Rewriting International Law
-by Mark Silverberg
Haim Harari, an Israeli scientist who has taken a keen interest in world affairs once commented that dealing with suicide murderers and with their dispatchers by current international law is like filing a malpractice suit against a poisonous snake. Harari was referring to the fact that changes in international law are absolutely critical if the war against Islamic terrorism is to be won. When mankind sets its sights on the stars and begins colonizing other planets, everyone acknowledges that international law will have to be changed. New rules and new procedures will have to be enacted to take into account new situations that will confront us. Existing laws will have to be rewritten. Everything that has come before will have to be re-examined. In that respect, global terrorism is different from anything we have ever seen, just as life in space will be different from anything we do here on earth, and the sooner such changes occur, the better off the world will be.
No one yet fully understands that our global war against Islamic terrorism has changed the rules of warfare, but it is absolutely certain that if we insist on preserving (in all cases and in all situations) democracy, human rights, civil liberties and the rule of law, we will hand the terrorists and their sponsors an irreversible global victory. It is equally certain that if we completely abandon our values to defeat terror, we will lose the very thing for which we are fighting.
We are engaged in a conflict wherein terrorists exploit every aspect of our civilization solely for the purpose of destroying it and international law has not moved to recognize these changes. We cannot fight this war defensively. If we protect our airplanes; they will attack our airports. If we protect our airports; they will attack our train stations, then our subway stations, on and on and on. That is because this war is being fought against an undefined enemy who fields armies without uniforms, honors no rules, has no central address, targets civilians almost exclusively, and who follows no law of any kind ˆ Geneva or otherwise ˆ other than an avowed intention to conquer our land, destroy our culture and force the Western world to submit to Islamic law (or to kill those who refuse to do so) and it is protected by sovereign governments who deny their involvement but provide them both the funding and logistics necessary to wage terror on the world.
Every major war in history has led to changes of what had been internationally recognized as legal or illegal; acceptable or unacceptable. World War II, in many respects, changed our attitudes in terms of how wars of the future were to be fought. In the aftermath of that war, the fire-bombing of Dresden or any other civilian population centers that had no strategic or military value became unacceptable as did the use of atomic weapons after the bombings of Hiroshima and Nagasaki. Today, however, global terrorists aim at civilians almost exclusively, terror sponsoring states openly call for the annihilation of other states like Israel with nuclear weapons and proudly announce their goal to be the destruction of our civilization.
So how should international law deal with international outlaws? Standard international law requires that police action be taken against civilian criminals leaving armies to deal with military enemies. Yet these civilians criminals wear no uniform and are not ordinary criminals despite what the media may say when it uses words like militant, activist and freedom fighter. These are not ordinary civilian criminals. Leaving their weapons at home does not make them any less dangerous. They cannot be dealt with by police action. If one accepts that they also cannot be the targets of military action, then we have granted them absolute immunity to continue their evil work. Armies cannot touch them because they are considered civilians and the police cannot touch them because they often operate on foreign soil. If host countries do nothing (at best) or shelter them (at worst) why should international law provide these host countries (like Iran and Syria) with immunity when terrorist operate from their soil?
Ironically, when these civilians are caught, they invariably invoke the Geneva Convention, but are they prisoners of war or civilians? International law knows how to deal with soldiers involved in wars with other soldiers, and with civilians who are criminals in the ordinary sense of the word, but it does not know how to deal with terrorists who move between the two definitions.
When such people deliberately target children and the elderly, they argue that they are fighting for national liberation, but when a truly innocent civilian is accidentally hurt or killed, it is referred to as a war crime. That is why, when terrorists are eliminated, the media asserts that civilians were killed turning a victory over evil into an alleged crime. If one accepts that these civilians can never be targets of military action, the door is permanently left open to unrelenting terrorism.
The issue becomes even more complicated when one moves from semantics to practice. Religious institutions are generally considered sacred under international law. So how is one to react when terrorists fire on civilians from mosques or use churches as ammunition storage dumps? It you raid them or fire upon them, is it a violation of international law? and if yes, are we not granting immunity to terrorists?
What if a terrorist command post is set up in a civilian hospital for the mentally ill?
What is the law when a terrorist feigns illness and seeks the cover of a hospital ward, or worse, is supported by the hospital staff?
What if an armed terrorist is using stone-throwing children as a human shield behind which he is firing?
How do you treat the second echelon of terrorists who recruit and train child suicide bombers?
How should the world react if a pre-emptive strike is made against Iran‚s nuclear facilities even though some of those facilities have been intentionally placed under populated civilian areas?
The media will have a field day and unfortunately, international law says absolutely nothing about these issues? That is because these situations are new and unprecedented in modern history. Even Hitler, the monster that he was, put his 17-year olds into uniforms at the end of World War II without any pretense that they were civilians.
The real tragedy is that terrorists have forced us to choose between dying and abandoning civil liberties. That is the greatest menace of all because the civilized world is still lost in illusions about the rule of law in an environment that has become totally lawless. International law has no special penalties to cover killers shooting from hospitals, mosques and schools while being protected by their governments and has no response to those who use children as human shields while being sheltered by a government. Just as the Western world united to end piracy, so must we unite against this scourge of terrorism and clarify both our definitions and our remedies. These so-called civilians demand protection under international law while those who defend themselves against them are condemned as war criminals. Just ask the Israelis about their experiences and the Americans in Iraq who watch Sunni mosques being used as fortresses.
The good news is that all this is quite temporary because international law always adjusts itself to new realities. After every war, the rules governing international engagement inevitably change. The bad news is that we may have to wait for the next catastrophe and for this war to end for that to happen.