Law 911

Law in a time of terror

Four HLS professors consider whether the old rules apply when the enemies don't wear uniforms and are willing to die with their victims

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As long as humans have engaged in warfare--about 4,000 years--we have been making up rules to govern it. We've sought to identify the causes that must be present for a "just" war. We've set up ground rules to regulate which weapons, which military practices, exceed the bounds of acceptable use and aspired to specify the treatment that combatants should receive when taken prisoner.

But after the terrorist attacks of Sept. 11, 2001, and the subsequent declaration by President Bush that the United States was waging a "war on terror," the rules have been thrown into question. Some leaders immediately branded the attacks a call to war equivalent to the Japanese assault at Pearl Harbor in 1941. But while the impulse to counterattack may have been similar to that which prompted the U.S. entry into World War II, the two events were vastly different in other ways. The international laws of war are quite clear about identifying the grounds for military retaliation when one nation is attacked by another. But on Sept. 11, 2001, the United States was attacked by a stateless organization. And the international laws of war, developed to govern the actions of states with identifiable flags and uniforms and geographical borders, have little to say about how to conduct a war against large, transnational terrorist organizations that are not military branches of particular states.

Does existing international law create impediments for the United States in seeking to prosecute wars against nonstate groups? Legally, how are we faring in this effort? Does international law need to be changed to address the new terrorist threat?

At Harvard Law School, faculty members who teach international law and who have written about terrorism have given thought to questions like these. And while they all believe that change is needed in developing responses to terrorism, they differ when it comes to what the right course should be.

In addressing the limitations of international law in dealing with groups like Al Qaeda, Assistant Professor Ryan Goodman pointed out that international law is not silent on the subject of war between states and nonstate actors. "The fact that Al Qaeda is a transnational terrorist organization does not pose exceptionally new questions for international law and policy," he said. "There is ample experience in dealing with organizations whose modus operandi involves behavior that is nonreciprocal and directly opposed to basic principles of humanity." He points out that the First Additional Protocol to the Geneva Conventions, passed in 1977, applies to nonstate national liberation groups, and the statute that created the independent International Criminal Court in 1998 "expressly applies the laws of war even to conflicts between two nonstate actors." In addition, he says, Article 3 of the four Geneva Conventions, which addresses wars between a state and nonstate actors in the context of a civil war, is relevant.

However, Goodman said, an organization like Al Qaeda is impervious to international law: "That Al Qaeda has the unique potential and desire to use weapons of mass destruction, that their objectives are not ones we would subject to negotiation or compromise and that their suicidal methods render many of their members undeterrable, pose exceptionally difficult questions for some areas of law and policy."

"The problem is that the laws of war assume that the enemy also complies with the laws of war," said Professor Jack Landman Goldsmith, who joined the Harvard Law School faculty this fall after serving as head of the U.S. Justice Department's Office of Legal Counsel last year. "And they often create penalties, such as a loss of protections, if a party to the conflict doesn't comply with the laws of war. They also assume that the enemy is going to distinguish itself from civilians and that it does not attack civilians."

Goldsmith contends that the actions of Al Qaeda, in particular, have obliterated those assumptions because it has structured itself not only to violate the laws of war, but to take advantage of violating them. "So the challenge is to figure out what rules apply to an organization that, by its very nature, flaunts the laws of war and undermines their key assumptions," he said. "And that's a really, really hard challenge."

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