No issue has been the source of greater trans-Atlantic division during the last eight years than international law and counter-terrorism. The policies associated with the Bush administration’s “war on terror” — including detention of “enemy combatants” at Guantanamo Bay, coercive interrogation rising to a level that most Europeans would see as torture, the holding of prisoners in secret “black sites” or their rendition to countries that are know to use torture — have undermined the U.S reputation as a supporter of international law, alienated European publics and, arguably, worked as a recruiting sergeant for the very people the policy has aimed to defeat.
With an Obama administration now likely, many Europeans can’t wait to see Guantanamo Bay closed and for the U.S to adopt a different, less kinetic counter-terrorism policy.
But Europeans would do well not to get too ahead of themselves. The Illinois Senator has made clear that if he is elected he will continue to target terrorists where necessary. Last year, Senator Obama said he would “wage the war that has to be won”, with a strategy that includes “developing the capabilities and partnerships we need to take out the terrorists” while also “engaging the world to dry up support for terror and extremism”.
In other words, his administration is likely to adopts what Anthony Dworkin of the Crimes of War Project calls a “a mix of crime and war”, a hybrid model that combines existing legal norms from American constitutional law and the laws of armed conflict. In an essay, Dworkin – son of noted American legal philosopher Ronald Dworkin – lays out what Obama’s counter-terrorism policy will likely look. For example, an Obama administration may restrict all US personnel, including CIA agents, to those interrogation techniques listed in the Army’s interrogation field manual.
But Dworkin goes further, underlining that an incoming administration is likely look to its European allies for tangible assistance. For example, if the US closes down Guantanamo Bay what should be done with those detainees – around 50 – that the US would like to release, but who cannot be returned to their home countries because they would be likely to be tortured? “The US will look to Europe to absorb some of these men”, says Dworkin. He suggests that European governments should offer to take symbolic numbers of these prisoners, for example the Uighurs, as long as the U.S takes some ex-prisoners too. This could serve as the opening of a new chapter of trans-Atlantic cooperation on counter-terrorism.
The key, though, to success is for Europe to make small positive steps rather than making unrealistic demands and expecting them to be acted on immediately, like demanding that the U.S immediately join the International Criminal Court. Instead, Dworkin suggests beginning with “a wider reaffirmation of common principles”.
This, the war-crimes fighter thinks, could include the following principles: no one can be held for an extended period without charge except in situations of national emergency or armed conflict; no prisoner should be held for an extended period without his name and place of detention being publicly confirmed; no prisoner should be subjected to torture or cruel and inhuman treatment; no one should be transferred to any country where they face a real risk of being tortured; no one should be transferred to another country if they will be detained without due process.
Such declaration, to work, would – in my view – have to be wrapped together with a clear reaffirmation of the need to confront terrorism and not only through judicial means. But to my mind, Dworkin is beginning to do what few others have until now, namely lay out a practical way forward for trans-Atlantic counter-terrorism policy.
