The Old City in Mosul, Iraq has seen its fair share of destruction over the centuries. Right now the city is recovering from months of protected house-to-house fighting between Iraq Security Forces and the Islamic State (IS).
The militants are also being squeezed across the border. Syrian government troops and allied forces have taken the town of al-Sukhna, the last major Islamic State-held town in Homs province. Under cover of US airpower, Kurdish forces – much to the chagrin of Turkey – are methodically clearing the outlying villages near Raqqa in eastern Syria in preparation for a main assault on the IS capital.
It’s hard to tell if IS lost the battle in Mosul. Even if it did, it wouldn’t be the first time the jihadists melted into air. Guerrilla groups tend to do that. The Islamic State is neither a terrorist group nor a conventional military force. It acted like a militancy and often used terrorism, but it was hard to classify. As it washes away now, it jumps back into a frustrating grey zone of jurisdiction.
Terrorism – the random killing of defenceless civilians – is the normal mode of warfare in our charming post-WWII world. In other words, it is the most common way to use force to achieve political objectives. Terrorism, left or right, is a legitimate military tactic and it needs to be judged by the laws of war, not the laws of peace. Generally, however, it is treated as a law enforcement or intelligence problem because international law still hasn’t figured out what to do.
It’s great that IS is being crushed in the Levant, but at least while it holds Raqqa and Mosul it is limited by time and space – and susceptible to JDAMs and indirect fire. Once the group is kicked out, like a hammer blow to a puddle, it simply flows towards other places rather than disappearing. Afghanistan, for instance. So the real trick is to find a way to dry up the water.
IS fighters will once again choose to disguise themselves as and mingle with civilians – violating the laws of war and the Geneva Convention. So how should they be dealt with upon capture? That’s a tough question for Washington, which will continue to carry the heavy counter-terrorism load for the international community as the militants return to their underground terror roots.
An IS fighter can be put on criminal trial in the US, but there may only be an intelligence (CIA) level of proof, not proof beyond a reasonable doubt (district attorney). He is not a prisoner of war, so what is he? The US uses the term "unlawful enemy combatant" which for all intents and purposes they invented without any legal foundation. Despite a decade and a half of constant low-level warfare, none of this is much clearer.
Laws against international terrorists were always vague, but it didn't matter because they didn’t attack the US before 1993. Here, the planning and execution was done within the US so the law prosecuted the terrorists criminally in New York. The real problem never ripened until 9/11. Before that, there was no situation (that was made public) where an attack was ordered and organised overseas and then only the grunts sent to the US to carry it out.
Taking the fight to the terrorists isn’t straightforward. If the CIA captures a person overseas, does it really make sense the person should have the full spectrum of US constitutional rights? Does it really make sense that a prisoner of the CIA in Afghanistan should magically have more rights than a prisoner of the Afghan government in Afghanistan?
Think about this really hard for a moment. If the CIA detains, say, 12 IS members in a terror cell in Saudi Arabia, what should it do? Give them to the Saudis to disappear? Put them on trial in the US without witnesses, without a reliable chain of custody of evidence and without national security rules preventing the disclosure of what scant evidence there is? Should the CIA put them in a hotel? What should happen? The terrorist might have crucial information and the CIA needs that. Please tell the CIA how it should get that information without stepping on legal toes.
The CIA is not the United States’ foreign police force. What the CIA does is kidnapping. It doesn't have the legal authority to take people into custody. Not to get into a legal argument over the Geneva Conventions, but those don't fix the problem. Protocols 1, 2 and 3 were never adopted by the US, and neither IS nor al qaeda prisoners are prisoners of war. They may be prisoners taken in a war, but that's not the same thing.
The irony is that if Islamic State actually created a state these issues would disappear because IS fighters would then be considered as acting on behalf of a hostile state and entitled to POW status. Smashing IS will feel good for the US, but it doesn’t dissuade its fighters from returning to transnational terrorism. We’re about to go back to square one.
There are two possible responses to terrorism: the natural and the unnatural. The natural response is to take revenge on the terrorist and everyone even remotely resembling him. The unnatural response is to address the grievances of the attackers. Hopefully, Baghdad has been thinking about conciliation, rather than mass execution (although this is reportedly already happening). The alternative for the West is to kill and capture these people forever.