Saturday, June 19, 2010

Terrorism, Rule of Law and the Permanent State of Exception

Samir Kumar Das and Rada Ivekovic, Terror, Terrorism, States and Societies: A Historical and Philosophical Perspective, Kali for Women, Delhi, 2010, pp xxviii + 300, ISBN 818896556-1, Rs 495.

Terror and terrorism have been constant themes in global politics since at least 2001. And yet they continue to stir up conflicting emotions and responses. In their application in the dominant global narrative, the terms till recently had a virtually axiomatic character, shaped with unanimity and complete intolerance for dissent by the media and organised propaganda apparatuses of the western powers. There were some though, who seemed not to be listening.

The “global war on terror” declared in 2001 was underpinned by the shallow pretence of an irresistible moral force. The battle-cry of a final settling of scores between good and evil, was accompanied by the deployment of warfare techniques on an unprecedented and disproportionate scale – indeed that disparity in capabilities was flaunted as the surest evidence of the superior moral purpose of one side.

In the early days of the global war, the military capabilities of the regimes in Afghanistan and Iraq were fancifully embroidered. The application of deadly explosive force on locations of no military importance, was justified as legitimate strategy to dismantle “command and control” systems. And the death of civilians and the destruction of life-sustaining infrastructure were enfolded into that capacious term, “collateral damage”.

Life in Afghanistan and Iraq – both of which had by then suffered years of ostracism and international isolation – had already been stripped of much potential and meaning by then. It was close to the state of “bare life”, in the terminology devised by the Italian political philosopher Giorgio Agamben, whose insights permeate this entire book. Since the first salvos were fired in the war, the waves of terror have swept over much of Pakistan. Today, the situation in all main theatres of the “global war on terror”, conforms to Thomas Hobbes’ balefully dark description of the mid-17th century, of a “war of all against all” where life is “nasty, brutish and short”

For those who find themselves at the receiving end of multiple tonnes of high explosive, it really is immaterial whether the agency of delivery is a remotely controlled airborne vehicle that responds an electronic impulse, or a lethal explosive belt worn around the waist of a suicide bomber. Agency in the one is exercised by a uniformed person from a foreign land, sitting in a sanitised location where even the faintest whiff of blood does not penetrate. In the other, the mass murder is committed by somebody who is intimately present at this scene of his crime, one among those he targets, one who till that moment might have been sharing in the cycle of daily activities of his victims.

Which has been the greater scourge for innocent civilian life? If good and evil were to be assessed in inverse proportion to the civilian casualties inflicted by either side, available statistics suggest that the balance could tip either way. United Nations statistics, the most authoritative available, suggest that through the year 2008, almost 40% of civilian deaths in armed conflict in Afghanistan were the direct responsibility of government forces and their international allies. With a number of deaths remaining unattributable to any particular agency, this put the good roughly on par with the evil. And by far the largest part of the deaths inflicted by pro-government forces came from air-strikes – once regarded as symbolic of the high moral purpose that the western powers brought to their enterprise.

The figures from 2009, while representing a more serious effort by the architects of the new order in Afghanistan to address possible misgivings about their legitimacy, are still seen to represent an uncertain choice between good and evil.

In their introduction to this volume, the editors pose a telling question, which sums up the moral dilemma of all who value human rights and democracy: “Who can tell, without prematurely taking sides, the difference between the new type of ‘war on terror’, the mass killing of civilians and ‘terrorism’?”

In its origins, the nation-state regarded terror as a rightful strategy of enforcing its authority. The power of reason embodied in the nation-state, did not prevail just by its own since there were always likely to be recalcitrant elements who opposed its irresistible claims to govern their lives. This meant that they had to be brought into line and “terror” was a salutary means of inducing them to give up their wrong-headed notions.

Hobbes, writing during the English civil war, posited a model that saw man as inherently acquisitive, driven into continual conflict with fellow man and requiring the strong hand of a sovereign to render him fit for a social existence. The sovereign held all rights and also the decisive authority to decide on the precise measure of these rights that could be conferred on its subjects. It was a totalitarian political doctrine, yet in distinct ways a precursor to the bourgeois-liberal doctrine that soon became the dominant world view.

Observing a rather more placid state of affairs a half-century or so on, with England going through the rosy flush of the Stuart Restoration, John Locke had a more happy view. Man, he said, is inherently in harmony with society. Those who seemingly fail to get a fair deal out of the bourgeois-liberal rules, must necessarily have invited that fate upon themselves by some act that was so much at variance with accepted norms of conduct, that they deserved death. If reprieved from this ultimate sentence though, they would be obliged to repay their debt by putting themselves, in body and soul, at the disposal of the society that had been so magnanimous as to renew their lease on life.

The liberal doctrine in its founding phases, adhered firmly and faithfully to the dogma of the “original sin”, which saw all social inequities as the consequence of some primeval act of transgress. The world was created in all perfection by divine ordainment. But there were among the denizens of this perfect world, those unable to live by its rules, which alone could ensure peace and tranquillity. Those guilty of contravening the rules handed down by a benevolent creator, would be spared the horrible retribution they deserved, only if they were to resign themselves to living in accordance with a lesser charter of rights.

As the editors argue, these implicit assumptions of the liberal doctrine are a strong presence in the early celebration of America as a civilisation by Alexis de Tocqueville. Democracy, in these terms, “harbours no obligation towards those who are outside its ambit and are hence denied visibility”. “They are the people with ‘bare life’ who, in Giorgio Agamben’s famous phrase, are ‘killed without being sacrificed’. They are killed with impunity, without trace”.

Daho Djerbal, one of the contributors to this volume explores the “judicial, political, military and discursive instruments” deployed by colonial regimes on those who suffer differentiation or exclusion on the basis “race or religion”. Frantz Fanon, the theorist of anti-colonial liberation saw this “Manicheanism” following its logic to the end and dehumanising the colonised. The spirit of terror as a legitimate weapon of a higher cause, lived on through the years of supposed political independence, legitimised this time “by the necessity of building a free and sovereign nation state”.

The political borders that had been created by global anti-colonial movements and consolidated through the years of bipolar geopolitical rivalry, began rapidly to unravel after the end of the Cold War. This “made the international system nto a single organism loosely united by the unbeatable political, economic and military hegemony of the U.S. and (to a lesser degree) Western Europe”.

A new phase of warfare was being launched, different from all that had gone before, simply because it did not involve territoriality, but the universal values proclaimed by the global hegemonic powers. It was not about the contestation for territorial space. It was not about determining what kinds of identities would have exclusive claims to domain over that space. It was not about determining whose writ would run over the space and in accordance with what manner of constitutional and legislative framework.

And yet, this is not a war that will ever end with a formal armistice. Wars are about territory and denying adversaries their claims to territorial conquest. This so-called war is about values and it is fought by denying that the enemy can ever live by those values. In short, the war on terrorism, fought “under the pretext of fighting against an existential threat, leads to the real and most dangerous threat .. of destroying liberal freedoms in a permanent state of exception”.

Nation states, the U.S. and India among many others have chosen to make this “permanent state of exception” a part of the constitutional scheme. This has created a “proliferation of laws and regulations, and laws about deregulation”. This process of “constitutionalisation” of the exception takes the war against terrorism outside the domain of representational politics and entrusts it entirely to a special cadre of experts who put themselves beyond all norms of accountability. Societies as a whole become “depoliticised” and “irreconcilable with democracy” – however construed – in their functioning.

Democracy as a principle is hard to argue with, not least because of the claim that it affords conflict resolution methods that prevent an all too ready recourse to violence. In practice, democracy in its varying idioms is applied across a physical space that claims for itself the status of a cultural unit, or nation. And democracy as a principle is embodied in specific institutions and processes of the political State. The State in turn centralises within itself all the legitimate means of coercion in a democratic political order. It holds, to quote a well-worn characterisation, a monopoly over legitimate violence.

Yet with all these agreed principles, the cultural unit of the “nation” is often defined in a manner that fails to accommodate all real and imagined communities of language, religion or ethnicity. And the processes by which these communities are dissolved into the nation-state are rarely gentle. They involve more often than not, large-scale warfare, and the ethnic cleansing and re-engineering of whole territories.

A contributor to this volume, Boyan Manchev, points out that the primeval violence through which the nation-state is created is mythologised as just and enfolded into a subsequently created juridical order. But the nation-state often fails to efface the violent circumstances of its birth. Where historical amnesia remains incomplete, the primeval violence resurfaces at various stages in the career of the nation-state, as “terror”.

The institutions of a modern democracy are not merely about enshrining certain values, drawn from a shared construction of “national” history. They are also about forgetting the more unsavoury episodes of nation formation. The “exceptionalism” of violence in democracies, in turn, is a consequence of this institutionalisation of agreed norms and practices within civil society. Once that consensus is established, the State can sheath its sword, confining its use of coercive violence to only the most extreme violations of the nationalist compact. The rampant violence that the “war on terror” has shown speaks of nothing less than a endemic crisis of the nation-state and the bourgeois-liberal doctrine that spawned it. The challenge of world politics, if it is to escape from the concentration camp that Agamben views as the norm and the logical culmination of the state of exception, is to find the formula of praxis that will transcend the self-evident limitations of this doctrine.

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