Preface: Security and Human Rights in Asymmetric Conflicts

The difference in the nature of asymmetrical conflicts from traditional wars has severe implications: there is no state on which to declare war. Even worse, there is no state or government with which to make peace after the battle has ended, a peace that would normally result in the release of prisoners of war.

There is also a difference in the legal treatment of captured “enemy combatants” and ordinary prisoners of war. While trying to prevent future killings, security agencies worried that existing instruments were insufficient to fulfill this task. To solve the dilemma, the former US administration tried to formulate a third category of law, aside from existing civil law and martial law with its respective international conventions. The military commissions, external detention camps like Guantánamo or Abu Ghraib and the euphemistically described “enhanced interrogation methods” are the practical results of that political approach.

Former government officials argue that this policy prevented the country from another attack like the one the nation suffered on 9/11/2001. Even if this were true, however, this policy never solved the dilemma in asymmetrical wars of how to prosecute “enemy combatants” in accordance with humanitarian international law. Moreover, “enhanced interrogation methods” not only harmed human rights credibility and undermined the integrity of liberal democracies; the officially decreed use of torture in Abu Ghraib, Guantánamo and possibly other places in the early years of the Iraq war also led to counterproductive results. It played directly into the hands of extremist Islamic recruiters, making their job much easier. As President Barack Obama said, “the existence of Guantánamo likely created more terrorists around the world than it ever detained.”

The new US administration inherited this dilemma. Closing down Guantánamo alone will not solve it. Even worse, conflicts in Afghanistan and Pakistan as well as with pirates off the East African coast continue to require the capture of combatants in asymmetric constellations. In the years ahead, an increase in new or outbreak of existing conflicts is to be expected. Climate change as a threat multiplier will contribute to the fight over resource access through food and water scarcities, natural disasters, and migration. Religion will continue to be misused as a pretext in conflicts about social injustice in the course of globalization. In other words, there is an urgent need for international legal arrangements to help provide security to citizens and prosecute those engaged in terrorism, while at the same time respecting the rule of law and thus the integrity of liberal democracies.

As Thomas Hilde rightly explains, Guantánamo is not an American problem alone. Europeans also failed to live up to their own human rights standards. Investigative committees of various institutions revealed that European governments did not oppose the US policy choices for treating “enemy combatants” in the “Global War on Terror.” They either quietly allowed secret activities of the CIA on European soil or made use of information gained through “harsh interrogations,” which were sometimes conducted by questionable allies. Nevertheless, the challenge of how to provide security and fundamental rights at the same time was crucial for domestic policy decisions in Europe. This was mirrored in a heated debate in Germany about its Aviation Security Act. In February 2006, Germany’s Constitutional Court in Karlsruhe ruled that under the Basic Law, shooting down hijacked airplanes is incompatible with the right to life and the guarantee of human dignity. The ongoing debate about domestic deployment of armed forces in Germany shows that the court’s ruling did not satisfy all political actors.

Thomas Hilde’s call for public moral and legal accountability comes at a timely moment. President Barack Obama issued a Presidential decree to close Guantánamo within a year after his inauguration. This is an important step welcomed by the whole world. But the discussion about more important questions has just started: how can we deal with the remaining prisoners? How can we compensate the suffering of those who were unjustifiably detained? On what international legal basis can combatants be detained in asymmetric conflicts? There is an urgent need to debate these questions among liberal democratic states. With this publication, the Heinrich Böll Stiftung would like to foster the transatlantic debate on how liberal democracies effectively defend the security of their citizens by ensuring the application of the rule of law in asymmetric conflicts.

Klaus Linsenmeier, Executive Director Heinrich Böll Foundation North America
Sebastian Gräfe, Program Director for Foreign & Security Policy Heinrich Böll Foundation North America