Farah El-Sharif’s post on hand-picking war criminals (which you should read) has got me thinking recently. Especially in light of yesterday’s news-of-the-day; the release of the first Guantanamo videotape showing a 16 year-old Canadian kid. Farah rightfully points out the irony of Sudanese President Omar Al Bashir becoming the first current-leader to ever be called by the International Criminal Court on charges of genocide, while other butchers-of-mass-destruction are still free.
I am not going to argue about who the biggest war criminal of all is, simply because if Omar Al Bashir is the benchmark, then there are many who fit that criteria and have committed far worse crimes against humanity. Hint, most of them are white.
My argument veers off into more “unexplored” territory.
An interesting feature of political leadership philosophy is that of the state of exception. Under certain circumstances, political leaders can declare a “state of exception” or what is also referred to as a “state of emergency”. During this time, the leader has the authority to essentially do whatever he wants in the name of the greater good; usually in the name of national security. The people give him this power. Whether he is elected or he seizes power, the reaction of the people grants him legitimacy to do so. This is what makes the philosophy surrounding political leadership so damn interesting. Anything you’ve ever known about constitutions, balances of power, checks and balances, laws, everything, goes out the window. In there place are a million philosophical questions. We – the collective “we” – are replacing safeguards, mechanisms and even institutions with transient elements such as faith and trust. We trust that a leader will do what is in the best interest of all. We have faith that he will restore things back to normal when the emergency comes to an end. Ah. But who decides when that state-of-being ends and begins? Egypt has been in a state of emergency for over 25 years.
At the height of a conflict; in the midst of chaos; within a shroud of confusion and fog of uncertainty, the people will hand over power to a leader. It is perhaps fear that drives them in this moment, and their subsequent need to regain their sense of security.
We have done it before and we will do it over and over again.
In such a state, anything can happen.
One of the greatest political thinkers of our time, Giorgio Agamben, spent a great deal of his lifetime unraveling and grappling with the problems inherent within declaring a state of exception. To quote:
“Agambenâ€™s State of Exception investigates how the suspension of laws within a state of emergency or crisis can become a prolonged state of being. More specifically, Agamben addresses how this prolonged state of exception operates to remove individuals of their citizenship. When speaking about the military order issued by President George W. Bush on November 13, 2001, Agamben writes, â€œWhat is new about President Bushâ€™s order is that it radically erases any legal status of the individual, thus producing a legally unnamable and unclassifiable being. Not only do the Taliban captured in Afghanistan not enjoy the status of POWâ€™s as defined by the Geneva Convention, they do not even have the status of people charged with a crime according to American laws”.
Many of the individuals captured in Afghanistan were taken to be held at GuantÃ¡namo Bay without trial. These individuals were termed as â€œenemy combatants.â€ Until July 7, 2006, these individuals had been treated outside of the Geneva Conventions by the United States administration.
Agamben builds on his predecessor’s work, German political philosopher, Carl Shmitt:
“…according to Schmitt, frees the executive from any legal restraints to its power that would normally apply. The use of the term “exceptional” has to be underlined here: Schmitt defines sovereignty as the power to decide the instauration (establishment) of state of exception.
With this in mind…
If we hold true the articles of social contract political philosophers such as Thomas Hobbes, John Locke and Jean-Jacques Rousseau, who argued that popular sovereignty rests with the people. If we hold true to their articles that suggest that it is therefore the people who instill this sovereignty unto a leader – a representative of the people – then who is held responsible. If we hold true to the fact that it is the leader who makes the decisions and that he is granted authority by the people to do so. The fact that his power remains unchallenged is an indication of the will of the people.
Are the people responsible for the crimes committed in their name?
Or is the system to blame?
…But one of Mr Khadr’s lawyers, Dennis Edney, said he hoped the video would cause an outcry in Canada and pressure Prime Minister Stephen Harper to demand that the US does not prosecute their client.
“I hope Canadians will be outraged to see the callous and disgraceful treatment of a Canadian youth,” Mr Edney told the Toronto Star. “Canadians should demand to know why they’ve been lied to.” [source]
Wars are the ultimate “state of exception” and in their presence, we – the collective “we” – have the tendency to do terrible things or allow for them to occur. Whether we commit those acts with our own bare hands, empower the people who make the decisions that allow for those acts to be committed, or even do it ourselves; the fact is, we allow for it to happen. We legitimize it. We legalize it. In fact, we demand it. Perhaps even in the name of
revenge justice. Abu Ghreib happened because it was allowed. Guantanamo continues to happen, because it is allowed. Iraq, Palestine, Lebanon, Darfur. We choose these things. If sovereignty does in fact lie in the hands of the people, then we choose these things. Whether we elect or not; we are enablers, our actions (or lack of) dictate as much.
And so sometimes it’s quite arbitrary to live in a world we grapple over who is to blame; who is the worst war criminal.
All wars are a crime.