When Donald Rumsfeld designated the imprisoned Taliban fighters ‘unlawful combatants’ (as opposed to ‘regular’ prisoners of war), he did not simply mean that their criminal terrorist activity placed them outside the law: when an American citizen commits a crime, even one as serious as murder, he remains a ‘lawful criminal’. The distinction between criminals and non-criminals has no relation to that between ‘lawful’ citizens and the people referred to in France as the ‘Sans Papiers’. Perhaps the category of homo sacer, brought back into use by Giorgio Agamben in Homo Sacer: Sovereign Power and Bare Life (1998), is more useful here. It designated, in ancient Roman law, someone who could be killed with impunity and whose death had, for the same reason, no sacrificial value. Today, as a term denoting exclusion, it can be seen to apply not only to terrorists, but also to those who are on the receiving end of humanitarian aid (Rwandans, Bosnians, Afghans), as well as to the Sans Papiers in France and the inhabitants of the favelas in Brazil or the African American ghettoes in the US.
Concentration camps and humanitarian refugee camps are, paradoxically, the two faces, ‘inhuman’ and ‘human’, of one sociological matrix. Asked about the German concentration camps in occupied Poland, ‘Concentration Camp’ Erhardt (in Lubitsch’s To Be or Not to Be) snaps back: ‘We do the concentrating, and the Poles do the camping.’ A similar distinction applies to the Enron bankruptcy, which can be seen as an ironic comment on the notion of a risk society. Thousands of employees who lost their jobs and savings were certainly exposed to a risk, but without having any real choice: what was risk to those in the know was blind fate to them. Those who did have a sense of the risks, the top managers, also had a chance to intervene in the situation, but chose instead to minimise the risk to themselves by cashing in their stocks and options before the bankruptcy – actual risks and choices were thus nicely distributed. In the risk society, in other words, some (the Enron managers) have the choices, while others (the employees) take the risks.
The logic of homo sacer is clearly discernible in the way the Western media report from the occupied West Bank: when the Israeli Army, in what Israel itself describes as a ‘war’ operation, attacks the Palestinian police and sets about systematically destroying the Palestinian infrastructure, Palestinian resistance is cited as proof that we are dealing with terrorists. This paradox is inscribed into the very notion of a ‘war on terror’ – a strange war in which the enemy is criminalised if he defends himself and returns fire with fire. Which brings me back to the ‘unlawful combatant’, who is neither enemy soldier nor common criminal. The al-Qaida terrorists are not enemy soldiers, nor are they simple criminals – the US rejected out of hand any notion that the WTC attacks should be treated as apolitical criminal acts. In short, what is emerging in the guise of the Terrorist on whom war is declared is the unlawful combatant, the political Enemy excluded from the political arena.
This is another aspect of the new global order: we no longer have wars in the old sense of a conflict between sovereign states in which certain rules apply (to do with the treatment of prisoners, the prohibition of certain weapons etc). Two types of conflict remain: struggles between groups of homo sacer – ‘ethnic-religious conflicts’ which violate the rules of universal human rights, do not count as wars proper, and call for a ‘humanitarian pacifist’ intervention on the part of the Western powers – and direct attacks on the US or other representatives of the new global order, in which case, again, we do not have wars proper, but merely ‘unlawful combatants’ resisting the forces of universal order. In this second case, one cannot even imagine a neutral humanitarian organisation like the Red Cross mediating between the warring parties, organising an exchange of prisoners and so on, because one side in the conflict – the US-dominated global force – has already assumed the role of the Red Cross, in that it does not perceive itself as one of the warring sides, but as a mediating agent of peace and global order, crushing rebellion and, simultaneously, providing humanitarian aid to the ‘local population’.
[Extract. Appeared in London Review of Books on May 23rd 2002.]