State Support Of International Terrorism

Legal, Political, And Economic Dimensions

John F. Murphy

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9780367288723
• eBook ISBN: 9781000313086
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This book focuses on individuals' acts perceived as international terrorism and on states' acts perceived as state support, emphasising on the legal aspects of military responses and discussing political, economic, and cultural dimensions as they bear on the feasibility of the possible response.

1
“International Terrorism”: The Definitional Quagmire

Walter Laqueur, a leading commentator on terrorism, recently pointed out that 109 different definitions of the term were advanced between 1936 and 1981, and more have appeared since, including a half dozen provided by the U.S. government.¹ None of these definitions has been adopted by the world community. Efforts in the academic world to reach agreement on a definition have been equally unavailing.

In practice, the terms "terrorism" and "terrorists" have been used by politicians as labels to pin on their enemies. The clichée "One man's terrorist is another man's freedom fighter" is a notorious reflection of this game of semantics. This practice and other reasons once led the late Richard Baxter, professor of law at Harvard University and judge on the International Court of Justice, to remark, "We have cause to regret that a legal concept of 'terrorism' was ever inflicted upon us. The term is imprecise; it is ambiguous; and above all, it serves no operative legal purpose."² The substance of Judge Baxter's remarks is compelling, and from an ideal perspective, a strong argument could be made that the world community should stop using the term "terrorism" entirely. However, we must live in the real rather than an ideal world, and it is too late in the day for the ideal approach. Accordingly, we will consider some of the primary proposals for definition that have been advanced, evaluate their usefulness, and attempt to develop a working definition for purposes of this book.

This chapter provides first a brief historical background of the alternative approaches to definition and then considers definitions advanced by governments. These governmental definitions are found at the global, regional, and bilateral levels (in treaties or resolutions of international organizations) and at the national level (in legislation or in policy statements). Examined next are definitions advanced in the private sector by individual scholars or groups such as the International Law Association. The chapter concludes with my thoughts on the appropriate definitional approach for this book.

Historical Background

The word "terror" was first used in connection with the Jacobin "Reign of Terror" following the French Revolution.³ Some governments even today would confine the definition to government action only, so-called state terrorism. As we shall see, however, this approach has relatively few supporters. Today the term "terrorism" is primarily applied to actions by private individuals or groups.

Until relatively recently, actions by individuals that today would be described as "terrorist" were subsumed under different labels. For example, assassinations, especially of a head of state, have a long history; only recently have they been treated as terrorist acts. As Professor Robert Friedlander has pointed out, the word "assassin" derives from Arabic and literally translated means "hashish-eater" or "one addicted to hashish."⁴ Acting under the influence of drugs, Moslem assassins murdered prominent Christians and other religious enemies at the end of the Middle Ages.

Assassination was a prime weapon of the anarchist movement that reached its height at the end of the nineteenth century. Revolting against the state and other manifestations of authority, anarchists had succeeded in assassinating ten national leaders by the turn of the century.⁵ Closely aligned with anarchism was the doctrine of revolutionary syndicalism. As influenced by the writings of Georges Sorel, this doctrine stressed the reformation of society through a militant working class and the general strike, as well as the moral purification of revolutionary violence.⁶

As applied to actions by individuals, the term "terrorism" was apparently used for the first time in an international penal instrument at the Third (Brussels) International Conference for the Unification of Penal Law held on June 26-30, 1930, in response to an increase in terrorist activity following World War I.⁷ This interest in terrorism intensified with the assassination at Marseilles on October 9, 1934, of King Alexander of Yugoslavia and Louis Barthou, foreign minister of the French Republic, and led to the League of Nations drafting the Convention for the Prevention and Punishment of Terrorism.⁸ This convention defined terrorism broadly to include "criminal acts directed against a state and intended to or calculated to create a state of terror in the minds of particular persons, or a group of persons, or the general public."⁹ The convention received only one ratification and one accession and never came into force. In large part this may have been because of the approach of World War II, but it has also been suggested that a number of states were reluctant to ratify the convention because of the breadth of its definition of terrorism.¹⁰ In any event, since it was not listed among the treaties and conventions for which the League was a depository and with respect to which the United Nations had taken any responsibility, the convention sank into obscurity.

Besides declining to revive the League convention, the United Nations made no attempt to replace it with one of its own. However, a similarly broad approach to the problem was taken by the International Law Commission in its 1954 Draft Code of Offenses Against the Peace and Security of Mankind."¹¹ The draft code, moreover, introduced the concept of state sponsorship—"the undertaking or encouragement by the authorities of a State, or the toleration by the authorities of a State of organized activities calculated to carry out terrorist acts in another State" was declared to be an offense against the peace and security of mankind and a crime under international law.¹² The General Assembly deferred consideration of the draft code pending agreement on a general definition of aggression, finally reached in 1974. Work on the draft code resumed, but has not yet produced a final agreement despite thirty-five years that have passed since 1954.

The kidnapping and killing at Munich on September 6, 1972, of eleven Israeli Olympic competitors by Arab terrorists, as well as a number of other spectacular acts of terrorism, resulted in a more narrowly focused approach: The United States on September 25 introduced a Draft Convention for the Prevention and Punishment of Certain Acts of International Terrorism.¹³ In proposing the convention and in subsequent debates, U.S. representatives attempted to alleviate the concern of some member states that the convention was directed against wars of national liberation, pointing out that its coverage was limited to "any person who unlawfully kills, causes serious bodily harm or kidnaps another person," They noted further that these acts had to meet four separate conditions before the terms of the convention applied: First, the act had to be committed or take effect outside the territory of a state of which an alleged offender was a national. Second, the act had to be committed or take effect outside the state against which the act was directed, unless such acts were knowingly directed against a nonnational of that state. (Under this provision, an armed attack in the passenger lounge of an international airport would be covered.) Third, the act must not be committed either by or against a member of the armed forces of a state in the course of military hostilities. And fourth, the act had to be intended to damage the interests of or obtain concessions from a state or an international organization. Accordingly, U.S. representatives pointed out, certain controversial activities arguably terrorist in nature—such as fedayeen attacks in Israel against Israeli citizens and a wide range of activities by armed forces in Indochina and in southern Africa—were deliberately excluded from the convention's coverage. A particularly broad loophole was the first requirement about the identity of the alleged offender's state, a provision that excluded from the convention's scope most terrorist attacks in Latin America and elsewhere against transnational business personnel and facilities. As to persons allegedly committing offenses covered by the convention and apprehended in their territories, the draft required states adopting the convention to establish severe penalties for covered acts and either to prosecute such persons or extradite them to another state party for prosecution. Whether to prosecute or extradite the alleged offender was a decision left to the sole discretion of the apprehending state.

The U.S. draft resolution accompanying the draft convention requested that the General Assembly convene a plenipotentiary conference in early 1973 for the purpose of adopting the convention, call upon all states as a matter of urgency to become parties to and implement the International Civil Aviation Organization (ICAO) conventions on hijacking of and other offenses against aircraft (discussed in the next section), and request ICAO to draft as an urgent matter a convention on arrangements to enforce the principles of the conventions.¹⁴ From the outset, however, it was apparent that the U.S. initiative faced substantial opposition from the Arab states, China, and a block of African states. In the general debate this opposition was expressed in perhaps its most extreme form by the Libyan representative, who described the United States initiative as a "ploy . . . against the legitimate struggle of the people under the yoke of colonialism and alien domination" and warned against the United Nations becoming "an instrument in local elections campaigns and a pawn of international propaganda based on falsehood and deceit."¹⁵

Despite several efforts to reach a compromise, the U.S. initiative failed. On December 11, 1972, the Sixth Committee (Legal) of the General Assembly adopted a draft resolution submitted by Algeria and other cosponsors by a vote of 76 to 34 (including the United States), with 16 abstentions. On December 18 the assembly approved the committee's decision by adopting Resolution 3034(XXVII) by a vote of 76 to 35 (U.S.), with 17 abstentions. Though the resolution expressed "deep concern over increasing acts of violence which endanger or take innocent human lives or jeopardize fundamental freedoms" and invited states to become parties to existing conventions on international terrorism and to take appropriate measures at the national level to eliminate it, the resolution's primary focus was on "finding just and peaceful solutions to the underlying causes which give rise to such acts of violence." The resolution also "[r]eaffirms the inalienable right to self-determination and independence of all peoples under the colonial and racist regimes and other forms of alien domination and upholds the legitimacy of their struggle." By way of implementation the resolution invited states to study the problem on an urgent basis and submit their observations to the secretary-general by April 10, 1973, and established an ad hoc committee, to be appointed by the president of the General Assembly, to study these observations and to submit a report with recommendations for elimination of the problem to the 28th session of the General Assembly.¹⁶ The committee was appointed, but after meeting from July 16 through August 10, 1973,...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgments
• Introduction
• 1 "International Terrorism": The Definitional Quagmire
• 2 "State Support" and "State Sponsorship" of International Terrorism: The Legal Framework
• 3 Intelligence and State Support of International Terrorism
• 4 Quiet Diplomacy, Public Protest, and International and Transnational Claims
• 5 Economic Sanctions
• 6 The Use of Armed Force
• 7 Some Concluding Notes
• Index