves important domestic constituencies
...
Their economic success depends on their ability to attract the public’s attention; and it is vastly easier to attract the public to stories about terrorists
and their plans and victims than to stories about cancer and cancer victims or to
stories about trafﬁc accidents
...
They can gain greatly increased attention, authority and deference from
a frightened public as well as acquiescence when they withhold information, increase
surveillance, disrespect civil liberties, and curb political opposition
...
5 Many non-Western governments have eagerly followed
our example, often defending severe violations of basic human rights as necessary
responses to terrorist threats
...
Assume simplistically that a country’s political power depends on three components: military might (capacity for violence),
economic might, and international moral standing
...
S
...
Japan is strong economically relative
to its military and moral strength
...
Now, how much each of the three
components contributes to political power depends on the regional or global environment
...

9780719079740_C04
...
The political leaders of such
countries with comparatively greater military strength therefore have a further
incentive to foster an international climate of conﬂict and hostility
...

These points are worth further thought because, by playing up terrorism in pursuit of their own ends, our media and politicians are helping the terrorists achieve
exactly what they want: attention and public fear
...

II
Those ordinary citizens in the U
...
and U
...
who have been supporting the war
effort, at least tacitly, are a different matter
...
But this more prudential reason does not explain the enormous
public attention paid to terrorism, nor the great cost, in terms of money and basic
freedoms, that many citizens seem willing to bear to combat terrorism, because the
war on terror is not a cost-effective way of protecting our health and survival
...
They may not realize
how small terrorism’s damage has been, and how costly the countermeasures
...
This judgement lends special urgency
to ﬁghting this terrorism as the effort promises not merely a reduction in the risk
of harm each of us is exposed to, but also the suppression of a dreadful moral evil
...

Is it correct to consider these terrorist attacks especially heinous and thus to
attach such disproportional importance to suppressing them?
Before examining this question in section III, let us address a prior concern
...
They ﬁnd it obvious that these terrorist
attacks are very wrong
...
They feel that the question:
‘What is wrong with these terrorist attacks?’ suggests that these attacks are among

9780719079740_C04
...
And they ﬁrmly reject this
suggestion
...
Even if we
are perfectly certain they are wrong, understanding why is still important for two
reasons
...

The ﬁrst reason has to do with moral theorizing
...
When this happens, we engage
in moral reﬂection
...
John Rawls has analysed this ordinary method
in some detail and has compared it to how we make difﬁcult judgements in linguistics
...

In this way, some of the rules we try out will be conﬁrmed and others refuted
...
6
With this method, which Rawls calls reﬂective equilibrium, our most ﬁrmly held
convictions, collectively, are the standard by which we judge difﬁcult questions
...
This requires that
we generalize from these most ﬁrmly held convictions
...
A conﬁrmed moral principle helps us understand why
these attacks are wrong, or what makes them wrong
...

III
So what is wrong with terrorist attacks such as the ﬁve I described at the outset?
As a ﬁrst approximation we might say that what makes these attacks presumptively
wrong is that, foreseen by the agent, they harm and even kill innocent people
...
By calling a person innocent, I mean that this person poses no threat and
has done nothing that would justify attacking her with lethal force
...

But they could not have reasonably believed this of the great majority of the

9780719079740_C04
...
They clearly foresaw that their conduct would harm and kill
many innocent people
...

We need not claim that it is always wrong to do what one foresees will harm
or kill innocent people
...

Justiﬁcations of this kind come in two types
...
We can give
this type of justiﬁcation for a doctor who administers a live vaccine to 10,000 children while knowing statistically that roughly one or two of them will die from the
resulting infection
...
With justiﬁcations of this type, it is enough
that the expected good should outweigh the expected harm so that there is a net
expected gain for each person affected
...

Justiﬁcations of the second type assert that the harm done to innocent people
is outweighed – not by some good for these same people – but by a greater good
of some other kind
...
But I ﬁnd such absolutism implausible
...
Similarly, the aerial bombardment of cities may be justiﬁable when this is the only means of defence against a horrible aggressor state
...
Such philosophers might approve of killing 19 children when this is the
only way of saving 20 others
...
When the greater good an agent intends to achieve with her
action will not be a good for the innocent persons this action will harm, then that
good can justify the action only if it greatly outweighs the harm this action foreseeably inﬂicts
...
) For such a justiﬁcation to succeed, it is further required, of
course, that the harm be necessary for achieving the greater good in question, so
that the same good could not have been achieved using any other less harmful means
...
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Can such a justiﬁcation be provided for the terrorist attacks at issue? I believe
not
...
This we cannot do
...
This exercise may give us a clearer sense of
how we might respond to other such justiﬁcations yet to be advanced
...
The terrorist attacks were meant to discourage the U
...
and other
Western countries from supporting these regimes, especially through the stationing of troops in their territories, and to boost the morale of those who are seeking
to overthrow these regimes
...
A third
justiﬁcation appeals to the alleged good of punishing Western countries for their
past and present support of Israel and/or of dictatorial and un-Islamic Middle Eastern
regimes
...
It must
show that the alleged good really is a good
...
It must show that the
value of this contribution greatly outweighs the foreseen harms to innocent people
...

The quickest and clearest way of seeing that these justiﬁcations fail focuses on
the fourth burden of proof
...
In
fact, the manner and timing of the attacks suggest that such harm was intended
...
The terrorists could have attacked their
U
...
targets early on a Sunday morning, for instance, when the World Trade
Center area would have been nearly deserted
...
On the contrary, by signalling clearly their intent to spare innocent people as far as reasonably
possible, the terrorists would have made local and Western citizens less unreceptive to their ends and grievances, and would still have demonstrated their terrifying capabilities and willingness to die for their cause
...

We might remember in this context that the disregard for the lives of innocent
persons is not a deﬁning feature of terrorism and is in fact absent from much

9780719079740_C04
...
The IRA and ETA frequently issued bomb warnings beforehand in order to minimize harm to persons
...
Thus Kaliaev abandoned his ﬁrst attempt to kill Sergei
Aleksandrovich when he saw that the Grand Duke had his niece and nephew, two
children, in his carriage
...

To this it may be objected that the terrorists and their supporters may feel that
no justiﬁcation is needed for their killing of innocent people
...
When one’s enemy in war employs immoral methods, then it is morally
permissible to employ the same methods in return
...
8 The basic idea is that an agent in a competitive context is not required to
observe constraints that other, competing agents fail to observe
...
If you have various
agreements with another person, for instance, and he turns out routinely to violate
these agreements whenever it suits him, then you are not morally required to honour your agreements with him when it does not suit you
...

You are not morally permitted to violate your agreements with one person because some other person has violated his agreements with you
...
A man is not permitted, for example, to rape the daughter
of his own daughter’s rapist
...
A person
can forfeit ordinary moral protections against being harmed only through something she herself has done, not through the actions of another
...

Interestingly, Osama bin Laden has professed to share these sentiments in his
early denials of any involvement in 9/11
...
As a Muslim, I try my best to

9780719079740_C04
...
I had no knowledge of these attacks, nor do I consider the killing
of innocent women, children and other humans as an appreciable act
...
Such
a practice is forbidden even in the course of a battle’
...
10
IV
To show that the terrorist attacks were morally unjustiﬁable, I have focused on the
weakest link in the purported justiﬁcations for them: any plausible purpose of the
attacks could have been achieved with much less harm to innocent civilians
...
I do not believe that they can
...

Perhaps there were some people among the victims who, in the eyes of the terrorists,
were sufﬁciently guilty to deserve death
...

The attacks were far too indiscriminate for that – both by making no effort to include
speciﬁc persons perceived as guilty and by making no effort to exclude persons who
were clearly innocent
...
11 To justify the attacks as punishment of guilty individuals, the terrorists would have to assert something like this: ‘It is better that ten
innocent persons be killed than that one guilty person should continue to live’
...

The attacks might be understood as collective punishments of a group, presumably
a country, serving the aim of deterring this country, and others, from continuing
their foreign policies relating to the Middle East
...
But are such reprisal killings a good? Is it appropriate to punish Australia and Spain for their – let us assume: wrongful – foreign
policies by killing a random selection of their citizens? Such lopsidedly distributed
punishment of groups is known from history – from the Roman practice of decimating a military unit, for example, typically for cowardice or insubordination
...

Moreover, even if such a randomly biased group punishment were a good thing,
one would still need to show that this good is large enough greatly to outweigh the
harm done to innocents
...
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113

government’s foreign policy
...
In the Bali attack, about one-ﬁfth of the victims were locals and another ﬁfth
were tourists from non-target countries
...
S
...

Did these attacks, or could they reasonably have been expected to, weaken Israel
or the rulers of Saudi Arabia or other disliked rulers in the Middle East, for
instance by deterring Western support? The terrorist attacks have predictably
increased, certainly in the U
...
, sympathy and support for Israel: for Israel’s security wall, settlement expansion and checkpoints in the West Bank as well as for Israel’s
policies of targeted assassinations and deadly reprisals against civilians in the occupied territories and abroad (Lebanon, most recently)
...
To be sure, the terrorists of September 11 would
have welcomed the demise of Saddam Hussein’s regime in Iraq, which their
attacks facilitated; but they would not have welcomed the way he fell, the occupation of Iraq by Western troops, or the emerging successor regime
...
The terrorist attacks
did accelerate Western acceptance of the ﬁrst acquisition of nuclear weapons by a
Muslim country
...
None of these Western reactions is surprising
...

V
I have brieﬂy presented my reasons for believing that the ﬁve terrorist attacks in
focus were morally unjustiﬁable acts of mass homicide
...
Other candidate greater goods might be adduced, or modiﬁcations of my account of what a successful justiﬁcation would need to show might
be proposed
...

But this is no reason for us to suspend moral judgement
...
Their pronouncements are laden with moral and religious language that presents their conduct as justiﬁable, even noble, and urges others to

9780719079740_C04
...
Such statements imply a responsibility to justify their attacks
...
But they do owe a justiﬁcation to their innocent victims and to the innocent friends and families of such
victims
...

Put yourself in the position of someone who is involved in planning an attack
that he foresees will kill many innocent civilians
...
Such a moral person
would think very hard indeed before killing large numbers of innocent people
...
For a religious
person, especially when he is about to act in the name of his religion, there is the
further need to make quite certain that he has really used his God-given capacities
to the fullest so as to reassure himself that his planned action really accords with
God’s will
...
As bin Laden has
said, these attacks killed innocent human beings and Islam strictly forbids harming innocent human beings even in war
...
Some serious
thought is certainly required for a genuinely religious person conscientiously to reach
the conclusion that these attacks accord with God’s will
...
He would want to give his reasons, at least after the fact (and thus perhaps
after his own death)
...

He would want other Muslims not merely to follow his example, but to do so with
a full appreciation of why this really is the will of God
...
A genuinely religious person seeks to live in accordance with God’s will,
in accordance with what his religion requires
...
These two goals are distinct because of the possibility of error
...
This would be hubris in
regard to morality, and blasphemy in any theistic religion
...
We have no beliefindependent access to the truth
...
To
the person who seeks to live in accordance with what she believes to be God’s will,

9780719079740_C04
...
To the person who
seeks to live in accordance with God’s will, by contrast, nothing matters more
...
And even when she gets it wrong nonetheless, she will
at least have done her best to get it right by making full use of the faculties and
other resources God had endowed her with
...
Such a full justiﬁcation will
then be examined and discussed by others whom it will help either to follow the
agent’s example conscientiously, with full appreciation of the reasons why it may
or should be followed, or else to avoid the error he had committed in good faith
...
They
trafﬁc heavily in the language of morality and holiness, but there is no evidence that
they have seriously thought about what their religion requires of them
...
They do indeed seem strongly committed – after all,
many of them are willing to die for the success of their attacks
...

There would need to be reﬂective answers to questions such as: Why is this a holy
war? Who counts as an enemy in this holy war, and why? What is one allowed to
do in a holy war to enemies and to the uninvolved? There is, and has been for centuries, sophisticated treatment of such questions among Islamic scholars
...
They
seem to be quite unconcerned to rule out what I have called the most terrifying
possibility for a genuine believer: the possibility that one might be mistakenly killing,
in God’s name but against God’s will, hundreds of innocent human beings who,
no less than oneself, are God’s creation
...
It
was wrong of them to harm large numbers of innocent civilians for no compelling
purpose
...

Placing these two wrongs side by side, you may think that the latter pales to insigniﬁcance
...
This
discussion will also bring out the second reason why it is so very important for us

9780719079740_C04
...
We are in the same boat with the terrorists in the sense
that we use moral language just as they do
...
And we have a moral responsibility, just as they do, to take great care
to ensure that the important decisions we make are not merely ones that we, however
sincerely, believe to be morally justiﬁable, but also ones that we can actually justify
...
In all too many cases, however, such
language is used only to advance personal or group interests
...

This is quite common in politics
...
Without any
further explanation of what makes B’s behaviour unethical, this is rather too easy
a way of scoring political points
...
A remains at liberty, should she be found to have accepted some
free trip herself, to say that her conduct was not unethical because of its different
purpose, different destination, different sponsor, or whatever
...
Many seek to take advantage of
morality to inﬂuence the sentiments and conduct of others while avoiding any interference by morality in the pursuit of their own ends
...
And yet, this common abuse of morality is of great
importance, as we recognize when we consider it, as I will now do, from three perspectives: from the perspective of morality itself, from the perspective of agents,
and from the perspective of our society and culture
...
Though substantive in content, this central imperative ﬂows from
understanding what it means to have, not some particular moral commitments, but
any moral commitments at all
...

Some agents who disregard the central imperative are ones who simply set aside
moral considerations and moral language altogether – and typically behave badly

9780719079740_C04
...
Let us set them aside, for they are fringe groups in the contemporary
world
...
They appeal to morality in bad faith, without a sincere willingness
to work out what morality requires and thus in deﬁance of its central imperative
...
Abusing morality in this way, they are
not merely bad people, behaving badly, but unjust people, behaving unjustly
...
Such actions are not the worst violations of
the law
...
Similarly, acting under colour of morality – misrepresenting oneself as
motivated by a sincere commitment to morality in order to advance one’s own ends
– is not the worst violation of morality, but one that strikes at its very heart
...
The content of religion becomes whatever the agent declares it to be
...

Imagine a society whose public culture is dominated by people of this sort –
trafﬁcking heavily in moral language without any respect for morality’s central imperative
...
Such moral appeals are made
on all sides
...
The political effect of all the moral language thrown around
depends then on media access and acting skills
...
And to remain unencumbered with regard to other policies
one might want to defend simultaneously or in the future, one must do all this without assuming any further, possibly inconvenient substantive moral commitments
...

We ﬁnd it in much of the Arab world
...
K
...
S
...
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as well
...

This is not to deny that there is a great deal of serious moral discourse going on,
not merely in universities, but also within other (for instance religious) associations
and in political fora such as in some committees of the United Nations and of various national legislatures
...
This may not seem like a calamity comparable to terrorism
...

When moral language degenerates into just one more tool in the competitive
struggle for advantage, then this struggle becomes ultimately unconstrained
...
But
all these constraints are soft and ﬂexible, themselves subject to indeﬁnite modiﬁcation through the use of political power
...
This problem
is well explicated in Rawls’s discussion of a modus vivendi
...
16 But even without such an overlapping consensus, there can at least be that trust among adversaries which comes from
recognizing one another as genuinely moral agents who are at least committed to
their own morality
...

VII
We can now appreciate the promised second reason for considering it important
– even if we have not the slightest doubt – to articulate the grounds of our ﬁrm
belief that these ﬁve terrorist attacks were heinous acts; to articulate our understanding
of why these attacks are wrong, or what makes them wrong, as I have tried to do
earlier
...
This is crucial for being moral persons, rather
than persons acting under colour of morality
...

9780719079740_C04
...
Occasionally, such scepticism comes with sympathy for and even celebration of the terrorists
...
Their scepticism involves the
judgment or suspicion that we are moralizing in bad faith, that we are interested
in morality when this serves to win us support or sympathy or at least acquiescence,
but that we have no interest in the moral assessment or adjustment of our own conduct and policies
...
But before presenting
some evidence to support their case, I should state clearly two points that I am not
making and in fact strongly reject
...
My moral condemnation of such attacks is based on the harms they inﬂict on innocent civilians,
who do not become permissible targets for lethal attack by wrongful policies of –
even their own – governments
...
My main point in discussing our governments’ conduct and policies is to show that our politicians take
momentous action, in our name, without any effort to apply the morality they profess in our name to decisions that cry out for moral justiﬁcation
...

Let me illustrate the point by recalling some well-known highlights of the
‘global war on terror’ (GWOT) as orchestrated by the U
...
and U
...
governments
...
The suggestion was, and still is, that the
success of the war effort requires that most of this effort be exempt from public
scrutiny and that even the scope of this exemption should not be disclosed
...
K
...
18
An early episode in the GWOT was the overthrow of the Taliban regime in
Afghanistan
...
This ‘Northern Alliance’ had been
losing the civil war against the Taliban, but massive Western air support, funding,
and U
...
teams of special forces turned the situation around in its favour
...
S
...
Between 960 and 3,000 of them died
in agony from heat, thirst, and lack of oxygen
...
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and all bodies buried in a huge mass grave
...
20 While insisting on a full investigation of the mass graves at
Srebrenica, Western governments blocked any ofﬁcial inquiry into the mass grave
at Dasht-e Leili; and the mass murder of surrendering Taliban has now been
largely forgotten in most parts of the world
...
22
The U
...
and U
...
governments defended their 2003 invasion of Iraq, once again,
as a necessary component of the GWOT
...
Hussein’s regime had been
responsible for horrendous human rights violations, including massive chemical
weapons attacks against Iraqi and Iranian civilians
...
At that time, our governments
were on friendly terms with Saddam Hussein – though the U
...
, eager to prolong
the war, sold weapons and intelligence to Iran as well (the ‘Iran-Contra Affair’)
...
S
...
K
...
Labelled ‘unprivileged combatants’, ‘unlawful enemy combatants’ or
‘security detainees’, these people have been routinely humiliated and degraded at
will by coalition personnel: stripped naked, forced to masturbate and to simulate
sex acts, abused with dogs, shackled in excruciating positions, kicked and burned,
beaten with electric cables, hooded and deprived of human contact for months, and
tortured with electric shocks, drugs, sleep deprivation, induced hypothermia and
‘water boarding’ (simulated drowning)
...
S
...
24
A second contributing factor is that civilian contractors, who have played a major
role in the abuse of civilians, can act with near total impunity
...
26
Accounts from former prison personnel make clear that, on the contrary, much of
the abuse was systematic and deliberate, encouraged and condoned up the chain
of command,27 with the objective of breaking resistance to the occupation trumping any concern for protecting the innocent
...
S
...
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121

innocent of any armed resistance to the occupation of Iraq or any serious crime
that might conceivably justify their horrendous treatment
...

There are many facilities outside of Afghanistan and Iraq where perceived
enemies of the West are held indeﬁnitely
...
S
...
United Nations ofﬁcials have been
trying to inspect this prison since it opened in 2002, but have declined the option
to visit without full access and the opportunity to conduct private interviews with
detainees
...
S
...
30
The U
...
government asserts that the prisoners it holds at Guantánamo Bay are
not entitled to Geneva Convention protections31 and intends to try them by military
commissions
...
S
...
[N]ot
only is testimonial hearsay and evidence obtained through coercion fully admissible,
but neither live testimony nor witnesses’ written statements need be sworn
...
S
...
S
...
33
The Court also found that trial by military commission as contemplated violates
Article 3, common to all four Geneva Conventions, which requires that any punishments inﬂicted must be pursuant to a ‘judgment pronounced by a regularly
constituted court affording all the judicial guarantees which are recognized as
indispensable by civilized peoples’
...
S
...
35 Whether this legislation will survive impending Supreme Court scrutiny remains to be seen
...
37 At these ‘black sites’
our governments are imprisoning so-called ghost detainees – unknown numbers
of unknown persons for unknown reasons under unknown conditions
...
But it would

9780719079740_C04
...
Common sense
suggests that, once persons have been caught in the secret prison system, their
captors are reluctant to release them even when they become convinced of their
innocence
...

The U
...
is of course the main ‘partner country’ in this system of secret detention and torturous interrogation whose victims have no rights of any sort
...
K
...
S
...
K
...
K
...
K
...
38 The U
...
government
relied, in the ﬁrst few years of the GWOT, on a 50-page memorandum signed by
Assistant Attorney General Jay S
...
This memorandum comments at length
on the legal obligations of U
...
military personnel under the International Covenant
on Civil and Political Rights and the Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment – both ratiﬁed by the U
...
– and
under implementing national legislation
...
Severe mental pain requires
suffering not just at the moment of inﬂiction, but it also requires lasting psychological harm, such as seen in mental disorders like posttraumatic stress disorder

...
40

The Bybee memo also asserts that, even when torture in this narrow sense is
used, ‘necessity or self-defense could provide justiﬁcations that would eliminate any
criminal liability’ and that judicial review of ‘interrogations undertaken pursuant
to the President’s Commander-in-Chief powers may be unconstitutional’
...
Even the inﬂiction of clear-cut torture is justiﬁable by appeal to necessity or self-defence
...

9780719079740_C04
...
S
...
42 The main change from the Bybee
memo is that the second and third lines of defence are now declared superﬂuous:
because the president has directed U
...
personnel not to engage in torture, it is unnecessary to consider whether torture is justiﬁable and whether the courts have the
authority to stop torture ordered by the president
...
It thereby follows the Bybee memo in ignoring that what the U
...

has signed and ratiﬁed is a convention against torture and other cruel, inhuman, or
degrading treatment or punishment, and in ignoring as well that the U
...
has signed
and ratiﬁed the Geneva Conventions whose common Article 3 prohibits not only
torture but also ‘cruel treatment’ and ‘outrages upon personal dignity, in particular humiliating and degrading treatment’
...
44
Among the treatments coalition partners use and ofﬁcially classify as acceptable are:
Long Time Standing: This technique is described as among the most effective
...
Exhaustion and sleep deprivation are effective
in yielding confessions
...

Throughout the time in the cell the prisoner is doused with cold water
...
Cellophane is wrapped over the prisoner’s face and water is
poured over him
...
45

Another instrument in our war on terror is ‘extraordinary rendition’ in which
persons are transferred, without any legal process, to regimes known to practice
even more severe forms of torture
...

‘The ultimate destination of these ﬂights are places that, you know, are involved in
torture
...
If you
send a prisoner, for instance, to Egypt, you will probably never see him again, the
same way with Syria’
...
Coming from Tunis and headed for Montreal,
he was detained during a stop-over at John F
...
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Syria where he was held in solitary conﬁnement and brutally tortured on a regular
basis
...
47 The U
...
ambassador to
Canada, Paul Cellucci, commented that ‘the U
...
government will continue to deport
Canadian citizens to third countries if they pose a risk to American national security’
...
He was released somewhere
in Albania when his captors realized that his abduction was a case of mistaken
identity
...
S
...
K
...
People are being disappeared in the way people used
to be disappeared in Latin America under the military dictatorships of the 1970s
and 1980s
...
S
...
K
...
They do not know whether their loved ones are alive or dead
and, if alive, where they are being held, by whom, and how they are being treated
...
And these pictures cast a terrible light on our
words, such as these spoken on the occasion of the U
...
International Day in Support
of Victims of Torture: ‘The victims often feel forgotten, but we will not forget them
...
We
stand with the victims to seek their healing and recovery, and urge all nations to
join us in these efforts to restore the dignity of every person affected by torture’
...
Would we be worse protected and, if so, by how much, if we did
not transfer suspects to notorious torture countries? Would we be worse protected
and, if so, by how much, if we allowed judicial oversight involving at the very least
a public record of who has been detained as well as an opportunity for prisoners
to communicate with independent doctors and lawyers? Reﬂection on these questions suggests that the barbarity of our response to the terrorist attacks may well
be counter-productive by inciting more terrorism than it deters
...
Of

9780719079740_C04
...
But is there any evidence that those who design and implement coalition methods in the global war on terror have thought carefully about their moral
justiﬁability? Such serious reﬂection is what they would engage in if they were
genuinely concerned that their conduct – or let me say, our conduct, for they are
acting as our elected representatives in our names – be morally justiﬁable
...
This requires no more than the bald assertion that we are doing
the right thing, presented in appealing tones of sincerity and commitment
...

This is astonishing not merely in the GWOT case here under discussion, but in
U
...
and U
...
foreign policy more generally
...
These sanctions greatly reduced access to foodstuffs and
medicines for poor Iraqis and further degraded Iraq’s heavily damaged infrastructure, preventing the provision of electricity, water and sanitation with devastating
effects on the incidence of contagious diseases
...
S
...
N
...
I mean, that’s
more children than died in Hiroshima
...
It is a moral question, but the moral question is even a larger one
...
52

The interviewer left it at that, and the remarks drew scant media attention in the
U
...
and Europe and were not noted in Albright’s Senate conﬁrmation hearings
for Secretary of State that same year
...
53 In her biography, Albright expresses
deep regret about her remarks: ‘Nothing matters more than the lives of innocent
people
...
54
But if nothing matters more than the lives of innocent people, then why were
these very severe sanctions continued without regard to their effects on Iraqi

9780719079740_C04
...
55 The most
careful studies I have found are Richard Garﬁeld’s, who estimates that mortality
among children under 5 rose from about 40–45 per 1,000 in 1990 to about 125
per 1,000 during 1994–99 and stresses that many of the surviving children sustained
lasting damage to their health
...
57
In 1998, Denis Halliday, co-ordinator of humanitarian relief to Iraq and
Assistant Secretary-General of the United Nations, resigned after thirty-four years
with the U
...
Explaining his resignation, he wrote: ‘I am resigning, because the policy of economic sanctions is totally bankrupt
...
It is as simple and terrifying as that
...
I don’t want to administer a programme that results in
ﬁgures like these’
...
We all know that
the regime, Saddam Hussein, is not paying the price for economic sanctions; on
the contrary, he has been strengthened by them
...
What is clear is
that the Security Council is now out of control, for its actions here undermine its
own Charter, and the Declaration of Human Rights and the Geneva Convention
...
59 In 2000, Halliday’s successor, Hans von
Sponeck, also resigned, after thirty-two years of U
...
service, while harshly criticizing the sanctions regime as well as the dishonesty of the relevant ofﬁcials in the
Blair and Clinton governments
...
N
...
61
Nothing matters more than the lives of innocent people
...
Most of us would also agree that her, and our, ﬁrst responsibility is to our own country
...
Then,
when a choice must be made between promoting the interests of our country –
our government, citizens or corporations – and those of innocent people abroad,
we routinely prioritize the former without so much as examining the cost that our
choices will impose on the lives of the innocent
...
S
...
K
...
62 And in the same spirit our governments press their favoured economic
rules and policies upon the rest of the world
...
63 Protectionist trade barriers are unfairly depriving poor populations of a
decent livelihood
...
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power in developing countries, and lax banking laws facilitate massive embezzlement by these countries’ public ofﬁcials
...
66 In these cases and many more, our politicians take momentous
action, in our name, without any effort to apply the morality they profess in our
name to decisions that cry out for moral justiﬁcation
...
It appears that, outside a few insulated fora, the distinction between what
is morally right and what is believed and proclaimed to be so has all but collapsed
...

Notes
* This lecture was given in Oxford on 24 February 2006
...

1 See Erica Frank, ‘Funding the public health response to terrorism’, British Medical Journal 331 (2005), 526–7, arguing that recent shifts of public funds into counter-terrorist
efforts have a large negative impact on morbidity and mortality from natural disasters
and common medical conditions, and Nick A
...

2 The Global Fund to Fight AIDS, Tuberculosis and Malaria, ‘Current Grant Commitments and Disbursements’, 31 January 2008, available at www
...
org/
en/funds_raised/commitments
...
fas
...
pdf
...

5 A considerable diversity of Western responses should, however, be noted
...
C
...
1 (Farmington Hills, MI:
Macmillan Reference, 2006), 199–205
...

7 Later, Voinarovski declares with respect to the planned assassination of Admiral
Dubasov, the Governor-General of Moscow, that ‘if Dubasov is accompanied by his wife,
I shall not throw the bomb’ (Albert Camus, The Rebel: An Essay on Man in Revolt, tr
...
qxd

128

8

9
10
11
12

13

14
15
16
17

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Bower (New York: Vintage, 1956), 140; Richard B
...
Savinkov similarly
opposes an attempt to kill Dubasov on the St
...
Later, when escaping from a Czarist prison, the same
Savinkov reportedly ‘decides to shoot any ofﬁcers who might attempt to prevent his ﬂight,
but to kill himself rather than turn his revolver on an ordinary soldier’ (ibid
...
Lukas Meyer (Baden-Baden, Germany: Nomos,
2004)
...
g
...
robert-ﬁsk
...
htm
...

In the formulation of Sir William Blackstone: Commentaries on the Laws of England, facsimile of 1st edn
...

On 22 September 2001, George W
...
See Robert S
...
Arkin, Hans M
...
1 (January 2002), www
...
com/coms2/summary_028624952646_ITM
...
In the case of Moses, perhaps, when God appeared to him, or in the cases
of Jesus or Mohammed or even their immediate followers or disciples
...
So the possibility of errors in understanding the Divine will as
revealed by Muhammad is certainly a real possibility in our time, as the diversity of schools
and interpretations amply conﬁrms
...

See, for example, Khaled Abou El Fadl, ‘Islam and the Theology of Power’, Middle East
Report 221 (2001), 28–33
...
Donald M
...

(Farmington Hills, MI: Macmillan Reference, 2006)
...
(New York: Columbia University Press,
2005), lecture 4
...
The Justice Department’s public report stated that the FBI issued 9,254 NSL requests in calendar year 2005
...
xix, www
...
gov/oig/

9780719079740_C04
...
pdf)
...
aclu
...
html
...
mirror
...
uk/news/tm_objectid=16397937&method=
full&siteid=94762&headline=exclusive–bush-plot-to-bomb-his-arab-ally-name_page
...
cnn
...
01
...
The U
...
had bombed
Al Jazeera stations twice before: 2001 in Kabul and 2003 in Baghdad, killing one
reporter
...
globalpolicy
...
htm, reporting on the surrender at Konduz of 25 November
2001; Physicians for Human Rights, Preliminary Assessment of Alleged Mass Gravesites
in the Area of Mazar-I-Sharif, Afghanistan (Boston and Washington: 2002), www
...
org/library/documents/reports/report-massgraves-afghanistan
...
informationclearinghouse
...
htm
...
N
...
Rory McCarthy, ‘U
...
Afghan Ally “tortured witnesses to
his war crimes” ’, Guardian, 18 November 2002, www
...
co
...
html
...
The rapes targeted the Pashtun community from which
the Taliban had derived much of their political support
...
news
...
co
...
stm
...

amnestyusa
...
do) and Human Rights Watch, Fatally
Flawed: Cluster Bombs and Their Use by the United States in Afghanistan (2002),
www
...
org/reports/2002/us-afghanistan; ‘Killing You is a Very Easy Thing for Us’:
Human Rights Abuses in Southeast Afghanistan (July 2003), www
...
org/reports/
2003/afghanistan0703; ‘Enduring Freedom’: Abuses by U
...
Forces in Afghanistan
(March 2004), www
...
org/reports/2004/afghanistan0304; Afghanistan: Killing and
Torture by U
...
Predate Abu Ghraib (20 May 2005), www
...
org/english/docs/
2005/05/20/afghan10992
...
See also Uranium Medical Research Center, UMRC’s
Preliminary Findings from Afghanistan and Operation Enduring Freedom (April 2003),
www
...
net/os/downloads/AfghanistanOEF
...

Coalition personnel took hundreds of photographs and video clips of the abuses they
inﬂicted on their captives; the most horriﬁc ones were never published, but shown
at closed hearings to members of the U
...
Congress
...
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Show Dead Iraqis, Torture and Rape’, Age, 14 May 2004, www
...
com
...
html; Neil Mackay, ‘Iraq’s Child Prisoners’,
Sunday Herald (Glasgow), 1 August 2004, www
...
org/security/issues/iraq/
attack/law/2004/0801childprison
...
humanrightsﬁrst
...
pdf; Human Rights Watch, Leadership Failure: Firsthand Accounts of
Torture of Iraqi Detainees by the U
...
Army’s 82nd Airborne Division (September 2005),
www
...
org/reports/2005/us0905 and ‘U
...
Operated Secret “Dark Prison” in Kabul’,
Human Rights News, 19 December 2005, www
...
org/english/docs/2005/12/19/
afghan12319
...
amnesty
...
web
...
org/
library/index/engmde140012006; Eric Schmitt and Carolyn Marshall, ‘Task Force 6–26:
Inside Camp Nama
...
S
...
nytimes
...

html?res=F30617FC34550C7A8DDDAA0894DE404482
...
This videotaping was kept secret from the
September 11 Commission, whose chairmen now feel betrayed by the CIA (Mark
Mazzetti: ‘9/11 Panel Study Finds That C
...
A
...
nytimes
...
html)
...
miamiherald
...
html)
...
navytimes
...
In 2006,
20 per cent of army recruits, over 50 per cent of marine recruits, 18 per cent of navy
recruits, and 8 per cent of air force recruits needed moral waivers to enlist (Lolita
C
...
go
...

25 Tens of thousands of private security contractors have enjoyed ofﬁcial immunity
from prosecution in Iraqi courts (under Order 17, passed by the U
...
-led Coalition
Provisional Authority in 2004) and de facto immunity in U
...
courts
...
S
...
See Human Rights First, Private Security Contractors at War: Ending the Culture of
Impunity (2008), at www
...
info/pdf/08115-usls-psc-ﬁnal
...
The U
...

Congress ﬁnally curtailed the de facto immunity of contractors in October 2007
...
See the
Human Rights Watch brieﬁng at www
...
org/english/docs/2004/05/05/iraq8547_txt
...

9780719079740_C04
...
He was sentenced to 45 days in jail
...
nytimes
...
html
...
hrw
...

27 Leadership Failure (note 23) and ‘No Blood, No Foul’: Soldiers’ Accounts of Detainee Abuse
in Iraq (July 2006), available at www
...
org/reports/2006/us0706
...
time
...
htm, and especially Jameel Jaffer and Amrit
Singh, Administration of Torture: A Documentary Record from Washington to Abu Ghraib
and Beyond (New York: Columbia University Press 2007)
...

msnbc
...
com/id/10895199
...
informationclearinghouse
...
htm
...
unhchr
...
nsf/view01/52e94fb9cbc7da10c1257117003517b3?opendocument
...
S
...
S
...
However, it is our very own government that requested the
International Committee of the Red Cross (ICRC) to visit with the detainees’
(www
...
org/news/in/intllaw/guantanamo1
...
ICRC visits take place on
the understanding that its reports remain conﬁdential and are conveyed only to select U
...

authorities
...
Its contents are described in Neil A
...
nytimes
...
html?ex=1259470800&en=825f1aa04c
65241f&ei=5088&partner=rssnyt
...

nytimes
...
html
...
ccrjustice
...
pdf, and Detention in Afghanistan and Guantanamo
Bay: Composite Statement of Shaﬁq Rasul, Asif Iqbal, and Rhuhel Ahmet (26 July 2004),
www
...
ca/articles/RAS408A
...
See also the extensive testimony
of Jumah al-Dossari in Amnesty International, U
...
A
...
S
...
amnesty
...
qxd

132

31
32
33
34
35
36

37

38

39

40
41
42

43
44

45

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December 2004, available at www
...
com
...
html
...
pbs
...
html
...
Rumsfeld, 548 U
...
__ (2006), 50–1, majority opinion written by Justice
Stevens, available at www
...
gov/opinions/05pdf/05-184
...

Ibid
...

Ibid
...

Military Commissions Act of 2006, Public Law 109–366, 120 STAT
...
loc
...
pdf
...
washingtonpost
...
html?hpid=topnews
...
amnesty
...
See also Mark Benjamin, ‘Inside the CIA’s Notorious “Black sites” ’,
Salon, 14 December 2007, available at www
...
com/news/feature/2007/12/14/
bashmilah
...
amnesty
...

See Jay S
...
S
...
sects
...
S
...
ﬁndlaw
...
ﬁndlaw
...

pdf
...

Ibid
...

Ibid
...
U
...
C
...

2340–2340A, Ofﬁce of Legal Counsel, U
...
Department of Justice, 30 December 2004,
available at www
...
gov/olc/18usc23402340a2
...

Text of the Geneva Conventions at www
...
org/Web/Eng/siteeng0
...

John Yoo, a major contributor to the Levin memo, provided this defence on 2 May 2005
(http://webcast
...
edu/event_details
...
In its Article 4,
the Fourth Geneva Convention speciﬁes that ‘persons protected by the Convention are
those who, at a given moment and in any manner whatsoever, ﬁnd themselves, in case
of a conﬂict or occupation, in the hands of a Party to the conﬂict or Occupying Power
of which they are not nationals’ – excepting only ‘Nationals of a state which is not bound
by the convention’ (www
...
org/ihl
...

Brian Ross and Richard Esposito, ‘CIA’s Harsh Interrogation Techniques Described’, ABC News, 18 November 2005, available at http://abcnews
...
com/WNT/
Investigation/story?id=1322866&page=1
...
qxd

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46

47

48

49

50

51

52
53

133

the Nazi Gestapo, and water boarding was a technique commonly used by Pol Pot’s
Khmer Rouge in Cambodia
...
bbc
...
uk/
nol/shared/bsp/hi/pdfs/15_02_05_renditions
...
Cf
...
S
...
guardian
...
uk/afghanistan/story/0,1284,1440836,00
...
“We pick up a suspect or we arrange
for one of our partner countries to do it
...
If you want
a good interrogation, you send someone to Jordan
...
Either way, the U
...
cannot be blamed as it is not doing
the heavy work” ’
...
ararcommission
...
pdf
...
He was then ﬂown to Guantánamo Bay, where he continues to be conﬁned without charge or trial four years later
...
K
...
independent
...
uk/world/americas/article3239372
...

See CBC News, ‘U
...
Won’t Change Policy on Deportations to Third Countries:
Ambassador’, 4 December 2003, available at www
...
ca/news/story/2003/12/04/
cellucci_passport031204
...

See Neil A
...
I
...
Seeks Reinstatement of Suit’,
New York Times, 29 November 2006, A15, available at http://select
...
com/
gst/abstract
...

George W
...
N
...
whitehouse
...
html
...
K
...
telegraph
...
uk/news/worldnews/middleeast/iraq/1501319/Secret-MoD-pollraqis-support-attacks-on-Bntrsh-froops
...

CBS, 60 Minutes: Punishing Saddam, aired 12 May 1996
...
S
...
See Phil Hirshkorn, ‘Bomber’s

9780719079740_C04
...
S
...
cnn
...
bombings
...

Madeleine Albright, Madam Secretary: A Memoir (New York: Miramax Books, 2003),
275
...
casi
...
uk/brieﬁng/pamp_ed1
...

Richard Garﬁeld, interview by Columbia News, 3 March 2000, available at www
...
edu/cu/news/media/00/richardGarﬁeld/index
...

See www
...
org/frontlineworld/stories/iraq/sanctions
...

Quoted in John Pilger, ‘Squeezed to Death’, Guardian, 4 March 2000, available at
www
...
co
...
html
...

See Hans von Sponeck, A Different Kind of War: The U
...
Sanctions Regime in Iraq (Oxford:
Berghahn Books, 2006)
...
zmag
...
htm) are more fully articulated in her essay, ‘The Humanitarian Situation in Iraq, the Humanitarian Program “Oil for Food”, and Human Rights’,
CSCA Web, July 2001, available at www
...
org/csca/english/petxalim-ddhh-eng
...

‘The Pentagon
...
S
...
S
...
washingtonpost
...
Jack Straw, U
...
Secretary of State for Foreign and
Commonwealth Affairs, concurred, stating that ‘in the conditions that exist in Iraq
...
of the overall civilian
casualties’ and that, in any case, the U
...
has no obligation under international humanitarian law to make such an assessment (Jack Straw, written ministerial comment,
17 November 2004, Hansard, 426/57 (2004), available at www
...
ca/news/background/iraq/casualties
...
) No credible unofﬁcial ﬁgures exist for the civilian death
toll in Afghanistan
...
A coalition airstrike hit a home in
Afghanistan’s Kapisa province, killing nine members of a family, Deputy Gov
...
The military said two bombs hit a compound that
armed militants were seen moving into after a rocket attack on a U
...
base
...

Col
...
usatoday
...
art
...
Unofﬁcial tallies of civilian deaths in Iraq record at
least 80,000 reported deaths since the 2003 invasion with the assumption that the true
number is considerably larger (www
...
org)
...
qxd

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63
64

65
66

135

excess civilian deaths between 18 March 2003 and June 2006 (with a 95 per cent
conﬁdence interval of 392,979 to 942,636), including 601,027 deaths from violence
...
thelancet
...
pdf, 6
...
S
...
K
...
K
...
See Owen Bennett-Jones, ‘Iraqi Deaths Survey “was robust” ’, BBC News, 26 March
2007, available at http://news
...
co
...
stm
...
Stiglitz, Globalization and Its Discontents (New York: W
...
Norton, 2002)
...
worldbank
...
pdf
...
Baker, Capitalism’s Achilles Heel (Hoboken, NJ: John Wiley, 2005)
...
Correa, ‘Implications of Bilateral Free Trade Agreements on Access to
Medicines’, Bulletin of the World Health Organization 84 (2006), 399–404, available at
www
...
int/bulletin/volumes/84/5/399
...
Correa, ‘Public Health and
Intellectual Property Rights’, Global Social Policy 2 (2002), 261–78, http://gsp
...

com/cgi/reprint/2/3/261; and Thomas Pogge, World Poverty and Human Rights, 2nd
edn
...

9780719079740_C04
...
Like everything he writes, it is notable for its lucidity, directness and conviction
...
Both parties, he argues,
use moral language to vindicate their conduct, but they use it insincerely, because
they make no serious attempt to explain how the principles they claim to stand for
apply to that conduct
...
S
...
K
...

So, a plague on both your houses: it is hard to disagree with the main charges
that Thomas brings
...
Initially he seems inclined
to explain this reaction in terms of the interests of the news media, who see terrorist attacks as attention-grabbing, and of leading politicians, who can use the new
climate of fear to enhance their states’ prestige and freedom of manoeuvre internationally
...
Ordinary citizens regard
these attacks as ‘exceptionally heinous’, and Thomas does not think they are
wrong to believe this
...
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137

are necessary means to some greater good – and ‘necessary’ implies that all of the
killing and wounding involved were unavoidable
...
This is in
contrast to some earlier terror campaigns, such as those of the IRA, where attempts
were made to minimize harm to civilians
...
In principle, it may be justiﬁable to inﬂict
harm on a small number of people for the greater good of a much larger number
– even to kill the few to save many more lives, if there is no alternative (Thomas
is neither a strict deontologist nor a strict consequentialist)
...
If they had, they would have seen immediately that the end they sought did not justify the means
...
They too have failed the moral arithmetic test
...
Perhaps what we are witnessing is not so much a serious failure of moral arithmetic as a rejection of the whole moral outlook that lies behind
that arithmetic, in particular the idea of the equal value of all human lives
...
The only
question that needs to be asked, from their point of view, is whether the attacks
serve or set back the general cause on whose behalf they are launched (forcing the
U
...
to withdraw from the Middle East, forcing Israel to withdraw from Palestinian
lands, etc
...

Thomas argues that the terrorists have made no serious attempt to engage in religious discourse about what God commands in relation to killing and harming innocent human beings
...
Even if the
people who commit these acts have not immersed themselves in the study of the
Qur’an and the interpretive writings that come after it, there are others who have
and who are willing to offer advice
...
But one inﬂuential strand, usually labelled
Revivalist Islam, has developed a doctrine of jihad that allows the killing of innocent civilians when this is part of a defensive war against non-Muslims who are occupying or attacking Muslim lands
...

9780719079740_C04
...
They are not merely
careless in their moral arithmetic, or negligent in discovering what their religious
duty prescribes; they are acting consistently on a doctrine that denies that their victims have moral standing
...
How should liberals react when they have to confront people who hold such
views? Must they continue to treat them according to standard liberal principles?
The answer is not obvious
...
1

In other words: the key question is whether someone is subject to ‘the ties of the
Common Law of Reason’, which for Locke meant recognizing human equality, and
the universal reach of natural law and natural rights
...
He forfeits the protection of his human rights; our duty to respect such
rights only extends to those who remain within the boundaries of ‘the Common
Law of Reason’
...
They would argue that human rights
are inalienable, and therefore retained even by those who declare indiscriminate
war on their fellow human beings
...
But unlike Locke,
they would not agree that once someone has ‘discovered an Enmity to your being’
you may take whatever measures are necessary to destroy him
...
He is not an absolutist
...
Yet he is convinced that actions taken by Western states in the course
of the war on terror, in prisons and detention centres, for example, are morally
unjustiﬁed
...
One is that many of those held
are perfectly innocent, having been taken on the basis of false information, or
simply the bad luck of being in the wrong place at the wrong time
...
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139

where is innocent, which is highly implausible, but he is clearly on strong ground
in pointing out that the absence of proper legal procedures in these facilities has
meant that many innocent people have been held for long periods in intolerable
conditions
...
Suppose,
though, that some of those captured are terrorists who acknowledge no moral constraints themselves in their dealings with inﬁdels
...

This is the moral high ground, and it is easiest to occupy when you are in no imminent danger yourself from the Wolves and Lyons
...
It is important that these
things are made public and that we ask ourselves how they could be justiﬁed
...

In the ﬁnal part of his essay, Thomas discusses the sanctions regime that the
U
...
imposed on Iraq in the 1990s, and makes it clear that he ﬁnds the defence of
these measures offered by Madeleine Albright (essentially that they were the lesser
evil when compared to military action against Saddam Hussein’s regime) wholly
unacceptable
...
In condemning these sanctions, he once again places himself on the moral high ground
...
N
...
Without disputing any of these propositions, it is their juxtaposition that may give us pause for thought
...
qxd

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what alternatives were available? I have yet to hear a plausible answer to this question, and Thomas certainly does not offer one here
...
His topic is the moral hypocrisy of terrorists and Western governments
...

Note
1 J
...
P
...

9780719079740_C05
...
These events have been discursively connected by talk about
‘international terrorism’ and ‘the war on terror’, a connection hotly contested ever
since it surfaced in speeches by U
...
president George W
...
1 I do not here intend to contribute to the multifaceted debate about the ‘war on terror’, though I do align myself
with the cosmopolitan democratic critique of it
...
2 I was struggling with these issues when the 2006 war between Israel and Hezbollah broke out
...

In the ﬁrst part of this paper, I consider Mary Kaldor’s distinction between ‘old’
and ‘new’ wars in an attempt to address this point; in Kaldor’s view, precisely the
contraction of the distinction between war and terrorism is a mark of ‘new’ wars
...
But towards the end of the ﬁrst section I
argue that terrorism and war have a shared logic; they both derive from a belief in
the efﬁcacy of violence in politics and a consequent assumption that violence can
therefore justiﬁably be relied on
...

I do so through a discussion of the ‘supreme emergency exemption’ usually invoked
to justify the strategic targeting of civilians in war; in other words, to justify setting
aside the norm that is invoked to distinguish war from terrorism
...
Those who endorse it
may ﬁnd themselves endorsing terrorism by non-state agents too
...
qxd

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relating to such violence must be politicized
...
I nevertheless believe that one can do nothing better than remind people about the agency
we can wield in politics, circumscribed as it may be
...
The recent war between Israel and Hezbollah lasted
34 days; it was extensively covered, frequently in real time
...
This included the spectacle of Hezbollah – considered by many to
be a terrorist organization3 – publicly announcing its intention to target Israeli civilians
...
Because Hezbollah’s Katyusha rockets cannot be calibrated effectively,
many missed their targets and landed in empty ﬁelds
...
Meanwhile the spokesperson of the Israeli Defence
Forces (IDF), a state-based army, was seen announcing the IDF’s intention to avoid
Lebanese civilian casualties
...

These facts might be thought to speak for themselves
...
It asserts that the level of ‘collateral damage’ it inﬂicted was a function of Hezbollah’s locating its infrastructure
and ﬁghters in densely populated areas
...

Sensibilities and expectations relative to war have changed since World War I,
a phenomenon now embodied in international treaties and law that suggest a conscience troubled by the costs of war, especially in human suffering
...
Around 30 million civilians died in the
World War II, forming about 50 per cent of all casualties
...
Estimates for Iraq, for example, are staggering
...
6
Moreover, the immediate exposure of this suffering by a media with global scope
makes it impossible to not consider it as an essential part of any conceptualization
of war
...
8 This was the time of ‘old wars’ shaped
by other distinctions – many of them modern in origin, such as the distinction between

9780719079740_C05
...
As Kaldor points out, these distinctions are being undone and remade as a result of globalization
...
This is the norm that terrorism in its present form is deﬁned as violating
...
And in Kaldor’s view, today’s wars are all ‘new
wars’
...
13 This does not mean eliminating violent
conﬂict; it means realigning it through the formation of international forces that
would become responsible for the defence of the world’s population
...
14 The
formation of such forces would require international co-operation and a willingness to abjure a notion of sovereignty to which the right to wage war is integral
...
Today, states entering an ‘old’ war will almost inevitably ﬁnd themselves
involved in terrorism as the ‘old’ war degenerates into a ‘new’ one
...
Few states will renounce so
central a part of their sovereignty as the right to wage war
...
Those I envisage leave the right to wage war intact
...
(Or perhaps I should say that they do
not occur between functional states perceived as such by the majority of their populations
...
They also include strong
international co-operation among police forces and enhancing the capacities of
transnational bodies such as the U
...
to respond to terrorism
...
But it
is important to emphasize that it can only work within democratic frameworks that
secure a complex set of human rights and offer many avenues for accountability
...
20
Global injustice has grown with globalization and is among the motivations of
terrorism
...
But not even in combination do they account
for terrorism
...
But
terrorism is ﬁrst and foremost tactical or strategic21 and presupposes a belief in the
efﬁcacy of and consequently the justiﬁed reliance on violence
...
qxd

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one variant of a belief in the efﬁcacy of and consequent justiﬁable reliance on coercion through violence and thus shares its logic with realist strategic thinking
...
23 This is a strategy that most of today’s states follow
...
National
military spending worldwide is now about $800 billion
...
S
...
Domestically this comes to nearly
30 per cent of the U
...
budget
...
S
...
25 The Bush administration recommitted the United States to maintaining and using nuclear weapons and integrating
them in ﬂexible ways with a conventional arsenal to produce a high level of offensive capabilities
...
S
...
26 At the same time, the Bush
administration has decreed that deterrence can no longer be understood in its Cold
War sense but must be reformulated to include anticipatory self-defence and preventive war
...
27 Currently
Iran is cited as the archetype of the rogue state
...
S
...
28
II
My claim about the fundamental similarity of outlook between terrorism and realism in international relations is an uncomfortable one and I should like to ﬁnd a
counter-argument
...
What is that difference? According to the current popular consensus, the distinctive quality of terrorism is that it targets civilians
...
It constructs a morally charged conception of terrorism, one that indirectly relies on the jus in bello30 principle differentiating between combatants and
civilians
...
It is, nevertheless, used by many ethicists to
mark terrorism out
...
And this requires one to believe that war,
despite its growing lethality to civilians and the enormous ‘collateral’ damage it inﬂicts,
is profoundly different from terrorism
...
There are by now many documented
cases of military operations in which disregard for the distinction between combatants

9780719079740_C05
...
I already described the relevant aspects of
the 2006 war between Israel and Hezbollah
...
Others will believe that both sides were wrong from
the very beginning, having no just cause and failing to engage with each other through
diplomatic routes as required by jus ad bellum
...
32
As is well known, during World War II both sides targeted civilians
...
K
...
S
...
S
...
34 These norms will
have to accommodate the common moral judgements of World War II
...
But this notion seems suspicious from the
outset
...
36 Even Israel has outlawed both hostagetaking/the use of live shields and torture in majority decisions of the Israeli Supreme
Court
...
37 Given the
moral intuitions in question, the possibility of morally justifying the permissibility
of targeting civilians during a war seems highly unlikely, and this suggests, I
believe, that even if violence is deemed efﬁcacious, the tendency has been to suspect and constrain it
...
The argument as a whole has been for a ‘supreme emergency exemption’ from the jus in bello principle of discrimination
...

9780719079740_C05
...
However, some traditional jus ad
bellum criteria can still be used to make sense of the notion of an unprovoked attack
...
To take one example, the German take-over of
Czechoslovakia and its invasion of Poland were clearly unprovoked
...
It requires one to predict the kind
of conduct most likely to be motivated by pain and hardship and suggests that a
dual relationship holds between individual motivation and collective action on the
one hand and popular action and policy on the other
...
39
The third condition is the most problematic since it assumes that the defender
ought to have more than an equal chance of winning the war and therefore awards
the defender something more than a right to act in self-defence
...
In the case of individuals, the innocence of the
defender with respect to an unprovoked attack has been invoked to index the
defender’s relevant difference
...
It cannot be used in any other way since
fundamental equality is assumed to exist between sovereign polities, an understanding
that dates back to the 1648 Treaty of Westphalia
...
43
He is prepared to extend this justiﬁcation to the end of the Battle of Stalingrad in
February 1943, when the trajectory of the war was still unclear
...
This is so because some values and institutions are
better than others; their special quality is being liberal or liberal-democratic or a near
approximation thereto
...
44 Nazism, on the other
hand, exempliﬁed values and institutions that it was unreasonable to defend
...
45
I sympathize with Rawls’s argument because I share his conviction that liberal
democracy (with a more egalitarian bent than he argues for) is a good regime and,
moreover, I think that it is an important historical accomplishment
...
If one ascribes

9780719079740_C05
...
46 The case
for the special merit of liberal democracy is value-laden or pragmatic and usually
both
...
The evidence on
the subject is quite uncontroversial
...
If one cannot confer such right, one cannot make sense of the
‘supreme emergency exception’ and its licence for intentional targeting of civilians
during war
...

Michael Walzer has recently reassessed his own arguments in favour of the
‘supreme emergency exemption’
...
He believes that a serious threat to the ‘ongoingness’ of a community
constitutes a ‘supreme emergency’ and as such overrides the values and principles
that otherwise restrain strategies of war
...
50
Walzer believes that he can avoid excessive appeals to the ‘supreme emergency
exemption’ by insisting that it is very restrictive
...
51
I note that Walzer ﬁnds a way to argue for the rightness of the Mutual Assured
Destruction (MAD) nuclear strategy adopted by the superpowers during the Cold
War
...
52
Norms and their relative strength at any given time can determine a state’s choices
and conduct
...
53 The ‘supreme emergency exemption’, as Walzer, Rawls and others have
stated it, may contribute to this weakness
...

III
The norms requiring that belligerent parties discriminate between combatants and
civilians during war have been strengthened and weakened since World War II
...
54 Legal and ethical training for ofﬁcers and cadets
may have enhanced the effectiveness of these norms
...
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and indeed the planet itself as hostages of their strategy of nuclear deterrence
...
57 The unqualiﬁed support by some on the Left for terrorism
deployed in anti-colonial and liberation struggles, beginning with Algeria, has had
a similar effect
...
59
There is a tendency to think that the strengthening of norms such as the jus in
bello principle of discrimination requires more ethical training for military and other
security personnel
...
But it cannot be sufﬁcient when beliefs
about and reliance on the efﬁcacy of violence are so strong
...
By politicization, I mean critical engagement with these normative understandings in multiple political settings
...
Norms can be protested, debated
and professed
...
They can be enacted and embodied
in art as a demonstration of their value or as a contestation
...
And if norms are to function as a vital social
force, people must be aware of and have a stake in them
...

Politics is the alternative to violent coercion as a means of attaining all political ends, including the security of individuals and collectivities, a more just distribution of resources and burdens, the recognition of cultural uniqueness, and a greater
share in the possibility of a good and ﬂourishing life
...

More especially, it can undermine the prevailing trust in the efﬁcacy of violence as
a justiﬁable means to political ends
...
60 Of course,
they have much in common: at their core is conﬂict in which two or more sides
manoeuvre for control
...
Coercion, though, is tolerable in politics when the political culture, public sphere
and political institutions facilitate people’s participation in determining the policies that affect their lives – in political entities where people can, in general, reach
workable temporary compromises that many will seek to remake
...
But there are other political arrangements in which people get an effective say about what is important to them and have a chance of reaching acceptable compromises
...
These feelings tend to make bridging

9780719079740_C05
...
And bridging is indispensable to the
political compromises that yield workable results; it cushions loss and helps the
defeated to wait for another chance rather than reject the rules of the game
...
Fear, anger and resentment settled into place
after 11 September 2001 and have led to pervasive support for the Bush administration’s isolationist nationalism and unilateralism
...
67
Wendy Brown offers an analysis of resentment in politics68 that can, I think, be
applied to fear and anger as well
...
When resentment enters politics, it does so
in the form of an identity politics focused on the victimization of one’s group
and one’s self
...
Such groups become increasingly self-centred
and eventually reject political negotiation
...
69 Both refer to
conﬂict
...
Agonists
struggle to win political power and deﬁne the political agenda while accepting certain rules within which their struggle for hegemony is to take place
...

For a declining world power like the United States, mobilizing people around
a politics of fear, anger and resentment can help to maintain its hegemony – which
is now that of an antagonist counting on its destructive capabilities
...
These feelings are being
mobilized all over the world and not only in the United States
...
It is hard
to make sense of Palestinian crowds cheering during missile attacks on Israel during the Gulf War on other grounds
...
In
terrorism, antagonism ﬁnds a ﬁtting expression
...

IV
But there remains an important difference between terrorism and war
...
Politicians,

9780719079740_C05
...
Terrorists cannot
...

The importance of such accountability is that it is political
...
Looking into the question of Nazi responsibility in the
aftermath of World War II, Hannah Arendt wrote that a clue for the practice of
post-war politics could be found in a Jewish ‘Yom Kippur’ prayer and practice:
Perhaps those Jews, to whose forefathers we owe the ﬁrst conception of the idea of
humanity, knew something about that burden when each year they used to say ‘Our
Father and King, we have sinned before you’, taking not only the sins of their own
community but all human offences upon themselves
...
Rather in fear and trembling, have
they ﬁnally realized of what man is capable – and this is the precondition of any
modern political thinking
...
But I believe that courage of this kind
can still be found in everyday life and therefore continue to trust politics as the space
of responsibility
...

1 Al Jazeera suggests that the phrase ‘war on terror’ was ﬁrst used in the late nineteenth
century by the Russian police with reference to Russian anarchists
...
(Aljazeera
...
01
...
aljazeera
...
Its goal may be economic gain, as for example in
Sierra Leone
...
Terrorism with political goals is normally called ‘political terrorism’
...
See Hannah Arendt’s On Violence (New York: Harcourt Brace, 1970)
...
It rejects the intentional targeting of civilians other than Israeli civilians
...

5 See www
...
org (accessed January 2007)
...
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151

6 For a panorama of civilian suffering in the twentieth century, see Eric Hobsbawm’s The
Age of Extremes: A History of the World, 1914–1991 (London: Michael Joseph and Pelham
Books, 1994)
...

8 Mary Kaldor, New and Old Wars: Organized Violence in a Global Era (Stanford:
Stanford University Press, 1999), 13–30
...
There are some disputes regarding the distinctions Kaldor draws
...
Kalivas’s ‘ “New” and “Old” Civil Wars: A Valid Distinction?’, World
Politics 54 (2001), 99–118
...

9 In the traditional ethics of war, the principle of discrimination between combatant and
non-combatant proscribes intentional harm to civilians
...
See the U
...
website at www
...
org/webspecials/civilprotect/
sec1cp1
...

11 On the historical changes undergone by terrorism, see Walter Laqueur’s Terrorism: A
Study of National and International Political Violence (Boston: Little Brown, 1977) and
No End to War: Terrorism in the Twentieth Century (New York: Continuum, 2003)
...
opendemocracy
...
Kaldor’s position is unintentionally supported by General Rupert Smith’s The Utility of Force: The
Art of War in the Modern World (New York: Alfred A
...

13 Some do argue that terrorism is not distinctive
...
1 (2006), 1–17
...

15 On the importance of such sovereignty for today’s states see Norrin M
...
V
...
4 (2004),
512–26
...
But see the challenge to this position
by Joanne Gowa in Ballots and Bullets: The Elusive Democratic Peace (Princeton:
Princeton University Press, 2000)
...
See Thomas P
...
Barnett, The Pentagon’s New Map: War and Peace in the
Twenty-First Century (New York: Berkley Books, 2004)
...
II of the Club de Madrid Series on Democracy and
Terrorism
...
It is available at www
...
org/cmadrid/index
...
In 2002, Daniele Archibugi and Iris Marion Young developed similar suggestions
...

One can ﬁnd suggestions of this sort throughout the literature on terrorism by liberal/leftleaning advocates of global democracy
...
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18 See for example the U
...
action at www
...
org/terrorism (accessed September 2006)
and the European Union action at www
...
int/t/e/legal_affairs/legal_co-operation/
Fight_against_terrorism (accessed September 2006)
...
See David
Luben’s ‘The War on Terrorism and the End of Human Rights’, Philosophy and Public
Affairs 22
...

20 See Addressing the Causes of Terrorism, vol
...

21 Most standard deﬁnitions of terrorism call attention to its means, ends and logic and
therefore deﬁne terrorism as a strategy or tactic
...
But he does so
because he is interested in a moral deﬁnition of terrorism that includes negligent or reckless uses of violence against non-combatants by both states and non-state agents
...
(London: Pluto, 2002)
...
But, with the exception of the liberals who prioritize diplomacy, they share
certain assumptions about the priority of brute force in the relations between states
...
com/index
...
I access it periodically in order to measure
the daily sacriﬁce everyone is making in order to ﬁnance the Iraq War alone
...
S
...
They clearly diverge in their approaches to international relations
...
Bush’s neo-conservatism
has been criticized by some traditional conservatives as idealist rather than realist
...

26 See summary and excerpts of the 2002 Nuclear Posture Review at www
...

org/wmd/library/policy/dod/npr
...

27 See President Bush’s speech at West Point on 1 June 2002 at www
...
gov/
news/releases/2002/06/20020601-3
...

28 For interesting analyses of Iran see OpenDemocracy at www
...
net
(accessed December 2005)
...
It sufﬁces that they are not in a position to
respond to an attack in the way combatants are
...

30 The just war framework is traditionally divided into two distinct parts: one deals with
the justiﬁcation for war ( jus ad bellum) and one with acts during a war ( jus in bello)
...
For arguments that build on alternative intuitions, see Jeff McMahan’s ‘The Ethics of Killing
in War’, Ethics 114 (2004), 693–733
...
It has
many weaknesses
...
See the interesting discussion of other

9780719079740_C05
...

C
...
J
...
Lawrence C
...
Becker, 2nd edn
...
Several feminist ethicists have also invoked this principle
...
3 (2003), 164,
and Alison M
...
3 (2003),
176
...

See two works in particular on this point
...

There are World War I examples of the intentional targeting of civilians
...
Still, ideas about the strategic targeting of civilians ﬁrst began to emerge during World War I
...

Some discussion of these issues took place with respect to nuclear strategy especially
in its Mutually Assured Destruction (MAD) version
...
See, for example, a defence of hostage-taking/use of live shields by Jonathan
Schonsheck in ‘The End of Innocents: An Array of Arguments for the Moral Permissibility of a Retaliatory Nuclear Strike’, Journal of Social Philosophy 18 (1987), 14–25
...
See http://edition
...
com/
2003/LAW/03/03/cnna
...

The Israeli Supreme Court decided against torture in 1999 in HCJ5100/94 and against
various uses of civilians as hostages, live shields and the like in 2005 in HCJ3799/02
...
Both decisions can be downloaded at http://elyon1
...
gov
...
html (accessed February 2005)
...
There have been few criticisms of the 2005 decision
...

In The Evolution of Nuclear Strategy (New York: St
...

There was little factual evidence to support this strategic extension
...

For an example see Phillip Montague’s ‘Self-Defense and Choosing Between Lives’,
Philosophical Studies 40 (1981), 207–19
...
yale
...
htm (accessed April 2005)
...
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154

43

44

45
46

47

48

49
50
51
52

53
54
55
56

57

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defender’s innocence, see Cheyney Ryan’s ‘Self-Defense, Paciﬁsm, and the Possibility
of Killing’, Ethics 93 (1983), 508–24
...

Rawls builds on Walzer’s discussion of ‘supreme emergency’ in Just and Unjust Wars
(note 34), 251–68
...
Barbara S
...
Schwartzman (Lanham,
MD: Rowman and Littleﬁeld, 2005), 201–12
...
H
...
Riess
(Cambridge: Cambridge University Press, 1991), 93–115
...

Rawls’s argument in favour of liberalism has many critics
...
For a strong critique of the methodology more generally see Charles
Mills, ‘ “Ideal Theory” as Ideology’, Hypatia 20
...

My tendency is towards a pragmatic argument that I think does not escape a commitment to some values
...
See, for example, Robert A
...

I ﬁnd Hannah Arendt’s analysis of totalitarianism (which Rawls does not mention) quite
convincing in this regard
...
(New York:
Harcourt Brace, 1958), especially part 3 on totalitarianism
...

Walzer, Michael, ‘Terrorism: A Critique of Excuses’, ibid
...

I join my concerns to those of C
...
J
...

Walzer believes that realism stands in opposition to moral judgements and spends the
ﬁrst chapter of Just and Unjust Wars (note 34) attempting to convince his readers to
adopt a moral rather than a realist position
...

The Ethics of Destruction (note 52), especially 87–146
...
ohchr
...
htm and www
...
org/english/law/protocol2
...

For an example see descriptions of Philosophy studies at the U
...
Air Force Academy
at www
...
af
...

There are many studies of the superpowers’ nuclear strategies
...
Sokolsky in Getting MAD: Nuclear Mutual Assured Destruction, Its
Origins and Practice (2004) at the U
...
Army War College Strategic Studies Institute at
www
...
army
...
cfm?pubID=585 (accessed September 2005)
...
S
...
For an analysis of the Iran-Iraq War and U
...
involvement see Dilip Hiro’s
The Longest War: The Iran-Iraq Military Conﬂict (New York: Routledge, 1991)
...
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155

58 The most famous position in defence of terrorism was offered by Jean Paul Sartre in
his preface to Franz Fanon’s Wretched of the Earth (New York: Grove, 1965 [French,
1961])
...

59 For examples see various publications at the Center for Security Policy at www
...
org/ (accessed December 2006)
...
See On Violence (note 2)
...
Jane Mansbridge criticizes Arendt and others on this
point in ‘Using Power/Fighting Power: The Polity’, in Democracy and Difference:
Contesting the Boundaries of the Political, ed
...

61 I tend to an agonistic view of politics
...
I am more Arendtean in
my tendencies than Mouffe
...
See his Law of
Peoples (note 43)
...
brook
...

64 For a sense of the U
...
current and future military plans see Brigadier General Mike
Milano’s 2006 document ‘The Army in Transition’ which can be downloaded via a link
at www
...
org/tct/terrorism
...

65 See reports and current information at Amnesty International (www
...
org) and
Human Rights Watch (www
...
org)
...
aclu
...

67 News about Abu Ghraib broke in May 2004
...
S
...
N
...
Information about U
...
reliance on torture
by third parties has been given relatively little coverage
...
See also Judith Butler
‘Precarious Life’: The Powers of Mourning and Violence (London: Verso, 2004)
...

See her The Return of the Political (note 46) and the Democratic Paradox (London: Verso,
2000), as well as On the Political (note 61)
...
Silver’s Chaos and Governance in the Modern World
System (Minneapolis: University of Minnesota Press, 1999)
...
I refer to Arendt’s very impressive statement in my The Subject of Violence:
Arendtean Exercises in Understanding (Lanham, MD: Rowman and Littleﬁeld, 2002), 58
...
Larry May and Jerome Kohn (Cambridge, MA: MIT Press, 1996),
83–105
...
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Thomas Dublin

Response to Bat-Ami Bar On

Bat-Ami Bar On offers a thoughtful treatment of similarities and differences
between war and terrorism as both have evolved in the contemporary world
...
Drawing on the work of Mary Kaldor and on discussion of the recent
Israeli-Hezbollah War, she shows how difﬁcult it is nowadays to accept the frequently
cited distinction that warfare attempts to minimize civilian casualties while terrorism speciﬁcally targets the civilian population
...
As conducted by states, warfare is subject to state policies, which in turn may be supported or reversed by political action
...
can still be found in everyday life’
...

Bar On’s analysis certainly forces readers to think about the place of violence
in the contemporary world
...
For historians, and that is the perspective I bring to this discussion, the devil is in the details
...
In democratic states, leaders are accountable for acts of
aggression committed under their leadership, she argues; non-state actors are not
accountable to any constituency
...

Consider for a moment the various sorts of accountability that might have operated in the circumstances
...
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157

relation to the international demand that Iraq submit to monitoring and supervised
disarmament, but George W
...
He clearly
felt no need for their authorization
...
In addition, neither the
American Congress nor the British Parliament was able to muster the courage and
independence required to deny their nations’ executives the authority to launch the
war
...
This failure to hold the war-makers accountable occurred
despite massive, worldwide popular expression of opposition to war
...
1 Neither popular opposition nor the lack of United Nations sanction deterred the Bush administration in
its determination to displace Saddam Hussein
...

Yet developments in the United States dissuade one from an overly optimistic application of this principle
...
But the November 2006 elections in the U
...

provided a clear statement of popular opposition to the war in Iraq
...
In the Senate only a third of the seats were
contested, but still the Democrats emerged with a one-vote majority
...
In fact, during that period, the President implemented a
plan to increase the number of American troops deployed there, calling this a ‘surge’
rather than an ‘escalation’
...
Opinion polls ﬁnd President Bush’s popularity
at all-time lows, but neither Congressional efforts nor popular opinion have succeeded in holding the president accountable
...

The failure of mobilized public opinion to change the course of the war is due in
part to the generally craven behaviour of the mass media in the United States
...
American newspaper and television news have given George
W
...
Criticism has tended to be seen as ‘unpatriotic’

9780719079740_C05
...
American
reporters ‘embedded’ in the corps that went into Iraq have relied overwhelmingly
on Defense Department brieﬁngs while, by their reporting on presidential speeches
and news conferences, journalists have frequently served as mouthpieces for
the administration
...
The
response in the U
...
to Michael Moore’s ﬁlms demonstrates that there is a public
eager for the critical independence Moore demonstrates
...

Another measure of the administration’s unaccountability has been the failure
of the judiciary to stop the resort to torture, to compel the administration to abide
by the Geneva Conventions, or to guarantee a measure of due process in the
trials of ‘enemy combatants’ still detained at Guantánamo Bay
...

Periodically, individual judges have made rulings that challenge the administration’s
blanket assertions of unlimited power, and the Supreme Court has forced the
administration to backtrack and secure Congressional authority for its handling of
Guantánamo prisoners, but continued revelations call into question the fairness of
the military tribunals operating at Guantánamo
...
Neither international
public opinion nor court intervention has been able to assure due process to these
prisoners of war whom the administration refuses to treat as such
...

This discussion suggests some of the difﬁculties involved in drawing too sharp
a distinction between the war-making of states and the terrorism of non-state
actors on the grounds of political accountability
...

These realities in the relations between war, terror and politics undercut the measured upbeatness of Professor Bar On’s conclusion
...
bbc
...
uk/2/hi/europe/2765215
...

9780719079740_C06
...
If an act of which
we approve has features characteristic of terrorism, we will be careful to deny that
it is in fact an act of terrorism
...
So while we agree that terrorism is almost always wrong, we
sometimes disagree about what it is we are condemning
...
Acts of terrorism are intentional efforts to kill or seriously harm innocent
people as a means of affecting other members of a group with which the immediate victims are identiﬁed
...
Although the group against which terrorism is
directed is usually political in nature, it need not be
...

Because the term ‘terrorism’ is normatively loaded and therefore tends to be
used by people to describe their enemies whatever their enemies may do, there is
no deﬁnition that can capture all the many ways in which the term is ordinarily
used
...
Many of the deﬁnitions currently on offer in the literature
stipulate that the agents of terrorism must be ‘non-state actors’ (thereby conveniently
ruling out even the conceptual possibility that states can be guilty of terrorism;
the most that states can do is to ‘sponsor’ terrorism), or that the targets of terrorist
action must be non-combatants rather than, as I suggest, innocent people (thereby

9780719079740_C06
...
I think that these and other proposed restrictions on the notion of terrorism
are distortions that derive either from the dominant state-centred paradigm of international relations or from the theory of the just war which claims that combatants
are legitimate targets while non-combatants are not
...
I will discuss two
...
In the formal sense, a person is innocent when he has done nothing to
lose his right not to be attacked or otherwise harmed – that is, when he has done
nothing to make himself morally liable to attack
...
According to the regnant version of the theory of the just war, the criterion of liability to attack is posing a threat to another
...
Another common sense is ‘defenceless’
...
2
The appropriate sense, in my view, is ‘morally innocent’, by which, in this context,
I mean ‘not morally responsible for a wrong in a way that makes one morally liable
to attack as a means of preventing or correcting that wrong’
...
If we insist that a killer must believe his victim or victims are innocent
in order for his act to count as terrorism, we will have to concede that there are
fewer terrorists than we thought
...
Many appear, on the contrary, to accept
some doctrine of collective guilt that allows them to believe that all the members
of the group against which their action is directed are collectively inculpated
...

(It can, however, matter why the agent believes the victims to be non-innocent
...
An attacker who correctly
identiﬁes his victims but mistakenly believes that they are non-innocent is a terrorist
...
He is intentionally attacking people who are
in fact innocent with the intention of terrorizing other members of their group
...
)
It is worth stressing that it is a necessary feature of acts of terrorism not just
that they must be intended to kill people who are in fact innocent but also that the

9780719079740_C06
...
Consider, for example, a
person who bombs an abortion clinic intending only to prevent the killings of foetuses that would otherwise occur there
...
If an act of killing is purely
defensive, in that it is intended only to prevent the victim from causing harm, it is
not terrorism even if the victim is innocent
...
If, for example, the clinic bomber intends both to
defend foetuses and to punish the particular abortionists he kills, he is nevertheless a terrorist if he also intends to terrorize and intimidate other doctors who perform abortions
...
What most people think of as legitimate
acts of war also kill innocent people, and often on a scale much larger than that
which contemporary terrorists have so far reached
...

It is perhaps surprising that a distinction as important as that between terrorism
and just warfare could be a matter of what an agent’s intentions are rather than a
matter only of what he causes to happen in the world
...
These philosophers have adopted a variety of positions on
the distinction between terrorism and just war
...
4 Other philosophers who reject the relevance of intention to permissibility have been led by their rejection of terrorism in the direction of paciﬁsm,
while still others have openly endorsed the permissibility of terrorism in a wider
range of cases than most of us are willing to recognize
...
Nor will I explore the moral difference between

9780719079740_C06
...
But I will, as a means of understanding the moral
and legal status of terrorists, examine the moral difference between terrorism and
unjust war
...
It might be fought for a just cause but
be unnecessary for the achievement of that cause, or disproportionately destructive relative to the importance of the cause
...
I will refer to combatants who
ﬁght for an unjust cause as ‘unjust combatants’ and to combatants who ﬁght in a
just war as ‘just combatants’
...
When unjust combatants attack just combatants, they are attacking
people who are morally innocent, since those who merely defend themselves and
others against wrongful attack are not thereby guilty of a wrong that makes them
liable
...
Even if they mistakenly believe that their cause is just and
thus that their adversaries are not innocent, that should not exclude their being
terrorists, just as the abortion clinic bomber’s mistaken belief about the status of
his victims does not prevent him from being a terrorist, if his act is intended in part
to intimidate other abortionists
...
But those unjust combatants who do have that intention
seem to be counter-examples to my deﬁnition, since no one believes that they are
terrorists
...

It is, however, hard to discern relevant differences between an unjust combatant and the abortion clinic bomber who intends to terrorize abortionists generally,
and whom most will agree is guilty of terrorism
...
But these differences do not seem to constitute the
difference between permissible killing and terrorism
...

I suspect that our tendency to treat the clinic bomber but not the unjust combatant as a terrorist derives from our correct sense that terrorists deliberately
attack illegitimate targets together with the mistaken but widely accepted view that
all combatants are legitimate targets
...
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distorted our understanding of terrorism
...
Many Americans, for example, describe
the bombing of the Marine barracks in Lebanon in 1983 and the attack on the USS
Cole as acts of terrorism
...
S
...
Yet the attackers
could claim to be legitimate agents of national liberation acting against hostile forces
unjustly occupying their homeland
...
What
are they?
Unjust combatants by deﬁnition ﬁght in support of ends that are unjust
...
It is possible to use
terrorism, or terrorist tactics, in support of ends that are just
...
(The bombings of Hiroshima and Nagasaki were
also terrorist acts perpetrated in a just war, though their immediate aim – unconditional rather than conditional surrender – was not just
...
But contemporary theorists of the just
war generally claim that the conditions in which unjust combatants ﬁght absolve
them of responsibility for the aims of their war
...

Perhaps, then, what distinguishes terrorists from unjust combatants is a matter
of the means they use to achieve their aims
...
If unjust combatants are absolved of responsibility for the aims of the war in which they ﬁght, they may not be guilty of any
wrongdoing at all
...

But this understanding of the action of unjust combatants is mistaken, despite
its widespread acceptance
...
Even if
they conﬁne their attacks to military targets, they still do not serve their country’s
unjust ends by permissible means
...
Unless they are ﬁghting in a war in which
both sides are in the wrong, unjust combatants engage in combat against just combatants
...
Most of us accept that it is
normally wrong to kill innocent people as a means of achieving a goal that is just
...
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How, then, could it be permissible to kill innocent people as a means of achieving
goals that are unjust?
With these observations as background, reconsider the comparison between unjust
combatants and terrorists
...
Terrorists often but not necessarily pursue unjust ends
...
With respect to ends and means, therefore, there is so far no reason to suppose that what terrorists do is morally worse than what unjust combatants do
...
Is this belief justiﬁable? Or should
we accept that what unjust combatants do is typically wrong to roughly the same
degree as what terrorists do? Or should we perhaps conclude that what terrorists
do is in general morally objectionable only to the degree that we think that what
unjust combatants do is objectionable?
There are three morally signiﬁcant differences between unjust combatants and
terrorists
...

As I noted earlier, that just combatants pose a threat does nothing to make them
legitimate targets, since they are justiﬁed in posing a threat
...

The ﬁrst of the three signiﬁcant differences between unjust combatants and
terrorists is that even when both use unjust means to achieve unjust ends, unjust
combatants in general have a greater range of excuses that mitigate their culpability and may even exculpate them entirely
...
(There are of course exceptions, such as child soldiers who have been abducted, brutalized, drugged, and sent
to conduct a terrorist massacre in a village
...

Unjust combatants tend to believe, often understandably and sometimes even
reasonably, that what they do is justiﬁed
...
Terrorists, by contrast, systematically violate a prohibition
against intentionally attacking people who are merely going about the ordinary
business of life – bystanders – that has been recognized in virtually all cultures
for thousands of years, and is, indeed, recognized even in their own cultures
...
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recognized even by Palestinian terrorists as morally different from the killing of
Palestinian civilians as a side effect of an attack on a launch site for missiles aimed
at Israel
...
In general, therefore, there is less epistemic justiﬁcation for terrorists than for
unjust combatants to believe that what they do is morally permissible
...
Many suicide
bombers, for example, are credulous and uneducated young people who have been
repeatedly assured by the moral, political and theological authorities in their culture that the killing of randomly chosen members of a population they regard as
their enemy is supremely meritorious and will gladden the heart of the deity
...
So, if we accept that unjust combatants do
wrong but, because of the epistemic limitations under which they act, are not to
be condemned or punished, we should also accept that the same may be true, though
perhaps to a lesser degree, of some terrorists
...
The claim that a person’s action is excused presupposes that
the person has acted wrongly
...

The second important difference is that whereas unjust combatants who attack
just combatants usually intend only to eliminate an obstacle to the achievement
of their goals, terrorists who kill innocent people use their victims strategically as
means to their ends
...
6 It is important to note, however, that this does
not distinguish all unjust combatants from terrorists
...

The third and perhaps most important difference between unjust combatants
and terrorist, is that unjust combatants who obey the rules of engagement thereby
respect and preserve laws and conventions designed to limit the violence of war
...
This legal permission is endorsed
by morality because of its pragmatic utility
...
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current conditions to allow, and indeed to require, that certain wrongful acts be
impunible under the law
...
For a variety of reasons, some of which I gave in citing excusing conditions that commonly apply to the action of unjust combatants, most unjust
combatants believe that the war in which they are ﬁghting is just
...
If, therefore, our aim is to make it more
likely that unjust combatants will adhere to certain restrictions that ought to apply
to them, we will have to subject just combatants to those restrictions as well, even
if the restrictions ought not to apply to them
...
Since a neutral rule prohibiting killing in war by both just and unjust
combatants would be not only ineffective but also unjust, since it would deny the
permissibility of defence by the just against the unjust, the only feasible option is
a rule permitting both just and unjust combatants to ﬁght
...
Because terrorism involves intentionally killing the innocent, it can be morally justiﬁed, if at all, only in conditions of extremity, and even
then only for those with a just cause
...
This is why participation in an unjust war, though morally impermissible, should be legally permissible, at least in the current institutional context,
while terrorism must be legally impermissible in addition to being virtually always
morally impermissible
...

Are terrorists combatants?
I have argued that unjust combatants are legally and conventionally permitted to
act in ways that are morally impermissible
...
I have claimed that
terrorism should remain illegal – that is, that it should be legally forbidden even to

9780719079740_C06
...
But
doubts can arise about this
...
Terrorists themselves
often claim to be combatants, particularly when they are captured, since they
would like to be accorded prisoner of war status
...
Are terrorists combatants?
The concepts ‘terrorist’ and ‘combatant’ are not mutually exclusive
...
These would be
combatants who had also become terrorists
...

Consider, though, whether terrorists who are not members of any regular army
or militia, and who do not openly distinguish themselves as combatants, are nevertheless entitled to combatant status
...
But this is not what
one does to enemy combatants
...
This is perhaps surprising because it
appears to accord to terrorists a kind of legitimacy that they lack
...
Under international law, combatants may be attacked
and killed at any time, anywhere, by enemy combatants
...

There are, however, disadvantages, from the Bush administration’s point of view,
to declaring that terrorists are combatants
...
It is because combatant status
carries certain rights and immunities that captured terrorists seek to be classiﬁed
as combatants
...
Enemy combatants also have the legal
right to attack military targets, such as military, police, and government personnel
and facilities
...
But if the others had worn uniforms and had ﬂown an otherwise empty plane into the Pentagon, their action would
not have been a war crime; it would not have been illegal at all
...

How could the Bush administration invest itself with legal rights to do all that
it wanted – that is, how could it claim the right to hunt down terrorist suspects and
kill them while also denying them both the legal right to attack U
...
military personnel as well as legal rights against interrogational torture and punishment in the

9780719079740_C06
...
This is a notion that had
its origin in a case in 1942 in which German military personnel inﬁltrated the U
...

disguised as civilians in order to sabotage facilities that were important to the American
war effort
...
In the words of Chief
Justice Harlan Fiske Stone, who wrote the judicial opinion on this case after
the executions had already been carried out, ‘enemy combatant[s] who without
uniform come
...
are
generally deemed not to be entitled to the status of prisoners of war, but to be
offenders against the law of war subject to trial and punishment by military tribunals’
...
In any event, this case established the precedent for
the concept of an ‘unlawful combatant’ to which the Bush administration has
appealed
...
Yet
they lack the rights and immunities of lawful combatants and thus may be tried by
either civil or military courts for harms they may cause, even to opposing combatants
...

My concern in this essay is with morality rather than law
...
I will therefore explain why it is doubtfully
coherent to suppose that terrorists who do not act as distinguishable members of
a regular military organization either have or could have combatant status
...
11 They are human creations designed to serve certain purposes
...
They are designed to insulate ordinary civilian life from the
destructive and disruptive effects of war
...
The granting of
combatant status involves a tacit bargain
...
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guaranteed humane treatment and eventual release if they are captured, as well as
immunity to legal prosecution even if the war in which they ﬁght is wrongful and
illegal
...
They are required, in particular, not to
conduct intentional attacks against civilians
...

Terrorists, however, subvert the central purpose of the laws of war in at least
two ways
...
It is their
intention to expose ordinary civilian life to the violence characteristic of war
...
It is, in short, the essence of terrorism
to do precisely what the laws of war have been devised to prevent
...
It would be pointless to grant the rewards for refraining from engaging in
terrorism to terrorists themselves
...
There might be contingent or pragmatic reasons to
grant to terrorists protections to which they have no claim as a matter of right
...

I have argued that terrorists cannot have combatant status
...
This is actually not as puzzling
as it may seem
...
He is, to put it paradoxically, a combatant who lacks combatant status
...
If the law accords some privileges
to the former that it denies to the latter, does this mean that the law does, in some
instances, what I claim would be pointless – namely, grant at least some of the rewards
for refraining from terrorism to terrorists? Recall that terrorists undermine the aims
of the laws of war in two ways: by intentionally attacking innocent civilians and by
posing as civilians, thereby making it more difﬁcult for their adversaries to respect
the distinction between combatants and non-combatants
...
It may therefore make sense to accord him certain

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...

Terrorists as criminals
In law, the alternative to assigning terrorists combatant status is to treat them as
criminals – people with no special protected status whose acts violate domestic or
international law
...
This explains why the Bush administration did not persist with
its initial characterization of the terrorists of 9/11 as criminals, despite the fact that
criminal status would deny them whatever legitimacy might be implied by combatant status
...

Note that I have written that treating terrorists as criminals is the alternative,
rather than an alternative, to treating them as combatants
...
Because I have argued
that terrorists cannot be classiﬁed as combatants, I conclude that at present they
have to be regarded as criminals – that is, people who are guilty of criminal acts
and criminal conspiracies – and that terrorist suspects are criminal suspects
...
One might, for example, hold that anti-terrorist action should
be directly governed by moral principles of self- and other-defence, unmediated by
any institutional framework
...

Obviously, however, it would be unwise to allow the threat of terrorism to be
addressed by individuals acting in their capacity as private citizens
...
The
principles that regulate and guide the functioning of large-scale social institutions
must be designed to be responsive to pragmatic considerations such as problems
in the co-ordination of collective action and differences in the likely consequences

9780719079740_C06
...

At present the only types of institution we have that are capable of addressing
the threat of terrorism are military institutions, whose activities are governed by
the war convention and the laws of war, and institutions for law enforcement, which
are governed by the norms for police action
...

This is a conclusion I accept only with reluctance
...
Criminals are seldom motivated
by the kinds of ideological concern that motivate terrorists, and their goals and the
means they use to achieve them tend accordingly to be rather limited
...
Thus far their achievements
have usually fallen well short of their aspirations
...

There are other general differences between terrorists as a class and ordinary
domestic criminals that tend to make anti-terrorist action rather different from domestic police action
...
They suggest the desirability of forging a new set of norms and conventions
for anti-terrorist action that would be intermediate between the norms for police
action and the norms governing the practice of war
...
That is a task
better left to people whose expertise in the formulation of social and political
policy is greater than mine
...
This is the requirement that police seek to arrest criminal
suspects so that they may be brought to trial rather than immediately attacking or
killing them
...

Social defence against criminals proceeds indirectly through arrest, trial and detention rather than directly through immediate preventive violence
...
The police are permitted to kill
a criminal suspect only when that is necessary to incapacitate him when he resists
arrest and poses a serious and immediate threat to others
...
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Many people think that the requirement of arrest is excessively constraining
in anti-terrorist action
...
Is this right, or
should anti-terrorist agents be required to try to capture terrorists rather than kill
them?
To answer this question, it is necessary to understand the rationale for the requirement of arrest
...
From the point of view of the police and the courts, he must
of course remain a criminal suspect
...
Although this is by hypothesis objectively
true, the police are still required to try to arrest him and bring him to trial
...
The critical question for our purposes is whether the requirement that the police arrest rather than kill him derives from his rights? Does he have
a basic, non-derivative moral right to be arrested and tried rather than attacked and
killed?
I think not
...
If, for example, he
were lurking in the park late at night and a private citizen, knowing the facts, could
kill him as he approached his victim, it would be permissible and desirable for the
citizen to do so
...
The murderer has no moral right
not to be killed while he continues to threaten the lives of others
...
It is simply too dangerous to the lives and liberties of innocent people
to allow the police to kill rather than capture people they believe to be dangerous
criminals
...
The requirement of arrest is
a norm we accept as a concession to the fallibility of the agents charged with the
defence of the innocent
...
Actual terrorists – people who
are in fact trying to kill innocent people as a means of achieving their political
ends – are morally liable to defensive killing if that is the most effective way to
prevent them from killing their potential victims
...
This is a clear
implication of uncontroversial principles of self- and other-defence
...
For that would expose

9780719079740_C06
...

Perhaps the most signiﬁcant risk is the risk of misidentiﬁcation
...
For mistakes are easy to make when criminals try as well as they are able to
evade identiﬁcation
...
For in war combatants are required to wear uniforms to
distinguish themselves both from civilians and from combatants of other countries
...

The risks of misidentiﬁcation are considerable even in domestic anti-terrorist
action, as was shown recently when British police killed a Brazilian man whom they
mistook for a terrorist shortly after the terrorist bombings in London in 2005
...

In 1973, for example, agents of Mossad, the Israeli intelligence and counter-terrorism
agency, killed an innocent Moroccan waiter in Norway in the mistaken belief that
he was the leader of the Palestinian ‘Black September’ terrorist group that had
massacred Israeli athletes at the 1972 Munich Olympics
...
Governments will naturally take
greater precautions to avoid killing their own citizens by mistake
...

If one attempts to kill them preventively, one generally must attack them where
other people live, thereby imposing grave risks on the innocent
...

While there are thus good reasons grounded in the necessity of avoiding harming the innocent to impose a requirement of arrest on anti-terrorist action, there
are also reasons to believe that the requirement of arrest must sometimes be suspended in anti-terrorist action
...

May the requirement of arrest sometimes be suspended in
anti-terrorist action?
There are three features that together tend to distinguish anti-terrorist action from
ordinary police work
...
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posed by terrorists are often substantially greater than those posed by ordinary
criminals
...
So the harms to be averted through anti-terrorist action are in general
signiﬁcantly greater than those that ordinary police work seeks to prevent
...

Second, efforts to capture terrorists may be less effective as a means of defence
than attempting to kill them
...
) This difference in likely effectiveness is more pronounced
in anti-terrorist action than in domestic law enforcement, especially when antiterrorist action must be conducted abroad
...
Or it may
provide no support at all, or may even engage in active obstruction of efforts to
arrest terrorist suspects
...
In these cases,
terrorists often have sentinels who will alert them to the approach of anti-terrorist
agents, assist them to evade capture, and obstruct their removal or extradition in
the event that they are captured
...
(When this is true, I will say that the
‘danger condition’ is satisﬁed
...
But the difference in the degree of risk between the options of capture and
killing is much greater in the case of anti-terrorist action
...
Not only are the penalties terrorists would face if convicted in general greater,
but also terrorists are more highly motivated and may indeed regard the opportunity to kill anti-terrorist agents before dying a martyr’s death as more desirable than
being arrested and punished
...

Another reason why anti-terrorist action is more dangerous, particularly in foreign areas, is related to one of the reasons why arrest may be less effective than
killing as a method of defence
...
Killing,
by contrast, may often be accomplished from a safe distance
...
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The dangers of attempting to capture determined and well-organized terrorists are illustrated by the events that culminated in the killing in November 2002
of six people whom the U
...
described as al-Qaeda militants
...
This instance of ‘targeted killing’ by the U
...
was much
criticized (perhaps on good grounds, though objective evaluation is difﬁcult because
the primary source of information about the incident is the government that carried out the attack), but the relevant point here is that 14 soldiers had earlier been
killed in an attempt to capture one of the people who was killed in the strike
...
The threat, effectiveness and danger conditions
are less likely to obtain when anti-terrorist action takes place in a domestic rather
than foreign setting, and are less likely to obtain even in a foreign setting when the
foreign government is co-operative and competent
...

For when the threat that terrorists pose is grave, when killing them would be more
likely to avert the threat than trying to capture them, and when trying to capture them
would be riskier than killing them, we may then owe it to the terrorists’ potential
victims – both the innocents they would otherwise kill and the agents whose responsibility it is to protect those innocents – to try to kill them rather than to try to capture them
...

The three conditions that may justify suspension of the requirement of arrest
in anti-terrorist action may also be satisﬁed in some cases of domestic law enforcement
...
The most obvious case
in which these conditions may obtain is when a criminal suspect resists arrest through
violence
...

But if, in advance of attempting an arrest, there is good evidence that a person has
already acted in a way that makes him liable to defensive action and the risks of
attempting to arrest him are as great as or even greater than those in a typical case
in which a suspect violently resists arrest, it seems that the requirement of arrest
ought, as a matter of consistency, to be suspended in this case as well
...
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The problem of liability
Both in domestic law enforcement and in anti-terrorist action, the obvious objection to bypassing the requirement of arrest and resorting directly to defensive action
is that this involves treating a person as a criminal, and harming him in the process, without ﬁrst demonstrating his guilt
...

This, however, is a necessary feature of all action that is defensive rather than
punitive, ex ante rather than ex post
...
For example, on the day on which I am making revisions to this
essay – 16 April 2007 – police in Blacksburg, Virginia, have just engaged in defensive action against a murderer who killed 32 people on the campus of Virginia
Polytechnic University – though if their action succeeded at all, it was apparently
only by inducing the murderer to kill himself
...
Suicide bombers, an increasingly
common species of terrorist, act only once and cannot be punished after the fact
...

But there could also be cases in which preventive attack, before the threat becomes
imminent, would offer the best prospect of effective defence
...
But many of the
familiar objections to preventive war – for example, that recognition of the permissibility of preventive war could provide a legal rationale for virtually any war that
a country might be tempted to ﬁght – do not apply, at least not very strongly, to
preventive defence against individual terrorists, or terrorist suspects
...
This is that preventive defence may
involve attacking a person who has as yet done nothing to make him morally liable
to attack
...
In general, it is unjust to subject a person even to
preventive detention; how much worse, then, to subject him to preventive execution
...
Justiﬁed defence, like justiﬁed punishment, requires that
the person acted against be doing something, or has done something, that makes
him morally liable to what is done to him
...
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and perhaps overlapping
...
The problem of liability is that anti-terrorist
agents may attack people who are associated with terrorism in ways that may make
them dangerous but who as yet have done nothing to forfeit their rights against
attack
...
Such people would be wronged if they were
attacked to prevent them from posing a threat in the future
...
For it would also be unjust to arrest a person if one has no reason to believe
that he has done anything to make himself liable to punishment
...

The problem is not serious when there is compelling evidence that a person
has been actively engaged in planning and preparing for a terrorist attack
...

Liability to preventive action
But what about people who have recently joined a terrorist organization and are
currently performing non-violent functions within the organization while training
for possible future missions, yet are not planning, preparing for, or participating in
any actual mission? Are such people liable to preventive attack?
To answer this question, it may help to consider a parallel problem in war
...
At this point, however,
the ordinary rank-and-ﬁle soldiers of the country know nothing about their leaders’
plans
...
Are the unmobilized soldiers of our potential adversary liable
to attack, even though they are not attacking us and even though there is at present no war between them and us? Most people believe that they are indeed liable,
simply by virtue of their membership in the military
...
Even if our
surprise, preventive attack were illegal, the law holds that our own rank-and-ﬁle

9780719079740_C06
...
They would
not be guilty of killing the innocent, provided they conﬁned their attacks to the
soldiers on the other side
...
Yet there may be grounds
for holding unmobilized soldiers liable to preventive attack that do not presuppose
a repellent doctrine of collective liability that makes mere membership in a group
a basis of liability
...
The norms of military institutions are
such that when a person becomes a member, he effectively commits his will to obedience
...
He may have been converted into a threat even if he is unaware
of his leaders’ plans, and so is unaware of having become a threat to others
...
This is the basis of his liability
...
How, one may ask, can morally permissible and indeed admirable action be a basis of moral liability to preventive force?
The answer is that fault is not necessary for liability in this kind of case
...
He knows, or should know,
the moral risk he runs in surrendering his autonomy to his leaders, and if he has
bad luck in having leaders who convert him into a threat without his knowledge,
he rather than his potential victims must pay the cost of his earlier choice
...
First, there are rare instances in which active
duty soldiers do disobey
...
It seems plausible to suppose that they remain liable to preventive force as long as their wills are committed
...
These individuals may not be liable to preventive force; but
they are nevertheless responsible for misleading others by their presence in the

9780719079740_C06
...

Second, the argument for liability presupposes that all those in the military entered
it voluntarily
...
I concede this objection: a person cannot be liable
to preventive force by virtue of having joined the military if his becoming a member was genuinely involuntary
...
For present purposes, perhaps it will do to say that a person’s
membership in the military is voluntary when he could reasonably have avoided it
...
By contrast, those who acquiesce in conscription only
because the penalties for conscientious objection are draconian may be said to serve
involuntarily
...

The argument I have given for strict liability among military personnel provides,
I believe, the best defence of the common belief that even unmobilized soldiers
can, on rare occasions, be legitimate targets of preventive attack
...
I think, however, that it is subject
to one further, highly signiﬁcant restriction
...
But I will
not discuss or defend this restriction here
...
Indeed the argument for strict liability is stronger in the case of members
of terrorist organizations than in the case of military personnel
...
First, most terrorists are enthusiastic volunteers
...
Second, it is scarcely possible to join a terrorist organization permissibly and for morally admirable reasons
...
This is not, however, a necessary feature of military organizations and is
not even contingently a feature of most actual military organizations
...
I will now suggest two further
conditions that, if satisﬁed, could justify preventive action against terrorists or terrorist suspects
...
Such an organization is dedicated to

9780719079740_C06
...
Yet there are
some organizations which comprise many branches that perform different functions, some of which are legitimate while others are terrorist
...
Preventive action may not be taken against a member of an organization
that is involved in terrorism unless there is reason to believe that this will actually
serve to protect the innocent
...
For in war the killing of enemy combatants is conventionally permitted even
when there is no evidence that killing them will make any contribution to the achievement of the aims of the war
...
)
In cases in which these two conditions are satisﬁed and the threat, effectiveness
and danger conditions are satisﬁed as well, terrorists or terrorist suspects may be
liable to preventive attack
...
In cases in which the two conditions are satisﬁed but the three conditions justifying the suspension of the requirement of arrest
are not, terrorist suspects may be liable to preventive arrest even in the absence of
evidence that they have previously participated in terrorist action or are actively
preparing for a speciﬁc terrorist action
...

Proportionality in police action, anti-terrorist action and war
I noted earlier that one important reason for imposing the requirement of arrest
on anti-terrorist action is that attacks on terrorists do not and cannot take place on
remote battleﬁelds but must in general be conducted in areas where other people
live, thereby exposing innocent people to grave risks of harm as a side effect
...
They believe, in other words, that anti-terrorist action must not expose innocent people to levels of risk as high as those to which it may be permissible to expose
them in the course of war
...
that the army take positive measures, accept risks to its

9780719079740_C06
...
The same requirement holds for
anti-terrorists – holds more strongly, I think, insofar as it is mostly police rather than
soldiers who are at work in this “war” (or, the soldiers are doing police work), and
we impose much higher standards of care for civilians on the police than we do on
armies in combat’
...
As a general matter, the requirement of
due care for the safety of bystanders is stronger in the case of police work than it
is in war; but this is only because the goals of police action are in general less important
...
We seek to arrest, try, and
punish criminals for a variety of reasons other than to defend ourselves against them:
for example, retribution, redress, reform, deterrence of others, and so on
...
But in those cases in which
the primary aim of law enforcement is defence rather than punishment – for example, when a murderer is on a rampage and threatens to kill a great many people
– the requirement of due care for the safety of bystanders to which the police are
subject may be less demanding, since more is at stake
...
This is that those who would be endangered by
domestic police action in these cases may already be at considerable risk from the
criminal, so that it may be on balance safer for them if the police take more aggressive measures against the criminal
...
Unless we think that
there is some reason why it is better to be at greater risk from a criminal than to
be at lesser risk of accidental harm by the police, the requirement of due care, or
proportionality, should be relaxed in these cases
...
They are
the same constraint
...
Their right not to be harmed as a side effect
of an act of war is no less strong than their right not to be harmed as a side effect
of police action
...

There is, however, one reason why anti-terrorist agents could be justiﬁed in some
instances in adhering to a weaker standard of due care for bystanders
...

9780719079740_C06
...
Their action does not make them
liable to intentional attack
...
Such people make
themselves liable to the risks they run by collaborating with people who are themselves legitimate targets of attack
...

It is of course almost never true that all the bystanders who would be at risk
of being harmed by an attack against terrorists are supporters who aid and abet
terrorist activities
...
Here is a
hypothetical example based on a recent and all-too-real episode
...
Many of the warheads were packed with metal pellets that on detonation spewed out in all directions
...
(The pellets themselves had long since been collected by neighbourhood
children
...
It did not matter who these people were as long
as they were Israelis
...
Many of the missiles
were ﬁred from within villages in southern Lebanon
...
But suppose that Israel had chosen to make
a more restrained and measured military response, making precision strikes
against only a small number of carefully chosen missile sites
...
I think it would clearly be
wrong to attack the latter, if other factors were equal, since it would be reasonable
to expect that a higher percentage of the unintended casualties in the other village
would befall people whose support for terrorism had made them liable, at least to
some degree, to suffer the side effects of anti-terrorist action
...
If this is right, it
suggests that the proportionality constraint on anti-terrorist activity may be more
stringent if terrorists are attacked in a neutral area than if they are attacked in an
area in which they are known to be sheltered and assisted
...
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183

It is worth stressing, however, that if the standard of care may sometimes be
less stringent in foreign anti-terrorist action than in domestic law enforcement, that
is not because the people among whom terrorists live matter less because they are
members of another society
...

This means that the proportionality constraint in war and in anti-terrorist
action abroad is actually more stringent than most people suppose
...
If we think that it would be
wrong to sacriﬁce our compatriots in those circumstances, then we ought not to
proceed
...
If it would
be wrong to ﬁre the missile if the hotel were in New York or London, then it would
be wrong to ﬁre it if the hotel were instead in Baghdad, or Kabul
...
One is that attacks against terrorists or
terrorist suspects that kill the innocent, either by mistake or as a side effect, are often
not only disproportionate but also counter-productive
...
The second, related point is that the most important
part of anti-terrorist action is not military action, police action, or even interdiction
of terrorist attacks
...
14
Notes
1 For the sake of brevity, I will refer only to killing rather than to killing or harming
...

3 Here I assume that those who perform abortions do not thereby make themselves liable
to attack
...
This person would not be a terrorist, since his victims
would be liable to attack
...
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184

5

6

7

8

9

10
11
12

13
14

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Mortality Volume II: Rights, Duties, and Status (New York: Oxford University Press, 1996),
especially part II; and Lionel McPherson, ‘Is Terrorism Distinctively Wrong?’ Ethics 117
(2007), 524–46
...
Two who defend terrorism are Jonathan
Bennett, The Act Itself (Oxford: Clarendon Press, 1995), 218; and Uwe Steinhoff, On
the Ethics of War and Terrorism (Oxford: Oxford University Press, 2007), especially
chapters 3 and 5
...

For elaboration on the moral and legal status of unjust combatants, see Jeff McMahan,
‘The Morality of War and the Law of War’, in Just and Unjust Warriors: The Legal and
Moral Status of Soldiers, ed
...

Bush declared: ‘Make no mistake, the US will hunt down and punish those responsible
for these cowardly acts’
...
On the distinction between war and criminal justice, see George Fetcher, Romantics
at War: Glory and Guilt in the Age of Terrorism (Princeton: Princeton University Press,
2002), 3–9
...
S
...
For a good discussion of this case and its implications for the policies of the Bush administration, see Romantics at War (note 8), chapter 5
...

Quirin (note 9)
...

For information on the attack, see http://archives
...
com/2002/WORLD/meast/
11/04/yemen
...
html
...

‘Terrorism and Just War’ (note 12), 9–10 (emphasis added)
...
A
...
Coady, David Enoch, David Estlund, Mark Greene,
Michael Gross, Frances Kamm and the students in her graduate seminar at Harvard,
Larry May, David Mellow, Chris Miller, Gerhard Øverland, Derek Parﬁt, Melinda
Roberts, David Rodin, Saul Smilansky, Daniel Statman, Alec Walen, Daniel Wikler and
Col
...

9780719079740_C06
...
His compelling answer is that terrorists must be
treated as criminals, not combatants
...

But what follows from treating terrorists as criminals rather than combatants?
In particular is there a duty to arrest terrorists rather than simply kill them outright?
McMahan concludes that there is a strong, though defeasible, presumption in
favour of arrest
...

The reasons underlying the obligation of arrest go beyond those considered by
McMahan and this has important consequences for his account of the defeasibility conditions that follow
...

This is clearly a relevant consideration
...
This reason has more to do with rights than
McMahan allows – both the rights of the suspect himself, and of other members
of society – and with the societal role played by arrest and punishment
...
Arrest is the ﬁrst stage – the necessary preliminary – to a broader process of morally just criminal law enforcement
...
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(a function of the prison and probation services, ideally supported by rehabilitation, psychiatric, educational and community services)
...

Once the issue is couched in these terms it is much harder to ignore the fact
that important rights are at stake
...
1 Moreover this
right is possessed by the guilty as well as the innocent
...
Rather, conducting a fair and transparent trial, with appropriate opportunities for appeal, is a necessary condition for punishment to be just
...

What can account for the peculiar importance and strength of the right to arrest
and trial? Part of the answer lies in the fact that the right to trial is not simply a
right of the suspected criminal alone, it is a right of all members of society: we all
have a right that suspects be arrested and tried
...
First is what we might call the ‘public truth’ function of criminal justice
...
They expose
criminals to a kind of ‘epistemic shame’ (the shame of having others ‘know’)
which is quite different from punitive shame
...
They allow society to publicly reafﬁrm and develop shared
values within a rational system of law governed by rules of precedent
...

The social functions of trial are important, but there is a second, more important reason underlying the obligation to arrest and conduct trials
...
Much political
philosophy in the social contract tradition has emphasized the fear of anarchy –
the ‘state of nature’ – as the prime motivation of political ethics
...
Yet, as thinkers like Hannah Arendt and Judith Shklar
have emphasized, another fear – fear of the abusive and predatory side of state power
– is of equal importance for any account of political rights and justice
...
The twentieth
century’s grim history of genocide and massacre, disappearances, torture, arbitrary

9780719079740_C06
...
We
risk a kind of historical myopia if we view terrorism as posing a unique threat to
our rights and security
...

The right not to be subject to the coercive power of the state without fair trial
is our ﬁrst, and (in a well-functioning judicial system) our best, defence against tyranny
and arbitrary state power
...
It is not simply the fear of mistaken
violence, but the fear of deliberate violence without accountability that lies at the
foundation of the right to arrest and trial
...
The experience
of detainees at Guantánamo shows how quickly even liberal democratic states can
fall into abusive practices without appropriate legal oversight
...
They
are at once an enabling component of state power, and a limit on the exercise of
that very same power
...

So important is the moral foundation of the right to arrest and trial, that we
may wonder how it could ever be justiﬁed to kill suspects without trial in the course
of police action
...
For a suspect’s right to arrest and trial is also a duty – and the right
and duty operate reciprocally
...
But if one fails to observe this duty by resisting arrest then one thereby becomes
liable to reasonable police force (including, if necessary, lethal force)
...
2 This is of course true, but it misstates
the basic moral mechanism at work
...
The police would be justiﬁed
in using force to break into this room, even at considerable risk to the life of the
suspect, though the suspect has threatened no violence in resisting arrest
...
The police use of force must
be proportionate (both to the nature of resistance and the gravity of the accused
offence) but it can certainly be lethal
...
But it is against the context of the overriding importance of the composite
right and duty of arrest and trial that self-defence must be understood
...
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is in many ways an aberration within a law-governed society
...
Self-defensive violence engages the two elemental fears that lie at the core of
political philosophy: permitting self-defensive violence involves the risk of anarchy
by multiplying opportunities for the private use of force, and it risks tyranny by providing opportunities for the extra-legal use of violence by agents of state
...
Defensive
force must be necessary, proportionate and in response to a threat that is imminent
...
To borrow a formulation from
international legal jurisprudence, self-defence is restricted to cases in which there
is ‘necessity of self-defence, instant, overwhelming, leaving no choice of means, and
no moment for deliberation’
...
He argues that if ﬁve carefully speciﬁed tests are met, then a terrorist suspect may be liable to preventive force
– in other words he may be killed before he poses an imminent threat to the innocent
...

I am sceptical that we can become liable to preventive force in this way
...
We must still ask how appropriate these tests would
be as operational principles for real state ofﬁcials
...
They are also responsive to the need to
protect all of us from arbitrary state power
...
We insist on subjecting defensive action to a post hoc
judicial review, in order to determine whether the conditions of self-defence have
really been met
...
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189

homicide and are forced to plead the exceptional legal defence of self-defence in
order to achieve exoneration
...
By means of
post hoc review the potentially anarchic violence of self-defence is brought within
the purview of legal regulation, albeit in a retrospective manner
...
If all putatively defensive
violence must be subject to the requirement of post hoc judicial review, then surely
this will act as an effective check on arbitrary state power
...

The problem with this proposal is that the tests are poorly suited to the task of
regulating defensive action, either post hoc or ex ante, because they are indeterminate
...
This states
that the requirement of arrest can be overridden only if killing a terrorist suspect
would be more effective in preventing a future terrorist attack than arresting him
...

But against this must be balanced several competing considerations of effectiveness
...
One
must also consider the effect that our actions have on the recruitment of future terrorists
...
Terrorists under trial are often revealed
to be lonely and marginalized individuals, with a readiness to murder inﬁdels and
fellow believers alike and whose philosophical and religious beliefs are extreme (even
within their own traditions) and often incoherent
...
5
One may be tempted to conclude on the basis of the interrogation and recruitment considerations that the effectiveness condition will never, or almost never,
be met in practice
...
But
the deeper point is that we just can’t know if that is the case or not
...
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avert harm by killing potential sources of intelligence are long, complex, and dependent on many unknowable counter-factual assumptions
...

In the hypothetical examples of philosophical argument, we can simply stipulate that conditions such as effectiveness and necessity are met, and this makes for
seductive conclusions
...
The traditional,
restrictive conditions for self-defence are precisely tailored to this ambiguous
reality
...
But as soon as one departs from
this traditional context of imminent self-defence, the ambiguity and indeterminacy
of the conditions become radically ampliﬁed
...

In my view then there are just two appropriate contexts for police violence against
suspected criminals
...
The police share this right with all persons
...
Of course the crucial question here is: what constitutes
a ‘meaningful opportunity to surrender’
...
But many police forces around the world
have experience in conducting arrests of well-organized and well-armed maﬁa and
drug gangs
...

This seems like a restrictive account of police powers – and it is
...
One risk of drawing this conclusion, of course, is that it will only serve to cast doubt on the premise
...
But the reasons for
treating terrorists as criminals rather than combatants are political and strategic as
much as they are moral
...
Admittedly the occupation
of Iraq was executed with mind-boggling incompetence, and it is in any case

9780719079740_C06
...

But even the war in Afghanistan, conducted with comparative success and legitimacy, has failed to root out terrorist activity there
...
As many leaders, including George Bush, have recognized,
terrorism will ultimately be defeated by superior values – the much repeated mantra
of winning ‘hearts and minds’
...

Of course one of the reasons for choosing war rather than criminal law as the
primary forum of response to al-Qaeda in 2001 was the fact that policing and judicial institutions with global reach were weak in comparison with military institutions
...
Yet one cannot help wondering
how differently things might have turned out if the resources dedicated to the wars
in Iraq and Afghanistan had instead been utilized to develop a dedicated international police and judicial capability with a remit to arrest and try terrorists
...
S
...
In comparison the annual operating budget of
the international police agency Interpol is just $60 million
...
The challenges in bringing this system to
bear on global terrorist movements should not be underestimated, but they do not
seem insurmountable given sufﬁcient resources and political will
...

Notes
1 It is interesting to note, however, that combatants in war do not have this right under
current international law
...
They may
also be detained without trial for the duration of the conﬂict as prisoners of war (though
they also receive a set of countervailing rights and protections)
...
175
...
S
...
Dinstein, War,
Aggression and Self-Defence (Cambridge: Grotius Publications, 1988), 227)
...
The difference lies in the post hoc potential for remedying mistake:

9780719079740_C06
...

5 It must however be acknowledged that the process of arrest and trial poses its own challenges
...
Moreover, public trials can be used by suspects to grandstand and gain additional publicity
...

9780719079740_C07
...
What is the ‘Islamic
tradition’ and, more particularly, the Islamic legal tradition? Islamic law stands in
a paradoxical position vis-à-vis the human rights tradition
...
1 In my view,
after post-Enlightenment Christian thought, the Islamic legal tradition has contributed
most to the emergence of the human rights tradition
...
Many Muslims and nonMuslims believe that Islamic law is fundamentally at odds with modern human
rights
...

Saudi Arabia, for instance, often speciﬁes that it will comply with a human rights
treaty only in so far as it is consistent with Islamic law
...
4 The issue is whether either
system is assumed to be immutable
...
Nor am I referring to statements of aspiration by sovereign states such as those made in the Universal Declaration
...
It is important to distinguish civil from human rights
...

9780719079740_C07
...

Human rights are not contingent on the attitude of a majority
...
This is the anti-majoritarian thesis
...
Attribution of these rights is not contingent on the values that a particular group adhere
to
...
Reciprocity of conduct or treatment has no bearing on
the binding nature of that commitment
...

And people cannot be coerced into making human rights commitments
...
Social practices cannot be coerced without traumatic
social upheaval
...

Coercing governments raises different ethical questions
...

However, attempting to coerce governments to force their citizens to alter their
socio-cultural practices is in most cases not morally defensible
...
Those who commit themselves to human rights must
believe in universal standards but must also respect the right of others to be different; they might be offended by the practices of particular cultures, but feeling
revulsion is one thing; failing to respect the right to be different is quite another
...
Proponents of a particular scheme of human rights are bound to believe
that at a minimum all human beings must be afforded the set of rights propounded
by that scheme
...
But any additional rights are then treated
as privileges and not universal rights
...
But the level at which such commitments
produce recognizable results is not law but culture
...
Political systems, particularly constitutional democracies,
may be necessary for the implementation of human rights commitments but do
not engender them
...
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195

into a collective sense of entitlement, denial, or outrage
...
By emphasizing the role of culture as a foundation for human rights
practices, I do not mean to marginalize the role of doctrine
...
But this does not
mean that human rights paradigms are endlessly negotiable
...
I will say more on this point later
...
But any commonality can be ascribed to Islamic doctrines, which originate in
textual sources such as the Qur’an and in theological beliefs
...
For most Muslims, Islamic
law is the normative system to which they willingly defer
...
In these states, governments perform a considerable amount
of socio-cultural engineering under the pretence of applying God’s law
...
The massive corpus
that represents the Islamic legal system – the cumulative determinations of diverse
interpretive communities through many centuries; the encyclopaedic reference sources
of the different schools of thought; the judicial hornbooks; the collections of responsa
( fatawa), the texts documenting judicial precedents and notable judgments, the many
texts on legal reasoning, philosophy and hermeneutics, the large number of texts
on ethics (akhlaq), morality, principles of governance, administrative law – these
have been essentialized into a very simplistic image
...
(Of course, no legal system
can avoid being manipulated and exploited as a political tool but there is a difference between respecting the integrity of a legal system and ignoring its integrity in
order to serve political interests
...
It is a cumulative system of juristic investigations
by interpretive communities into the Divine Will and the public good
...
These schools diverge
on legal methodology and hermeneutical approaches but all of them are considered equally authoritative
...
I emphasize this to counter

9780719079740_C07
...
But
I do not want to give the impression that Islamic law is entirely ﬂuid
...

It is ironic that with all this diversity the most uniform determinations in the
Islamic legal tradition are those most inconsistent with contemporary human
rights
...
Because they are adopted by the majority of the different schools, they
pose the most formidable philosophical challenge to Muslims who wish to make a
commitment to human rights
...

Paradoxically, the laws of hudud are the most difﬁcult to apply
...
Moreover, the Qur’an
also sets up ethical barriers to hudud penalties by persistently exhorting Muslims
to be merciful and forgiving
...
For most of Islamic history,
the hudud penalties have had a very limited impact on the socio-cultural practices
of Muslims
...
They assume that all components of
Muslim cultures (such as honour-killings or female genital mutilations) are dictated
by Islamic law
...
This politicization has had a devastating affect on efforts to seek a proper balance between the two formidable normative systems of Islamic law and human rights
...
They have become a symbol of cultural autonomy and
resistance to Western hegemony
...

In this regard, the penalty for apostasy, one of the hudud punishments, is an ideal
example
...
6 In the medieval context, this was unremarkable
...
7 The followers of the nascent religion of Islam experienced

9780719079740_C07
...

Not surprisingly, this context impacted on medieval Muslim jurists, who could not
transcend the limitations of their time
...
9
Through this dynamic the many universalistic and inclusivist orientations
within Islamic law and theology have been superseded by a defensive cultural particularism
...
Other doctrines are ignored or maligned
...
Exclusivists maintain the
pretence of being devout and conservative protectors of the one and only true Islam:
they alone (they claim) have the will to withstand the cultural onslaughts of Western
colonialism and imperialism
...
Exclusivists re-engineer the classical legal tradition
in response to the onslaught of Colonialism and the ideological aggression of the
proponents of human rights
...
11
Muslim cultures have not proven themselves to be uniquely resistant to human
rights
...

But is the obstacle contemporary Islamic beliefs, not least those relating to Islamic
law? Or is the West’s promotion of a suppositious culture of liberty and human
rights one of the main contributors to the rejection of a human rights culture outside the Western world? Has the ‘war on terror’ helped to promote human rights
cultures?
IV
Recently, a number of prominent Saudi jurists shocked the Muslim world when
they issued responsa (pl
...
, fatwa) declaring that it is sinful for Muslims
to believe in the illegality of slavery; that the abolition of slavery was a Western heretical innovation (bid’atun fasida) which it is incumbent on Muslims to reject
...
They
concluded by acknowledging that all Muslim countries have become signatories to
and ratiﬁed the Convention on the Abolition of Slavery, but have done so only because
they were coerced by the West
...
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The timing of these responsa was disconcerting
...
12 Of course, this created a strong suspicion that the responsa were issued
to legitimate a gruesome social practice
...

A fatwa issued by a qualiﬁed jurist is a non-binding legal opinion
...
13 Islamic responsa have played
an important and complex role in Islamic history
...
What makes
these responsa interesting is that they attempt to reopen an issue long settled in Islamic
law
...
The Qur’an and classical Islamic law had for centuries promoted the
manumission of slaves
...
It was
therefore unlawful for Muslims to own or deal in slaves
...
This is not a cultural and ethical
divide between Muslims and the West
...
When these responsa were issued
the United States was pushing for the liberalization of the Saudi political system
and for religious reforms
...
American efforts to compel the overhaul of the religious
educational institutions of several Muslim countries by exerting pressures on the
governments of these countries reinforced their sense of disempowerment
...
This American pressure has undoubtedly had
its effect; in a number of Muslim countries, for the ﬁrst time since the colonial era
no courses on Islam are taught
...
15 The Saudi responsa on slavery exempliﬁed a
strategy of resistance to American hegemony in the region
...
The Qur’an, the teachings of the Prophet Muhammad
(the Sunna), and the interpretive communities of Islam all place a high value on
human life
...
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199

entrusted to their care
...
But
Muslims have the additional duty of bearing witness for God (shuhada’ li-Allah)
...
They must all times enjoin the good and forbid the
evil (al-amr bi al-ma’ruf wa al-nahy ‘ann al-munkar)
...
Muslims have an obligation to establish justice (‘adl)
...
18
As early as the eighth century, diverse interpretive communities maintained that
the moral obligation of any Muslim state – and the objective of the Shari‘a – is to
promote the people’s welfare or well-being
...
The Muslim classical age,19 however, reﬁned this concept
...
Life, property, dignity and reputation enjoyed a
level of sanctity (‘isma)
...

Although these doctrines had clear humanitarian overtones, they did not constitute signiﬁcant contributions to the formation of a human rights culture
...
But they did not constitute a developed system of
ethical reasoning or a coherent set of ideological convictions
...
21 But one wonders why later generations of Muslims did not develop these legal orientations into doctrines that could
support a cultural commitment to human rights
...
As early as the ninth century, Muslim jurists recognized the idea or concept of a right
...
22
Rights were recognized as protected spheres and most jurists agreed that the spheres
protected by law were life, intellect, lineage, honour and property
...
The rights of God were vindicated by God in the Hereafter while the rights
of people were to be vindicated by the legal system on this earth
...
25

9780719079740_C07
...
Indeed, some
Muslim commentators cite the huquq discourses to proclaim that Islam developed
a Natural Rights tradition like that developed by the West
...
The huquq tradition, unlike that of Natural Rights, was not
primarily focused on exploring inalienable immunities or entitlements
...

I ought to note another important classical jurisprudential discourse in Islam
...
The most promising
insights into the natural entitlements of human beings are found in this ﬁeld
...
They also investigated imperatives born of ethical values such as justice and compassion
...
The import of this tradition is that no text can render human enquiry into right or wrong superﬂuous
...

Another example more directly pertinent to human rights: according to a very
well-known tradition, Umar bin al-Khattab, close companion of the Prophet and
the second Caliph of Islam, criticized the inequitable conduct of one of his appointed
governors with the words: ‘By what right do you enslave people (through oppression and injustice) when they were born free!’ This statement too left little imprint
outside the writings of the Rationalist jurists
...
This was true even when retaliating against the enslavement of Muslims during a war
...
Islamic jurisprudence and theology have long emphasized
the desirability of manumitting slaves out of charity or repentance
...
29

9780719079740_C07
...
They did not conceive of the religious text as supplanting reason but as a ﬁrm moral foundation that
propels ethical investigation
...
They made Islamic civilization part of a historical progression from Greek
philosophy to the European Renaissance and the Age of Enlightenment
...
31 This
was also Aquinas’s First Principle – often credited with opening the door to the
Natural Rights tradition
...
32 In his Summa, evincing his familiarity with the micro-discourses of the Muslim Rationalist scholars, Aquinas frequently
takes sides with one Muslim philosopher against another
...
Although the Islamic classical tradition was
rich with ideas well suited to a cultural trajectory favouring human rights, it did not
bear this fruit
...
33 And it should be emphasized that the human rights culture is not secular
in origin
...
34 The most prominent
jurists of the Natural Rights tradition from William of Ockham and Jean Gerson
through Pufendorf, Vitoria, Suárez and Grotius to Locke and Rousseau and more
recently Karl Barth, Germain Grisez or John Finnis were all deeply religious people
...
35 Until
the end of the nineteenth century, Natural Rights theorists continued to invoke the
Divine as the ultimate source of obligation; even if rights are said to exist in nature,
it is the Divine that is the source of obligation
...
1138), Ibn Aqil (d
...
1198), and Ibn Tufayl (1185)
...
1641), Ibn al-Hasan
al-Tusi (d
...
1274), Ibn Aqil (d
...
1191, founder of the school of Illumination), Abu Bakr al-Razi (d
...
1209)
...
This was a pivotal point; Islamic civilization, under
siege by the Christian West, had now to defend itself against renewed waves of

9780719079740_C07
...
It suffered the loss of Andalusia37 and the sacking of Baghdad, the
capital of the Abbasid Caliphate, by the Mongols in 1258
...
But from
the twelfth century onwards a fateful and ironic exchange seems to have taken place
– as Rationalist forces retreated in the Islamic civilization, these same intellectual
orientations started on their laborious progress in the West
...

But for the most part their works were isolated achievements
...
This was due to a variety of historical reasons that cannot be
adequately described in this essay
...
38 More signiﬁcant than the military occupation by the West of most
of the Muslim world were the economic and cultural concessions forced on Muslims
...
Of course, long
before it was formally abolished, the Ottoman Caliphate’s legitimacy was seriously
undermined; it had ceased to offer effective governance; its governors were often
intolerably oppressive; towards the end of its existence, it was unable to protect its
provinces
...
Muslims had
succumbed to the new reality of nation states
...
The Turkish counter-offensive led to the siege of Vienna in
1683
...
The Ottoman Empire might have been the ‘sick man of Europe’,39
but its allegiance and identity were clear
...

But Atatürk’s Turkey did not just secularize; it switched sides
...
Atatürk actively sought to
Westernize every aspect of Turkish life
...
The Turks also decided to stay out of the ongoing conﬂict between Muslims

9780719079740_C07
...
40 Like many reform-minded nationalists, Atatürk legitimated the colonial fantasy of the ‘White Man’s Burden’ – the disingenuous idea
that Western powers colonized Muslim countries for their own good
...
Far more signiﬁcant were
the economic and political structural realities within which both the colonizer and
colonized were forced to function
...
The whole Muslim world
was undergoing a massive socio-political transformation that altered the nature and
role of religious beliefs and practices
...
But many Muslims contended that while
the renegotiated status of religion in the West was the product of historical processes and needs, the debates in the Muslim world took place within the coercive
contexts of colonialism and a Western-deﬁned modernity
...
The dominant role of Western
educated elites in Muslim societies exacerbated this anxiety
...
Citizenship status has come to deﬁne
the political treatment likely to be afforded a person – the miserable fate of stateless Palestinians has amply demonstrated this
...
42 The logic of development purportedly
displaced the authority of religion
...
Human perceptions of their well-being and needs are shaped
by the aspirations created by Western technologies
...
The nation state was a
deﬁning component of the world order in the post-colonial era
...
From the
eighteenth century on, Western culture and its institutions continued to replace
the institutions of Muslim culture
...
This was achieved through a long process of forced commercial concessions,
special privileges for foreign nationals, the right of intervention on behalf of nonMuslim minorities, courts of special subject-matter jurisdiction, mixed courts such
as the Anglo-Muhammadan courts in India, scholarship programmes for members
of the ruling class to study in European law schools, the construction of secular law

9780719079740_C07
...
The end result was the replacement of Islamic law, in
most cases, with the Civil Legal system
...
Most schools
of Islamic law were closed primarily due to the shortage of clientele
...
43 A paradoxical duality developed in Muslim cultures: from the age of colonialism to this
day, Muslims have mostly been governed by the French legal system
...
In effect, modern Muslims transformed
Islamic jurisprudence from a dynamic living system to a relic admired but never
used
...
Muslim legal experts are woefully ignorant about
the institutions and epistemologies that informed Islamic jurisprudence
...
44
Some countries attempted to Islamize their legal systems in the 1970s and 1980s
by implementing speciﬁc measures mostly derived from the hudud laws
...
Consider the obscene
examples paraded before the world: Pakistani and (later) Nigerian rape laws
...
In
part, the sensationalism and apologetics that plague the ﬁeld of Islamic law are
explained by the feeling throughout the Muslim world of being under siege
...
45 This sense of being under
siege, combined with an intense sense of alienation from modernity, generated sharply
reactive tendencies including the conservatism and intolerance of the Wahhabis
...

The discussion thus far explains why Muslims failed to develop the full potential of the Natural Rights strain in their own tradition
...
Wahhabism, the dominant creed of Saudi Arabia (founded on the intolerant theological views of Muhammad bin Abd al-Wahhab, d
...

Ironically, Wahhabis would agree with the secularists that there is no place for human
autonomy in the light of God’s sovereignty; they would go on to argue that whatever limited rights humans may earn are contingent on the fulﬁlment of their

9780719079740_C07
...
46 From the eighteenth century to this day, the Wahhabis have formed
an alliance with the Al Saud family and rule over Mecca and Medina
...
Moreover, since the
formation of the alliance, Wahhabi militants have slaughtered thousands of Muslims
as, with British support, they fought against the Ottoman Caliphate, then turned
to massacring Shi‘i populations in south Arabia and southern Iraq
...

Wahhabi-Saudi Islam, far from being authentically native, is a fanatic aberration raised
and sustained by Western colonialism
...
In
another context, I have argued that Wahhabi Islam is effectively a secularized faith
in which religion is conﬁned to a peripheral role
...

VII
Here we come to an important point
...
With the waning
of colonialism, the 1948 Universal Declaration of Human Rights arguably represented a transitional moment in history
...
It is true that representatives of some Muslim countries such as Egypt
and Indonesia and part-Muslim countries such as Lebanon played an active role
in the passage of the Universal Declaration
...
) But at the very point when the
Universal Declaration was issued by the General Assembly, most Muslim countries were
still subject to colonial rule
...
The issue of self-determination
was complicated not just by de-colonization (some Muslim countries gained their
independence only in the 1960s) but by the partition of Palestine
...
The U
...
Charter
placed effective powers in the hands of the Security Council, giving a majority
of the world’s countries a mere advisory role
...
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member of the Security Council
...
The power of veto enjoyed by the
permanent members (especially in the context of the Cold War) greatly diluted the
impact of the Universal Declaration
...
But (as we have seen), the signature of
treaties by authoritarian governments does not necessarily reﬂect the cultures
of those peoples
...
The U
...
could
refuse to sign major human rights treaties with impunity but few Muslim countries
dared do the same
...
In repeated declarations, such as the Cairo, Doha and Casablanca
Declarations,49 Muslim governments afﬁrmed their commitment to human rights
...
None of the countries afﬁrming the
incompatibility of international human rights with Shari‘a actually enforced the Islamic
legal system
...
50 It is often argued that regional conventions
were designed to reﬂect the customs of the regions that enacted them
...
Far from afﬁrming the integrity of international human rights, regional
conventions represented concessions to particularism and cultural relativism
...
From the Muslim point of view, the whole
ﬁeld seemed somewhat farcical
...
The U
...
was willing to pretend
that friends like Israel and South Africa did not engage in discrimination
...
Inconsistency, hypocrisy, or multiple standards infected the foreign policies of the supposed champions of rights
...
If Muslims had identiﬁed ethical goals and
anchored them in their own intellectual heritage, the effect of Western double
standards might have proved negligible
...
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207

developed a human rights culture is undoubtedly that they have never experienced
them as a living reality
...
They claimed that believing in human rights is so heretical as
to render a Muslim an apostate
...
However, the intended assault
on Western sanctities is done at the expense of Islamic tradition
...
A partial list of those frustrations would include the presence of
American troops on Saudi soil; the Saudi government’s execution of 160 reputable
Wahhabi jurists who dared sign a petition opposing the presence of American forces
on Saudi land and the United States’ silence about the massacre; the occupation
of Iraq and the shocking conduct of the U
...
forces and government in the ‘war on
terror’, in Abu Ghraib and Guantánamo
...
These powers preached human rights but
what they practiced were civic rights
...
But the problem goes much deeper
...
One example: the 1906 Iranian Constitutional Revolution was pioneered by Shi‘i jurists and was remarkably liberal
...
52 The lesson imparted by colonialism was clear: human rights is an
exercise in hypocrisy; rights and democracy are completely subservient to realpolitik; and national norms trump moral norms
...

I have already commented on the impact of the Cold War
...
The Cold War had
ended
...
Some of these NGOs in the
Muslim world ran huge risks to generate substantive doctrines of human rights and
substantive commitments to them
...
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founded by Western-educated elites
...

Alas, the end of the Cold War coincided with the beginning of the Bush era
...
As in
the colonial age, we ﬁnd lip-service given to Islam but a profound alarmism about
the living tradition; Islam can be as patriarchal and ritualistic as it likes, as long as
it does not challenge the existing power structures
...
Saudi Wahhabism (as opposed to the Wahhabism
of Bin Laden for instance) makes obedience to rulers, however unjust, a theological duty
...
In Western societies, there is a tendency to equate Islam with
reactionary historical forces
...

In the colonial era, Islam was regularly caricatured
...
S
...
Few weeks go by without one or more Islamophobic
books appearing on the New York Times’s best-sellers list
...
The Bush administration and its neo-con ideologues believe that
Islam needs social engineering to save Muslims from themselves
...
In both instances, thinktanks and lobbying organizations felt free to discuss whether the new constitutions
should identify the country as Islam; allow a role for Shari‘a; be obligated to grant
Christian missionaries visas or not
...
56 Like the old colonialists, the neocons felt free to shape how and what is taught about Islam in Muslim countries’
school systems
...
Egypt,
Jordan, and the Yemen all revised their secondary-school curriculum in response
to pressure from the U
...
Today, in the heart of Mecca, no imam would dare give
a sermon about jihad; this is not permitted by the Saudi government because talk
of jihad makes the American government nervous
...
The Bush administration is convinced of its moral
superiority; it believes that this superiority justiﬁes abhorrent violations of human
rights
...
S
...
The logic of exceptionalism has
made what was unthinkable a few years ago if not acceptable then at most a regrettable technocratic infraction
...
S
...
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terrorists to countries where they are tortured
...
It was therefore not long before the U
...
government moved from proxy
torture to practising torture not just at Guantánamo and Abu Ghraib but at
special U
...
detention centres in Iraq, the Arab world, Europe and South America
...

The U
...
has also engaged in the abduction of Muslim dissidents from several countries including, most notoriously, Italy and the Netherlands
...
France won infamy as a colonial power because it had killed
one to two million; according to several (non-U
...
) estimates, between the occupation of Afghanistan and Iraq, the U
...
and its allies have killed over one million
Muslims
...
S
...
58
Few Americans can even conceive of the level of violence inﬂicted on the countries of the Middle East in the name of bringing democracy
...
S
...
S
...
59 The trauma
inﬂicted on the region does not simply concern the victims of occupation and violence
...
These are
steps in a polarizing process, which is unlikely to aid the acknowledgement of
universalities
...
Like the
neo-cons, they are also ﬁrm believers in exceptionalism; they claim to espouse
the values of Islam, but commit the most heinous acts
...
S
...

Consider ‘the Yamama deal’
...
Relying
solely on evidence provided by the Saudi government, the British government arrested
both and charged them with supporting terrorism
...
61 The pragmatism of a deal
like this leads to cynicism about the very paradigm of human rights
...
Even the

9780719079740_C07
...
This
is the theory of the occasionality of rights62 and it never seems to be invoked in
favour of Muslims
...
Very often it affects the Muslim sense of dignity and
honour
...
Acting like a
traditional or colonial power, the U
...
has privatized signiﬁcant sectors of the Iraqi
oil industry and then granted itself special oil concessions in Iraq
...
And again, consistent with colonial practices, American soldiers who
raped a young girl and killed her family were not tried in an Iraqi court but prosecuted by an American tribunal
...

American military tribunals have given out disproportionately lenient sentences to
soldiers convicted of torture, rape and murder
...
63
Even more troubling is the return to a dangerously imperialist form of protectoratism, with the idea that certain ethnicities or religious minorities must be protected by the U
...
I was appointed by President Bush to the U
...
Commission on
International Religious Freedom
...
In May 2006, American Copts held a convention
in New York City calling attention to the purported persecution of Copts in Egypt
...
S
...
The letter did not explain why the
protection of Copts, as opposed to, let us say, Muslims living in Israel, is a matter
of U
...
national security
...
S
...

All of the practices discussed above – exceptionalism, occasionality, the civilizing mission and so on – are means to something much more important
...
S
...
It enables Americans to see
their interventions as by deﬁnition benevolent and to react with shock and contempt when their interventions are resented
...
Symbolically, this language differentiates between the good and bad – it distinguishes friend from foe
...
Muslims are told that in order to become

9780719079740_C07
...
When Muslims adopt liberal values, does this mean that Islamic civilization
has been defeated? Are Muslims being invited to join a universal humanitarian culture? (If so, the U
...
hardly seems ﬁt to extend such an invitation
...
It argues that liberal
Muslims, even if committed to the ideals of human rights and democracy, are not
natural allies of the U
...
and the West because they remain committed to an
Islamic identity
...
S
...
S
...
The report
then goes on to list secular Muslims deemed acceptable to the U
...
Every single
person on this list is either an Islamophobe or a self-hating Muslim
...
66
The report bolsters the suspicion that the current so-called civilizing mission is not
a mission but a crusade
...
There can be no true sense of dignity when a people live under
foreign occupation
...

The U
...
, like its colonial predecessors, has been keen on building parliamentary institutions
...
But the imposition of democratic institutions does not create a democratic system
...
Institutions constructed under these conditions typically lack durability
...
S
...
The neo-cons seem unaware that this is not because of a lack of
American power but because of its excessive use
...
Understandably, the Muslim world is increasingly being
asked to take responsibility for itself and to stop blaming the West for its own
failures
...
In
terms of historical memory, colonialism does not belong to the distant past
...
Western politicians have resisted the idea
that Muslims could be simultaneously committed to an Islamic identity and democracy and human rights
...
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they have remained quiet about the escalating levels of repression in countries where
Islamic groups were believed to be particularly strong (Tunisia, Mauritania,
Yemen, Bahrain); and failed to take decisive stands when popularly elected governments with Islamic proclivities have been overthrown by secular military juntas
(Pakistan, Turkey)
...
Part of
the price tag for attempting to overthrow the Islamic Republic of Iran was a
decade-long silence on Saddam’s intolerable human rights record and his infamous
genocide against the Iraqi Kurds
...
It is difﬁcult to explain to Muslims the ease with which Western
countries deal with extremist Hindu parties coming to power in India or fundamentalist Jewish parties coming to power through coalition in Israel
...
67 It is hardly surprising that
the Muslim laity responds to these inconsistencies by tapping into its not too distant historical memory; its experience with the West supports arguments about
double standards, hypocrisy, and religious hostility
...
With the
end of the Cold War, there was euphoria about the possibility of a new era for human
rights
...
Almost all Islamists took a pessimistic view of this new period
...
With the end of the Cold War this incentive no longer existed
...
Some governments, such as the Moroccan, Sudanese, Libyan, Pakistani,
and other states, wear a thin Islamic veneer in the belief that this bolsters their legitimacy, coupled with zero tolerance towards any competing claim to Islamicity
...
A dissenting Islamist in Saudi Arabia is guaranteed to meet a
grimmer fate than that of a dissenting secularist
...
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213

The intensiﬁcation of Western repression against Islamic thinkers or activists
has at times been coupled with policies that seemed designed to change the religious trajectory of society – policies that ranged from banning the wearing of the
veil in schools, universities and governmental institutions to liquidating Islamic ﬁnancial institutions, banning the use of loud speakers in the call for prayers, prohibiting unauthorized individuals from public preaching, or sharply decreasing the
amount of religious programming in state-regulated television
...
They only succeeded in convincing Muslims of the foreignness of their
own governments
...
Thus at the end of the Cold War, when Western theorists enthusiastically predicted a new world order,68 the experience of most Muslims, especially in
Middle Eastern countries, was one of alienation
...

IX
The ultimate consequence of this process was to create the setting for the irrational
polarization that has taken place in the Bush era
...
Polarization leads to the dehumanization of the other, which is a necessary prelude to the
breakdown of moral barriers to the use of force
...
Since 2001 there has been an elitist plutocracy that
rules the world with a hegemonic power not seen in my opinion since the Roman
Empire defeated Carthage
...
Nations are given a draconian choice: you are either with us or against
us
...
These new plutocrats believe that God is pleased with what they do
...
What is completely lost between the two moralizing but immoral camps is inalienable human rights
...
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possibly done so?! Human rights constitute a rare and remarkable development in
human history
...
The
superﬁcially promising post-Cold War period set the stage for the Bush era – an
era that turned back to the paradigms of colonialism
...
One way to see the
experience through Muslim eyes is to consider the number of Muslims who have
been killed or injured or made into refugees in the twentieth and twenty-ﬁrst
centuries as a direct result of Western policies in Algeria, Palestine, Egypt, Syria,
Lebanon, Iraq, Iran, Libya, Somalia, Nigeria, Afghanistan, the Philippines, Indonesia,
and other countries
...

There is no alternative to developing human rights cultures through a cumulative process of education and internally generated pressure
...
But Muslims have been uprooted from
their own tradition
...
It has played a devastating role, perhaps surpassed only by colonialism, in obscuring the richness, diversity and humanity of Islamic tradition
...

Muslims must make their own way to human rights; they must do so by anchoring themselves in the elements in Islam that could have led to ﬁrm commitments
in favour of human rights, and could still do so
...

But a true believer knows that God is capable of doing anything
...
What better way of choosing to be with God than to celebrate God’s
creation by recognizing the inherent value of each of his viceroys on earth?
Notes
1 See Stanford Encyclopaedia of Philosophy, James Nickel and Betsy Lamm, s
...
‘Human
Rights’, http://plato
...
edu/entries/rights-human/ (accessed 1 August 2007)
...
As a matter of historical fact, the concept of human rights is an artifact of modern Western civilization’
...
See also Mehdi K
...
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3

4
5

6
7
8

9
10
11
12

215

of Islamic Origins of Western Education (Boulder: University of Colorado Press, 1984)
and Joel Kraemer, The Culture Bearers of Humanism in the Renaissance of Islam (TelAviv: Tel-Aviv University, 1984)
...
John J
...
Esposito, 2nd edn
...

Ann Mayer, Islam and Human Rights: Traditions and Politics (Boulder: Westview Press,
1991), 13–14
...
Erik C
...
Carlson and Eric P
...
B
...

See K
...

See Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (New York: Cambridge
University Press, 2001)
...
In the pre-modern era as a
whole, charges of apostasy were rarely brought against private individuals
...
For a more detailed discussion, see
Rebellion and Violence (note 7)
...

Joshua Cohen and Ian Lague (Boston: Beacon Press, 2002), 42–50
...

Ibid
...
tier rating: Tier 3 – Saudi Arabia does not fully comply with the minimum standards
for the elimination of trafﬁcking and is not making signiﬁcant efforts to do so’
...
unicef
...
html (accessed 1 August
2007)
...
See Channel News
Asia Report, ‘Criminals and Opportunists Take Advantage of Tsunami Tragedy’,
www
...
com/stories/afp_asiapaciﬁc/view/125654/1/
...
The convergence of these reports suggests that the tsunami disaster greatly
increased the number of slaves trafﬁcked to Saudi Arabia and other countries in the Middle
East
...
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13 It is perfectly possible for a jurist to ﬁnd no convincing evidence that God has any will
concerning the situation at issue
...
For a more
detailed discussion, see Khaled Abou El Fadl, Speaking in God’s Name (Oxford: Oneworld,
2005), 9–169
...

14 See Islam and Human Rights (note 4)
...
Likewise, the United States never admits the existence
of racially prejudiced or religiously bigoted portrayals of Arabs and Islam in Israel
...
S
...

16 All Islamic sects and schools of thought agree that enjoining the good and forbidding
the evil is a solemn ethical obligation on Muslims
...
All
Muslims are in agreement that there are ﬁve pillars that deﬁne the Islamic faith: (1) the
testament of faith; (2) ﬁve daily prayers; (3) fasting the month of Ramadan; (4) paying alms to the poor (the obligation of zakat); and (5) Hajj or pilgrimage to Mecca
once in a lifetime for those capable of doing so
...
See The Great Theft (note 10),
122–4
...
The Covenantal Law is absolute, immutable,
eternal, and inherently good (Shari‘a)
...
On the distinction between
Shari‘a and ﬁqh, see Speaking in God’s Name (note 13), 30–40; Irshad Abdal-Haqq, ‘Islamic
Law: An Overview of Its Origin and Elements’, in Understanding Islamic Law, ed
...

Ramadan (Lanham, MD: AltaMira Press, 2006), 3–42
...

19 There are various deﬁnitions of the Islamic classical age, but in this context I use the
expression to refer to the period from the time of the death of the Prophet to the ninth/
ﬁfteenth century
...
This often-heard argument ignores the distinction between
the potentially perfect realization of the Qur’an and a cultural realization of it
...
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21

22
23
24
25
26
27

28

29
30

31
32

217

may indeed embody the most perfect ethical and humanitarian message but this does
not mean that Muslims today have fully understood its message
...

See Khaled Abou El Fadl, Islam and the Challenge of Democracy (Princeton: Princeton
University Press, 2004), 23–30
...

The important exception to this rule is the hudud penalties
...

See also Understanding Islamic Law (note 17) 50–7; and Wael B
...

See generally Khaled Abou El Fadl, The Search for Beauty in Islam (Lanham, MD: Rowman
& Littleﬁeld, 2006)
...

The Qur’an itself repeatedly urges Muslims to manumit slaves
...
)
These writers rarely dedicate a chapter to the topic of purchasing slaves
...
Imran Ahsan Khan Nyazee (Reading:
Garnet, 2000)
...
Then, if they are fair-minded, they proceed to
the Catholic Reformation and thence to the birth of the Enlightenment and the reasonbased progression to the age of modernity and secularism
...
In the absence of the Islamic connection, this
tradition would be discontinuous yet the ‘Muslim link’ is mostly ignored
...

See The Culture Bearers (note 2)
...
In the later phases of his life his thought was marked by a distinctive blend of
aesthetic rationalism or perhaps rational aestheticism
...

9780719079740_C07
...
For instance see, Thomas Woods, How the Catholic Church Built
Western Civilization (Washington DC: Regnery Publishing, 2005), 197–215
...
In fact, some have argued
that in an effort to make their theories accessible, accountable, and legitimately universal,
Natural Rights theorists, in effect, got rid of God, and attempted to base their theories
on reason alone or rationally justiﬁed basic goods
...
This is sometimes dismissively referred to as ‘the crisis of Natural Rights theory’ but criticisms of
modern Natural Rights theories invariably seem to go back to the so-called ‘Naturalistic
Fallacy’
...
I cannot deal with this here
...

35 See Elizabeth Bucar and Barbara Barnett, eds
...

36 The author of al-Hayy bin Yaqdhan, a book that became widely inﬂuential in both the
Islamic and Latin-language worlds
...

37 The loss of Muslim Spain was gradual and protracted; not until the mid-fourteenth
century was all of Muslim Spain (with the exception of Granada) conquered by the
Christian Kingdoms
...

38 Reportedly, the French general who led the military campaign against Syria made a point
of visiting the grave of Saladin in July 1920 to declare: ‘Here Saladin! We have returned,
but this time we are here to stay!’ See Robert Fisk, The Great War for Civilisation (New
York: Alfred A
...

39 This meant that the competing colonial powers impatiently awaited the death of the
Ottoman Empire so that they might rush in and grab its possessions
...

41 In my view, the ﬁrst time was when Shari‘a established itself as the authoritative moral
and legal point of reference for all Muslims in the ﬁrst century of Islam, shortly after
the death of the Prophet
...

42 This approach is quite widespread
...

9780719079740_C07
...

44 This is demonstrable, for instance, in the often-repeated jargon about closing the gates
of ijtihad in the tenth century and in the transplanting of Western discourse asserting
that al-Shaﬁ’i founded the ﬁeld of usul al-ﬁqh – a position now uncritically accepted in
Muslim scholarship
...

46 For a fuller account of Wahhabi theology, see generally The Great Theft (note 10)
...

48 See Islam And Human Rights (note 4)
...
17(c), 5 August 1990, Organization of the Islamic Conference A/CONF
...
18 (1993), available at
www
...
org/interdocs/docs/cairohrislam1990
...
See also WTO, ‘Doha Declaration’, Doha WTO Ministerial 2001, Ministerial Declaration adopted on 14 November
2001, available at www
...
org/english/thewto_e/minist_e/min01_e/mindecl_e
...

See also, ‘Casablanca Declaration’, released at the Middle East/North Africa Economic
Summit, Casablanca, Morocco, 30 October – 1 November, 1994, U
...
Department of
State, Dept
...

50 See Inter-American Commission on Human Rights, ‘American Declaration of the Rights
and Duties of Man’, art
...
cidh
...
htm
...
5, 27 June 1981, O
...
U
...

CAB/LEG/67/3 rev
...
L
...
58 (1982) and the ‘European Convention for the Protection of Human Rights and Fundamental Freedoms’, 4 November 1950,
European T
...
no
...

51 See Kenneth Anderson, ‘Secular Eschatologies and Class Interests’, in Religion and
Human Rights, ed
...

See also, Richard Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing
World (New York: Routledge, 2000)
...
, ‘Iran: A Country Study’, Country Studies/Area Handbook
Series (Washington, DC: Library of Congress, 1987)
...
See Helen Chapin Metz, ed
...
britannica
...

53 For an extensive discussion of how the bloody CIA-sponsored coup that ended the
Mossadeq era in Iran killed off the liberal constitutionalist trends in Iran and directly

9780719079740_C07
...
S
...

The humiliating 1967 defeat is said to have killed off pan-Arab nationalism, and
severely damaged the cause of liberalism in the Arab world
...
Much as the later American-led war to liberate Kuwait involved a
proverbial turkey-shoot of retreating Iraqi soldiers, so Israeli soldiers not only shot withdrawing Egyptian soldiers in 1967 but massacred a large number of surrendered
Egyptian soldiers and prisoners of war
...
S
...

See Lisa Beyer, ‘A Soldier’s Confession: Admitting to Killing Egyptian POWs in 1956,
a Veteran Stirs a Nation’s Conscience’, Time Magazine, 28 August 1995 (vol
...

9)
...
Metres, ‘As Evidence Mounts, Toll of Israeli Prisoner of War
Massacres Grows’, Washington Report on Middle East Affairs, February/March 1996, 17,
104–5
...

See Angel Rabasa, Cheryl Benard, Lowell H
...

Remarkably, the Bush administration obtained a 50-page memorandum from the ofﬁce
of Legal Council at the Department of Justice asserting that the president, notwithstanding
the Convention Against Torture (CAT), could authorize the use of torture without violating international law – although CAT does not permit any derogations (exceptions)
...
Greenberg and Joshua L
...
, The Torture Papers (New York:
Cambridge University Press, 2005)
...
A number of academic
studies have found that 350,000–500,000 Iraqi children died between 1991 and 2000
as a result of the embargo
...
See also David Cortright,
‘A Hard Look at Iraq Sanctions’, The Nation (3 December 2001), which cites two earlier academic studies on the subject, indicating that approximately 227,000 children had
died by 1998, and 350,000 children by 2000, as a result of the embargo
...
unhcr
...
pdf#zoom=100 (UNHCR Report
on Refugees in the Middle East
...
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61

62

63
64

65

66

67

221

tine’ as his war led the West to show its true inhumane face
...
,
Messages to the World: The Statements of Osama Bin Laden (London/New York: Verso,
2005), 113 (‘guillotine’) and 170; and Khaled Abou El Fadl, ‘The Crusader; Why We
Must Take Osama bin Laden’s Writings Seriously’, Boston Review, March/April 2006
...
guardian
...
uk/world//sep/27/bae
...
publications
...

uk
...
htm
...
com/
p/articles/mi_qn4158/is_19960224/ai_n14035752; www
...
co
...

jhtml?html=/archive/1996/04/18/ndis/8
...
At the time of writing, both men are
still resident in Britain
...
Faqih is currently litigating to have his name removed from
the UN 1267 Committee list of terrorists
...
, American Exceptionalism (Princeton: Princeton
University Press, 2005)
...
, Crimes of War: Iraq (New
York: Nation Books, 2006)
...
See Nina Shea, Congressional Task Force on Religious
Freedom, ‘Religious Freedom in Egypt: Recent Developments’, Congressional Testimony
by USCIRF Vice Chair, 23 May 2007
...
See State Department Report, ‘Human Rights and Labor; Entry on
Egypt’, International Report on Religious Freedom, Bureau of Democracy (2006)
...
Of course, the report does not speak in those
terms
...
See
‘Building Moderate Muslim Networks’ (note 56)
...
com, based in Canada and Europe
...
In fact, based on region of origin, the majority of individuals
named in the report are either Western-born or emigrants from Southeast Asia (i
...

Bangladesh, Pakistan and India)
...

For an excellent discussion of the West’s knee-jerk intolerance towards any form of
Islamic political party – even when that party’s particular platform is overtly liberal and

9780719079740_C07
...
For a discussion of the Muslim Brotherhood
and the cost of the West’s near-irrational distrust towards it as a potential ally in curbing the inﬂuence of Islamic Puritans and Radicals in the Muslim world, see Robert S
...
For a discussion of the Islamic Renaissance Party and the West’s
acquiescence in the oppression of the party’s leaders in Tunisia despite its relatively liberal political platform, see Linda G
...

68 See Abdullahi Ahmed An-Na’im, ed
...
See also, John S
...
G
...

69 See Alexander Cockburn and Jeffrey St
...
See also, Jim Wallis, ‘Dangerous Religion’,
Sojourner Magazine, September/October 2003
...
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Shaykh Muhammad Aﬁﬁ al-Akiti and Dr
...
A
...
He explores the
historical connections for the emergence of human rights schemes within the Islamic
intellectual tradition – but makes it clear that the Islamic world ultimately failed
to develop an indigenous natural rights discourse
...
Here, we will focus on one of the tensions between the two
systems, a tension inherent in the legal tradition
...
All of them follow a particular pattern
that has ensured their integrity through the centuries
...

With regard to law, this developed through the creation of legal paradigms that
coalesced into the celebrated schools of law (madhahib; sing
...
These in
turn allowed Islamic law to remain a living tradition while observing recognized
methodologies of interpretation and jurisprudence
...

El Fadl draws attention to one issue that emphasizes the dynamism of Islamic
legal interpretation ( ﬁqh): slavery
...
It should be noted, however, that the meaning of the term slave
(raqiq) in Islamic law is very different from its sense in other legal systems
...
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Islamic tradition insisted on the religious beneﬁt of emancipating slaves, legalized
intermarriage between slaves and free persons, and provided material support
from public funds to purchase a slave’s own freedom
...
The name of the branch of law covering this system of
ownership is ‘itq (lit
...
Consider, too, the name of the Mamluke dynasty
that ruled Egypt from the twelfth to the sixteenth century: Mamluke literally
means ‘owned’
...
These two facts testify to the ambiguity of
Islam’s recognition of slavery
...
But they did eventually outlaw slavery
...
As with any economic institution – and slavery was an economic
institution as much as anything – abolition was not immediately effective; certain
sectors of society beneﬁted from slavery
...
A similar reassessment occurred with the recognition of the nation state by Muslim jurists
...

On the matter of slavery, then, disagreement on the part of ‘exclusivists’ and
‘Islamists’ is merely a sign that they are, as Abou El Fadl says, not jurists but political
agitators seeking public support for a ‘politicized symbol’
...

El Fadl also raises a very pertinent question when discussing the conﬂicts
between universalism and relativism
...

In an intra-Muslim discussion, this has its own ramiﬁcations
...
Indeed, one of Islam’s
legal maxims states that objections should never be raised in matters where jurists
disagree but only where they are agreed in rejecting a particular position
...
Judges were known to
advise plaintiffs to seek judgements from other judges when the alternative ruling
might prove easier to implement than their own
...
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225

in general vis-à-vis non-Muslim religions and their religious laws is also well
known
...
And, more importantly,
it cannot be imposed
...

This is especially relevant with respect to the provisions for capital punishment
(hudud) in the Islamic tradition
...
They also insisted on the extremely strict
standards of evidence and procedure required for conviction
...
No
Muslim jurist would or could do that
...
The ‘capital’ nature of the
crime itself is unalterable
...
This kind of essentialism may
remind us of the English constitution
...
Islamic institutions within the
Muslim world, such as the Aal al-Bayt Institute ( Jordan), the International Institute
of Islamic Thought and Civilization (Malaysia), Nahdhatul Ulama (Indonesia) and
the Tabah Foundation (Abu Dhabi), are leading the way in this regard
...
They have taken a long time to reach this
point, it might be said
...
Change does not often come quickly and cannot
have permanent results unless it comes from within the tradition
...
Western hegemony led to the degradation of the schools of law
...
It is not surprising that, in such a system, many who favoured the ‘open exploration’ recommended by al-Ghazali1 no
longer went into religious studies but became engineers and doctors
...
When ‘Islamization’ came about, it was informed by identity politics rather
than a real philosophical impetus towards the creation of a modern Islamic nation

9780719079740_C07
...
‘Islamicity’ was the watchword in a political showdown between secularists
and religious conservatives
...
How could it be otherwise?
The Islamist movements reﬂected populist dissatisfaction with their own governments and the prevailing New World Order
...
And a society
torn apart by contested identities is not a fertile source of intellectual renewal
...
El Fadl refers to one
of its most recent manifestations: the Wahhabi movement’s stance against human
rights
...

The provision of legal solutions to contemporary problems need not constitute a break with classical tradition
...

The issue for the classical scholarly establishment is not whether such re-evaluation
should take place but how, a point in large measure dependent on whether those
who argue for it have the juridical training required
...
This means a
spirit of open exploration coupled with scholarly scruple rather than superﬁcial
‘re-formation exercises’ or ‘politicized measures’
...
There are crises enough occupying
the Islamic mind
...
Recognizing – as Abou El Fadl does – the dynamic aspects of the tradition will help contemporary Muslim jurists to ﬁnd their own way of engaging with human rights
discourse
...
1111), notes conﬁdently in his Summa Islamica, the Ihya’ ‘Ulum al-Din
(Reviviﬁcation of the Religious Sciences), the enlightened attitude that is needed by scholars
if they are to further the spirit of open exploration: ‘The one who is in the pursuit of truth
is like the one who is searching for a lost item: it makes no difference whether it is found
by his hand or by someone who can support him’
...
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Joanna Bourke

The threshold of the human: sexual violence and
trauma in the ‘war on terror’

I
Ameen Sa’eed Al-Sheikh was arrested on 7 October 2003 and taken to the nowinfamous Baghdad Correctional Facility (Abu Ghraib)
...
‘I believe in Allah’, Al-Sheikh replied, and the interrogator responded: ‘But I believe in torture and I will torture you’
...
As legal philosopher Costas Douzinas
says, it ‘takes inhumanity to deﬁne humanity by separating out the non-human
...
2 The cold-blooded violence of
torture is the site of that extremity
...
Because the acts inﬂicting torture are extreme, there is
[a] signiﬁcant range of acts that though they might constitute cruel, inhuman, or
degrading treatment or punishment fail to rise to the level of torture
...

And so we have it: an act might be ‘cruel, inhuman, or degrading’, but so long as
it does not involve ‘death or organ failure’, it does not constitute torture
...
If torture is what renders the victim non-human, the non-humanity in
question is not simply that of death
...

And what we have seen and are seeing in the ‘war on terror’ is a politics in which
humanity is deﬁned through the actions of the inhuman (torturer) on the non-human
(victims)
...
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They stripped us naked as a newborn baby
...
They started to take photographs as if it was a porn movie
...
No one showed us mercy
...
Then they started to write words on our buttocks, which we
didn’t know what it means
...
4

II
Of course, as historians always remind us, we have seen earlier versions of this
dehumanization: in the lynching photographs of the American South; in the ears
and ﬁngers necklaced together by British and American service personnel during
the two World Wars; and in the rape orgies of the wars in Korea and Vietnam
...
However, in the current ‘war
on terror’, not only have victims, their extended families, and their communities
become witnesses to their own humiliation, but those rituals of degradation have
been broadcast around the world, globalizing torture as a strategy of demarcating
humanity
...
Indeed, the Abu Ghraib images might make us
wonder whether Jean Baudrillard’s argument about the First Gulf War did not apply
equally to this ‘war in Iraq’
...
This new generation of Western torturers simply
employed more sophisticated technologies to enable the abuse – and fear of abuse
– to reach every corner of the earth
...
It is one that effaces individual histories and speciﬁc
geographies
...
Talk of barbarism returns us to the stark oppositions that got us into
trouble in the ﬁrst place: Us versus Them; good versus evil; God versus Satan;
Civilization versus Barbarism
...
And talk of the banality of evil also misses the point
– though cruel deeds of such magnitude do indeed infuse every banal nuance of
the society from which they are born
...

Dehumanizing deeds attempt to efface the signiﬁcance of the individual on whom
they are committed
...
For perpetrators of violence, it is
never enough merely to inﬂict suffering: those causing pain insist that their victims
ascribe a meaning to their pain, a meaning of the torturer’s choice
...
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229

recital of their ‘deserving it’ or ‘asking for it’
...

By creating a trauma-aesthetic and sorting perpetrators, bystanders and victims
into positions of hierarchy, we are complicit with this language and recognize
degrees of responsibility in the victim, thus in some sense ourselves justifying the
inﬂiction of pain
...
Indeed, we aestheticize not only the pain of the victims
but our own responses to their pain
...
The debate
invites us to assess what becomes a spectacle of pain and to do so aesthetically, contemplatively
...
As
one of Iraq’s greatest female poets, Nazik al-Mala’ika, put it in her poem about the
torture by the French of an Algerian resistance ﬁghter:
The details of your torture were on every tongue,
And that hurt us, it was hard for our sensitive ears to bear
...
As
she acknowledged, ‘in 1957, the burns in the face, on the sexual organs, the nails
torn out, the impalements, the shrieks, the convulsions, outraged me’, but by the
‘sinister month of December 1961’ she was saying: ‘like many of my fellow men, I suppose, I suffer from a kind of tetanus of the imagination
...
8
Are we so numb? In an article published over ten years ago but even more
relevant today, historian Eric Hobsbawm observed that people have ‘got used to’
terror
...
9
III
The international shock caused by the Abu Ghraib photographs suggested that
‘something unusually awful’ had happened
...
Of course, there were those in whom the photographs elicited patriotic celebration rather than distress
...
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outrage everyone seems to have about the treatment of these prisoners
...
I am also outraged that we have so many humanitarian dogooders right now crawling all over these prisons looking for human rights violations
while our troops, our heroes, are ﬁghting and dying
...
11
But there was something new about the photographs: something that both
shocked and titillated
...

Lynndie England was intriguingly attractive as the dominatrix of the American dream
...
We had already
become inured to images of terror unless they were tied to our mass media’s obsession: sex
...
And there, in that sentence,
is the obscenity: Big Brother and torture casually ‘bedded’ in the same sentence
...
Thus, one of the most popular radio show hosts could say,
You know, if you look at – if you, really, if you look at these pictures, I mean, I don’t
know if it’s just me, but it looks like anything you’d see Madonna or Britney Spears
do onstage
...
And get a NEA [a National Endowment for the Arts]
grant for something like this
...
Maybe on Sex and the City – the movie
...
Detailed internet instructions on ‘doing a Lynndie’ start with the
phrase ‘Find a victim who deserves to be “Lynndied” ’; then, ‘Make sure you have
a friend nearby with a camera ready to capture the ‘Lynndie’, ‘Make a hitchhiking
gesture with your right hand and extend your right arm so that it’s in roughly the
same position as if you were holding a riﬂe
...
14 The smile was important: the individuality and agency to which it testiﬁed were in direct contrast with the status of
the degraded and objectiﬁed ‘victim’
...
The techniques involved in creating the non-human were embedded in everyday policies, attitudes and practices
...
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231

itself to the realities of conﬂict, which are far different from the Western European
environment from which the ICRC’s interpretations of the Geneva Conventions
[is] drawn’, he alerts us to the fact that the ‘human’ in his conception is Western
...

Four main anthropogenetic strategies help draw the line between the human,
the inhuman, and the non-human: torture, religion, human rights, and trauma
narratives
...
The shock of the current ‘war on terror’ resides particularly in the
way acts of inhumanity have focused on the sexualized body
...
Where discrepancies of power between protagonists are so disproportionate as to render systems of law (national or international)
hollow, and where individuals from forty different nations can languish in the
liminal space of Guantánamo Bay, a place of doubtful legal status (‘in’ but not ‘of ’
Cuba, a country with which the U
...
has no diplomatic ties), politics operates on
the body
...

It is surprising, therefore, that although sex has been used cynically and relentlessly in the ‘war on terror’, there has been little analysis of a sexualized dimension
...

This occurred despite the fact that the full extent of the abuse has been concealed
...
16 In particular, photographs of female
victims of abuse have been deemed far too politically explosive to be placed in the
public domain
...

For many principled feminist, paciﬁst, and human rights campaigners, it has been
difﬁcult incorporating the existence of female perpetrators into their analyses of

9780719079740_C08
...
Although there were women abusers in former conﬂicts – from
Buchenwald to the Balkans – they were easily marginalized, both descriptively and
theoretically
...
The focus has generally been on Private Lynndie England,
Private Megan Ambuhl and Specialist Sabrina Harman
...
Condaleezza Rice (responsible since October 2005 for managing the occupation)
...
Larry
(England) is effortlessly substituted for Lynndie
...
Face-to-face with images of female perpetrators and powerful female
leaders implicated in torture (including sexual torture), theories premised on the
assumption that it is the male of our species who are ‘rapists, rape fantasists, or
beneﬁciaries of a rape culture’17 become (at best) wishful thinking
...
This takes many forms
...
18 But I, for one, fail to be convinced by arguments reducing the complexity of human society and history to a connection with our primate ancestors
...

One prominent version draws attention to an instinct unique to the female sex
...
And because
(according to this view) the maternal instinct is unconstrained by culture (being
entirely based on timeless biological urges), the female soldiers’ involvement in
torture was (in the words of one commentator on the Abu Ghraib abuses) ‘yet another
lesson in why women shouldn’t be in the military
...
20 This approach encourages an emphasis on Lynndie England’s pregnancy
and the alleged fact that the female perpetrators were ‘smitten with [Charles] Graner’,
the man most frequently seen in the photographs
...
Women come to adopt the same attitude toward,

9780719079740_C08
...
As women become similar to men in social, economic and cultural terms,
inhuman behaviour carried out by women is sure to rise (so this story goes)
...
22 The shared militarization
and masculinization of feeling dissolves conventional gender divisions
...
In
Churches throughout the West, Abu Ghraib has been used to call the ﬂock back
to a more conservative morality
...
The National Coalition for the Protection of Children
and Families put it bluntly when it declared that the torture photographs were
‘liberalism taken to its natural and logical conclusion’, drawing attention particularly to the ‘tangled web of licentious behaviour, sexual perversion, inﬁdelity, and
promiscuity’ within the military
...
23 In this line of argument, responsibility
is neatly diffused
...
He noted that
If porn or MTV or Howard Stern can be said to have induced a ‘few bad apples’ in
one prison to misbehave, then everyone else in the chain of command, from the
commander-in-chief down, is off the hook
...
24

Pornography creates torturers? Or maybe inhumanity has been sponsored by the
feminist movement? Phyllis Schlaﬂy certainly thinks so, predicting that the photograph of Lynndie England holding a man on a leash would ‘soon show up on the
bulletin boards of women’s studies centers
...
25
Setting aside Phyllis Schlaﬂy’s send-up of feminists (which portrays women as
emotionally brutalized rather than overly fond of mimicking men), this explanation of female perpetration implies a male norm, into which women passively fall
...
After all, one of
the most powerful aspect, of the female perpetrators of Abu Ghraib is that the (penisless) women trumped male power, not only in the sense that these women
claimed omnipotence in relation to the male prisoners, but also because they had
no need to use a penis to do so
...
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or (ﬁre-) arm
...
But in those forms of sexual abuse employing the penis, the perpetrator’s
attention begins to ‘slip down the weapon toward the vulnerable end’, contesting
its power
...

Finally, some attempts to understand female perpetrators at Abu Ghraib ask:
might sexual violence ‘masculinize’ torturers who happen to be biological female,
while ‘feminizing’ victims who happen to be biologically male? In studies focusing
on sexual violence in war and in prison contexts, this is a popular argument
...
On this account, cruelty is
synonymous with virility and the female abuser is ‘really’ a man
...
27
At ﬁrst sight, this is a simple way out of the dilemma: nothing much changes –
just a few labels
...
There is an easy logic to
the argument
...
In Abu Ghraib,
for instance, male prisoners were goaded for being ‘girls’ and were forced to wear
female underwear
...
But to say this turns female perpetrators into ‘social men’ is both to imply an essential link between manliness
and violence, and to reinforce the dichotomies male-active and female-passive
...

Moreover, what we have seen in Iraq (and elsewhere) is not women participating in masculine rituals, but women using conventional tropes of their gender
to shame and subjugate
...

We have to take seriously the idea that female perpetrators are not simply imitating men, but living out their own fantasies about power and sexuality
...
28
This was what made much of the world recoil in horror when the Abu Ghraib
photographs were released: female rapists as agents of extreme sexual cruelty
...
Even when women were engaging in abuses

9780719079740_C08
...

Outrage was also sparked by the fact that the most widely reported victims of
sexual abuses in Abu Ghraib, Basra, and elsewhere in the ‘war on terror’ were not
the ‘usual victims’ (women),29 but men
...
For many heterosexual men, it is a hard detail to accept, particularly in wartime when the military encourages the notion of the invulnerable
male body
...

The tortured body, in particular, transcends ‘straight’ gendered inscriptions
...
The tortured
male body is both phallic and a receptacle
...
One prisoner
recalls being sexually abused by American guards:
He said to me, ‘Are you married?’ I said, ‘Yes’
...
One of them said, ‘But if I saw her now, she would
not be disappointed now because I would rape her’
...
Neither
tumescence nor detumescence can guarantee patriarchy; both here become a
show of weakness
...

All bodies are permeable and appropriable by the in-human
...
After all, it is the
in-human – the torturers and their masters – who deﬁne the human
...
However, the in-human is also presented in terms of a universal humanity devoid of (indeed, transcending) gender
...

The suffering subject, on the other hand, is deﬁned as lacking ‘true’ humanity,
burdened with an excess of body
...
Not only does such a ‘bunching’

9780719079740_C08
...
In
creating a hierarchy of suffering, we are thus again reduced to endorsing abuse
...
Religion, human rights, and trauma narratives are three other mechanisms for rationalizing suffering
...
Indeed, in the politics of
the corporeal, Christianity is central
...

When he replied ‘yes’, they yelled, ‘Fuck you’ and ‘Fuck him’
...

‘They ordered me to thank Jesus that I’m alive’, he recalled, ‘And I did what they
ordered me’
...
Bush’s love of the anti-Babylonian
prophet Ezekiel, the administration’s frequent use of millenarian rhetoric, and the
strong sacriﬁcial undertones of much contemporary Protestantism (when the Abu
Ghraib photographs were released, audiences were watching entranced as Jesus was
tortured in Mel Gibson’s Passion of Christ), have provided a convincing religious
lens through which to ‘read’ torture
...

Messianic Protestantism, predicated on the Book of Revelations and infused with
evangelical moralism, encourages a notion of unending war on evil and the AntiChrist – without any sense of accountability
...
Was
this the hope of the nine-year-old American girl from ‘Our Lady of Peace’, a
Catholic school? It seems not: she sent members of an interrogation unit in Iraq a
drawing of aeroplanes dropping bombs on small ﬁgures wearing turbans
...
34
Even more noticeable is the use of the secular religion of our times (that is, human
rights) to justify suffering by deciding who stands outside the threshold of the human
...
After a while, we stopped asking for human rights – we wanted animal rights
...
He had a wooden house with air conditioning and green grass to exercise on
...
S
...
36

9780719079740_C08
...
37 And, because of the cultural
link between animality and femaleness, it is no coincidence that the male rendered
non- or sub-human is more shocking than the female similarly reduced
...
Innumerable, hidden particulars have been laid bare: the ‘human’
of traditional human rights speech is swathed in a white skin, a Western body
...
This is one of the reasons
why it has taken so long to get the rape of women understood as a mainstream human
rights issue, as opposed to an issue of discrimination
...
Here is his lawyerly dodging of the prohibition on ‘cruel and unusual
punishments’ on page 135 of Why Terrorism Works:
Constitutional democracies are, of course, constrained in the choices they may
lawfully make
...
But if a suspect is given
immunity and then tortured into providing information about a future terrorist
act, his privilege against self-incrimination has not been violated
...

Dershowitz is not alone – Michael Ignatieff shocked many people when he, too,
defended the use of sleep deprivation and ‘keeping prisoners in hoods’
...
Bybee’s deﬁnition of torture (which introduced this chapter) not only gave legal legitimacy to extreme acts, but also legitimated acts inﬂicted only to obtain information and with the intention to cause only short-term
harm
...
Although Bybee’s memo was later
rescinded (in December 2004), it had profound inﬂuence on policy
...
She advised that a public ofﬁcial would not have
violated the Eighth Amendment

9780719079740_C08
...
The federal torture statute will not be violated so long as any of
the proposed strategies are not speciﬁcally intended to cause severe physical pain
or suffering or prolonged mental harm
...
39 Yet Vice-President Cheney was able to respond to Amnesty International’s 2005 report condemning various American practices with the dismissive
line, ‘For Amnesty International to suggest that somehow the United States is a
violator of human rights, I frankly just don’t take them seriously’
...
40 In the ﬁght to bring democracy to the
Iraqis, torture was, it seems, inevitable
...
If only they had told the truth, ‘we’ would not need
to torture them thus
...
41
VI
This is hardly new to the current ‘war on terror’
...
These contexts fan out from the U
...

prison complex, to the detainees in Guantánamo Bay and, ﬁnally, to the international colonial project
...
What happened in Abu Ghraib is inextricably linked to
everyday prison practices in America, particularly within the supermax units where
all prisoners are viewed as violent threats thus requiring extreme repression
...
S
...
42 Actions amounting to torture continue to be practised within these
institutions
...
The fact that many
of the abusers at Abu Ghraib were former guards in civilian life is no coincidence
...
Ivan Frederick, one of the perpetrators of the abuses in Abu Ghraib, admitted the usefulness of his work-experience
at Buckingham Correctional Center in Virginia
...
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239

observed, ‘because of my civilian background working as a correctional ofﬁcer
...
43 Specialist Charles Graner
was also a product of this environment, having served as a guard at Pennsylvania’s
Greene State Correctional Institute
...
According to the attorney of a prisoner at the Greene
State Correctional Institute, prisoners were regularly blungeoned by a prison guards
...
‘What
they are running [at Greene] is a concentration camp’, this attorney noted, adding,
‘It’s like an Alcatraz mentality
...
In my 22 years as an attorney, I have
never seen such a place as Greene
...
44 Though
he did not explictly refer to sexual violence, there is abundant evidence showing
that rape too is endemic in American prisons
...
45 However, other commonly cited estimates
range from anything between 1 per cent and 22 per cent
...
According to the best
analysis, before 9/11 there were more than 20,000 immigrants (many unable to
speak English) being held in custody in the U
...
A
...
47 Since
9/11 the number of detainees held without charge in American prisons is estimated at over 50,000
...

The legal status of Guantánamo Bay may seem doubtful but does, in fact, arise
out of the legacy of Insular Cases decided by the Supreme Court between 1902
and 1922
...
A territory can ‘belong to’ but ‘not be part of ’ the
United States
...
S
...
In other words, rather than being
aberrant, Guantánamo resides at the centre of American imperial traditions
...
As was seen
during the French-Algerian War, France’s need to propagate its doctrines of human
rights went hand in hand with its ‘ideology of the mission civilisatrice’
...
Those operating in its aura ignored or
were oblivious to its inherent contradiction that restricted who might qualify for full
status as ‘man’
...
When this process was disrupted by the Algerian

9780719079740_C08
...
By this logic, torture,
one of the unusual means, was justiﬁed
...
50 In the words of Omar Rivabella
in Requiem for a Woman’s Soul, they ‘torture in the name of justice, in the name of
law and order, in the name of the country, and some go so far as pretending they
torture in the name of God’
...
One of the main agents in this process is that pre-eminent power engaged in deﬁning human rights – the United States
...
The group with most
clout decides
...
For instance, claims that the Middle
Easterner’s culture is anti-secular (and thus ‘behind the times’), governed by appeals
to absolute (religious) authority, and regulated by ‘cultural’ factors deprive the Middle
Easterner ‘both of a formative role in the global arena and, conversely, of reasons
for behavior that might have international origins’
...
In much human rights speech, however, ‘secular’ has been designated the dominant and universal, while ‘religious’ is dismissed as representing
the particular and local
...
S
...
) to operate
what legal sociologist Boaventura de Sousa Santos dubbed a kind of ‘globalised localism’
...
It is the ‘global localism’ of the Bush administration that decides who is the ‘human’ in the ‘human rights’ equation, and which
rights that ‘human’ is entitled to
...
Debate about the rape of women
in prisons (including Abu Ghraib) in Iraq is muted, for instance, as is analysis of

9780719079740_C08
...
The U
...
News and World Report even
blamed the Abu Ghraib torture on ‘the lack of a reliable local brothel where male
soldiers are able to unwind
...
54 The ‘beast in all
men’, exacerbated in the crucible of war, is here being used to justify the abuse of
women through legalized prostitution
...

There are innumerable other examples drawn from previous conﬂicts
...
At
one stage in his article entitled ‘Sex Behavior in a War Environment’, Hart noted
that over 10 per cent of the men had ‘suffered penile trauma’ on one occasion during their military service and 5 per cent had done so more than once
...
In his words:
Failure [of the women] to indulge in fellatio at this stage often proved traumatic
...

This discussion of forced sex is positioned as if it constituted a natural aspect of
wartime sexuality
...
Hart does mention sexual ethics:
History continually relates how ethical and moral codes change radically under conditions of war
...
55

The forced sexual acts carried out by soldiers are placed in the context of ‘promiscuity’
...
In other words, pathologizing some acts of sexual violence,
particularly those against a racially different enemy, but also those against certain
classes of women (‘prostitutes’ as opposed to ‘women’), normalized sexual violence
...
To such arguments, a common Iraqi expression might
be posited: ‘An excuse uglier than the guilt’
...
When he used the word
‘trauma’, he was referring to physical damage to men’s intimate bodies
...
Psychological
‘trauma’, inscribed on the body, has become the slogan of our time
...
S
...
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been practised (with executive knowledge) by the CIA since the Cold War: so-called
‘no touch torture’ (or psychological methods) has garnered the largest proportion
of funding precisely on the grounds of its efﬁciency in accelerating breakdown
...
The invention of posttraumatic stress disorder in the 1980s was precisely a mechanism that allowed
individuals who had tortured and raped Vietnamese women and men to be portrayed (and to portray themselves) as victims
...
In the contemporary ‘war on terror’, psychological trauma experienced by
service personnel in Iraq is also being used to justify abuse
...
you ever heard of emotional release? You of heard [sic] of need to blow some
steam off?57
The use of the trauma trope has had three main effects
...
It is
to reduce the individual to his or her animal substructure, to an undifferentiated
identity as a body-in-pain
...
Instead of
history, we have a universalist notion of the body
...
To universalize it is to remove
the speciﬁcs of an individual’s history; it is to situate torture in the realm of
moral ediﬁcation
...
The speciﬁcities of the past enable us to imagine a future in which there is no ‘inevitable’
...

As General Mark Kimmitt, Deputy Director of Coalition Operations in Iraq, told
60 Minutes II, ‘So what would I tell the people of Iraq? This is wrong
...
I’d say the same thing to the American people
...
58 ‘Rotten apples’ have been identiﬁed; the putrid barrel,
ignored
...
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243

happened at Abu Ghraib as somehow an aberration from ‘American’ practices
...
Broader structural forces are overlooked
...
Those who practice systematic and
instrumental cruelty (as promoted by the most powerful agents within political institutions) are left alone
...
In the words of the CIA document of 1963,
KUBARK Counterintelligence – July 1963, coercion is ‘simply a method for obtaining correct and useful information’
...
So
long as the guidelines are followed and torture is conducted in a dispassionate, instrumental way, all is well
...
They took obvious pleasure in their duties
...

The ﬁnal effect of the trauma narrative has been to insist that the perpetrators
are not the only ones ‘traumatized’ in the ‘war on terror’: so too are the witnesses
and bystanders
...
In the end, then, torture
is about us
...
60 As Senator Joseph Biden told the Senate Foreign Relations
Committee hearings, adherence to the laws of war was crucial to protect American
service personnel
...
The chief questions focused on us: what effects would
the abuses have on our security; would the photographs increase our risk? The Iraqi
victims ceased to ‘be’ after the camera-ﬂash
...

IX
The Bush administration may have become one of the most secretive in modern
history, but the result has been a proliferation of talk
...
The (Iraqi) dead
are not counted; the (American) dead are quietly returned to American soil
...
When the
images from Abu Ghraib were ﬁrst brought to public attention, leading politicians
urged Americans to avert their eyes from the photographs
...

But the unspeakable has become the unsilenceable
...
They rapidly entered art galleries – as art
...
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issue of Vogue) adopted poses from this ‘war on terror’, including ones drawn
explicitly from the torture in Abu Ghraib
...
Viewers were unable to distinguish
between the two
...
The images were fetishized, released from historical context and the speciﬁcs of the interaction between torturer and tortured
...
Even the tortured can forge ethical meaning in the midst of the inhuman
...
In his words:
When we were naked he ordered us to stroke, acting like we were masturbating and
when we start to do that he would bring in another inmate and sit him on his knees
in front of the penis and take photos which looked like this inmate was putting the
penis in his mouth
...
After this they make Hashim
...
After this they asked
Hashim to hit me, so he punched my stomach
...
61

This was a gift: a gift not as contract, commodity, or even social exchange: there
was no bond of obligation established (indeed, it was purposefully refused) and no
debt was bestowed with obligations attached
...

In contrast, our security – and, since the bombs in London, our suffering – have
become the main ways we justify inﬂicting misery on others
...
Dehumanized bodies
are our abjection, the visible border that designates subject from object, human from
non-human
...
Attempts
to insist upon a universal humanity posited upon a shared corporeality are doomed
to fail, undermined by those states of power that construct our bodies according to different graduations of humanness
...
But we should not despair
...
Nor is there a universalist deﬁnition of the human
...

If, as Pierre Bourdieu put it, human rights are ‘nothing other than the most universal gains of previous struggles’,62 then perhaps Nori Samir Gunbar Al-Yasseri’s
striving to be more than human can point to a new way of deﬁning basic humanity
...
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245

Notes
1 Mark Danner, ed
...

2 Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Abingdon Routledge-Cavendish, 2007), chapter 5
...
Bybee to Alberto R
...

4 Torture and Truth (note 1), 228
...

5 Jean Baudrillard, The Gulf War Did Not Take Place (Bloomington: Indiana University
Press, 1985)
...
1 (winter 2004), 186
...
Saadi A
...

8 Simone de Beauvoir, La Force des Choses, vol
...

9 Eric Hobsbawm, ‘Barbarism: A User’s Guide’, New Left Review 206 ( July/August
1994), 44
...
Giroux, ‘What Might Education Mean After Abu Ghraib:
Revisiting Adorno’s Politics of Education’, Comparative Studies of South Asian Africa,
and the Middle East 24
...

11 ‘Notebook’, The New Republic, 24 May 2004, 10
...

villagevoice
...
php?id=53375&page=goldstein2&issue
...

14 See http://badgas
...
uk/lynndie/
...
Fowler, Charles A
...

Blackwell, Jr
...
S
...

globalsecurity
...
pdf
...

17 There are innumerable examples of this logic, but a typical one is Adriene Sere, ‘Man
and the History of Rape’, at http://holysmoke
...
htm
...
White and Robin M
...

19 For a critique, see my study, Rapists: A History (London: Virago, 2007)
...

21 Tony Gutierrez, ‘Lynndie England Convicted in Abu Ghraib Trial’, U
...
A
...
usatoday
...
htm
...
I
...

22 Bonnie Mann, ‘How America Justiﬁes Its War: A Modern/Postmodern Aesthetics of
Masculinity and Sovereignty’, Hypatia 21
...
Mann is writing from a
feminist perspective and accepts that military women remain the ‘lesser partner’
...
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23 National Coalition for the Protection of Children and Families, ‘Abu Ghraib: Lessons
in S-xual [sic] Morality’, www
...
org/culture/articles/ca050523
...

24 Frank Rich, ‘It Was Porn That Made Them Do It’, New York Times, 30 May 2004, AR1
and AR16
...
eagleforum
...
html
...

27 ‘Bitch Bites Man!’ (note 12)
...
Judith Butler and Joan W
...

29 It has already been noted that there were plenty of female victims, whose privacy the
U
...
government is somehow inclined to protect
...

31 Ameen Sa’eed Al-Sheikh in Torture and Truth (note 1), 217
...
, 219
...
1 (winter 2005), 141–66
...

35 For the best discussion, see Costas Douzinas, The End of Human Rights (Oxford: Hart
Publishing, 2000)
...
mirror
...
uk/news/allnews/content_objectid=14042696_method=full_siteid=
50143_headline=-MY-HELL-IN-CAMP-X-RAY-name_page
...

37 See Hannah Arendt, The Origins of Totalitarianism (San Diego: Harvest Books, 1979),
292 and Karen Halttunen, ‘Humanitarianism and the Pornography of Pain in AngloAmerican Culture’, American Historical Review 100
...

38 Michael Ignatieff, ‘Lesser Evils’, New York Times Magazine, 2 May 2004, 86
...

40 Cheney Offended by Amnesty Criticism’, CNN
...
com
...
ccmep
...
htm
...
3 (September 2003), 973–97
...
buzzﬂash
...
html
...

45 For estimates, see Alan J
...
Wooden and Joy Parker,
Men Behind Bars: Sexual Exploitation in Prison (New York: Plenum Press, 1982), 99
...
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247

46 For lower estimates, see Peter L
...
Kane, ‘Inmate Sexual Aggression:
Some Evolving Propositions, Empirical Findings, and Mitigating Counter-Forces’,
Journal of Offender Counseling, Services, and Rehabilitation 9 (1984), 10–11
...

47 Michael Welch, Detained: Immigration Laws and the Expanding I
...
S
...

48 Final Report of the Independent Panel to Review DOD Detention Operations (note 14)
...
3 (September 2005),
831–58
...
Christina
Duffy Burnett and Burke Marshall (Durham, NC: Duke University Press, 2001),
389–92
...

51 Omar Rivabella, Requiem for a Woman’s Soul (New York: Penguin, 1986), 86
...

52 Kevin Dwyer, ‘Beyond a Boundary?: “Universal Human Rights” and the Middle East’,
Anthropology Today 13
...

53 Boaventura de Sousa Santos, Toward a New Common Sense: Law, Science and Politics in
the Paradigmatic Transition (London: Verso, 1995), 263
...
S
...
18
(24 May 2004), 30
...
3
(August 1975), 223
...
McCoy, ‘Cruel Science: CIA Torture and U
...
Foreign Policy’, New England
Journal of Public Policy, 19
...

57 ‘Rush: MPs Just “Blowing Off Steam” ’, CBS News, 2 May 2004, in www
...

com/stories/2004/05/06/opinion/meyer/main616021
...
Also see Jack Hitt, ‘The
Diddly Award’, Mother Jones, September/October 2004, in www
...
com/
news/feature/2004/09-401
...

58 ‘Court-Martial in Iraq: U
...
Army Soldiers Face Court-martials for Actions at
Baghdad’s Abu Ghraib Prison’, 60 Minutes II, 28 April 2004, in http://globalresearch
...
html
...
gwu
...
pdf
...
Shepard, ‘International Law and the War on Terrorism’, Mediterranean
Quarterly 16
...

61 Torture and Truth (note 1), 229
...

9780719079740_C08
...
Until art itself (literature and poetry more than the visual arts) probes
this experience, we have to make do with the mediation of critics
...
In vivid word-images and quotations she exposes the spectacle of degradation, and in the same breath blames us (and herself) for being complicit in it
...
It invites us to blame ourselves for the very abuse that it
condemns
...
This ambiguity (we are forced to admit) is a feature of our post-modern condition
...
A ﬁne intelligence is at work
there, and cannot help imparting the (disturbing, but also pleasing) glow of insight
...
This is not to blame the analyst – we need to meditate on evil as best we
can, with the blinkers we have
...

It is no criticism of criticism to say that art is likely, eventually, to do it better
...
It falls within the domain of the perverse and the abnormal, though (as the author points out) that often gets normalized
in the discourse of the permissive society
...

They underline the means of torture, but not its ends
...
There is an implication in these texts that torture might be expressive rather than instrumental
...

9780719079740_C08
...
Victorian liberalism was presented by its advocates as an alternative to militarism and empire
...
1 In economic theory, as in economic exchange, trade may be adversarial, opportunistic, strategic – but it is not
permitted to be violent
...
In the
service of trade, it is forbidden to maim and kill
...
For markets to work their magic, transactions have to be voluntary
...
Traders hope to continue to deal with each
other
...
Probity engenders trust, and trust makes trading easy
...

The Victorian and Edwardian efforts to tame war were part of the same liberal
vision
...
These were ﬁrst, the distinction between combatants who
are legitimate targets of violence, and non-combatant civilians, who have immunity from violence under protection of the law
...
Once arms have been laid down, the erstwhile combatant is granted immunities similar to those of other non-combatants
...

The same Hague conferences also strove to set up immunities for commerce
in wartime
...
This liberal regime of commerce, together
with the restatement of the laws of war, of jus in bello (justice in warfare), were an
effort to insulate non-combatants, whether neutral merchants or non-bearers of
uniforms and arms, from the violence of war
...
Europe had experienced peace and rising prosperity, almost unbroken, for
almost a century
...

Hence the acceptability of ethnic, cultural and religious outsiders, of Chinese,
Indians, Quakers, Huguenots, Venetians, Jews
...
In a world of business based fundamentally on trust, repeated
transactions established reputations, identities and acceptance of protagonists, at

9780719079740_C08
...
Indifference to identity was transformed by repetition
into reliance on identity
...
The hostile Soviet bloc (an
ideological enemy of markets and commerce) collapsed and gave way to this ideal
in 1989, and one neo-liberal (Fukuyama) famously proclaimed it as the End of History
...
That, at
any rate, was the proclaimed purpose of the ‘Washington Consensus’
...
The reason they
failed to appreciate the beneﬁts was that a global dollar hegemony undermined their
own existing local hegemonies
...
Across the various global peripheries the spread of globalization (in its commercial or military forms) menaced those
who had held sway there before as domestic generals, chieftains, politicians and priests
...
Between the wars, Britain used air power extensively to intimidate village chieftains
...
S
...

today
...
A challenge to selfhood, to
the honour of the family, to the integrity of the nation and its symbols, to the icons
of religion, justiﬁes discarding restraint and resorting to violence
...
In response, it was rightly pointed out that
the perpetrators of terror were often well educated and well off
...
Even Ayatollah Homeini or Mullah Omar belonged to
their countries’ elites
...
However powerful on the spot, these local
elites could not compete in the dollar game
...
No one has claimed the reward for Bin Laden yet
...
The challenge of dollar globalization
has elicited a broad range of evasive and defensive responses, across the globe
...
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251

some fractions of the elites, the threat to identity appeared to brook no compromise
...

The insult of 9/11 provided America with a licence to abandon the ethics of
commerce
...
Although the nation was
scaled up out of a mosaic of ethnicities, its patriotism was cemented by fear and
loathing of the world beyond
...
This
tradition of violence possibly harks back to the adversarial traditions of Northern
Irish Protestant religion
...
This creed is potentially in
conﬂict with the benign liberal/utilitarian calculus of co-operative advantage
...
No rules in self-love and war – it comes to
the same thing
...
4
Long before 9/11, through the proxy conﬂicts of the Cold War, that dour individualist stream had muddied the waters of globalization with a creed of military
dominance
...
The
deﬁnition of the enemy as intangible (‘terror’) and the choice of disinhibited
means (‘war’) licensed the rejection of civility and a civilian response
...
That armed civilians sheltering in
the population resisted the occupations of Iraq and Afghanistan weakened further
the self-imposed restraints of bourgeois warfare
...
It was a rejection of the restraint and self-control of
the prudent businessman and a surrender to the atavistic celebration of cruelty that
Bourke provides a glimpse of
...
The defences
of civility and humanity are thin, while the argument from necessity is often compelling
...
For many of us the temptation of barbarism
is always there, and we need to cling to the formalities of conventions, law and
custom, to the thin civilities of commerce, to protect us from the worst aspects of
ourselves
...
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Notes
1 D
...
M
...
III
...
A
...

2 G
...
A
...

3 Anatol Lieven, America Right or Wrong: An Anatomy of American Nationalism (London:
HarperCollins, 2004)
...
David Fate Norton and Mary
J
...
2, pt
...
267
...
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Shaykh Muhammad Aﬁﬁ al-Akiti

Defending the transgressed by censuring the reckless
against the killing of civilians
1

I Introduction and TaqrCT – Shaykh Gibril F
...

Gentle reader, Peace upon those who follow right guidance!

I am honoured to present the following fatwA or ‘response by a qualiﬁed Muslim
Scholar’ against the killing of civilians written by the Oxford-based Malaysian
jurist of the Shaﬁ‘c School, my inestimable teacher, Shaykh Muhammad Aﬁﬁ al-Akiti,
and entitled Defending the transgressed by censuring the reckless against the killing of
civilians
...
K
...

Upon reading Shaykh Aﬁﬁ’s fatwA, do not be surprised if you have never before
seen such clarity of thought and expression together with breadth of knowledge of
Islamic Law applied (by a non-native speaker) to the deﬁnition of key Islamic concepts pertaining to the conduct of war and its jurisprudence, its arena and boundaries, suicide bombing, the reckless targeting of civilians, and more
...

9780719079740_C09
...
Distribute it, publicize it, and teach it
...

I have tried to strike the keynote of this FatwA in a few lines of free verse, mostly
to express my thanks to our Teacher but also to seize the opportunity represented
by this long-hoped-for response to remind myself of the reasons why I embraced
Islam in the ﬁrst place
...

Patient endurance lifts the oppressed to the heights
While gnarling mayhem separates like with like:
The innocent victims on the one hand and, on the other,
Silver-tongued devils and wolves who try to pass for just!
My God, I thank You for a Teacher You inspired
With words of light to face down Dajjal’s advocates
...

Let every lover of truth proclaim, with pride once more,
What the war-mongers try to bury under lies and bombs:
Islam is peace and truth, the Rule of Law, justice and right!
Murderous suicide is never martyrdom but rather perversion,
Just as no ﬂag on earth can ever justify oppression
...

I have also provided an alphabetical glossary of Arabic terms not already glossed
by the Shaykh directly in the text
...
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255

May Allah SubQAnahu wa-Ta‘AlA save Shaykh Muhammad Aﬁﬁ here and hereafter,
may He reward him and his teachers for this blessed work and grant us its muchneeded beneﬁts, not least of which is the redress of our actions and beliefs for our
safety here and hereafter
...

Gibril F
...
The
article was issued by Al-Muhajiroun, which is headed by Omar Bakri Mohammed;
whatever our reservations about the man, it is the content I am more concerned
about, and it is these types of writings which need to be countered
...
However for

9780719079740_C09
...
For them, attacks such as the
September 11th Hijackings is [sic] a viable option in jihAd, even though for the Muslims
living in America who are under covenant, it is not allowed to do operations
similar to those done by the magniﬁcent 19 on the 9/11
...
]

Shaykh Muhammad Aﬁﬁ al-Akiti’s reply:

[In the name of God, the Merciful and Compassionate
...
May Allah
open our eyes to the true meaning [QaqCqa] of Rabr and to the fact that only
through it can we successfully endure the struggles we face in this dunyA, especially during our darkest hours; for indeed He is with those who patiently endure
tribulations!
There is no khilAf that all the Shaﬁ‘c fuqahA’ of today and other Sunni specialists
in the Sacred Law from the Far East to the Middle East reject outright [mardEd]
the opinion cited above from Al-Muhajiroun and consider it not only an anomaly
[shAdhdh] and very tenuous [wAhin] but also completely wrong [bASil] and a misguided innovation [bid‘a PalAla]: the ‘amal can never be adopted by any mukallaf
...
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257

an effort to hijack our Law by invoking just one of the many qaPAyA of this bAb
while recklessly neglecting others)
...

The above opinion is problematic in three legal particulars [ fuREl]:
1 the target [maqtEl]: without doubt, civilians;
2 the authority for carrying out the killing [Amir al-qitAl]: as no Muslim authority
has declared war, or if there has been such a declaration there is, at this time, a
ceaseﬁre [hudna]; and
3 the way in which the killing is carried out [maqtEl bih]: it is either QarAm – and
cursed, since it is a form of suicide [qAtil nafsah] – or at the very least so doubtful
[shubuhAt] that it must be avoided by those who are religiously scrupulous [wara‘]
...
Whether he realizes it or not, by adopting this view or acting on it he would be hijacking rules from
our Law that are meant for the conventional (or authorized) army of a Muslim state
and are addressed to those with authority over it (such as the executive leaders,
the military commanders and so forth) and not to individuals who are unconnected
to the military or who lack the political authority of the state [dawla]
...

FaRl I
...

This opinion violates a well-known principal rule [PAbiS] from our Law:

[It is not permissible to kill their (i
...
, the opponents’) women and children if they
are not in direct combat
...
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258

both!) related by Imams Malik, al-Shaﬁ‘c, Aqmad, al-Bukharc, Muslim, Ibn Majah,
Abe Dawed, al-Tirmidhc, al-Bayhaqc and al-Baghawc (may Allah be well pleased
with them all!) and other ladcths
...
The standard rule of engagement deduced
from it is that: ‘[a Muslim soldier] may not kill any women or any child-soldiers
unless they are in combat directly, and they can only be killed in self-defence’
...
The nature of this prohibition is
so speciﬁc and well deﬁned that there can be no legal justiﬁcation or legitimate shar‘C
excuse for circumventing this convention of war and targeting any non-combatants
or civilians whatsoever
...

FaRl II
...

This opinion violates the most basic rules of engagement from our Law:

[The question of declaring war (or not) is entrusted to the executive authority and
to its decision: compliance with the authority’s decision is the subject’s duty
...
]

In a Muslim state, decisions on questions relating to ceaseﬁre [‘aqd al-hudna], peace
settlement [‘aqd al-amAn] and the judgment of prisoners of war [al-ikhtAr fC asCr]
can only be taken by the executive or political authority [imAm] or by a subordinate authority appointed by the former authority [amCr mansEbin min jihati limAm]
...
The most basic legal reason [‘illa aRliyya] is that this matter

9780719079740_C09
...
]

and:

[So the authority must act for the greatest advantage of (all) Muslims in making its
judgment
...
Hence, if there are other ways of achieving the aim and the highest aim is the
right to practice our religion openly (as we can in today’s Spain, for example, in
contrast with medieval Reconquista Spain), then it is better [awlA] not to go to war
...
]

The upshot is – whether one likes it or not – that the decision and discretion and
right to declare war or jihAd for Muslims lie solely with the various authorities as
represented today by the respective Muslim states; they do not lie with any individual, even if he is a scholar or a soldier (and not just anyone is a soldier or a scholar);
in the same way that an authority (such as the QAPC in a court of law: maQkama)
is the only one with the right to excommunicate or declare someone an apostate
[murtadd], whose killing would otherwise be extra-judicial and unauthorized
...
This is
how it has been throughout our long history, and this is how it will always be, and
this is the reality on the ground
...
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FaRl III
...

There is no khilAf on this question from any qAPC, muftC or faqCh that this proposition and those who accept it are breaching the scholarly consensus [mukhAlifun
lil-ijmA‘] of the Muslims since the ‘Hijackings’ resulted in the killing of noncombatants; moreover, the proposition is an attempt to legitimize the killing of indisputable non-combatants
...
On this, we must enter into detail
...
e
...
)
TafRCl I
If the attack involves a bomb placed on the body or placed so close to the bomber
that when the bomber detonates it he or she is certain [yaqCn] to die, then the More
Correct Position [Qawl ARaQQ] according to us is that it does constitute suicide
...
e
...

FUR5‘
If the attack involves a bomb (the lobbing of a grenade and the like) but the attacker
thinks that when the bomb is detonated, it is uncertain [Tann] whether he will die
in the process or survive the attack, then the Correct Position [Qawl MaQCQ] is that
this does not constitute suicide, and were the bomber to die in this selﬂess act, he
becomes what we properly call a martyr or hero [shahCd]
...

An example [REra] of this is: when in its right place and circumstance, such as
in the midst of an ongoing battle against an opponent’s military unit, whether ordered
by his commanding ofﬁcer or on his own initiative, the soldier makes a lone charge
and as a result of that initiative manages to turn the tide of the day’s battle but dies
in the process (and not intentionally by his own hand), then that soldier dies as a
hero (and this circumstance is precisely the context of becoming a shahCd – in Islamic

9780719079740_C09
...
If he survives, he wins a Medal of Honour or
at the least becomes an honoured war hero and is remembered as a famous patriot
(in our terminology, becoming a true mujAhid)
...
The Umma’s Doctor
Angelicus, Imam al-Ghazalc (may Allah be pleased with him!) provides the best impartial summation:
If it is said: What is the meaning of the words of the Most High:

[and do not throw yourself into destruction by your own hands!]?5
We say: There is no difference [of opinion amongst scholars] regarding the lone
Muslim [soldier] who charges into the battle-lines of the [opposing] non-Muslim
[army that is presently in a state of war with his army and is facing them in a battle] and ﬁghts [them] even if he knows that he will almost certainly be killed
...
Indeed, Ibn ‘Abbas (may Allah be well pleased with both of them!) says: [the
meaning of] ‘destruction’ is not that [incident] but the failure to provide [adequate]
supplies [nafaqa: for the military campaign; in the modern context, the state
should provide the arms and equipment and so forth necessary for the purpose for
which all of this is done] in obedience to God [as in the ﬁrst part of the Verse which
says:
(And spend for the sake of God)6]
...
[In
another MaQAbC authority] al-Bara’a ibn ‘fzib [al-Ansarc (may Allah be well pleased
with them both!)] says: [the meaning of] ‘destruction’ is [a Muslim] committing a
sin and then saying: ‘my repentance will not be accepted’
...
[Ponder over this!]
In the same way that it is permissible [for the Muslim soldier in the event described
above] to ﬁght the non-Muslim [army] unto death, such acts [to that extent and
with that consequence] are also permissible [i
...
, for the enforcer of the Law, since
the ‘A’id (antecedent) here goes back to the original pronoun (PamCr al-aRl) for this
bAb: the muQtasib or enforcer, such as the police] in [matters of] law enforcement
[Qisba]
...

It is only permissible for him to advance [and suffer the consequences] if he
knows that he will be able to ﬁght [effectively] until he is killed, or knows that he

9780719079740_C09
...
Thus the
will to ﬁght [shawka] of the non-Muslim army will be shaken [and this may cause
panic and the collapse of their battle-lines]
...
It may hyperbolically be
described as a ‘suicidal’ attack: but to endanger one’s life is one thing and to die
by one’s own hand during the attack is obviously another
...

TafRCl II
If the attack involves ramming a vehicle into a military target and the attacker is
certain to die, as with the historical Japanese kamikaze missions, then our jurists
have disagreed over whether it does or does not constitute suicide
...

QAWL B

Whereas those who consider otherwise, even when the maqtEl may be the same as
the qAtil, will allow some other consideration such as the possibility that by carrying out this action the battle of the day could be won
...

The ﬁrst of the two positions is the Preferred Position [muttajih] among our
jurists
...

9780719079740_C09
...
]

Finally, the ﬁrst position is religiously safer, since, given the ambiguity of the
legal status of the person performing the act – whether it will result in the maqtEl
being also the qAtil – there is doubt [shakk] and uncertainty concerning the second position
...
And here, the wisdom of our wise Prophet (may Allah’s blessings and peace be upon him!) is illuminated by the ladcth of al-Nu‘man (may Allah
be well pleased with him!):

[He who saves himself from doubtful matters will save his religion and his honour
...
If the indiscriminate weapon is used in a place where there are civilians, it becomes QarAm
except when used as a last resort [min ParEra] (and of course, only then when used
by military personnel authorized to do so)
...

As to those who may still be persuaded by it and suppose that the action can
be excused on the pretext that there is scholarly khilAf on the details of TafRCl II
from FaRl III above (and that therefore, the ‘amal itself could ultimately be legitimated by invoking the guiding principle that one should be ﬂexible with regard to
legal controversies [masA’il khilAﬁyya] and should agree to disagree); know then
there is no khilAf among scholars that its rationale does not stand, since it is well
known that:

9780719079740_C09
...
]

This qA‘ida, which is very terse in expression, means that an action about which
there is khilAf may be excused while an action that contravenes IjmA‘ is categorically rejected
...

MasA’il mufaRRala
Question I
If it is said: ‘I have heard that Islam says that the killing of civilians is allowed if
they are non-Muslims’
...
If this is the extent
of the limitation to be observed with regard to non-Muslim civilians belonging to
a declared enemy state, how much higher will the standard be in cases where there
is no valid war or when the status of war is ambiguous? Keep in mind that there
are more than one hundred Verses in the Qur’an commanding us at all times to
be patient in the face of humiliation and to turn away from violence [al-i‘rAP ‘ani
l-mushrikCn waR-Rabr ‘alA adhA al-a‘dA’], while there is only one famous Verse in which
war (which does not last forever) becomes an option (in our modern context: for
a particular Muslim authority and not an individual), when a particular nonMuslim force has drawn ﬁrst blood
...
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[kill the idolaters wherever you ﬁnd them]9 is in reference to a historical episode: it
refers to those among the Meccan Confederates who breached the Treaty of
ludaybiyya [SulQ al-Ludaybiyya] that led to the Victory of Mecca [FatQ Makka],10
and consequently, no legal rulings, or in other words, no practical or particular implications, can be derived from this Verse on its own
...
e
...
Had the Verse not been subject to a historical context, then you should know that, since it is of the general type
[‘Amm], it will therefore be subject to speciﬁcation [takhRCR] by some other indication [dalCl]
...

Among the well known exegeses of ‘al-mushrikCn’ from this Verse are ‘annAkithCna khARRatan’ [speciﬁcally, those who have breached (the Treaty)];11 ‘al-ladhCna
yuQAribEnakum’ [those who have declared war against you];12 and ‘khARRan fC mushrikC
l-‘arabi dEna ghayrihim’ [speciﬁcally, the JAhilC Arabs and not anyone else]
...

To sum up, we are not in a perpetual state of war with non-Muslims
...
(Moreover, this decision is
not divinely entrusted to any individuals as such, not even to soldiers or scholars
...
By implication, this means that they fall
into the category of women who ﬁght and that this makes them legitimate targets
if only in the case of Palestine’
...
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We say: No properly schooled jurists from any of the Four Schools would say this
as a legal judgment if they faithfully followed the juridical processes of the orthodox Schools relating to this bAb; for if it is true that the scholar made such a statement and meant it in the way that you imply, then not only does this violate the
well-known principal rule above (FaRl I: ‘It is not permissible to kill their women
and children if they are not in direct combat’), but the supposed remarks also show
a lack of sophistication in the legal particulars
...

Let us restate the PAbiS again, as our jurists have succinctly summarized its rule
of engagement: a soldier can only attack a female or (if applicable) child soldier
(or a male civilian) in self-defence and only when she herself (and not someone else
from her army) is engaged in direct combat
...
)
Not only is this strict rule of engagement already made clear in our secondary
legal texts, but it is also obvious from the linguistic analysis of the primary prooftexts used to derive this principal rule
...
The immediate legal
implication here is that one of the two can only be considered a legitimate target
when there is a reciprocal or direct relationship
...

In short, even if these women are soldiers, they can only be attacked when they
are in direct combat and not otherwise
...

Question IV
If it is said: ‘When a bomber blows himself up he is not directing the attack
towards civilians
...
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reservists)
...

We say: There are two details here
...

Our jurists agree that during a valid war when there is no ceaseﬁre and when
an attack is not aimed at a valid military target, a hostile soldier (whether male or
female, whether conscripted or not) who is not on operational duty or not wearing a military uniform and when there is nothing in the soldier’s outward appearance to suggest that the soldier is in combat, is considered a non-combatant [man
lA yuqAtilu] (and in this case, must therefore be treated as a normal civilian)
...
]; and anything else such as a
restaurant, a hotel, a public bus, the area around a trafﬁc light, or any other public
place can never be considered a valid military target, since ﬁrst, these are not places
and bases from which an attack would normally originate [maQall al-ra’y]; second,
there is certain knowledge [yaqCn] that the targeted persons are intermingling
[ikhtilAS] with non-combatants; and third, the non-combatants have not been
given the option to leave the place
...

As for when the soldiers are in a barracks or the like, there is further discussion
on whether the soldiers become a legitimate target, and the Qawl ARaQQ [the More
Correct Position] according to our jurists is that they do, albeit to attack them in
such places is makrEh
...

There is no khilAf that non-combatants or civilians cannot at all be considered
collateral damage at a non-military target in a war zone and that their deaths are
not excusable by our Law and that the one who ends up killing one of them will
therefore be sinful as in the case of murder, even though the soldier who is found
guilty of it would be excused from the ordinary capital punishment [Qadd] unless
the killing was found to be premeditated and deliberate:

9780719079740_C09
...

As for a valid military target in a war zone, the Shaﬁ‘c School has historically
considered the possibility of justifying collateral damage, whereas other schools have
held it to be outlawed in all cases
...

2 The attack is as a last resort [min ParEra] (such as when the civilians have been
warned to leave the place and after a period of siege has elapsed):

3 There are no Muslim civilians or prisoners
...

(Furthermore, this position is subject to khilAf among our jurists with regard to
whether the military target can be a Jewish or Christian [Ahl al-KitAb] or other
non-Muslim one, since the sole primary text that is invoked to allow this exception
concerns an incident restricted to the same ‘mushrikCn’ as in the Verse of Sera
al-Tawba in Question II above
...
This is why the means
of an act [‘amal] must be correct and valid according to the rule of Law in order
for its outcome to be sound and accepted, as expressed succinctly in the following
aphorism of Imam Ibn ‘Asa Allah (may Allah sanctify his soul!):

[He who makes good his beginning will make good his ending
...
]

Hence, with even a simple act such as opening a window, which on its own is only
mubAQ or QalAl, that is, neither worthy of reward nor sinful, when a son does it with

9780719079740_C09
...

WaLlAhu a‘lam wa-aQkAm biR-RawAb! [God knows and judges best what is right!]
Question V
If it is said: ‘In a classic manual of Islamic Sacred Law, I read that “it is offensive
to conduct a military expedition [ghazw] against hostile non-Muslims without the
caliph’s permission (though if there is no caliph, no permission is required)”
...
The conclusion that it is permissible – however repugnant – for anyone other than those in
authority to declare or initiate a war is evidently wrong, since it violates the principal rule of engagement discussed in FaRl II above
...

This is also obvious from the terminology used: a ghazw [a military act, assault,
foray or raid; the minimum limit in a modern example is an attack by a squad or
a platoon (katCba)] can take place only when there is a state of jihAd [war], not
otherwise
...
14
In our School, it is offensive but not completely prohibited for a soldier to defy
or, in other words, to take an initiative against the wishes of his direct superiors,

9780719079740_C09
...
In the modern context, this may include
cases when soldier(s) disagree with a particular decision or strategy adopted by their
superior ofﬁcers, whether during a battle or otherwise
...
It is not prohibited [to act without his permission] (if there is
no grave endangering of one’s life even when that is permissible in war
...

It becomes a farP ‘ayn for any able-bodied Muslim when there is conscription or
a nationwide draft if the state is invaded by a hostile non-Muslim force, but only
until that hostile force is repelled or the Muslim authority calls for a ceaseﬁre
...
Or he may surrender, provided
that he knows [with certainty] that if he resists [arrest] he will not be killed and
that [his] wife will be safe from being raped [fAQisha] if she is captured
...
16
Reﬂect upon this legal ruling of our Religion and the emphasis placed upon preserving human life and upon the wisdom of resorting to violence only when it is

9780719079740_C09
...
] and DAr al-Kufr [a
non-Muslim state, territory, etc
...
17 A non-Muslim who resides in a Muslim state is, in our terminology: kAﬁr
dhimmC or al-kAﬁr bi-dhimmati l-muslim [a non-Muslim in the care of a Muslim state]
...
(Think about this, for the Muslim
lands are many, varied, wide and extensive; and how poor is the insight of those
who have tried to limit the deﬁnition of what a Muslim state must be, and thus,
whether or not they realized what they were doing, have attempted to reduce the
extent of the Muslim world!)
As for a non-Muslim state, it is the absence of a Muslim state
...
Therefore, a hostile non-Muslim
soldier from there is known in our books as: kAﬁr QarbC
...
18 In this case, his legal status becomes a kAﬁr QarbC bi-dhimmati
l-imAm [a hostile non-Muslim under the protection of the Muslim authority], and
for all intents and purposes he becomes exactly like the non-Muslim subjects of
the state
...

The implication of this rule for pious, God-fearing and Law-abiding Muslims
is not only that to attack non-Muslims is illegal and an act of disobedience

9780719079740_C09
...

Question VIII
If it is said: ‘In what category of land are those who live in the European Union,
and what is the Qukm of those who are here? Should they theoretically leave?’
We say: It is clear that the countries in the Union are non-Muslim states, with the
possible future exceptions of Turkey or Bosnia, for example, should they become
a part of the Union
...

There is precedent for this status in our Law
...
If they cannot do so, but ﬁnd instead that their surroundings
are incompatible with the life they feel they must lead, then it is recommended for
them to leave and reside in a Muslim state
...
e
...
Thereupon Islam is practiced openly and our Law is
established [meaning that they have the freedom to practice their religious duty in
the open and in effect become practising Muslims in that non-Muslim society]
...
Is it permissible to pay them the tax [and thereby become residents]? If you
say it is permissible, what is the ruling about the non-Muslims mentioned above when
they are at war [with a Muslim state]: would it or would it not be permissible to
oppose them and if possible, take their money? Please give us your opinion!

The answer:
Insofar as it is possible for Muslims to practice their religion openly according to
their rights [in that country], and they are not afraid of any threat [ ﬁtna] to their

9780719079740_C09
...

It is also permissible to pay the tax as a requirement of it [residence]; indeed, it is
obligatory [wAjib] to pay them the tax for fear of their causing harm to Muslims
...
19

The PAbiS for this mas’ala is:

[If someone is able to practise his religion openly and is not afraid of threat to his
religion, life and property, then emigration is not obligatory for him
...
The reason is that their place of residence is already, technically [Qukman], a ‘Muslim state’ even though not in name [REratan], since they
are able to practise their religion openly even though the political or executive
authority is not Muslim; and if they emigrated it would cease to be so
...

2 MakrEh: it is offensive for them to leave their place of residence when it is possible for them to practise their religion openly and they are happy to do so
...

4 WAjib: it becomes obligatory to leave when it is the only remaining option, that
is, when practising their religion openly is not possible
...

Question IX
If it is said: ‘Would you say that in the modern age with all the considerations surrounding sovereignty and inter-connectedness, these classical labels do not apply

9780719079740_C09
...
]

Labels can never be relied upon; it is the meaning behind them that must be
properly understood
...
For
Muslims who fail to notice the relevance of our own inherited medieval terms with
the modern world, the result may be that they will live in a schizophrenic cultural
reality and will be unable to identify with the surrounding society and will not be
at peace [sukEn] with the rest of creation
...

Pay heed to the words of Mawlana Remc (may Allah sanctify his secrets!):
Go beyond names and look at the qualities, so that they may show you
the way to the essence
...
Peace occurs
when they go to the real meaning
...

It is such an unnecessary foolishness, because just beyond the arguing there is a long
table of companionship, set and waiting for us to sit down
...

Tatimma
It is truly sad that despite our sophisticated and elaborate set of rules of engagement and in spite of the strict codes of warfare and the chivalrous disciplines that
our soldiers are expected to observe, which have all been thoroughly elaborated
and codiﬁed by the orthodox jurists of the Umma from among the generations of
the Salaf, there are today in our midst those who are not ashamed to depart from
these sacred conventions in favour of opinions espoused by persons who have received
no training in the Sacred Law at all and certainly none sufﬁcient to be considered
a qAPC or a faqCh – the rightful heirs and sources from whom they should be receiving practical guidance in the ﬁrst place
...
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and on those who are not among its ahl, yet speak in the name of our Law
...
e
...
Do they not realize that by following
them they will be ignoring the limitations and restrictions cherished and protected
by our pious forefathers and that they will be turning their backs on the JamA‘a and
IjmA‘ and that they will be engaging in an act for which there is no accepted legal
precedent within orthodoxy in our entire history? Have they forgotten that part of
the original maqRad of warfare/jihAd was to limit warfare itself and that warfare for
Muslims is never total war, so that women, children and innocent bystanders are
not to be killed and property not to be needlessly destroyed?
To put it plainly, there is simply no legal precedent in the history of Sunni Islam
for the tactic of attacking civilians and overtly non-military targets
...

Perhaps the ﬁrst such mission to break this long and admirable precedent was the
Hamas bombing on a public bus in Jerusalem in 1994 – not that long ago
...
Those who still
defend this tactic, blindly invoking a nebulous uRElC principle justiﬁed from ParEra
while ignoring the far‘C strictures, must look long and hard at what they are doing
and ask the question: was it absolutely necessary, and if so, why was this not done
before 1994, and especially during the earlier wars, most of all during the disasters
of 1948 and 1967?
How could such a tactic have been condoned by one of our Rightly Guided
Caliphs and a heroic ﬁghter such as ‘Alc (may Allah ennoble his face!), who, when
in the Battle of the Trench with his notorious non-Muslim opponent, who was
seconds away from being killed by him, and who spat on his noble face, immediately left him alone
...

In actual fact, the only precedent for this tactic from Muslim history is the
terrorism carried out by the ‘Assassins’ of the Nizarc Isma‘clcs
...
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Crusades: Nitam al-Mulk, the Jamal al-Shuhada’ (may Allah encompass him with
His mercy!), assassinated on Thursday, the 10th of the holy month of Ramapan
485, or 14 October 1092
...
So ask yourself as an
upright and God-fearing believer, whose every organ will be interrogated: do you
really want to follow the footsteps and the models of those Zionists and the heterodox Isma‘clcs, instead of the path taken by our Beloved (may Allah’s blessings
and peace be upon him!), who for almost half of the (twenty-three) years of his
mission endured Meccan persecution, humiliation and insults? Is anger your only
strength? If so, remember the Prophetic advice that it is from the Devil
...

This is what happens to the BanE Fdam when the wahm is abandoned by ‘aql,
when one of the maqARid justiﬁes any wasCla, when the realities of furE‘ are indiscriminately overruled by generalities of uREl, and most tragically, as illustrated
from the eternal blunder of Iblcs, when Divine tawakkul is replaced by basic nafs
...
At the same time, our own history
has shown that we have also been a wise and sensible rather than a reactive and
impulsive Umma
...
It is
already common knowledge that when Jerusalem fell to the Crusading forces on
the 15 July 1099 and was occupied by them, and despite its civilians having been
raped, killed, tortured and plundered and the Umma at the time humiliated and
insulted – acts far worse than what can be imagined in today’s occupation – it took
more than a hundred years of patience and legitimate struggle under the Eye of
the Almighty before He allowed malaq al-Dcn to liberate Jerusalem
...
This is the true meaning [QaqCqa] of

9780719079740_C09
...

Yes, we will naturally feel the pain when any of our brothers and sisters die unjustly
anywhere especially when their deaths have been caused directly by non-Muslims,
but it must be the more painful for us when they die in Iraq, for example, when
their deaths are caused directly by the self-destroying/martyrdom/suicide missions
carried out by one of our own
...

To this end, we could sum up a point of law tersely in the following maxim:

[Two wrongs do not make a right
...
With this intention, we may hope that we shall regain our former high
ground and reputation and rediscover our honour and chivalrous qualities and be
no less brave
...
e
...
]20

Even then, peace is preferred over war:

[Now if they incline toward peace, then incline to it, and place your trust in God
...
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which you wish war to be declared, then take heed of the following Divine
command:

[O believers, obey God, and obey the Messenger, and those with authority among you!]22

If you still wish to insist that your authority should declare war with the non-Muslim
state upon which you wish war to be declared, then the most you may do in this
capacity is to lobby your authority
...
For then you will have taken the SharC‘a into your
own hands
...
(The deﬁnition of rebels is: ‘Muslims who have disagreed [not by heart or by tongue but by hand] with the authority even if it is unjust
[jA’ir] and they are correct [‘adilEn]’
...
e
...
]24

For it is possible still, and especially today, to ﬁght injustice or Tulm or SAghEt in
this dunyA through your tongue and your words and through the pen and the courts,
which still amounts in the Prophetic idiom to jihAd, even if not through war
...

Ma shA’ AllAh, how true indeed are the Beloved’s words, inspiring the latter-day
mujAhid or activist to be no less brave in his or her campaign for a just cause in an
oppressive country (or one needing reform) than the former mujAhid or patriot who
fought bravely for his country in a just war:

9780719079740_C09
...
By Your
Mercy, O Most Merciful of those who show mercy, Amen!]

May this be of beneﬁt
...
Bughyat al-MustarshidCn fC TalkhCR FatAwA ba‘P alMuta’akhkhirCn
...

al-Bakrc
...
4 vols
...

al-Ghazalc
...
Edited by Badawc Aqmad nabanah
...
Cairo:
Dar Iqya’ al-Kutub al-‘Arabiyya, 1957
...
AQkAm al-Qur’An
...
4 vols
...

Ibn Barakat
...
Edited by Mursafa Muqammad ‘Imara
...
Singapore: al-laramayn,
AH 1371
...
TuQfat al-MuQtAj bi-SharQ al-MinhAj al-NawawC in LawAshC
al-ShirwAnC wa-Ibn QAsim ‘alA TuQfat al-MuQtAj
...
13 vols
...

al-Jassas
...
3 vols
...

al-Kurdc
...
In Qurrat al-‘Ayn bi-FatAwA ‘UlamA’ alLaramayn
...
Bogor: Maktabat
‘Arafat, n
...

al-Nawawc
...
Edited by Maqmed Masrajc
...

Beirut: Dar al-Fikr, 1996
...
MarAQ LabCd TafsCr al-NawawC: al-TafsCr al-MunCr li-Ma‘Alim alTanzCl al-Mufassir ‘an WujEh MaQAsin al-Ta’wCl al-MusammA MarAQ LabCd li-Kashf
Ma‘nA Qur’An MajCd
...
Bulaq, AH 1305
...
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IV Glossary of Arabic terms – Shaykh Gibril F
...
, ‘imposter’; the Anti-Christ
ParEra necessity
PawAbiS pl
...
from far‘, see furE‘
faRl see fuREl
fatwA legal opinion, legal response
ﬁqh Islamic jurisprudence, the expertise of the faqCh; adj
...
of faqCh (q
...
)
furE‘ pl
...
of faRl = sections or legal particulars
ladcth a saying of the Prophet Muqammad, upon whom blessings and peace
QalAl lawful, permitted
QaqCqa truth, reality; true meaning; substance
QarAm categorically prohibited, unlawful
QARil legal outcome
Qukm [shar‘C] legal status, legal ruling
Iblcs Satan
IQsAn Excellence, the pinnacle of religious practice
IjmA‘ Consensus

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...
, ‘ignorant’; a pre-Islamic or pagan Arab
JamA‘a the Orthodox Community
Jamal al-Shuhada’ The Beauty of Martyrs, the title of the murdered vizier Nitam
al-Mulk
jihAd moral or military struggle by the mujAhid
jizya poll tax imposed on non-Muslims in pre-modern times by Muslim
governments
KabCra Major Sin
khilAf (juridical) disagreement
khilAﬁyya fem
...
of kAﬁr, non-Muslim
madhhab school of Law
makrEh detestable, abhorrent, abominable, disliked, legally offensive
mandEb recommended, praiseworthy
maqARid pl
...
of mas’ala, question or legal discussion or case
masA’il mufaRRala detailed questions and answers
mas’ala see masA’il
maRlaQa welfare, public/general good
mubAQ indifferently permissible
mufassir exegete
muftC one who formulates fatwAs or formal legal responses
MuQaqqiq The Careful Examiner, a title given to Imam al-Kurdc, one of the last
great jurist of the Shaﬁ‘c School
mujAhid one who does jihAd (q
...
)
mukallaf legally-responsible Muslim
mushAraka mutual or reciprocal matter
nafs ego, self
nasCQa faithful, sincere advice
qaPAyA pl
...
of qA‘ida, maxim or legal principle
qawl saying or legal position
qitAl killing, warfare, battle
sabab al-wujEd raison d’être
Rabr patient endurance and fortitude

9780719079740_C09
...
shuhadA’ self-sacriﬁcing believer who dies for the sake of God alone,
‘martyr’
shakk doubtful knowledge, something undecided (50% certain)
shar‘C adj
...
e
...
of thAbit, axiom
‘ulamA’ Muslim scholars trained in Islamic theology and law
Umma the Muslim Community at large
ustAdh teacher
uREl pl
...
uRElC
wahm imaginative faculty or emotions; whimsy, merely imagining something to
be possible (25% certain)
wasA’il pl
...
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Defending the transgressed

2
3

4
5
6
7
8
9
10

11
12
13
14
15
16
17
18
19
20
21
22
23
24

Page 283

283

contributions by other Muslim scholars in The State We Are In: Identity, Terror and the
Law of Jihad (Bristol: Amal Press, 2006)
...

Editor’s note: this expression translates the Arabic expression al-umma al-marQEma
...
guardian
...
uk/world/
2007/may/06/terrorism
...
For the full text of the Al-Muhajiroun article, see
http://mac
...
se/∼onesr/ez/isl/0-sbm/Deviant
...
html
...

Qur’an 2:195
...

Al-Ghazalc, IhyA’, 2:315–16
...

Qur’an 9:5
...
Under its terms, the Muslims agreed to give up the pilgrimage that they had
intended to make at that moment
...
This precipitated
the Muslims’ march on Mecca by which they captured the city without a battle, an event
traditionally known as the Victory of Mecca
...

Qapc Ibn ‘Arabc, AQkAm al-Qur’An, 2:889
...

Ibn lajar, TuQfat, 12:4
...

Al-Bakrc, I‘Anat, 4:197
...

Al-Kurdc, FatAwA, 211–12
...

Qur’an 2:190
...

Qur’an 4:59
...

From a ladcth of Abe Sa‘cd al-Khudrc (may Allah be well pleased with him!) among
others, which is related by Ibn al-Ja‘d, Aqmad, Ibn lumayd, Ibn Majah, Abe Dawed,
al-Tirmidhc, al-Nasa’c, Abe Ya‘la, Abe Bakr al-Reyanc, al-nabaranc, al-lakim, and alBayhaqc, with variants
...
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286

Bader-Meinhoff 86
Baghdad 41n23, 50, 55, 57, 103, 129n18,
183, 202, 227
Balfour memorandum 105, 112, 113
Basra 230, 235
Baudrillard, Jean 228
Begin, Menachem 11, 12
Belmarsh 90, 99
Ben-Gurion, David 10, 11, 12
Bible, the 14
Biden, Joseph 243
Bin Laden, Osama 5, 6, 22n1, 23n18,
24n37, 87, 88, 111, 112, 114, 208,
209, 250, 251
writings of 2, 7–9, 13, 14, 19, 24n22,
26n79, 74, 220n60
‘Black September’ group 173
Blair, Tony 13, 49, 52, 80n13, 126
Bosnia 7, 13, 61, 216n15, 231
Bosnian Serb Army 9
Bourdieu, Pierre 244
British Empire 250
Brown, Wendy 149
Burma 22
Bush, George W
...
122, 123,
227, 237
Caliphate, the 202, 205, 225, 259
Camus, Albert 111
capital punishment 225, 267
Carlos the Jackal 66
Center for Islamic Studies and Research
7
Chechnya 6, 7–8, 20, 60, 89

Index

Cheney, Dick 54, 92, 238
and waterboarding 22, 64
child soldiers 164, 179, 258
Chirac, Jacques 49
Christianity 6, 15, 18, 117, 236
CIA 19, 58, 64, 65, 66, 123, 124, 133n47,
242, 243
civilian contractors 120
‘Clean Break’ plan 14
Clinton, Bill 49, 152n25
CNN 55
‘Coalition of the Willing’ 89
Coercion
‘Cold Cell’, the 123 see also torture
Cold War 13, 18, 21, 51, 144, 147, 206–8,
212, 213, 251
‘collateral damage’ 110, 142, 161, 267–8
colonialism 7, 29–30, 197, 202–8, 211,
214, 225
Communism 18–19
Congressional Research Service, the
191
Corrie, Rachel 34
counter-terrorism 84, 99, 100–2
‘crimes against humanity’ 58, 78, 102
‘cruel and unusual punishment’ 237
Cuba 50, 231
Darfur 102
death penalty, the 62, 101, 102, 112,
225
de Beauvoir, Simone 229
Deir Yassin massacre 11
democracy 6, 8, 37, 93, 99, 146–7,
238
Dershowitz, Alan 153n36, 237
Desert Storm 57
detention 36, 67, 89, 92, 103, 122, 124,
168, 170, 176, 239, 195
centres 121, 149, 155n67, 209
deterrence 144
Divine Law 196, 197
Dostum, Abdul Rashid 120
Douzinas, Costas 227, 244

9780719079740_D01
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Rumsfeld 78
haqq 199
Hariri, Raﬁq 101
Hart, Gavin 241
Hass, Amira 34
‘hearts and minds’, winning of 191
Herzl, Theodor 14
Hezbollah 16, 56, 59, 60, 86, 141, 142,
150n3, 182
Hiroshima 3, 23n9, 84, 125, 145, 159,
163 see also atomic bombs,
Nagasaki
Hobsbawm, Eric 229
Holocaust 9, 21, 32, 149
holy war 115
Hoon, Geoff 61
Howard, John 52
hudud, laws of 196, 204, 225
humanitarianism 94
human rights 20, 21, 22, 89–96, 99–104,
136–9, 193–214, 214n1, 218n33,
218n34, 223–6, 236–7, 240,
244
Human Rights Watch 30, 84, 198
human shields 61 see also live shields
Huntingdon, Samuel 87
huquq 200
Hussein, Saddam 13, 15, 57, 76, 113, 120,
125, 126, 139, 157

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Index

Lebanon 8, 12, 14, 16, 33, 36, 59, 60,
86–8, 94, 100, 113, 163, 182,
205
LEHI (Fighters for the Freedom of Israel)
12
liability, problem of 176–7
liberal democracy 146–7, 152n19
liberalism 146, 154n46, 220n54, 233, 249
Liberia 10
Libya 49, 212, 214
Limbaugh, Rush 242
live shields 145, 153n37 see also human
shields
Locke, John 138–9
‘Long Time Standing’ 123 see also torture
Madrid bombing 105
Martens Clause, the 69
martyrdom 36, 254, 260, 277
McCain, John 64–5, 91
mercenaries 56
Milosevic, Slobodan 59
misidentiﬁcation, problem of 173–7
missile strikes 49
moral arithmetic 137–8
morality 84, 92, 95, 114–19, 125, 165, 168,
170
moral language 95, 116–18, 135
‘moral waivers’ 120
mujahidin 9, 19, 25n66
Munich Olympics 173
Muslims 6, 7, 8, 14, 20, 22n1, 114, 137,
193–214, 223–6, 255–82
Mutual Assured Destruction 147
Nagasaki 3, 23n9, 84, 145, 159, 163
see also atomic bombs, Hiroshima
Nairobi 105, 133n53 see also Kenya
nakba 17, 21
Nasser, Gamal 18, 19, 101
National Defense Strategy of the United
States 91
nationalism 16, 18, 149, 220n54, 225,
250

289

National Security Agency (U
...
) 90
National Security Council (U
...
) 15, 54
National Security Strategy 51, 52, 54
NATO 9, 13, 49, 50, 59, 70
Natural Law 138, 193, 200, 201, 213
Natural Rights 138, 193, 200, 201, 213,
138, 193, 200–1, 204, 205,
218n34, 223
Nazi Germany 3, 17
Nazism 4, 146–7
‘neo-cons’ 14, 35
‘necessity and proportionality’ 48 see also
Webster’s criteria
Netanyahu, Benjamin 15, 35, 86
New and Old Wars 142, 151n8
non-combatants 4, 83, 143, 152n21, 159,
160, 162, 168–70, 199, 249,
257–8, 260, 264, 267
non-state actors 47, 48, 69, 156, 159
non-state terrorism 1, 4, 5
non-state terrorists 5, 16, 21, 144
North Atlantic Treaty 50
‘Northern Alliance’ 119
Northern Ireland 5, 86, 95, 104
‘Not In Our Name’ 31
nuclear missiles 51
nuclear weapons 53, 54, 61, 76, 81n14, 94,
113, 128n12, 144
occasionality of rights, the 210
occupied territories 18, 19, 34, 86, 88, 89,
113
oil 6, 15, 18, 21, 54, 210
Omagh 5
Operation Iraqi Freedom 75–6
opinio juris 47
Orientalism 43
Ottoman Empire 21, 202, 218n39
Ottawa Landmines Convention 60
Oxford Amnesty Lectures 26n87, 30,
39
Pape, Robert 16–17, 23n15
Pakistan 7, 14, 18, 66, 113, 128n12, 204

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Condaleezza 95, 232
right of self-defence, the 47–50, 54, 75, 76,
80n11
Rorty, Richard 39
Roy, Arundhati 36
Rules of Maat, the 39
Rumsfeld, Donald 15, 58, 61, 91, 92, 170,
243
Rushdie, Salman 211
Russia 7, 8, 51, 60, 69, 89, 102, 106, 111,
146, 150n1, 207
Rwanda 231
Sacred Law, the 256, 263, 269, 274, 275,
277
Said, Edward 30, 31, 37, 43, 45
Salaﬁyya Islam 16, 18
sanctions 8, 125–6, 134n57, 139, 220n58
Saudi Arabia 6, 8, 14, 15, 16, 18, 110, 193,
195, 198, 204, 205, 206, 209, 212,
215n12
Schlesinger, James 230
Schwarzkopf, Norman 55
Scott, David 44
secularism 202, 203, 217n30
self-martyring 16 see also suicide bombers,
suicide terrorism
September 11 31, 35, 113, 256, 260
see also 9/11, Twin Towers,
World Trade Center
Serbia 7, 59, 216n15
Shamir, Yitzhak 12
Shari‘a 6, 197, 199, 203, 206, 208, 216n17,
218n31
Sharon, Ariel 12, 13, 19, 35, 36, 88
Shi‘ite 6, 14
Shin Bet 18
Shklar, Judith 186
Six-Day War 12, 51
slavery 197–200, 223–6
sleep deprivation 63, 120, 123, 237, 238

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Index

292

Webster, Daniel 48, 191n3
West Bank 10, 12, 13, 15, 32, 36, 101,
113
wisaya 210
WMD 13, 53 see also weapons of mass
destruction
World Trade Center 47, 49, 50, 110, 167,
251 see also 9/11, September 11,
Twin Towers
World War I 21, 142, 153n33

World War II 3, 4, 7, 10, 17, 18, 21, 22, 30,
32, 58, 84, 85, 142, 145, 147, 150,
153n33, 153n39, 163, 241
Yamama deal, the 209
Yemen 18, 75, 175, 208, 209
Yugoslavia 7, 9, 10, 79
Zionism 10, 14, 21, 32
‘Zionist-Crusader’ alliance 6

Title: War On terror
Description: war on terror

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