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Guerre di civiltà, inciviltà della guerra

Why Counterterrorism Mocks the Laws of War

Stephen Holmes
p. 103-113


The proven inability of the Geneva Conventions and other codifications of the laws of war to introduce accountability into Western counterterrorism policy is due, first, to inherent weaknesses in just war theory, especially the unsustainable premise that how we fight (ius in bello) and why we fight (ius ad bellum) can be kept logically distinct and, second, to the impossibility of applying a set of rules developed for wars that were expected to end and be replaced by peace to wars that can, in principle and practice, never end. The futility of insulating how we fight from why we fight becomes especially clear when we consider the tactics that political leaders and military planners are willing to countenance when faced with averting a nuclear attack by a terrorist group on a major urban center, especially on the capital city where political leaders live together with their families. The futility of insulating why we fight from how we fight is nicely illustrated by the advent of drone warfare, where low casualty rates create an incentive for mission creep and increasing involvement in remote struggles with only an anemic connection to the war-making power’s core national security interests. In addition, the classical laws of war assume that war and peace are twinned concepts and that all limits on how we fight are rooted in a two-part understanding that serving in the enemy army is no crime and that war will be followed by peaceful coexistence between former belligerents. The irrelevance of these assumptions for the war on terror helps explain the impotence of the laws of war as a regulator of that conflict. The conclusion to which this argument leads is that counterterrorism must orient itself to the extent possible toward the fundamental premise of the law-enforcement model for managing violence, and that is the individualization of culpability, a premise and a practice unknown to «war».

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1Can the fight against international Salafi terrorism be effectively pursued within the bounds of domestic constitutionalism and the international laws of war? The answer is yes and no. This is arguably the most important theoretical and ethical question raised by contemporary counterterrorism policy as it is being developed and implemented in Europe and the United States. The question needs to be asked because many of the practices adopted by contemporary democracies, such as military and police detention to prevent the commission of future crimes and resort to reduced-procedure military trials for terrorist suspects, represent prima facie violations of well-established rule-of-law norms. Formulated more broadly: Does classical liberalism provide a workable theoretical framework for national security in the age of terrorism? I will argue that the liberal principles embedded in the modern law of armed conflict are much less useful in this respect than those embedded in modern criminal law and criminal procedure.

2The factors that make this an important and difficult question, in any case, include: populist pressures for illiberal policies in the wake of terrorist atrocities, the difficulty of reconciling a closed demography with an open economy, globalized communication, transportation and banking networks made easily accessible to homicidal conspirators, a laxly regulated international free market (both aboveboard and clandestine) in dangerous weaponry, the ongoing and consequential political collapse of Iraq, Syria, and Libya, the spillover effects of current proxy wars between Iran and Sunni-Arab states, beneath-the-radar self-radicalization of Internet-surfing second-generation Muslim youth living estranged lives in the West, and the surfeit of soft targets especially in urbanized areas of Europe and America, including vital infrastructure vulnerable to cyber-attack and which cannot all be hardened, certainly not simultaneously, not to mention the ultimate nightmare of a nuclear device smuggled into a major urban center in Europe or the U.S.

3Classical liberalism, as an approach to both domestic and international politics, did not evolve to meet this ensemble of threats. But if inherited rule-of-law norms need to be violated in order to respond effectively to today’s threat environment, can such violations be given a principled (rather than ad hoc) justification? And what will this justification be? This question cannot be answered by the history of ideas. Nevertheless, attempts to answer it can be enriched and raised to a higher level if informed by a scholarly reexamination of classic liberal arguments for sticking to rule-of-law norms (including nineteenth- and twentieth-century codifications of the laws of war) despite strong pressures to put them aside under emergency conditions. A plausible historical argument can be made that the emergence, evolution, and survival of liberal-democratic systems would be incomprehensible if their core institutions and binding treaty obligations made no positive contribution to national security. This may be true even and especially when violent sub-state groupings with «idealistic» (sometimes religious) motives, rather than rival states or individual criminals, pose the palpably greatest threat to the West’s physical security. Indeed, nineteenth-century liberalism, roughly speaking, adamantly denies that successful counterterrorism requires the tradeoff between liberty and security that is now commonly assumed to be self-evidently required. But the question remains: Has jihadist terrorism made obsolete a principled liberal approach to managing the most dangerous forms of social violence?

4Among the related questions that political theorists should be addressing today are these: Can secrecy be made compatible with accountability? Can the democratic right of citizens and the press to examine government action be reconciled with the operational imperatives of covert operations conducted by national-security agencies within «the deep state»? Can mass surveillance designed to intercept terrorist plots be conducted in a way that is both effective and respectful of rights of individual privacy? Can democratic political systems insulate counterterrorism policy from partisan politics and electoral posturing? How can the powerful public emotions of fear and anger, insecurity and the craving for vengeance, be tapped as a source of support for counterterrorism policies without being manipulated for political purposes? And how can counterterrorism officials be compelled to speak clearly about the inevitability of risk-risk tradeoffs (e. g., the potential downsides of hardened cockpit doors) even though bureaucratic and especially electoral incentives naturally lead to their concealment?

5Answering such questions and drawing out their full implications, I believe, should be among the primary focuses of political theory today. This article, which focuses on the inherent difficulty of regulating counterterrorism by the classical laws of war, is a modest contribution to that effort.

1. Justifying Violence by Invoking Rights

6Classic theories of the just conduct of war, specifying the rights which should be accorded to civilians and soldiers placed hors de combat, were developed in the context of symmetrical war. My aim here is to probe the weakness of the rights afforded such ideally protected groups when government lawyers apply just war theory to asymmetrical war, especially to the so-called war on terror.

7I will be focusing on the American practice of militarized counter-terrorism because that is the experience I know best. But the theme is relevant to the other liberal democracies facing the same threat of international jihadist terrorism.

8Before turning to the fragility, in the war on terror, of the rights ostensibly afforded protected groups by the laws of war, I need to address a preliminary point, namely that rights in general are much less «innocent» than is commonly assumed. Conspiracy theories about the American invasion of Iraq in 2003 («it’s all about oil!», «it’s all about Israel!») have proven very attractive to some because they serve to distract attention from the embarrassingly obvious fact that the war was publicly justified (and strongly supported by many whose acquiescence was decisive) on the grounds that the human rights of Iraqi citizens needed protection from Saddam’s brutal police state. Formulated more generally, rights are never beyond reproach for the simple reason that they furnish all-too-convenient moral justifications for the use of force. The image of rights as purely defensive barriers or shields is therefore highly misleading. A right is a culturally and socially constructed trip-wire. When a legally recognized right is violated, force can be legally deployed against the violator. This makes the relation between human rights and war inherently ambiguous. Humanitarian efforts to limit the barbarism of war routinely invoke human rights in this good cause. But political theory, taking a broader view, needs to shine a light on the «bello-genic» potential of rights protection, something that the recent history of humanitarian intervention should have by now made painfully obvious. Rights not only justify violence, they also provoke violence. A right is a power and the exercise of power typically produces some level of resentment and often a desire for retaliation. This is emphatically true of exercises of power justified by the need to redress or prevent violations of human rights.

9Liberalism has developed two legal and normative frameworks to regulate collective responses to violence: the criminal law (both substantive and procedural) and the laws of war. Neither of these frameworks was developed to deal with terrorism which is sui generis. Bank robbers do not commit suicide to attract more recruits to their political cause and terrorism is a not a conflict between states. Domestic insurgencies, usually classified as «non-international armed conflicts» (NIAC), have some of the same sui generis qualities as terrorism; and indeed insurgencies frequently resort to terrorist tactics. But international Salafi terrorism, which is our major concern today, is quite unlike a domestic insurgency, and thus international law efforts to regulate responses to the latter do not tell us much about how to regulate responses to the former. In any case, because terrorism is neither a criminal act nor an act of war, but rather something in between, liberal policy makers remain uncertain about which set of rules should regulate the so-called war on terror. This quandary has had the deplorable consequence of leaving counterterrorism weakly disciplined and largely unaccountable in practice.

10In America, at least, the debate about rules bleeds easily into a debate about which government agency (the FBI, the Pentagon, or the CIA) should take the lead. The dominant place of the Department of Defense in the armed wing of America’s federal bureaucracy has meant that the obvious differences between warfighting and counterterrorism have been no obstacle to defining counterterrorism as «war». This classification may seem merely verbal, but it has been highly consequential. For instance, policemen attempting to apprehend a criminal hiding within an apartment building are not allowed to blow up the building and kill its civilian inhabitants. Such severe limitations on permissible collateral damage do not apply to the battlefield. As a consequence, classifying counterterrorism as warfighting rather than crime-fighting is part of an concerted effort by the American national security establishment to shed what it considers overly liberal restrictions that «tie its hands» in the war on terror. This loosening of restrictions on the conduct of counterterrorism is taken a step further by postulating that the war on terror differs from other wars because every one of our enemies in this conflict is a war criminal, ineligible for the ius in bello protections ideally accorded to ordinary enemy combatants.

11Problems with applying classical ius in bello norms to asymmetrical wars are not wholly unique but rather reflect problems with applying ius in bello norms to symmetrical wars as well, even though the problems are much more acute in the asymmetrical case. It needs be acknowledged, in any case, that these problems reflect fundamental weaknesses in just-war theory in general. The very distinction between ius ad bellum and ius in bello on which the theory of just war hinges is itself highly problematic. Ius ad bellum, according to the classical theory, refers to the justice of the war itself. For example, a war fought in self-defense is a «just war» because every nation has a right to defend itself against aggression. Ius in bello, by contrast, refers to the rules that combat soldiers are obliged to follow in the conduct of hostilities: it is forbidden to torture or kill prisoners, for example, or it is forbidden to deliberately target civilians.

2. The Interdependence of How We Fight and Why We Fight

  • 1 Walzer, 1977.

12In his classic work on the subject, Michael Walzer argues that the ius ad bellum rule of collective self-defense is meant to defend the «common life» of our exclusive national community while ius in bello norms are meant to defend our «common humanity»1. The ius ad bellum versus ius in bello distinction is usually deemed pivotal to the laws of war because it is typical in war for both sides to be sincerely convinced of the justice of their cause. Hence the laws of war ask soldiers to put aside the rightness or wrongness of each side’s cause and agree to certain rules of common humanity that should be applied even to those whose cause is unjust.

13The problems with this construction are legion. For one thing, the ius ad bellum norm of collective self-defense is extraordinarily permissive and elastic because the «self» which is being defended can swell at whim to include, for instance, the remote property interests of the remote allies of remote allies. Second, ex ante justifications of war (ius ad bellum) are highly ephemeral since war is opportunistic, and war aims constantly evolve in the course of any armed conflict. This makes the very idea of a just or justified war highly problematic. A war initiated for a cause that turn out to be unfeasible will be happily continued for a cause subsequently discovered and not even mentioned or contemplated at the outset. The same skeptical view of ius ad bellum follows from the observation that different actors on each side often have different (and sometimes mutually inconsistent) war aims. Since it is highly unlikely that all these war aims will be just, it is highly unlikely that wars are ever just in the strong sense of motivated by justice.

14In war, as in the rest of human endeavor, underlying motivations and public justifications sometimes diverge. Indeed, it is typical for war-makers to hire justification-makers to lend a patina of respectability to predatory wars. But why take ius ad bellum seriously if it can be bought? Furthermore, human beings regularly and retrospectively inflate the justice of any war that cost them a great deal, since walking away from «sunk costs» is not part of ordinary morality. For example, Abraham Lincoln, after realizing how many hundreds of thousands of lives were lost in the American Civil War ramped up the rationale for the war to ending chattel slavery. He had no such war aim in mind when the conflict began. Only such a highly moral cause could possible justify all that slaughter, however. So how can a war aim that is coined after the fact turn a high-casualty conflict into a just war?

15In the war on terror, ius ad bellum becomes additionally problematic. The right of self-defense against invisible micro armies conceivably armed with nuclear weapons can easily justify the «one percent doctrine», meaning the theory that even a minor possibility of a catastrophic attack justifies a preemptive strike. This was more or less the argument adduced to rationalize the 2003 invasion of Iraq. There was a remote possibility that Saddam Hussein might develop nuclear weapons. There was also a remote possibility that Saddam might sometime in the future give these weapons to Osama bin Laden who might, at some unspecified future time, launch a no-return-address nuclear attack on the United States. This convoluted causal speculation was apparently enough to make the invasion of a Iraq, a country that had never committed an act of aggression against the U.S., into a «just war» in the ius ad bellum sense. A domestic parallel would be the following. Because I suspect that you may sometime in the future purchase a gun and then sometime later give that gun to someone who might just possibly shoot me, I am justified today in shooting you. Anyone who reasoned this way in a domestic context would be better off pleading insanity rather than self-defense. But when just war theory, with its elastic concept of self-defense, is applied to the war on terror, such absurd rationalizations seem perversely legitimate.

16It can be added here that just war theory allows the side that is ostensibly defending itself against «unprovoked» aggression to continue hostilities until the threat is removed, the enemy surrenders and «peace» is restored. In the war on terror, unfortunately, this principle is a formula for endless war, because weapons of compact destructiveness cannot be un-invented and continue to proliferate, because aggrieved adventurers willing to risk their lives will always exist, and because terrorists do not belong to the kind of hierarchical organization which can enforce a coordinated «surrender» on its own partisan warriors.

17The war on terror explodes the premises of ius in bello doctrine as well. For example, what response can be «proportional» to a hypothetical future attack on a major Western city using a smuggled nuclear device? Proportionality assumes some capacity to measure the harm inflicted by the enemy, something impossible when dealing with threats that have not yet materialized and that must be prevented from taking place.

  • 2 Walzer, 1977: 21.

18Michael Walzer’s claim that ius ad bellum and ius in bello «are logically independent» is highly debatable2. Why we fight and how we fight cannot be so clearly separated from each other. The rules which combatants voluntarily accept depend essentially on the reasons why they are fighting in the first place. In the war on terror, this inextricable connection between how we fight and why we fight means that militarized counterterrorism has an inevitable tendency to overleap all limits postulated by theorists and codifiers of International Humanitarian Law (IHL). For example, if Washington, DC, where American leaders live with their families can potentially be obliterated without warning by a surprise nuclear attack by non-state actors who cannot be deterred, there will be no methods of war-making that such leaders will consider out-of-bounds.

19It should be mentioned in this context that «security» is a highly emotional state of mind, the flip-side of «insecurity». Terrorism, by definition, creates fear that is disproportional to the actual harm that terrorists can inflict. It is also a tactic aimed explicitly at neutralizing the military advantage possessed by the better armed side in a conflict and thus creating a sense of acute insecurity among those who had previously felt themselves well-protected by an ability to deter the aggressive intentions of hostile nation-states. The possibility that WMD could be smuggled clandestinely into a densely populated Western city introduces an element of nervous hysteria into decision-making councils, making an emotional overreaction, such as we saw after 9/11, almost inevitable. This is how the George W. Bush administration argued: Because we cannot wait for the smoking gun to be a mushroom cloud, we have to invade Iraq before we have any evidence that such an act will contribute in any way to America’s national security. But adopting «regime change» as a counterterrorism strategy is patently absurd since the military overthrow of dictators will typically, at the moment of regime collapse, destroy command and control over amply stocked weapons depots, flooding the international clandestine arms market with lethal equipment, including ground-to-air missiles, that make the terrorist threat greater than ever.

3. The Principle of Distinction Explained

  • 3 Witt, 2013.

20The central pillar of ius in bello theory is the principle of distinction, namely the all-important difference between combatants and non-combatants or belligerents and civilians. To understand why this distinction is typically ignored and overridden in the war on terror, we need to look first at its historical origin. It goes without saying that legal restrictions on the way soldiers treat civilians were not written into international codifications of the laws of war because of the irresistible lobbying power of potential civilian victims of war crimes. The laws of war, as historian John Witt helpfully explains, were indirect expressions of «the hard hand of war», written in pursuit of military objectives and accepted by commanders solely for that reason3. A good example is the prohibition on torturing prisoners, a regulation adopted and enforced by military leaders who wished to encourage reciprocity and to lure enemy troops to surrender without a fight.

21Something similar can be said about the distinction between combatants and non-combatants. A field commander has to control his potentially unruly troops who would definitely prefer to pillage an undefended village and rape its female inhabitants than face an armed force with the desire and capacity to kill them. As a result, commanders need to enforce a very strict norm against deliberately targeting civilians and wasting ammunition on non-combatants in order to compel their forces to face the enemy’s fire. This «realist» account of the origin of the principle of distinction helps explain why ius in bello norms have generally exerted little constraint on air bombardment, even after the ability to hit targets accurately increased, simply because bombardiers need not be forced, like ground troops, to forego the counterproductive temptation to pillage weakly defended civilian targets.

22It is also worth recalling that in the eighteenth century, when the principle of distinction became widely recognized as a symbol of civilized warfare, ius in bello theory was regularly invoked to justify genocide. Because the American Indians indiscriminately slaughtered women and children on the frontier, they were classified as uncivilized savages by the European settlers. As uncouth barbarians who did not respect ius in bello norms, they could be «justly» exterminated. In other words, ius in bello norms were invoked to release the white man from operating under ius in bello norms. This is the very same permissive logic by which militarized counterterrorism operates today, since jihadists are the uncivilized savages of the contemporary world. The «right» of civilians not to be targeted has been cleverly repurposed into a justification for conducting war in a way that foreseeably results in civilian deaths that need not even be counted.

23The ius in bello necessity principle also imposes little or no restraints on militarized counterterrorism. The principle is usually interpreted to mean that killings are not allowed if less destructive means of achieving legitimate military objectives are available. A good example is the policy of using drones to kill those terrorist suspects who cannot be captured. If capture, which would certainly qualify as a less harmful way of incapacitating terrorists than assassination, proves impossible, according to this logic, killing is morally and legally permitted. But a moment’s thought reveals that the posited «impossibility» of capturing suspected terrorists is highly artificial and contrived. Suspects can be «impossible» to capture simply because we have not invested sufficient resources in our ability to capture them. This is a choice not a matter of impersonal fate. But how can we invoke an incapacity which we have voluntarily created to justify the loss of the basic right of others to defend themselves against mistaken-identity executions?

24The necessity principle is also commonly invoked to justify harsh techniques of interrogation. If torturing a prisoner is the only possible way to extract actionable intelligence about a pending terrorist attack, then torture is justified by the ius in bello principle of necessity. But what if torturing prisoners is the «only» way to extract militarily vital information because of our earlier choices about investing scarce resources in high-tech surveillance devices, for example, rather than in foreign language training? How can such a «necessity», created by our own actions, justify the harms inflicted on individuals who are clearly hors de combat? Although such a bogus justification fails both morally and logically, politically it succeeds well enough.

4. Keeping Open the Path to Peace

25Another important source of ius in bello norms is the expectation that war will be followed by peace and that the belligerents will have to coexist after the war is over and peace is restored. This explains why the Lieber Code, written to govern the conduct of Northern troops during the American Civil War, was the first great codification of the laws of war. The inhabitants of both North and South expected to live side-by-side as neighbors after this terrifyingly bloody war was over, whatever its outcome. When belligerents, such as the Americans and Japanese in World War II, do not expect to live together after the war, they have a much weaker incentive to restrict the means they adopt to defeat their enemy. Obviously, Western governments «at war» with international jihadists have no plans to live together peaceably with the enemy. Those Israelis and Palestinians who contemplate living together with the enemy after hostilities have ceased predictably support strong ius in bello restrictions on how the battle is conducted, while those who neither want nor expect peaceful coexistence in the future are much less likely to endorse norms that prohibit fatally stabbing random Israeli civilians or shooting incapacitated Palestinians in the head.

  • 4 Instructions for the Government of Armies of the United States in the Field, prepared by Francis L (...)
  • 5 de Vattel, 2008: § 174.

26The centrality of the expectation of peace to the development of ius in bello norms is easy to demonstrate. For example, even though lethal deception in wartime is ubiquitous, the kind of lethal deception that makes the transition from war to peace more difficult is traditionally banned. An example of legally permitted deceptive signaling in wartime is feigning a disorderly retreat to lure opposing forces into an ambush where they will be killed, wounded or captured. A classic and intuitively repugnant example of legally impermissible deceptive signaling in wartime (called «perfidy») is holding up a white flag with the aim of lowering the adversary’s guard. Perfidy is banned because it destroys the value of symbols typically employed in the search to negotiate an end to war. Article 16 of the 1863 Lieber Code says this explicitly: «Military necessity [...] admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult»4. The idea that the way we fight should be restrained for the sake of keeping open the path to peace (reestablishing peace being an essential element of why we fight) was already a commonplace in eighteenth-century treatises on the law of war. For example: «the desire to spare the effusion of blood will by no means authorize us to employ perfidy, the introduction of which would be attended with consequences of too dreadful a nature, and would deprive sovereigns, once embarked in war, of all means of treating together, or restoring peace»5.

  • 6 The Hobbesian basis of the classic laws of symmetrical war is found here: «it is a precept, or gen (...)

27Such passages suggest the originally «Hobbesian» nature of the laws of symmetrical war. The primacy of the right of self-defense in the laws of war is unequivocally Hobbesian. And although in a formal sense there can be no crimes in the state of nature and therefore no «war crimes» from a strictly Hobbesian perspective, the conditional imperative to seek peace if others do so too provides a capacious foundation for many ius in bello restrictions and prohibitions6.

28Yet these restrictions, for good Hobbesian reasons, are ill-fitted to asymmetrical conflicts such as the war on terror. For one thing, the war on terror is unique because the enemy consists entirely of putative war criminals, unlike a symmetrical war where enemy troops are in principle innocent of criminal mens rea and where there are civilian «enemy nationals» who are citizens of the enemy nation but who are not combatants. In a symmetrical war, enemy soldiers, far from behaving criminally, are carrying out their legal duty. There is at least some chance that, if you put down your weapons, they (following their commanders’ instructions) will put down theirs as well. Jihadists, by contrast, are not authorized to use violence by an established nation state, are engaged in expressive violence with little coherent idea of the end-state they hope to achieve, and cannot invoke their duty-to-obey as a shield when attempting to surrender or requesting quarter. The absence of both noncombatant enemy nationals and non-criminal enemy soldiers makes it almost impossible psychologically to use the conventional laws of armed conflict restrict the warfighting methods employed in the war on terror.

29Moreover, as already mentioned, terrorism is like crime in this sense: it can be managed but never eliminated. But a war that will never end defies the elemental logic supporting those laws of war that depend on a realistic hope of peace. The absence of any expectation of peace replacing war also removes the most basic incentive for the belligerents to accept any ius in bello limits on how they fight.

30The one-percent doctrine reveals that why we fight inevitably shapes how we fight. If we are fighting for a limited military objective, we can conceivably restrict the methods we employ in combat. But if we are fighting for national survival, all such restrictions fly out the window. The same is true if those responsible for conducting the war are fighting for personal survival. Psychologically, no means appear disproportional to such ultimate ends. How many civilians can we «unintentionally» kill in order to kill one especially dangerous terrorist mastermind? What response is «proportional» to a hypothetical future threat? There is no answer in theory to such questions and, as we can observe, there are only weak limits to the conduct of counterterrorism in practice.

5. Endless War

31Not only does why we fight affect how we fight, but how we fight affects why we fight. Ius in bello and ius ad bellum are not «logically independent» for this reason as well. The best current example is drone warfare. Drone warfare can to some extent be justified on ius in bello grounds by the reasonable claim that drone pilots, operating far from the battlefield, are unlikely to inflict massive collateral damage to civilians out of the kind of visceral panic all too common among ground forces operating in hostile terrain. On the other hand, drone warfare is problematic because it is an extreme form of low-casualty combat. Any way of fighting that involves minimal fatalities on one’s own side exposes the war planning process to mission creep. Why not undertake deadly strikes with only a remote connection to American national security if we can do it at such little cost? Since antiwar activism is traditionally the product of anti-draft activism, drone warfare conducted by a few well-remunerated volunteers is unlikely to meet any sustained civilian protest, making it another potential source of endless war.

32Admittedly, a government pursuing limited war aims in a way that leads to a high casualty rate among the soldiery will be tempted to inflate rhetorically the aims being pursued. This is a distortion much less likely to occur in low-casualty drone warfare and constitutes an argument in its favor. On the other hand, capacities create intentions, and the availability of drones has made a seemingly endless involvement of the American military and CIA in foreign conflicts more difficult than ever to bring to a halt.

33The impossibility of final victory in the war on terror is perhaps the main reason why the laws of war developed in the context of symmetrical conflicts are poorly suited to constraining the way counterterrorism is conducted. Our best chance for fighting terrorism within rule-of-law principles is therefore adhering as closely as possible to the procedural norms developed in the context of domestic crime-fighting, even though these rules, too, fit only imperfectly with the challenges of battling the threat of international jihadism. The most important principle which counterterrorism must borrow from classical liberalism, in fact, is the individualization of culpability, originally introduced to inhibit the natural human tendency to mimetic violence. The individualization of culpability helps cauterize revenge cycles by insisting that only actual perpetrators of violently aggressive acts, and no other members of their kin group, are punished for committing prohibited acts.

34This all-important liberal principle is absent from the laws of symmetrical war because symmetrical war is a conflict among groups where no evidence of personal guilt is required for the application of deadly force. Terrorists would like us to treat them as soldiers in a semi-symmetrical war. But that is an invitation we need to refuse. The best hope for responding effectively to jihadism involves abandoning the entire idea of a war on terror (regulated by the laws of war) and reverting to the idea that the liberalism that we can distill from modern criminal law and criminal procedure provides the best framework available for dealing effectively with the grave and seemingly still growing terrorist threat to the national security of the struggling liberal democracies of both Europe and North America.

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de Vattel, E. (2008). The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (1758), Indianapolis, Liberty Fund.

Hobbes, T. (1998). Leviathan (1651), Oxford, Oxford University Press.

Walzer, M. (1977). Just and Unjust Wars: A Moral Argument with Historical Illustrations, New York, Basic Books.

Witt, J. F. (2013). Lincoln’s Code: The Laws of War in American History, New York, Free Press.

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1 Walzer, 1977.

2 Walzer, 1977: 21.

3 Witt, 2013.

4 Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863. Available at

5 de Vattel, 2008: § 174.

6 The Hobbesian basis of the classic laws of symmetrical war is found here: «it is a precept, or general rule of reason: that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war. The first branch of which rule containeth the first and fundamental law of nature, which is: to seek peace and follow it. The second, the sum of the right of nature, which is: by all means we can to defend ourselves» (Hobbes, 1998: chap. XIV).

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Stephen Holmes, «Why Counterterrorism Mocks the Laws of War»Teoria politica, 6 | 2016, 103-113.

Notizia bibliografica digitale

Stephen Holmes, «Why Counterterrorism Mocks the Laws of War»Teoria politica [Online], 6 | 2016, online dal 26 mai 2020, consultato il 05 décembre 2023. URL:

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Stephen Holmes

New York University,

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