For many years, the word terrorism was a highly charged political
term devoid of any legal significance. In fact, it was axiomatic
that "one man's terrorist is another man's freedom fighter." The
term was used pejoratively, connoting revulsion at the acts of
political violence by the weak, the oppressed and the
disenfranchised, against vastly superior and well-established
armies and political systems.
The hijacking in the 1970s of civilian aircraft, to draw attention
to the Palestinian cause, was one in a series of events that led to
the term being used extensively and attached tenaciously to the
Palestinian struggle for several decades after the Palestinian
resistance, in fact, abandoned this particular tactic. The term
became a useful tool for discrediting political violence when used
by liberation movements. The fact that such movements were often
unable to confront the armies of their opponents, and fell into the
temptation of targeting the "softer" civilian targets only served
to further discredit them as being evil and heartless, or wanton
and indiscriminate. The negative results of such a designation were
so powerful that the term "terrorist" was used against all the
types of violent action taken by such groups, even when they
utilized it properly against military targets and in pursuit of
legitimate objectives.
One example was the routine labeling of Hizbullah (an umbrella
organization of various Shi'ite groups and organizations which
adhere to a Khomeinistic ideology) fighters in southern Lebanon as
terrorists, when they were clearly an armed-resistance movement
acting against the Israeli military occupation, and when their
targets were primarily, if not exclusively, Israeli military
targets. Turkey also used that label against the Kurdish fighters
of the Kurdistan Workers Party (PKK) and accused that organization
of terrorism, thereby also justifying its denial of the demands of
Turkish Kurds for cultural, linguistic and political
autonomy.
This designation was not limited to the Middle East. The South
African apartheid regime used the term against the African National
Congress (ANC) and sought to discredit it in order to justify its
own system. The Russian army, fighting the Chechen rebels, labeled
them "terrorists," and, in fact, engineered a number of blasts in
the Russian capital to arouse public opinion against the rebels and
to justify an intensification of the war against them, in the name
of "fighting terrorism."
"State Terrorism" or "States that Support Terrorism"
While the charge of terrorism assumed or implied politically
motivated acts of violence aimed at civilians and perpetrated by
non-state groups, the state that was fighting terrorists often
engaged in far greater acts of violence against civilians, but the
term "terrorist", and the attendant revulsion and
de-legitimization, however, was not applied to their actions. The
perceived unfairness of the accusation led to the rise of an
opposing polemic complaining of "state terrorism," and using that
designation to refer to acts of indiscriminate political violence
by states and their armies, aimed at intimidating largely civilian
populations.
To muddy the waters further, the US began using the phrase "states
that support terrorism" as a designation for states that tolerated,
sympathized with, or supported liberation movements, or other
political resistance movements whose objectives were not in line
with US policy. A list of such states was published by the US State
Department and political consequences followed for any state whose
name appeared on that list. Arab states like Libya and Syria
expended much effort, and were prepared to make substantial
political concessions, in return for a promise to have their names
stricken from that list.
In the wake of the September 11, 2001, attack on the World Trade
Center, the US embarked on an international effort to fight
"international terrorism" and to demand that each and every state
undertake specific actions in the "war on terrorism." This included
denial of material and financial aid, refuge, or support to any
individual or organization that the US could successfully accuse of
involvement in international terrorism. It required all banking
institutions to provide detailed financial information on suspected
groups or persons and to freeze the funds associated with such
groups and individuals. The US Patriot Act was enacted, granting
the US broad powers to collect information, freeze funds, and
arrest individuals on mere suspicion of involvement in
"international terrorism."
Definitions and Legal Criteria
It therefore became necessary to examine the term and introduce a
measure of objectivity into the fevered discourse by establishing
and listing clear definitions and promulgating legal criteria for
what has hitherto been a largely subjective matter, and which
continues to be a highly charged emotional matter. Almost no one
disputed that the hijacking of civilian aircraft, and the use of
such airplanes as loaded missiles constituted an illegitimate
method of political struggle that should be internationally
outlawed. Nobody disputed that the Twin Towers (though not the
Pentagon building) were not a legitimate target in any political
struggle. In that sense, there was an international consensus that
such actions, and the organization behind them, ought to be
outlawed and international efforts to curb such organizations were
vital and should be codified into international law (if they were
not already prohibited by various provisions of conventional and
customary international law). Beyond such clear cases, however,
there was much to be debated:
First: Is it an act of terrorism when the target is clearly
military (such as the attack on the USS Cole, the US Navy ship in
Aden)? It seems that, under traditional laws of war and customary
international law, such politically motivated actions, however
foolish, unwise or injurious, must not be confused with attacks on
clearly civilian targets.
Second: Is "suicide" as a component of the tactics utilized
sufficiently abhorrent morally to be, itself, outlawed as an
illegitimate form of political struggle? Is suicide a "terrorist"
tactic, which should be outlawed by the international community?
Israel is currently lobbying for a treaty to denounce suicide
attacks (as a matter of international law) and make it an
international crime to support, allow, fund, equip or incite
actions that involve suicide attacks. Again, if the target of the
attack is clearly military and not civilian, the willingness of the
fighter to die or take a 100 percent risk of fatality (while
strange to the Western mind) is not prohibited under current
international laws, and the case has not been made that, in fact,
it should be. Unfortunately, all war and armed struggle involves
high risks of fatality both for the perpetrators and their enemies.
Until war itself is outlawed, the international community, which
has an interest in limiting casualties among noncombatants, has not
clearly outlawed or repudiated political violence. This includes
the perpetrator taking the supreme sacrifice in an effort to
inflict maximum casualties on his enemies as a method for drawing
attention to his cause.
Third: Which rules ought to govern the behavior of liberation
movements and other non-state groups involved in a violent struggle
for political objectives? Are these rules different from the rules
governing the behavior of states and their armed forces? Should
there be detailed conventions governing such groups and proscribing
the weapons, tactics, and targets against which they may
legitimately act in pursuit of their political objectives? Or are
the same rules applicable to them by analogy? It would seem that
with respect to prohibited weapons of indiscriminate and mass
destruction (such as chemical or biological weapons) the rules
ought to be the same. Similarly, the targeting of uniquely civilian
and noncombatant populations and establishments should also be
prohibited. International law recognizes the right to legitimate
resistance in the course of a struggle for freedom, or against
foreign and colonial rule, but there is no clarity as to the
restrictions on such a right. For example, is it legitimate to
"internationalize the struggle" by carrying it into the heartland
of the colonial power, for example, or to other geographic areas
outside the direct area of conflict?
Fourth: Where a legitimate movement practices armed struggle, but
is also engaged in a political struggle for its objectives, a
distinction should be made between the armed wings of such a
movement and its political and social wings. Where such an
organization actively separates its armed cadres and activities
from the wider "political" activities associated with its cause,
should such wings be treated differently (as a matter of
international law) or should countries be permitted to paint with a
broad brush the entire enterprise and outlaw the whole movement
when its armed wing carries out prohibited and improper violent
activities? The US, as well as Israel and others has argued that in
the fight against terrorism, it is necessary to destroy the
"infrastructure" supporting terrorism and dry up their sources of
funding, support and sympathy. Such an argument lacks a clear nexus
and connection; thus how far should such states be permitted to
proceed under the umbrella of "fighting terrorism" before they
themselves begin to terrorize a civilian population?
Lack of Reasonable Discussion Hampers Fight against
Terrorism
Unfortunately, little discussion of these issues takes place in a
calm or reasonable fashion. The absence of such reasonable
discussion and the emergence of clear definitions and criteria will
hamper the real fight against terrorism, thus further weakening
international law itself by allowing the prevalence of totally
subjective approaches whenever the designation of terrorism
continues to be based on the identity of the perpetrator, or that
of the targets. In such an atmosphere, double standards abound and
respect for international law is diminished, so positions are taken
solely on self-interest and power relations. Who is labeled a
terrorist, or to the contrary exonerated and supported, will then
depend on whether we like or don't like an individual group.
Whatever criteria are eventually adopted must be clear, objective,
measurable and applicable to friend and foe alike. Only in this
fashion can we develop a unified position against the scourge of
international terrorism.