by joshua brandt
correspondent
In the hazy and murky world of global terrorism, is the rule of international law an anachronism?
According to professor Amos Guiora, the answer is an emphatic “no.” In fact, according to Guiora, who recently spoke on the subject to several Bay Area law schools, the need for an international set of standards governing conflict has never been so pressing.
During a recent phone interview from Israel, Guiora, the director of the Institute for Global Security Law and Policy at Case Western Reserve University School of Law, laid out some of the precepts that will inform the emerging paradigm.
For starters, Guiora delineates what he calls the “hybrid terrorist” — an enemy combatant that can’t be classified as either a prisoner of war or as a standard criminal. According to the Geneva Convention (as cited by Guiora in his article “Quirin to Hamdan: Creating a Hybrid Paradigm for the Detention of Terrorists”), a POW is defined as a soldier who: 1) is part of a command structure; 2) openly wears his insignia; 3) openly carries his arms; and 4) conducts himself according to accepted laws of war.
Although al Qaida combatants meet the first criteria, they clearly fail to meet the other three qualifications, according to Guiora. Additionally, the legal avenues used to prosecute common criminals also are not relevant due to the severity of the crimes.
To illustrate the complex and nebulous terrain of global terrorism, Guiora wrote that when President George W. Bush declared “war” on terrorism, Bush inadvertently classified al Qaida as a “state” and Osama bin Laden as a “head of state,” hence granting al Qaida combatants POW status.
Another important facet of the new paradigm is determining the legal parameters of interrogation. When asked if torture was acceptable, Guiora was again unequivocal:
“Absolutely not. Not only is torture illegal and immoral, but it’s absolutely useless as a means of gathering information.”
Guiora called Vice President Dick Cheney’s assertion that “waterboarding” wasn’t torture “outrageous.” He also pointed out that the Israeli Supreme Court banned the technique of violently shaking prisoners more than a decade ago.
In many ways, Guiora said that Israel could serve as a bellwether for other countries when dealing with the realm of international security law.
“Israel is undoubtedly the world’s laboratory. Israel’s courts have been the most judiciously active and articulate when defining the limits of counter-terror operations.”
One question that Guiora was asked several times during his recent Bay Area trip was one of scale: namely, how to convince an army to follow international protocol when its enemy is certainly unwilling to do so.
“This is not just a ‘pie-in-sky’ academic approach,” said Guiora, who also concedes that establishing international protocols are not panaceas. “Terrorist groups have no self-imposed restraints other than practical concerns such as what day of the week would be best to kill the most amount of people.”
While backing targeted killing as necessary — provided that a chain-of-command was strictly adhered to — Guiora said that abandoning international codes can only inflame public opinion.
“The camera never blinks,” said Guiora. “Every screw-up ends up on the front page or becomes headline news for CNN.”
So how does a 19-year-old soldier in the heat of battle, with their life possibly at stake, conform to an international set of standards?
That question became even more germane when Guiora spoke about two Israeli soldiers who were recently killed after watching a training film that Guiora made for the IDF, which, among other things, stressed the need for respecting religious artifacts. A terrorist smuggled in an AK-47 in a prayer rug and shot the two soldiers to death.
“I’ve struggled with that tragedy many times,” Guiora said. “I’ve wondered if I bore responsibility. I don’t think that my lectures were responsible … but this tragedy does illustrate the huge problem we’re dealing with. Often times, soldiers have just seconds to make a decision that will have grave consequences either way.”
CopyrightJ, the Jewish news weekly of Northern California