Migration, Culture Conflict, Crime and Terrorism

Rob T. Guerette, Joshua D. Freilich

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9780754626503
• eBook ISBN:
  9781317096276
• Topic: Social Sciences
• Subtopic: Law Theory & Practice
• Index: Social Sciences

Immigration and its consequences is a substantially contested subject with hugely differing viewpoints. While some contend that criminal participation by migrants is the result of environmental factors found in the host country that are beyond the control of migrants, others blame migrants for all that is wrong in their communities. In this book, experts from Europe, the USA, Turkey and Israel examine recent developments in the fields of culture conflict, organized crime, victimization and terrorism, all of which intersect to varying degrees with migration and illegal conduct. While the essays further our understanding of a variety of issues surrounding migration, at the same time they illuminate the complexities of managing the challenges as globalization increases.

PART I
Migration, Religion, Culture and Terrorism

Chapter 1
Terrorism Rediscovered: The Issue of Politically Inspired Criminality

Hans-Heiner Kühne

Universities of Trier and Westminster

Introduction

Crime for political reasons – be they sincere or an abusive pretext for illegal behavior – is a phenomenon nearly as old as crime itself. Criminal acts in this context have been directed against representatives of the political system and anybody else whose victimization could prove detrimental to the system. History tells us that the more established states become, the more they define actions which threaten the prevailing system as criminal. Tribal quarrels which began as a struggle for predominance changed to internal warfare and from there into high treason. For instance, in the end of the 19th century early Russian revolutionaries used bombs in a context we would call terrorism today. Subsequently, we can document numerous conflicts especially in Europe, Africa and Asia in which criminal acts have been committed as a means of terror in an effort to invoke political change. Quite a number of these activities were successful and as the former terrorists or revolutionaries rose to power, their former criminal behavior retroactively changed into honorable liberation combat. The redefining of these individuals from criminal terrorist to liberator opened the way for them to become more or less respected politicians.

The Political Motivation of Criminal Acts

This leads directly to the question of defining terrorism and distinguishing it from combat for freedom as well as from simple criminality. Perhaps most apparent is that terrorists and freedom fighters could be considered criminals when they violate criminal laws. However, they might differ from simple criminals in terms of their motivation. Whereas criminals are perpetrating crimes for their own good, terrorists and revolutionaries insist that they are fighting for ideas, which ultimately will bring prosperity and happiness to everyone. The quality of their alleged philanthropic ends, in their eyes, justifies the evil means they apply.

This may have been the reason for specific provisions, which have in the history of penal law opted for respectful sanctions for these “men of good will”. For instance, in Germany until 1969 instead of prison the penalty for politically inspired criminality was Einschließung, a kind of arrest without the stigma of a normal prison (custodia honesta). The predecessor of this regulation was a practice of the 18th and 19th century under which “political criminals” could be sentenced to Festungshaft, which entailed confinement in a reasonably comfortable fortress. The goal was to prevent political activities of individuals who were looked upon as endangering the interests of the ruling class, mostly the feudal lords of the epoch. It has to be admitted, however, that these comfortable forms of confinement were mostly but not exclusively reserved for political crimes which mainly consisted of the publication of “wrong ideas” and political agitation.

Potential Doctrinal Excuses for Acts of Political Criminality

Putting aside these peculiarities, at the level of substantive law in cases of manslaughter and other serious criminality, there might be some exemptions by excuse or justification when acts are committed for political and altruistic reasons. But there is no penal law in the world which grants justification or excuse for killing people other than for reasons of self-defense or war. Self-defense in most terrorist or revolutionary assaults does not apply. The very meaning of terrorism is to victimize people who are not aware of the assault and hence are without protection, let alone aggressive, which could allow terrorists to claim self-defense.

Much more complicated is to decide whether these acts – however deplorable they might be – are legally justified as combat activities of war. There has hardly been any revolutionary or terrorist group in history that did not insist on declaring themselves to be at war with the system they were fighting against. Yet, consistently the states involved have denied such undertakings for obvious legal and political reasons. Groups emerging from inside the country cannot be conceded a legal status of their own, enabling them to declare war against their own state. Such a situation could only be assessed differently in cases of full blown civil wars. For many reasons states try to avoid, however, an avowal of civil war since it would revalorize the inner enemy as well as display a definite loss of the state’s control and autonomy. To give just two examples, this is why the United Kingdom has never acknowledged the IRA as a party to civil war just as Germany did not do so with the Red Army Faction (RAF).

Yet, it remains to be decided what forms of terrorism and under what circumstances they might be regarded as legitimate acts of freedom fighting. Both options lack a definition of their prerequisites. In the case of civil war, it is mostly a political question which is decided upon by political discretion. If there is declaration of civil war, either by the state concerned or some other recognized authority, what formerly might have been considered terrorism now retroactively changes into legal acts of war. However, it is uncertain under what circumstances such a transition occurs. This situation makes it extremely difficult to talk about terrorism and morally condemn it. Moreover, it might be the reason for the lack of any universal definition of terrorism.

A New Paradigm: War on Terrorism

Recently we have begun to speak about the “war on terrorism”. This is not just a façon de parler, a mode of expression but, indeed, a new terminology with a very distinct and substantial aim. While refraining from historically and politically tracing back that terminology, it is meant to tear down the barriers between fighting crime and waging war.

Waging War and Fighting Crime

First, let us examine the differences between waging war and fighting crime. In the process of fighting crime, states may only impose sanctions on persons on the basis of a formal judicial trial of which the basic guarantees are laid down in a number of international covenants like the European Commission on Human Rights (ECHR) or the UN Covenant on Civil and Political Rights (CCPR) or the UN Declaration on Human Rights. Thus, any state needs a judicial justification to impose a penalty on a person.

In war, however, as soon as it is declared, the state is permitted to kill the enemy without further justification. Additionally, in war-time there is a worldwide consent that states, in the name of domestic security during war-time, may sanction their own people without or with restricted participation of the ordinary judicial system. Hence, during war it becomes easier to bring sanctions against individuals. Needless to say war gives permission to use the death penalty even in those countries which have abolished it in their judicial system. In other words, there are hardly any restrictions for the state to pursue its enemies if it is waging war.

Returning to the newly invoked term “war on terrorism”, it only can mean that terrorists are set free from judicial guarantees, considered outlaws and may be prosecuted and killed by anyone authorized to do so by the state. Hereby a new international legal dimension is being opened up. That is, the concept of a unilateral war. The enemy is no longer a party to a conflict but an evil being, holding no rights or enjoying any respect, whereas the state denominating and defining terrorism and terrorist organizations holds the privilege of a party to a war with little obligation to judicial process and free to employ nearly any means of repression and extermination.

This is not the place to elaborate concisely on the viability of such a one-sided concept under international law, although it does seem to be lacking any internationally accepted basis. At the same time the criminological and pragmatic arguments weighing the worldwide dangers of terrorism against the achievements of human rights’ protection and judicial guarantees cannot be exhaustedly discussed here. But it cannot be denied that since times of pre-enlightenment there has never been such a one-sided aspiration of power from the side of the state, nor has the state ever been so free in fighting evil-doers.

The new ideology that only preemptive strikes will prevent the risk of terrorist attacks also unleashes the state’s power from any legal bond; not even a suspicion of a criminal act or a verifiable danger to a person or to society is needed to justify intervention. It will be hard to draw a line between these activities and those of a totalitarian, fascist state. It might even become controversial whether such a fight against terrorism is not terrorism itself.

At the end of the day it is all about the question of which of the two parties has relied on the right and true values. But, history and philosophy have shown us that the plurality of value systems, be they of religious or rational character, do not allow for such a simple differentiation. Additionally there have hardly been any terrorists in history who have not referred to generally or widely accepted values.

Thus, the “war on terrorism” leads to an unsolvable controversy about the right and true values of those involved. It also precludes those states from using the most important argument for their actions. That is, that the suspension of legal process invoked while fighting terrorism displays and proves their moral and just position.

Political and Legal Consequences of the Concept of War Against Terrorism

Societies that are under direct threat of terrorism, like the United States and Israel, refer to the war on terrorism while they ignore most of the guarantees civilized societies have agreed upon in responding to crime. Other states, which are under no imminent threat and have no cause to act accordingly, are also undertaking similar actions of suspending judicial process under the guise of the “war against terrorism”. This is particularly evident among common attitudes of European penal law cultures. Germany, for instance, provides a useful example.

Shortly after September 11 the German minister of the interior came up with two packages of drafts for the “Fight against Terrorism and Improvement of International Security”. The core of those proposals consisted of new or enlarged coercive measures making the police and the prosecutorial authorities considerably stronger than they had been even under the amendments of the mid-1990s established to fight organized crime. These two packages passed through parliament without any controversial discussion or opposition. There was not even the slightest attempt to explain why and how 9/11 could have deteriorated the German situation of domestic security. Neither has there been any explanation of how the new laws could help fight this non-described new terrorist threat.

The worldwide shock of 9/11 helped the passing of these laws without discussion. Just the headlines promising intensified efforts to fight terrorism were ample justification. The Zeitgeist was flying high above any possible clouds of doubt or controversy. In fact, these two packages were anything but custom-made provisions to improve prevention and prosecution of terrorism. They simply were – with some rare exceptions – the remnants of earlier drafts on organized crime, which did not pass the parliamentarian discussions as they were deemed to be unduly repressive and disputed as to their efficiency. The Zeitgeist brought them up again and determined politicians gave them a new meaning without changing their substance.

Three years after passing the anti-terrorism packages we are able to retrospectively examine them. We are even able to admit that Germany has neither experienced any additional threat of terrorism after 9/11 nor that there has been any crucial gap of legal instruments to respond to such threats. Yet, these laws have remained in effect. It is likely that any new spectacular terrorist attack anywhere in the world, directed against the new alliance of the “good guys” states, will open the gates for further repressive legislation which will neither reduce terrorism nor improve its prosecution.

So the worldwide rediscovery of terrorism is being used as an instrument to vindicate intensified repression in former liberal states. Beginning in the late 1980s, the catchword putting penal law on the move around the world was “organized crime”, since September 11, 2001, it is terrorism. But the new catchword is much more dangerous as it destroys the limits between fighting crime and fighting wars. Under the pretext of terrorism, domestic security becomes an issue of external security thus alleviating or even ignoring legal and judicial restraints.

To summarize this discussion the following points are provided:

1. Although a number of former terrorists have become respected politicians there is no penal law which justifies or exempts such behavior. Terrorists cannot, on their own authority, refer to their situation as one of war thus justifying their atrocities as acts of combat. Hence, terrorists are criminals and have to be treated accordingly.

2. The term “war on terrorism” has introduced a new paradigm which claims an array of war like activities from the side of the state, while denying terrorists the rights and guarantees they enjoy as criminals. This concept of a one-sided war until now has lacked legal verification, at a national and international level, and presents the danger that states fighting terrorists can hardly be discriminated from the terrorists they are fighting against.

3. Terrorism has become the new catchword around the world used to justify the repressive shift of national penal law systems even when there is no discernible domestic terrorist threat. Further, this shift serves to blur the borders between domestic issues of fighting crime and external security issues of waging war.

After all this, two questions remain:

1. What can be done to help those nations which are plagued by terrorism?

2. How do we accommodate terrorists who become statesmen and what does this mean for the definition of and the fight against terrorism?

Repression Versus Prevention: The Limits of Penal Law

Turning to the first question, it should be remembered that police law and penal law are not a cure but only function as a supportive instrument to reduce and control criminal acts. Hence, there is no chance in relying solely on intensified repression. Further, we know that people who have nothing left to lose will try everything and the threat of punishment will do little to deter them. Because of this, any law or authority will be impotent if people are without hope. This characterizes the limits of any legal order and its repressive and preventive means, and leads us directly to the reasons for terrorism.

It is, after all, the reasons for terrorism that have to concern us. Shlomo Giora Shoham elaborates on the reasons of terrorism (see below, Chapter 3). If we follow his ideas and take entropy as a term measuring disorder and deficits in a society, we will realize societal shortcomings relevant for the formation of terrorism which include:

1. education;

2. economy;

3. respect of individual rights;

4. political autonomy and public participation in political processes.

Education in this context plays a crucial role. First, it is the source for competence, which opens doors to economic success and a decent political system. But education serves at the same time as a most powerful weapon against terrorist ideologies. All of these ideologies are in a certain way fundamentalist, that is, they are reducing the understanding of the world to an intellectual minimum thus explaining life in an extremely simplistic way. That life appears as an easy black and white picture where good and a bad can be discerned without difficulty. Needless to say, the simplifiers are always on the side of the “good guys”.

These extremely banal world visions, be they of socialist, fascist or religious hues, will hardly be accepted by people whose education has widened their philosophical perspectives. Serious social injustice as well as a lack of participation in the political process is also a strong incentive. However, even for the educated to turn to such black and white views (as they make it easier to decide to rise against such a system) denies its legitimacy. Here matters of human rights and political participation interact negatively with the issue of education. Fighting the roots of terrorism therefore is a highly political issue of giving a solid educational, economic, and political structure to a society where terrorism exists.

The Moral Question

The last but by far not least question is about the impact of the volatile change of identity from terrorist to statesman on our understanding of terrorism. There is ample historical evidence, some more recently, which indicates that no matter how heinous the act of terror committed by an individual it will not prevent the possibility of a promotion to statesmanship. Unfortunately, there are no guidelines, value systems or other factors that predict such a promotion. It appears to remain completely random or at least at the political discretion of some powerful states to decide that the cause of the terrorist is valid. Upon such recognition, so to say, the criminal past is wiped out. Even considering the hazardous character of such a process it is not hard to understand that it still may give sufficient incentives for people in deprived situations to turn to terrorism as a political means. Historically, it has repeatedly been demonstrated that these causal processes work appallingly well, in fact.

Conclusion

The only way to prevent such a motivation to terrorism would be an international ban on specifically described acts of terrorism which would be prosecuted by an international court even in cases where the perpetrator has reached a high political position as head of state or minister.

The definition of such crimes, however, would be no easy task since it would have to be based on a definition of the limits of self-defense against legal injustice and against unjust or even illegitimate states. The proble...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Figures
• List of Tables
• About the Authors
• Introduction
• PART I Migration, Religion, Culture and Terrorism
• PART II Migration and Offending Issues
• PART III Organized Crime, Trafficking and Refugees
• PART IV Responding to the Victimization of Migrants
• Index