Law Games
Progressive activists are corrupting the laws of war and putting free nations at increased risk.

Court sketch of Abd al Rahim al Nashiri


Clifford D. May

Abd al Rahim al Nashiri is charged with organizing three al-Qaeda attacks including the suicide bombing that killed 17 American servicemen aboard the USS Cole in 2000. Reed Brody, counsel with Human Rights Watch, is concerned about him. In an op-ed in the Los Angeles Times, Brody argues that it is unjust and outrageous that Nashiri is to be tried by a military tribunal in Guantanamo rather than in a civilian court in America. Brody claims he’s concerned for America, too. The U.S., he asserts, “needs a trial that is accepted around the world as a fair search for the truth.”

Around the world? Like in Iran? Syria? Saudi Arabia? Sudan? China? Russia? What exactly are the standards for fair truth-seeking in Cuba and Venezuela?

Such questions do not appear to interest Brody and the many other “progressive” activists aggressively seeking to expand the rights of those waging an unconventional and blatantly illegal war against liberal democracies. Simultaneously, the activists seek to restrict — and often criminalize — the rights of those liberal democracies to defend themselves.

Let’s stipulate that unlawful combatants such as Nashiri deserve due process. That raises the question: What process is due an unlawful combatant? Surely, not the same process that is due an honorable prisoner of war. That would reward terrorists and make chumps of warriors who abide by the laws of armed combat even when to do so imperils their lives. And certainly they do not merit the same process that is due an American citizen accused of a criminal transgression — that’s an entirely different kettle of fish.

Nor can there be serious doubt — even within the hallowed halls of Human Rights Watch — that American military tribunals provide much more fairness and truth-seeking than do the civilian courts of any of the authoritarian states that dominate the U.N.’s Human Rights Council and General Assembly.

What’s really going on here: Brody is one too many lawyers, diplomats, and academics engaged in “lawfare” — a term Peter Berkowitz, the Tad and Dianne Taube Senior Fellow at the Hoover Institution, succinctly defines as the “use of international law as a political weapon.” It will come as no surprise that Israel — the proverbial and perennial canary in the mineshaft — is on the front lines of this conflict. In response, Berkowitz has written a slender but intellectually muscular volume: Israel and the Struggle over the International Laws of War.

Those who proclaim themselves jihadis recognize no international rules governing their behavior. They abide only by their interpretation of sharia, Islamic law, which permits — indeed encourages — violations of the fundamental laws of war such as targeting non-combatants, using non-combatants as shields, disguising combatants as non-combatants, and summarily executing non-combatants.

Curiously, few “human-rights activists” have much to say about these practices. Their goal is not to persuade the barbarians — they would never call them that, though when you’re talking about people who behead civilians on camera, the shoe fits — to reform. Their goal is not to persuade all combatants to uphold a single and humane standard of warfare, what Berkowitz calls the post–World War II “revolution in military affairs” aimed at bringing “the conduct of war under vastly greater legal supervision.” On the contrary, they contort legal reasoning to advantage unlawful combatants over warriors who fight by the rules.