The great American justice Oliver Wendell Holmes Jr once remarked that "it is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." The rules of law regulating how civilised societies protect their citizens from aggression were not laid down as far back as the time of Henry IV. They were enacted, in significant part, following the two awful wars of the 20th century in which massive numbers of civilians were targeted for death and murdered in cold blood. The human-rights revolution of the mid-20th century was largely a reaction to the human wrongs of the Holocaust.
The period between the end of the Second World War and now has seen more profound changes in the nature of warfare than occurred from the time of Henry IV to the beginning of the First World War. Weapons of mass destruction in the hands of suicide terrorists with no fear of death and no home address have rendered useless the deterrent threat of massive retaliation. This threat has been the staple of military policy since the days of the Bible. Because suicide terrorists cannot be deterred, they must be pre-empted and prevented from carrying out their threats against civilians before they occur. This change in tactics requires significant changes in the laws of war - laws that have long been premised on the deterrent model.
Consider, for example, the United Nations Charter, drafted in the aftermath of Germany's aggressive war between 1939 and 1945. Article 51 confirms "the inherent right of individual or collective [to] self-defence if an armed attack occurs against a member." The use of the word "occurs" would seem to require a nation, seeking to act in compliance with the charter, to wait until it is actually attacked before it responds in self-defence. But what should a democratic nation do if it becomes aware of an imminent threat of attack by a group of suicide terrorists in a distant part of the world? Surely it should not simply wait until an "armed attack occurs" and then engage in retaliatory self-defence. First, there is often no known entity to attack, since the suicide terrorists have died and the leaders who sent them have gone into hiding among civilians and may well be preparing renewed terrorist attacks. Second, there is no good reason for a democracy to have to absorb a first blow against its civilian population, especially if that blow can be catastrophic. Third, there is little possibility that potentially catastrophic first blows can be deterred by the threat of retaliation against a phantom enemy who welcomes martyrdom.
Despite these new realities, the old UN charter has not been changed, though it is currently in the process of being "redefined". A "High Level Panel on Threats, Challenge and Change" has recommended that despite the "restrictive" language of Article 51, a nation should be free to take proportional military action against an "imminent" attack if no other means are available. But it also proposed that if a threat, though catastrophic and highly likely, is not imminent, a nation may not resort to preventive self-help. Instead it must seek the approval of the Security Council. In other words, pre-emptive self-defence against imminent threat is consistent with Article 51, but preventive self-defence against more distant, though equally certain, threats requires approval by the Security Council. While this distinction makes sense in theory, it fails to recognise that the Security Council is a highly politicised body, with veto-power in the hands of nations that have long supported terrorism, at least on a selective basis. No nation, facing a highly likely catastrophic threat - even if it is not imminent - will rely on the whim of other nations with agendas different from its own. As the former US Secretary of State Dean Acheson once, aptly, put it, "The survival of states is not a matter of law." States will do what they deem necessary, not only to ensure their own survival, but also to protect the lives of their citizens from catastrophic threats.
Consider, for example, the developing Iranian nuclear threat. The Iranian leadership has threatened to attack Israel and American targets. If Iran gets close to having a deliverable nuclear weapon, and if one of its target nations has the capacity to destroy its nuclear programme the way Israel destroyed the Iraqi reactor back in 1981 - with one air-strike and a single casualty - it should have the legal right to do so. This would be especially so if the Security Council refused to do anything to stop Iran because of self-serving Russian or Chinese vetoes. We are not yet at that decision point, and it is unlikely that the Iranian nuclear threat can be ended by surgical air strikes, but international law should authorise preventive self-defence if the threat is cataclysmic and relatively certain, even if not imminent, and if it can be abated with few civilian casualities.
In any event, the UN report "sees no need to amend Article 51" since it can be reinterpreted to permit states to take pre-emptive action against imminent threat, but not to take preventive action against longer-term threats. Even the recommended reinterpretation does not have the force of law. It is merely the opinion of a high-level panel which has received no formal approval by the United Nations. It would be far better to change Article 51 so as to there is an apparent allergy to changing old laws, whether they go back to Henry IV or to the post-World War II period reflect the new realities.
The laws of pre-emptive and preventive self-defence are but one example of the legal sclerosis from which we are suffering in the war against terrorism. The human-rights rules that were enacted to protect civilians are now being turned on their heads by self-proclaimed human-rights groups. Instead of being a shield for innocent civilians, they are being used as a sword by terrorists against civilians. Terrorists deliberately hide among civilians, most often civilians who support them. In order to prevent the terrorists from carrying out their threats, democratic nations must often take actions that endanger some civilians. For example, when coalition forces targeted Abu Musab al-Zarqawi and his "spiritual adviser", Abu Abdul-Rahman, they inadvertently killed several civilians, including a child. This was not the first time that targeting terrorists has resulted in collateral casualities. When the US targeted Abu Ali, known as Qaed Salim Sinan al-Harethi, in Yemen in 2002, they also killed five other people, at least some of whom were probably al-Qa'ida members or supporters. Israel, as well, has caused the deaths of civilians in its efforts to pre-empt terrorist attacks by targeting "ticking bomb" terrorists as well as terrorist commanders who were the equivalents of Zarqawi and Rahman.
Human-rights organisations often fail to distinguish between civilian deaths accidentally caused by democracies despite their best efforts to avoid them, and civilian deaths deliberately caused by terrorists who seek to maximise civilian casualties by constructing anti-personnel bombs, designed to kill as many innocent people as possible, and by specifically targeting crowded buses and other soft targets. These human-rights organisations blink at the reality that terrorists seek not only to maximise civilian deaths among their enemies, but also seek to maximise civilian deaths caused by their enemies, even if the victims are their own supporters. As one European diplomat told The New York Times, the terrorists understand the "harsh arithmetic of pain". Enemy "casualties play in their favour" and casualties inflicted on their own people by the enemy "play in their favour".
By condemning all targeted killing of terrorists, human-rights groups actually increase the risks to civilians. The law should permit the targeting of individuals who are actively engaged in terrorist planning and actions, so long as it is highly likely that the target is an actual terrorist, that the number of likely civilian deaths is proportional to the likely civilian deaths that would have been caused by the targeted terrorists, and that there is no other alternative - such as arrest - that is feasible under the circumstances. The law should also cast the blame for unintended civilian deaths caused by democracies on the terrorists who deliberately hide among civilians using them as "shields". The domestic law of most democratic nations does precisely that. If a bank robber takes a teller hostage and uses him as a shield against the police, and if the police, in an effort to shoot the robber who is firing from behind his shield, kills the shield, it is the robber who is guilty of murder, even though it was the policeman who fired the fatal shot. The same should be the case in international law.
Next, consider the problem of what to do with captured "prisoners" who are believed to be terrorists. This vague category of detainees is comprised of several different sub-groups. There are those who were captured in the course of military action in a foreign country. The United States and its allies captured Taliban "soldiers" and those fighting along side them in Afghanistan. A few wore ersatz uniforms; most did not. Some were just in the wrong place at the wrong time. Then there were admitted members of al-Qa'ida, ranging from Khalid Sheikh Mohammed, the alleged number two or three man in the organisation, to Zacarias Moussaoui, a terrorist wannabe who may or may not have been the "20th" 11 September hijacker. Some of the detainees are believed to have valuable real-time information that could save lives. Others are simply terrorist pawns willing to do whatever they are told, even if it entails suicide. Inevitably, some, probably, are completely innocent and not dangerous.
The problem is that the current laws regulating the detention of combatants are near useless when it comes to this motley array of detainees. These detainees simply do not fit into the old, anachronistic categories. Most are not classic prisoners of war. They were not part of a uniformed army under the command of a nation. But neither do they fit in to the classic definition of "unlawful combatants". They are not spies or saboteurs, as those terms have been understood in the context of conventional warfare. Nor are many of them simple "criminals", subject to ordinary trials under the domestic law of crimes. They comprise a new category - or set of categories - unto themselves. They cannot be held as POWs until the end of the war, because this is a war that will never end. They cannot simply be released, because many of them would quickly volunteer to engage in suicide terrorist missions against their former captors, as some already have done. Most cannot be tried as criminals, because their actions took place outside the jurisdiction of the detaining nation. Those who have valuable, real-time information will be interrogated, and - short of the absolute law against "torture" - there are few, if any, rules governing the nature of permissible interrogation when the object is not to elicit "incrimination confessions" for purposes of criminal prosecution, but rather to obtain "preventive intelligence" for the purpose of pre-empting future terrorist attacks.
Should the same rules that govern the interrogation of ordinary criminal suspects be applicable? Or should more latitude be afforded to interrogators in the preventive context? Should sleep deprivation be authorised? Loud music? Alternating heat and cold? Uncomfortable and/or painful seating? What about truth serum? False threats? We know that the United States has used "water boarding" - a technique that produces a near-drowning experience but no physical after-effects - on Khalid Sheikh Mohammed, a high-ranking al- Qa'ida detainee. Is that categorised as torture? I certainly think so, but the United States government apparently does not. We need rules even for such unpleasant practices.
There is today a vast "black hole" in the law. It is this hole that accounts for Guantanamo, extraordinary renditions and other phantom places and actions about which we know nothing. As a lifelong civil libertarian, I strongly oppose such gaps in the law. The rule of law requires that all governmental action be subject to legal constraints. The refusal to change old laws that do not fit new situations is bad for human rights and dangerous to democratic accountability.
Nor does it help the situation when Amnesty International and other human-rights groups exaggerate the problems and cast all the blame on democracies that are seeking - sometimes by questionable means - to keep their citizens safe from terrorists. Anne Fitzgerald of Amnesty recently compared the alleged terrorists being detained by the US and its allies to the "disappeared" in Argentina during the Junta. The comparison is obscene. The disappeared in Argentina were mostly political opponents of the Junta, many of whom were tortured to death and dropped into the ocean from aircraft. Credible sources estimate that as many as 30,000 people may have been killed. Pregnant women had their babies ripped from their wombs so they could be adopted by childless friends of the Junta. There is no evidence of anything even close to this being done by the United Sates today in its sometimes excessive efforts to prevent terrorism. The problems are bad enough without the need to exaggerate them for political and ideological purposes.
Human-rights groups undercut the real interests of human rights when they exaggerate the faults of democracies and minimise the faults of terrorists. Most democracies seek to operate within the rule of laws, and laws must realistically reflect the desirable balance between the legitimate needs of security and the equally legitimate claims of human rights. Striking this balance is a daunting task, and it is in the nature of such balances that few are ever satisfied that it has been properly struck. It is far easier to stick with the comfortable old ways, even if it produces hypocrisy and gaping holes in the law.
Laws must change with the times. They must adapt to new challenges. That has been the genius of the common law. Ironically, it is generally the left that seeks change in the laws, while the right is satisfied with Henry IV. Today it is many on the left who resist any changes in the law of war or human rights. They deny the reality that the war against terrorism is any way different from conventional wars of the past, or that the old laws must be adapted to the new threats. The result is often an unreasonable debate of extremes: the hard left insists that the old laws should not be tampered with in the least; the hard right insists that the old laws are entirely inapplicable to the new threats, and that democratic governments should be entirely free to do whatever it takes to combat terrorism, without regard to anachronistic laws. Both extremes are dangerous. What is needed is a new set of laws, based on the principles of the old laws of war and human rights - the protection of civilians - but adapted to the new threats against civilian victims of terrorism.
The President of the supreme court of Israel, Aharon Barak, in deciding that torture could not be justified even for purposes of securing information that might prevent terrorism, wrote the following lines: "[It] is the destiny of democracy that not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they [add to] its strength..."
But, while it may well be necessary for democracies to fight terrorists with one hand tied behind their backs, it is neither necessary nor desirable for a democracy to fight with two hands tied behind its back, especially when the ropes that bind the second hand are anachronistic laws that can be changed without compromising legitimate human rights. The laws must be changed to permit democracies to fight fairly and effectively against those who threaten its citizens. To paraphrase Robert Jackson, who served as the United States chief prosecutor at Nuremberg - the law must not be "a suicide pact".
Alan M Dershowitz is Professor of Law at Harvard University, and the author of Preemption: A Knife That Cuts Both Ways (Norton, £15.99)