The contents of this document are the sole responsibility of the author and do not necessarily represent the views of CCADD.
Can There Be Wars Against Terror?
Some Reflections on Philip Bobbitt’s Terror and Consent
Bobbitt insists that ‘wars against terror’ (in the plural) are not only possible but are actually being waged now. This is said in opposition to Sir Michael Howard’s point that calling the struggle against terror war ‘means quite specifically the abandonment of civil restraints and the legitimisation of the use of whatever force is necessary to achieve ones objectives…(i.e.) to espouse a set of values and legitimise activities normally outlawed in civil society’. Howard goes on: ‘in dealing with terrorists our object should be not to abandon those values…(but) to enforce them’. For example, ‘9-11 and similar atrocities should be seen, not as acts of war, but as “Breaches of the Peace” ‘[i]
Why does Bobbitt want to call this struggle warfare? In this paper I try to explain his answer. But I should begin by noting that Bobbitt denies that wars against terror necessarily entail abandoning the values of civil society. On the contrary, he insists that they are concerned to preserve them – but in a wholly unprecedented situation in which we have to rethink not only the values themselves, but also how they should be preserved. For the twentieth century is different from anything that has gone before, and unless we adapt to this fact, civil society and its values may be doomed.
Bobbitt insists that the ‘wars’ against terror will be very different from the wars of the past. He quotes with approval some conclusions of Lawrence Freedman’s about ‘the difficulty...in shifting...from preparing for regular wars, in which combat is separated from civil society, to irregular wars in which combat is integrated with civil society’.[ii] In particular, the very concept of ‘victory’ has to be completely rethought. Of course winning a war consists of achieving your war-aim. But in the past this amounted to ‘the total destruction of the enemy’s ability and will to resist and his unconditional surrender’ – as George Kennan put it, referring to World War II.[iii] But in the changed world of the twenty-first century, with its emerging ‘market states’ replacing the ‘nation states’ of the last century, the aim of any war will be different. Since market-state terrorism is necessarily directed against civilians rather than against armies in battle zones, ‘the principal defence aim will be to prevent catastrophic loss of civilian life, irrespective of the source of such losses, in order to allow society to develop and maintain consensual government’.[iv] In other words, winning is simply not losing. There is no question of ‘an enemy’ definitively surrendering, or being forced to make peace against its will. Victory just consists in precluding a certain state of affairs from coming into being.[v]
To establish his case Bobbitt has to refute Howard’s argument that terrorist attacks are better described as ‘breaches of the peace’, that is to say crimes.[vi]
Howard’s case rests on, among other things, assimilating Al Qaeda’s terrorist activities to those of earlier terrorist organisations such as those against which Britain struggled in Palestine, Cyprus, Malaya, Northern Ireland. The UK never called these wars. They were ‘emergencies’. In an ideal world, it should have been possible to prosecute the perpetrators of the atrocities involved, in an international criminal court. But anyhow ‘denominating a struggle as a war implies the terrorists are warriors, not murderers’, and this legitimates them in the eyes of their supporters. Hence whether the terrorist escapes or is killed he still ‘wins’, because he either becomes a martyr or is able to continue the struggle. Either way, ‘we’ have lost the ‘battle for hearts and minds’.[vii]
Bobbitt challenges this analysis by claiming that Al Qaeda is a quite different kind of terrorist organisation from any of those we have had to deal with hitherto. It is engaged in market state terrorism. The earlier forms were essentially nation state terrorism. Their objective was to confront a nation state, and to change its policies. For example, the IRA existed to defeat the British aim of maintaining Northern Ireland as an integral part of the United Kingdom. When it killed civilians the IRA saw this as only incidental to its principal purpose. Whereas Al Qaeda targets civilians directly and deliberately,[viii] not as a side effect or ‘collateral cost’ but as a chosen means to the end of attaining its war aim, which is ‘not to seize territory per se but rather to terrorise a civilian population into acquiescence’.[ix] Bobbitt claims that Howard fails to recognise this, because he fails ‘to entertain the idea that something new is happening with regard to terrorism, ..he declines to discuss the possibility that warfare is changing in a way that forces it to transgress the hitherto well-defined distinctions between police behaviour and military campaigns’. [x]
The wars against terror have by-passed the old ‘just war’ distinction between ‘pre-emptive war’ against imminent attack and ‘preventive’ war against a merely possible attack, replacing it by preclusive war. This aims to ‘prevent terrorist attacks before they unpredictably occur, trying to pre-empt the proliferation of WMD before they are irrevocably deployed, trying to avert humanitarian crises before their momentum becomes irresistible’. It may well entail ‘precautionary diplomacy and even anticipatory military action’.[xi] For example ‘we could have stopped the genocide in Rwanda had we acted preclusively’.[xii]
Bobbitt’s case for calling the struggle against terrorism preclusive warfare rests on two main theses:
1. Market state terrorist organisations, of which Al Qaeda is only the first, ‘cannot accept the existence of market states of consent, and thus will be at perpetual war with them. That makes terror an end as well as a means’.[xiii] The intentional and systematic killing of civilians by Al Qaeda is a direct objective of their activity, and is thus their war aim. Despite the fact that calling it a war gives the terrorists a certain legitimacy among those for whom they claim to be fighting, according to Bobbitt this does not detract from its being warfare. It just means that their atrocities are war crimes, rather than crimes in the civil sense.[xiv]
2. We are involved in a wholly new kind of war, in which victory has to be defined in a new way, and the tactics and strategy are new. As for the strategy, Al Qaeda ‘is pursuing an objective – the establishment of a global caliphate – that is incompatible with a global system of human rights…It does not simply want to seize the governing apparatus of a particular nation state.. ..(but rather) to achieve a constant state of terror because this is the most formidable alternative to a global order of state systems of consent and international regime of human rights’.[xv] This then is what would constitute victory in war by these market state terrorists: ’imposing the implacable, transnational jurisdiction of the sharia…a caliphate of textualist clerics ruling via a market state of terror’. And their tactics are appropriate: ‘suicide bombings and the careful exploitation of the media’.[xvi] The new network ‘outsources operations…depends on local groups to carry out warfare and pays them for it, supplying planning and infrastructure (including weapons)’.[xvii]
Bobbitt admits that states like Britain were not at war with groups like the IRA. ‘There are many good reasons to think that the concept of war is inapplicable to an adversary that has no territory to defend, no capital to seize, no army to surround, no citizenry that can be menaced’. Hitherto only states could muster the wherewithal to go to war.[xviii] But perhaps groups like Al Qaeda are ‘virtual states’ already. Anyhow Al Qaeda has many of the necessities for war: a treasury, an intelligence cadre, a system of laws to promulgate (the Sharia), even a standing army in the shape of an outsourced mercenary collection of units. The one major thing it lacks is contiguous territory (which means that retaliation and deterrence against it needs to be rethought). Nevertheless ‘unlike conflict with earlier nation state terrorist groups, global war can be waged by a market state terrorist network’.[xix] So far so good. But is such a war being waged now? Well, given that the technology for warfare is more widely available than ever before,
‘when the motivation for these strikes is not criminal but political; when the targets are military in nature and the operations carried out with a disregard for the survival of the attackers; and above all when the nature of the assaults is such that, previously they could only have come from states because the assaults are sustained and global in scope – then it may not be unreasonable to regard them as acts of war’.[xx]
But, Bobbitt now asks, is it wise to do so? The answer can only come by careful consideration of the implications.
Bobbitt’s central point is that terrorism presents us with an unprecedented situation, in which combat is only one element. He quotes Christopher Coker: ‘Armed forces will increasingly have to learn how to conduct high intensity combat, counterinsurgency, peace support and reconstruction’ and the key point is that these have to be conducted simultaneously. The trouble with the post-conflict failure in Iraq was not the lack of a plan for reconstruction (as commonly alleged), but that the plan was for this to be begun after the phase of combat was over. The two were clearly separated, as they were (for example) in World War II when reconstruction took place after the end of the fighting. Whereas now what is needed is for the two to go hand in hand. This is because the struggle takes place not on a battlefield but among the civilian population. In Iraq ‘the inability to quickly establish civil order, to prevent looting and killing, and to suppress the emergence of private militias also shows that this lesson of future wars had not been entirely learned’. As Mary Kaldor says, ‘forces are needed that combine soldiers, police and civilians with the capacity to undertake various humanitarian and legal activities’ in order to ‘protect people, provide security so a political process can get going, and act in support of the rule of law’.[xxi]
This means that we have to integrate strategy with law, military activities with those of the constabulary: in short war and crime.
Bobbitt does not recognise any need formally to define either war or law. This is presumably because both concepts are in such need of modification that the familiar definitions, if any, are not much use in the changed circumstances of today. The meaning of war has to change radically because of the changes in what Bobbitt calls the ‘constitutional order’ of the world. Different constitutional orders spawn different kinds of terrorism.[xxii] The nation state order of the twentieth century spawned the nation state terrorism of e.g. the IRA or ETA. The market state order has spawned the market state terrorism of Al Qaeda. Inevitably, therefore, it must also spawn a new kind of war to counteract it.
Sir Michael Howard calls atrocities like 9/11 ‘breaches of the peace’. Yet while the non-committal term ‘breach of the peace’ may be helpful, as straddling the war/crime divide, the term crime itself may also be no more (or less) appropriate than the term war. The requirement now is to formulate a way of talking that truly encompasses the novelty of the situation, in which elements of warfare and law are both clearly present.
Talking of market state terrorism as a crime, rather than an act of war, inevitably brings into play the concept of the ‘rule of law’. Bobbitt argues that we need to evolve a new concept of law as well as a new concept of warfare. That is, we must bring strategy and law together into a single new synthesis. So far so good. Yet just as with war, Bobbitt does not define what he means by ‘the rule of law’, presumably because it too has to change with the changing times. Market state rule of law has to be different from nation state rule of law. But what does he mean by this new concept?
On pp. 478-80 he lists twelve specific proposals for helping to legitimate the use of force against global, networked terrorism. These are proposals for changes in the ‘rule of law’ to cope with the changed circumstances of today. They are too long to quote in detail here. Included are a ban on trading in biological and fissile stocks, an amendment to the NPT banning highly enriched uranium in any state that cannot prove it already has a programme for this at the time of the ban, the monitoring of nuclear reactors etc. by regional tribunals authorised by the Security Council, use of sensor technology to detect WMD, a standing Terror Court to which cases could be submitted by the Security Council. In addition to this list he proposes another new rule, namely that ‘a state of terror can never be sovereign’. ‘To be assured of sovereignty…a state need only become transparently a state of consent. International law should be reformed to recognize this rule as a fundamental element in the constitution of the society of states’.[xxiii] He admits that these ideas will seem officious and destructive. But in fact they do not go nearly far enough, because they cannot address ‘the role of warfare in confrontation with global terrorism.’[xxiv]
Despite the lack of a clear definition of law, we can discern some other things that might be involved. For example, market state law has to permit ‘preclusive’ attacks on sovereign states, not just in order to exercise a ‘responsibility to protect’ (as could have been the case in Rwanda) but also to preclude a non-nuclear state’s wish to acquire weapons of mass destruction. Bobbitt is keen to promote as much denuclearization of the world as is compatible with security. But despite the pleas of the ‘Gang of Four’ for the abolition of nuclear weapons,[xxv] he thinks ‘a world free of nuclear weapons would be… only a temporary one’. Nevertheless, ‘a world in which U.S. nuclear guarantees underpinned regional denuclearization is possible…(and) the U.S. need only retain a modest nuclear force to deter a surprise breakout’.[xxvi] Nevertheless, the retention of nuclear weapons presents a particular ethical problem. For Bobbitt thinks the market state nuclear powers, and especially the U.S., need to retain their weapons for purposes of ‘savage retaliation’ against other states who may wish to acquire them. And to do this the U.S. has to be able and willing to deliver ‘annihilation’.[xxvii]
A second difficulty occurs with the acquisition of intelligence. Here Bobbitt argues that, in the wars on terror, officials of a state who need to obtain information from people whom they suspect of being in possession of it should operate on the basis of a consequentialist ethic. The background to this argument is that prisoners at e.g. Guantanamo Bay (and some other places) are held by the state indefinitely without recourse to legal defence because they are neither prisoners of war (with rights under the Geneva Conventions) nor criminals (with the right to be treated as innocent until proved guilty).[xxviii] Furthermore, there is good reason to think that they have sometimes been treated by officials representing the US Administration in a manner that is inconsistent with the McCain Amendment forbidding ‘cruel and inhumane treatment’. Some of this treatment, such as ‘waterboarding’, amounts to torture inflicted for the sake of obtaining information.[xxix] Bobbitt quotes the Army manual to the effect that ‘torture by US personnel would bring discredit upon the US and its armed forces while undermining domestic and international support for the war effort’. And, as he insists, ‘establishing the rule of law is a principal war aim’.[xxx] Therefore detention centres like Guantanamo Bay should be forsworn as contrary to the war aim of the ‘wars on terror’, namely to uphold the rule of law.[xxxi]
However, it remains a question how officials should treat people suspected of having information that may be necessary for the prosecution of the war. Bobbitt wants to permit what he calls ‘coercive interrogation’ of terrorists while prohibiting torture. It is at this point that his case for calling the conflict a war against terror becomes crucial: ‘the solution here proposed for this problem depends on our understanding of the conflict from which it arises as a war’.[xxxii] For it is because this is a war that certain means can be used which would not be acceptable otherwise (as Sir Michael Howard pointed out in his Alastair Buchan Memorial lecture).[xxxiii] Where information ‘provides the critical weapons for the wars of informational market states’ then terrorists ‘can be coercively interrogated should they refuse to surrender their most dangerous weapon, their deadly plans’. The permitted coercion must be ‘short of severe pain’ and ‘be determined by the imminence and gravity of harm to civilians that can thereby the avoided, and the fact that this avoidance is not otherwise achievable’. Given these constraints, coercive interrogation is OK.[xxxiv] But Bobbitt points out that the difficulty ‘lies in determining that the detainee really is a terrorist’.[xxxv] He suggests that the answer is to set up a ‘jury’ of ‘persons chosen from a pool of responsible people who represent, not the government, but the society in whose name the government is acting’. The purpose of this ‘jury’ will not be to maximise the amount of information gathered, but to ‘accurately assess the claims of the interrogator’. Its authority ‘must be accorded legal status under international law’.[xxxvi]
These are two of the ways in which the ‘rule of law’ in Bobbitt’s view needs to be revised in order to fit into the strategy of the wars on terror. Whether they are acceptable depends on the concept of ethics which underlies them.
Critique of Bobbitt
1. If things are so different from the past, why does Bobbitt go on using old fashioned, perhaps obsolete terms like war to describe what we now have? Is it not simply that in this new, slippery terrain we need some firm footholds, and the word war seems to be a useful example of this? After all, we tend to think we know what warfare is about. So using the word war is a useful rallying cry. Yet, despite the elaboration of his arguments, calling the new situation war is no more than a suggestive proposal - when it is not just blank assertion.[xxxvii] Without a definition of war to hang on to, such as Clausewitz’s (‘an act of force to compel our enemy to do our will’, On War Chapter 1) all Bobbitt does is to make persuasive suggestions as to why it seems appropriate to talk about war, despite equally persuasive claims (which he rehearses at length) that things are nowadays so different that perhaps we need a different vocabulary to talk about it. He cannot show that the present predicament falls under the definition of ‘war’ since he gives us no such definition. Perhaps the point of calling it war, then, is just to reassure us that we are still in familiar territory, even though at the same time he insists we are not. If so his arguments are unclear. Or perhaps he just wants to dramatise the seriousness of the predicament we find ourselves in so that we can mount an adequate set of counter-measures. But then we need better arguments than this for calling it war.
2. It seems to have escaped Bobbitt’s notice that the nuclear strategy which he continues to support itself entails a willingness to commit intentional and indiscriminate acts of war directed against innocent civilians along with the non-innocent (i.e. what he calls ‘an immediate and annihilating retaliatory response’ to an attack)[xxxviii]; that is, to be willing to commit war crimes.[xxxix] What does this argument say about Bobbitt’s conception of the ‘rule of law’? Or indeed his thesis that the aim of the wars on terror is to protect civilians?
3. When faced by the question ‘how far should the interrogation of terrorists go?‘ Bobbitt’s answer is that the officials concerned should follow a ‘duty of consequentialism’. In other words ‘any contemplated course of action must be measured in terms of the foreseeable costs and benefits that are its result and not against any absolute or categorical rule, including those regarding intentions’.[xl] Now Bobbitt has borrowed the concept of ‘consequentialism’ from Elizabeth Anscombe’s famous essay on Modern Moral Philosophy. But he but makes no attempt to refute its central thesis that consequentialism makes nonsense of traditional morality and especially of intention and of ‘double effect’. In ignoring her point Bobbitt pursues the very path the Anscombe had shown to be untenable. Indeed he maintains Machiavelli’s position that ‘officials must disregard their personal moral codes in carrying out the duties of the state’.[xli] In other words they must be permitted to do exactly what Anscombe says they must not do, namely fall for the temptation to do evil that good may come. This is what Bobbitt’s ‘rule of law’ requires! Of course he would presumably not call what they do ‘evil’; but having got rid of their personal moral codes officials seem to be exempt from being first of all good persons in order to be good officials. But then ‘what is a good person?’ – the question which lurks below the surface of Bobbitt’s thesis – raises fundamental ethical issues which he does not enter into.
4. Bobbitt wants to replace pre-emptive war by ‘preclusive’ war. But at this point in his argument he is surely confusing war with policing. For in so far as ‘preclusion’ involves what he has called ‘anticipatory’ action he is surely trespassing on the territory of the police in civil society. ‘Preventive’ war is normally reckoned to be illicit in just war thinking, but preventive action is of course a normal part of police work. The same is surely true also of ‘preclusive’ action. By introducing the concept of ‘preclusion’ into the discussion Bobbitt seems to be admitting that what he is talking about is policing rather than war. So what is needed is a discussion of how far ‘policing’ can go in the novel situation that we face today.
5. In ignoring Anscombe’s criticism of consequentialism he is also ignoring the fact that her essay was designed to reinstate the ‘virtue ethic’ which had reigned in Europe until (roughly) the Enlightenment.[xlii] This has profound implications for any claim that the ‘wars on terror’ can be just wars. For of course, the theory of just war is much more than a list of criteria, or rules, to be applied to particular wars in detachment from the concept of justice which underlies them. Just War thinking in the tradition of virtue ethics (for example in the tradition from Augustine to Suarez) is a very different thing from just war thinking based on a utilitarian or a consequentialist notion of ethics, as in much modern discussion of the subject. This is not the place for expatiating on the history of ethics, or the varieties of just war theories which have been spawned by different ethical theorists over the centuries. But it is perhaps useful to point out that Bobbitt’s consequentialist argument for coercive interrogation, as an unavoidable element in the strategy for waging the ‘wars on terror’, is not an isolated academic point but presupposes a version of just war thinking which is open to very serious criticism for lacking any adequate conception of the virtue of justice in formulating both law and strategy.
[i] Are We At War? The Alastair Buchan Memorial Lecture for 2008 by Sir Michael Howard (London, IISS Survival August/September 2008)
[ii] Philip Bobbitt, Terror and Consent (London, Allen Lane, 2008) p. 177.
[iii] George F. Kennan, Memoirs1925-1950 (New York, Little Brown, 1967) p. 309, quoted in Terror and Consent pp. 196-7
[iv] Terror and Consent p. 197.
[v] Terror and Consent p. 198.
[vi] Sir Michael Howard, What’s In A Name? (Foreign Affairs 81 No. 1, January/February 2002).
[vii] Terror and Consent p. 129.
[viii] Following the London bombings on July 7th 2005 Ayman al Zawahiri (second in command of Al Qaeda) said in a videotape: ‘you (sc. the British) shed rivers of blood in our land so that we exploded volcanoes of anger in your land…If you don’t leave today, then you shall inevitably leave tomorrow but after scores of thousands of fatalities and double that number of wounded and disabled people’. (quoted in Terror and Consent pp. 76-7)
[ix] Terror and Consent p. 132.
[x] Terror and Consent p. 131.
[xi] Terror and Consent p. 200.
[xii] Terror and Consent p. 137.
[xiii] Terror and Consent p. 63 (my italics). ‘States of consent’ govern ‘on the basis of authority freely derived from the unfettered consent of the governed, authority that must be regularly and frequently renewed and that can be withdrawn’ (Terror and Consent p. 182)
[xiv] Terror and Consent p. 130.
[xv] Terror and Consent p. 62.
[xvi] Terror and Consent p. 70
[xvii] Terror and Consent p. 93.
[xviii] Terror and Consent p. 125
[xix] Terror and Consent p. 127.
[xx] Terror and Consent p. 128.
[xxi] Terror and Consent p. 147
[xxii] Terror and Consent p. 9.
[xxiii] Terror and Consent pp. 481-2
[xxiv] Terror and Consent p. 480
[xxv] Henry Kissinger, Sam Nunn, William Perry and George Schulz. See Wall Street Journal 4th January 2004, quoted in Terror and Consent pp. 515-6
[xxvi] Terror and Consent pp. 516-7
[xxvii] Terror and Consent p. 517 and p. 8.
[xxviii] Terror and Consent p. 265
[xxix] Terror and Consent p. 276. The Guardian has recently reported an experiment conducted by Christopher Hitchens to find out what waterboarding is really like, and whether it is possible to distinguish ‘extreme interrogation’ and ‘outright torture’. His conclusion is clear: ‘Believe me, it’s torture’. Guardian ? July 2008.
[xxx] Terror and Consent p. 281.
[xxxi] Terror and Consent p. 275.
[xxxii] Terror and Consent p. 392.
[xxxiii] See above, p. 1
[xxxiv] Terror and Consent pp. 392-3
[xxxv] Terror and Consent p. 389.
[xxxvi] Terror and Consent p. 390.
[xxxvii] But see 3. below
[xxxviii] Terror and Consent p. 8.
[xxxix] Terror and Consent pp. 8, 143 and 146
[xl] Terror and Consent p. 361.
[xli] Terror and Consent p. 365.
[xlii] ‘Virtue ethics’ is now once more a well-established foundation of ethical discussion, as witness books such as Alasdair MacIntyre’s After Virtue and Whose Justice? Which rationality? and Rosalind Hurthouse’s On Virtue Ethics. The pioneering work of Elizabeth Anscombe, Peter Geach and Anthony Kenny in this field has been hailed in Roger Pouivet’s After Wittgenstein, St. Thomas (South Bend, Indiana, 2008)