War, Ethics and Justice

New Perspectives on a Post-9/11 World

Annika Bergman-Rosamond, Mark Phythian

• Publisher: Routledge
• Year: 2011
• Print ISBN: 9780415552349
• eBook ISBN: 9781135245993
• Topic: History
• Subtopic: Military & Maritime History
• Index: History

This edited volume addresses the key issues of ethics, war and international relations in the post-9/11 world.

There is a lively debate in contemporary international relations concerning the relationship between statist obligations to one's own political community and cosmopolitan duties to distant others. This volume contributes to this debate by investigating aspects of the ethics of national military and security and intelligence policies in the post-9/11 environment. The discursive transformation of national militaries into 'forces for good' became normalized as the Cold War subsided. While the number of humanitarian military interventions and operations rose considerably in the immediate post-Cold War period, the advent of the 'war on terror' raised questions about exactly what we mean by ethical behaviour in terms of military and security policies. This volume interrogates this key question via a focus that is both distinctive and illuminating – on national military ethics; femininities, masculinities and difference; and intelligence ethics. The key objectives are to demonstrate the important linkages between areas of international relations that are all too often treated in isolation from one another, and to investigate the growing tension between cosmopolitan and communitarian conceptions of intelligence and security and the use of armed force.

This book will be of much interest to students of security studies, ethics, gender studies, intelligence studies, and international relations in general.

Mark Phythian is Professor of Politics in the Department of Politics and International Relations at the University of Leicester. He is the author or editor/co-editor of ten books.

Annika Bergman-Rosamond is Senior Researcher at the Danish Institute for International Studies in Copenhagen.

1 Tactics of mistake
‘Torture’, security and the ethics of ‘liberal’ wars after 9/11¹

Caroline Kennedy–Pipe

In perhaps no sphere of Western policy have the implications of the perception of the ‘new threats’ created by 9/11 and its aftermath been so controversial - and so radical - as in what we might term the relation between traditional assumptions about civil liberties and the allegedly changed character of opponents, and therefore of the security measures necessary to meet the threat. In both the United States and the United Kingdom wholly new legislative and executive powers have been deemed to be warranted - for example the creation of the whole apparatus of homeland security in the United States and the new antiterror laws in the United Kingdom (Bamford 2004).

On top of this, however, has been the decision by Western and other governments to use techniques - let us say ‘quasi judicial’ techniques - that have long been regarded with suspicion in Western politics, or indeed have been completely foresworn - at least in theory. Perhaps the most notorious of these was the perceived relaxation of the attitude to torture by the Bush administration in the United States. This phenomenon is well attested to by the creation of the internment camps such as that at Guantánamo Bay (Greenwood 2002), a deliberately ‘extra-legal’ area outwith formal US jurisdiction, yet wholly controlled by the US Government and by the now well documented practice of ‘extraordinary renditions’ where suspected or captured terrorists are flown to countries without the usual ‘liberal’ legal restrictions for ‘interrogation’ as well as by the less formal, but perhaps equally revealing behaviour of some in the detention camps like Abu Ghraib.

The chief point at issue here is an old one: What are states entitled to do to protect their security? Whilst we might agree with Oliver Wendell Holmes that ‘a constitution is not a suicide pact’ there is, inevitably and always the question of where to draw the line. Whilst the administration of President Obama has set its face against these policies on coming into office, it is worth adding that as of the time of writing, the Guantánamo centre is still in operation (although some inmates have been moved and high profile civil trials promised for others) and the policies in other respects continue to emphasise security to an unprecedented extent. Witness, for example, the policies introduced after Christmas 2009, following the attempt to blow up an airliner landing in Detroit, which many experts saw as largely window dressing and likely to be counter-productive. Indeed what is fascinating about the Obama administration is the overt condemnation and official banning of techniques of torture such as ‘waterboarding’, but an overwhelming reliance and escalation of the use of drones for ‘selected assassinations’ on those deemed or perhaps even known to be guilty of threatening the security of the United States and its allies. According to some reports of the 99 drone attacks perpetrated in Pakistan since 2004, some 89 of them have taken place after January 2008 (Macintyre 2010).

There were many who think that in these changed and challenging times we must err on the side of caution and that we must indeed interrogate our enemies. The Harvard Law scholar, Alan Dershowitz, has infamously argued for the incorporation of torture into US law under specific circumstances through the creation of what he called ‘torture warrants’ (Dershowitz 2003, 2006); the distinguished legal scholar Richard Posner, in an express echo of Holmes’ dictum, has published a book arguing for a hawkish line on the question of ‘security’ versus ‘liberty’ (Posner 2006). Yet, it is not only the domestic legal arguments that can and should be made here. The rules of war - both general and civil - have long included a complete ban on torture. Yet in the aftermath of the 9/11 attacks, during what became known as the ‘war on terror’, defences of ‘coercive interrogation’ became, if not commonplace, seemingly much more respectable than they had previously been. For many who were critical of this development, this seemed unprecedented. Yet the historical memory is faulty. There have been other contexts, and other situations, in which similar brutal reactions can be noted. To assess the applicability of such attempts in the current context it might perhaps be the case that we should examine historical cases where the fear of threats resulted in brutality and the suppression of human rights.

One such case is Northern Ireland and, as I have tried to argue elsewhere (Kennedy-Pipe and Mumsford 2009; Kennedy-Pipe 1997), the lessons of the British experience in Northern Ireland are certainly not irrelevant to our current situation (see, for example, English 2003; McGuffin 1973). One might cite other historical examples, involving the French in Algeria and in South East Asia, and the Americans in Vietnam. In fact one of the current problems of the engagement of liberal states in war is precisely that balance between winning a so called hearts and minds campaign and the use of torture. We know that when news of torture leaks to the general population there may be a rallying to the ‘rebels’ as in Ireland in 1971-2 but there may also be a very negative effect on home populations which dislike what is ‘done’ in their names. As Rupert Smith has argued, this was certainly the case with the French campaigns in Algeria when the French population, whatever its affection for Algeria as an extension of France, did not wish to see brutality exercised in the name of France (Smith 2005: 246).

Perhaps the most disturbing aspect of contemporary debates is, as has been pointed out recently (Rengger 2009), that even relatively liberal figures, like Philip Bobbitt (Bobbitt 2008), have argued that the threat is now such that it requires rethinking many of our previous assumptions and that some rebalancing of liberty versus security might well be necessary (though Bobbitt does not countenance torture) but, as Nicholas Rengger also points out - and as he and I argued in detail elsewhere (Kennedy-Pipe and Rengger 2006) - these kinds of claims rest fundamentally on the truth of the grounding claim that the situation in the post 9/11 era represents something so radical and new and that the threats we face in this context are so severe, that the legal restraints we in liberal states claim to abide by do not apply. However, as we argued in that other essay, this claim cannot be sustained.

I do not want to repeat the arguments of that essay here. Rather, I want to try and look at some of these specific claims and assess them, before turning to why I think - independently of the balance of the arguments about security and liberty - they are, in fact, a mistake in the context of a liberal society, even when - indeed especially when - that society is under serious and sustained attack. And, indeed, if I am honest the reasons are ultimately not ethical - rather they are prudential; it is in our interest not to take the path some would urge upon us. More of that later. Now what about the arguments themselves?

A return to torture? The preliminaries

According to Article 1 of the UN Convention Against Torture (UNCAT), the term torture:

Means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

(United Nations Commission on Human Rights website)

This is effectively the standard from which all contemporary discussions of torture start and it is fine, as far as it goes, but even so it does require some clarification and qualification. In the first place, we would not want to say, I think, that only ‘public officials or people acting in an official capacity’ conduct torture. If a member of the IRA (for example) engages in punishment beatings, or inflicts pain on an informer to acquire information that is torture and the fact that the IRA has no ‘official’ status does not alter that. What this means is that while the specific definition contained in the Geneva conventions and the UNCAT are central, we have to consider a range of activities some of which might not be torture in themselves but which might lead up to or accompany torture as defined.

A second point is that we need to get some grasp of the range of possible views on the acceptability or not of torture in general. To do this let us take some of the arguments contained in an important book edited by Sanford Levinson (2004). The case against the use of torture, under any circumstances, is pressed chiefly by Henry Shue (2004). His argument challenges the possibility that torture could ever be justified for any reason whatever. The basic defence of at least the use of some torture, Shue argues, must rely on some version on what he calls a defence of ‘just combat killing’. The stages of the argument are as follows.

First, just combat killing is the total destruction of a person. Second, the use of torture is commonly held to be only a ‘partial’ destruction or a temporary ‘incapacitation’ of a person. Third, the total destruction of a person is a greater harm than the partial destruction of a person. So then, just combat killing is a greater harm than torture usually is and just combat killing is sometimes morally permissible, therefore torture is sometimes morally permissible.

Shue, then, argues that there is tacit assumption that if a greater harm is sometimes permissible, then a lesser harm is too, at least sometimes. The mistake though is to assume (without argument) that the only consideration relevant to moral permissibility is the amount of harm done. Even if one grants that killing someone in combat is doing him or her a greater harm than torturing him or her - which Shue does not necessarily grant anyway - it by no means follows that there could not be a justification for the greater harm that was not applicable to the lesser harm. However, the last step in the torture defence argument could be modified to take this into account. A final qualification would be that torture is sometimes morally permissible, provided that it meets whichever standards are satisfied by just combat killing.

So the question then becomes whether torture can meet the standards satisfied by just combat killing. Shue then proceeds to argue that it cannot. To begin with he uses the classic just war (jus in bello) distinction between combatants and non- combatants to say that in as much as just combat killing can never be just when it involves non combatants, torture of ‘non combatants’ could clearly never be permissible. Moreover, he suggests that torture of anyone is effectively an assault on a defenceless adversary and, at least on most understandings of the just war, that automatically casts someone as a non-combatant. He also however, uses another distinction; that between what he calls ‘terroristic torture’ and ‘interrogational torture’. Terroristic torture - which Shue believes to be the dominant type of contemporary torture - is held to mean torture undertaken to intimidate those other than the victim. ‘The victim’s suffering - indeed the victim - is being used entirely as a means to an end over which the victim has no control’ he says (ibid.: 53). What Shue calls ‘interrogational torture’ is torture to gain information. Terroristic torture is clearly going to fall to some version of the jus in bello case, but Shue concedes that interrogational torture might be seen as satisfying a just combat killing compliance rule. When the information is obtained, the torture has accomplished its purpose and need not be continued. The victim ‘complies’ and the torture stops.

However, Shue’s argument here is that purely ‘interrogational torture’ assumes in advance of the evidence that the person has the required information. If they do not, there is no way that the ‘torturers’ could know it and so the compliance test could never be met. Finally, Shue reflects on perhaps the most commented upon ‘defence’ of interrogational torture, (which, in the Dershowitz discussion that I shall take up in a minute, is called the ‘ticking bomb’ example). This is the idea that we have a terrorist who has planted a bomb (perhaps nuclear or perhaps not) and unless he tells us where the device is hidden, it will go off and half a city will be destroyed. Shue’s argument here is to say that if this actually were the case then it might be morally permissible to torture the terrorist to obtain the relevant information. But also that we will never be in a position (in all likelihood) of being in this situation because we could almost never know for sure and even if we were sure we would have to assume an impossibly high degree of moral probity on those charged with the ‘torture’ in this case. And certainly nothing like this offers the possibility of ‘defending torture’ in the here and now, only of saying that there is a (very hypothetical) situation is which a degree of interrogational torture could be morally permissible if it were carried out in a particular way, which in almost all recorded cases of actual torture has never been the case.

The alternative position to Shue’s has been made chiefly by Alan Dershowitz, who has been prominently associated with the claim that we need to legalise torture, that we need to bring an inevitable practice into some legal normality. Dershowitz begins this argument by stating baldly that:

Non lethal torture is currently being used by the United States in an effort to secure information deemed necessary to prevent acts of terrorism. It is being done below the radar screen, without political accountability, and indeed with plausible deniability. All forms of torture are widespread among nations that have signed treaties prohibiting all torture. The current situation is unacceptable: it tolerates torture without accountability and encourages hypocritical posturing… if torture is being or will be practiced, is it worse to close our eyes to it and tolerate its use by low level law enforcement officials without accountability or instead bring it to the surface by requiring that a warrant of some kind be required as a precondition to the infliction of any type of torture under any circumstances.

(Dershowitz 2004: 257)

Dershowitz is clear that his normative preference is against torture, but he insists that given that it is happening we must control it and this is what his proposal of torture warrants is meant to help with. Elaine Scarry in her essay, ‘Five Errors in the Reasoning of Alan Dershowitz’ (Scarry 2004), occasionally seems to confuse these two things but raises yet again the arguments prefigured by Shue - and by others such as Michael Ignatieff (2005) - to wit that to make a legal precedent out of an extreme case is not to control the practice of torture and set acceptable limits, but rather to run the risk of normalising it, thus reducing the threshold associated with it which (in the case of Shue and Scarry) is so high as to amount to a complete prohibition.

These two positions highlight very clearly the urgency of the question: it is in the context of some of the ‘facts on the ground’ that the use of torture - or at least torture ‘lite’ - has come back to haunt us and Dershowitz’s argument against Shue is not so much a normative one as a political (and legal one) - these are the facts; so how should we deal with them? Shue’s response is not to deny this but to emphasise that it should not be the case; that it is simply wrong. Here, it seems, you have the two sides of the contemporary debate: in Dershowitz a recognition of the fact of torture and a desire to accommodate that fact; in Shue a recognition of the fact but also an assertion that it is morally impermissible to just ‘accept’ it, that by doing that we in fact legitimate it. How might we respond to this seeming impasse?

Self interest and ethics in liberal wars

It is here I want to change tack a little and suggest that we put the directly ethical questions to one side for a moment and ask an old question. Do ‘we’ benefit, in a strict, functional sense from the deployment of the new policies and techniques (many of them actually very old) that the Dershowitzs and the Posners urge upon us? My answer to this is no and to explore it I want to take a rather more obviously ‘security’ generated focus on the question under discussion.

It is often said that what is clearly new in the post-9/11 situation is the character of the use of force. For example, it is often said that Al-Qaeda and associated terrorist groups represent a ‘new kind of threat’ that departs from earlier kinds of ‘terrorism’ in both its methods and its techniques. A number of related claims usually go to make up this argument:

• that Al-Qaeda is a non-state-based threat, and that therefore the character of ‘war’ has changed and the character of ‘war fighting’ has also had to change; so that we have to take account of the low level lethality of the enemy;
• that globalisation means that this kind of ‘long war’ must be fought at all levels, not merely in military action but also in financial, legal and ideological terms; and such conflicts might have no obvious end because our enemies will not surrender;
• that the much-hyped ‘revolution in military affairs’ was - at best - overstated, for the 9/11 bombers did not use high-tech weaponry but turned basic and ‘ever...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contributors
• Introduction–war, ethics and justice: New perspectives on a post-9/11 world Annika Bergman–Rosamond and Mark Phythian
• 1: Tactics of mistake: ‘Torture’, security and the ethics of ‘liberal’ wars after 9/11
• 2: ‘Let us re–order this world around us’: The problematic subject of British military ethics
• 3: An Australian approach to ethical warfare?: Australia and the ‘war on terror’
• 4: The cosmopolitan–communitarian divide and the Swedish military
• 5: Ambivalent spectators and enthusiastic fans?: Mapping civilian–military engagement in Canada
• 6: Ethics, gender and forces for good: Military masculinities in British soldiers’ accounts of Iraq and Afghanistan
• 7: Feminist International Relations and intelligence in a high-tech age
• 8: The problem of intelligence ethics
• 9: Justice and ethics in Israeli counter–terrorism
• 10: Jihad and the ‘war on terror’: Intelligence, ethics and justice in Pakistan and Afghanistan