Terrorism, Resistance, and the Idea of “Unlawful Combatancy”

| March 2010
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The Trouble with Terror: Liberty, Security, and the Response to Terrorism, Tamar Meisels (Cambridge: Cambridge University Press, 2008), 250 pp., $85 cloth, $26 paper.

Terrorism and Counter-Terrorism: Ethics and Liberal Democracy, Seumas Miller (Oxford: Blackwell, 2009), 232 pp., $75 cloth, $28 paper.

The Provisional Irish Republican Army and the Morality of Terrorism, Timothy Shanahan (Edinburgh: Edinburgh University Press, 2009), 256 pp., $115 cloth, $38 paper.

“There is no such thing as political murder, political bombing, or political violence. There is only criminal murder, criminal bombing, and criminal violence. . . .”
—Margaret Thatcher

When faced with security threats from terrorism and other forms of nonstate political violence, how should liberal-democratic states respond? Should they operate entirely through the police and courts, categorizing their enemies as “criminals” and seeking to deal with the threat through investigation, arrest, and prosecution? Or can they deploy military force and tactics?

The answers to these questions will depend partly on the nature of the groups with which states are confronted and the contexts in which they operate. As Timothy Shanahan recounts in The Provisional Irish Republican Army and the Morality of Terrorism, during the 1970s and 1980s in Northern Ireland the British government tried variants of the military approach at different times, but generally sought to contain security measures within the framework of criminalization (especially from 1976 onward, when the “special category” status granted to “politically motivated prisoners” in Northern Ireland since 1972 was withdrawn). This was intended partly to reinforce the message that the Provisional IRA was not the legitimate “army” that it claimed to be, a desire manifest in the refusal in the early 1980s to concede a return to political status in the face of the IRA hunger strikes.3 On the other hand, as both Shanahan and Seumas Miller note, the paramilitary tactics deployed by republicans occasionally goaded state forces into responding in kind.4 The result was that, at times, the policy of the United Kingdom in Northern Ireland looked like something of a hybrid: the “terrorists” could be prosecuted under domestic criminal law for any violent acts, facing the charge of murder whether they killed civilians, soldiers, or police; while the use of internment (introduced in 1971 but abandoned in 1975) and of such military techniques as ambush and, allegedly, assassination (during the 1980s) drew on the repertoire of tactics legally justifiable only in war.

Recent work on the law and morality of counter terrorism focuses on this kind of hybrid approach, contesting the meaning and applicability of “unlawful combatancy” as a category in the ethics and law of war. In The Trouble with Terror, Tamar Meisels defends the thesis that “irregular belligerents, whether ‘terrorists’ or otherwise, are ‘unlawful combatants’ and as such are ineligible either for the immunities guaranteed to soldiers by international conventions of war or for the protections of the criminal justice system.”5 Meisels takes the more recent experience of Israeli security forces in their encounters with Palestinian threats as her political focus. The practice that best exemplifies the kind of approach toward terrorists that she advocates is the use of “targeted killing” by Israel against senior Palestinian “militants,” particularly between the start of the Second Intifada in September 2000 and the end of 2005, during which period at least 187 suspects were killed.6

By contrast, in Terrorism and Counter-Terrorism, Seumas Miller disputes this construction of unlawful combatancy as a legal or moral category, arguing that terrorists “should not be subjected to a hybrid framework under which they are both ordinary criminals and simultaneously military combatants”; and he rejects the “imposition of a selective framework by means of which terrorists get the worst of both worlds” as “morally objectionable.”7 Thus, while he accepts “unlawful combatant” as a term that usefully describes the status of terrorists operating in de facto theaters of war, he nevertheless argues that the temptation to mix and match different moral and legal norms should be resisted.8

There are significant differences in the style and method in each of the three books. Meisels develops her position through a series of polemical, but nevertheless sophisticated and sometimes persuasive, addresses to various interlocutors (those engaged in the “apologetics of terrorism” and those seeking to obscure the meaning of “terrorism” as a moral term, for instance). Like Meisels’s, Miller’s approach is thematic, addressing questions of how to define terrorism, whether it can ever be justified, and, finally, whether terrorism should be fought through the police or the military, and whether to contemplate the use of interrogative torture. But his tone is more cautiously analytical throughout, eschewing any obvious sense of partisanship. Finally, Shanahan applies the tools of moral analysis to a specific historical case, a novel and promising approach. Thus, each book offers a distinctive and important contribution to a range of debates on the ethics of terrorism and counter terrorism. In this essay, however, I will focus more specifically on the construal, particularly by Meisels and Miller, of the “unlawful combatant” category—a pivotal concept—and I will refer to Shanahan’s book inter alia by way of illustration.

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Category: Issue 24.1, Review Essays, The Ethics of War and Peace

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