The Geneva Conventions are so outdated and are written so broadly that they have become a sword used by terrorists to kill civilians, rather than a shield to protect civilians from terrorists. These international laws have become part of the problem, rather than part of the solution.
Following World War II, in which millions of civilians were killed by armed forces, the international community strengthened the laws designed to distinguish between legitimate military targets and off-limit noncombatants. The line in those days was clear: The military wore uniforms, were part of a nation's organized armed forces, and generally lived in military bases outside of population centers. Noncombatants, on the other hand, wore civilian clothing and lived mostly in areas distant from the battlefields.
The war by terrorists against democracies has changed all this. Terrorists who do not care about the laws of warfare target innocent noncombatants. Indeed, their goal is to maximize the number of deaths and injuries among the most vulnerable civilians, such as children, women and the elderly. They employ suicide bombers who cannot be deterred by the threat of death or imprisonment because they are brainwashed to believe that their reward awaits them in another world. They have no "return address."
The terrorist leaders -- who do not wear military uniforms -- deliberately hide among noncombatants. They have also used ambulances, women pretending to be sick or pregnant, and even children as carriers of lethal explosives.
By employing these tactics, terrorists put the democracies to difficult choices: Either allow those who plan and coordinate terrorist attacks to escape justice and continue their victimization of civilians, or attack them in their enclaves, thereby risking death or injury to the civilians they are using as human shields.
Equating the deliberate targeting of innocent civilians by terrorists with the unintended consequences of trying to combat terrorism only encourages more terrorism.
Whenever a civilian is accidentally killed or an ambulance is held up at a checkpoint, the terrorist leaders, and those who support them, have exploited the post-World War II laws of warfare to condemn the democracies for violating the letter of the law. Some human rights groups, international organizations and churches have joined this chorus of condemnation, equating the deliberate targeting of innocent civilians by terrorists with the unintended consequences of trying to combat terrorism -- unintended by the democracies, but quite specifically intended, indeed provoked by, the terrorists. This only encourages more terrorism, since the terrorists receive a double benefit from their actions. First they benefit from killing "enemy" civilians. Second, they benefit from the condemnation heaped on their enemies. Human rights are thus being used to promote human wrongs.
The time has come to revisit the laws of war and to make them relevant to new realities. If their ultimate purpose was to serve as a shield to protect innocent civilians, they are failing miserably, since they are being used as a sword by terrorists who target such innocent civilians. Several changes should be considered:
· First, democracies must be legally empowered to attack terrorists who hide among civilians, so long as proportional force is employed. Civilians who are killed while being used as human shields by terrorists must be deemed the victims of the terrorists who have chosen to hide among them, rather than those of the democracies who may have fired the fatal shot.
· Second, a new category of prisoner should be recognized for captured terrorists and those who support them. They are not "prisoners of war," neither are they "ordinary criminals." They are suspected terrorists who operate outside the laws of war, and a new status should be designated for them - a status that affords them certain humanitarian rights, but does not treat them as traditional combatants.
· Third, the law must come to realize that the traditional sharp line between combatants and civilians has been replaced by a continuum of civilian-ness. At the innocent end are those who do not support terrorism in any way. In the middle are those who applaud the terrorism, encourage it, but do not actively facilitate it. At the guilty end are those who help finance it, who make martyrs of the suicide bombers, who help the terrorists hide among them, and who fail to report imminent attacks of which they are aware. The law should recognize this continuum in dealing with those who are complicit, to some degree, in terrorism.
· Fourth, the treaties against all forms of torture must begin to recognize differences in degree among varying forms of rough interrogation, ranging from trickery and humiliation, on the one hand, to lethal torture on the other. They must also recognize that any country faced with a ticking-time-bomb terrorist would resort to some forms of interrogation that are today prohibited by the treaty.
International law must recognize that democracies have been forced by the tactics of terrorists to make difficult decisions regarding life and death. The old black-and-white distinctions must be replaced by new categories, rules and approaches that strike the proper balance between preserving human rights and preventing human wrongs. For the law to work, it must be realistic and it must adapt to changing needs.
This article originally appeared in the Baltimore Sun.
(11) James Morley, June 30, 2004 12:00 AM
Let's all be terrorists!
Dershowitz's defense of the 'ends justifies the means' argument has always been used to justify any immoral atrocity. Let's never forget the NaZI's use of this argument please.
Respectfully
James Morley
(10) Anonymous, June 11, 2004 12:00 AM
Bravo!
Mr. Dershowitz has, as usual, written a cogent, smart article, albeit long overdue. Who can quibble, except those who believe that a 'return address' is not important?
(9) David M. Frost, June 8, 2004 12:00 AM
Congrats, Mr. P.
I commend Mr. Puglisi for tearing up his ACLU card-- if I had one, I'd tear it up, too! I will also comment Prof. Dershowitz for acknowledging that the standard "rights" enjoyed by enemy soldiers on the one hand and criminals on the other were not designed for terrorists.
Indeed, the threat of criminal prosecution can hold little deterrence for a lunatic set on killing himself, and the dignity of a soldier is something to which no terrorist should be admitted.
The Bush administration has already made it clear that the Geneva convention does not apply to terrorists-- nor should it. At most, a modest amount of due process by a military tribunal to determine whether a fellow is a terrorist or not should do the trick. After that (to quote the immortal Willie Nelson), "take all the rope in Texas, find a tall oak tree, round up all of them bad boys, hang 'em high in the street."
(8) Anonymous, June 7, 2004 12:00 AM
Excellent. Hope those in charge of laws read it and do something about this matter.
(7) David, June 7, 2004 12:00 AM
The Torah
also tells we must protect ourselves against those who would destroy us.
I don't see any hypocrisy in
treating murderers differently
from honoarable soldiers doing their duty. I also don't see the point of torturing ourselves while we try to get information from those who would
destroy us. I don't believe you get
much of value from torture, but wouldn't the Arabs love it if we
did it to ourselves?
(6) Volvi, June 7, 2004 12:00 AM
Trying to come to grips with realities
Mr Dershowitz is a renowned Liberal yet even as a liberal he has finally woken up to the realities facing our civilisation. Even he can no longer pretend with head in the sand that this evil will just go away all by itself which is a common liberal attitude. Allow me to quote what I wrote on another article from Israelnationalnews. http://www.israelnn.com/article.php3?id=3732
"the previous poster with all his/her good humanity and good intentions is in fact the core of the problem. We see ourselves as enlightened human beings where violence is never justified - according to some. Because they have reached an elevated understanding of humanity and seek dialogue alone, they equally presume that they with whom they seek that dialogue are all on equal standard of respect for life and human rights. Therefore dialogue is the only answer to them. What these 'enlightened' individuals dont realise is that their sublime human status is responsible for the deaths of many many millions. How so? When Europe seeked to appease Hitler they too said dialogue not violence. What if Hitlers Germany was attacked in the late '30s instead of attempting to appease this evil? How many would have perished? 1 million perhaps. But instead they allowed the cancer to fester hoping it was just a passing fad. What was the result? How many perished? Try 80 million. So this false sense of nobility is nothing other than the fear of violent confrontation. This fear itself disguised as 'enlightenment' is the core why evil and barbarism spawn and fester. Where no good men stand up to face evil with intentions to eradicate it, they are accomplices to their growth and are equally guilty. As long as there is an element within our specie that recognises no human rights and act with a level of old age barbarism, there is no alternative to the need to eradicate them from within our midst by using violence. The day when you can eradicate this element with lollipops I will be the first to advocate it. Until then there is no alternative. Not surgical strike, not sanitised war, not clinical operations, but massive bombardment where all pay for the sins of theyre brothers and sisters as what took place in Germany and Japan. So when the 'innocent' have to pray the price too, they collectively will see the need to evolve beyond barbarism and they themselves will not allow evil to fester within theyre midst. Just look at Germany and Japan as examples, when they collectively had to pay the price, they both made a complete U Turn from violence and despotism. Violence is a necessity and yes even for the elightened elements within our specie. For if not then theres no evolvment for the betterment of all mankind and no hope for our specie."
The only exception I take to Mr Dershowitz's argument is according certain Human 'rights' to those that have no compulsion in according no human rights whatsoever to theyre victims. They have removed themselves from outside any form of rule of Law, Society and of man, so they should not be able to demand the same for themselves.
(5) Alan Becker, June 6, 2004 12:00 AM
A VERY INTERESTING STUDY
The author has presented a new thesis how governments should protect their citizens against terrorism. I certainly agree that they should take a firm stand against these violent animals who have no respect for human life.I hope that this article recieves the attention in deserves.
(4) Alan Bunin MD, June 6, 2004 12:00 AM
Torturing terrorists
How can we allow torturing a terrorist to get to a "ticking bomb" without becoming sadistic? Have the torturer suffer as much or almost as much pain as the prisoner. Whenever the prisoner gets an electric shock so does the interrogator.
(3) Anonymous, June 6, 2004 12:00 AM
Rules of War
I am outraged by Alan Dershowitz' comments, which I cannot consider consistent with any meaningful understanding of Judaism. They are apolgetics for a brutality which destroys the torturers as well as the tortured. School yard excuses "He started it" "He did worse to me" have no place in a morality worthy of the name and thank the Holy Blessed One are not- not in the form Dershowitz advocates anyway - recognized in international law. The mitzvot were not given to us so we should take the easy or the lazy way, but so that we would not do to anyone what would be hateful to ourselves.
Sincerely,
(2) Emily, June 6, 2004 12:00 AM
Excellent
Excellent, the general public should realize this, well stated
(1) al puglisi, June 6, 2004 12:00 AM
pick and choose
I find it interesting how Mr. Dershowitz feels we can pick and choose
whose human rights we can protect. He turned out to be the hypocrite I always knew he was. I just tore up my ACLU card.