At first sight, the concept ‘war’ may be used literally, this use referring to armed conflict between States and waged by the armed forces of nation-states acting under lawful authority, even as it is also used to refer to armed conflict between factions within a nation-state, thus "civil war." The concept ‘war’ is also used figuratively, much in the way public discourse developed in the last few decades around phrases such as "the war on poverty" and "the war on drugs." The literal use of the concept ‘war’ is always a source of existential anxiety for people who have the misfortune of suffering it, given the breaches of international and/or domestic peace and security that are all too evident in loss of life and limb as well as in the destruction of municipal infrastructure. The figurative use, in contrast, is rarely so momentous as to be a source of similar disquiet.

In light of these distinctions in usage, it is reasonable to consider what one is to make of the concept of a "global war on terror," a concept now so current it is taken to be entirely obvious. Surely, some are likely to argue, the concept is not to be construed figuratively, at least not if one accounts for the pronouncements of public officials in the Bush Administration responsible for national security policy and strategy for the United States. Employing the concept in a singular way as a statement of public policy after the disturbing events of 9/11 involving the World Trade Center towers in New York and the Pentagon in Washington DC, President George W. Bush "declared war" on any and all terrorists operating transnationally, thereby announcing the policy of the United States to engage in armed conflict against terrorist groups wherever they operate, including in this policy a right of self-defense entailing armed engagement of States sponsoring or harboring terrorist groups.

According to this policy, these groups may be targeted and engaged preemptively to safeguard the national security of the United States against surprise attacks such as occurred on 9/11, thus to secure the US population and territory, especially against terrorists intent on acquiring and using weapons of mass destruction (WMD). For Mr. Bush, this global campaign is expected to pursue terrorists over the course of multiple years in some sixty-plus countries where terrorist agents are known to operate. This campaign will proceed with or without the support of the sovereign authority of a given country. All such States are given notice by the Bush Administration that the United States expects them to undertake the requisite "constabulary" actions against terrorists operating within their territorial boundaries, failure to do so being just cause for military action by US armed forces acting unilaterally or as part of "coalitions of the willing."

Framed in the context of a global war on terror, the counter-terrorism policy of the Bush Administration "against all enemies" raises not only conceptual difficulties but also legal and moral dilemmas not readily resolved by the prevailing logic governing armed conflict or the extant federal statutes according to which criminal conduct is adjudicated. Other nation-states, Mr. Bush has stipulated at one time or another in public addresses, are either "with" the United States or "against" the US in this policy and strategy; the conflict is between the guardians of "civilization" (specifically Western, Christian) and "the forces of evil" (usually characterized as "radical/militant Islamist"); terrorists are not "armed combatants" as recognized by international conventions governing the conduct of war, but instead are "enemy aliens;" as enemy aliens, terrorists may be apprehended or killed as "criminals," yet they are not to be permitted due process of judicial review and disposition normally associated with violation of federal statutes because they are captured "under battlefield conditions;" and so on. Here, clearly, we have a conflation of categories better kept distinct; otherwise, the rules governing armed conflict will be readily dismissed in this "global war on terror" even as domestic criminal law will not be applied fairly if this war on terror is not "war" in the usual sense.

The latter point is important in light of President Bush’s claims on 07 October 2001 that terrorists responsible for the events of 9/11 "profane a great religion by committing murder in its name." Murder, of course, is never a legitimate act of war, armed conflict expected to be consistent with the rules of engagement, these rules distinguishing armed combatants from innocent civilians who are to be accorded noncombatant immunity. Murder, when it in fact obtains, is thus either (a) a common crime subject to prosecution, judicial review, and disposition according to the applicable statute in a criminal code of law, or (b) an act that occurs in armed conflict and is thereby subject to the usual procedures governing war crimes. Bush’s use of the concept ‘murder’ here is by no means clear such as to make the foregoing distinction immediately and consistently. The point takes on further significance given President Bush’s remarks on 08 November 2001, when he asserted that the US takes action against terrorists because it is "civilization’s fight:" "We wage a war to save civilization itself." The task, he had stated on 07 October 2001, is to engage in "military action…designed to clear the way for sustained, comprehensive, and relentless operations to drive [the terrorists] out and bring them to justice." What remains unclear, here, of course, is what sense of ‘justice’ Bush has in mind—criminal justice that is obtained through apprehension and due process of trial law, or military action taken consistent with "just cause" as understood in the law of armed conflict. Surely these two can be reasonably distinguished, especially in light of the patent differences in resources required, operations involved, and consequences likely to follow.

Of course, there is the category of "international crime" recognized to be subject to prosecution consistent with the Rome Treaty that constituted the International Criminal Court in 1998. The foregoing remarks about Bush’s language on terrorism point out the fact that "The Bush Administration’s policy on terrorism clearly rests on a serious equivocation of language that betrays any meaningful commitment to applicable international law governing criminal conduct."(2) Yet, it would be reasonable to construe transnational terrorism as "crimes against the peace and security of mankind," consistent with the draft code prepared by the UN International Law Commission, issued formally in 1996, and the corresponding categories of international crime adopted in the Rome Treaty. This international treaty is instituted to deal with a category of crime characterized as "atrocities that deeply shock the conscience of humanity." In its application, the treaty functions complementary to "the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes."

The executive branch of the United States, and in present case the Bush Administration in particular, needs to be clear whether transnational terrorism—specifically such as occurred on 9/11—is in the category of "crimes against humanity" or "war crimes" in the strict sense of the term. As noted above, Bush speaks of the acts of 9/11 as "murder." The word fits the events, consistent with Article 7 of the Rome Treaty which concerns murder "when committed as a widespread or systematic attack directed against any civilian population," such attacks constituting crimes against humanity. ‘Attack’ here means "a course of conduct involving the multiple commission of [such] acts…in furtherance of…[an] organizational policy to commit such an attack." There can be little doubt that principals of Al Qaeda, as a transnational organization responsible for the attacks of 9/11, can be charged with crimes against humanity and prosecuted accordingly. To its discredit, the United States refused to accept the jurisdiction of the International Criminal Court for international crimes and, so, is not a signatory to the Rome Treaty. The events of 9/11 and the associated legal, moral, and pragmatic problems with the Bush national security strategy compel a re-examination of the US position—even if the US commits itself minimally by "special agreement" (Article 4) to permit the ICC to "exercise its functions and powers" related to international terrorism carried out on US territory.

Whether the events of 9/11 fall in the category of "war crimes" seems entirely questionable. US Secretary of Defense Donald Rumsfeld has asserted (and presumably continues to maintain) that "What we’re engaged in is very, very different from World War II, Korea, Vietnam, the Gulf War, Kosovo, Bosnia—the kinds of things that people think of when they use the words ‘war’ or ‘campaign’ or ‘conflict’…It is very different [from] embarking on a campaign against a specific country within a specific time frame for a specific purpose."(3) This statement by Bush’s principal advisor on matters of national defense is striking in light of the question at issue here. Taking Rumsfeld at his word, it makes no sense strictly speaking for the Bush Administration to have "declared war" on terrorists such as Al Qaeda. Article 8 of the Rome Treaty construes "war crimes" in two categories: (1) as "grave breaches of the Geneva Conventions of 12 August 1949, namely…acts against persons or property protected under the provisions of the relevant Geneva Convention;" and (2) "other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law." The attacks on 9/11 cannot reasonably be considered war crimes on these terms.

Indeed, as mentioned before, after the commencement of hostilities in Afghanistan, the Bush Administration has been keen on identifying captured Taliban and Al Qaeda agents as "enemy aliens," rather than as "enemy combatants;" and, accordingly, captured enemy aliens held at the US base at Guantanamo Bay in Cuba are not identified as "prisoners of war" subject to the terms of the Geneva Convention. The problem here, of course, is that the Congress of the United States provided the relevant statutory authorization for armed conflict against the Taliban as the de facto State authority in Afghanistan, so that once hostilities began by executive order of President Bush in his capacity as Commander-in-Chief of United States Armed Forces, the terms of the Geneva Convention became applicable to the armed conflict, to wit: it applies to "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties"—both the United States and Afghanistan recognizable under international law respectively as the legal person having the obligations of such a contracting party. Thus, the confusion in US policy and practice is strikingly manifest so as to call into question any continued engagement of transnational terrorists in terms such as a "global war on terror."

The transnational organization of Al Qaeda surely has paramilitary structure and function, but it does not have the legal status of a State having lawful authority under international law either to declare war or to conduct it. Rohan Gunaratna, author of Inside Al Qaeda: Global Network of Terror, writes that Al Qaeda is "an unprecedented transnational phenomenon," differing "markedly from other guerilla or terrorist groups."(4) He continues,

To further advance the Islamist project, in 1998 Al Qaeda was reorganized into four distinct but interlinked entities. The first was a pyramidal structure to facilitate strategic and tactical direction; the second was a global terrorist network; the third was a base force for guerilla warfare inside Afghanistan; and the fourth was a loose coalition of transnational terrorist and guerilla groups."(5)

On the other hand, viewed in terms of its global network of operations directed by Osama bin Laden, Al Qaeda’s ideological position raises further questions about how the activities of Al Qaeda are either properly crimes against humanity or war crimes. Gunaratna informs us: "As defined by Osama, Al Qaeda has short-, mid-, and long-term strategies. Before 9/11, its immediate goal was the withdrawal of US troops from Saudi Arabia and the creation there of a Caliphate. Its mid-term strategy was the ouster of the ‘apostate rulers’ of true Islamic states. And the long-term strategy was to build a formidable array of Islamic states—including ones with nuclear capability—to wage war on the US (the ‘Great Satan’) and its allies."(7) The short- and mid-term goals do not call into play the legal language of armed conflict between States. Instead, such actions are better construed as acts of "rebels," or of individuals committing criminal acts affecting the domestic peace and security of those States. In this case, members of Al Qaeda supporting and/or facilitating such acts would be properly subject to capture, detention, and trial according to the applicable legislation that specifies the relevant penal sanctions.

The long-term strategy, however, portends international armed conflict such that any indiscriminate killing such as occurred on 9/11 would properly fall into the category of "war crimes," given that these acts would be sponsored by Islamic states having legal status under international law and subject to sanction for initiating wars of aggression. However, for the time being this is merely hypothetical and not a matter of fact, so that at present indictment of Al Qaeda and associated terrorists for war crimes has no merit under extant international law. Thus, even on this line of analysis, the Bush Administration’s pursuit of a "global war on terror" is a misuse of language with disturbing legal and moral implications.

The gravest danger to freedom lies at the perilous crossroads of radicalism and technology. When the spread of chemical and biological and nuclear weapons, along with ballistic missile technology—when that occurs, even weak states and small groups could attain a catastrophic power to strike great nations. Our enemies have declared this very intention, and have been caught seeking these terrible weapons. They want the capability to blackmail us, or to harm our friends—and we will oppose them with all our power. (8)

While comparing this threat to that of the Cold War era, President Bush rejected the strategies of deterrence and containment. Rather, he claims, "the war on terror will not be won on the defensive. We must take the battle to the enemy, disrupt his plans, and confront the threats before they emerge." This means, specifically, as he put it, being "ready for preemptive action when necessary to defend our liberty and to defend our lives."

Here we have the essence of the post-9/11 national security strategy pursued by the Bush Administration—the doctrine of preemptive war. Bush considers preemptive action warranted as a defensive action justifiably taken by the United States given the basic transformation in counterterrorism that is required by 9/11. Thus, a response by the United States to the attacks of 9/11 is justified not only with reference to the positive law of the US but with reference to the internationally recognized right of a State to defend itself against hostile acts consistent with Article 51 of the UN Charter. There is a fundamental change here that cannot be ignored as a matter of international law.

According to Richard A. Clarke, chief of counterterrorism during the Clinton and Bush Administrations (in the latter until his resignation in February 2003), President Clinton—acting against prior tradition and executive branch policy—authorized assassination of Osama bin Laden as a justifiable response to Al Qaeda’s terrorist actions against the US embassies in Africa and the USS Cole. Clarke preferred and recommended a strategy of bombing the Al Qaeda training camps in Afghanistan and has consistently spoken of a "war on terror" as a matter of executive decision if not as a policy having statutory authorization from Congress. National Security Advisor Condolezza Rice concurs in holding the attacks of 9/11 as "acts of war." Counterterrorism is thereby less a matter of police action—i.e., law enforcement with arrest, detention, and due process of trial—and is instead first and foremost a matter of armed conflict. Defense Secretary Donald Rumsfeld concurs. In fact, the doctrine of preemption is largely his brainchild. Rumsfeld champions the doctrine of preemptive attack against terrorists precisely because, he claims, the United States cannot defend against terrorism on US soil without having some gaps in security that could have consequences equal to (if not exceeding) those of 9/11 (9). Thus, the Bush Administration’s assertion of its inability to defend against transnational terrorism is the primary reason for the doctrine of preemption and its operational expression in a "global war on terror" that goes after the terrorists, taking "the war" to them, so that the battles are not fought on US soil.

The question that remains, nevertheless, is whether the principals of the Bush Administration charged with responding to 9/11 are correct to have characterized the terrorist acts of 9/11 as "acts of war" and to consider the US response the beginning of a "global war on terror" that is to be carried inevitably to some sixty-plus countries. The question is first and foremost a question about law, i.e., whether international law as well as statutory authorization by Congress provides lawful authority for preemptive action with the scope of engagement such as the Bush Administration pursues. The answer cannot but be given in the negative.

UN Security Council Resolution 1368, adopted on the day after 9/11, regards the acts of 9/11 as terrorist acts and "like any act of international terrorism, as a threat to international peace and security."(10) To the extent that the Council calls for justice, it calls on the international community to implement fully "the relevant international anti-terrorism conventions and Security Council resolutions, in particular resolution 1269 (1999) of 19 October 1999," but all steps to be taken to suppress international terrorism are to be in accordance with the responsibilities of member States and the Council under the UN Charter. Resolution 1269 does not include armed conflict as one of the "appropriate steps" recommended by the Council as a means of suppressing terrorist acts. Thus, the Council’s Resolution 1373 of 28 September 2001 spoke to the terrorist acts of 9/11, the Council issuing its decision that States shall ensure such individuals are "brought to justice," but the Council is clear that it expects "such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts" (italics added).

The Council referenced the UN General Assembly’s Declaration on Measures to Eliminate Terrorism (Resolution 49/60 of 09 December 1994). In stipulating these measures, the Declaration identifies terrorist acts as criminal acts and calls Member States to undertake "the apprehension and prosecution or extradition of perpetrators of terrorist acts, in accordance with the relevant provisions of their national law." The Declaration does not explicitly or implicitly authorize either armed conflict or war per se as a legitimate measure for the suppression of acts of terror. Thus, neither the UN Security Council resolutions nor the UN General Assembly Declaration provide lawful authority for the Bush Administration’s "global war on terror." A doctrine of preemption that finds its operative form in a global war on terror is likewise not given authorization by these resolutions or Declaration. This leaves us to examine the relevant international conventions and protocol that are to guide the action of Member States in taking legal action against terrorists, including those operating transnationally.

Given the method of action pursued by the terrorists responsible for the 9/11 events, the Convention for the Suppression of Unlawful Seizure of Aircraft (signed on 16 December 1970), the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (concluded on 23 September 1971) along with Protocol concluded on 24 February 1988, and the International Convention for the Suppression of Terrorist Bombings (12 January 1998) are relevant in determining the question of lawful authority for the Bush Administration’s policy of preemption. The first of these conventions considers such acts "offences" subject to "criminal jurisdiction," the offender to be taken into custody consistent with national law governing "criminal or extradition proceedings" (Article 6). The Protocol of the Convention of 1971 is consistent with the former Convention in construing acts of terror as offences subject to criminal proceeding.

The Convention of 1998 is important insofar as the terrorists engaging in the events of 9/11 illegally obtained use of commercial aircraft using them as the material equivalent of missiles or bombs—in short, "explosive or other lethal device." More important, the Convention recognizes that "the activities of military forces of States are governed by rules of international law outside the framework of this Convention…" In this Convention, such offences are construed as "criminal offences" under "domestic law" (Article 4), such offenders liable to "prosecution or extradition" (Article 7). Thus, Article 8 stipulates:

The State Party in the territory of which the alleged offender is present shall…if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.

Further, Article 14 stipulates:

Any person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the State in the territory of which that person is present and applicable provisions of international law, including international law of human rights.

Given the Bush Administration’s claim that its doctrine of preemptive attack allows it to carry its "war" to any number of countries in pursuit of terrorists, it is salient that Article 18 of the Convention makes it explicitly clear:

Nothing in this Convention entitles a State Party to undertake in the territory of another State Party the exercise of jurisdiction and performance of functions which are exclusively reserved for the authorities of that other State Party by its domestic law.

In short, the Bush Administration may not lawfully assert its jurisdiction over terrorists—in the sixty-plus countries they are alleged to operate—irrespective of the domestic authority of those States and their right to exclude the United States (including its Armed Forces) from exercising such jurisdiction.

  (1) Norman K. Swazo is Professor of Philosophy at the University of Alaska, Fairbanks.
  (2) Norman K. Swazo, "Crimes Against the Peace and Security of Humanity," Concerned Philosophers for Peace Newsletter, Vol. 20, No. 1 & 2, Spring & Fall, 2001, pp. 18-24
  (3) Jim Garamone, "Rumsfeld Says This War is Different," American Forces Information Service News Articles, American Forces Press Service, Washington D.C., September 20, 2001
  (4) Rohan Gunaratna, Inside Al Qaeda: Global Network of Terror (Melbourne: Scribe Publications, 2002), p. 54
  (5) Ibid., p. 57
  (6) Ibid., p. 58
  (7) Ibid., p. 89
  (8) "President Bush Delivers Graduation Speech at West Point," Remarks by the President at 2002 Graduation Exercise of the United States Military Academy, West Point New York, Office of the Press Secretary, 01 June 2002
  (9) This basic claim Rumsfeld made in comments with George Stephanopoulos on ABC's program, This Week, on 28 March 2004.
  (10) United Nations, Security Council, Resolution 1368, adopted by the Security Council at its 4370th Meeting, 12 September 2001, S/Res/1368 (2001)