by Gavin Don
An old Chinese curse runs “may you live in interesting times”. These are interesting times. Today’s geopolitical strategists learned their trade in a bi-polar world, in which two clear competing ideologies wrestled for global dominance within a fairly weak framework of international law. Occasionally the wrestling match became violent, but for the most part lethal violence was confined to wars between states – North Korea against South Korea, North Vietnam against South, Egypt against Israel, among others. Occasionally lethal violence between Capitalists and Communists cropped up in civil war within states, with the two camps each supporting a side (think Angola and Afghanistan for significant examples). But in general the Cold War was characterised by the lack of open war fighting, and a pleasingly low level of general violence compared with what might have been.
It is certainly true that a system of laws governing the use of violence among states was set up by the UN Charter in 1945, and has technically been in force ever since. It is also true that the legal system so created is very clear in its rules, which permit the use of violence by one state against another in only two circumstances. But in the face of these truths International relations during the Cold War paid only lip service, or no service at all, to the law of war, rendering the substantial body of law that has come into being since 1900 more theoretical than practical.
Between 1989 and 1991 the Cold War came to an end, thankfully with a whimper not a bang, as first the Communist warfighting alliance (the Warsaw Pact) collapsed from within, and then the Soviet Union itself imploded, fragmenting into a dozen separate states. One of the consequences of these fragmentations was a general acceptance among states that law should trump force. Today, nearly a quarter of a century later, International law governing conflict between states has increased its status and scope to the point where the legality of a potential conflict now occupies centre stage in both the domestic and international politics of civilised nations.
International Law permits the use of violence between states in only two circumstances. First violence is permissible in pursuit of an immediate need for self defence, following an attack on the state concerned. To be legal, the defending state’s violence must follow, not precede, the attack, must be proportionate, and only remains legal while the second “legalisation” route is pursued.
The second circumstance permits the use of violence with the authorisation of a Resolution of the UN Security Council (or, if blocked by a veto, by a sufficiently large proportion of the UN General Assembly instead).
Absent one of these two circumstances, use of violence by one state against another is, quite simply, a crime.
It is no surprise to a (former) cold warrior that these legal niceties fell into relative disuse during the Cold War. Between 1945 and 1989 two completely antithetic societal systems engaged in a literal life or death struggle for survival, in which the sole factor moderating the use of violence was not law, but the real risk that unrestricted violence would rapidly lead to the general use of thermonuclear weapons, the swift deaths of probably half a billion people (including the leaderships of both sides) and possibly the end of modern civilisation itself.
The risks were not theoretical. In the early 1950s, the US Chiefs of Staff made serious recommendations that a pre-emptive nuclear strike should be carried out on Russia, as at that time the US had a significant numeric and qualitative advantage in warheads an delivery systems and would “win”, while delay would inevitably mean that Russia would catch up, evening out the US advantage.
The Cuban missile crisis came very close to being the trigger for a thermonuclear exchange. During the crisis the commander of a Russian submarine, stalking the US task group blockading Cuba, ordered an attack using a nuclear torpedo. Russian command protocols thankfully required that the political officer on board concur before a weapon was released. He did not. A forthright argument followed, in which the Commissar prevailed. At that time, Armageddon was averted solely by the strength of character of one committed man.
Recent published accounts reveal many other near occasions for a nuclear war, ranging from the frightening to the farcical. In circumstances so terrifying it is not a surprise that international law took a back seat. Might was right, and rights were theoretical.
The collapse of the Soviet Union did not remove Russia’s nuclear weapons from the scene, but it did end the period of existential rivalry that made nuclear weapons relevant. As the relevance of weapons diminished the relevance of international law grew, for now all parties had the time and space to become more civilised. Also, the West, as clear winners of the Cold War, was naturally required to eat its own dog-food – in this case the idea that civil society rests on the Rule of Law. If that were true of society within a state, surely it should also be true of society between states? Having won the philosophical debate that lay at the heart of the Cold War, the West could hardly abandon its core argument that the rule of law is central to civilisation.
So, the quarter century following 1991 has seen an explosion of international legislation by treaty and by custom, accompanied by an increasing willingness on the part of states to obey those laws, even where obedience damages the interests of the obedient. The explosion is not just in the number of treaties, but also in the body of Customary International Law – law which comes almost magically into being simply because enough states follow a code of conduct for long enough for that code to acquire the force of law.
Alongside the growth of international law we have seen a growth of bodies equipped to give that law sharper teeth. Principal among these is the International Criminal Court, formed by treaty, which can now find, arrest, detain, charge, try, convict and imprison individuals who have broken international law (even though they may have broken no domestic laws in the country where their actions took place). In parallel with this growth in the power and reach of international law (a beautiful thing indeed) has been growth in the application of international laws by courts within states. So, soldiers have been tried and convicted for acts carried out in foreign states (subject neither to the jurisdiction of the convicting court, nor the domestic law concerned), because those acts broke international law.
To one who believes that civilisation depends on the fair application of fair laws, the process mapped out so far is both beautiful and positive. Indeed it might almost be described as Elysian. However, this Elysian field hosts a poisonous weed.
To recap, under international law state violence is only legal in two sets of circumstances – self defence or when authorised by a UN Resolution. Both sets of circumstances relate to and cover the use of violence by a state against the armed forces and military assets of another state. This is crucial. International law is the law of states, and governs the licence to kill people in the uniform of states.
In the good old, bad old, days if an individual used lethal violence within a state’s borders, then the crime could be prosecuted under the state’s domestic law. Domestic law allows enforcement agencies to use violence within a state under certain circumstances, though usually in a reactive rather than a proactive mode. If the violent transgressor was a state, or more correctly an individual employed by a state, then international law applied. The choice of laws was governed by the locus of the crime and the nature of the criminal – whether a person or a state (persons here can include corporations in some states, but not others. This part of the law is in flux).
But those old days have passed. The multilateral world that flowered with the end of the Cold War contains many organisations created to pursue large-scale political change by violent means applied across or beyond borders, that are neither states nor individuals. Most prominent among these are of course ISIS, Al Qaida, Hizbollah, Al Shabaab, the FARC and the Shining Path, but many younger, lesser or less successful others could be named. These organisations have common characteristics which make life difficult for the lawyer. They are not states, so are not governed by international law. They organise and transact large scale lethal violence across borders. They contain individuals who are citizens of many different states. They have no single base or residence. And their aims are political, not economic – they live to change society, not the bank balances of their members.
These characteristics present law with a problem. In so far as an individual belonging to one of these organisations uses violence within a state, state domestic law can deal with the offender after the act (and to a limited degree before it, if the act has reached the stage of conspiracy or attempt). This applies whether the individual is acting within his own state or inside another state. However, the scale and intensity of the violence which such organisations are prepared to use is now very large – an airliner with 400 people on board is seen as a desirable target, and many such organisations would happily use even larger scale violence if the means were available. It is therefore no longer acceptable to civilised society to react to violent acts after the event – we now have an urgent and pressing need to pre-empt them well before they have reached the stage of “conspiracy” or “attempt”, and in practice that means removing the members of these organisations from society well before they act, either by imprisoning them or killing them. However, under domestic law such pre-emptive action is illegal, and attacks a key foundation of our basic freedoms, while international law sits mute on the sidelines, applying as it does to states, not organisations or individuals. In short, life has created a hole in our system of laws that needs to be filled.
In a complex and difficult world this paradox has widely resulted in poor attempts to carve out special sets of rules for dealing with such organisations and their members. In short, rulers in most states (both civilised and uncivilised) have created a new class of individual, “the Terrorist”, and of organisation, “the Terrorist Organisation”, and have tried to argue that normal domestic laws should not apply when dealing with people and organisations which fall into these classifications. Where courts are strong enough to disregard such exceptionalism “Terrorists” have been given protection by domestic law from pre-emptive, and frankly, illegal acts by states. To counter such courts governments tend to enact laws which fundamentally tear up everyone’s rights and liberties in order to make pre-emptive action against a tiny number of individuals legal. Where courts or legislators have been strong enough to block the destruction of liberties some governments have responded by making a practice of carrying out pre-emptive violent acts outside their own jurisdictions. Prime examples of this are the prison at Guantanamo Bay, drone attacks on Pakistan, and the shady “Rendition Camps” located in, among other places, Egypt.
Among the laws passed to allow authorities to square the legal circle are laws which render possession of articles useful for Terrorism a crime. Presumably any article used by a “Terrorist” in pursuit of a violent act should be included, and this would naturally include, say, toilet paper, soap, clothes, shoes and food. The intellectual writhing and contortions required to reconcile such laws with the supposed protection of rights and liberties of citizens who are not considered “Terrorists” have occupied much court and parliamentary time, with the net result that citizens of countries which have tried to outflank basic justice precepts (for example that one cannot be convicted for having thoughts or desires – even very evil ones), or for acts carried out outside a domestic jurisdiction) are now only as free as senior police officers wish them to be.
In all cases state authorities have justified their contortions by using a generic word – Terrorist – to frighten opposition into silence. The name is a powerful weapon in itself. Terror is obviously a Bad Thing, and therefore people who seek to inflict Terror by using violence are also a Bad Thing, rendering deeper examination of their motives, backgrounds, life experiences, aims and beliefs redundant, even traitorous. The strategy has largely been successful in preventing large scale violence, but has at the same time taken civilisation and the rights of citizens three hundred years backwards. So far, our flailing clumsy attempts to negotiate the hole in our legal systems are actually helping the “Terrorists” to win.
It may be seen that the coverage gap between domestic and international law has arguably forced this unpleasant result on civilisation – that the reward for the contortions described is the ability to act pre-emptively to stop “Terrorists” before they kill. There is, though, another way, which involves no contortions, and which does not destroy the rights of citizens along the way. In short, this way is to bring the organisations, and their members, within the ambit of international law, and then to use the law of war to legalise pre-emptive actions against them.
First, it is necessary to define a new class of international legal person, to add to the present international law population of “states” and “NGOs”. I propose that these new legal persons be called “Violent Political Organisations”, or VPOs.
It may immediately be objected that many examples of Violent Political Organisations that turned out to be “Good” may be found in the history books. In the United Kingdom in 1646 King Charles considered Parliamentarians to be members of a Violent Political Organisation, but those pesky VPOs created the world’s most enduring and successful Constitutional Monarchy. In the United States in 1776, the British Parliament (in power courtesy of Cromwell’s VPO) considered the independence movement to be a Violent Political Organisation, but that turned out well in the end. A hundred years later Congress (in power courtesy of the George Washington’s VPO) considered various Native American tribes to be VPOs. Few would agree with that judgement now. In Russia in 1916 the Czar (then in power) considered the Bolsheviks to be a VPO, and in 1946 the Bolsheviks considered the Ukrainian Independence Militia to be a VPO. Back in the UK, the Irish Republican Army was considered to be a VPO from 1965 until 1995, but now the IRA’s leaders are the elected heads of a very autonomous government of Northern Ireland, and would describe the withered stump of violent Unionists to be a VPO. Life, it must be said, is complex.
So, an immediate challenge is to refine our definition of what is and is not a VPO. A good starting point is that all VPOs share one characteristic – they all seek to obtain control over populations of people, who might or might not form a state, or already be formed as a state. For so long as a VPO confines its violence within the border of its target state then domestic state law generally does not have a problem. In most countries murder is a crime, and a state can use violence in degrees from mild to extreme to prevent murder or punish murderers. The criminal law applies. So far so simple. This was the case with the IRA and the British state, and the long bloody conflict between these created few tensions around the rights of citizens.
Still staying with the simple case, where a VPO decides that its strategy requires it to use (illegal) violence in another state (for example one which is supporting the state or regime it is trying to replace) its acts in that second state are similarly governed by the criminal code of that second state, which can use its own authorised degrees of violence to detect, prevent and punish criminal acts. No problem there either.
Or, at least, no problem when the scale of violence used by the VPO is low, and its area of action small. These circumstances both applied during the Cold War. In the 60s and 70s a corrosive miscellany of small impoverished VPOs sprung up around Europe like weeds on a path, carried out violent acts on a relatively modest scale, and then were either caught and punished under state (national) law, killed in flagrante, or simply whithered away.
We cannot, though, simply define “bad” VPOs by reference to their use of violence. Roundheads, Minutemen and Ukrainian freedom fighters all used violence to pursue their goals. If we are to define VPOs as a new person under international law (with desirable consequences, set out below) then we will need a mechanism under which the community of states can make a subjective determination that this organisation is a VPO and that one is not. We will come to that shortly, but it is perhaps desirable first to consider what useful outcomes we would enjoy if VPOs became subject to international law as legal persons in their own rights.
The central benefit is that the law of warfare (legally authorised warfare, that is) allows each side proactively to kill members of the opposing side, even if they are doing nothing more offensive than having a quiet smoke behind the latrines. So long as your target is (a) in uniform, and (b) has not indicated his wish to become a non-combatant by disarming himself and surrendering, proactive violence is legal. Indeed, in the words of the great early 20th century admiral Jackie Fisher (founding father of the modern Royal Navy) “moderation in war is imbecility” – he was of the view that proactive violence was a vital necessity.
Once a war is legal (either because it is in self defence or because it is authorised by a UNSCR) then proactive violence is permitted against any combatant. At present, a state of legal warfare can only exist between states. If VPOs were given the status of a person governed by international law then war against a VPO could be authorised by a SC Resolution, and would also be legal under the provisions of self defence. In practice, all that would be required would be a UN Resolution declaring this or that VPO to be a “proto-state” for the purposes of International Law. Then states whose territory or people had been subject to attack by such a Proto-statal VPO could invoke the legal right to self defence, while seeking a UNSCR to authorise continued violence. Being a legal war, states could prosecute full proactive war on the VPO with complete legality, and most importantly, could use violence on known members of the VPO before those members committed crimes under domestic law. With this clear authorisation the need to contort and distort domestic law to accommodate pre-emptive acts would simply evaporate.
We would need to consider some consequential effects of the creation of Proto-states. Would a Proto-state be entitled to membership of the UN? Intuitively the answer would be no (imagine the representative for ISIS residing with diplomatic immunity in New York), but intuition is not good enough for law. What statal characteristics should qualify a state for membership of the UN? The key characteristics certainly cannot include democratic government, or the rule of law, or the renunciation of violence (if we used those then three quarters of the UN would have to be ejected immediately). Occupation of territory is also unsound as a basis, as some VPOs occupy substantial territory, and some state members of the UN occupy rather less than all of their nominal territory (Congo and Pakistan, for example). Historic borders are also of no use – the UN clearly accepts that new states can form from the division of old states, whether by consensus or through violence (Bangladesh, Sudan and Slovakia to name three, plus eleven of the twelve former “members” of the Soviet Union, with possibly Scotland, Quebec, Kurdistan and Catalonia to come).
Undisputed occupation of territory might be a key characteristic of a full member state. VPOs might occupy territory de facto today, but it is difficult to think of a case where that occupation of territory is unopposed. Again, Al Qaida could perhaps argue that it occupies Waziristan with the implicit consent of Islamabad, but any implicit consent on Islamabad’s part is likely quickly to evaporate if Pakistan thought it might actually lose Waziristan to a new independent Caliphate. Perhaps the answer is more simple – a proto-statal VPO becomes a state when the Security Council says it does. With vetos in the hands of five members this formula seems likely, at least, to be clear, simple and controllable.
Would a proto-statal VPO have any other rights under international law? Probably not. It would be a simple step to bring VPOs just far enough into the status of statehood to bring them within the law of warfare, but no further.
It appears that there are some highly desirable outcomes to including VPOs as proto states within international law. If that is so, then we need to return to the question of how would one define a VPO? A number of key characteristics can be identified that separate VPOs from plain vanilla violent criminal gangs, and indeed from legitimate states. First, the definition of VPOs would have to state quite clearly that no existing member state of the UN could be defined as a VPO (the reason for this will become clear in the next paragraph).
Second, a VPO must have stated political aims. These could be policies in respect of economics philosophy, religion, ownership of property, rights of women (or more accurately the subjugation of women), types of law, the political control of territory, or the alteration of any of those within the accepted territory of a UN member state. It is of course necessary to exclude existing states from definition as VPOs since most states have aims and policies in all those respects in relation to their own territories, and many in relation to the territory of others.
Third (as definition 2 above would cover most normal political parties, pressure groups, and even perhaps you and me), to be a VPO an organisation would have to have either a stated willingness to use lethal violence in pursuit of its policies, or a proven track record of having done so.
This third provision contains a trap. Imagine that I ran a policy group that you dislike. Say I run Greenpeace, and you run a large mountaintop removal coal mining business. You would quite like my activities to be disrupted. I’m not violent, so you arrange a false flag incident in which it appears to the outside world that I have indeed used violence. You accuse me of being a VPO. This would happen. Maybe not to Greenpeace (though some Japanese, French or Russians might be tempted), but to other pressure groups with less shiny reputations. To prevent unilateral decisions on what is and is not a VPO, and to prevent abuse by intelligence agencies, the new body of international law would need to have an effective adjudication process, in which judges (perhaps those assigned to the International Criminal Court) listened to evidence on both sides of the case and judged whether an organisation was a VPO or not. At the outset, the more likely candidates for VPO status could be quickly placed on trial (if the founding treaty had not already defined them as such), which might lead to some good television as Al Qaida, the Muslim Brotherhood and Hezbollah presented their cases in the full glare of world publicity. We might learn some uncomfortable home truths, apart from anything else.
So, as with all law, there would be work for the lawyers. But justice always creates work for lawyers, and the results are generally worth the price of that work.
If we use international law to creates a new justification for using violence, we also need to define the point at which violence must stop. In conventional war between states the end point is usually clear – a formal truce, or a formal surrender, defines the date and time at which killing stops being legal and becomes murder once more. With a proto-statal VPO how would we define that end point? The question is messy. VPOs are not tidy discreet organised boxes of people, but often a loose collection of subgroups and factions working under a common banner, almost a franchise of violence and violent philosophies. The core group might renounce violence, but the franchisees might not.
A messy question demands a messy answer. Once a VPO is declared as such, and takes on proto-statal liabilities in respect of legalised warfare, it would be essential for a new UN Convention on VPOs to be drawn up to deal with the messy details, and most of all to define the circumstances that allow combatant countries to continue legal warfare against any branch of that VPO which it reasonably believes still espouses violence as an option. This is a pretty broad permission. Under it a combatant state would be permitted to hunt down and destroy members of the VPO long after the VPO itself had become non-functional. To moderate what might turn into a licence to kill people who one does not like, the Convention would need to contain a material burden of proof on the part of the combatant state. In normal warfare between states killing of combatants is legal, and the definition of a combatant is anyone wearing the uniform of the opposing state. Simple. A uniform is an obvious mark that someone is a combatant and therefore may legally be killed. Members of a VPO generally do not wear a uniform. So, it would be essential to impose a burden of proof on states (“beyond reasonable doubt” is a well tried formula) before killing becomes legal. In fact this is already widely practised in today’s messy world. US and UK targeting personnel go to extreme lengths (a) to identify that targets are indeed members of “Terrorist” organisations, and (b) to avoid killing non-combatants. A new Convention would require states to collect and store such evidence for examination by a court on demand. In practice examination would rarely, if ever, happen, but the need to take care to remain within the law would impose its own discipline on combatants against VPOs, just as it already does on comabatants in conventional inter-state warfare. It should be remembered that the use of lethal violence against VPOs under a new Convention would still have to be permitted and authorised by a Security Council Resolution, and that the Security Council may be expected to take care to authorise only those states which it thinks will indeed act on evidence beyond reasonable doubt. The Convention would not therefore become a general licence to kill “Terrorists”, but a way of making the use of lethal violence against VPOs legal and controlled.
Returning to the beginning of this piece, international law is formed in one of two ways – by treaty or by custom and habit. If a treaty were desired – The UN Convention on Violent Political Organisations – not everyone would have to sign up to create International Law. In practice, it would only need the world’s leading countries to sign up to improve matters from their present sorry state. As a new treaty would remove acute sources of discomfort for the UK and the USA, and as both China and Russia have potentially difficult VPOs on their books, it seems possible, if not likely, that this new approach might meet with some favour. It might also meet with some disfavour, especially from large states that see no great threat from VPOs, and also have no Security Council veto. These states might see a new Convention as giving a handful of established countries an effective licence to kill anyone they choose to dislike. This group of objectors might be led vociferously by Brazil, India, Thailand, Australia, Japan, Canada and Germany. France’s natural propensity to object to Anglo Saxon unilateralism might be tempered by the knowledge that its veto would give it substantial bargaining power when it came to choosing which VPOs to indict. Objectors to a treaty would find themselves with uncomfortable bedfellows, in the form of Saudi Arabia, Pakistan, Iran, Syria, Lebanon and a few other “bad boys” of the geopolitical scene.
At root, states currently suffering the agonies of dealing with VPO threats under inadequate legal structures might be expected to be keen promoters of a Convention. States with respect for international law and which can see VPO threats emerging in the short term (Turkey-PKK, China-Uighurs, Indonesia-MORS, Mali-Radical Islam) might welcome the chance to place their insurrectionists in a position of weakness. There is no single magic number of signatories at which a treaty becomes “valid”, but if states with something like a third of the world’s population and 80% of its GDP sign up to a new international law then it becomes hard for others to argue that the law is wrong.
Alternatively, if a Convention looked like just too much trouble, there is the second way of creating international law – by custom and habit. Again, there is no absolute definition of what amount of custom and what amount of habit is needed to create new international law, other than to say that it is necessary for most countries to follow the custom, and for more than a brief period. We are already on the route towards this destination. The USA already follows a custom of regarding the members of VPOs as enemy combatants (it actually uses that phrase, and this article perhaps shows why). Guantanamo is, in effect, a prisoner of war camp (though by all accounts a gratuitously nasty one, showing how easy it is to get confused when you are not sure whether you are at war or are punishing crimes). The US uses proactive lethal violence against VPO personnel (treating them as legal combatants). However, once more confusing war and peace, the US only allows itself to use lethal violence outside US territory. Living in its personal twilight zone of legality the US twists and turns, skewered on its own logic. Lethal violence is at present personally authorised by the President. If it’s legal it would not need Presidential authorisation. If it is not legal then Presidential authorisation doesn’t make so. A handful of states have adopted the US’s practice, adding a few penny weights to the “customary” side of the scales. The UK follows along, holding its nose in public, agonising over the legality of its actions in private, trying to keep a reasonable distance from the business end but in essence complicit. Other countries follow at various distances, while some stand apart. Most, luckily for them, do not have to think about the problem at all as they see no threat from the “P” parts of those VPOs which give the most concern. So, at present, we are a very long way from the formation of new customary international law by broad adoption, but given time we would end up with VPOs becoming by habit and practice subject to international law. We feel that a more proactive approach would create a much better result.
The creation of law by custom is painfully slow. This is a problem, as the threat from the “P” parts of those VPOs is real and immediate. The Politics espoused by today’s main VPOs – ISIS, Al Qaida, Hezbollah, the Muslim Brotherhood, Al Shabab and other lesser fanatics – are otiose and destructive of human happiness. We should indeed be using lethal force, and lots of it, to stop them. The use of that force should be legalised to remove the hypocrisies and the paradoxes which undermine the legitimacy of a valid enterprise. Times have changed, and are now rather too interesting. International law must change with them, to prevent civilised societies from destroying the rights and liberties of citizens, and handing victory to precisely those organisations which it is correctly trying to fight.