Counter Terrorism Within Kant’s Morality Perspective (A Case Study Of Counter Terrorism In Indonesia)
by Amira Paripurna
Introduction
The
national and international concern on terrorism has raised since global war on
terror lead by the US government after 9/11. As a result there were
proliferations of national counter terrorism law because some countries enacted
counter terrorism law that regulate the measure to combat terrorism. Most of
the counter terrorism law supplementing the existing criminal law and changing
the way in enforcing the law.
The
measures to counter terrorism contain two aspects, which contradict each other. On one side, states oblige to protect their
citizen particularly to those who are reluctant to be a victim of terrorist
attack and to ensure the national security. On the other side, states have to
protect and respect on human rights for every person or groups who accused as a
terrorist. Concisely, states have obligation to respect and to guarantee the
balancing of fundamental rights protection within these two aspects. However,
the measures to combat terrorism tend to ignored and disrespected to the rights
of the criminal defendant so that there are many infringement of the civil
liberties, the freedom, the transparency and the accountability of the policy
mechanism.
In
Indonesia soon after the Bali bombing, the Government passed Government
Regulation in Lieu of Law No. 1 Year 2002[1] concerning
the Eradication of Criminal Acts of Terrorism and formed a special police
(hereinafter Detachment 88) to combat terrorism. Since the launched of “war on
terrorism”, The Detachment 88 performed a number of arrests, detentions, and
prosecution to the perpetrators of terrorism. However, the measured that have
been carried out by the Detachment 88 considered as discriminate and
excessive.
It
is undoubtedly that the widespread of combatting terrorism in the world of
today poses a very big ethical question and generates a set of moral question.
The questions that arise such as: how the prosecution should be conducted? Is
it ever ethically acceptable to provide lower standard of protection to
criminal defendant rights in the “war on terrorism”? What measured should
government take to respond to terrorism that is consistent with its ethical
responsibilities?
Kant
as one of the leading school of moral thought introduced moral and law conception
that can be used as a yardstick on how an action can be justified as “moral” or
‘immoral”. Therefore this paper aims to discuss and analyze the ethical
justness question of the Indonesian government measures to combat terrorism by
correlating to the Kant’s philosophy on law and moral. How relevance does
Kant’s moral philosophy conception to counter terrorism? And what does the
challenge of Kant’s idea?
Kant’s Perspective in the Usage of Deadly
Force and Extra Judicial Killing as a Moral Dilemma, Duty and Revenge
The
Indonesian government (hereinafter the government) takes strategy against
terrorism as “law enforcement” rather than “warfare”. Unlike handling ordinary
crime, the government regards terrorism as extraordinary crime therefore the
measures and its law enforcement strategy conducted in extraordinary way.
The
series of terrorism operation show the government “tough” policy concerning to
this issue. Behind this tough policy, however, there has been public criticism
that the government has erroneously bowed to the U.S. and its allies in the
fight against terrorism.[2]
The Indonesian government is considered under such pressure to conduct anti
terrorism operation and to arrest key terrorist suspects.
It
is a fact that the arrest and the detention toward terrorist suspect after the
enactment of the Counter Terrorism Law came so fast as a downpour. [3]The
measures have been taken by the Detachment 88 to combat terrorism resulted
disturbing practices and often infringing the rights of terrorist suspect. The
administrative detention for prolonged periods without charge or opportunity
for adequate judicial review, the detention without notification of family of
the date and place of detention, the excessive use of force, deadly force and
the extra judicial killing performed by Detachment 88 are the most subject of
critique. Moreover, the accountability in conducting prosecution is in
questions as well.
However,
the government justifies the excessive use of force, deadly force and extra
judicial killing. The only reason to justify those measures because
terrorism is categorized as extra ordinary crime, organized crime and
transnational crime, therefore it cannot be taken lightly.[4] In
addition, it is justified because in achieving its goal the terrorist is not
afraid to die, terrorist prepared to die perpetrating acts of terrorism even
they willing to die; if it not taken seriously (by using extra judicial
killing) then would lead numerous victim from both apparatus and civilian.[5]
The
questions then arise whether the element of counterterrorism strategy can
include the assassination of actual or suspected terrorists and their excessive
us of force in order to obtain intelligence information. Is the
counterterrorist technique of torture or even assassination morally justified?
Based
on Kant’s ethical theory, morality simply must be separate from
experience due to the very idea of duty itself. One of the principles is that
we should never use a person as a means only but should always treat a person
as ends in themselves. In other words, he believes that people have a “duty” to
avoid intending to use people solely to achieve some type of goal.
Furthermore,
on Kant’s ethical theory the categorical imperative is used as the basic law.
It contains the character of universality and the maxim to conform to the law.
By employing the principle of universalization the categorical imperative used
as a yardstick to determine the rightness of such actions or the moral worth.[6]
The categorical imperative should be the standard of measuring the morality of
actions. In addition, the characteristic which reflects an action to be judged
as ethical or morally worth is the motive, the intention or the reason behind
it not the outcome or the consequence of the achievement. It is simply to say
that the moral responsibility is derived from a state of mind.
Therefore
if we relied on the Kant’s doctrine, the use of extra judicial killing, deadly
force, excessive use of force will never been tolerated and accepted at all. It
is because those measures do not meet the categorical imperative test. [7]To
see this as the failure of categorical imperative is may be by applying the
humanity form, which states that we may only treat humanity, whether ourselves
or others, as an end and never as means only.
When the Detachment 88
used extrajudicial killing, excessive of force, torturing the suspects to handle
terrorism, it means that the Detachment 88 treating the suspects as means only;
the suspects are certainly not being treated in a manner to which the
Detachment 88 would consent. Those measures failed to respect the
suspects as an autonomous agent and constitute an attack on their dignity.
It
is no doubt that the Detachment 88 personnel sometimes placed in difficult
situation. They are asked to arrest crime when they cannot;[8]
they are compelled to use coercive force in quickly developing and uncertain
circumstances.[9]
The combination of these factors can create potent dilemmas, whose intricacies
can be simplified and disquiet can be eased through an equally potent morality.[10]
This is the circumstance in which
the Kant’s idea has not been able to give satisfactory answer.[11]
However,
in the context of counterterrorism in Indonesia, if we noticed both the fact and the statement from the head of
the Indonesian police officer, the police officers intentionally use deadly
force and even tend to use extra judicial killing. The excessive use of deadly
force is intentionally to kill the suspects instead of the self-defense
situation.
Some
people might argue that necessary to have “tough” policy in responding
terrorism, because they are evil. The evil is dangerous therefore terrorism
should be eliminated from the earth.
I
agree that we should oppose to evil, as the forces of good we should eradicate the
evil. However, in the context of criminal justice ethics particularly “the law
enforcement” of counterterrorism is never morally justified where the terrorist
suspect’s life is taken, and no process of law is adhered to that enables him
or her to bring a defense against alleged charges.[12]
As well, the outcome of an
assassination is the termination of the terrorist suspect life by the
apparatus, who takes the law into his own hands to dispense punishment that is
capital in nature and who in doing so becomes the judge of the terrorist
suspect deeds.[13]
An assassination also violates the
victim’s right to life.[14]
In addition the assassination (extra judicial killing) in the context of
countering terrorism increases the possibility of killing innocent people and
seems to mirror the acts of terrorist.
Why
we should consider the terrorist’s suspects life? Are not their actions having
threatened state security and inflicted public life? How many people have
injured and death because of the terrorism actions? Why we do not take into
consideration the state and public interest rather than thinking about the
terrorist suspect (rights)? by killing some of the “dangerous” terrorist
suspect could break the chain of terrorist network, so they can not recruit a
new of terrorist member anymore. Moreover, by killing them through ambush by
gunshot does have a shock therapy impact to the public that this is the result
when involved in terrorist networks. The terrorist will be shoot dead without
any judicial process. This is the one way to eliminate the evil and bring
satisfaction for the terrorism victim and society.
The
Indonesian government obviously support that the “tough” policy in countering
terrorism as the answer for those questions above mentioned. It is the duty of
law enforcers to keep public safety and national security. Therefore the use of
extra judicial killing or deadly force can be justified. In this stage I do not
agree, because the intention of the use of extra judicial killing or deadly
force seems more likely as “retaliation” and “deserve punishment” for the
terrorist.
People
who defend acts of revenge might claim that when a victim gets even with the
perpetrator, a moral balance is restored. The practical problem with revenge is
that likely to provoke attack, not to prevent it. It is inevitable that attack
and counterattack produce cycles of violence.
How
actually Kant’s point of view regarding on this matter? To explain Kant’s view
about it, it can be traced and back to on what Kant’s said about the good will
and duty. Kant believed that it is despicable and malevolent to take
satisfaction in bringing suffering to others. [15]This
kind of pleasure is morally unworthy of us as human being. To
cultivate and indulge vindictive sentiments in ourselves is to cultivate a
hatred of others and is contrary to every duty of humanity.[16]
Revenge may cultivate the hatred and malevolence. It makes ourselves into
agents of immorality. In addition, it violates the human duties to other
people. In Kant’s principle the morally important thing is not consequences but
the way choosers think when they make choices.
Therefore
in the context of counter terrorism, the use of extra judicial killing is
immoral. It is because extra judicial killing does not derive from the good will
in which give humans their inherent dignity. The police have acted beyond its
function; therefore it means that they acted beyond his duty and out of
inclination.
The
Challenge of Kant’s Moral Philosophy in The Context of Countering Terrorism
Kant’s deontological
theory seems highly normative and considering such circumstances as “black and
white”. In fact, our society today is much more complex, therefore, Kant’s
“black and white” concept will be very difficult to apply in our society today,
particularly in the context of countering terrorism.
Unlike
Kant’s views, the utilitarian might see the use of excessive force such as
torturing, the use of deadly force and even extra judicial killing in the
context of counter terrorism may be justifiable. [17]It
is because the intended outcome of an action is held as the primary factor in
determining morality. As far as the outcome is to eliminate the evil
(terrorism), any means used is considered has a moral worth.
Apparently,
to contextualize the Kant’s theory with counter terrorism measures quite weak.
Because Kant’s perspective cannot provide sufficient alternative when a person
(in this context is a police apparatus) faced a moral dilemma and a conflict of
duty or rights.[18]
Surprisingly, if we
linked to the condition of “war and peace”, Kant’s view is quite interesting.[19] The fundamental level
of Kant’s moral philosophy shows that how wars of self-defence against
aggression do not violate the categorical imperative. The categorical
imperative mandates that all rational agents act in such a way that: (1) all
rational agents could (also) act on the exact same principle of action; and (2)
in action, full respect is paid to the rational agency which is the hallmark of
our humanity.[20]
It
is crystal clear how we can universalize the following maxim or policy: ‘When
faced with rights-violating aggression, I reserve the right to employ those
measures, including armed force, necessary for self-defense’.[21]
Every rational agent, whether individual or collective, can endorse such a
maxim of permissible self- protection: no contradiction is involved in doing
so. In the domestic theory of justice, Kant precisely defines a just use of
force as one which ‘hinders a hindrance to freedom.”[22]
Related
to Kant’s just war theory, It is necessary to underline his important view on
‘self-defense’. It can be applied in the
context of “law enforcement” as counter terrorism strategy; therefore, the
usage of deadly force as self-defense, based on Kant’s principle can be
justified. Thus, if the police faced dilemma in handling such crime the use of
deadly force sometimes might be allowed due to the self-defense reason. In
short, deadly force should be looked at as an option that is used when it is
believed that no other action will succeed.
Conclusion
Counterterrorism
strategies have been challenged on moral grounds. Charges have been made of
abuse of government powers. It is said that the administration has acted
unethically by rejecting customary legal rules and procedures in the pursuit of
counterterrorism “victory”.
This
paper has demonstrated that the use of excessive force, deadly force, extra judicial
killing in countering terrorism is immoral based on Kant’s doctrine. It is
because those approaches failed to meet the three of Kant’s principle namely
good will, duty and categorical imperative. However, by applying “Kant’s Just
War Theory”, the use of deadly force and excessive force in term of
self-defense can be justified.
It
is the duty of law enforcers to prevent individuals who have chosen terrorist
affiliations from acting on their decisions to commit violent acts. However
over reaction and repression such as the excessive of force, deadly force and
particularly the extra judicial killing must be avoided, since it violates the
human dignity and could have effect of eroding democracy. Preventive approach
must be put forward rather than the repressive approach. The use of deadly
force must be laid in the context of “self-defense”. It should be used as an
option when it is believed that no other action will succeed.
REFERENCES
Books
Alex J. Bellamy, Just Wars
From Cicero to Iraq, Polity Press, Cambridge, 2006.
C.A.J. Coady, Morality and
Political Violence, Cambridge University Press, New York, 2008.
Cyndi Banks, Criminal Justice
Ethics: Theory and Practice, Sage Publication, London, 2008
Trudy Gravier, What Philosophy
Can tell Us About Terrorism, Westview Press, Oxford, 2002.
Timothy Lynch, In the Name of Justice: Leading Experts Reexamine the
Classic Article “The Aims of The Criminal Law, Cato Institute, Washington DC,
2009.
Stephen Nathanson, Terrorism
and The Ethics of War, Cambridge University Press, New York, 2010.
Victor V. Ramraj, Michael Hor, Kent Roach, Global Anti-Terrorism Law
and Policy, Cambridge University Press, New York, 2005.
Journal
Brian Orend, Kant’s Ethic of War and Peace,
Journal of Military Ethics (2004) 3(2); 161-177.
Fritz
Allhoff, Terrorism and Torture, International Journal of Applied Philosophy
(2003), 17(1): 105-118.
Tomas
Baum, A Quest for Inspiration in The Liberal Peace Paradigm: Back to Bentham?,
European Journal of International Relation (2008) 14(3):431-453.
Steve Herbert,
Morality in Law Enforcement: Chasing “Bad Guys” with the Los Angeles Police Department,
Law& Society Review (1996) 30(4):815.
[1] In 2003 this regulation were
confirmed by the legislature and have become Anti-Terrorism Law No.15 Year
2003.
[2] Hikmahanto Juwana, Indonesia’s Anti Terrorism Law in Global
Anti-Terrorism Law Policy, in Global Anti-Terrorism Law
and Policy 295, 303 (Victor V. Ramraj ed., 2005).
[3] Amira Paripurna, The Right to A Fair Trial and Combating
Terrorism: The Case of Indonesia 6 (Oct. 4-5, 2010) (Unpublished paper
work, presented on the 1st International Conference on Progressive
Development of International Law (CILS) Jakarta, on file with the Indonesia
University of Indonesian Journal of International Law (IJIL).
[4]Mabes
Polri Dukung Aksi Densus Main Tembak, Okezone.com, http://news.okezone.com/read/2011/05/24/337/460399/mabes-polri-dukung-aksi-densus-main-tembak
(last visited Nov.27, 2011).
[5] Id.
[6] Shandon L. Guthrie, Immanuel Kant and The Categorical Imperative
(Nov.13,2011), http://sguthrie.net/kant.htm.
[7] The maxim “ I killed the suspects”
would arise a contradiction in will when universalized and compared with my
standing intention that would entail the desire that “ if I killed them—the
suspects, I will not be killed”.
[8] Steve
Herbert, Morality in Law Enforcement:
Chasing “Bad Guys” with the Los Angeles Police Department, 30 Law&
Society Review, 799, 815 (1996).
[9] Id.
[10] Id.
[11] The discussion on to what context
the use of deadly force does not violate categorical imperative will be
elaborated in the next part of this paper.
[13] Id.
[14] Id.
[16] Id.
[17] See Fritz Alhoff in Terrorism and
Torture (2003), there are such conditions that torture is morally permissible.
[18] Comparing to Robert Nozick, Kant
seems has the same position with Nozick. Nozick argued that rights violations
are always unjustifiable even it is importantly to use in order to prevent
further rights violations; therefore he rejected the “utilitarianism of
rights”. See further in Fritz Allhoff (2003).
[19] Kant position is neither “pacifist”
nor “realist”. His just war theory is aimed to limiting the incidence of the
destructive war.
[21] Id,
168-169.
[22] Id,169.
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