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Dealing With Enemy Combatants – A Challenge For All Democracies


In a landmark decision on 11 June 2008, Supreme Court of USA ruled that the USA government is not allowed to hold the prisoners without charging them or allowing them to charge government. The Slashdot discussion is here and BBC Link is here.

The decision was split 5-4, showing how divided the judges were on this issue. One of the judges Mr. Alito was more vocal about failure of his side and declared this judgment to be the worst judgments in the history.

Immediately hell broke loose in the legal and political circles. Some applauded the Supreme court terming this to be the strong reprimand to government that insists on expanding its authority unchecked to all areas of life, trampling the civil liberties guaranteed by the constitution. Others, especially several prominent leaders from the republican party complained that this will limit government’s ability to fight terrorism and thus further endanger American interests.

Both are right and wrong at the same time. How?

It is indeed true that allowing the government, especially the most powerful and technologically sophisticated government on earth, to imprison anybody for any length of time without any legal formalities, is a dangerous idea. However it is also true that current democratic institutions lack the legal framework to fight the kind of guerilla warfare they are facing.

On one hand we have criminals. These are individuals or organizations committing antisocial acts to achieve objectives that are related to their self interests, usually money or power. There are criminal laws in place to deal with them.

One the other hand there are soldiers employed by the governments. They work to achieve the ideological or political interests of their governments. The legal framework put in place by United Nations and Geneva convention is applicable in their case.

What to do about those individuals that carry out criminal acts, but their objectives are ideological or political? You cannot apply your criminal justice system there, because many times they are not even happening on your soil. You cannot apply army’s laws there, because that is not traditional warfare.

Speaking of traditional warfare, the only way a traditional army can be pro-active is by relying on strong intelligence. Criminal justice systems are more of reactive systems, not designed to predict things in advance. To be able to stop “criminals with war-intent”, it is imperative to have strong intelligence. In USA people are highly concerned about privacy, but without sacrificing privacy, it is impossible to get the required intelligence.

There needs to be a third approach, a third system to deal with such individuals, the criminals with war-intent, or the ‘enemy combatants’. The term ‘Enemy combatants’ was coined by US defense establishment for precisely the same reason, to distinguish them from POWs( Prisoners of war) and criminals.

The exact same legal tug-of-war has been happening in India for long time. The terrorists are being tried as criminals. That perhaps stops the individual. But it fails to stop their organizations.

It also kind of creates a paradox. If a terrorist gets capital punishment, he overnight becomes martyr, thus becoming the poster boy for the propaganda team of his organization. If he gets lesser punishment, then it is almost like the terrorist organization get a blank check. A drastically different legal and institutional framework is required to deal with the guerilla warfare as practiced by today’s terrorists.

Most of the human rights organizations who come up for defense of these individuals argue that “No matter how low these people fall, we cannot fall to their level.” However this argument is severely flawed.

Say there is a game (game as in game theory) in progress and all people are abiding by the rules. Now suddenly one of the players start breaking the rules and cheating. If all the other players keep playing by the rules, the cheating player gets huge unfair advantage over others. In that situation, the most rational approach for other players to get down to his level and beat him in his own game.

Any kind of value based approach does not work in long term. Values insist on unchanging pattern of behavior. No matter what others do to you, if you stick to your values, you will always deal with others the same way. It has been shown mathematically that the most successful strategy in long term infinite game is “WSLS”, or win-stay-lose-shift. You can start dealing with a third person by being co-operative. But if your co-operation is not returned, you are better of not co-operating with that person next time, that is you change your strategy if you lose, that is if you fail to achieve your objective.

There are a lot of lessons to learn for India in this affair. Time after time, India is trying to make peace. Yet, decades after decades, terrorist attacks on Indian soil continue to take Indian lives. Apparently peace is not working. Is it time to change the strategy?

There are no values. There are only strategies. The earlier we learn this, the better.

3 Responses

  1. I think what you say in the third last para is some sort of TIT FOR TAT policy……… V. Raghunathan author of Games Indians Play have said the same thing and have proven that tit for tat is the best strategy to purse in the long run with the help of game theory………..

  2. Aha, finally I find your blog. After running around chasing a few wrong links. Good one! I loved the piece on Shivaji…

  3. I do think the decision was more wrong then right. The problem is since they are not normal combatants (as per the Geneva Convention), there is legal justification to shoot them as spies. There is also the legal justification to hold them indefinitely as legal combatants as you would any POW until the end of hostilities. You could also say that if you think of them as criminals there is a legal justification to shoot them on sight due to the nature of the crimes they are committing, if you catch them in the act though or during the arrest if things go south. This however is not all encompassing of the situation. Essentially I think this was a bad move, soldiers are not the police nor are they supposed to be and it looks like this is going to half ass turn them into them.

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