Neo-Conned! Again

by D Liam O'Huallachain

  1. Halford John (later Sir Halford) Mackinder (1861–1947) was the most prominent British academic geographer of his time. He joined the London School of Economics upon its foundation in 1895, directed the School from 1903 to 1908, and served there variously as reader and professor through 1925. In 1886 he was admitted to the Royal Geographical Society (RGS). He also held posts at Oxford University and the University of London. He was principal of the University Extension College of Christ Church College (of Oxford University) in Reading; his work there was instrumental in the later founding of the University of Reading. He was active in British politics and was a Member of Parliament from 1910 to 1922 for Camlachie, Glasgow. Francis P. Sempa, in his biographical sketch of Mackinder, reports that “[n]o one understood better the important relationship between geography and world history than the great British geographer, Halford John Mackinder.” His important works, besides his 1904 paper, all deal with his constant theme, connecting geography with the study of history and geopolitics in order to demonstrate the strategic importance of geography. They include “The Scope and Methods of Geography,” presented to the RGS on January 31, 1887 (Proceedings of the R. G. S., Vol. 9, 1887, pp. 141–60, reprinted London: Royal Geographical Society, 1951), Britain and the British Seas (New York: D. Appleton & Co., 1902), Democratic Ideals and Reality: A Study in the Politics of Reconstruction (first published, London, Constable and Co. Ltd., 1919). The last significant statement of his views is “The Round World and the Winning of the Peace,” Foreign Affairs, July, 1943. He was awarded the Charles P. Daley Medal by the American Geographical Society at the American Embassy in London on March 31, 1944. On the occasion Ambassador John Winant remarked that Mackinder was the first scholar who fully enlisted geography as an aid to statecraft and strategy. In 1945 he was awarded the Patron's Medal by the RGS; the Society's president noted that “[a]s a political geographer his reputation is … worldwide.” Mackinder's work has been referenced by individuals such as career “geopoliticians” Zbigniew Brzezinski and Henry Kissinger, strategic historians Paul Kennedy and Colin Gray, and others, including Eugene Rostow, Robert Nisbet, and former U.S. State Department geographer George J. Demko. Sempa concludes his biographical essay of Mackinder by saying that “[m]ore than fifty years [after his death,] statesmen and strategists still operate in Mackinder's world.”—Ed.

  1. “The Strategy Behind the Paris-Berlin-Moscow Tie,” Intelligence Online, No.447, February 20, 2003. Intelligence Online Editor, Guillaume Dasquie, is a French specialist on strategic intelligence and has worked for French intelligence services on the bin Laden case and other investigations. His reference to French Eurasian geopolitics clearly reflects high-level French thinking.

  2. Reseau voltaire.net, “Suprematie du dollar: Le Talon d'Achille des USA,” appeared April 4, 2003. It provides a French analysis of the vulnerability of the dollar system on the eve of Iraq war.

  1. Currently nominated U.S. ambassador to the United Nations.—Ed.

  1. “In Round 2, It's the Dollar vs. Euro,” Newsweek “web exclusive,” posted at www.msnbc.com, April 23, 2003.

  2. The extremely limited media coverage of the shift back to dollar-denominated oil sales included an article in the Financial Times by Carol Hoyos and Kevin Morrison, “Iraq Returns to International Oil Market,” June 5, 2003, online, and the Newsweek “web exclusive.”

  1. NewsMax Wires, December 7, 2004.

  2. Jim Turk, writing at GoldMoney.com on February 18, 2004, noted that “it seems clear that OPEC and the other oil exporters are already pricing crude oil in terms of euros, at least tacitly.” His comment is based upon a detailed review of a Department of Commerce report entitled “U.S. International Trade in Goods and Services.” Turk notes that, according to that date, “the price of crude oil in terms of euros is essentially unchanged throughout [the] 3-year period [2001–2003].” His analysis says, “As the dollar has fallen, the dollar price of crude oil has risen. But the euro price of crude oil remains essentially unchanged throughout this 3-year period. It does not seem logical that this result is pure coincidence. It is more likely the result of purposeful design, namely, that OPEC is mindful of the dollar's decline and increases the dollar price of its crude oil by an amount that offsets the loss in purchasing power OPEC's members would otherwise incur. In short, OPEC is protecting its purchasing power as the dollar declines.” Hence his conclusion that “OPEC and the other oil exporters are already pricing crude oil in terms of euros.”—Ed.

  3. Steve Johnson, and Javier Blas, “OPEC Sharply Reduces Dollar Exposure,” The Financial Times, December 6, 2004, online.

  1. Gordon Prather, “Decision 2004: Iran or Sudan?” Antiwar.com, July 31, 2004.

  2. F. William Engdahl, “Washington's interest in Ukraine: Democracy or Energy Geopolitics?” Centre for Research on Globalisation (www.globalresearch.ca), December, 20 2004 (http://www.globalresearch.ca/articles/ENG412A.html).

  3. C. Shivkumar, “Iran offers oil to Asian union on easier terms,” The Hindu Business Line, June 16, 2003, online.

  4. Terry Macalister, “Iran Takes on West's Control of Oil Trading,” The Guardian, June 16, 2004, online. Macalister further reports that London's IPE was “bought in 2001 by a consortium that includes BP, Goldman Sachs, and Morgan Stanley.”

  5. William Clark, “The Real Reasons Why Iran is the Next Target: The Emerging Euro-Denominated International Oil Marker,” Centre for Research on Globalisation (www. globalresearch.ca), October 27, 2004.

  I don't care about international law. I don't want to hear the words “international law” again. We are not concerned with international law.

  —Unidentified military president of a

  Combatant Status Review Tribunal,

  Guantánamo Bay, Cuba, as revealed by

  transcripts in April 2005

  The President is not a tribunal.

  —Judge James Robertson, U.S. District Court

  for Washington, D.C., November 8, 2004,

  on the insufficiency of the President's

  determination as to the status of detainee

  Salim Ahmed Hamdan in light of the

  requirement of Geneva Convention III,

  Article 5

  We are aware that this decision does not make it easier to deal with the reality. This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes, a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties.

  —Aharon Barak, president, Supreme Court

  of Israel, on the court's decision in Pub.

  Comm. Against Torture in Isr. v. Gov't of

  Israel (53(4) P.D. 817, 845) (1999), holding

  that the violent interrogation of a suspected

  terrorist is not lawful even if thought

  necessary to save human lives

  ONE GOOD SCANDAL DESERVES ANOTHER: THE SNOWBALLING OF AMERICAN LAWLESSNESS

  THE EDITORS' GLOSS: When the President's military commissions were developed, Patrick Philbin, a deputy in the DoJ Legal Counsel's office, sent a memo to Alberto Gonzalez saying that the 9/11 attacks were “plainly sufficient” to invoke the laws of war. The opinion created the “war on terror” (GWOT), illustrating, in the President's words, “new thinking in the law of war.” So the GWOT rolls on; “… extremists … are being hunted down on every continent by an unprecedented global coalition,” Secretary Rumsfeld reminds us (Financial Times, August 1, 2005). Yet these “extremists” are frequently mere suspects; applying the laws of war to one-on-one pursuits of alleged criminals has made the CIA and U.S. special forces judge, jury, and executioner, “licensed” to conduct doubtful drone strikes in Yemen (November 2002), Pakistan (May 2005), and elsewhere, or pluck people from
around the globe and send them to Gitmo where the Geneva Conventions (GC) are said not to apply.

  Dr. Rona (who speaks for himself, not for his former (the ICRC) or current (Human Rights First) employer) addresses the error of approaching the GWOT as an “armed conflict,” and the bluster of its defenders who lament preoccupation “with whether we are treating captured cut-throats nicely enough” (Thomas Sowell, June 8, 2005). Never mind “nicely”: what about the law? Readers should consult Rona's footnotes; they are gems refuting current “thinking.” One cites Jean Pictet, the authoritative GC commentator, refuting the notion that so-called “terrorists” aren't covered by them: “Every person in enemy hands must have some status under international law …. There is no intermediate status; nobody in enemy hands can be outside the law.”

  The most important of Rona's points is that “'war on terror' is a rhetorical device having no legal significance.” What matters are facts on the ground. Elizabeth Wilmshurst, an ex-British Foreign Office deputy legal adviser, made the same point; so did a U.S. judge speaking to “shoe-bomber” Richard Reid: “You are not an enemy combatant, you are a terrorist. You are not a soldier in any army …. “The Spanish attorney general got it right, too: “The fight against terrorism is not to be seen as a war, because the terrorists aren't combatants, they're delinquents and criminals and the fight needs to be fought with legal proceedings and procedures.”

  John Ashcroft warned that America's enemies were diverting attention from the “military offensive abroad” to the “legal defensive at home.” Abu Ghraib and other scandals point to the exact contrary: attention to the law at home, and abroad, seems to be exactly what's required.

  CHAPTER

  28

  The Law of Armed Conflict and the “War on Terror”

  ………

  Gabor Rona, J.D., Ll.M.

  THE TITLE OF a panel I recently participated in at the American Enterprise Institute – “Developing a Legal Framework to Combat Terrorism” – assumes the need for a new legal framework to fill a large void in order to combat terrorism successfully. While there will always be room for tinkering around the margins of any legal framework, the implication that a new one needs to be developed specifically to combat terrorism is doubtful. At the very least, we should be skeptical of the view that the existing complementary frameworks of criminal law, human rights law, the web of multilateral and bilateral arrangements for interstate cooperation in police work and judicial assistance, and the law of armed conflict fail to provide tools necessary to combat terrorism.

  Critics of the status quo seem to have honed in on the law of armed conflict – historically referred to as the laws of war or jus in bello, and now known as international humanitarian law, or IHL1 – as the weak link in this chain. In reality, for many of the same reasons that truth is said to be the first casualty in war, IHL is increasingly misapplied, misinterpreted, misunderstood, and maligned. Let me offer a view on what IHL actually does and does not cover, what it permits and prohibits. In so doing I will hope to lay a foundation for understanding why that body of law is worthy of our respect, why it should not be invoked where it does not apply, and why it must be obeyed when properly invoked.

  I. The Existence and Fields of Application of IHL: International and Non-international Armed Conflict

  The world is a complicated place, made no less so by law and lawyers. The collected wisdom of my professional ancestors has, over the course of human history, described (rather than invented) a number of constructs by which we govern our affairs: criminal and civil law, domestic and international law, laws of war and laws applicable in peace, etc. These constructs are not alternatives to be chosen at will, like the dishes in alternative columns of a Chinese restaurant menu. Their existence and applicability is not subject to, nor should their utility be made subject to, the shifting concepts of momentary taste or convenience.

  It is unfortunate that I need to defend the very existence of IHL, but there are those who have recently questioned whether such a thing exists. Let me put that question to rest quickly and firmly. International humanitarian law, the law of armed conflict, the jus in bello, dates back to the time man first decided against a scorched earth policy or fighting to the death. More recently, it has been codified into international treaties, the most prominent of which are the Geneva Conventions (GCs). It has also been incorporated into domestic laws that, for example, criminalize the prohibitions contained in the GCs – thus we have war crimes under national law.1 It is also reflected in the universally acknowledged body of customary law – that which binds states even in the absence of international or domestic codification, and which has been described as what states do out of a sense of legal obligation.2

  To distinguish between the realms to which IHL does and does not belong is to distinguish between war and peace or, to be more precise, between the existence and absence of armed conflict. What do we mean by “armed conflict”? The term (the legal term for war) is not directly defined in the GCs (the internationally agreed-upon rules of warfare), but it is generally understood to involve the use of force between two or more states (international armed conflict), or a certain threshold of violence between a state and armed groups, or between armed groups within a state (noninternational armed conflict).

  IHL covers these two types of armed conflict, international and non-international. The first, involving the use of armed force between states,1is relatively easy to discern, since the frequency, duration, and degree of violence are not relevant. The second type, non-international or internal armed conflict, involves rebels fighting against a state or against other rebels within a state, or such conflict spilling over borders into other states.2 By contrast with international armed conflict, questions of means and methods, frequency, duration, and degrees of violence are critical to determining the existence of internal armed conflict.3 In the internal context, these threshold issues are the only means of distinguishing peacetime (which might include crime, riots, and sporadic acts of violence that may or may not be organized to varying degrees) from war.4 Identification of parties – a given in international armed conflict – is also an essential, though sometimes elusive, requisite of internal armed conflict.5

  II. Application of the Laws of War Is Restricted to War

  IHL, like criminal and human rights law, reflects a compromise, balancing the interests of state security against the interests of humanity and individual liberty. In wartime, the interests of state security can more precisely be defined as those dictated by military necessity. On the one hand, in order to prevent unnecessary suffering, belligerents are bound to observe rules that regulate the conduct of hostilities and the treatment of persons in the power of the enemy. On the other hand, IHL elevates the essence of war – targeting certain people and objects – into a limited right, but only for persons designated as “privileged combatants,” such as soldiers in an army, and only against legitimate military objectives, including persons, be they soldiers or civilians, who take an active part in hostilities. (Those who take part in hostilities without such a privilege are criminals subject to prosecution and punishment; they do not, however, thereby forfeit whatever rights they may enjoy under humanitarian, human rights, or criminal law.) IHL also permits internment without trial of POWs – soldiers who fight for the enemy – and of civilians who take part in hostilities or who pose a serious security risk even without taking part in hostilities.1

  In peacetime, the balance between interests of state security and humanity is, thankfully, struck at a different point than in wartime. For this reason, it is important that the law of armed conflict be restricted in application to armed conflict, since in peacetime, domestic and international criminal and human rights law prohibits and punishes extra-judicial killing, and generally requires that detained persons be entitled to contest their detention in a meaningful fashion involving due process of law.

  In other words, where the lex specialis of IHL is active – in war – the exceptional pre
rogatives of the law of armed conflict override some of the protections provided by other legal regimes, such as criminal law and human rights law.2 These exceptional legal prerogatives, such as targeting and detention without trial, must remain just that – exceptional.

  What is the exception? War.

  When actions such as terrorism and counterterrorism occur beyond the scope of war, the alleged actors – such as terrorists – may not be subjected to lethal force and detention, except under circumstances and subject to conditions permitted by domestic and international criminal and human rights law. Fiddling with the boundaries or, more accurately, with the overlap between IHL and other legal regimes – in order to extend the right provided by IHL to target or detain without trial a “terrorist” or other person who is not acting in the context of an armed conflict – can have profound, long-term, and decidedly “un-humanitarian” consequences on the delicate balance between state and personal security, human rights, and civil liberties.3

  III. What the Critics Are Asking For

  Some critics of IHL and of the International Committee of the Red Cross (ICRC) claim that the traditional IHL structure of international and non-international armed conflict must now give way to recognition of a new type of war, in which transnational armed groups attack civilians in an effort to undermine state structures.1 These critics contend that the right to target persons and to detain them without trial – the hallmarks of the traditional law of armed conflict – must now be made applicable to this new type of conflict, since traditional peacetime tools of criminal law and interstate police and judicial cooperation are not up to the task.2

  The official U.S. view is that an international armed conflict is in fact under way, spanning the globe and pitting certain countries against terrorists.3 This conflict will end once “terrorism” or “the terrorists” are defeated. In the meantime, the laws of armed conflict prevail over the entire planet – meaning the application of IHL concepts of “targeting” and detention without the usual restraint of judicial intervention. In this world, instead of merely arresting a suspected terrorist on the street and charging him with a crime, the U.S., if it considered him an “enemy combatant,” would be within its rights to shoot and/or detain him without trial.