How do you distinguish a crime from an act of war?

In this article Noam Chomsky discusses the responsibilities of public intellectuals in the context of the killing of Osama bin Laden, and extra-judicial killings and morally bankrupt international political machinations of the American government and others throughout history.

Reviewing the reactions of various governments to groups of intellectuals (put briefly, people with privilege, access, and knowledge that gives them influence) who either support or condemn various government actions, he notes that it is the intellectual supporters who tend to be lauded by their own politicians, and the critics who tend to be embraced by that state’s enemies.

The article is a good if intensely troubling read, and Chomsky makes abundantly clear the need for people to notice and speak out against the kinds of atrocities the American government enabled or flat out perpetrated in Latin America and elsewhere. His observation about the nomenclature of US military vehicles, weapons, and missions (Apache, Blackhawk, Operation Geronimo) is particularly chilling (“We might react differently if the Luftwaffe were to call its fighter planes “Jew” and “Gypsy”).

Bringing this obligation (clearly his own) to the international response to 9/11, Chomsky questions the U.S. action, and observes that the U.S. appears to have played easily into bin Laden’s ploy, a disconcerting prospect suggesting a cold and ruthless insight into American and European politics. Chomsky quotes Eric Margolis noting that “[bin Laden] repeatedly asserted that the only way to drive the U.S. from the Muslim world and defeat its satraps was by drawing Americans into a series of small but expensive wars that would ultimately bankrupt them.”

Chomsky’s proposed alternative initially brought me up short. He presumes here that 9/11 was responded to as an act of war, rather than a criminal act, and that the terribly named ‘Operation Geronimo’ had kill, not capture, as the intended goal. My initial response to this statement was aversion:

the “crime against humanity,” as it was rightly called, could have been approached as a crime, with an international operation to apprehend the likely suspects. That was recognized in the immediate aftermath of the attack, but no such idea was even considered by decision-makers in government. It seems no thought was given to the Taliban’s tentative offer—how serious an offer, we cannot know—to present the al Qaeda leaders for a judicial proceeding.

Image: Wally Gobetz

It is tempting to say that overseeing an organization that masterminded an elaborate plot resulting in the death of 3000 US civilians, not to mention other mass-murders elsewhere over the last 20 years, is an act of war which goes beyond mere criminality, and that negotiating with morally reprehensible groups like the Taliban is impossible and offensive.

But when we consider that Slobodan Milošević was brought to trial and prosecuted for crimes against humanity and genocide in Crotia, Bosnia, and Kosovo, the trial and execution of Saddam Hussein, and the Nuremberg Trials, it’s clear that sheer scale is immaterial, and that in recent history, we have determined that a criminal justice procedure is possible and necessary for even the most egregious actions.

To prosecute and punish crimes of this magnitude under the auspices of a judicial system without treating all war as a crime, we must assume that in any conflict there is a clearly wrong antagonist and clearly correct opposing force, and that there is a legal and humane way to engage in war with such an opponent.

Moreover, to operate in with such a system, if we cannot or do not bother to prove objectively that we are correct in our assessment of guilt, and that we have followed the rules of engagement where our enemy has attacked the innocent and defenceless, what is there left to separate our ideas from theirs?

So what differentiates bin Laden’s actions, and his death by US forces, from the obscene genocidal and homicidal political and military figures taken to The Hague?

Do you see anything other than the nationality of the victims?

In response to 9/11, the US declared a war. Not just against Iraq and Afghanistan (where they were joined by the UK and subsequently NATO forces), but against Terror (where they were also joined by NATO). A war against militant organizations and those governments that supported them.

The CIA provides this definition of terrorism from Title 22 of the US Code, Section 2656f(d):
• The term “terrorism” means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.
• The term “international terrorism” means terrorism involving the territory or the citizens of more than one country.
• The term “terrorist group” means any group that practices, or has significant subgroups that practice, international terrorism.

Over the course of this war, people have been brought to trial, or imprisoned without trial and tortured.

Bin Laden was not captured or brought to trial. He was killed and buried at sea. And, to be clear, I don’t think there is doubt in anyone’s mind that he deserved to die, probably in a more painful and prolonged way than he did, nor that were he to face trial, he would be found guilty and sentenced accordingly.

Image: FBI

The point, mes amis, is that there wasn’t a trial. It is the judicial process that separates the criminal militants and genocidal despots from the American and NATO governments seeking retribution for and an end to murderous actions against their citizens, however certain the outcome of a trial.

Why? Because no one sane systematically kills large groups of people without believing they have a good reason to do so. American and NATO forces are killing people, systematically, and to be justified by their own standards they must be able to prove the justice of each one of those deaths.

According to Amnesty International “CIA Director Leon Panetta said on 3 May that US forces had full authority to kill Osama bin Laden but that they were to capture him if he had surrendered. The White House has said that Osama Bin Laden was unarmed but resisted capture”.

To capture and prosecute bin Laden (and then kill him, per American law), would have allowed the US and NATO forces to maintain the moral high ground. I don’t know that we will ever be able to discover if he was shot in cold blood, or was indeed ‘resisting capture’ unto death, but it does make the American moral position a little less clear, and in any situation where people are dying, the moral justification is precious, and precious little at that.

There are far worse, and far more unjust things, that have happened over the course of this ongoing conflict, than the murder of a confirmed mass murdering militant: the lack of due process for suspects who are imprisoned for months and years without a fair trial, because there is insufficient evidence, which anywhere else would result in freedom, and the ‘collateral damage’ that always attends military action.

Surely any act involving the killing or displacement of anyone, as would happen in any armed conflict, can be seen as a crime. How important, then, is the ability to defend every action as both necessary and just.

Could things have been done better? Can things be done better?

Important questions to ask, if we are to defend murders, however much they may seem inherently justified, with righteous self-defence.

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