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Unwinnable War

Glen Newey

‘Nous sommes en guerre.’ Nicolas Sarkozy’s statement on Sunday morning, after meeting François Hollande to discuss the massacres in Paris, echoed his successor’s statement to the French people on Friday evening, which used the g-word four times. Modern statecraft deploys a mobile army of mixed metaphors, as when the ‘they’ who kill ‘us’ are also partly ‘us’. If it’s war abroad, does that mean that Friday’s killers count as combatants, with Geneva Convention rights, and that military action needs legal authorisation? If it’s domestic terrorism, what title does the state have to range beyond its borders, pursuing Isis on foreign sovereign territory?

Isis’s stated ground for the Paris attacks is the French military strikes against it, which President Hollande extended late in September from Iraq to Isis training camps in eastern Syria. As with the US/British operation which seems to have taken out Mohamed Emwazi on Thursday, the legality question, if raised at all, is consigned to a decisionistic limbo: we ‘evaporated’ Emwazi, so what’s not to like? One thing not to like, apart from the plausible claim that these actions are self-defeating in the long run, is that it undermines the claims to moral superiority it’s premised on, and further alienates regional powers whose co-operation it needs. Islamic terrorism is a virus that constantly mutates. ‘War’ against it is not finally winnable. Failure to win calls forth a predictable spiral of outrage and misconceived response.

As far as international law goes, Western states’ unilateral or joint military action in Syria could be legalised on three grounds: a UN Security Council resolution (but that would be vetoed by Russia and China); invitation by Assad (but, unlike with Russia, that has not been forthcoming); or in defence of another state. The US and UK have invoked Iraq’s request for military assistance to justify their intervention in both Iraq and Syria. But, because Isis is not recognised as a state, this ground is problematic. In 2005, the International Court of Justice found Uganda’s intervention in the Democratic Republic of Congo against anti-Ugandan rebels to be illegal – it would have been legal only if the DRC had backed the rebels, but they were among a plethora of anti-government militias active in eastern Congo. Clearly, Assad is not backing Isis. Sovereign states’ title to strike against non-state militias outside their jurisdiction on self-defence grounds remains to be established.

Pressure on politicians, recoiling in horror at the bloodshed, pushes towards a gloves-off approach based on reason of state. The state has reasons that reason itself cannot fathom. Against a background of xenophobia got up by Pegida, Le Pen, Wilders and the rest, we’re in a war whose very unwinnability prompts further self-defeating diktats. After meeting Hollande, Sarkozy, with an eye on returning to the Elysée in 2017, called for a tilt (‘une inflexion’) in French foreign policy towards Syria and Russia in order to smash Isis, even though Assad has caused around 95 per cent of civilian deaths in the civil war. Putin has run rings round occidental policy-makers in Syria, but a bilateral French tilt to Damascus is never going to fly, not least because French foreign policy needs to keep on the right side of the US and Turkey. Debate at this level is over different weapons to fight fog.

terrorism international law

Comments

  • 17 November 2015 at 9:08am
    SpinningHugo says:
    Legality

    It was perfectly lawful. Here is this explained for you

    https://spinninghugo.wordpress.com/2015/09/10/drone-strikes-in-syria/

    It doesn't matter a damn that Da'esh are not a state.
    • 17 November 2015 at 8:07pm
      Glen Newey says: @ SpinningHugo
      You sound very confident about this. I can only counterpose to the legal authority of your blog that of commentators like Philippe Sands QC, and the International Criminal Court, which ruled against Uganda in the case referred to by a majority of 16 to 1. On the substance, I'm puzzled by the blog. It refers approvingly to Carl Gardner, who thinks that it is UN Charter art. 51 that sanctions intervention, even though you say yourself on the blog that this is 'doubtful' for the reasons given by another commentator, David Allen Green. So I don't know whether or not you think the basis is art. 51; at any rate, you don't cite other putative legal grounds, apart from saying that anti-Daesh intervention in Syria is justified because Iraq has invited it. But there is no obvious legal basis for a third party state to assist another in counter-insurgency outside the jurisdiction of either. Gardner thinks art. 51 sanctions allies 'band[ing] together to defeat attacks on one of them, so the Iraqi government’s requests for help make American and British action in defence of its territory unquestionably lawful'. Art. 51 does indeed state that 'Nothing in the present Charter shall impair the inherent right of individual or collective self-defence' ahead of a UNSC disposition of the matter, but that does not entail that the right is of indefinite jurisdictional scope. The ICC stated in the Uganda case that 'The Court does not accept Uganda’s contention that its military actions from early August 1998 to July 1999 can be justified as actions in self-defence. The Court concludes that Uganda has violated the sovereignty and also the territorial integrity of the DRC.' Sands said last year of the proposed intervention, 'Calling this legal argument "wafer thin" is generous on the basis of the evidence that I’ve seen, if indeed there is a justification that exists at all.'
    • 17 November 2015 at 9:21pm
      SpinningHugo says: @ Glen Newey
      1. Sands expressed doubts about whether the UK's given reason of self defence for itself was right. As explained elsewhere by others, he is right about that. He has never expressed any view about the alternative ground that we are acting in defence of Iraq.

      2.Your reliance on the Uganda v DRC is ridiculous, and reveals you haven't read it. It is here

      http://www.icj-cij.org/docket/index.php?sum=643&p1=3&p2=3&case=116&p3=5

      Just read the section on self defence

      -Uganda never tried to justify their actions on that basis, and
      -unlike Iraq, never gave notice to the security council of their acting in self defence.

      3. I would read Carl Gardner again if I were you. He also accepts my analysis, see

      http://www.headoflegal.com/2015/09/10/the-killing-of-reyaad-khan-britains-letter-to-the-un/

      4. If you read my blog you'll see that I expressly say it is not art 51.

      5. "But there is no obvious legal basis for a third party state to assist another in counter-insurgency outside the jurisdiction of either"

      Utter nonsense. If Belgium is attacked friendly countries that are invited to come to its aid also have the freedom action given by acting in Belgium's self defence.

      6. In the above you confuse together quite separate and distinct legal arguments. I don't know who you are, but I am completely certain that you are not a lawyer.

      7. I am indeed very confident about this question of law. Because it is easy and obvious.
    • 20 November 2015 at 7:10pm
      Glen Newey says: @ SpinningHugo
      The legal issue admits of far less clarity than the simple terms in which you – I imagine quite sincerely – frame them. For the benefit of readers who may be misled by the diatribe above, see e.g. Prof. Theo Farrell's article on the legality of anti-ISIS strikes in Syria, which dissects some of the complexities with rather sharper tools than the ones at your disposal. See:
      http://bit.ly/1ruiQy9
    • 21 November 2015 at 11:19am
      SpinningHugo says: @ Glen Newey
      I too would urge people to read Professor Farrell's piece. Farrell is also not a lawyer.

      Read it and see if you can spot any legal analysis in it.
    • 21 November 2015 at 5:32pm
      streetsj says: @ SpinningHugo
      Farrell says that the strikes would be illegal but recognised as legitimate. Does he know what he means? I don't.
  • 17 November 2015 at 5:38pm
    stockwelljonny says:
    You say that the UK is acting under the Iraqi government’s request and authorisation. Where is this request and authorisation documented?
    • 17 November 2015 at 6:05pm
      SpinningHugo says: @ stockwelljonny
      In August 2014. See also link to UN letter.

      https://www.gov.uk/government/publications/military-action-in-iraq-against-isil-government-legal-position/summary-of-the-government-legal-position-on-military-action-in-iraq-against-isil
  • 17 November 2015 at 5:50pm
    vabecassis says:
    Yet another interesting analysis which, however, confines itself to commenting on what it alleges are the errors of the solutions currently on the table.....what I miss and would be much more interestd in reading is an original proposal for alternative ways to solve or, at least attempt to solve, the problem.... much more difficult, I know.
  • 17 November 2015 at 7:34pm
    Roy says:
    Oh well, better do nothing at all then...
    We don't hear the expression "Arab Spring" much these days, do we?

    In some circumstances, and this is certainly one of them, there are no good options, only least bad. I have a couple of Syrian Christian acquaintances with whom I've been discussing the situation there over the last few years. They all agree that whilst the Assad regimes have been politically repressive and economically corrupt dictatorships, it was always at least possible to live a fairly "normal life" there, with little communal inter-faith conflict. Unsurprisingly there's been quite a bit of propaganda recently which tries to overturn this picture of Syria but it's worth taking another look at William Dalrymple's "From the Holy Mountain" which gives an interesting snap of Syria in the 1980s. Of course the Syrians have meddled brutally with Lebanon; they feel that they have a legitimate interest - surely the parallels with Western interventions hardly need pointing out. But at the same time Syria has managed to maintain a uneasy peace with Israel, despite the occupation of the Golan. An ex-intelligence Israeli friend of mine describes Syria as "our best enemy".

    When the Syrian insurgency started we'd already seen the results of the "democratisation" of Libya, Egypt and Iraq - chaos; I'll come back to Tunisia later. Despite the near-certainty of chaos ensuing, the pre-prepared mechanisms were all suspiciously ready - websites, fund-raising bodies etc - and the Turks swiftly rolled out the airport welcome mat and a fast-track taxi service to the jihad. Now we're offering Turkey inducements to help deal with the problems to the creation of which which they themselves were an indispensable assistant. God help us all, it may even accelerate the Turkish application for entry to the EU. The supreme irony is that up to now just about the only group actually doing something about Daesh has been the Kurds and of course the Turks are shitting themselves about that development if it includes additional arms to the Peshmerga.

    Maybe because it happened at the height of the Lebanese civil war everyone seems to have forgotten about the last Islamist insurgency in Syria in 1982. Bashar's uncle Rifaat, Hafez Assad's brother and head of the security services, took care of that pretty decisively even though it required the liquidation of about 20K (some estimates are even higher) members of the Brotherhood and their families and the razing flat of their district in Hama. When Rifaat fell out with Hafez (due to an excess of ambition) the British government were perfectly happy for him to move to London despite his somewhat robust approach to his former job. I believe he now lives in Paris: someone should interview him about the current situation.

    The Battle of Kerbala has been smoldering on since 680 AD. It's worth remembering that the Syrian debacle is just the latest phase of the ongoing war against Iran whose principal adversaries are the terrifying combination of USA, Israel, the Gulf states and Saudi Arabia. Watching many news sources over the two peak days of coverage of the Paris massacres it was salutary to note that the only Muslim leader to offer his condolences was Rouhani. Not that we should be surprised by this of course, however recall that in the aftermath of what we've been accustomed to refer to as "9/11" it was in Tehran that a Muslim populace demonstrated en masse in sympathy with the people of the USA - and a fat lot of good that did for the people of Iran.

    When I hear people waffling about "looking for a negotiated settlement" I feel as though I'm living in a parallel universe. Negotiation is only possible when there's a clear political objective on the part of the insurgents. In the case of Daesh that objective is no less than the establishment of, first, a caliphate in the Middle East encompassing - well, just about everywhere, including Israel and Saudi as the first stage of the global "Islamic" society. How do we negotiate with this position? These people have to be eliminated. Which means killing them, ideally all of them. This requires substantial military force applied quite ruthlessly, as it always has done in these situations.

    As for the hideous spectacle of the Paris attacks and their ilk, perpetrated by people who were born and educated in Europe, what can we conclude? Every time these attacks occur we get the usual weaseling by "moderate Muslims" who assert that "this is not Islam; Islam is a religion of peace." But of course from the point of view of much of the Islamic world there is a mass of sympathy for the terrorism. We often hear pundits suggesting that the solutions must come from within the Muslim community. That would be nice, if only. However whilst the West does nothing to force Israel to address their own crimes against the Palestinians "moderate Muslims" will always be thinking "yes but how come nobody does anything against Israel when they murder more than 1000 Palestinians as they did on the last attack on Gaza?". Solving the Israel/Palestine conflict might not be the answer to all these Islamic insurgencies however it would remove the single most significant unifying factor between the moderates and the jihadis and possibly help effect an internal change.

    Meanwhile why do these second and third generation young people commit these insane acts? I'd say that is actually a lot less complicated than it appears to be. They have been brought up immersed in Western culture (in its broadest sense) and have learned to value much of what it offers, at least as far as its materialistic aspect is concerned. However they have simultaneously been taught by their families and the mosques that they're the inheritors of the Final Revelation, the religion which replaces all others and membership of which, the Umma, trumps all other loyalties. Despite which, if we compare the Muslim immigrant communities with Hindus or East Asians, they have performed abysmally. Personally I'd say that the low economic and educational performance is directly related to the religious affiliation and is reflected in the economic performance of Muslim majority states - excluding those which simply pump their dollars directly from the ground. Even the weapons that these jihadis use to kill the people that they resent are products of kufar technology and industry.

    Resentment is the key factor. These people are torn apart by the contradiction between their inflated sense of themselves as part of (the expression can't be improved upon) "master race" and their abysmally low human performance. This sense of inferiority can only be assuaged by murdering the people on whom they have projected their profound resentment.

    There needs to be a concerted military coalition directed at liquidating Daesh in both Syria and Iraq and ultimately in the other states which are already infected. This necessitates retaining, for the immediate future, the current Syrian regime and state structures. As Daesh comes under pressure in Syria any surviving jihadis will return to their own countries or to other failed states like Somalia or Yemen. Currently the highest proportion of foreign jihadis in Syria and Iraq are said to be from Tunisia. What price Tunisian democracy when they return?

    Apologies for the length and semi-coherence of this post. There's a lot more that can be said.
    • 18 November 2015 at 1:52am
      John Cowan says: @ Roy
      "How do we negotiate with this position? These people have to be eliminated. Which means killing them, ideally all of them."

      Really? I know where you can get Zyklon-B at wholesale prices, very reasonable, for the later stages of the cleanup.

      Calling this "semi-coherent" is giving yourself too much credit. Germany had ambitions to rule the world too, but it was thought sufficient to defeat them.
    • 18 November 2015 at 9:34am
      Roy says: @ John Cowan
      Perhaps you'd like to offer your analysis? How else do you describe warfare other than as "killing"? It's grimly amusing that you refer to the holocaust - perhaps we should have accepted the Nazi's tentative offers of a negotiated settlement. Ask the poor Yazidis if they can see an alternative to killing the membership of Daesh..
    • 18 November 2015 at 9:35am
      Roy says: @ Roy
      Nazis'
  • 17 November 2015 at 10:29pm
    omar ibrahim says:
    Kudos for an extraordinary objective synopsis of what seems to be not only an "unwinable "but also An ""endless"war.
    Two pints deserve further consideration and possible elaboration:
    A- that what was presumed to be a war on "terror" definely turned into a war on Islam
    B-the fact that it started by what was acknowledged , and self proclaimed, as DAESH was soon renamed the Islamic State.
    That change of appellation is note worthy in that it not only names the IS as enemy but as a means to garner popularity and public acclaim by being against that hateful entity Islam.
    This play on names and the underlying rationale behind it was,is will never be incidental nor haphazard.
    It is an official declaration of WAR by the Judo/Christian
    alliance on Islam and its front runners the Arabs!
  • 18 November 2015 at 1:28am
    kessler says:
    Metaphors aside, I disagree with the article about this "war's" being un-winnable. Elimination of incentive, it seems to me, always has been one of the most sucessful military strategies. Quoting Clausewitz, perhaps, but even better Lao Tzu, we need to know our enemy -- walk a mile in his mocassins, as we say over here -- then subvert him, figure out he wants and give him some of that, remove the preconditions of the warfare. Per many such articles we currently are clueless, about all-things-ISIS, who "they" are and particularly what is "their" motivation... This mystification appears to me to be self-serving, on the parts of many journalists & many politicians & many others: we all have been "at-war" in the Middle East for how long? -- for years, decades, centuries, millennia, since Gilgamesh... Surely something has been learned about the motivations there. Is it asking too much to give them some of that, whatever it is that is lacking? -- at least to the disenchanted-youth now headed off in their direction en masse & from so many different locations? -- in the latter case, "a job", may be what is lacking... the answers here may be more simple than we realize...
    • 18 November 2015 at 11:03am
      streetsj says: @ kessler
      Walk a mile in his moccasins - what a great expression. Where is "over here"?
    • 18 November 2015 at 11:05am
      stettiner says: @ kessler
      But that's what Roy says, isn't it? Give them the Jews and we all will live happily ever-after....
    • 18 November 2015 at 9:30pm
      David Gordon says: @ stettiner
      Er, no, Stettiner, what he says is "Solving the Israel/Palestine conflict might not be the answer to all these Islamic insurgencies however it would remove the single most significant unifying factor between the moderates and the jihadis"

      That is not "give them the Jews": that is just resolving the problem that needs to be resolved. Have you heard of negociated peace treaties? Then the Israeli and Palestinian people could live in peace.
    • 19 November 2015 at 1:43am
      kessler says: @ streetsj
      :-) American antipodes, US Left Coast, Edge of the Eye of the Earth the Pacific -- San Francisco, paradise-found -- long way from London... still care, tho, used to live in Southwark...
    • 19 November 2015 at 9:58am
      stettiner says: @ David Gordon
      Yes, David, i've heard of negotiated peace treaties. So have the Israelis, the Egyptians and the Jordanians. Unfortunately, the Palestinian Arabs haven't. The moderates, as Roy calls them, are talking about "67 years of occupation" (Abbas in Geneva last month). The jihadists are talking about annihilation of the Jewish people; they don't give a damn about "Palestine".

      Molenbeek in Belgium used to be a Jewish neighborhood. The new Europeans came and with them the slogan "Jews are our enemies". The socialist mayor called Molenbeek's Jews "stingy". Nowadays Molenbeek is a judenfrei no-go zone and Europe's greatest exporter of jihadists. Obviously, giving them the Jews weren't sufficient.
    • 20 November 2015 at 2:47am
      David Gordon says: @ stettiner
      There we go Stettiner, can't Hasbara get you a new script? Israel always right, Palestinians always wrong, almost everyone else wrong too, particularly people like me who recognise Israel's right to exist, but question the way it goes about existing.

      And, yes, if you lived in what you thought was your country, and then a lot of people came and dumped themselves on top of you, wouldn't you use a phrase like “67 years of occupation”, notwithstanding the original UN resolution that agreed the formation of the State of Israel?

      While we are talking about UN resolutions, what about obeying them all, as well as a few other international norms? - for example, I was inside the International Red Cross headquarters in Geneva the other day, and the rolling news screen pointed out that Israel, by demolishing houses, was in breach of International Humanitarian Law.
    • 20 November 2015 at 9:43am
      stettiner says: @ David Gordon
      Oh, you mean the same International Red Cross which approved Nazi concentration camps after visting Theresienstadt and finding the inmates "not very sympathetic"? The same IRC that for over 80 years denied membership to Magen David Adom? The same IRC which finds it perfectly all right to leave bleeding Jews in a ditch without first aid and calls this kind of behavior "principled and strictly humanitarian"?

      I bet you have blue eyes, too...
    • 22 November 2015 at 10:44am
      David Gordon says: @ stettiner
      Good to see that you are now on the page of the Hasbarah manuel called "whataboutery".

      The ICRC has an exhibition examining its dismal failure over the Nazi concentration camps, looking at why it failed and discussing how to avoid such a disaster in future. I look forward to comparable exhibitions in Israel about the Deir Yassin massacre and the bombing of the King David Hotel. Whataboutit?

      The delay in getting Magen David Adom into the ICRC is due to dispute about symbols, and I would rather that all organisations in the ICRC used the Red Cross symbol, rather chrystals and crescents. The Red Cross symbol is after all only the Swiss flag inverted, and not a religious symbol.

      I need a reference to your "to leave bleeding Jews in a ditch" point.

      Now we are on the whatabout, whatabout an answer to my earlier points about Israel failing to obey UN resolutions, and failing to obey IHL?

      The blue eyes point is beneath contempt. Grey-green, if you must know and no, I am not a stereotypical Aryan in any way.
    • 23 November 2015 at 9:42am
      stettiner says: @ David Gordon
      Your intimate knowledge of the very top secret Hasbara manual makes me think you are a Zionist agent provocateur planted here by Mossad.

      http://dictionary.reference.com/browse/blue-eyed
  • 18 November 2015 at 11:26am
    MadStitcher18 says:
    Let's kill two birds with the one stone: (1) order an air strike to almost anywhere in the Middle East, carrying a precious cargo consisting of the UK's Special Envoy to the Middle East; (2) unload precious cargo. Winnable or what?!
    • 19 November 2015 at 2:49am
      kessler says: @ MadStitcher18
      We'll add-in Donald Trump -- drop that on'em.
  • 18 November 2015 at 8:44pm
    bobind says:
    There has been so much waffling and so many platitudes and so much predictable hand wringing over the grisly events in Paris. The comment by Roy goes straight to the core of the issues. What a relief to read something that is savagely honest. Thank you Roy.
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