Academic journal article
By Miller, Seumas
Harvard International Review , Vol. 31, No. 1
Mark Osiel's provocative new book, The End of Reciprocity: Terror, Torture and the Law of War, provides detailed discussions of a number of important moral and legal issues arising for the United States in its ongoing response to the threats posed by the Al Qaeda terrorist network. The specific focus is the US-deployed counter-terrorist methods of sustained detention, torture, and targeted killing of suspected terrorists. The author, Mark Osiel, displays a wide knowledge of relevant literature in a number of fields, including international law, philosophy, sociology and cultural studies. The book is lengthy (667 pages). It is also heavily referenced (250 pages of end-notes) and, as such, is a useful reference tool. It is in four parts.
Part One concerns international law. Osiel argues that "the principle of reciprocity continues to infuse much of international law" and in the context of the persistent refusal of the United States to accept customary rules prohibiting reprisals against civilians, could reasonably be used to justify lawful US counter-measures against terrorism, such as sustained detention, coercive interrogation, and targeted killing. Roughly speaking, the principle of reciprocity uses grounds of fairness to justify one side in a war in breaching the laws of war--by, say, mistreating the other side's POWs--if it is in retaliation for the other side's breach--by, say, using prohibited weapons. Osiel claims that this legal argument was one that the Bush administration and its supporters perceived as adequate legal justification for the Bush administration's counter-terrorism policies given Al Qaeda's egregious violations of international law.
In Part Two, Osiel argues for the moral acceptability of these counter-measures; specifically, they are justified by the principle of reciprocity, understood now as a moral principle. Although Osiel's argument that the US-Al Qaeda confrontations can reasonably be regarded as constituting an international armed conflict is persuasive, the moral and other non-legal arguments he advances regarding the justifiability of specific counter-terrorism measures are much weaker. Legal considerations notwithstanding, the moral principle of fairness in combat seems to be a notion that is relative to the combatants; murdering innocent non-combatant bystanders cannot easily be seen as necessarily unfair to the enemy combatants qua combatants. Moreover, the principle of fairness in combat is evidently constrained, morally speaking, by at least some human rights of the combatants, e.g. the moral, as opposed to legal, human right not to be tortured. While I agree with Osiel that targeted killing and sustained detention of terrorists are morally justifiable under certain circumstances--and could justifiably be legalized--my disagreement concerns the moral basis for these practices.
As noted, torture is a different matter. I believe that although torture might be morally justifiable under extreme circumstances, it could never justifiably be legalized. At any rate, Osiel understates the moral wrongness of torture. He suggests that it is the intentional infliction of severe pain in the service of another purpose including coercion, intimidation and punishment. However, this omits a central constitutive feature of torture, namely, that it is an attempt to break a defenseless person's will at whatever cost to their autonomy; contra Osiel, defenselessness does not entail powerlessness. So torture necessarily threatens to destroy a human being's autonomy, and is not simply to be understood as the infliction of severe pain for other purposes external to it. In this respect torture is akin to slavery and, as with slavery, ought never to be legalized.
In Parts Three and Four, Osiel pulls back from the implications of what he takes himself to have established in Parts One and Two, i.e., that the United States should use the counter-terrorism methods in question since they are both legally and morally justified. …