Asymmetry and the Law...

There's good article by Michael Pawlik in today's FAZ, titled "Der Terrorist will nicht resozialisiert werden", or "The Terrorist Does Not Want To Be Resocialized".

As usual, behind the subscriber firewall, link here. I'm not translating, merely laying out what he says and commenting on that.

The key point is that what terrorists do falls into gray zones, quite deliberately so.

On the one hand, terrorism, in its modern transnational form, is an act of war.

On the other hand, it's something that good police work has successfully dealt with on a local scale.

But the critical thing is that the standard ways of thinking about how to deal with terrorism - concerted police work with some involvement by the military - doesn't work with transnational terrorism, especially as the terrorists practice it and exploit the system to create sanctuaries and infrastructures.

The greatest danger is not realizing this and allowing them free action by not pursuing them as if one were at war: while those attacked may not have wanted a war and tried to prevent it, you only need one side to have a war, the side that doesn't resort to diplomacies and the niceties, but simply starts killing in order to achieve their political gains.


This is the critical point of Pawlik's post: the difference between the West and islamic terrorism is so great that there cannot be peace. This doesn't mean that there can't be peace between Islam and the West, but simply that the islamic terrorists are only concerned with winning. They have declared, effectively, an asymmetric war where they believe they can manipulate the rules of standard international relations to their advantage - and they have been very, very successful to date - because they know that they cannot match the West in a field of battle, regardless of how brave their fanatics may be and how willing they are to die for their cause.

Hussein Mussawi, who was head of Hisbullah in Lebanon in 1992 when the Israelis killed him, said, according to Pawlik, that they were not fighting for recognition and settlement of their grievances, but rather to destroy their enemy.

Now, without going into extreme detail, people like Mussawi do not believe that they are bound by the international rules governing warfare or international relations. Their most important tool is "senseless violence" or simple destruction, without warning or sense, because their goal is to destroy western societies and force them to behave as the terrorists so wish.

As an aside (Pawlik doesn't mention this), Spain was such a target: the Madrid bombings were aimed at changing Spanish politics, and it did: Spain left the Coalition and appeased the terrorists so as not to become targets again, an act of fundamental cowardice that has deeply, deeply chilled US relations with Spain and will continue to do so until Spain, as it were, "grows a pair" and starts acting like a sovereign nation, rather than doing exactly what the terrorists want them to do.


You can't deter terrorists; you can't take anything away from them, since they don't "have" anything to take away, there can be no reciprocal actions taken (excepting perhaps the Israeli eye-for-an-eye tactics, which don't prevent terrorists from acting, but goes ahead and kills them any way).

Now, Pawlik's point is that law has ignored the terrorist as he really is, an actor who has declared war. The problem is the asymmetry of the war: law is based on symmetrical relations between the parties.

Hence the difficulties the law has with dealing with terrorists: while they have done things that are illegal, treating them as common criminals ignores the reality of the situation, that they must be dealt with under the laws of war, meaning, for instance, that the detention of terrorists is not a legal matter, but rather one that follows the rules of war, with permanent detention until the conflict is resolved.

Normally, during wars between states, this is not a problem: a soldier, as Pawlik says, is a soldier and basta. Terrorists are a different breed, with nuances of seriousness and deadliness. Supporters of terrorism are as involved in the acts as the terrorists themselves, but how does one deal with them within a framework of law? Can one simply toss them into permanent detention and wait until the conflict is over - if it ever is - or does one differentiate and deal with the degree of complicity?

These are all gray areas that have been largely unexplored. Terrorist sympathizers and supporters are clearly complicit in the acts and can be just as dangerous and unrepentant as the terrorists themselves, but arresting people for their beliefs is abhorrent to any western legal system.

So what does one do? Ideally, laws are created to handle the problems with clear distinctions for the police and government lawyers to use. Germany, for instance, does not have a detention-style arrest, and no one wants it, celary for historical reasons. There is the infamous §129a, which makes the establishment of a terrorist organization a crime, but this is inadequate.

The alternative is the §89a of German law - and I am not a lawyer here, just an interested observer - which makes spending time in terrorist training camps a crime. Learning how to fire a gun, build bombs and fly planes is not itself a crime, but learning them to do terrorist acts should be.

This is legally difficult, since it is a crime of belief, rather than a play between actions and guilt, which is how western legal systems are built. Here you have to detain someone not because they are guilty of an action, but rather because that what they believe may entail an action that forces the state to prevent: you can't wait for a terrorist crime to happen before doing anything about it, unless, of course, you want to grant the terrorist legal sanctuaries for their preparations.

What this entails, however, is being able to make a distinction that cannot easily be made. On the one hand, the state can detain someone that they think is going to commit a crime if they have adequate proof thereof; on the other hand, how are they to be detained? Normally they'd go before a court of law, have their day in court, and most likely be freed, as there is no act-guilt chain to keep them in jail. The fact that they aren't soldiers, per se, means that normally you can't put them in a POW camp and simply hold them until the war is over; further, how can one make the differentiation in this case between soldier and non-combatant?

Ahhhh. This is where the asymmetry between transnational terrorists and western states really hits home. There has to be a legal way to define this problem, and the terrorists operate in such a way that it becomes, basically, impossible to resolve: on the one side you have Guantanamo with all the associated problems of civilian combatants, while on the other side you have the impossibility of normal legal resolution.


Hence there needs to be a third way. Pawlik points out that intelligence agencies, the military and police need to cooperate and merge in ways that are currently unthinkable, using methods that the police would reject but are widespread within the intelligence communities, such as misleading and confusing prisoners, isolating them and making them very uncomfortable in order to break their will to resist and tell what is needed to be known in order to prevent terrorist acts. This cannot be done by the police: they do not have the tools or the laws to do so.

Fundamentally, intelligence agencies must target the terrorists, either destroying them with military or police means, but also destroying their infrastructures and support networks. This is a key point that many underestimate: intelligence agencies must mutate, as it were, to anti-terrorist agencies that don't merely provide information that is then passed on, but rather integrate with the military and police in order to eliminate the threat, be it by physical elimination ala the Israelis, or by subverting the terrorists themselves and destroying them financially, morally and politically.

Pawlik also makes an interesting point regarding what he calls post-heroic societies, societies that see themselves as the culmination of societal development and who view any sort of harsh treatment as morally repugnant. Further, and this is the hard one, the question is also how much sacrifice can post-heroic societies demand of their citizens in the war against terror: there is great asymmetry between the sacrifice, be it simple data-protection laws that are loosened, and the effects, but the legal community does not appear to be willing to even contemplate this.

Pawlik makes the point that the terrorist challenge can be met, is being met, without giving up fundamental liberties: however, we need to get our concepts about fundamental liberties clear and call things by their true names.


And Pawlik's best point, perhaps, is that he clear states that none of this is very pretty, and you can't win elections with it.



Good work, worth a read if you know German.