IN CURRENT HOSTILITIES in Iraq, Afghanistan, parts of Pakistan, and elsewhere, from Colombia to the Horn of Africa, nonstate actors - in particular, terrorists and insurgents who act like terrorists - play a much larger role than they did during WWI, WWII, and the Korean War. In these wars between states, the accepted rules of war, embodied in documents such as the Geneva Conventions, applied much more readily than in contemporary conflicts. Currently, conventional armies that seek to adhere to the rules of war are disadvantaged and are under pressure to circumvent the rules. These conditions suggest that work is needed to modify and update these rules.
Changes to the rules of war would hardly be unprecedented. The First Geneva Convention, dealing with the treatment of battlefield casualties, did not exist until 1864, and since then additional conventions have been agreed upon and other rules of war have been modified. The same holds for "international law," which some people evoke as if it was etched in stone and unambiguous - but is actually neither. Indeed, even in well-established democratic societies, laws are constantly recast. For instance, there was no constitutional right to privacy in the United States until 1965, and the way we now understand the 1st Amendment (the right to free speech) was formed in the 1920s. In both cases no changes were made in the text of the Constitution, but new interpretations were employed to bring the Constitution - as a living document - in line with the normative precepts of changing times. Hence, it stands to reason that the new threats to security now posed by nonstate actors - several of whom have a global reach, are supported by massive religious radical movements, and have potential access to weapons of mass destruction (WMD) - demand modifications in the interpretations, if not the texts, of the rules of war.
A New World
Unfortunately, the advocates of two major approaches to counterterrorism have dug in their heels and stand in the way of the needed adaptations. On the one side are those who speak of a "war on terror," which implies that terrorists ought to be treated like soldiers who, under the current rules of war, can be detained without being charged or tried until the end of the war. On the other side are those who favor treating terrorists like criminals, endowed with the rights and privileges accorded to citizens of democratic societies who have been accused but not yet convicted of having committed a crime. Both approaches, we shall see shortly, have serious shortcomings, and hence invite the quest for a third way.
The ambiguities surrounding the current characterization of terrorists are illustrated by the following: Should one bring them to trial in the United States, like criminals? They are likely to walk. (The few cases brought before American judges, even conservative ones, were decided against the government. As noted by Benjamin Wittes and Zaahira Wyne of the Brookings Institution, the U.S. District Court for the District of Columbia has thus far issued rulings in habeas cases for 29 Guantanamo detainees - 24 of which it held to be unlawfully detained.) Should we hold them until the war ends? Even if it lasts 100 years? Send them home? Many nations refuse to accept them, and such a release violates various international laws concerning sending people to countries where they might face torture or execution. Bring them to military tribunals? The evidence against them - often obtained on the battlefield - frequently does not satisfy even these less demanding tribunals. (Wittes reports that military prosecutors have estimated that even under the Military Commissions Act they have enough evidence to be able to bring to trial at best only 80 Guantanamo detainees.)
The effect of these considerations, and the legal and normative confusion they reflect, is best understood with reference to the field of law and economics. This field, which studies the incentives and disincentives generated by public policies and laws, has shown that it is counter to the public interest to enact laws and design policies that, however unwittingly, promote undesired behavior through perverse incentive structures. …