The Paris Attacks, Terrorism, and International Law

Episode Notes

Transcript

Advertiser: And the reason is that it’s about legitimacy. The Western powers and the rest of the world as the government’s need to fight terrorism have to win the war of hearts and minds. And that means maintaining the high moral ground, making sure that your actions promote human rights, democracy, and above all, the rule of law in the sense of saying this is how we are different.

 

Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

 

J. Craig Williams: Hello and welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Craig Williams coming to you from Southern California. I write a legal blog called May It Please the Court. Bob?

 

Bob Ambrogi: And hello, this is Bob Ambrogi coming to you from Boston, Massachusetts where I write a blog called Lawsites and I also practice law.

 

J. Craig Williams: Well yeah, I guess I do that too, Bob.

 

Bob Ambrogi: I thought you were retired, Craig.

 

J. Craig Williams: Oh no, far from it. Before we introduce today’s topic, Bob, we’d like to thank our sponsor, Clio an online practice management software program for lawyers at www.GoClio.com.

 

Bob Ambrogi: On November 13, 2015, a series of coordinated terrorist attacks occurred in Paris, chilling and maiming hundreds of people. Ultimately, the terrorist organization ISIS took responsibility for the attacks in retaliation for French airstrikes on ISIS in Syria and Iraq soil. These attacks rattled the world and put a spotlight on terrorism once again. The complete and utter disregard for the rules of war by terror organization, what needs to change? Today on Lawyer 2 Lawyer, we’re going to take a look at how the law plays into terrorism, the recent Paris attacks, terrorism today more broadly in the world versus yesterday, Geneva Conventions and international laws roll, what needs to be done legally to stay current in our fight against terrorism?

 

J. Craig Williams: And Bob, our guest today is joining us from Arusha, Tanzania. Dr. Lyal S. Sunga has conducted monitoring, investigation, reporting, technical cooperation, education and training in some 55 countries over the last 25 years in human rights, humanitarian law, and international criminal law. He is the head of the Rule of Law program at the Hague Institute for Global Justice in The Netherlands and visiting professor at the Raoul Wallenberg Institute for Human Rights and Humanitarian Law in Lund, Sweden. Welcome to Lawyer 2 Lawyer, Dr. Sunga.

 

Lyal S. Sunga: Thank you very much for having me on your show.

 

J. Craig Williams: Can you give us a perspective on the international laws that apply to the situation in Paris, Geneva Conventions, and the piece that you wrote about how international law can meet the challenges of today’s lawless conflicts? Just give us a perspective on what’s the framework that we’re looking at here.

 

Lyal S. Sunga: First of all, the most obvious framework is the domestic criminal law. Obviously, the attacks in Paris constitute a major climb there. But the wider questions that are going to have to be taken into account are how does the international community strengthen its response? Because what we’re seeing with ISIS or ISIL or whatever you want to call this is a different kind of phenomenon than we’re used to seeing from terrorist organizations. In the past, we’ve seen in the 1970’s and 80’s, we’ve seen terrorist groups pop up here and there even for some considerable periods of time, try to threaten the political independence of the state by waging a terror campaign trying to intimidate the people and the government into changing a particular policy or forcing their agenda on decision makers. The situation we’re seeing now is a game changer in the sense that here you have an organization that is managing to hold territories, and it’s not just targeting one particular state, one government within a country. But it purports to set up a state with territory. That’s something we haven’t really seen with terrorist groups, which in the past could basically be addressed as if they were criminal crime syndicates to organize crime in a way. And the point I was making in an article I wrote in the Guardian recently after the Paris attack is like it or not, the response has to be a more international one than we’re used to. That’s not something that’s only me that’s saying that, I think that people obviously recognize that. And that’s why we’re seeing major powers are trying to figure out the best and most effective way to take the fight to so-called Islamic states and what it claims to be its own territory. And rather than to see the situation where you have these people doing their training off in Syria and Iraq and returning to Europe and some other countries and launching a fairly sophisticated terrorist attack. That’s why we have to talk much more about international cooperation to fight terrorism and all the regulations and law to make that fight effective more so than in the past.

 

Bob Ambrogi: That article you mentioned was titled, Can International Law Meet the Challenges of Today’s Lawless Conflicts, and you talk about the Geneva Conventions. You make the point that the Geneva Conventions were adopted in 1949 mainly to limit cruelty in wars fought by regular soldiers and you raised the question of how those Geneva Conventions can apply to terrorism today where it’s a whole different ballgame as you’ve already suggested. Of course, our listeners have all heard of the Geneva Conventions, but remind us what they are about and what they do.

 

Lyal S. Sunga: Sure. The first Geneva Convention was adopted in 1864 in Geneva. Basically, all the rules relating to limiting cruelty and trying to regulate the means and methods of warfare and it’s really been sponsored by the International Committee of the Red Cross in Geneva, Switzerland. The whole idea of the Geneva Conventions is not necessarily to take a stand on who’s right and who’s wrong in the fighting parties, but simply to reduce unnecessary suffering; and in doing that, trying to, for example, making sure that hospitals are not subject to attack. To make sure that civilians are not subject to attack. To make sure that when a combatant is captured that he or she is treated as a prisoner of war taken care of accordingly so that at the end of the conflict, there could be an exchange of prisoners to make sure that the sick, wounded and shipwrecked are taken care of. So the idea is to try to introduce to the extent possible humanity in wartime. And to say that the right to inflict damage on the enemy is not unlimited, and also to protect cultural property, so there are a whole bunch of rules out there. For example, it doesn’t make sense for soldiers to use bombs that are made of glass, because you take out the soldier out of action, but glass fragments can not be detected. So there’s no way you can get glass fragments out of a person’s body even after the war has ended. So even after the dispute is done and countries are making peace and everybody shakes hands, these soldiers and potential civilians are left maimed for life. The idea was to humanize war to the extent possible. Now in the case of the Geneva Conventions, the main ones that are operating in the field right now, were adopted on 12, August 1949. And the presumption there, which was a fair presumption at the time, was that war mainly at the time was an interesting conflict and you were having a situation of a country’s soldiers under a responsible command fighting another army. And you could have implementation of the Geneva Conventions and have command responsibility and et cetera. In the case of these Islamic states, they have command responsibility and they have military discipline and everything else. But it’s not the kind that anybody is used to seeing because first of all, they don’t seem to put a high premium on the sanctity of life and they’re deliberately targeting civilians and deliberately violating the norms that have been developed over hundred of years in the humanitarian law field and in the laws of order where one can not go below; so they’re operating under a different basis. I wouldn’t make a mistake to say that these terrorists are completely incoherent, masked men and psychotic people. They may have all those elements but they’re much more than that. They are a fully incoherent ideology that is just very much at odds with the minimized civilized norms that we’ve come to expect. And with suicide bombings and everything else, this is completely outside the realm of the Geneva Conventions and it makes it very difficult to say to these people, “Listen, we will respect your side if you respect ours.” There’s no dialogue there in terms of humanity in warfare; so that’s a very big challenge.

 

J. Craig Williams: What level of cooperation is going to be needed among nations in order to bring forth the things that you’re talking about?

 

Lyal S. Sunga: Well, I think a high level of cooperation. Right now, we’re seeing quite a lot of political will to share information and intelligence and military operations. But you can sense, when you read the news carefully and you talk to people, that the cooperation could be much stronger yet. And one of the things that I said in the article that was in the Guardian was that one of the gaps in international law and transnational criminal law and international criminal law is there hasn’t actually even been an internationally agreed comprehensive definition of the crime of terrorism. Part of the reason is that – and there’s not a UN convention on terrorism, there’s about 19 or 20 conventions addressing particular aspects of terrorism. But we don’t have a comprehensive terrorism convention partly because many states feel that well, there are some groups we don’t want to call terrorist groups. Maybe they’re fighting for national liberation, maybe we agree with some of their aims; and we don’t want to be implicated committing a crime under international law or be labeled as a terrorist. Because some of those uses of violence may be legitimate in our view. It’s not difficult to define terrorism, we know it when we see it, we know terrorist acts when we see it. But political will to nail that down has been lacking and much more could be done on that part. For example, the Rome Statute of the International Criminal Court does not have – terrorism is covered here and there by some of the crimes of war crimes, crimes against humanity, genocide; you could say some of these are in essence cover crimes of terrorism. But there’s no crime of terrorism per se set out in the Rome Statute of the International Criminal Court and that’s another gap. The United States is not even partied to that sadly enough. But many countries are and that’s just another gap I could flag that could use attention.

 

Bob Ambrogi: There was a lot of news coverage here in the United States yesterday of the fact that a group called Human Rights Watch has called for the United States government to conduct a criminal probe of CIA torture of terrorism suspects in the past. If we’re talking about the Geneva Conventions, how much does the conduct by – what we might call the white hats or the good guys – play into this? Some of the ways that the United States and other governments have been conducting anti-terrorism operations in recent years have themselves raised questions. So how does that play into this whole equation of enforcing Geneva Conventions in regards to terrorism?

 

Lyal S. Sunga: Well, it’s a very important question and I think many of us internationally were very much appalled by what we considered to be very foolish actions on the part of the George W. Bush government by getting provoked into excess and so-called enhanced interrogation and trying to get legal opinions that legitimized the torture and trying to say we need to do these things. This plays right into the hands, it’s all been said. It’s the best recruiting tool for terrorists because they say, “Look, the gloves are off and we welcome the fight.” That’s what they’re saying right now in Syria, they can’t wait to see Americans’ boots on the ground and the same thing with terrorists in Iraq and elsewhere. It’s difficult because it means one could say, “Why should we abide by the laws of war and the Geneva Conventions if the other side has no intention of doing that?” But the thing is that it’s not that the terrorists deserve such nice treatment – and in fact, we’re not talking about nice treatment, we’re talking about the minimum standard; you don’t torture them, you don’t summarily execute them, et cetera. And the reason is it’s about legitimacy. The Western powers and the rest of the world, the governments that need  to fight terrorism have to win the war of hearts and minds. And that means maintaining the high moral ground, making sure that your actions promote human rights, democracy, and above all, the rule of law in the sense of saying this is how we are different. There are thousands of recruits going. They get sucked into the lure of ISIS, but once ISIS gets beaten, they’re not going to be beaten by dirty fighting. They have to be eliminated on the ground, fair and square, and that’s going to dent their legitimacy and people are going to start realizing that it’s a losing battle on their side. So legitimacy is really essential because getting goaded into overreaction just seems exactly what the Islamic state wants. So it’s not just about idealistic notions of human rights or being nice to people or people are going to be grateful or something like that, no. We’re dealing with very hardheaded people that you could treat them nice or could treat them nasty, they’re going to do the same thing. So that’s not the issue, it’s that we ourselves have to maintain our legitimate approaches to these issues and not get goaded into excess. I don’t know whether I made myself clear on that point.

 

Bob Ambrogi: Very clear. Lyle, we’re about midway through the program. We’re going to just take a couple of moments’ break here and we’re going to be right back to continue this discussion; so please stay with us.

 

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J. Craig Williams: Welcome back to Lawyer 2 Lawyer, this is Craig Williams with Bob Ambrogi. Today with us is Dr. Lyal S. Sunga, head of the Rule of Law program at the Hague Institute for Global Justice in The Netherlands and visiting professor at the Raoul Wallenberg Institute for Human Rights and Humanitarian Law in Lund, Sweden. In our last segment, we had been talking about the tragedy of Paris attacks, terrorism and rules of international law. Dr. Sunga, what can the world expect in terms of taking this fight to ISIS? Is this a fight that can be won or is this a fight that from your perspective and the number of things that you’ve seen in your life, do we have any chance?

 

Lyal S. Sunga: Well, I think we definitely have a chance. I’m optimistic that the fight will be won. Because what’s at stake is our safety and security at home and abroad and it’s a fight that must be won. But it’s going to take time. It’s going to take a lot of commitment and results. But I have no doubt that the recent events and terrorism is on our doorstep and the 9/11 tragedy is still fresh in people’s minds; it shocked the world over and so have all the recent tragedies in many parts of the world. I wouldn’t underestimate the ingenuity of criminal law enforcement, but it could be tightened up a lot. Coordination could be much stronger, intelligence sharing could be much stronger, and there has to be the safeguards to make sure that the people feel safe and not also threatened by government, that government doesn’t give the impression that it’s overly intrusive or that it intimidates. And I’m not just talking about the United States or the Western democracies but all around the world. Heavy handedness does nothing for the fight against terrorism or indeed any other kind of fight. So it has to be done carefully and I think governments are responsible and dedicated enough to carry on that fight. But the key will have to be strong, international and regional corporations and there are many avenues through which that has to be done; and I would like to see much more of that.

 

Bob Ambrogi: Lyle, you’re urging that states update the Geneva Conventions. What specifically do you think should be in there that’s not? How should they be changed to address the modern realities of war as we live it now?

 

Lyal S. Sunga: I want to stress that in terms of the Geneva Conventions, they should be updated. And specifically the fourth Geneva Convention, which is article 33 for people who are interesting in international humanitarian law. For example, prohibits collective penalties and all measures of intimidation or of terrorism. But like I say, the Geneva Conventions were drafted in a time when what we’re envisioning was soldiers on a field or potentially freedom fighters who would be wearing their uniforms on the field and then they would retire at night, this kind of thing; that melted in the civilian population. It’s rather complex, the Geneva Conventions, because it still distinguishes between non international armed conflict, international armed conflict, and in many ways they’re very complex. So the Geneva Conventions should be simplified, should be taken to account that in times of conflict that we’re seeing the kind that is being run by terrorists running around in Syria and Iraq. I wouldn’t be more specific than that at this moment but this definitely needs to be revisited.

 

Bob Ambrogi: Well, maybe this is a naive question but it strikes me that the Geneva Conventions presume that sort of both sides to the conflict are going to have maybe some regard for the rules of war in some way or abide in some way to basic principles of law. And it seems the issue with so many of these terrorist groups is a complete disregard. I think you make this point in your article, a complete disregard for traditional rules of how we go about these things. How can the Geneva Conventions or any kinds of international laws address that kind of complete disrespect for law?

 

Lyal S. Sunga: In fact, you’re right that one side is not respecting law or the law that we are recognizing. They claim to recognize some kind of dictation decrees and norms that go back to the 7th century, but that’s another matter. You’re very much correct to say that this is very much one-sided in terms of respect to the law. But my point would be that the Geneva Conventions are also important to restrain our own soldiers and commanders to make sure that in the war that they carry out and the actions that they carry out that they do follow the rules. So it’s not only to ensure that terrorists are not tortured, but it’s also to maintain the legitimate way in which hostilities are conducted in the field. And as I say, that could substantially help, in my opinion, to make sure that in the global struggle that the legitimacy factor is on the side of law and the rule of law and humanitarian law and human rights. So that may sound very idealistic but it’s not. In fact, it’s about not going down to the level of the terrorist. Because once you go in that direction, in a way, you’ve already lost the war because then it’s brutality against brutality and we don’t want to go there. We’ve seen what that looks like and I don’t need to mention some of the major violations that have been committed by the warring parties that normally do follow the Geneva Conventions. But those kinds of things are brandish, those kinds of examples of, “Oh look, how cool.” So not only does it help to get recruits but they say, “We in our own way are legitimate because we’re just the same as these people are who are backing us in Syria and Iraq, et cetera. So in a way it levels the playing ground in a way we don’t want to see, and the longer it’s going to be a longer fight, it’s going to be about respect and human rights and democracy and rule of law that people are persuaded away from radicalization and you can’t really do that if you throw off the gloves and get down and dirty right away. We’ve got to win the struggle but we have to do it in a way that doesn’t feed the struggle on both sides.

 

J. Craig Williams: Well, we’ve just about reached the end of our program. It’s time to wrap up with your final thoughts and your contact information. So, Dr. Sunga, if you could just summarize and then give our listeners your contact information should they want to reach out and contact you.

 

Lyal S. Sunga: Well thanks, first of all, for inviting me on the show. Terrorism is really something that’s very clear and presents danger and it’s something that’s going to take a lot of time and effort and resources and cooperation to fight. So it’s always important to view this whole issues and the measures against it to the legal end and not to cast law to the wind and to realize that we have to take a very responsible approach to the issue. I thank you very much. I invite people to visit my website, which is www.LyalSunga.com, and there you’ll find a lot of information on what I do and my publications and what I’ve done over the last 25 years or so in human rights, humanitarian law and international criminal law for people who are interested. So thanks again, it’s been a real pleasure to talk to you and your listeners.

 

Bob Ambrogi: Thank you so much for joining us all the way from Tanzania today, we really appreciate it. We’ve been talking to Dr. Lyal Sunga, head of the Rule of Law program at the Hague Institute for Global Justice in The Netherlands and visiting professor at the Raoul Wallenberg Institute for Human Rights and Humanitarian Law in Sweden. Thank you so much for the time being with us today.

 

Lyal S. Sunga: Thanks again.

 

J. Craig Williams: That brings us to the end of our show, I’m Craig Williams, thanks for listening. Join us next time with another great legal topic. When you want legal, think Lawyer 2 Lawyer.

 

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