the sinew project
...featured content
...from the
Powered by Squarespace

Add to Technorati Favorites


A "Society of States"?

First of all, I would like to thank Brian Williams for his insightful account of the Hamdan trial. As I read it, I found myself having several reactions which made me want to examine some of the presuppositions behind the entire military tribunal system and, especially, as it applies to those being held in Guantanamo Bay. Several of these presuppositions, especially those concerned with the idealization that states hold or should hold a monopoly on “organized violence”, have been covered well in Jason Ralph’s post on the Combatant Status of the Ansars. I feel that it is best if I put my reactions and observations in the form of three questions.

My first question, then, would be “when does a non-state actor become a state”? Or, to phrase it subtly differently, when does world opinion hold that the use of violence by a specific, identifiable group, shift to the point that the rules applied to its use of violence are those of “international relations” (e.g. “lawful combatants”) rather than those of a single, sovereign, legal system (e.g. “unlawful combatants”)? This question is extremely important and particularly poignant when applied to actions taken by the United States, a nation founded by an insurgency led by non-state actors that did not fully become recognized by the international system as a sovereign state until the Treaty of Ghent nearly forty years after the signing of the Declaration of Independence.

If addressed, this question tends to be placed within the framework of the post-Westphalian state system and the rules and “laws” that derive from it. It is, however, crucial to note that nowhere in the Peace of Westphalia is there a process whereby a “non-state” group becomes recognized as a “state” unless that group manages to achieve the active support of an already sovereign state or it achieves sufficient military power to stand against anyone who says it is not a state (and usually both). In part, this problematic has been worked around by the limited acceptance of “state-like” actors once they achieve the pragmatic pseudo-recognition inherent in the Peace of Westphalia. But, as Ralph notes,

It is, however, a radically different prospect to bestow the right of lawful combatancy on transnational non-state actors because such entities do not even aspire to join the society of states. In fact, such a move would imply that the laws of war are helping to constitute a very different kind of (post-Westphalian) international society, one where the right to violence no longer rests in the hand of state or state-like actors.

To my mind, Ralph’s argument is both absolutely correct and, at the same time, hopelessly anachronistic, which brings me to my second question: why should any group accept the state-based conceptualization of international relations?

This question is especially important when one considers that the post-Westphalian concept of a “society of states” is based on a radically different religious, historical and cultural view of “reality” from that of much of the world today. And, possibly more importantly, when the force a transnational non-state actor can now apply is much greater than at any other time in our species history thanks to the growth of global integration in economics and communications and the increased development of diaspora communities?

Indeed, the use of “force”, if not overt, “organized violence”, by transnational non-state actors is already sanctioned and accepted by the “society of states” and by many individual states in the form of transnational corporations and other transnational economic actors such as the World Bank and the IMF. Even the use of “organized violence” by transnational non-state actors is recognized by some states, including the United States, as “legitimate” under certain conditions (e.g. the role played by Executive Outcomes in Sierra Leone or, more currently, by Blackwater in Iraq).

My point behind this observation is that the Peace of Westphalia, upon which our current concept of the “society of states” rests, was based on the social, political and religious perceptions of Europe after over 100 years of unrest, and a vicious thirty years war that devastated the Germanies. And, as with all socio-cultural formal conventions, it was grounded in the socio-cultural “realities” of the time; “realities” that have become decreasingly important over the centuries.

The final question I wish to raise stems from a comment made by Williams in his final post, and noted by L.L. Wynn as a key observation; to whit

For me it was a vindication of the US military and rebuttal for all those who felt that an all-military jury could not be impartial…. I believe that the verdict and sentence also vindicated the US judicial system.

My question is this: what possible interpretation of international law allows the military of one sovereign nation to detain the citizens of another sovereign nation and charge them under a national, as opposed to an international, legal system? Indeed, this very practice was one of the proximate causes of the United States declaration of war on Britain in 1812. Under the applicable international codes, Hamdan’s exact status should have been decided within a timely manner which, surely, would have been less than seven years.

I certainly agree with Williams that the verdict of the trial is a vindication of the US military’s ability to remain impartial within the system they were operating under. But that it is also a vindication of the US judicial system remains to be seen. That “[t]he verdict will doubtless begin the process of rebuilding America’s reputation” is, in my opinion, extremely optimistic since the Pentagon has, as Williams notes, “declared it has the right to keep him and all other prisoners there indefinitely, despite the sensational verdict”. If I were an Al Qaeda strategist, I could not in my wildest dreams hope for a better situation than having the “Pentagon” declare that the US judicial system and international law are both irrelevant.

Marc Tyrrell is a Symbolic Anthropologist who teaches at the Institute of Interdisciplinary Studies at Carleton University in Ottawa, Canada. He is also a member of the Canadian Centre for Intelligence and Security Studies, Anthropologist in Residence with Insignia Research, blogs at In Harmonium and is active at the Small Wars Council.

PrintView Printer Friendly Version

EmailEmail Article to Friend

Reader Comments

There are no comments for this journal entry. To create a new comment, use the form below.
Member Account Required
You must have a member account on this website in order to post comments. Log in to your account to enable posting.