Abstract
When the September 11 terrorists were not prosecuted as international criminals but, instead, as enemies in a “war against terrorism” in a context pervaded by the rhetoric of just war and moral claims, an inevitable trajectory was drawn from September 11 to the Yemeni missile strike, the 2003 Iraqi invasion, and Abu Ghraib. This chapter argues that historical just war theory has two frameworks – one moral and theological, attached to Augustine, Aquinas, and the Thomists; and the other, characterized by Alberico Gentili’s legalistic and expedient humanism. Contemporary analysts conflated these two frameworks, allowing the moral force of one to be imputed to the acts of the other, while Gentili’s precedent for contemporary events went largely unrecognized. Prevalent discussions of just war buttressed the Bush administration’s heightened discourse of “securitization” and exceptional moral claims, resulting in a climate conducive to supporting not only the Iraqi invasion (jus ad bellum), but also systematic incursions against all political, legal, moral, and even plainly human, limits on war conduct (jus in bello), as exemplified by the Yemeni missile strike, the Coalition Provisional Authority (CPA), and Abu Ghraib prison. Driven by outmoded ideas of the “clash of civilizations” and American “exceptionalism,” the Bush administration’s rhetoric of good and evil erased the human identity of “unlawful combatants” and then applied that erasure to Iraq and Abu Ghraib, turning them into grey zones of authority, where limits on war conduct were further transgressed through rhetorical acts – CPA orders, memos, unofficial complicities, and silence. Future policy decisions regarding terrorism should avoid coupling the rhetoric of morality with political security issues. Since today’s military actions share many of the functions and objectives of domestic policing, clearer guidelines are needed to regulate status and conduct in zones of mixed authority.
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Notes
- 1.
Walzer’s (2006a) well-known work, Just and Unjust Wars, is based on historical examples, but he does not openly confront historical just war theory. Walzer’s issues, however, all have precedents in just war theory. For example, in discussing “double effect” in detail (pp. 152–159), he never mentions Aquinas, the originator of this theory (Aquinas 2002, pp. 263–264), although he elsewhere mentions Vitoria. While Walzer does not situate his own work within the context of historical just war theory, many other scholars did (Bellamy 2006b; Fiala 2008; Guthrie & Quinlan 2007; Patterson 2007; Stover 2004; Wester 2004), not to mention the multitude of treatments in the popular media. The important point here is the prevalence of the rhetoric focused on “just war.”
- 2.
I have followed contemporary usage by generally writing “jus” for the Latin “ius” except in a couple of instances, such as “ius gentium” and “ius cosmopoliticum.” The word “ius” is laden with significances and is hotly debated in the historical literature concerning “rights,” so the reader should be aware that “jus” is the same word as “ius.”
- 3.
A sampling of book-length analyses dealing with new global realities includes: Bobbitt (2008), Khanna (2008), and Zakaria (2008). Robert Kagan’s 2002 article, circulated widely by e-mail, caused a stir. For an analysis of Kagan’s effect, see Steven Erlanger, The world: America the invulnerable? The world looks again, New York Times, July 21, 2002. For a view and comments from the perspective of cultural anthropology, see Knauft’s article (2007).
- 4.
On September 12, 2001, Bush declared: “This enemy attacked not just our people but all freedom-loving people everywhere in the world.”
- 5.
Though not a formal declaration of war, a joint resolution was passed nearly unanimously by Congress (with one dissenting vote in the House), three days after 9/11, which authorized the president “to use all necessary and appropriate force…in order to prevent any future acts of international terrorism against the United States.” Jane Perlez, After the attacks; The overview; U.S. demands Arab countries ‘choose sides,’ New York Times, September 15, 2001. In October 2002, another resolution was passed by Congress authorizing the president to wage war against Iraq: Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107–243, 116 Stat. 1498.
- 6.
- 7.
The general question of pre-emptive war is beyond the scope of this paper, but a good article from a contemporary military and ethical perspective is Rodin, in Shue & Rodin (2007), pp. 143–170.
- 8.
According to Augustine: “[I]t is the injustice of the opposing side that lays on the wise man the duty of waging wars; and this injustice is assuredly to be deplored by a human being, since it is the injustice of human beings” (Augustine 1972, p. 862). Also, the maxim of repelling force with force derived from Roman law and was passed down to the Middle Ages through Gratian’s Decretum.
- 9.
Walzer defines humanitarian intervention as “justified when it is a response (with reasonable expectations of success) to acts that ‘shock the moral conscience of mankind’” (2006a, p. 107). This contemporary idea of humanitarian intervention is not found in early modern thinkers or the Thomists. For more on the contemporary debate, see Walzer, “The politics of rescue” (1994), in Walzer (2004a, pp. 67–81). For other viewpoints, see: Fiala (2007, pp. 28–47); Martin, along with other articles, in Part III of Lee (2006, pp. 75–88; 89–134); and Bellamy (2006b, pp. 199–228). See also the 2008 debate between Farer (2008a) and Elshtain (2008), covering three articles in Human Rights Quarterly 30, 356–403, 758–766, 767–771.
- 10.
Despite the Bush Administration’s allusions to Fukuyama’s 1992 opinions, in 2008 Fukuyama supported Obama for president and wrote that the cost of the regime change in Iraq “was hugely disproportionate,” especially since it undermined the United States’ moral authority by setting the “most recent precedent for a big power intervening to change a regime it didn’t like, without the sanction of the U.N. Security Council” (2008, August 15).
- 11.
Bush disavowed any “clash of civilizations,” because he thought that only one civilization exists today, that of the United States. The “twentieth century ended with a single surviving model of human progress,” and while “America cannot impose this vision [it] can support and reward governments that make the right choices,” through its “overwhelming power” (Lindberg 2002, June 4). In the 2003 National Counterterrorism Strategy, the administration denied making war against “a religion,” while also quoting bin Laden to the effect that al Qaeda’s obtaining WMDs was a “religious duty” (U.S. State Department 2003, February 14). The Bush administration’s rhetoric had it both ways. While declaring the United States the winner in the “clash of civilizations,” Bush spoke more openly after 2003 of “violent Islamic extremists [who are] as certain of their cause as the Nazis, or the Imperial Japanese, or the Soviet communists.” American democracy was no longer just a civilizing force, but an imperative sanctioned by God, since “the desire for liberty [is] written into the human heart by our Creator” (2007, August 22). For a study, based on survey data, of religious factors raised by the Bush administration’s rhetoric as an element in the Iraqi invasion, see Smidt 2005, pp. 243–261.
- 12.
In commenting on the deaths of three supporters in Pakistan, bin Laden responded: “these brothers are among the first martyrs in Islam’s battle in this era against the new Christian-Jewish crusade led by the big crusader Bush under the flag of the Cross” (Salisbury 2001, September 30). The endpoint of this rhetoric came in 2008, when the Bush administration banned the word “jihadist” as “unintentionally portraying terrorists, who lack moral and religious legitimacy, as brave fighters, legitimate soldiers” (Lee 2008, April 24).
- 13.
“War can lead directly to political reconstruction…. But there is another form of direct action, which involves what we might call ‘politics short of force,’ noncoercive politics, the work of nongovernmental organizations, like Human Rights Watch or Amnesty International, which also aim, in their own way, at regime change” (Walzer 2006a, p. xvii; Walzer 2006b; Andreopouloss, 2006b; Falk 2006, pp. 120–121).
- 14.
Khanna agrees with Bobbitt. “Power has migrated from monopoly to marketplace…. In the geopolitical marketplace, legitimacy is based on effectiveness – and must be proven in comparison with other superpowers” (2008, p. xvi).
- 15.
“Market state terrorism will be just as global, networked, decentralized, and devolved and rely just as much on outsourcing and incentivizing as the market state. It does not depend on state sponsorship; indeed, it would appear that al-Qaeda had more influence over the government in whose jurisdiction it worked than did that government over it.” Also, because “[m]arket state terrorism ‘neither relies on the support of sovereign states nor is constrained by the limits on violence that state sponsors have observed themselves or place on their proxies’…it is horrifyingly more violent.” Bobbitt (2008, p. 45), quoting Steve Simon and Daniel Benjamin.
- 16.
President Bush’s rhetoric casts al-Qaeda’s aims in terms of religious rather than political motives, as in his September 20, 2001, address to a Joint Session of Congress: “The terrorists practice a fringe form of Islamic extremism…. The terrorists’ directive commands them to kill Christians and Jews, to kill all Americans, and make no distinctions among military and civilians, including women and children.” Of course, bin Laden replied in kind by dubbing Bush a “crusader” (Salisbury 2001, September 30). Both sides imputed religious values to political goals (Byrm 2008, p. 102).
- 17.
The United States responded as a “global state” – another word for Bobbitt’s “market-state” – by undertaking war actions instead of “by revamping international law enforcement through greatly augmented resources and cooperative procedures [which would have] vindicated the viability of the statist framework of world order and its ability to meet the challenge mounted by a nonstate network within the framework of international law” (Falk 2006, p. 125). Other commentators have analyzed the Iraqi invasion from the perspective of international criminology. See Agozino (2004), Hamm (2007), and Kramer et al. (2005). Choosing the war paradigm rather than the policing model “has been a strategy of the Bush Administration…. The prospect of an imminent threat posed by terrorists and terrorism is utilized by security states to expand the scope and purview of executive power and to engage in a certain state of lawlessness to counter the supercriminality that terrorism is made out to be” (Denike 2008, p. 110).
- 18.
Because occupation forces failed to establish a “monopoly of legitimate violence” and “largely abdicated this responsibility,” Iraq’s nation-state identity was compromised, and opportunities were opened for Iraqi insurgents to destroy infrastructure and interrupt basic services – for which the United States was blamed (Danner 2004, pp. 56–58; Kramer et al. 2005, pp. 68–69).
- 19.
In an October speech in Cincinnati, Bush said: “Iraq’s weapons of mass destruction are controlled by a murderous tyrant…. We have experienced the horror of September 11…. Our enemies would be no less willing – in fact they would be eager – to use a biological, or chemical, or nuclear weapon…. [W]e have every reason to assume the worst, and we have an urgent duty to prevent the worst from occurring” (2002, October 7).
- 20.
Sharı-‘a is Islamic law, drawn from Revelation and Wisdom (Qur’a-n and Sunna/Hadı-th or Traditions), as well as other authorities (such as ijma or consensus and analogy). But the Islamic legal tradition is far from unified. The Prophet prohibited killing women and children, but others, like Sha-fi‘ī said they could be slain, along with other categories, such as the infirm, old, and hermits (Peters 2005, pp. 33–35).
- 21.
The U.S. Department of State, in its annual report of 1999, classified “money and the Internet,” along with “human rights,” as the “three universal languages of mankind” (Pagden 2003, p. 193).
- 22.
“The unifying element among the groups to which al-Qaeda outsources its operations is not a mystical, retrograde form of Islam but a shared hatred of the U.S” (Bobbitt 2008, p. 83).
- 23.
In Part III of the September 20, 2002 National Security Strategy, the Bush administration announced a “war of ideas to win the battle against international terrorism,” including “kindl[ing] the hopes and aspirations of freedom of those in societies ruled by the sponsors of global terrorism” (U.S. State Department 2002). See also the 2003 National Counterterrorism Strategy (U.S. State Department 2003, February 14).
- 24.
- 25.
Walzer calls just war theory a “common moral language” and a “critical theory” that is “doubly critical – of war’s occasions and its conduct” (2004a, pp. 7–8).
- 26.
Bonnie Mann offers an intelligent feminist critique of the Iraqi invasion, and she argues that the “Shock and Awe” language, as well as the 1996 document published by the National Defense University on which it was based, established a basis for the “spectacle” of masculine domination, which played out finally in the “culture of terror” at Abu Ghraib (Mann 2006, pp. 154–159).
- 27.
Of course, just war theories do not end with Gentili and Grotius, but this chapter is not concerned with the entire just war tradition, only with pinpointing a crucial turning point when pre-emptive war was justified. Legalism prevailed into the seventeenth century, when it “bifurcated into two sub-traditions that prioritized natural law and positive law respectively,” the former represented by Samuel von Pufendorf (1632–1694) and Christian Wolff (1679–1754), and the latter, by Emmerich de Vattel (Le Droit de gens 1758) and Cornelius van Bynkershoek (1673–1743) (Bellamy 2006b, pp. 76–82). Immanuel Kant (1724–1804) is credited with adding jus post bellum, the making of a just peace, to the tradition (Orend 2006, p. 20). Interestingly, with his idea of the “cosmopolitan man” and universal rights (ius cosmopoliticum), Kant was a forerunner of modern and post-modern ideas of human transnational identity, which for him were rooted in natural law, the basis also of Aquinas’s ideas of just war. But there is a difference between Kant, who starts with a notion of human nature (as does Grotius and others), and today’s rights theorists. “Whereas both the scholastics [theologians] and their Hobbesian and Grotian opponents had begun with a notion of humanity from which they had deduced what their natural rights might be, the human-rights charters begin with the notion of rights in order to arrive at the notion of what a person might be” (Pagden 2003, pp. 188, 192).
- 28.
For an interesting treatment of the just war problem from the perspective of breaking rules rather than following rules, see Bellamy 2006a.
- 29.
Summa theologiae IIaIIae 64 (On homicide).
- 30.
Diego Panizza argues convincingly that the belief in right reason marks a significant difference between the view of the theologians and the legalist–humanist view of Alberico Gentili. Diego Panizza (p. 15).
- 31.
“[W]e must ascribe to the true God alone the power to grant kingdoms and empires. He it is who gives happiness in the kingdom of heaven only to the good, but grants earthly kingdoms both to the good and to the evil, in accordance with his pleasure” (Augustine 1972, p. 215). “The same may be said of the duration of wars. It rests with the decision of God in his just judgment and mercy either to afflict or console mankind” (Augustine 1972, p. 216). While Augustine’s views on war are too complex to be treated of here, he did not think of wars in terms of human justice, but of divine will and justice.
- 32.
For example, Augustine considered the use of coercive force in relation to the heretics of his time. Vitoria wrote regarding the legitimacy of the Spanish conquests in the Americas, while Grotius wrote the De Indis to defend the seizure in 1602 by a private Dutch citizen of a Portuguese trading ship, with goods valued at the “total annual expenditure of the English government at the time” (Tuck 2001, pp. 73–75, 79–94). Trained at the University of Perugia, Gentili was a Professor of Civil Law at Oxford, and his work was a response to the Spanish Thomists, as well as to the imperialistic threats posed by the Spaniards and Turks (Panizza 2005, October 17, pp. 6–9, 22).
- 33.
Contemporary just war theorists of every stripe fall into the trap of shading “just war” with morality. James Turner Johnson called the “just war tradition a major moral tradition of Western culture, shaped by both religious and nonreligious forces and taking shape in both religious and nonreligious forms within the culture,” and that is why he thinks it disintegrated after the Reformation, quoted in Hensel 2008, p. 79. Walzer, with reference to the 2003 Iraqi invasion, asks: “So, is this a just war? This question…asks only if it is morally defensible: just or unjust” (2004a, p. 160). Andrew Fiala is more precise. While focusing “on the morality of the idea that war should be employed as a means for advancing the ideal of democratization,” and “approach[ing] this debate as primarily a question of just war theory,” he nevertheless adds that “the just war tradition has been reluctant to approve of wars that are fought for such ideological purposes.” Fiala (2007, pp. 33, 40). Alex Bellamy is also clear that the “currency that matters most in politics is neither ethics nor law; it is legitimacy” (2006a, p. 14), and that concern, not plain morality, has always been the crux of just war theory, even among theologians.
- 34.
Brian C. Lockey has shown this admirably in Renaissance England, where natural law tradition, the underpinning of the Thomistic just war theorists, was also the foundation for imperialistic expansionism (2006, pp. 145–146, 158–159). See also Pagden.
- 35.
Gentili was a professor of the civil law, while Grotius was a humanist without specific legal training.
- 36.
I owe this observation to Bellamy (2006b, p. 73) and Orend (p. 18).
- 37.
An earlier generation of scholars also debated about who was the father of international law. James Brown Scott accorded this honor to Francisco de Vitoria (Relectio de Indis and Relectio de iure belli, 1539), while Arthur Nussbaum agrees with Richard Tuck in according the honor to Hugo Grotius (De Indis 1609; De iure belli ac pacis 1625) (Bellamy 2006b, p. 50). Thomas Erskine Holland in 1877 was the first to suggest Alberico Gentili (Panizza 2005, October 17, pp. 5 & 2n).
- 38.
In this sense, not much difference exists between pre-emptive and preventive war, the distinction Walzer proposed in his analysis of the 2003 Iraqi invasion (2004a, pp. 146–148).
- 39.
I have reproduced only the broad outlines of Panizza’s extensive and convincing treatment of the differences between Gentili and the Spanish school (2005, October 17, pp. 28–39).
- 40.
See Panizza (p. 34).
- 41.
Dana Priest. CIA killed U.S. citizen in Yemen missile strike; action’s legality, effectiveness questioned. Washington Post, November 8, 2002: A1. See the excellent discussion in Brooks (pp. 720–724).
- 42.
Aquinas, Summa Theologiae 2a2ae.40 (On War) (2002, pp. 239–247).
- 43.
Brooks (2004, pp. 677–685). The four Geneva Conventions are: (1) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, art. 3, 6 U.S.T.3114, 3116–18, 75 U.N.T.S. 31, 32–34; (2) Geneva Convention for the Amelioration of the of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, art. 3, 6 U.S.T. 3217, 3220–22, 75 U.N.T.S. 85, 86–88; (3) Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 3, 6 U.S.T. 3316, 3318–3320, 75 U.N.T.S. 135, 136–138; and (4) Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 3, 6 U.S.T. 3516, 3518–3520, 75 U.N.T.S. 287, 288–290. Common Article 3 is contained in all four Conventions, and it prohibits “cruel treatment and torture” as well as “outrages upon personal dignity, in particular, humiliating and degrading treatment.” Bobbitt notes that the McCain amendment, Department of Defense Appropriations Act, 2006, Pub. L. No. 109–148, sec. 1003, 119 Stat. 2680, 2739 (2005), sets a dangerous precedent in distinguishing cruel and degrading treatment from torture. This distinction facilitates a “necessity” exemption with regard to cruel and degrading treatment, which the U.S. Supreme Court has recognized in precedents that establish the benchmark for cruel and degrading treatment as a “shocks the conscience” test, which might be absent in cases of state necessity (Bobbitt 2008, pp. 370 & 54n).
- 44.
See American Bar Association Report to the House of Delegates 2004, in The Torture Papers (2005, pp. 1140–1146).
- 45.
“In the post-9/11 period, the eagerness with which governments around the world have adopted ‘security’ measures that can render them less accountable to their own people…is indeed troubling” (Andreopoulos 2006a, pp. 155–156).
- 46.
In this context where “the real justification is not the reason for the war, but the subject that is constituted through it…all critique is an attack on the state, all dissent becomes a threat to identity, to self-expression, and international outcry becomes an irritating misunderstanding of who we are” (Mann 2006, p. 160).
- 47.
President Bush, in his January 29, 2002 State of the Union Address, clearly linked Iraq with both terrorism and WMDs: “Iraq continues to flaunt its hostility toward America and to support terror. The Iraqi regime has plotted to develop anthrax and nerve gas and nuclear weapons for over a decade…. This is a regime that has something to hide from the civilized world.” After suggesting a number of links between Iraq and al-Qaeda in an October 7, 2002, speech, he then said: “Saddam Hussein’s regime gleefully celebrated the terrorist attacks on America. Iraq could decide on any given day to provide a biological or chemical weapon to a terrorist group or individual terrorists.” The role of rhetoric has been recognized as a significant factor in justifying the Iraqi invasion (Burke 2004). Ferrari quotes P.A. Chilton to the effect that “what constitutes a legitimate concept of ‘war’ can only be established [linguistically]” (2007, pp. 622 & 8n). See P.A. Chilton (1997, p. 175).
- 48.
For an analysis, see Michalowski (2009, p. 310)
- 49.
As an occupying force, the United States and the CPA were also obliged, under international law, to observe the Hague Regulations of 1907, and to assure “public safety and order,” while respecting the “lives and property of civilians…at all times” (Kramer et al. 2005, p. 67).
- 50.
CPA Order Number 17 (Revised), sec. 4 (3). Paralleling this are infringements on the rights of United States citizens, such as those authorized by the Patriot Act, and protections granted domestic companies. On July 10, 2008, President Bush signed into law the Foreign Intelligence Surveillance Act Amendments of 2008, which provides sweeping immunities from lawsuits to telecommunications companies for providing the federal government with information on their customers, without any judicial oversight. The Obama administration supports this immunity.
- 51.
In Munaf, the Court noted: “The habeas petitioners do not dispute that they voluntarily traveled to Iraq…or that they are alleged to have committed serious crimes in Iraq…. Given these facts, our cases make clear that Iraq has a sovereign right to prosecute [petitioners] for crimes committed on its soil” 128 S. Ct. at 2221.
- 52.
See Tom Engelhart (2007, September 24). As of November 2008, the Pentagon had 163,000 contractors in Iraq, while the State Department employed around 5500 (Lee 2008, November 20). On November 27, 2008, the Iraqi Parliament approved a Status of Forces Agreement (SOFA) by a vote of 149 to 35, which rescinded the immunities grated to private contractors by Order 17. Previously, the Iraqi Cabinet and the White House had approved the same measures (Rubin 2007, October 31).
- 53.
MPs staffing military correctional facilities, such as the one at Fort Leavenworth, require a higher specialty classification, and more specialized training, than MPs guarding POWs, that is, a Military Occupational Safety (MOS) classification of 95C, as compared to 95B for the latter. An MOS of 95C was needed at Abu Ghraib, which was not a POW prison (Mastroianni & Reed 2006, p. 243). But the MPs at Abu Ghraib apparently had neither kind of training: “I find that prior to its deployment to Iraq for Operation Iraqi Freedom, the 320th MP battalion and the 372nd MP Company had received no training in detention/internee operations” (Taguba Report, 2004, p. 419).
- 54.
“There is abundant evidence…that soldiers throughout the 800th MP Brigade were not proficient in their basic MOS skills” (Taguba Report, 2004, p. 433).
- 55.
Hamm lists three theories: (1) the few “bad apples”; (2) Zimbardo’s theory that stress brings out the “latent torturer” in all of us; and (3) a governmental policy sanctioned by the “upper echelons” of policymakers (2007, pp. 269–270).
- 56.
- 57.
- 58.
- 59.
“Soldiers are required to obey superior orders…. Civil police are characteristically individually liable for their actions in using force and cannot claim that they were acting under superior orders” (Waddington 1999, p. 154).
- 60.
George Lucas, From jus ad bellum to jus ad pacem, quoted in Fiala (2007, p. 40) (emphasis mine).
- 61.
In this connection, Luban (2006, p. 18n) credits Lieutenant Colonel Tony Pfaff with making a clear distinction between policing morality and war morality in two articles: “Military ethics in complex contingencies” and “Peacekeeping and the just war tradition.”
- 62.
Walker also notes a preference for the term “transnational” and gives reasons that are analogous to the rationale of Bobbitt’s “market state” (2008, p. 111).
- 63.
The Taguba Report mentions only “hundreds of former Iraqi soldiers and officers” (2004, p. 436).
- 64.
See Lazreg’s excellent analysis and critique of these views, and her point that they are based on rank fictions (2008, pp. 237–252). Danner calls the mélange of fact and fiction at Abu Ghraib a “faintly hysterical absurdity” (2004, p. 39).
- 65.
The soldiers punished at Abu Ghraib “made two inter-related mistakes: (1) they failed to focus on the instrumental goal of information extraction, and (2) they abused prisoners for reasons of emotional catharsis or revenge. Had they committed the same actions…[and] these abuses yielded information…the horrific actions…would be fully acceptable” (Hooks & Mosher 2005, p. 1641). Exceptional brutality soon becomes a state of normalcy (Gordon 2006, pp. 45–49). Two retired generals note: “Any degree of flexibility about torture at the top drops down the chain of command like a stone – the rare exception fast becoming the rule,” quoted in Malinowski (2008, p. 154). Thus, Hooks quotes the New York Times’ drawing of a “dotted line” from President Bush to Abu Ghraib, via administration lawyers (2005, p. 1634).
- 66.
For a fine analysis of the pitfalls of taking fiction as a justification of torture, see Luban (2006, pp. 249–262). Luban calls the ticking bomb scenario “an intellectual fraud” (2006, p. 259).
- 67.
“In an environment in which terms such as terrorist or war can be used in an imprecise or loose manner, the risk of rendering a large number of people vulnerable increases” (Andreopoulos 2006a, p. 156).
- 68.
As late as August 22, 2007, speaking at the Veterans of Foreign Wars’ national convention, Bush was linking Iraq and the war against terrorism: “Iraq is one of several fronts in the war on terror – but it is the central front – it’s the central front for the enemy that attacked us and wants to attack us again.”
- 69.
No one writes more eloquently than Joan Dayan of the long history in the United States of using the denial or redefinition of legal status as a political tool, from slavery to Abu Ghraib. She speaks of putting certain targeted groups on “enthralled ground…. [T]he ground that is a dead zone, a judicial no-man’s land, where region or what is regional can be everywhere. The persons currently deprived of rights, most importantly through labeling, through words in time that that sustain the idea of the wicked or unfit, carry the idea of region with them. They make up a world that has no political boundaries, and where geographical boundaries are dislodged from their proper places. How can I describe the place that becomes synonymous with the incapacitation of the person? In untangling a philosophy of personhood in the rules of law, we ought to understand how two apparently distinct discourses – expulsion and dehumanization – are joined, or, more precisely, operate along a continuum” (2003, p. 95).
- 70.
“However, as the rights of man became increasingly political rights which could only be held within specific political regimes, so they became increasingly useless as a notion in international or intercultural relations” (Pagden 2003, p. 190).
- 71.
The relationship among colonialism, sex, and torture is evident in a French intelligence officer’s advice to a colleague in Algiers: “An interrogation is like making love. An essential rule is to take your time, know how to hold yourself long enough until you reach the crucial moment, keep up pain until it reaches its climax. Most of all do not go beyond this threshold or your partner will die on you. If you can motivate him, he’ll talk. Well, you know, orgasm. Otherwise, he’ll pass out. If you love women, lieutenant, you should understand” (Lazreg 2008, p. 125).
- 72.
See, for example, President Bush’s remarks at a June 10, 2004, Press Conference at Sea Island, Georgia, where he uses the word “law” five times in six short sentences, quoted in Danner (2004, p. 46).
- 73.
- 74.
- 75.
Walzer trumpets the “triumph” of just war theory (2004a, pp. 3–22), but the very success of just war theory has proved problematic, because this has helped tip the scales away from alternatives offered by multilateral international law and cooperation.
- 76.
Executive Order No. 13492 (signed Jan. 22, 2009). Review and disposition of individuals detained at the Guantánamo Bay naval base and closure of detention facilities. 74 FR 4897 (Jan. 27, 2009).
- 77.
Executive Order No. 13491 (signed Jan. 22, 2009). Ensuring lawful interrogations. 74 FR 4893 (Jan. 27, 2009).
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Tung, TF. (2011). Just War Claims: Historical Theory, Abu Ghraib, and Transgressive Rhetoric. In: Andreopoulos, G., Barberet, R., Levine, J. (eds) International Criminal Justice. Springer, New York, NY. https://doi.org/10.1007/978-1-4419-1102-5_2
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