From the Introduction...
Introduction: Perspectives on International
Terrorism
Methodological Perspective
Definition, Characterization, and Context of
International Terrorism
Identification of Certain Characteristics of
Terroristic Violence
Classification of Perpetrator's Motives and the
Strategies of Terror Violence
Individual Terrorism: The
Ideologically-Motivated Perpetrator
State-Sponsored Terrorism: Motivation
Comparing Individual and State-Sponsored
Terroristic Motivation
Goals of State-Sponsored Terrorism
Destroying Active Resistance and Nullifying
Opposition
Destroying Passive Resistance and Asserting
Control
Counter-Strategies to Terror-Violence:
Controlling the Individual Through Penal
Sanctions
Theories of Punishment and Their Application to
Terrorists
International Cooperation and Preventive Law
Enforcement
The
Machinery for Cooperation
The
Political Offense Exception
State Responses to Individual
Non-State-Sponsored Acts of Terror Violence
Control of
State Terrorism
Assessment of Enforcement Means
State Responses to Individual Terror-Violence
and the Rights and Responsibilities of Other
States
Assessing Terrorism into the New Millennium
Policy Considerations on Inter-State Cooperation
in Criminal Matters
Enforcement Assumptions and Policies
Integrating the Modalities of Inter-State Cooperation for
the Prevention, Control and Suppression of International,
Transnational and Domestic Criminality
Principles and Policies for the Increase
in Effectiveness of the Indirect Enforcement
Scheme
Concluding Assessment on Inter-State Cooperation
Introduction: Perspectives on International
Terrorism
Terror-violence, commonly referred to as "terrorism," has
been a matter of legal concern to the international
community since 1937, with the League of Nations' drafting
of the Convention for the Prevention and Punishment of
Terrorism.[1] Subsequently, the United Nations, as a result
of a spate of aircraft hijacking incidents, began its work
in connection with terrorism in 1963.[2]
Since then, and
throughout the last sixty-two years the United Nations has
focused essentially upon individual or small group violence
directed against civilians, diplomats, civilian aircrafts,
commercial maritime navigation and sea-based platforms and
attacks involving the use of explosives and weapons of mass
destruction.
The United Nations work has focused on
state-actors as parties responsible for implementing efforts
to combat, suppress and prevent terror-violence, while
sidestepping possibilities of terror-violence committed by
state-actors themselves.
During that period of time, however, technological advances
in the fields of transportation, communication and weapons
increased the actual, as well as, the perceived, dangers
faced by civil society, particularly those presented by the
possible use of chemical, biological and nuclear weapons at
the hands of non-State actors. The combination of increased
dangers and threat perceptions has produced a climate of
understandable concern in governments and general
populations, especially in Western societies which feel more
vulnerable to these threats.
This symbiotic relationship between terror inspiring
violence events and their psychological impact on societies,
has enhanced the concerns of governments whose functions are
to prevent such occurrences from happening. These concerns,
however, have frequently been manipulated by the media and
politicians who saw these issues as an opportunity to
advance individual or political party agendas.[3] The media
and political manipulation of the question have contributed
to a climate of fear and heightened public perceptions of
vulnerability.
The dissolution of the Soviet Union in 1991 instigated fears
that nuclear weapons would fall into the wrong hands and be
used for purposes of terror violence or blackmail. Although
these apprehensions failed to materialize, the world
community has increased its vigilance against possible
terrorism involving the use of nuclear and other weapons of
mass destruction, such as chemical and biological weapons.
Though the later two are more accessible to State and
non-State actors and relatively easy to use, there has been
only one incident involving the use of chemical weapons by
non-State actors for purposes of terror-violence, and no
significant attacks involving biological agents since their
use in World War II. The incident involving chemical weapons
occurred on March 20, 1995 when a religious cult released
sarin gas in a Tokyo subway station, resulting in a dozen
deaths and thousands more injured.
The low level of occurrence of such dangers does not,
however, suggest that the dangers arising out of the
particular use of weapons of mass destruction should be
taken lightly by governments. These occurrences increased
societies' perception of vulnerability to acts of terrorism
and heighten public anxieties, thus predicting the need for
governments to implement precautionary measures against such
attacks.
The phenomenon of terrorism includes the actual dangers of
terror-violence faced by contemporary societies, the
reasonably perceived threats of their potential occurrence
and the unreasonable threat perceptions of these dangers.
The elimination of this phenomenon has generated a new
world-wide climate of fear, as well as, a new sense of
urgency to develop adequate means to prevent such
occurrences. This situation lead to the development of
domestic and international mechanisms to prevent, control
and suppress acts of terror-violence. States developed
national specialized legislation granting enforcement power
to various agencies of the executive branch of government
and international mechanisms of law enforcement,
intelligence, prosecutorial and judicial cooperation through
bilateral and multilateral treaties.
Although both national, regional and international
enforcement mechanisms developed legal responses to control,
prevent and suppress terrorism, these legal responses also
produce some control mechanisms, such as intelligence
sharing, which are beyond the reach of the law. In recent
years these modalities have curtailed civil and political
liberties of the suspects and accused during the processes
of the investigation, prosecution and adjudication of cases
involving terrorism. Most of the substantive treaties
relating to terrorism have been developed by the
international community within the context of the United
Nations and its Specialized Agencies. Regional multilateral
organizations, such as the Council of Europe[4] and the
Organization of American States[5] have likewise developed
substantive treaties relating to terrorism.
The United Nations work on terrorism has essentially been
conducted by the General Assembly's Sixth Committee, through
the Security Council, the Economic and Social Council and
certain Specialized Agencies, such the International Civil
Aviation Organization, the International Maritime
Organization and the International Atomic Energy
Organization. The subject matter oriented approach to
prevent, control and suppress terrorism dominated the work
of the Ad Hoc Committee on International Terrorism in 1973,
1977, and 1979 because efforts to develop a comprehensive
definition of "international terrorism" proved politically
difficult.[6]
The first Report of the Ad Hoc Committee
on International Terrorism, set up pursuant to General
Assembly Resolution 3034 (XXVII) of December 18, 1972,
demonstrated that a comprehensive definition of "terrorism"
was unfeasible, due to the diversity of member-States'
views. The contentious issues that arose included: the
characterization of who is an innocent victim, the disparate
power relations between forces fighting in wars of national
liberation and colonial or occupying forces and the legal
consequences of actors' motivation.
These contentious issues were also
exacerbated by the divisions existing during the Cold War
between 1949 and 1989. The major powers of the West sought
to limit the definition of "terrorism" to individual and
small group conduct, excluding actions by States involving
police and military operations, irrespective of their
legitimacy, while other States, particularly the nonaligned
States, wanted to include consideration of terror-violent
actions by States particularly in connection with the use of
armed force. This broader application of "terrorism," while
furthering State-responsibility to encompass all forms of
illegitimate State conducted or State sponsored violent
activities–including those of a military or paramilitary
nature–also extend individual criminal responsibility to
agents of the State.[7]
The fifteen conventions and two draft convention directly
pertaining to the suppression, control or prevention of
"terrorism" [hereinafter the seventeen conventions] are:
Convention on the High Seas;
Convention on Offenses and
Certain Other Acts Committed on Board Aircraft;
Convention
for the Suppression of Unlawful Seizure of Aircraft;
Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation;
Convention on the Prevention and
Punishment of Crimes Against Internationally Protected
Persons; International Convention Against the Taking of
Hostages;
Convention on the Prevention and Punishment of
Crimes Against Internationally Protected Persons, including
Diplomatic Agents;
International Convention Against the
Taking of Hostages;
Convention on the Physical Protection of
Nuclear Material;
Convention on the Law of the Sea;
Protocol
for the Suppression of Unlawful Acts of Violence at Airports
Serving International Civil Aviation;
Convention for the
Suppression of Unlawful Acts Against the Safety of Maritime
Navigation;
Protocol for the Suppression of Unlawful Acts
Against the Safety of Fixed Platforms Located on the
Continental Shelf;
Convention on the Marking of Plastic
Explosives for the Purpose of Detection;
Convention on the
Safety of United Nations and Associated Personnel;
International Convention for the Suppression of Terrorism
Bombings;
International Convention for the Suppression of
Financing of Terrorism; Draft Convention on the Suppression
of Acts of Nuclear Terrorism; and
the Draft Convention on
International Terrorism.[8]
The first multilateral convention created with the specific
purpose to suppress acts of terrorism was the Convention on
Offenses and Certain Other Acts Committed on Board Aircraft
[hereinafter Tokyo Convention on Offenses on Board
Aircraft], developed under the auspices of the International
Civil Aviation Organization and entered into force in
1963.[9] The most recently adopted Convention is the
Convention for the Suppression of Financing of Terrorism in
1999 [hereinafter Financing Convention].[10] Still pending
are the Draft Convention on the Suppression of Acts of
Nuclear Terrorism and India's Draft Comprehensive
Convention.
The seventeen conventions deal with
specific manifestations of "terrorism," namely: the
hijacking of civil aircraft; sabotage of civil aircraft and
air navigation facilities; attacks on international
airports; attacks on internationally protected persons and
kidnappings of diplomats; the taking of hostages; attacks on
civil maritime targets and on fixed platforms on the
continental shelf; the financing of terrorist activity; the
use of bombing and explosive devices against civilian
installations and persons.
An analysis of the subject matter
of these conventions reveals that four of the sixteen
conventions deal specifically with attacks upon civil
aviation, four conventions encompass attacks upon civil
maritime navigation and sea based platforms, three cover
attacks upon persons, including hostages, diplomats, United
Nations personnel and other internationally protected
persons, one covers the means of financing acts of
terror-violence and four involve the use of explosives and
weapons of mass destruction, specifically nuclear weapons.
While these seventeen conventions deal directly with
specific means of terror violence, other international
treaties also apply indirectly to violent acts associated to
terrorism. For example, the Universal Postal Union, an
agency mainly concerned with the licit international
regulation, standardization and cooperation of mail
delivery, included prohibitions against the unlawful use of
the mails for bombings. The Universal Postal Union
Convention and the Postal Parcels Agreement, since 1964,
prohibit the insertion of any explosive, flammable or other
dangerous substance, in letter-post items.[11] These
prohibitions extend to articles which, by their nature or
their packing, may expose officials and recipients to
danger.
While the prohibitions contained in the
Universal Postal Union treaties apply to individual conduct,
international treaties concerning weapons of mass
destruction only extend their prohibitions to State-Parties.
Thus, the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on
their Destruction (hereinafter Chemical Weapons
Convention][12] and the Convention on the Prohibition of the
Development, Production, Stockpiling of Bacteriological and
Toxin Weapons and on their Destruction [hereinafter
Biological Weapons Convention),[13] renders it illegal for
any State to use or sponsor the use of chemical or
biological weapons, thus prohibit State conducted or State
sponsored use of chemical and biological terrorism. No such
prohibitions, however, apply to the use of nuclear weapons
by States, although a convention concerning the physical
protection of nuclear materials does render States a duty to
cautiously deal with such weapons.[14]
The seventeen conventions, which resulted from this
piece-meal approach, are relatively narrow as to their
respective subject matter and reflect a variety of content,
specificity and style. Although breaking up the larger
problem of "terrorism" into manageable parts is easier and
more politically acceptable to the majority of States
Parties, the piece-meal approach does not account for, nor
justify, the lack of specificity, the ambiguities and the
gaps contained within and among these Conventions.[15]
These
shortcomings are due essentially to the processes of the
United Nations and the fact that the majority of the
participants involved in the treaty making process are
diplomats who either have limited expertise in international
criminal law, or who are more concerned with reaching
consensus than with the ultimate quality of the legal
product.
Notwithstanding their diversity, these conventions, share
the six modalities of international cooperation in penal
matters, namely: extradition, mutual assistance, transfer of
criminal proceedings, transfer of prisoners, seizure and
forfeiture of assets and recognition of foreign penal
judgments.[16] These seventeen conventions, nevertheless,
differ as to the inclusion of all or some of these six
modalities, as well as, the articulation of the legal
obligations pertaining to these modalities.
Furthermore,
many provisions use language which may lead to differing
interpretations, thus causing confusion as to what the
applicable law may be.[17] This discrepancy in language
allows for State Parties, seeking to avoid there obligations
to prosecute or extradite terrorists within their
jurisdiction, to achieve that result with some plausible
justification.[18]
In 1996, India proposed to the General Assembly the need to
establish a comprehensive convention on terrorism.[19] For a
variety of reasons, mostly lack of political will, this
proposal was never followed through. However, in August
2000, India submitted a revised draft of the 1996 proposal,
which is presently being considered in the Ad Hoc
Committee.[20]
A comprehensive convention which combines all existing
conventions pertaining to terrorism into a single updated
text would significantly advance the overall objectives of
these conventions. Such a comprehensive text would
contribute to the elimination of overlaps, gaps and
ambiguities which currently exist in the sixteen separate
subject matter conventions. It would also eliminate the need
to consult multiple legal sources in order to enforce State
Party obligations. If this piece meal subject-matter
approach trend continues, there is no end to the number of
conventions likely to be developed over the years to come,
and there is no hope to make the legal mechanisms contained
within each convention more effective.
Methodological Perspective
All forms of violence can be placed on a single continuum.
Distinctions as to goals, means, perpetrators and victims
are based on socio-political judgments in order to devise
modalities of social and legal controls.
It is axiomatic
that all forms of violence cause harm to persons and things,
and that all societies grade the nature and severity of the
harm which is produced in order to develop appropriate
responses to control and prevent such harm.
Equally
self-evident is the fact that every form of violence is
potentially terror-inspiring to its victim and to those it
indirectly affects. These truisms do not, however, mean that
the manifestations and consequences of violence lack
complexity as to their causes and with respect to the
policies and means which are necessary for their prevention
and control.[21]
It is important to distinguish between three concepts that
are frequently used interchangeably, namely: "terror,"
"terrorism," and the "terrorist."[22] "Terror" is a general
concept of emotionally enhanced fear. "Terrorism" is
descriptive of the processes of terror-violence.
"Terrorist" is the label society attributes to the
perpetrator of a terror-inspiring act.
Therefore, to refer
to "terrorism" without a clear understanding of the term's
meaning and scope is misleading, though popularly and
politically useful. "International terrorism" is also a term
that requires defining. However, to define "international
terrorism" in a way that is both all-inclusive and
unambiguous is very difficult, if not impossible. Thus, it
now simply means that the present conduct is prohibited by
an international convention.
One of the principal difficulties we face in dealing with
terrorism lies in the fundamental values that are at stake
in the acceptance or rejection of terror-inspiring violence
as a means of accomplishing a given goal, particularly when
that goal reflects certain values.
The wide range of views
on these issues make the development of a definition of
"terrorism," a politically unfeasible undertaking.
Therefore, the search for an internationally agreed upon
definition may well be a futile and unnecessary effort.[23]
This does not exclude the development of a subject-matter
definition of "international terrorism" based on the
identification and appraisal of the elements of this
multifaceted phenomenon.[24] Such a working definition must
reflect a consensus of the world community's commonly shared
values and expectations. In the process of achieving that
consensus, strengthening the world community's values and
expectations should also lead to the development of more
effective social and legal control mechanisms at the
national and international levels.
There is, however, no internationally agreed upon
methodology for the identification and appraisal of what is
commonly referred to as "terrorism," including: causes,
strategies, goals, and outcomes of the conduct in question
and as to those who perpetrate violent conduct against
protected persons or targets or who engage in such conduct
in an unlawful manner. There is also no international
consensus as to the appropriate reactive strategies and
means of individual states and the international community.
As a result, it is difficult to identify who, why, how, or
what is sought to be prevented, controlled and
suppressed.[25] Therefore, the pervasive and indiscriminate
use of the often politically convenient label of "terrorism"
continues to both mislead and make ambiguous the phenomenon
of terror violence.[26]
One of the consequences of this ambiguous and misleading
situation is that world attention has focused almost
exclusively on individual acts of terrorism with little
attention given to state-conducted terrorism.[27]
Furthermore, some terror-inspiring common crimes with
transnational dimensions, such as narco-terrorism, are
substantially excluded from the literature on terrorism.
That may be due to the fact that most commentators on
terrorism are from a political-science background who have
only in the last decade become more conscious of the
interrelated problems of narco-trafficking, organized crime
and terrorism.[28]
Quantitatively and qualitatively, individual terrorism
causes much more limited harm than either domestic common
crimes or state-conducted terror-violence.[29] This
distinction, however, is not reflected in public attitude,
legal literature on the subject, government policies and
international reactions, given some exceptions.
This is due
in large part to the media's role in creating and
reinforcing perceptions and to the media's attributions of
the scope, and harm produced by some forms of terrorism.[30]
This media created situation explains, in part, why the
individual, ideologically-motivated terrorist carefully
selects certain targets in order to ensure that the act has
both the intended political impact and terror-inspiring
consequence as disseminated through the media's coverage.
The worldwide concern with individual terrorists over the
last two decades is not, however, due exclusively to media
coverage, but also to the policies of some states, who for
political reasons, have sponsored or given support, aid or
comfort to such perpetrators.[31] Thus, state-sponsored
terror-violence must be addressed in addition to all other
forms of individual non-state-sponsored terror-violence. In
addition however, we must address the question of
state-conducted acts of terror-violence whether domestically
or international.
Meeting this challenge requires improving
and enhancing techniques for conflict resolution, enforcing
internationally protected human rights, and enforcing
international humanitarian law.[32] In short, a global and
comprehensive approach based on commonly shared values,
applied consistently and in good faith, is indispensable if
the international community is to ensure a better result in
the prevention, control and suppression of all forms and
manifestations of terror-violence. Admittedly, however, it
is much more difficult to deal with state-conducted acts of
terror-violence than with individual ones. But without
consistency in policy, normative formulation, and
implementation practices based on ethically premised and
commonly shared values, the world community surrenders the
high moral ground, which is indispensable for inducing
greater international compliance.[33]
Lastly, there is the question of whether new international
norms are needed in order to cope with terrorism. It is this
author's belief that what is needed is not so much the
development of new international norms, but a refinement of
existing norms and the effective enforcement and consistent
application of these relevant norms.[34] Detailed
regulations for armed conflicts already exist, whether of an
international or non-international character, which protect
certain persons and targets from violence.[35]
A number of international conventions
also specifically protect certain targets, which have
historically been victim to acts of terror-violence, such
as: international conventions on piracy,[36] hijacking,[37]
kidnapping of diplomats,[38] civilian hostage-taking,[39]
and unlawful use of the mails.[40] There are, however,
insufficient legal norms to adequately regulate contemporary
forms of internal civil conflicts.[41] In these two
contexts, experience since World War II has tragically
indicated that the existing normative framework is
insufficient.[42] In addition, there are practically no
effective means to ensure compliance with, and enforcement
of, these norms. Furthermore, effective enforcement of
existing conventions, by means of greater inter-state
cooperation in penal matters, such as extradition[43] and
judicial assistance, is still needed.[44] But differences in
perceptions and values continue to divide scholars and
policy-makers in the determination of an appropriate
approach to international penal cooperation.
Definition, Characterization, and Context of International
Terrorism
The initial problem in defining "terrorism" stems from
various popular perceptions and misconceptions, which
ultimately condition the political and legal meaning of the
term. Legal literature reflects a shared perception as to
certain types of prohibited conduct which target civilian
aircraft, innocent civilians, diplomats and other
internationally protected persons, civilian installations,
archaeological and cultural monuments, artifacts and
records.[45]
But there is no agreement as to just who the
persons deemed "innocent civilians" or genuine diplomats
are, or what constitutes purely civilian installations or
legitimate targets. This confusion stems, in part, from the
mass media's indiscriminate and inconsistent use and
application of the term "terrorism," as well as, government
pronouncements, which are influenced in turn by the
political or ideological content of the term, thus
reflecting differing values. It is best expressed in the
maxim: "what is terrorism to some is heroism to others."[46]
Efforts to define terrorism have met with the resistance of
some governments who, in the absence of commonly shared
values and agreed-upon goals and means, prefer the ambiguity
of the undefined term while other states have sought an
internationally agreed-upon definition of "terrorism." That
result has yet to be attained, if indeed it is attainable at
all.[47]
Despite the difficulties involved, several commentators have
struggled to develop a definition.[48] This author proposed
a working definition, which subsequently received a
significant degree of international acceptance, at the 1973
international conference.[49] If a definition is at all
possible, or necessary, then it should be descriptive in
order to allow for the development of a non-inclusive list
of specifically prohibited acts which would, as much as
possible, be devoid of political subjectivity and bias.
This
author expressed this position at the United Nations'
Meeting of Ad Hoc Experts on International Cooperation for
the Prevention and Control of the Various Manifestations of
Crime, Including Terrorism which convened at the
International Institute of Higher Studies in Criminal
Sciences (Siracusa, January 20-24, 1988). The group adopted
this approach and most of the textual formulation that
follows, which were originally prepared by this writer and
contained within the Draft Working Paper submitted to
meeting. The United Nations Inter-Regional Meeting of
Experts (Vienna, March 14-18, 1988) accepted this report.
"Terrorism" may thus be defined as:
an ideologically-motivated strategy
of internationally proscribed violence designed to
inspire terror within a particular segment of a given
society in order to achieve a power-outcome or to
propagandize a claim or grievance, irrespective of
whether its perpetrators are acting for and on behalf of
themselves, or on behalf of a state.
This definition includes strategies of
terror-violence engaged in by individuals acting on their
own, as part of a small group, or on behalf of a state,
irrespective of their goals or their claimed justification.
The definition, however, excludes conduct that is not
motivated by ideological or political goals and purposes.
The unlawfulness of the violent means employed is determined
by international legal norms. Individual international
criminal responsibility is just one consequence of violating
these norms.[50]
In order to be deemed international, acts of terror-violence
must contain an international element, be directed against
an internationally protected target, or violate an
international norm.[51]
A. An act of terror-violence contains an international
element when:
(1) the perpetrator and victim are citizens of different
states; or
(2) the conduct is performed in whole or in part in more
than one state.
(3) the perpetrator is a citizen of one state and the act is
committed in another state.
B. Internationally-protected targets are:
(1) innocent civilians, whether protected by international
legal instruments or not;
(2) duly-accredited diplomats and personnel of international
organizations acting in their official capacities;
(3) international civil aviation and international civilian
maritime navigation;
(4) the mail and other means of international
communications; or
(5) members of non-belligerent armed forces.
C. A power-oriented outcome is: an outcome which is aimed at
changing or preserving the political, social or economic
structures, or the policies, conduct, or practices of a
given state by means of coercive terror-violence strategies.
D. Internationally proscribed conduct applicable to
terror-violence includes:
(1) aggression;
(2) war crimes;
(3) crimes against humanity;
(4) genocide;
(5) apartheid;
(6) unlawful human experimentation;
(7) torture;
(8) slavery and slave-related practices;
(9) piracy, and unlawful acts against the safety of maritime
navigation;
(10) hijacking and sabotage of aircraft, and acts of
violence at airports;
(11) kidnapping of diplomats and other internationally
protected persons;
(12) taking civilian hostages;
(13) serious environmental damage; or
(14) serious violation of fundamental human rights.
Within the framework of this definition, international
terrorism arises in the following contexts:
1. Armed conflicts of an international character or of a
non-international character:
A. Conventional Wars
The intended power outcome is victory over the enemy, or the
subjection of an enemy population or territory, to foreign
control.
B. Wars of National Liberation
(1) against settler regimes, the intended power outcome is
either the removal of the settlers or the transfer of power
from the settler group to the indigenous population;
(2) against foreign occupation and/or colonial regimes, the
intended power outcome is the total removal of the foreign
occupation or colonial presence.
2. Internal political conflicts which may or may not involve
an armed conflict of non-international character.
A. Between opposing ethnic, racial, religious, or linguistic
communities.
The intended power outcome is either the social, economic or
political transformation of existing structures, or the
breaking of the political unity of the state;
B. Between those seeking to effect social or political
transformation of existing structures or the breaking of
political unity of the state;
C. Between individuals or groups seeking to propagandize a
claim or grievance and organized society.
The power outcome is the advocacy of a given claim or
grievance.
Within these contexts, a distinction must also be made
between individual terror-violence, small group
terror-violence, and state-sponsored terror-violence.
Individual and small group terror-violence may occur in the
context of wars of national liberation or internal political
conflict which may, or may not be, deemed conflicts of a
non-international character within the meaning of the Geneva
Conventions of August 19, 1949 and the 1977 Additional
Protocols.[52]
State conducted or state-sponsored terror-violence may occur
in the context of wars of international or non-international
character, military occupation, support for individual and
small group terror-violence, or in the maintenance of
political regimes by means of serious violations of
internationally protected fundamental human rights.
Finally, there should no longer be a place in contemporary
international law for distinguishing between the law of war
and the law of peace and jus ad bello and jus in bellum.[53]
The development of contemporary international law should be
more clearly and unambiguously focused on proscribing
certain forms of violence, irrespective of by whom, where,
or why such violence occurs. Contemporary debates over the
legitimacy of wars of national liberation, radical
revolution movements, and states' national security
interests have tended to obscure the clarity of this focus.
These debated are analogous to the debate during the middle
ages over just and unjust wars without regard to the means
employed or harm produced.[54]
Even so, "international terrorism" is, to some extent, more
easily definable, or at least more clearly identified than
its purely domestic counterpart, which can include acts
committed by common criminals. Thus, the two essential
distinguishing characteristics of terrorism are: (1) the
ideological motivation of the actor; and (2) the political
purpose, or power-outcome, contemplated by the act of
violence.[55]
The question, however, remains with a number
of scholars and government experts as to whether "terrorism"
should be defined, or whether it is better to substantively
identify those acts which are prohibited by international
law and require international cooperation with respect to
their prevention, control and suppression.[56]
The increasing volume and spectacular nature of individual
terror-violence acts since the 1960s,[57] their
transnational effects, and the mass media's publicity of
such acts, have combined to generate a disproportionately
high level of worldwide concern with the aspect of
terrorism. As a result, terrorism, like street crime in many
states, has become an emotional law-and-order issue with
added international and ideological dimensions.[58]
As
stated earlier, however, state-sponsored and state-conducted
acts of terror-violence and other forms of serious
deprivation of human rights remain largely outside the scope
of contemporary international and national efforts to
prevent and control all forms and manifestations of
terror-violence.[59]
As with other value-laden problems, remedies to control and
prevent its manifestations have been inadequate and largely
ineffective. These remedies range from armed preparedness by
governments and private vigilante groups to government
censorship and control of the media, usually employed for
the benefit of governments involved. Nearly every proposed
or enacted piece of legislation in the world that purports
to prevent and control individual terrorism exists in the
nature of repressive penal and administrative measures.[60]
These measures needlessly create new categories of crimes or
increase the penalties for violations of existing law.[61]
The temptation to legislate these problems out of existence
has and will continue to prove futile.
The phenomenon of
terrorism thus requires a more careful analysis of the
characteristics of terror-violence as they relate to the
proposed definitions of "terrorism." More particularly,
analysis demands a distinction between domestic terrorism
and international terrorism, and even within that category,
a distinction between state-sponsored and
non-state-sponsored conduct.
Identification of Certain Characteristics of Terroristic
Violence
The purpose of any definition of criminal behavior is to
clearly state the proscribed conduct for which a sanction is
to be applied in order to prevent and control such harmful
behavior. To accomplish this goal, a definition must
identify those harmful consequences it seeks to prevent and
the behavior it seeks to control. Since there are different
types of terror-inspiring violence, one must first identify
the characteristics commonly attributed to terrorism in
contrast to similar acts of violence which are not regarded
as such. The reasons for the consensus, or lack thereof,
regarding the inclusion or exclusion of certain acts of
violence from the category of terrorism must also be
appraised.
The following example illustrates the problem of the same
act falling within or without the scope of terrorist
conduct. Consider the bombing of a restaurant. If an
individual, claiming to be acting for and on behalf of a
group dedicated to the overthrow of the government of the
state in which the act occurred bombed the restaurant, the
act is terrorism. If, however, the perpetrator is the owner
of the restaurant and destroys it in order to collect
insurance, the act is not "terrorism."
The following characteristics assist in understanding why
one act constitutes terrorism and the other does not:
1. Motivation
The motives of the perpetrator[s] are ideological rather
than personal profit.
2. Resulting Harm
The resulting harm to life or property presents no personal
benefit for the ideologically-motivated offender, whereas it
is personally beneficial for the common criminal.
3. Target
The ideologically-motivated offender's selection of the
target does not necessarily bear a relationship to his
ultimate goal or purpose, whereas, for the common criminal,
the target is either the goal or is essentially linked to
the goal.
4. Publicity
The ideologically-motivated offender seeks publicity for the
act, whereas the common criminal shuns publicity.
5. Desired Outcome
The outcome sought by the ideologically-motivated offender,
usually the dissemination of a particular claim, does not
necessarily bear a relationship to the target, whereas for
the common criminal the desired outcome and target are, more
often than not, one in the same.
6. Risk-taking
The ideologically-motivated offender will weigh the risks
incurred in perpetration of the acts against the ultimate
goal sought to be achieved, or against other ideological or
political benefits to be obtained, that are not necessarily
inherent in the primary target, whereas the common criminal
will weigh the risks incurred against any immediate material
benefits he can derive from the very act.
7. Methodology
The contemplated harm resulting from a given act will
usually be less of a consideration in the decision-making
process of the ideologically-motivated offender than that of
the common criminal. As a direct result, the
ideologically-motivated offender will usually perpetrate the
act in a manner designed to ensure maximum effect in
relationship to his goal, irrespective of the harm produced
thereby. The common criminal will usually resort to only
those means most likely to accomplish the immediate result,
incurring the least possible risk of harm.
This analysis emphasizes the cause and effect relationship
between act and outcome, and between means and end. Each is
much more complicated with respect to
ideologically-motivated offenders than with respect to
common criminals. The conduct of common criminals can
usually be evaluated relative to a single goal, personal
profit, while the goals of ideologically-motivated offenders
must be analyzed at three levels:
(1) Must the target be directly attacked in order to achieve
the tactical objective?
(2) Is the strategic objective of the act: mass media's
dissemination of the ideological claim, or the effect of the
act, or both?
(3) The power outcome, or the achievement of the desired
political impact, is varied.
The observations presented above do not always sufficiently
distinguish between similar types of acts which have the
same elements of terrorism. For example, where a public
official is implicated in a case of torture, motivation is
determinative. If the act is perpetrated in order to further
a bribe, it is a common crime. If the act is perpetrated in
order to elicit a confession, it is an international
crime.[62] Thus, the degree of public consensus in defining
an act labeled as "terrorism" is largely subjective, because
it depends on the perpetrator's motives. As a result, if the
act is committed by an ideologically-motivated offender,
irrespective of the characteristics of the act, it is deemed
terrorism. When persons who are not ideologically-motivated
commit the exact same act, it is not labeled as "terrorism."
This labeling process is based on five factors:
(1) the professed or perceived motivation of the
perpetrator,
(2) the actor's self-stated goal,
(3) the target of the act,
(4) the intended audience which is, or could be, subject to
the terror-inspiring act of violence, and
(5) the evidentiary or causal link between the above
factors.
The primary distinguishing factor, which permeates all
others, is the subjective motivation of the perpetrator. But
why should the primary focus depend on the actor's
subjective state of mind instead of the actor's objective
conduct? In other words, why not move away from the actor's
subjective characterization of his conduct or the state's
evaluation of the ideological motivation of the actor to a
more neutral objective characterization of the act? In
short, why not characterize an act of killing innocent
civilians as an objective crime, irrespective of the
perpetrator's ultimate goal? This avoids unnecessary and
cumbersome rationalizations for graduated distinctions of
quasi-justifiable or quasi-excusable crimes. Instead, why
not rely on fundamental principles of criminal
responsibility that have long been recognized and applied in
every legal system of the world as a basis for
accountability.
Classification of Perpetrator's Motives and the Strategies
of Terror Violence
Perpetrators are classified according to their acts,
according to their motives, or a combination of both. In the
context of terror violence, the classification made in
international law and by most countries is, as stated above,
essentially made on the basis of the perpetrator's motives.
This subjective approach is also relevant to state-sponsored
terror-violence. State-sponsored terror-violence is
implicitly excluded from the generally accepted meaning of
"terrorism," presumably because it reflects the political
goals of the state. Both are wrong.
Individual Terrorism: The Ideologically-Motivated
Perpetrator
Individuals who engage in acts of terror-violence act out of
complex motives.[63] Thus, a rigid or precise classification
of "terrorists" is necessarily artificial. It is
nevertheless useful, for analytical purposes, to identify
four basic categories:
(1) common criminals motivated by
personal gain;
(2) persons acting as a consequence of a
psychopathological condition;
(3) persons seeking to
publicize a claim or to redress a grievance; and
(4)
ideologically-motivated individuals acting pursuant to
actual or perceived political reasons.
The third of these
categories is sometimes subsumed in the fourth. The fourth
category, more than the other three, seems to fascinate
writers, terrify the public, and intrigue the media.
Ideologically-motivated offenders have received, or seek to
confer upon themselves, a special status by virtue of their
purported adherence to higher political or ideological
values. This applies irrespective of whether these actors
commit common or international crimes that are seldom, if
ever, deemed justifiable or excusable by general principles
of criminal responsibility under the laws of most countries.
The ideologically-motivated offender seeks to accomplish an
ideological or political objective by means which are
unlawful, presumably because no effective legal means are
available to accomplish this goal by peaceful means, or
because the offender rejects, in whole or in part, the
political or legal system under which he operates. This
proposition is the cornerstone of the rationalization
process for resorting to almost all forms of
terror-violence.
The contemporary ideologically-motivated offender frequently
claims to act in self-defense, by reason of necessity, or
under compulsion.[64] In some instances, the perpetrator
claims either to be the victim of a system which left him no
viable alternative, or the defender of a system that he
believes is under attack and which requires such strategies
and tactics for its legitimate defense.[65] Those who claim
to act under this motivation are as convinced of the
legitimacy of their deeds as are those who defend the system
under attack. Both categories of actors claim that their
resort to violence is equivalent to measures taken by
duly-constituted authorities in order to protect higher
values or interests. Accepting these premises leads to the
logic supporting the rationalization for their violent
deeds. The consequence is that as values and perceptions
change, so does the concept of terror-violence.[66] This
alone should be enough to argue against the purely
subjective approach in defining or analyzing terrorism.[67]
Ideologically-motivated actors, irrespective of whether they
claim to defend or attack a given system, also perceive
themselves as "justice-makers."[68] They consider their
action, even when they recognize that such acts are
abhorrent, to be dictated by circumstances beyond their
control or forced upon them by the limitations of the
political context in which they operate. The gradual
psychological transformation, which such individuals undergo
before resorting to forms of terror-violence, is further
evidence of this belief.[69]
Ideologically-motivated actors seem to possess the following
psychological characteristics:
(1) heightened perception of oppressive conditions, whether
real or imaginary;
(2) recognition that such conditions are not the immutable
order of things, but amenable to change;
(3) recognition that a peaceful process designed to promote
change is not forthcoming;
(4) decision that one must resort to violence to create or
effect necessary change;
(5) recognition that violent acts need not be successful,
but may merely contribute to initiating events that may lead
to change, including the acceptance that dissemination of
the cause is sometimes at least as important as the ultimate
success of the cause;
(6) convinced that the goal outweighs the actual harm of the
violent act, thus violence without guilt;
(7) recognition that "the cause" transcends the need to
justify the particular act of violence, thus
self-gratification merges with the purpose.
Two additional characteristics accompany transformation of
consciousness:
(8) The ethnocentricity of the values opposed to the desired
change justifies the same ethnocentricity of the actor's
values. This produces a polarization of values without a
possible mechanism for reconciliation and inevitably leads
to the logic of violence.
(9) The absence of resocialization of actors who do not
conform to social norms stigmatizes the actors and prevents
their reintegration into society. This further radicalizes
and leads the actors, and others who emulate them, to
further violence.
The net effect creates a final psychological shift:
(10) Violence is a justifiable means to an end. The
rationalized "cause," now legitimized, makes the actor both
a hero and a victim.
Individuals so motivated are willing to take risks and to
bear personal sacrifice to a far greater extent than the
more calculating common criminals who are motivated only by
personal gain. The ideologically-motivated actor does not
weigh risks only against opportunities for success, but
includes the abstract value of the cause as a necessary
element of the equation. This is why traditional concepts of
deterrence cannot be applied to ideologically-motivated
actors.[70] The cost-benefit equation does not apply to
ideologically-motivated offenders in quite the same way and
strategies of prevention and control based on that equation
are of limited effect.
Distinguishing between psycho-pathological individuals, and
ideologically-motivated actors, who may manifest the same
characteristics and who engage in the same conduct, is even
more difficult.[71] The similarity of apparent psychological
characteristics may explain why the media frequently
depicts, and the public thereby perceives,
ideologically-motivated actors as ruthless, brutal
psychopaths. It may also explain why psychopaths are drawn
to ideological causes.[72]
Individual ideologically-motivated actors engage in certain
forms of violence on the basis of perceptions directly
related to the choice of means and targets selected. These
choices are in turn intrinsically linked to both ideological
beliefs and the goals the actor feels compelled or committed
to achieve. The individual profile and the type(s) of
conduct in which he engages are:
(1) The actor is, or believes himself to be,
ideologically-motivated.
(2) The purported outcome is alleged or designed to achieve
a certain power outcome or political goal.
(3) The means employed and the methods pursued are designed
to have a psychological impact on the population at large or
a selected segment thereof.
(4) The psychological impact produced is disproportionately
larger than the actual harm.
(5) The tactical objective may be narrow or limited in
scope, as is the actual harm.
(6) The tactical objective or target, whether it be a person
or an object, is either chosen at random to highlight the
system's and/or public's vulnerability, or it is carefully
selected to avoid a negative public reaction, or backlash,
or it is designed essentially to generate a positive or
sympathetic public reaction.
(7) The long-range strategic objectives are considerably
varied, but they generally are chosen to:
(a) demonstrate the vulnerability and weakness of the organs
of power;
(b) attract broader public sympathy through the strategic
choice of a carefully selected target that may be publicly
rationalized;
(c) force the organs of power to react in a manner likely to
create other conflicts and crises, or simply to bring them
into ridicule or disrepute;
(d) cause a polarization and radicalization among the public
or a segment
thereof; or
(e) force the organs of power into repressive action likely
to discredit them and to bring new support to the actor's
cause.
(8) Use of the mass media as a disseminator of the
terror-inspiring nature of the act, or of the actor's
political message, or both.
[9] The variety and diversity of the acts of violence are
usually determined by the circumstances in which the action
takes place.
[10] The perpetrators rely on the existence of a certain
degree of public apathy, or sympathy, or societal/cultural
tolerance for a certain level of violence. Thus, violent
incidents increase in number, or intensity, or both, until
they reach a point of diminishing returns, which is the
level of social tolerance beyond which the public's reaction
turns against the perpetrator's cause.
These characteristics are not necessarily the only
characteristics that psychological, sociological, political
and juridical disciplines can identify, but they represent a
consensus of the views expressed by most experts on the
subject.
State-Sponsored Terrorism: Motivation
States are abstract entities and as such they do not commit
crimes.[73] They act for or on behalf of the state, and they
determine its ideology and shape the means to achieve its
purported goals. How the state is represented by a single
individual as a head of state, or by a political party, or
by an organized group, is largely immaterial for purposes of
identifying the nature of the prohibited act. However, these
are critical distinctions for purposes of assessing
responsibility and for developing a means of prevention,
control, and eventually, repression.[74]
The purported motivation of states in the commission of acts
of terror-violence, committed by persons acting for or on
their behalf, includes the goal of asserting or
consolidating control over a given territory or population
in order to destroy or eliminate opposition to a given
political system or a given program of that system.
State-sponsored policies of terror-violence, as committed by
individuals, have the following common characteristics:
(1) The actor claims to act for, or on behalf of, the state
or under color of law or authority and will either claim to
be ideologically-motivated or claim to be acting under
superior orders;
(2) The purported outcome is alleged or designed to achieve
a certain power outcome [e.g., acquisition or consolidation
of power];
(3) The means employed are designed to produce harm to one
or more individuals, or a segment of society, or certain
representative personalities, in order to achieve specific
political or psychological goals;
(4) The actual harm produced is often disproportionately
greater than publicly acknowledged, yet its effects are not
always widely known;
(5) The actual harm produced is frequently concealed and the
identity of the individual actor is almost always concealed;
(6) Reliance on different actors, and segments of actors
within the system may serve either to conceal the source of
the action or to prevent the imposition of responsibility;
(7) The action may be the product of one or more government
officials abusing their authority, or misconstruing the
directives or wishes of their superior.
Thus, it is clear that there are certain similarities and
dissimilarities between ideologically-motivated individuals
who act either for or against the politically constituted
system, irrespective of the constitutionality or legitimacy
of that system. Once again, the adage that "what is
terrorism to some is heroism to others" is true.
This is why
a policy of prevention and control of all forms of
terror-violence should not be predicated exclusively, or
even primarily, on subjective factors. Rather, prevention
and control should be based on the relatively objective
identification of specifically proscribed conduct, equally
applied, irrespective of whether individuals are acting for
or on behalf of a state. Such a policy reduces
subjectiveness, promotes consistency, and symbolizes
rejection of unlawful violent means, irrespective of the
reasons and ultimate beneficiaries thereof.
Comparing Individual and State-Sponsored Terroristic
Motivation
Differences in strategy and outcome between individual
terror-violence and state-sponsored policies of
terror-violence are most significant in consideration of the
element of public perception.
State-sponsored terror-violence usually seeks to avoid
attracting public attention, whereas non-state-sponsored
terror-violence seeks to publicize the act, the intended
outcome, and the claims of the actor. State-sponsored
terror-violence, including, for example, torture or other
human rights violations,[75] is usually conducted in secrecy
to avoid media coverage.[76] The dissemination of repressive
state measures may also be initiated by state-controlled
media or by the propagation of rumors designed to produce
the desired effect. Unlike ideologically-motivated
terror-violence which may have diverse desired outcomes,
state-sponsored terror-violence has one primary objective:
the establishment or preservation of power. Secondary
objectives and intended outcomes are also, invariably
related to the goal of re-establishing or preserving power.
Some who act for or on behalf of a state in committing
unlawful acts of violence share the same psychological
profile as individual offenders. But others have the same
motives as common criminals–personal gain. These, therefore,
come within the cost-benefit equation of preventive
deterrence through effective criminal punishment. Effective
deterrence will depend largely on whether individual
positions of power insulate or shield such actors from
detection and effective prosecution. Regardless of
motivation, those who act for or on behalf of the state
expect to do so with relative or total impunity, while
individual ideologically-motivated actors accept the
inherent risk of danger and punishment.
Psychopathic personalities may also be found among those
acting for a state and among ideologically-motivated groups
resorting to violence. They share the same characteristics
and are seldom, if ever, deterred by criminal punishment.
These personalities are more difficult to reveal and less
susceptible to control, even by their own peer groups. For
such individuals, early detection strategies and prevention
are more effective than relying on traditional notions of
general deterrence and punishment, particularly where such
actors may invoke the defense of insanity or diminished
criminal responsibility with a large measure of success.
Goals of State-Sponsored Terrorism
The aim of a state, as represented by a single tyrant or by
a ruling elite, or even by a popularly broad-based
government, in its use of terror-violence is the same
whether in the context of war or peace, and whether the
means employed are against its own population or another, or
segments of either one of these. This aim is the destruction
of the will of its primary targets to resist control.
Whether part of an armed conflict or not, state-sponsored
terror-violence aims to destroy either active or passive
resistance in either the population of the territory under
control or sought to be controlled.[77]
Destroying Active Resistance and Nullifying Opposition
States employing terror-violence strategies against
opposition groups must first identify the primary target
persons or groups. Incidental targets may include persons or
groups of similar beliefs or tendencies, members of other
opposition groups, or any other class of persons which are
related to members of the primary target. The intended
message to all such persons is usually simple and clear–that
such harm will also come their way unless they abandon their
course of action and submit to the state's control, or
refrain from supporting, sustaining or succoring those who
are members of the primary target group.
The forms of harm inflicted on members of the class
constituting the incidental target include a variety of
means, which are usually explicitly or implicitly prohibited
by international human rights norms and standards. In
addition, the acts and resulting harms are also prohibited
by national laws, unless said laws were deliberately changed
or manipulated to fit the needs of the state, or unless such
laws are simply ignored or unenforced, and thereby
ineffective under the ruling regime.
Arbitrary arrest and detention, torture, extrajudicial
executions, confiscation and destruction of property,
restricted freedom of movement and travel, and the right to
leave and to return to one's country are examples of
unlawful state-sponsored measures. The most recurring form
of unlawful act is torture. Its use accomplishes three
purposes: it may secure information, it serves as a means to
terrorize others, and it inflicts punishment upon the
victim. The internal criminal justice system is seldom
effective in preventing and controlling such egregious
crimes, necessitating development of other international
enforcement techniques in order to prevent and control such
behavior. Barring effective international enforcement, such
conduct will all too often go unpunished. In response, such
unlawful conduct by state agents may also trigger responses
by supporters of the victim and opponents of such state
policies, which may include additional unlawful acts of
terror-violence.
The conflict between law as an instrument of power and its
moral-ethical underpinning is nowhere more evident than in
the use of unlawful violence to resist unlawful
violence.[78] The distinction can only be drawn by the
moral-ethical foundations of the positive law, which is
violated by the protagonists of both positions when they
engage in prohibited conduct. Extreme situations, made
somewhat clear by others, may ultimately be dependent upon,
or arguably nothing more than, value-judgments.
Destroying Passive Resistance and Asserting Control
Peacetime use of terror-violence against passive resistance
arises when a sweeping policy is implemented, necessitating
drastic changes in the political, social and economic
structure of the state. In such cases, the government may
lack the persuasive power or resources to achieve the
desired policy changes without employing violent or
repressive tactics. As a result, the state may be compelled
to resort to terror-inspired violence by its own inability
to achieve its goals, thus attempting to force the
population to engage in the process of change. In this
context, selection of individual or collective targets is
particularly arbitrary.
The primary target of the acts of
terror-violence may be a class of persons who are now
willing to cooperate in the state's programs. Likewise, a
class of people may also be identified for direct coercive
action on a selective basis to further the transformative
programs of the state. Such coercive means are also designed
to instill terror in other groups, either in order to
maximize their compliance, or to enhance the group's general
submissiveness to the regime in question. At times, the
state may allow such "terrorism" to be performed by
unofficial groups supporting the regime, or by public
officials acting in their alleged private capacity.[79]
It is noteworthy that in instances of state-initiated
terror-inspiring strategies, the media never enjoys much
freedom, if any at all. The mass media is invariably
controlled and manipulated to serve as an instrument of the
state's policies. Control and cooperation are indispensable
to the effective implementation of such state policies.
Conversely, it must be emphasized that a free media carrying
out its responsibilities is one of the most effective
bulwarks against such state policies, not only because it
deprives the state of the terror-inspiring means of
disseminating the effects of their policies and practices,
but because it also counteracts state-initiated
terror-inspiring strategies by exposing them.
The principles of state responsibility and the obligations
of states under international human rights norms are
applicable to such activities, but their effective
enforcement is lacking in these situations.[80] The outcome
is that such instances of state-sponsored terror-violence
remain uncontrolled and unpunished, yet the international
community may condemn individual acts of terror-violence
committed as a response to these and other forms of human
rights depredations.
The lack of legal and moral symmetry is
glaringly obvious in such cases and it erodes, if not
destroys, the assumption of legitimacy upon which the law is
founded.[81] Without a legitimate foundation, voluntary
compliance with law dwindles or disappears, leaving only a
thin veneer of form and little or no substance at all.
The
world community cannot, therefore, expect a much higher
level of compliance with international norms prohibiting
terror-violence by individual actors when qualitatively
similar state-conducted or state-sponsored violations go
unpunished. What logic, reason, or argument could one have
presented to a South African who suffered under
Apartheid,[82] or a Palestinian who lives under a hardship
of military occupation, to refrain from acts of terror
violence when all the violations and abuses that occur in
these territories against the indigenous populations remain
unchecked, and worse yet, when these regimes assert legal
justification for their violative conduct.[83]
If there is to be a lawful international order, which
induces voluntary compliance with its norms, then these
norms must apply equally to all transgressors. Might cannot
make right if law is to be the difference between tyranny
and civilization.
Counter-Strategies to Terror-Violence: Controlling the
Individual Through Penal Sanctions
A basic postulate of criminal law is that, as an instrument
of social control, it employs socially accepted coercive
strategies in an effort to obtain legally justifiable and
valid social goals. That postulate is predicated on the
assumption that society, having made value-judgments
concerning the significance of certain social interests
which it seeks to protect and preserve, may resort to
coercive means in order to achieve its legitimate essential
goals of protection and preservation of those social
interests through justifiable legal means.
These social interests reflect certain basic values, such as
preservation of the social order and protection of
individual members of society from unwarranted harm. The
ideologically-motivated offender perceives, rightly or
wrongly, a basic value conflict with these criminal laws,
thus evading the issue of the individual harm he produces.
Rather, he focuses upon the legitimacy of the social or
political order he attacks. Such a person perceives the
violation of a criminal law as a clash of ideologies or as a
clash of morality. He believes that the conflict is
necessary or unavoidable and ignores its harmful
consequences.
Thus, if the victim is a person who holds
political office, or has a symbolic or representative
capacity in the system attacked, then the harm caused to
such a person is deemed justified as punishment or as
self-defense. However, if the victim is an uninvolved person
who is harmed as a result of random violence or by accident
[e.g., the innocent bystander], then the offender
rationalizes the result as a political necessity, or as a
mistake or mishap, and thus deems it excusable.
The actor
blames the system under attack for causing or compelling the
violent act that produced the harmful result. It is, of
course, a rationalization process, but it emphasizes the
fact that criminal sanctions are irrelevant to that
intellectual process. The ideologically-motivated offender
is essentially unconcerned with the fact that he is
committing a violation of criminal law.
Consequently, only
preventive control measures can effectively limit that
person's decision to commit or to refrain from committing
such a criminal violation. In that respect, however, the
sanction of the criminal law can only be effective if the
personal risks which the actor may incur outweigh the
importance of the political objective sought to be achieved.
The effectiveness of the criminal sanction is relative to
the personal commitment of the actor to his ideological
purpose in light of the importance that he attributes to the
contemplated act. Consequently, attention must be directed
toward the criminal sanctions employed and their application
to such offenders in order to assess their effectiveness.
Criminologists, penologists and other experts of the
criminal justice systems of the world contend that in such
cases, imprisonment has failed as an instrument of social
control and resocialization. It should be reconsidered.[84]
Some experts maintain that imprisonment should be abolished
altogether because it has generally failed even in the
context of common crimes. As a result, there is a trend in
many states toward reducing prison sentences and developing
alternatives to imprisonment. The question arises,
therefore, as to whether imprisonment is still a valid means
of controlling violent behavior and, in particular,
ideologically-motivated violent actors.
Theories of Punishment and Their Application to Terrorists
Theories of punishment and rehabilitation are predicated on
a quasi-medical model, which assumes that a person placed in
an institutional setting, will be cured or resocialized once
released. Irrespective of the merits of this theory, which
is now widely and uniformly discredited because of its
failures, it is particularly inapplicable to the
ideologically-motivated offender. Essentially, such a person
will remain anti-social even after release because he is
opposed, in whole or in part, to the very social system into
which he is to be resocialized. There can be no success in
resocializing one whose basic values are fundamentally
opposed to the preservation of the very system he is
fighting.
(1)Deterrence[85]
Criminal sanction is considered a deterrent when its general
effect outweighs the benefits of the contemplated
transgression of the law. The special effect of deterrence
is felt when, in the evaluation of a given transgressor, the
particular penalty outweighs the benefit derived from the
violation. In the case of the ideologically-motivated
offender, such evaluation is made in light of the degree of
personal commitment the individual possesses, as compared to
the ideological values or goals sought to be achieved. In
this evaluative framework, two other factors must be
considered: [a] the tactical importance of the objective to
be attained by commission of the violation; and [b] the risk
of neutralization resulting from the actor's apprehension
and detention.
For a committed ideological offender, the threat of
imprisonment is counterbalanced by the importance of the
objective to be attained by perpetrating a given act of
violence. Even the consequences of capture and imprisonment
include an opportunity to obtain valuable publicity of the
willingness of those holding such ideological beliefs to
sacrifice themselves on behalf of the cause. Thus, merely
choosing a sufficiently important target satisfies the first
of these factors. The second factor may be achieved when the
target is secondary to the publicity gained by the act. The
deterrent effect of imprisonment is therefore largely
ineffective.
(2) Retribution or lex talionis
Retributive justice is also part of social justice in that
it redresses an imbalance between the victim and the
aggressor, an imbalance occasioned by the aggressor's
action. There can be no effective deterrent value to
criminal sanctions in the absence of a retributively
punitive element. Thus, to the extent that the punitive
element is indispensable to deterrence, retribution cannot
be ignored. In light of this conclusion and with respect to
the ideologically-motivated offender, rehabilitation is
inapplicable and deterrence is largely ineffective. The
punitive theory remains the only effective criminal
sanction, although even it carries the seeds of its own
limitations.
The punitive element of criminal sanctions may well be the
principal basis upon which to mete out effective punishment
to the ideologically-motivated offender. It may be the only
way to redress the imbalance created with respect to the
rights of the victim. Any effectiveness such criminal
sanctions may bear is destroyed if those who impose punitive
consequences are tainted by the effect of their own unlawful
conduct.
In essence, there is a form of retributive justice, which is
not repressive injustice. It is, nevertheless, important to
realize that retributive justice, which is a response to
instinctual justice, must balance the social and individual
need for vengeance against certain standards of humaneness.
The values of each society will determine that balance,
subject to the standards of humaneness achieved by world
community norms and standards. As a matter of criminal
justice policy, it is better to err on the side of
humaneness than on the side of retributiveness in order to
avoid the martyrdom with which the offender might be endowed
by excessive or severe punishment. On the other hand,
leniency should not reach a level that would remove all
retribution from the criminal sanction, since retribution is
the principal ingredient of deterrence–no matter how
effective.
(3) Incapacitation.
The premise of incapacitation is that the offender is
dangerous and must be neutralized in an institutional
setting in order to prevent repetition of similar antisocial
behavior. The problem is one of predicting the offender's
future threat to society on the basis of prior conduct. A
seductive, yet deluding appeal, is present in this approach
of prophylactic punishment, whereby the predictability of
dangerousness is based on past conduct. This is a hazardous
guessing game, all too often based on little more than
hunches derived from general perception. The length of
imprisonment for an ideologically-motivated offender
compounds the problem, by the fact that penalties must be
meted out for crimes actually committed and not for
foreseeable crimes. Incapacitation serves as a control
device only as long as a person is imprisoned.
(4)The Death Penalty[86]
Throughout the world community, the death penalty has been
under attack since the late sixteenth century. The death
penalty has already been abolished in a number of states and
it is rarely applied even where retained. Since the end of
World War II, it has seldom been employed in cases of
international terrorism. The incapacitating nature of the
sanction is unquestionable, but it is this very finality of
the sanction that has raised serious moral questions against
its use. Indeed, whether the death penalty is or is not a
cruel, unusual, or inhumane punishment continues to be
debated. More troublesome is the question of whether its
deterrent effect is real or merely presumed. Its use is
ultimately governed by a fundamental social value judgment.
The death penalty's finality, which casts doubt on its use,
also serves as its very advantage. It removes the individual
as a plausible target for release and thus, theoretically
precludes further "terrorist" acts by fellow "terrorists"
attempting to secure the actor's release. Several factors,
however, mitigate against the death penalty as a policy
choice. First, it is seldom if ever employed, and it applies
to only a limited number of violations. Second, it tends to
make martyrs of the executed person and thus brings sympathy
to the deceased and his movement. Third, it is offensive to
public morality and is rejected by a large segment of the
world population. Fourth, its use tends to discredit the
society that employs the death penalty as revenge against
individuals. Lastly, it diminishes the moral authority of
the state that seeks to enlist public support against
violence.
International Cooperation and Preventive Law Enforcement
Although the deterrent sanctions available are of limited
value, there is no question that, whenever possible, the
intellectual authors and perpetrators of terror violence
must be apprehended and punished. However, due to the
character of their activities and inherent weaknesses in the
international enforcement scheme, such offenders often
succeed in evading prosecution, mostly by escaping from the
state in which their crimes were committed.
Acts of terror-violence are either international crimes or
crimes under the domestic laws of almost all countries in
the world [or both]. Only a few regimes that conduct,
sponsor, or support acts or policies of terror-violence
exclude such acts from their own rule of law or simply do
not enforce existing law. Thus, the question is not whether
legal norms exist or whether such norms are sufficient, but
whether they are enforced either internationally or
domestically.[87]
The Machinery for Cooperation
Treaties, customary practice, and the national laws of
states establish the basis for international cooperation in
the prevention and suppression of criminality. The maxim
commonly referred to in this context is aut dedere aut
juticare.[88] The state's duty is restricted to the
prosecution or extradition of the alleged offender. This
duty is an extension of the state's responsibility for the
prevention and control of violence. The failure of a state
to carry out such a duty can only frustrate the
effectiveness of any domestic or international crime control
scheme.
Thus, the international duty to extradite or
prosecute becomes a significant factor in assessing the
effectiveness of the domestic and international prevention
and enforcement scheme. It should be observed, however, that
the apparent principal impediment to this international duty
is the "political offense exception" to extradition and
inter-state cooperation in penal matters.[89]
The real
impediments, however, are the differences in ideological
values among states and the political will of governments in
carrying out such a duty to prosecute or extradite. The
existence of certain injustices, and the policies and
practices of certain states which violate fundamental human
rights, heavily impair the burden of those states seeking to
carry the duty to prosecute or extradite. The duty is a
difficult, if not at times, an impossible one.
The Political Offense Exception [90]
Not all acts of violence are committed with a view toward
achieving a political or power outcome. Indeed, certain acts
of terror-violence may be committed as a last resort, by
reason of necessity or self-defense. These cases arise
whenever the actor's fundamental human right to personal
freedom and safety is the object of serious and repeated
repression, which by reasonable standards, can only be
averted through the commission of an act of violence.
Nevertheless, persons who commit acts of violence against
others as a means of safeguarding themselves or others for
humanitarian or political reasons violate positive law.
However, such actors may have a valid claim to the defense
of necessity, supporting the mitigation of any punishment.
This is one justification for the preservation of the
political-offense exception in extradition.
Not all states share the same form of government, nor agree
on the means to be employed for preservation of their
internal order. Thus, acts which violate certain positive
laws in one state may be deemed justified in other states.
In addition, states may not wish to use their powers to act
against certain ideologically-motivated offenders when
states believe that the issues at stake involve a political
or value judgment they support, or about which they prefer
to remain neutral.
Finally, states may, for political or
humanitarian reasons, be supportive of the causes or values
adhered to by the ideologically-motivated offender. Thus,
states may exercise their prerogative in denying extradition
whenever they deem that political or humanitarian necessity
motivates the actor's criminal act.[91] It is essentially in
recognition of this consideration that the emerging
international duty to extradite in international criminal
law is an alternative to the duty to prosecute. These
alternatives have yet to be effectively carried out in the
practice of states.
All states presently exclude political offenders from the
scope of extradition, but a trend has developed to restrict
application of this exception and exclude it with respect to
international crimes. This is termed an "exception to the
exception."[92] This trend, thus far, has extended to
individual ideologically-motivated terror-violence acts, but
has not yet fully encompassed those who engage in such
conduct for and on behalf of a state. This lack of equal
application is one reason why the policy does not have the
credibility and applicability that it should.
In the absence of an absolute duty to extradite or prosecute
all international criminal law violations, and, in the
absence of a clear policy on the defense of necessity in
exoneration of responsibility or in mitigation of
punishment, the effectiveness of the international and
domestic control schemes are necessarily limited. It must be
concluded, finally, that the weaknesses of any scheme for
the control of violence are compounded by the opportunity of
evading that scheme altogether, by resorting to safe-havens
or to countries from which the likelihood of extradition is
remote or non-existent, or where the prospects of a trial
and punishment are equally remote or non-existent.[93]
State Responses to Individual Non-State-Sponsored Acts of
Terror Violence
Individual non-state-sponsored terrorism, as well as other
forms of lower level violence with international
ramifications, are a challenge to states with respect to the
lawful responses they can engage in as a form of legitimate
reaction.[94] The essential problem is that such individual
actors will usually either seek refuge or hide in another
state which is sympathetic to their cause. Without the
cooperation of such states, it is impossible for the
reacting state to proceed against such individuals without
violating some aspect of international law, in particular
Article 2 (4) of the United Nations Charter and the
prohibition against aggression.[95]
Responsible state measures would have to fall under the
doctrine of self-defense as enunciated in Article 51 of the
United Nations Charter.[96] Notions of pre-emptive strikes
and reprisal action, intervention and interdiction, and
direct or indirect attacks upon states where such
individuals may be found, have yet to be resolved under
international law.[97]
Conversely, sanctions against states in violation of
international law are permissible, but sharply circumscribed
by the law of the Charter and its application through the
Security Council where five states still hold the veto
power. Some states have, on occasion, engaged in isolated
instances of reprisals. But even the successful intervention
on humanitarian grounds have raised larger issues of
legitimacy and legality. To a large extent, such unilateral
reprisals and interventions only underscore the failure of
the international legal control system.
Control of State Terrorism
Generally, sovereign states are subject to few international
legal controls within their own territory, except to the
extent that they are limited by international law in some
aspects of the exercise of their sovereignty. A number of
international conventions relating to human rights presently
exist to protect the security of individuals.[98]
Signatories to such conventions are bound to refrain from
certain actions, even against populations under their
sovereign control. The implementation of such rights are
limited throughout the world.[99]
Assessment of Enforcement Means
State terrorism is subject to few sanctions or controls. The
possibility of sanctions exist in the following ways:
(1) Repeated instances of state policies and practices
constituting widespread and serious violations of human
rights may result in a claim by another state of a right of
humanitarian intervention to end such conduct;
(2) Repeated instances of such state action may result in
United Nations intervention and the eventual imposition of
sanctions;
(3) Such state action may also result in economic and
diplomatic sanctions by other states;
(4) Such offending states are subject to the customary rules
of state responsibility for wrongful conduct, even though
such sanctions are limited only to financial compensation or
damages;
(5) Individuals acting for or on behalf of such offending
states are subject to individual criminal responsibility,
even though its application has historically been limited
and sporadic.
It should be noted that the effectiveness of any potential
sanction against a state, or those acting for it, inevitably
depends on the concerted action by other states and that has
yet to become an established practice of the world
community.
State Responses to Individual Terror-Violence and the Rights
and Responsibilities of Other States
There are essentially three types of responses in which a
state may engage; however, each raises questions of
international law violations. Each involves the balancing of
various United Nations Charter norms, including Articles 2
(4), 51 and 52 and other conventional and customary norms of
aggression and self-defense.[100]
An analysis of these norms is beyond the scope of this
article. What is outlined hereinafter are certain forms of
intervention based on contemporary events and their related
questions pertaining to the rights and responsibilities of
states.
Situation A: The affected state acts against the perpetrator
of an act of terror-violence, or the perpetrator's support
group, and the affected state's responsive action takes
place in another state.
Situation B: Action by an affected state directed against
another state, which supported an action of individual
terror-violence.
Situation C: A "liberation organization" acts against a
state with the support of another state.
Situation D: A "liberation organization" acts against the
economic interests or individual targets of the state
against which it is operating, but these actions take place
in another state.
All of these situations raise the question of whether an act
of aggression may have taken place against a given state,
whether the response by one state against another falls
within the doctrine of self-defense, and whether the
response was proportional. These situations highlight the
failure of the international c |
