Strife

The Academic Blog of the Department of War Studies, King's College London

You are here: Home / Archives for war on terror

war on terror

Punishing the cowboys: Blackwater, justice, and easier wars

by

By Charlie de Rivaz:

A Blackwater Little Bird Helicopter flies over the Republican Palace in Baghdad, December 2007. Photo: jamesdale10 (CC 2.0)
A Blackwater helicopter flies over the Republican Palace in Baghdad, Iraq, December 2007. Photo: jamesdale10 (CC 2.0)

On Monday, four former employees of Blackwater, the notorious private US military contractor, were sentenced for the killing of 14 unarmed civilians and the wounding of 17 more in Iraq in 2007.

Paul Slough, Evan Liberty and Dustin Heard each received 30 years in prison after being found guilty of several charges of voluntary and attempted manslaughter. Nicholas Slatten, the team’s sniper, was sentenced to life for first-degree murder for his part in the killings, which took place while the four men were working as part of a security detail for the US State Department.

Slatten began the massacre by firing at the civilian occupants of a car caught up in traffic at the roundabout in Nisour Square, Baghdad. In the ensuing confusion three armoured vehicles opened fire, strafing the cars and pedestrians in and around the square with heavy machine guns and grenade launchers, causing what the lead prosecutor described as ‘a shocking amount of death, injury and destruction’. The defendants’ claim that they believed they were under attack did not convince the jury, who convicted them in October 2014.

After Nisour Square

In the fallout from the massacre in Nisour Square, Blackwater was blocked from providing diplomatic security in Iraq – the so-called ‘cowboys’ were sent home. Indeed, you might have expected a general cooling off in the relationship between the private security companies and state militaries.

But there’s been nothing of the kind. Between 2008 and 2011 there were more military contractors in Iraq and Afghanistan than soldiers. Compare this to the First Gulf War, when there was one contractor to every hundred soldiers. [i] Most of the contractors in Iraq and Afghanistan were working in logistics: building bases, doing the laundry, cooking the food. But a significant chunk – 18% in 2012[ii] – were involved in providing security, exactly what Slough, Liberty, Heard and Slatten were supposed to be doing on that fateful day in Nisour Square.

Even Blackwater is still involved, albeit under a new – less threatening – name: ‘Academi’. As part of the failed counter-narcotics effort in Afghanistan, Academi has received $309 million from the US government. Erik Prince, Blackwater’s founder, escaped any liability for what happened in Nisour Square and is now gallivanting around Africa for Chinese mining, oil and gas companies as part of his new outfit, Frontier Services Group. In the war against ISIS, Prince has called for the US government to ‘let the private sector finish the job’.

Rotten apples?

The use of private military contractors by governments has increased, not decreased, since the Nisour Square massacre. But does it really matter? After all, weren’t Slatten and co. just a few rotten apples, caught up in the heat of the moment?

It is difficult to know how many ‘rotten apples’ are working for private military companies. In 2012, Faiza Patel, then Head of the UN Working Group on the Use of Mercenaries, claimed that the rot was widespread, alleging that private military contractors had been involved in extrajudicial killings and sex trafficking. A 2008 RAND survey found that 20% of diplomatic personnel who had worked with armed contractors in Iraq found them to be ‘unnecessarily threatening, arrogant or belligerent’. This was echoed by a 2010 New York Times article, which claimed that American troops saw contractors as ‘amateurish, overpaid and, often, trigger-happy’.

It has also become clear that private contractors were heavily involved in the torture of Iraqi detainees during the so-called ‘War on Terror’. One of the most striking revelations from the CIA Torture Report, apart from the systematic use of brutal practices like ‘rectal hydration’ and ‘rough takedowns’, was that private contractors conducted 85% of the interrogations of terror suspects. In late 2012, L-3 Services Inc paid $5.8 million in damages to 71 former detainees of Abu Ghraib who allege that they were tortured by employees of the US defence contractor.

Hiding in the shadows

But the truth is that little is known about the behaviour of private military contractors, because they typically operate in the shadows, beyond the scrutiny of the media. Most governments do not publicise the military contractors they hire, and much of what they get up to on the ground is either classified, or obscured by layers of further sub-contractors.

Indeed, it is precisely this secrecy that makes private military companies so attractive to governments: they can hide both the violence and the cost of war. When a contractor dies no one lines the streets of Wootton Bassett, waiting for the flag-draped coffin to pass. Similarly, when a contractor abuses a civilian in a faraway warzone, the government doing the contracting can deny all responsibility. No pesky court-martials are needed; no reputations tarnished.

By employing private contractors, wars can be escalated on the sly, without the need for unpopular troop increases. This is foreign policy by proxy. The UK allegedly used SAS veterans in Libya, who claim they were paid £10,000 per month, to help topple Gaddafi in 2011. The US Congress was not made aware of the fact that Blackwater were assisting the CIA and JSOC in their ‘snatch and grab’ missions in Afghanistan (and even Pakistan) until it was disclosed by the CIA director in 2009.[iii]

At the same time, the costs of private contractors can be kept ‘off the books’ in a way that the costs of regular troops cannot, thereby making an expensive war seem relatively cheap. An estimated 70% of the costs to the US of the wars in Iraq and Afghanistan were kept off the books, funded by emergency appropriations approved outside of the Pentagon’s annual budget.

Regulating the cowboys

It is difficult to control what goes on in the shadows. Since the fifteenth century and despite Machiavelli’s warnings about the ‘undisciplined and treacherous’ nature of mercenaries, states have failed to effectively regulate the role of private companies in war. Even today, there is no effective system of legal accountability to check the behaviour of private military contractors; they typically operate beyond the jurisdiction of both national and international law.[iv]

For a long time it looked like Slough, Liberty, Heard and Slatten would evade justice too. It took over seven years before they were found guilty of the killings in Nisour Square, so long that the statute of limitations kicked in and prosecutors had to drop manslaughter charges against Slatten. In fact, the case only made it to trial after a personal intervention by Vice-President Joe Biden. Blackwater/Academi itself never got anywhere near the courtroom. If a case as high-profile and horrifying as Nisour Square proved so fragile, it is little wonder that private contractors rarely end up in court.

But even if there were effective regulation, even if we did live in a world where international law meant something and international institutions worked; even then it would still be better to reject the turn towards using private contractors instead of the regular state militaries.

More wars, bigger wars

This is because private contractors make war easier. With the support of private contractors, states can engage in more wars, and on a far grander scale than would otherwise be possible. The invasions of Iraq and Afghanistan would not have gone ahead without the support of private contractors: there just weren’t enough soldiers.

In particular, private contractors make unilateral wars easier. There’s a good reason that unilateral wars are unilateral: no one else supports them. If states could only entertain the possibility of going to war if that war had multilateral support, then both the legitimacy of the war and its prospects of success would be greatly increased.

Private contractors make war easier, and they also try damn hard to make it desirable. We should not kid ourselves into believing that these contractors are sitting quietly, twiddling their thumbs, waiting for the government to pick up the phone and call on their services. On the contrary, they are incentivised to lobby the hawks in government to make war. For the contractors, war equals money. It is no surprise that from 1998 Kevin Prince became a steady contributor to the Republican right – one of his recipients was, of course, George W. Bush.

Disturbingly, the more the government outsources its military needs, the more pervasive the war incentive becomes. Intelligence analysts working for companies like Blackwater are now judging security threats. Strategy experts working for these companies are now being asked their advice about the risk of prosecuting such-and-such a war. Those who stand to make money from war are gaining more and more influence in the corridors of power.

While we should welcome the weighty sentences handed down to the ‘cowboys’ responsible for the massacre in Nisour Square; it is no cause for celebration. There has been precious little change since the massacre. The state is still in thrall to the private contractors, and the contractors still operate in the shadows, beyond the eyes of the media and beyond the reach of the law. This matters. We have so far failed to tame the cowboys, we must not let them make violence an easy option.

Charlie de Rivaz is an MA student on the Conflict, Security and Development programme at King’s College London. For three years he worked in Argentina and Colombia as an English teacher and journalist. His main interests include the political economy of war, international human rights law, conflict resolution, and state-building. Charlie is the Managing Editor of Strife blog.

NOTES

[i] Pattison, James (2014), The Morality of Private War, OUP
[ii] Ibid, p.22
[iii] Ibid, p.149
[iv] Ibid, p.147

Gender and the War on Terror

by

By Caroline Cottet:

Specialist Lynndie England holds an Iraqi detainee on a lead at Abu Ghraib prison in Iraq, 2003. Photo: Wikipedia.

When making sense of the people and things around us, it is often tempting to rely on binaries. There’s “us” and there’s “them”, there are “men” and “women”, “masculinities” and “femininities”, some are “white” others are not. These lists apply to our our daily routines as much as to extraordinary events. For example, the last few days have seen various forms of celebration for International Women’s Day. The ways in which such an occasion is observed highlight the common dichotomy between “men” and “women”. This constructed binary, like many others, may seem harmless. But those who consider themselves to be outside of that binary construction would disagree, arguing that if you do not conform to the binary labels then you might suffer intolerance, insecurity and perhaps even violence. The extent to which such binaries are problematic is most visible in the War on Terror, as this article sets out to demonstrate.

When the War on Terror was first announced by President George Bush in 2001, it was set up as a simple war of good against evil. The media, caught up in the post-9/11 hysteria, largely followed this narrative. But what has been missing from our general understanding of the War on Terror has been the importance of gender power relations in defining its narrative. While there is a wealth of scholarship on the subject, researchers in gender studies have a tendency to use technical language and to remain within strict academic circles. This is an attempt to step outside of that circle.

Gender can be understood on several levels and so should the War on Terror. On the individual level, certain policies target people because of their gender (such as liberating Afghan women and condemning Taliban men). On a collective level, Western culture is deemed vulnerable and feminised against the dangerous and masculinised “Other”, represented for a long time by al-Qaeda. [1] Gender is socially and politically constructed, it is immaterial yet at times instrumental. Ultimately, gendered narratives and power relations are mutually reinforcing, and make violence possible.

Looking at gender does not mean analysing the positions of men and women as subjects of masculinities and femininities respectively; gender should be considered beyond bodies, and in parallel with other binaries, such as that of skin colour. This is called “intersectionality”.

On an individual level, there is commonly understood to be a static correspondence between gender and sex. In other words, visual instincts draw people to assume that ‘men’ and ‘women’ will behave in certain ways, according to their gender. Traditionally, the gender binary also follows that of gendered roles in war: men and women; the Just Warrior and the Beautiful Soul; the protector and the protected, the soldier and the civilian. [2] While this construction has been increasingly debated and undermined on a theoretical level since the 1950s, [3] it nonetheless presents the major challenge in trying to make sense of several distressing episodes during the War on Terror.

One of these episodes was the torture at Abu Ghraib, the Iraqi prison, in 2003. Photographs of the abuse were widely circulated, and people struggled to make sense of what they were seeing, principally because it did not jive with their understandings of the supposed man / woman binary.

During the scandal Lynndie England received most attention. A female-identified soldier, her acts called for extraordinary justifications: a Sjobergian Monster, a victim of feminine submissiveness by blindly obeying her – male – superior; or a subject deprived of feminine characteristics with an androgynous body. [4] Worst of all for Barbara Ehrenreich was that the photographs represented “imperial arrogance, sexual depravity … and gender equality”. [5] Gender equality?! Ehrenreich’s last, and preposterous, suggestion points to an important mistake: gender cannot be understood solely on an individual level. Trying to do so fails to unveil the gendered power relations that underlay the War on Terror.

Instead, we should consider gender beyond bodies. The femininities were not the female-identified US-soldiers, and the masculinities were not the male-identified prisoners. Instead, Abu Ghraib prisoners were feminised and members of the American armed forces were hyper-masculinised. Torture aside, the emasculation of the “Other” also proceeded domestically in visual representations. For example, an increase in male media anchors to cover the War on Terror, the figure of the heroic male firefighter of 9/11, and posters with sexual humour depicting Ben Laden as “gay”. [6]

In Abu Ghraib, the process of emasculation was much less subtle:

And he called…me “faggot” because I was wearing the women’s underwear, and my answer was “no”. Then he told me “why are you wearing this underwear”, then I told them, “Because you make me wear it”.    (Abu Ghraib Detainee #151108) [7]

When instructing naked male prisoners to wear women’s underwear, when they were held on a leash, or were covered in red ink that was supposedly menstrual blood, the gendered dynamic was one of inequality, inequality between the American hegemony and its inferior enemy. [8] This is not an attempt to point fingers. Rather, I am trying to make sense of the power relations present in gendered torture.

The particular relationship between the torturer and the tortured is not just gendered, but also racialized. There are the populations that can be tortured and those that cannot. [9] And yet another binary: that of the Occident (i.e. the Western or European political entities between the Enlightenment and the early 20th century) and its construction of the Orient (the broad stereotypes characterising the Arab culture as exotic, backward, uncivilized, dangerous and so on). [10] Such a dichotomy might sound like a caricature, yet what happened in Abu Ghraib was made possible by anthropological research on “Muslim culture” published in a manual called The Arab Mind. [11] Torture during the War on Terror, of which the abuses in Abu Ghraib are merely the most prominent example, were designed based on a certain archetype of the Arab/Muslim man, who would be most vulnerable to sexual humiliation, in particular when produced by a woman. [12] This shows that it is difficult to dissociate the gendered binary from the racialized one.

What I want to highlight is that binaries are not disconnected. They are all historically constructed and follow a hierarchical logic. The celebrated side of the binary builds and secures its very definition through subordination of the Other – the sexually deviant Orient.

What was made visible during the Abu Ghraib scandal may not be as blatant today, yet it is no less relevant. Making sense of people and things by using binaries places a certain values on lives. Such categorising is not harmless: it is interwoven with a certain judgement of whose lives are deemed to be acceptable subjects of violence. The Obama Administration has now ceased to capture “enemy combatants”. According to Michael Hayden, former Director of the NSA and later the CIA the strategy is now to kill, not capture: “We take another option, we kill them. Now. I don’t morally oppose that.” [13] Clearly the power relations at work have not really changed.

Why does this matter? Because the construction of binaries makes such violence possible. The animation of such binaries in the military sphere is not disconnected from the way gender is understood domestically. (Notice that the “military” and the “domestic” spheres represent another binary.) In the light of the celebrations of International Women’s Day, we should ask ourselves how the construction of “men” and “women” and its fluidity interplays with the notion of race, and how it creates and maintains artificial hierarchies that underlie and perpetuate the War on Terror.

Caroline Cottet is an MA student in Science and Security at King’s College London.

NOTES

[1] Anne J. Tickner (2002) “Feminist Perspectives on 9/11”, International Studies Perspectives, Vol. 3, p.333–350

[2] Jean Bethke Elshtain (1987) Women and War, Chicago: University of Chicago Press

[3] Judith Butler (2008) Gender Trouble: Feminism and the Subversion of Identity, Oxon: Routledge

[4] Laura Sjoberg and Caron E. Gentry (2007) Mothers, Monsters, Whores: Women’s Violence in Global Politics, London: Zed Books, Timothy Kaufman-Osborn (2005) “Gender Trouble at Abu Ghraib?”, Politics and Gender, Vol 1 (4), p.615, and Marita Gronnvoll (2007) “Gender (In)Visibility at Abu Ghraib”, Rhetoric and Public Affairs, Vol. 10 (3), p.375

[5] Barbara Ehrenreich (2004) “What Abu Ghraib Taught Me”, Alter Net, 19 May 2004

[6] Patricia Owens (2010) “Torture, Sex and Military Orientalism”, Third World Quarterly, Volume 31 (7), p.1042 and Meghana Nayak (2006) “Orientalism and ‘Saving’ US State Identity After 9/11”, International Feminist Journal of Politics, Vol. 8 (1), p.46

[7] In Owens 2010, p.1041

[8] Incidents described in Kaufman-Osborn 2005, Owens 2010 and Laleh Khalili (2010) “Gendered Practices of Counterinsurgency”, Review of International Studies, Volume 37 (4), p.1471-1491

[9] Melanie Richter-Montpetit (2014) “Beyond the erotics of Orientalism: Lawfare, torture and the racial–sexual grammars of legitimate suffering”, Security Dialogue, Volume 45, p.43-62

[10] Edward W. Said (1977) Orientalism, London: Penguin

[11] Owens 2010

[12] Ibid.

[13] Michael Hayden, former Director of the NSA (1999-2005) and later of the CIA (2006-2009), quoted in David Kravets (2012) “Former CIA Chief: Obama’s War on Terror Same as Bush’s, But With More Killing”, 9 October 2012 (available at: http://www.wired.com/2012/09/bush-obama-war-on-terror/, last accessed on 12/11/14)

CIA Torture Report released: 'torture doesn't work'

by

By Charlie de Rivaz:

14127655320_6e75711467_o

A few hours ago the Senate Intelligence Committee released parts of the long-awaited 6000-page ‘CIA Torture report’. The report has revealed the extent and the brutality of the torture used by the CIA during the ‘War on Terror’, initiated in the wake of the 9/11 attacks on the USA.

The report tells us that the infamous ‘enhanced interrogation techniques’ used by the CIA against detainees were even more extreme than first thought, and go far beyond the ‘severe mental or physical suffering’ required to be torture.

The use of waterboarding – or “near-drowning”, as the CIA itself describes it – has long been known. Then there was hooding, slaps and “wallings”, which involved slamming detainees against walls, alongside the familiar techniques of isolation, sleep deprivation, stress positions, and long-term exposure to loud and dissonant noises. But there were also the mock executions, the revving of power-drills near heads, the “rectal rehydration” (unnecessary feeding through the anus), the “rough takedowns” (dragging a nude but hooded detainee up and down the corridor while punching and slapping him), as well as the threats to sexually abuse a detainee’s mother, to harm his children, to only let him leave “in a coffin-shaped box”.

The torture report has shown that the full details of the CIA’s torture regime were not revealed to Congress or the White House, and that senior CIA officials repeatedly overruled interrogators concerned about what they were being asked to do. The CIA also misrepresented both the extent and the effectiveness of their torture program. These findings will lead to serious questioning about the future role of the CIA.

But I believe that the most lasting impact of the report is that it finally puts to bed the lie that torture can be justified by national security concerns. The report categorically states that the CIA’s torture regime “was not an effective means of acquiring intelligence or gaining cooperation from detainees” (p.11).

The belief that torture can be justified on national security grounds is not uncommon. Unfortunately it has been held by politicians with the power to act on that belief. Tony Blair and Jack Straw allegedly knew at least some of the details of the CIA’s ‘interrogation’ regime and did not act to prevent MI6’s complicity in it. Dick Cheney has repeatedly extolled the virtues of the CIA’s regime. Just yesterday he said that “when we had that [CIA] program in place, we kept the country safe from any more mass casualty attacks, which was our objective”.

This belief that torture can be justified also infects the minds of ordinary people. It stems from our intuitive response to the “ticking bomb” scenario: if we torture the terrorist then we save the city from a nuclear bomb, if we don’t then millions die. Put in such stark terms we cannot help but be seduced by torture, and arguments about the importance of human dignity become, quite frankly, obtuse.

But the issue with the “ticking bomb” is that in the real world we cannot be so certain. We cannot know for sure that the terrorist we have is the one with the vital information, or that torturing him will reveal that information. The CIA torture report demonstrates this more forcefully than, arguably, any other document in history.

The torture of Hassan Ghul, who led the CIA to the courier who would in turn lead the CIA to Bin-Laden, provided “no actionable information”. All the useful information he provided came before he was tortured. The same is true of Abu Zubaydah, who revealed the crucial information that led to the capture of a senior al-Qaeda operative before he was tortured. During his waterboarding he just told the CIA the same thing again. This operative was Khalid Shaikh Mohammed, who, after waterboarding, told the CIA about the ‘Second Wave’ of 9/11 attacks that had been planned for the West Coast. But the CIA already knew all of this information, which had been revealed – without torture – by a Malaysian national four years earlier.

In each of these cases, and the 17 others investigated in the report, the CIA claimed that their ‘interrogation’ program had led them to the crucial information. But they were lying every time. The information was either revealed before torture or, when torture did lead to information, it was stuff the CIA already knew. At no point was torture effective in preventing terrorist attacks. The fact that the CIA pretended that it was shows that they believed they needed a real justification for their actions (presumably because they knew their actions were wrong or, at the very least, on shaky legal ground).

I hope that the belief that torture works, that we need it to protect our countries, will finally be put to bed. The CIA torture report is the most unequivocal declaration of the inefficacy of torture. We do not live in the world of the “ticking bomb”; we live in a world of uncertainties, and in this world waterboarding, wallings and rough takedowns do not work. So the next time a politician, or anyone for that matter, says that torture is necessary to protect us, remind them of today, when we were shown, definitively, that it is not.

Charlie is an MA student on the Conflict, Security and Development programme at King’s College, London. For three years he worked in Argentina and Colombia as an English teacher and journalist. His main interests include the political economy of war, international human rights law, conflict resolution, and state-failure and state-building. Charlie is currently the Managing Editor of the Strife blog.

Editors’ note: Strife and the US Foreign Policy Research group will be hosting our first annual conference 4 March 2015 at King’s College London entitled: “A world in flux? Analysis and prospects for the U.S. in global security”. Leading up to this, we will be featuring a number of articles and responses to current events related to US and global security from a variety of students, researchers, practitioners and academics. This article is part of that series. 

Uncovering the truth about the War on Terror

by

By Charlie de Rivaz:

5286621200_9969839eba_o
Photo by El Zod (http://goo.gl/LhAPoa)

At the end of October, buried deep in the middle pages of the newspapers, was a story about the UK Court of Appeal. The Court had ruled that a Libyan man and his wife could sue British officials for their alleged role in the couple’s kidnapping and ‘extraordinary rendition’ to Gaddafi’s Libya back in 2004, where the man was subsequently tortured.

You might wonder how such a case could end up going all the way to the Court of Appeal. Surely we don’t need the country’s second-highest court to tell us that British officials accused of complicity in kidnapping and torture should face justice, provide some kind of redress, or, at the very least, reveal the truth about what happened?

Well, actually we do. Since the start of the so-called ‘War on Terror’ allegations of torture and complicity in torture against UK and US officials have either been swept under the carpet – hidden by anti-terror rhetoric and legislation – or they have been dismissed by officials – chief among them Dick Cheney – who maintain that torture is justified when dealing with terrorists. The truth about torture has been hidden as a matter of policy.

The recent ruling in the Court of Appeal suggests that times are changing. The cloak of impunity may well be slipping from the shoulders of those UK officials who turned a blind eye to the worst excesses of the War on Terror. They may yet have to face up, and pay up, for their wrongdoings. And even more importantly: they may have to reveal the truth about what went on behind closed doors during the War on Terror.

The Belhaj case

The case before the Court of Appeal involved Abdul-Hakim Belhaj and his wife, Fatima Boudchar. Belhaj, an opposition commander during the Libyan armed conflict in 2011, claims that in 2004 UK officials colluded with the CIA and Libyan External Security Organisation (ESO) to abduct him and his wife from China and transfer them, via Malaysia and Thailand, to Libya. Belhaj says that he was about to fly to London to claim asylum when the MI6 tipped off the ESO, and subsequently helped the CIA to arrange his ‘extraordinary rendition’ into the hands of Gaddafi. Once in Libya, Belhaj spent six years in prison and was repeatedly tortured. His wife, who was 4 months pregnant at the time of their abduction, spent the 17-hour journey to Libya hooded and taped to a stretcher. She was released from prison a month before giving birth.[1]

We now know that Belhaj was a pawn in the ‘deal in the desert’ of March 2004, made famous (or infamous) by the photo of Tony Blair and Gaddafi embracing in a tent. Bush and Blair sought to bring Gaddafi in from the diplomatic wilderness in exchange for his giving up chemical weapons and committing to the fight against terrorism. But in the small print were a few less savoury items, among them the promise of the USA to ‘render’ at least four detainees from US to Libyan custody, and for the British to help in one of these transfers: that of Belhaj. These details were not revealed until September 2011, after Human Rights Watch discovered incriminating documents in Tripoli, the Libyan captial.[2] One of these was a letter from Mark Allen, at the time  the Director of Counter-Terrorism at MI6, to his counterpart at the ESO, sent just 6 days before Blair arrived in Tripoli for the desert deal:

‘Most importantly, I congratulate you on the safe arrival of [Belhaj]. This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built up over recent years.’[3]

A year after these documents came to light, Belhaj was trying to get his case heard in the High Court in London. He did not appear to be motivated by the promise of a massive compensation pay-out by the UK government, offering to settle the case in exchange for an apology and £1 each from the main defendants: Jack Straw (Foreign Secretary at the time of Belhaj’s abduction), Mark Allen and the UK government.[4] Belhaj’s apparent motivation was the desire to hear the defendants admit what he believes to be the truth: that UK officials were complicit in his kidnap, imprisonment and torture.[5]

Avoiding responsibility

But the British government knows ingenious ways to avoid taking responsibility. First, they have constructed a parallel system of secret justice, pushing any allegations against them into the world of shadows and darkness. The Justice and Security Act of 2013 extended the system of closed courts and changed the balance of power so that in civil proceedings the government’s national security concerns outweigh the rights and liberties of individuals. Victims of the government’s excesses during the War on Terror who try to sue the government may be denied access to the proceedings of their case, and can only be represented by a security-cleared lawyer. It goes without saying that very few facts – if any at all – about such cases filter through to the light of day.[6]

Second, the government hands over inquiries into the dark side of the UK’s role in the War on Terror to the inept Intelligence and Security Committee (ISC). It was the ISC that concluded in a report in 2007 – three years after Belhaj was abducted – that there was ‘no evidence that the UK Agencies were complicit in any “Extraordinary Rendition” operations’.[7] Made up of MPs and peers appointed by the Prime Minister, it was the ISC who in December 2013 were given the task of investigating allegations of British involvement in torture and kidnapping, despite the government’s 2012 pledge to hold a genuinely independent, judge-led inquiry. Last Saturday leading human rights groups announced that they will boycott the investigation.

The third way that the government avoids taking responsibility for its sins is through legal alchemy. In the case of Belhaj they employed their two favourite strategies to attempt to bar the case from even being heard: the principle of state immunity and the ‘Act of State doctrine’.

State immunity is based on the principle that all states are equal and one state cannot sit in judgement on the conduct of another.[8] Of course, in terms of their respect for human rights, all states are obviously not equal: the idea of affording Gaddafi’s Libya the same respect and dignity as, say, Sweden, simply because of its status as a state, is distasteful at best. Yet the law is often not to our taste, and before the law all states are equal.

In the Belhaj case the government argued that in order for the court to establish that the British government was complicit in the rendition and torture of Belhaj, then the court must ‘sit in judgement on the conduct of other states’ – that is, the court must judge the lawfulness of the conduct of China, Malaysia, Thailand and Libya in their own territory. To do that, the government argued, you must make them parties to the case; you must have them sitting in the dock alongside Jack Straw and Mark Allen.[9]

This first attempt at legal skulduggery was unsuccessful. The Judge rejected the government’s argument, saying that you don’t need to bring Libya et al. into the dock just to be able to talk about their actions. State immunity would only become an issue if those states’ rights and interest were ‘obviously affected’ by the case, but in the Belhaj case they wouldn’t be; the only thing affected would be their reputation.

When the state immunity gambit didn’t work, the government turned to their other favourite legal tool: the ‘Act of State doctrine’. This is similar but different to state immunity, and very few people actually understand the relationship. One of those who does is Geoffrey Robertson QC. For him, the main difference between the two principles is this:

Sovereign immunity is a limit on the court’s power imposed by international law and ‘Act of State’ derives from the court’s own nervousness about its competence to decide a foreign political issue.[10]

The government got their way back in December 2013, when the High Court ‘got nervous’ and refused to admit the Belhaj case on the basis of the ‘Act of State’ doctrine. As with state immunity, it was understood that the case called into question the actions of foreign states both on their own territory and outside of their territory, and required the court to judge the lawfulness of those actions. But the court didn’t know by what legal code to judge those actions – British law? International Law? Chinese law? In particular, the British judge didn’t know by what legal code to judge the actions of US officials operating outside of the USA (those CIA officials involved in Belhaj’s abduction and rendition [and even torture] who were hopping from airport to airport and black site to black site).

The judge concluded that an inquiry into the lawfulness of the actions of those US officials would be ‘damaging to the national interest’, since it would allegedly require the detailed examination of intelligence-sharing arrangements between the MI6 and the CIA, thereby putting an unacceptable strain on US-UK relations.[11] The court got nervous and barred the case, and so the government’s dirty secrets remained hidden.

Justice strikes back

The ruling, however, was clearly unsatisfactory. As several NGOs (including Amnesty, REDRESS, the ICJ, Justice and Reprieve) pointed out, torture is a particularly grave violation of human rights, and there is no question about its legal status: it is forbidden. All the countries involved in the case (except Malaysia) are parties to the UN Convention against Torture, and customary international law recognises that in absolutely no context is torture permissible.

The Court of Appeal in their recent judgement accepted this reasoning. They also recognised that if British courts didn’t investigate these issues, no-one would, and that there was a compelling public interest that the allegations be investigated. This is obvious: it is clearly in the interest of the British public to know if the people wielding the power in the country have been kidnapping those they don’t like and flying them off to be tortured.

Importantly, the Court of Appeal decided that the risk of damaging our relationship with the USA was outweighed by the importance of getting to the bottom of what happened to Belhaj and to what extent UK officials were involved:

In this particular context, the risk of displeasing our allies or offending other states, and even the risk of the consequences of varying severity which it is said are likely to follow, cannot justify our declining jurisdiction on grounds of act of state over what is a properly justiciable claim.[12]

The Court of Appeal had the sense to look through the fog of legal trickery conjured up by the government’s lawyers and see the real issue: that this is a case that simply has to be heard – it is too important to be swept under the carpet. Belhaj’s victory at the Court of Appeal suggests that maybe, just maybe, the truth will be heard, and Jack Straw, Mark Allen and the government will have to admit their part in some of the most despicable excesses of the War on Terror.

Reasons to be pessimistic

But we should not celebrate just yet. The truth might still fail to reach the light of day. The government, as I have shown, really do not want the British public and the world at large to discover the full extent of their sins. So they will no doubt appeal the decision of the Court of Appeal and try to get Belhaj’s case dismissed at the highest court in the land, the Supreme Court.

In addition, if the threat from terrorist groups like ISIS continues to consume the British collective imagination, then we might see a growing appetite for the kind of draconian policies that marked the wildest years of the War on Terror. We must ensure this does not happen. Kidnapping and then beheading British and American citizens is unquestionably barbaric, but we should not react to such barbarism by lowering our own standards of morality. ‘An eye for an eye’ has always been a dangerous saying, repeated unthinkingly by those who would justify human rights abuses ‘because the bad guys do it’.

Reasons to be optimistic

There is also cause for optimism. The British public have approached the threat from ISIS in a far more nuanced and critical way than they did the threat from al-Qaeda in the wake of 9/11. And they are now far more sceptical of the motives of politicians when they call for extraordinary measures to tackle terrorism, mainly as a result of the bits of truth that managed to seep through about the excesses of the War on Terror, including Abu Ghraib, Guantanamo Bay, Baha Mousa, and the various Wikileaks videos. This scepticism will likely deepen as new reports surface detailing human rights abuses by British and US officials during the War on Terror.

There is also a willingness on the part of some politicians to distance themselves from the methods used during the War on Terror. At the beginning of August US President Barack Obama admitted for the first time that the CIA ‘tortured some folks’. But, again, we should be restrained in our optimism: like the British government, Obama’s administration is not keen on revealing the extent of this torture. The publication of the 6000-page CIA ‘Torture Report’, detailing the organisation’s use of torture during the War on Terror, has been delayed again and again as Obama’s administration looks for ways to redact large chunks of it. Incredibly, Obama put the CIA itself in charge of the redaction process.

The ruling by the Court of Appeal in the Belhaj case is significant. The Court dismissed the government’s attempts to bamboozle it with legal alchemy, and declared unequivocally that the protection of basic human rights outweighs considerations about reputations and ‘special relationships’. Belhaj might yet get his day in court. We must hope that if he does, then the truth will finally be heard. We will learn just how low our government stooped during the War on Terror, and we will learn if they are ready to take responsibility for what they did.

 

Charlie is an MA student on the Conflict, Security and Development programme at King’s College, London. For three years he worked in Argentina and Colombia as an English teacher and journalist. His main interests include the political economy of war, international human rights law, conflict resolution, and state-failure and state-building. Charlie is currently the Managing Editor of the Strife blog.

 

NOTES

[1] For a full account of what allegedly happened to Belhaj and Boudchar read paragraphs 8-17 of the Judgement of the Court of Appeal (30/10/2014).
[2] Note that in the documents themselves Belhaj is referred to as Abdullah al-Sadiq. This was the name he used as commander of the now defunct Libyan Islamic Fighting Group (LIFG).
[3] See para.13 of the Judgement in the Court of Appeal (30/10/2014).
[4] In the Al-Skeini / Baha Mousa case, brought against the UK government by relatives of six Iraqi civilians killed by UK soldiers in 2003, the government paid out £2.83 million to settle the case in 2008.
[5] Another pawn in the ‘deal in the desert’, Sami al-Saad, an anti-Gaddafi dissident abducted and ‘rendered’ from Hong Kong to Libya, preempted Belhaj in suing Jack Straw, Mark Allen & co. In December 2012 he accepted a settlement of £2.2 million from the British government. Importantly, the government said that there had been ‘no admission of liability’, and the truth remained hidden.
[6] For a much more detailed analysis, read this article by Rod Jones published on the OpenDemocracy website.
[7] Intelligence and Security Committee Report on Rendition, July 2007, p. 64
[8] Geoffrey Robertson, Crimes Against Humanity (London: Penguin, 2006), p. 370
[9] This is called ‘indirectly impleading’ a foreign state. A foreign state is indirectly impleaded when it is not named as a party to the tort, yet is required to adopt a position of either having to defend itself and forgo its immunity or have a judgment entered against it, so that it is bound by the judgment.
[10] Robertson (2006), p. 342
[11] Para.150 of the Judgement in the High Court (20/12/2013).
[12] Para.120 of the Judgement in the Court of Appeal (30/10/2014).

Drones series, Part II: Daring to use drones. Why targeted killings are a necessary component in modern counter-insurgency campaigns

by

By David C. Hofmann:

image-45431-galleryV9-rcak

Fuelled by the global ‘war on terror’ that emerged in the aftermath of the 9/11 and 7/7 attacks, Western democracies have been steadily increasing their use of drone strikes to kill key operational and ideological members within insurgent groups in Yemen, Pakistan, Afghanistan and elsewhere. The state-sanctioned and strategic targeted killing of terrorists/insurgents is a controversial topic, and raises numerous moral and legal issues.[i] However, the realities of war are changing. For the most part, traditional battlefields have been replaced by insurgent campaigns conducted by hardened Islamist groups like the Taliban and al-Shabaab. In order to adapt to the realities and characteristics of this genre of conflict, drone strikes have become a crucial component within larger counter-insurgency strategies, and will likely remain so for the foreseeable future.

Why Drone Strikes are Necessary

Despite valid concerns over the ethics and legality of drone strikes, targeted killings remain one of the best coercive options currently available to combat well-entrenched insurgent movements in lawless areas. The inability and/or unwillingness of local government forces to combat or apprehend insurgent operatives necessitates outside intervention in order to ensure continued international and local security. Counter-insurgency options, however, are limited within this particular context. Traditional military assaults on guerilla fighters who have superior knowledge of the landscape are tactically unsound, as seen in the ongoing conflict in Afghanistan. Non-coercive methods are also limited (but not impossible) due to the ideological, apocalyptic and fanatical nature of most Islamist insurgent groups. The human and material costs of a ‘boots on the ground’ intervention are often prohibitive, and alternatives such as scorched earth tactics are wildly disproportionate and unethical.[ii] Furthermore, many insurgent groups enjoy broad public support. Traditional military invasion provides ample time for important operatives to go ‘underground’ and avoid apprehension. As a result of these and other factors, drone strikes emerge as one of the more practical and tactically sound options within theatres of war such as certain portions of the Pashtun region of Pakistan, the regions of Afghanistan controlled by the Taliban, and other similar locales.

The ability to strike at key players within insurgent groups without the mobilization of large-scale ground forces also has significant domestic and international political ramifications. The evidence suggests that drone strikes are popular with domestic audiences, who want and often demand a proportionate retributive response to terrorism without the need for mass deployment of troops.[iii] Within the international context, the legacy of the post-9/11 invasions of Iraq and Afghanistan have created an environment wherein large scale Western military efforts can be perceived as an illegitimate invasion, an attempt at colonization, or as an economic exploitation of the invaded country (e.g., ‘blood for oil’). The use of targeted killing strikes a balance between these two pressing political concerns by assuaging domestic audiences’ desire for retribution while simultaneously allaying some, but not all, concerns of Western imperialism by avoiding a long term ‘boots on the ground’ conflict.

Why Drone Strikes are Effective

Drone strikes have also proven to be effective at hampering insurgent groups and in hastening the end of their larger campaigns. Recent empirical evidence suggests that when used as a part of larger counter-insurgency strategy, targeted killing decreases operational capabilities, decreases professionalism, and increases the likelihood of organizational death.[iv] The prevailing argument is that repeated strikes against operational and ideologically important members of insurgent groups erodes long-term capabilities to plan and execute attacks by denying them the specialized skillsets of trainers, bomb makers, and ideologues. Furthermore, the use of drone strikes can lead to a deterrent effect by increasing the physical and social costs associated with engaging in armed conflict.[v] Lastly, efforts expended to remain ‘underground’ out of a fear of being targeted by drones diverts energies that would normally go towards the planning and execution of terrorist attacks.

The Future of Targeted Killing and Drone Strikes

As long as belligerents remain entrenched in locales that inhibit practical non-coercive or legal approaches to counter-insurgency, the best option is the proportional and strategic removal of operatives via drone strikes. However, the practice of targeted killing remains generally misunderstood by the public. If targeted killing is to stay as a cornerstone piece in Western counter-insurgency campaigns, efforts must be made by practising governments to address some of the moral and legal concerns surrounding the tactic. This will require the adoption of policies that add elements of transparency, legal review and comprehensive guidelines that determine when, where and how targeted killing can and should occur.[vi] To do otherwise risks sinking to the level of indiscriminate violence practised by many insurgent and terrorist groups.

 

______________________

David is a Ph.D. candidate in the Department of Sociology and Legal Studies at the University of Waterloo, Canada, as well as Editor in Chief of the ‘Canadian Graduate Journal of Sociology and Criminology’ (http://cgjsc.ca). His research focuses on the social dynamics of charismatic authority in terrorist groups, and how relationships between leaders and followers affect the formation, operation, and eventual demise of terrorist organizations. He can be reached at dhofmann@uwaterloo.ca

 

NOTES
[i] For a summary of both sides of the debate on drone strikes and targeted killing, see: Daniel Byman, ‘Why Drones Work’, Foreign Affairs, Vol. 92 (July/August 2013), pp. 32-43; Audrey Kurth Cronin, ‘Why Drones Fail’, Foreign Affairs, Vol. 92 (July/August 2013), pp. 44-54. For a discussion of the moral and ethical debate on targeted killing, see: Steven R. David, ‘Israel’s Policy of Targeted Killing’, Ethics and International Affairs, Vol.17, (2003), pp. 111-126; Alan Dershowitz, ‘Targeted Killing Vindicated’, Huffington Post, 2 May 2011, onine at http://www.huffingtonpost.com/alan-dershowitz/targeted-killing-vindicat_b_856538.html; David Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-judicial Executions or Legitimate Means of Defence?’, European Journal of International Law, Vol. 16, (2005), pp. 171-212; Yael Stein, ‘By any Name Illegal and Immoral’, Ethics and International Affairs, Vol. 14 (2003), pp. 127-137.
[ii] Byman, ‘Why Drones Work’; David, ‘Fatal Choices’, p. 19.
[iii] Byman, ‘Do Targeted Killings Work?’, p. 102; David, ‘Fatal Choices’, pp. 7-8.
[iv] See: Patrick B. Johnston, ‘Does Decapitation Work? Assessing the Effectiveness of Leadership Targeting in Counterinsurgency Campaigns’, International Security, Vol. 36 (Spring 2012), pp. 62-68; Bryan C. Price, ‘Targeting Top Terrorists: How Leadership Decapitation Contributes to Counterterrorism’, International Security, Vol.36 (Spring 2012), pp. 37-42; Alex S. Wilner, ‘Targeted Killings in Afghanistan: Measuring Coercion and Deterrence in Counterterrorism and Counterinsurgency’, Studies in Conflict & Terrorism, Vol.33 (2010), pp. 316-323.
[v] David, ‘Fatal Choices’, 6-7; Wilner, ‘Targeted Killings in Afghanistan’, pp. 314-316.
[vi] Daniel Byman, ‘Do Targeted Killings Work?’, Foreign Affairs, Vol. 85 (March – April, 2006), pp. 110-111; Byman, ‘Why Drones Work’; David, ‘Fatal Choices’, pp. 21-22.