Counter-Terrorism and International Law

Katja L.H. Samuel, Nigel D. White

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9781138110830
• eBook ISBN:
  9781351948166
• Topic: Law
• Subtopic: International Law
• Index: Law

The articles and essays in this volume consider the problem of international terrorism from an international legal perspective. The articles address a range of issues starting with the dilemma of how to reach agreement on what constitutes terrorism and how to encapsulate this in a legitimate definition. The essays move on to examine the varied responses to terrorism by states and international organisations. These responses range from the suppression conventions of the Cold War, which were directed at criminalising and punishing various manifestations of terrorism, to more coercive, executive-led responses. Finally, the articles consider the role of the Security Council in developing legal regimes to combat terrorism, for example by the use of targeted sanctions, or by general legislative measures. An evaluation of the contribution of the sum of these measures to the goals of peace and security as embodied in the UN Charter is central to this collection.

Part I

History

[1]

Countering Terrorism: A Historical Perspective*

ADAM ROBERTS

WHAT CONCLUSIONS CAN be drawn from the long history of terrorist and counterterrorist campaigns? And what directions does this history suggest for the ongoing international campaign against terrorism? Today’s international terrorism has assumed organisational forms and means of operating that are historically new. The shadowy entities labelled ‘Al Qaeda’ are different from earlier terrorist movements in the extremism of their aims and in the far-flung, co-ordinated and ruthless character of their operations. No less novel is the contemporary US and international campaign against international terrorism. And yet, despite all the unprecedented aspects of this conflict, there are dangers in neglecting the history of terrorism and counterterrorism. These dangers include the repetition of mistakes made in earlier eras. The long and tangled history of terrorism and counterterrorism suggests a number of conclusions about the nature of terrorist and counterterrorist campaigns that need to be taken into account in policymaking.

This survey has three sections. Section I glances at the history of attempts at defining terrorism. It notes not only the unavoidable difficulties in international discussions of this topic, but also the degree of progress that there has been in defining and prohibiting terrorism. Above all, this section is a warning against over-simple use of this necessary but troublesome term. Section II is about the history of terrorism and counter-terrorism, seeking to distil some general conclusions about a phenomenon that is always, in reality, deeply rooted in time, place and circumstance. It indicates how debates on terrorism and counterterrorism have often lacked an all-important historical dimension. It offers some inevitably simplified propositions derived from the history of terrorist campaigns, starting with the critical issue of whether terrorism is properly seen as an external threat to democracies. Section III is about the ‘war on terror’ itself, looking particularly at the marshalling of international support for it, and at the emphasis on military intervention that has been part of that war. In the conclusions, six main lines of criticism of the US-led campaign are advanced. This Section suggests that the US doctrine on the ‘war on terror’ is vulnerable to the charge that it takes too little account of the history of the subject. There is a need to articulate what might be called a British (or, more ambitiously, a European) perspective on terrorism and counterterrorism – one that is more historically informed, encompassing certain elements distinctive from the US doctrine.

Before proceeding, it is necessary to say a brief word about the difficult topic of the causes of terrorism. In most areas of life – including crime, sickness and war – it is possible to discuss causes without inviting the degree of controversy that arises in the case of terrorism. Unfortunately, discussion of the ‘causes of terrorism’ has become emotionally charged. The principal reason for this sorry state of affairs is that any discussion of causes is easily interpreted as amounting to a justification of terrorism.

The demonstrable historical fact is that terrorist campaigns have arisen in response to several types of situation. They have had as stated purposes the overthrowing of what are perceived as autocratic regimes, including that of the Tsars in Russia in the nineteenth century. They have arisen, even in democracies such as Spain, Sri Lanka and the United Kingdom, as a response to one part of a population’s alleged dominance over another. They have also frequently arisen in response to colonial rule, and to foreign occupation. The common thread in the growth of suicide bombing since the attack on the US Embassy in Beirut in 1983 is not just religious extremism but the presence of foreign military occupation. As Robert Pape has written, ‘the close association between foreign military occupations and the growth of suicide terrorist movements in the occupied regions should give pause to those who favor solutions that involve conquering countries in order to transform their political systems’.¹ This clear view, that terrorist campaigns are a response to particular types of situation, does not mean that such campaigns are either inevitable or justified. Even in the most difficult circumstances there are moral and strategic choices, and it is far from self-evident that terrorism has superior claims over other forms of action. The attempt to define terrorism arises in part from a desire to underline this point.

I. DEFINING ‘TERRORISM’

The word ‘terrorism’, like many abstract political terms, is confusing, dangerous and indispensable. Confusing, because it means very different things to different people, and its meaning has also changed greatly over time. Dangerous, because it easily becomes an instrument of propaganda, and a means of avoiding thinking about the many forms and causes of political violence. Indispensable, because there is a real phenomenon out there that poses a threat to many societies.

A case can be made that a better generic term to cover the phenomenon under discussion would be ‘political violence’. It is less emotion-laden, less condemnatory and certainly wider in scope than ‘terrorism’. Yet there is a continuing need for a term that distinguishes some forms of political violence from others. Violence used or threatened by those manning an insurrectionary barricade, or defending an area from police or army incursion, is hardly in itself terrorism. By contrast, violence intended to spread terror much more generally, especially when involving attacks on civilians and/or based on the idea of violence as transforming the political landscape, is a distinct category. In short, and despite a large area of debatable borderland between the two, terrorism can in principle be distinguished from certain other forms of political violence.

The problem of defining ‘terrorism’ is similar to that of defining many other political abstract terms, such as ‘imperialism’ and ‘war’: the core meaning may be clear enough, and it may be possible to secure agreement that certain cases fit that meaning. At the edges, however, there is often scope for genuine debate about whether particular acts, or types of action, really deserve to be included in the category.

Even within certain countries there can be different legal definitions of terrorism. For example, different US government agencies have had different understandings of the term, and this has sometimes complicated intra-governmental cooperation. That there should be international disagreement on the meaning of the term is not surprising: what is remarkable is that there has been significant progress towards a definition.

There are traps in most attempted definitions of terrorism, and in the uses made of the term. The most serious is that the label ‘terrorist’ has sometimes been applied to the activities of movements which, even if they did resort to violence, had serious claims to political legitimacy, and also exercised care and restraint in their choice of methods. Famously, in 1987–88 the UK and US governments labelled the African National Congress of South Africa ‘terrorist’: a shallow and silly attribution even at the time, let alone in light of Nelson Mandela’s later emergence as statesman.

In certain circumstances, the repeated use of the term ‘terrorist’ to describe a particular class of adversaries can conceal rather than clarify key aspects of the political environment. In particular, the description of a group as ‘terrorist’ may obscure the fact that its opponents also use terror; and it may also obscure the fact that the so-called terrorist group has a moral, political and economic basis for its power, and does not rely exclusively on terror to maintain its influence. For example, in the 1960s many writers and journalists freely used the word ‘terrorist’ to describe a member of the Vietcong, the military arm of the National Liberation Front of South Vietnam. The Vietcong did undoubtedly use the weapon of terror ruthlessly and systematically against the South Vietnamese population. However, serious studies suggested that terror was not on its own an adequate basis of control: a sense of the moral justice of the cause was also present. The two factors were mutually reinforcing – and this helped to explain the capacity of the Vietcong to endure.²

The problem of defining ‘terrorism’ is especially difficult as it is generally seen as a pejorative term: all diplomatic attempts to define it have been combined with attempts to prohibit it. This brief exploration of the difficult issue of definition looks at international negotiations on the topic, especially those within a UN framework; and it then offers a short working definition indicating how the term is used in this chapter.

A. Negotiating towards a Definition

The UN General Assembly, which has addressed the problem of terrorism since the early 1970s, has adopted 13 treaties prohibiting particular terrorist acts from air piracy to acts involving nuclear reactors; but it has been able to reach only a limited measure of agreement on a general definition of terrorism.³ The General Assembly’s ad hoc committee on terrorism, established in 1996, has not yet been able to agree all parts of a definition which would form part of the draft comprehensive convention. One problem has been that many post-colonial states in the General Assembly claim origins in national liberation struggles that colonial powers called terrorist campaigns. Such states have been at the forefront of demands to incorporate in any text defining terrorism a pledge to address the root causes of terrorism – which seemed to the United States and others as a backdoor justification of terrorism. There have been parallel difficulties in working out an acceptable generic distinction between terrorists and freedom fighters. Yet there has been some modest progress towards a definition of terrorism.

Partly this has been due to the focus on a particular aspect of contemporary terrorism – the fact that it often involves deliberate attacks on civilians. Progress has been made in the UN Security Council – where there has been less concern than in the General Assembly about referring to the root causes. A Security Council resolution in October 2004, after condemning ‘all acts of terrorism regardless of their motivation’, came close to a definition of terrorism when it stated that the Council:

Recalls that criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, and calls upon all States to prevent such acts and, if not prevented, to ensure that such acts are punished by penalties consistent with their grave nature.⁴

Similarly, the UN High-level Panel on Threats, Challenges and Change, which issued its report in December 2004, focused on civilians in its suggested definition of terrorism:

any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.⁵

A limitation of both these definitions put forward in 2004 (and especially of the second one) should be noted. The emphasis being largely on the threat to civilians or non-combatants, they might appear not to encompass certain acts such as attacks on armed peacekeeping forces, attacks on police or armed forces, or assassinations of heads of state or government. They might not include the attack on the Pentagon on 11 September 2001, but for the fact that it involved the hijacking of a civilian airliner.

The UN General Assembly’s World Summit Outcome document of September 2005 condemned ‘terrorism in all its forms and manifestations, committed by whomever, wherever, and for whatever purposes’.⁶ However, this document did not attempt to define terrorism. Subsequently, in September 2006, the General Assembly approved a resolution entitled ‘UN Global Counter-terrorism Strategy’ the preamble of which contained some elements of a definition when it reaffirmed ‘that acts, methods and practices of terrorism in all its forms and manifestations are activities aimed at the destruction of human rights, fundamental freedoms and democracy, threatening territorial integrity, security of States and destabilizing legitimately constituted Governments’. The document promised support for a future comprehensive convention on international terrorism, which would contain a legal definition.⁷ Then in December 2006, in much the same vein, the General Assembly passed a resolution on ‘Measures to Eliminate International Terrorism’ in which it stated that the General Assembly:

Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.⁸

The 2005 Council of Europe Convention on the Prevention of Terrorism defines terrorism in a similar fashion in a preambular clause:

Recalling that act...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I HISTORY
• PART II DEFINING TERRORISM
• PART III CRIMINAL JUSTICE APPROACH
• PART IV WAR ON TERROR
• PART V INTERNATIONAL INSTITUTIONAL APPROACHES
• PART VI STATE RESPONSES
• PART VII JUDICIAL RESPONSES
• PART VIII AN EMERGING FRAMEWORK?
• Name Index