Criminal Justice: Identifying the root causes of violent political extremism

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Present a comprehensive discussion of defining terrorism and identifying the root causes of violent political extremism. Based on the material covered in Martin’s textbook and the articles available in the Supplementary Reading Packets, provide your own definition of terrorism and defend it.

Additional Guidelines:

1.  Your paper should include a title page, an abstract, no less than 3 pages of written text (1-inch margins, 12-point font, double-spaced), and a bibliography.

2.  The body of your text will include an introduction stating the purpose of your paper, several well-formulated paragraphs of no less than five sentences with appropriate transition sentences between them, and a conclusion bringing your paper to an orderly close.

3.  You must at least two articles from the Supplementary Reading Materials as primary sources for your paper.

4.  Your entire paper – from the layout to the citations – must conform to APA format.

Supplementary Reading Materials:

American Behavioral Scientist-2001-COOPER-881-93.pdf

American Behavioral Scientist-2005-Bolechou00a6u00fcw-783-94(2).pdf

American Behavioral Scientist-2005-Duff-758-63.pdf

American Behavioral Scientist-2005-Galicki-743-57.pdf

American Behavioral Scientist-2008-Schwartz-1394-9.pdf

International Relations-2002-Wheeler-205-25.pdf

International Relations-2007-Walzer-480-4.pdf

Journal of Conflict Resolution-2006-Ferrero-855-77.pdf

Journal of Conflict Resolution-2007-Clauset-58-87(2).pdf

Journal of Peace Research-2006-Gray-23-36.pdf

Journal of Peace Research-2011-Sandler-279-86.pdf

Security Dialogue-2003-van Ham-427-44.pdf

American Behavioral Scientist-2001-BLAZAK-982-1000.pdf

American Behavioral Scientist-2002-LEE-927-57.pdf

American Behavioral Scientist-2007-Bar-Tal-1430-53.pdf

Int J Offender Ther Comp Criminol-2003-Weatherston-698-713.pdf

International Journal of Comparative Sociology-2005-Lauderdale-3-10.pdf

Journal of Conflict Resolution-2006-Burgoon-176-203.pdf

Journal of Conflict Resolution-2007-Tessler-305-28.pdf

Journal of Conflict Resolution-2007-Wade-329-48.pdf

Textbook:

Martin, G. (2012). Understanding terrorism: Challenges, perspectives, and issues (4th ed.). Thousand Oaks, CA: Sage Publications.  ISBN: 9781452205823

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Americanhttp://abs.sagepub.com/ Behavioral Scientist Terrorism : The Problem of Definition Revisited H. H.A. COOPER American Behavioral Scientist 2001 44: 881 DOI: 10.1177/00027640121956575 The online version of this article can be found at: http://abs.sagepub.com/content/44/6/881 Published by: http://www.sagepublications.com Additional services and information for American Behavioral Scientist can be found at: Email Alerts: http://abs.sagepub.com/cgi/alerts Subscriptions: http://abs.sagepub.com/subscriptions Reprints: http://www.sagepub.com/journalsReprints.nav Permissions: http://www.sagepub.com/journalsPermissions.nav Citations: http://abs.sagepub.com/content/44/6/881.refs.html >> Version of Record - Feb 1, 2001 What is This? Downloaded from abs.sagepub.com by guest on March 4, 2012 from the SAGE Social Science Collections. AllDownloaded Rights Reserved. from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Americanhttp://abs.sagepub.com/ Behavioral Scientist Terrorism : The Problem of Definition Revisited H. H.A. COOPER American Behavioral Scientist 2001 44: 881 DOI: 10.1177/00027640121956575 The online version of this article can be found at: http://abs.sagepub.com/content/44/6/881 Published by: http://www.sagepublications.com Additional services and information for American Behavioral Scientist can be found at: Email Alerts: http://abs.sagepub.com/cgi/alerts Subscriptions: http://abs.sagepub.com/subscriptions Reprints: http://www.sagepub.com/journalsReprints.nav Permissions: http://www.sagepub.com/journalsPermissions.nav Citations: http://abs.sagepub.com/content/44/6/881.refs.html >> Version of Record - Feb 1, 2001 What is This? Downloaded from abs.sagepub.com by guest on March 4, 2012 from the SAGE Social Science Collections. AllDownloaded Rights Reserved. from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Downloaded from abs.sagepub.com by guest on March 4, 2012 Americanhttp://abs.sagepub.com/ Behavioral Scientist The United States of America Vis-à-Vis Terrorism : The Super Power's Weaknesses and Mistakes Bartosz Bolechów American Behavioral Scientist 2005 48: 783 DOI: 10.1177/0002764204272579 The online version of this article can be found at: http://abs.sagepub.com/content/48/6/783 Published by: http://www.sagepublications.com Additional services and information for American Behavioral Scientist can be found at: Email Alerts: http://abs.sagepub.com/cgi/alerts Subscriptions: http://abs.sagepub.com/subscriptions Reprints: http://www.sagepub.com/journalsReprints.nav Permissions: http://www.sagepub.com/journalsPermissions.nav Citations: http://abs.sagepub.com/content/48/6/783.refs.html >> Version of Record - Dec 20, 2004 What is This? Downloaded from abs.sagepub.com by guest on March 4, 2012 The United States of America Vis-à-Vis Terrorism The Super Power’s Weaknesses and Mistakes BARTOSZ BOLECHÓW Wroclaw University, Poland Due to international policy and internal sociopolitical factors, America has been the primary target of international terrorism since the 1960s and is seen as a major obstacle to the goals of international terrorism. This article discusses key mistakes made by the Unites States that the author argues have strengthened and given rise to further terrorism, including (a) acceding to terrorists’demands; (b) funding freedom fighters who later became involved in terrorism against their former benefactors and allies; (c) misunderstanding foreign peoples and cultures and believing all terrorism must be state sponsored; (d) applying force selectively; (e) thinking in error that the United States is safe from terrorism; and (f) faulting U.S. media specifically, exacerbating the problem by inadvertently galvanizing sympathetic public opinion for acceding to terrorists’demands. The author discusses corrections to these mistakes. Keywords: terrorism; counterterrorism; United States; foreign policy; asymmetric warfare Although this article will be only a very general outline of the problem formulated in the title, I nevertheless hope that it contrives to touch on the most important issues. I also hope that this critique of U.S. policy will be regarded as neither a manifestation of anti-Americanism, so “fashionable” and popular today, nor a typical European willingness to teach or to advise “the Big Brother.” My interest in American counterterrorism policy is propelled not by any ill will toward the United States but on the contrary, by my attraction to this country and the conviction that nothing else but America is the pillar of international order and security, and that without a safe and stable United States, there is no safe world. Since the end of the 1960s, when modern international terrorism was born, American citizens as well as American property and interests have been the Author’s Note: A version of this article was presented at the international conference Criminal Responsibility in Liberal Democracies in Warsaw, Poland, in September 2002. AMERICAN BEHAVIORAL SCIENTIST, Vol. 48 No. 6, February 2005 783-794 DOI: 10.1177/0002764204272579 © 2005 Sage Publications 783 Downloaded from abs.sagepub.com by guest on March 4, 2012 784 AMERICAN BEHAVIORAL SCIENTIST most frequent aim of international terrorist attacks.1 The reasons why such a situation has lasted for more than 30 years, despite changes in the world and in terrorism, are worth analyzing. Some of them are the inevitable consequence of America’s unique position in the international arena, whereas others are caused by specific internal political, legal, and cultural-social aspects of the country. The rest are connected with the mistakes made by successive American administrations and institutions responsible for fighting against any circumstances threatening to state security. It is worth stating at the beginning that despite various goals and motivations of modern terrorists, anti-Americanism is probably the most universal and widespread of attitudes. Terrorists of the extreme Right and Left, religious fundamentalists, members of radical ecological movements, and antiglobalists treat the United States as the main obstacle to realizing their ideals and dreams. At the time of the cold war, this situation referred to each of the three chief geographical centers of terrorism—Western Europe, Latin America, and the Middle East—with no regard to the differences among these regions and the specificity of their distinctive forms of political violence. At the present moment, although the geography of terrorism has changed considerably, the circumstances are the same. Naturally, the hegemonic status of the United States itself determines similar attitudes—the guarantor of international order, by its nature, will be burdened down with all the inconvenience and unfairness that is part of and generated by this order. Nevertheless, it is only a part of the explanation. The United States, influencing the shape of the present world, has also participated (frequently unconsciously) in the process of shaping modern terrorism. It must be accentuated that the evolution of public opinion in Third World countries and in countries allied to the West regarding America’s role in the international arena has been of essential significance; this perception evolved from an anticolonial state (the United States was regarded as such a state at least beyond the zone embraced by the Monroe Doctrine, for example, during the Suez Crisis of 1956) to an imperialistic one. There is no doubt that the key element in this perception was the war in Vietnam. This conflict was the catalyst of sociopolitical changes that were hard to overestimate (e.g., the rise of the New Left movement in its most aggressive forms) and aggressively influenced anti-American positions of various leftist terrorist formations such as the Red Army Faction, the Japanese Red Army, and the Red Brigades. The domino theory, which stirred up dread of successive American governments including the current government as it is viewed in the common criticism, inflicted maybe the greatest wounds on the United States’s moral authority in the world and among its own citizens. As Henry Kissinger (1996) wrote, “It rarely happens that the results of a country’s activities stray so much from its original intentions” (p. 682). Having withdrawn from Vietnam, the United States did not succeed in rebuilding its position as an anticolonial superpower, and the pivot of the worldwide leftist terrorists’ antiAmericanism became Washington policy in the Middle East (in the 1980s, one of the factors provoking anti-American actions by Western European terrorists Downloaded from abs.sagepub.com by guest on March 4, 2012 Bolechów / UNITED STATES VIS-À-VIS TERRORISM 785 was, in turn, the cruise missile and Pershing missile distribution in Europe). In this case, the key role was played by the Palestinian movement, which in 1968 introduced international terrorism and began hijacking airliners as one of the weapons in its arsenal. The “anti-imperialistic” political atmosphere, prevalent especially among the young, enabled the extremist Western European, Palestinian, and Middle Eastern formations as well as the Japanese Red Army to create a broad alliance. The Palestinians made very efficient use of the fact that after the Vietnam War was over, the radical Western leftist extremists were seeking for a new “common cause” (Hoffman, 1999, pp. 78-79). The political alterations taking place in the region also were in favor of the terrorists. The coups d’état in Libya in 1969, Iraq in 1968, and Syria in 1966 led to the creation of warlike, radical, and anti-American regimes that proclaimed ideas, often strange ones, that combined progressive slogans—making flirtation with Moscow easier—and local specific conditions that allowed the regimes to retain political power. These states did not hesitate to take advantage of the Palestinian Charter or to make use of the cheap and “functional” weapon of terrorism against their enemies, including the most powerful, the United States. After Black September in Jordan, the Israeli-Egyptian agreement in Camp David, and lastly, the liquidation of their bases in Lebanon that were in a state of anarchy, the Palestinians, for their part, also had to look for new allies and were forced to depend on the radical enemies of Israel and the United States. After the Six Days’War, there appeared another problem: Islamic fundamentalism. The culmination and turning point was the Ayatollah Khomeini’s revolution in Iran in 1979. American support for Shah Pahlavi and the relatively arrogant policy of Washington shaped the anti-American face of the Islamic revolution. The collapse of the Shah was, undoubtedly, a considerable defeat for the United States because Iran had been, among others, part of the barrier restraining the Soviet Union from expansion into the Persian Gulf. President Carter’s helplessness in the face of the detention of the American diplomats as hostages in Teheran (including the catastrophically organized rescue action’s failure) distinctively contributed to his downfall and the shaping of the present American counterterrorism policy with all its weaknesses. Iran became one of the main sponsors of fundamentalist international terrorism and organized (after the Israeli invasion of Lebanon in 1982) and supported, with Syria’s help, the Lebanese Shiite formation of Hezbollah, which was later regarded as one of the most effective terrorist groups in the world. It is worth dedicating some remarks to this formation and the role of Iran, because they influenced to a considerable degree U.S. foreign policy vicissitudes and contributed to the creation of the greatest political affair since Watergate. In September 1983, Hezbollah won fame because of the suicide attacks on the American and French marines’ barracks (it also attacked the U.S. Embassy in Beirut twice). This attempt had a direct influence on President Reagan’s decision to withdraw U.S. troops from Lebanon. It was a specific, very dangerous precedent in which the terrorists, with minimal expenditures, managed to force a Downloaded from abs.sagepub.com by guest on March 4, 2012 786 AMERICAN BEHAVIORAL SCIENTIST superpower’s change in foreign policy. It also contributed to the creation of terrorists’ conviction that the United States is a giant made of clay because their material and technological superiority could be neutralized by crossing the “threshold of pain” that could be borne by American society. In 1986, the Iran-Contra affair impaired the credibility of the Reagan administration; the president, proclaiming an uncompromising struggle against terrorism, was caught selling weapons to Iran to release American hostages in Lebanon. This was only one of America’s counterterrorism policy failures.2 At the same time, the elites responsible for the counterterrorism policy started manifesting a specific anti-Iranian or speaking more generally, an anti-Shiite obsession that together with dependence on Saudi oil, hindered realization of the fact that Sunnite extremists’ terrorism could be equally or even more dangerous for the United States and the world. The consequence of this obsession was the inability to take advantage of the chance for improving relations with Iran after 1997, although one might also blame Teheran for such a situation. The support given by the administration to the radically anti-Shiite Taliban was associated with, among other things, the axiomatic necessity of isolating Iran. Speaking about Afghanistan, one cannot help but notice the shortsightedness of American politics. In general, U.S. policy toward Afghanistan consists of two chapters divided by an interlude. The first chapter is the period of backing the Mujahedins that as it is widely known, not only resulted in the Soviet Union’s humiliation but also had a significant effect on the global order. At the same time, American policy contributed to the consolidation of the radical Islamists’ consciousness, which expanded beyond state borders, and to the creation of transnational Islamic nets that became logistical, training, ideological, and economic bases for the terrorists. These bases trained the religious radicals in combat and gave them an exultation and a feeling of power. And finally, this policy contributed to the birth of the threat that Americans today consider as the most dangerous one to their security. Independently of one’s view of the price paid for the Soviet Union’s collapse and the bipolar world, the further vicissitudes of U.S. policy toward Afghanistan consist mainly of catastrophic mistakes. The interlude meant a loss of interest in this vast and inhospitable territory, which after the withdrawal of the Soviet troops and the collapse of the Communist regime in Kabul, seemed to be insignificant regarding American interests and international stability. When this interest, connected with access to Caspian oil and the remunerative project of the American company Unocal (Rashid, 2000, pp. 235-300), was revived in 1994, there began the second fatal chapter that concluded with the attack on the World Trade Center and the consequent military intervention in Afghanistan. Support for the Taliban as well as the misunderstanding of their regime’s nature and the specific culture of the Afghani tribes led to a dead-end street and discredit. To the world, it appeared that an extremely radical theocratic government, ruled by primitive mullahs with the utmost disregard for human rights, was backed by the greatest symbol of democracy and individual freedom and united in this de facto alliance in an exotic coalition with Downloaded from abs.sagepub.com by guest on March 4, 2012 Bolechów / UNITED STATES VIS-À-VIS TERRORISM 787 Saudi Arabia and Pakistan. This was realpolitik of the worst sort, especially when one notices that there were several years between the American agreements with the Taliban and the American raid on the Taliban. This was an exceptional demonstration of American foreign policy’s inconsequence and the incompetence of American counterterrorism efforts. The successive dangerous obsession shaping American counterterrorism policy (particularly of the Reagan administration) was the conviction that international terrorism was the effect of a huge conspiracy organized by Moscow to lead to the annihilation of the “free world.” In brief, terrorism was to be the Communists’ surrogate war against the West. The decision makers willingly accepted the analyses of writers who presented such a position (e.g., Cline & Alexander, 1984; Goren, 1984; Sterling, 1990). Soon afterwards, the Soviet Union was replaced by other states (particularly those of the Middle East), and Americans seemed to be convinced that every kind of terrorism had to be inspired by a state. This obsession hindered the United States from noticing a dangerous truth: that the threat of terrorism was in essence connected much more with the processes of collapse (as it was in Lebanon, Columbia, or Afghanistan) and with the growing helplessness of the states (the result of globalization processes) than with these states’ involvement in terrorism. One may even observe that the tragedy in New York was also partially the consequence of this garbled perspective and a misunderstanding of the changes taking place in the world. The inconsequence in activity associated with the fight against terrorism manifests itself in the United States’s unclear application of the so-called military option, which in my view generated more damages than profits, and in the propagandist usage of the “terrorism” notion or in hypocritically making use of the “terrorist state” label. The military option, employed in 1986 when the American Air Force raided Libya in retaliation for a bomb attempt in a Berlin discothèque, deepened previously visible divisions between the United States and Western Europe concerning just methods of counteracting terrorism. The unilateral military actions undertaken by the Americans consolidated the picture of the United States as an aggressive, arrogant state disregarding legal international regulations. Simultaneously, the Iran-Contra affair painfully uncovered the inconsequence of American policy toward terrorism.3 The declared “hard” attitude proved to be, delicately speaking, selective and inconsequent. The opportunism of the United States (which on one hand was secretly dealing with the terrorists and on the other hand, supporting subversive activities aimed at undermining the legally functioning state’s government) greatly magnified European doubts (not speaking about those outside Europe). These doubts increased all the more so as at this same time, the United States opposed imposing sanctions on the Republic of South Africa despite a racist regime that employed both internal and international terrorism. In my opinion, the most important problem connected with the American military option does not concern a too-excessive aggression (or Downloaded from abs.sagepub.com by guest on March 4, 2012 788 AMERICAN BEHAVIORAL SCIENTIST insufficient aggression, as Norman Podhoretz, 2002, believed) but instead, is associated with the lack of consequence, decidedness, and determination and with excessive improvisation and decisions that seem to be accidental and chaotic. It is true that too many acts of terrorism aimed at the United States have gone unanswered. However, there remains the fact of equal importance that the responses did not always take a correct shape and were not always directed against the correct objects and, hence, usually appeared to be of little effectiveness or simply ineffective. The air raids on Libya in 1986 did not contribute to Muamar Kadafi’s elimination, and the missile attack on Sudan in 1998 made America even more enemies when Washington was unable to prove that the destroyed pharmaceutical factory was in fact the place where weapons of mass destruction had been produced. Generally, in the American counterterrorism policy of the past decades, one can observe a chaotic mixture that combined a hard (that is the official and declaratively obligatory4) position, an often tooexcessive aggression on one hand, and “secret” concessions encouraging the extremists’ impudence on the other hand; selective accusations grounded on a frail base; and obsessions garbling a real perception and hindering preparations for greater dangers. The individual decisions were frequently taken on the basis of criteria that were not always clear to public opinion, the international community, and even the terrorists. They appeared to hesitate about the acceptance of the we-do-not-treat-with-terrorists approach or the realpolitik one, which allowed selling weapons to people who were, at least indirectly, responsible for the deaths of American citizens. To fight against terrorism effectively, Americans must avoid the cardinal mistake of regarding the notion of terrorism as a label that might be glued anywhere in accordance with current political interests. Such an approach may bring short-term results but in the long-term, it impairs the world’s confidence in the United States’s counterterrorism policy. It also generates the impression that the American decision makers are unsteady, undecided, and susceptible to manipulation. The counterterrorism policy not only must be clearly defined but also definitely realized. There is no room for the situation in which North Korea appears on the list of countries supporting terrorism released by the U.S. Department of State. The main justification for North Korea’s inclusion is the fact that a group of Japanese terrorists who hijacked a plane in 1970(!) found asylum there. And yet, for example, Pakistan, which backs Kashmir terrorists and religious fanatics in Afghanistan, or Saudi Arabia, which finances aggressive fundamentalists throughout the whole world, remain quite safe as U.S. allies. The counterterrorism realpolitik, understood in this way, implies that the fight against terrorism is merely a cover for the dark, imperialistic interests of the United States. The arrogance, hypocrisy, and feelings of humiliation and frustration toward the “impudent giant” are, in my opinion, the driving force of terrorism to a greater degree than poverty or the Israeli-Arabian conflict that are very often mentioned in this context. Another mistake of the superpower was the post–cold war conviction of its own security, the very typical conviction that America was safe, surrounded as it Downloaded from abs.sagepub.com by guest on March 4, 2012 Bolechów / UNITED STATES VIS-À-VIS TERRORISM 789 is by oceans and friendly neighbors. Fortress America could repel any terrorist danger. In the areas where they tried to counteract the danger, it was done according to the well-known principle that generals always prepare themselves for the past war, not a forthcoming one. This anachronistic approach to the security problem was revealed by the introduction of a projected “missile shield,” which as an analyst noted, appeared to be similar to the Maginot line in that it was simply enough to walk around it. The antimissile obsession slightly resembles the situation in which one gets ready for the enemy by holding a cudgel, but the enemy turns out to be a virus that may freely enter the organism. The menace of such an enemy should be taken into consideration because the United States, like every organism, must have contact with the external world. In the year 2000, 429 million people, 127 million cars, 11.5 million trucks, 829,000 planes, and 211,000 ships passed through the U.S. border; each day, 1.3 million people and 300,000 cars cross the border (Flynn, 2003, p. 146; Hoge & Rose, 2001; Nye, 2001). Taking these data into consideration, it is obvious that it is impossible to control such a mass fluctuation of human beings and vehicles if one does not want to paralyze the national economy. Nevertheless, it is worth having a look at available opportunities of action and risk reduction. I do not claim that the antimissile system is worthless, but according to my opinion, it should not be the highest priority for American security. The following issues, which are worth mentioning, concern the danger connected with the withdrawal of the state from the new economic and social domains. This concerns the fact that under the circumstances of “turbocapitalism”— that is, deregulation, globalization, and privatization—private property becomes predominant and competition forces greater effectiveness because the only alternative is to fall out of the market. These mechanisms cause the reduction of expenditures dedicated to security, because security is a very expensive good and seriously endangers such significant values as elasticity, rapidity, and openness. In other words, paradoxically, endeavoring after security may lead to economic disaster. On the other hand, as September 11 showed, neglecting the problem of security can result in physical annihilation. In reality, this latter result is much more probable. Hysterical activities, more harmful than profitable, undertaken after spectacular attacks can paralyze the country’s life and be more damaging than the attacks themselves. They may lead to the situation in which terrorists will not need a nuclear bomb but instead, can use a less spectacular and quite mundane weapon. On the other hand, memory of danger is short and the Americans’ vigilance may sleep, which will then lead to the return of an illusive feeling of security, tiredness, routine, and in the end, another shock. It will be very difficult to find the golden mean between panicky reactions and negligence of a danger that will inevitably come if America experiences a sufficiently long period of peace. Now we must deal with probably the most controversial issue, which is difficult to classify as an American mistake, but to call it weakness is also not fully adequate. American society is radically open, and such a society by its nature is Downloaded from abs.sagepub.com by guest on March 4, 2012 790 AMERICAN BEHAVIORAL SCIENTIST much more than others in danger of terrorist attacks. The American political and legal system was constructed with the conviction that freedom is a more important value than security. Both values may be in conflict with each other. Complaints that American institutions, thought to be concerned with national security, are inefficient, incompetent, and focused on a struggle for influence; that there is a lack of coordination among the activities of particular services; that bureaucracy is the rule; and that there is chaos and a trifling away of public finances are all together justified to some degree. However, it must be kept in mind that the consolidation of agencies and unlimited prerogatives of authorities are dangerous in their essence, and that the “division of power” has as its goal the maintenance of democratic freedom and liberties. The dilemma, freedom or security, particularly seen in the situation of the present terrorist threat, is a specific squaring of the circle. This dilemma cannot be solved completely. Nevertheless, there is a need to decide consciously how much freedom ought to be sacrificed in the name of security. American society attaches a great importance to its freedoms and liberties (among them, rooted in tradition and the U.S. Constitution, the right to possess arms), whose evident side effects are the “facilities” for terrorist activity. There is another significant problem associated with this question, namely, the freedom of the media in connection with fighting terrorism. The United States is pleased to possess the most influential media in the world. However, as Bruce Hoffman (1999) noted, it is not chance that the beginning of modern international terrorism coincided with the revolution in the world of media boosted by the launching of the first telecommunication satellite. Objectively considering the issue, journalists and terrorists have some sphere of common interests— the distribution and popularization of information. It is difficult not to notice the American media’s negative influence on the counterterrorism policy. A noteworthy example is the hijacking of a TWA plane to Lebanon by Shiite terrorists in 1985. The media created a spectacle that forced the administration to undertake fatal political actions, which demonstrated the effectiveness of that terrorist action. Media influence on the wielding of political power means a growing dependence by decision makers on public opinion polls. Instead of carefully considered long-term policy, we deal with chaotic decisions enforced by the rapid and short-lived pressure of public opinion. Similar irresolution may strengthen the conviction concerning the United States’s weakness not only among the terrorists but also, paradoxically, in the public opinion that expects strong leadership instead of a permanent plebiscite concerned with existential issues of national security. An instance of the media enforcing decisions is the case of Somalia, in which the emotional reaction on the part of public opinion to horrific television images forced President Clinton’s political decisions, although it was completely clear that this reaction was of an emotional and short-lived character (Hoffman, 1999, pp. 146-147). The free media damage counterterrorism activities and in many ways favor (naturally, most frequently Downloaded from abs.sagepub.com by guest on March 4, 2012 Bolechów / UNITED STATES VIS-À-VIS TERRORISM 791 unintentionally) terrorists, but these media also contribute sometimes to the neutralization of the danger (for instance in the case of Ted Kaczynski); furthermore, they are necessary for the functioning of liberal democracies.5 In this instance, the superpower’s weakness is a derivative of its strength and cannot be eliminated, although the abuse and degeneracy that characterize some aspects of the way the present media function (not only American media) should be eradicated. In this passage I would like to recapitulate the above considerations in several key points: 1. Since the 1960s, the United States has been the primary goal for terrorists of different origins (it may be said that one of modern terrorists’common points is their anti-Americanism) and nothing seems to have changed in this context. 2. The United States has significantly influenced the shaping of the face of modern terrorism. Some of the reasons for such a state of things are generated by the mistakes made by the United States, whereas others are independent of the policy created by the United States and are initiated instead by such factors as the openness of modern society, the geopolitical situation, economics, varying customs and technological changes, and so forth. 3. The mistakes of the United States are most frequently caused by ignorance and arrogance. Both of them are to a certain degree the result of the United States’s powerful and dominating position in the international arena achieved since the collapse of the Soviet Union. They have given birth to a false feeling of security and have eclipsed international questions, with the media dedicating less and less time to international affairs.6 This situation is also the result of messianic inclinations and U.S. declarations that together, combine with a cynical realpolitik and demonstrative negligence of the international community (the most well-known issues are rejection of the International Criminal Court and the Kyoto Protocol and the poor status and treatment of the prisoners of war in Guantanamo). 4. Ignorance leads to shortsightedness; terrorism is not a mysterious phenomenon, an embodiment of evil with the intention of destroying the United States. Terrorism is, rather, a method for the realization of political goals, and these goals are frequently very different. The United States very often gives the impression that it neither perceives reality in a complex way nor analyzes the possible and probable effects of its activities. Americans must remember that they are not an isolated island but part of an enormous, interdependent system whose functional disturbances will always influence their security in some way. For instance, the United States does not seem to notice how damaging, in a larger perspective, their decisions to heavily subsidize agriculture are for poorer countries for whom agriculture is the only domain in which they have the chance to compete with richer countries. Violence and terrorism most frequently are not an irrational activity caused by the inferiority of a certain civilization or simply an insane obsession. It happens that terrorism is more often the result of frustration and feelings of humiliation. The Americans repeatedly manifest their tactlessness in showing no understanding of non-American cultures. Neither does the U.S. government do enough to promote a positive image of the culture and values shared by people living on American soil. The United States needs more sophisticated and permanent public diplomacy that does not just operate “from crisis to crisis.” Fortunately, at least some part of the American decision makers are conscious of this fact.7 Downloaded from abs.sagepub.com by guest on March 4, 2012 792 AMERICAN BEHAVIORAL SCIENTIST 5. The United States has made a great number of mistakes since September 11. President Bush should not have employed the word crusade, naturally, if he wanted to create a universal, global counterterrorism front. He ought not to have pointed at Osama bin Laden when defining the chief goal of the counterterrorism operation but instead, at the terrorist infrastructure, because apprehension or liquidation of a single man under the circumstances in Afghanistan is like looking for a needle in a haystack. He should not have allowed prisoners to be detained in scandalous conditions in the Guantanamo base because in this way, the United States will manage neither to outdo them in ruthlessness nor intimidate them. Acting in this way, the United States may only antagonize another part of international public opinion and will give the impression that it repudiates in practice the very values that it, itself, proclaims. 6. What should be done under the present circumstances to seriously reduce the threat of terrorism? First, the second “interlude” in Afghanistan must be avoided, what is going to be a very difficult task. Second, the stereotype of an arrogant, haughty, imperialistic America that takes advantage of the poor of this world ought to be changed. This task is going to be much more complicated because it will require radical activities inconsistent with American traditions and America’s direct economic interest. Third, the stereotype that the United States has a low threshold of pain must be neutralized as soon as possible because it encourages terrorists to perpetrate their actions. Fourth, although according to my opinion it is not true that the attitude of Washington toward the Israeli-Palestinian conflict is today the paramount reason why there exists anti-American terrorism, one must accentuate the need of a more determined, courageous, and clearly defined policy toward this issue, which has been neglected by the Bush administration. Fifth, attempts must be made to wean the United States as far as possible from dependence on Arabian oil because energy security is today one of the key factors of counterterrorism. An inconsiderable simplification may be that research into new sources of energy may be the element of long-term counterterrorism strategy. And finally, a more consistent, long-term, strategic vision of foreign policy and its goals in the global context ought to be created. In the foreseeable future, the Unites States will not manage to ensure complete security and resistance to terrorist attacks, which may be much more catastrophic than what happened on September 11, 2001. The United States, nevertheless, can do a lot to improve its security by coming to correct conclusions on the basis of its own and other peoples’ mistakes, correctly analyzing different events, looking ahead to the future, and omitting preparations for past battles. NOTES 1. In some years (among these, 1970 and 1971), more than 50% of international terrorist attacks were directed against “American interests” (see U.S. National Foreign Assessment Center, 1980). On August 9, 1998, the Los Angeles Times published that circa 40% of international terrorist attacks were directed against the United States; however, there exist some assessments presenting smaller data (as quoted in Harmon, 2000, p. 272). The greater number of these attacks, nonetheless, took place outside U.S. territory, which remained relatively safe. As the Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction (2000) Downloaded from abs.sagepub.com by guest on March 4, 2012 Bolechów / UNITED STATES VIS-À-VIS TERRORISM 793 expressed in its second annual report, “We have been fortunate as a nation. The terrorist incidents in this country—however tragic—have occurred so rarely that the foundations of our society or our form of government have not been threatened” (p. ii). 2. For further detailed information concerning this affair and its results, see Draper (1991). 3. On the “pros” and “cons” of the military option, see Wilkinson (2001, pp. 128-129). 4. In the annual reports of the U.S. Department of State, one may read that the basic rule of American counterterrorism policy is “First, make no concession to terrorists and strike no deals” (e.g., see U.S. Department of State, 2004, p. ix). 5. This problem is perfectly characterized by Wardlaw (1989, pp. 76-86). 6. Between 1989 and 2000, the largest television networks reduced international news by two thirds (see Nye, 2001). 7. See the report prepared by the Independent Task Force on Public Diplomacy (2002), which was chaired by Peter G. Peterson. REFERENCES Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction. (2000, December 15). Toward a national strategy for combating terrorism (Report). Retrieved from http://www.rand.org/nsrd/terrpanel/terror2.pdf Cline, R. S., & Alexander, Y. (1984). Terrorism: The Soviet connection. New York: Crane, Russak. Draper, T. (1991). A very thin line: The Iran-Contra affair. New York: Simon & Schuster. Flynn, S. E. (2003). America the vulnerable. In J. F. Hoge & G. Rose (Eds.), The war on terror (pp. 142-156). New York: Foreign Affairs/Council on Foreign Relations. Goren, R. (1984). The Soviet Union and terrorism. London: Allen and Unwin. Harmon, C. C. (2000). Terrorism today. London: Frank Cass. Hoffman, B. (1999). Oblicza terrozymu [Inside terrorism]. Warsaw, Poland: Bertelsmann Media. Hoge, J. F., Jr., & Rose, G. (Eds.). (2001). 11 wrzesnia 2001: Jak to sie stalo i co dalej [September 11th, 2001: How did this happen and what next]. Warsaw, Poland: Amber. Independent Task Force on Public Diplomacy. (2002, July). Public diplomacy: A strategy for reform (Report). Available from the Web site of the Council on Foreign Relations at http://www.cfr.org Kissinger, H. (1996). Dyplomacja [Diplomacy]. Warsaw, Poland: Philip Wilson. Nye, J. S., Jr. (2001). Government’s challenge: Getting serious about terrorism. In G. Rose & J. F. Hoge Jr. (Eds.), How did this happen? Terrorism and the new war (pp. 199-210). New York: Public Affairs. Podhoretz, N. (2002, February). How to win the World War IV. Commentary, 113(2), 19-29. Rashid, A. (2000). Taliban: Islam, oil and the new great game in Central Asia. New Haven, CT: Yale University Press. Sterling, C. (1990). Siec terroru. Prawda o miedzynarodowym terroryzmie [Terror network: The truth about international terrorism] (2nd ed.). Warsaw, Poland: Glos. U.S. Department of State. (2004). Patterns of global terrorism 2003 (Report). Washington, DC: Author. U.S. National Foreign Assessment Center. (1980). International terrorism in 1979 (Report). Washington, DC: Author. Wardlaw, G. (1989). Terrorism and the media: A symbiotic relationship? In Political terrorism: Theory, tactics, and countermeasures (2nd ed., pp. 76-86). Cambridge, UK: Cambridge University Press. Wilkinson, P. (2001). Terrorism and democracy: The liberal state response. Portland, OR: Frank Cass. Downloaded from abs.sagepub.com by guest on March 4, 2012 794 AMERICAN BEHAVIORAL SCIENTIST BARTOSZ BOLECHÓW (PhD) works in the International Policy Section of the Institute of Political Science, Wroclaw University, and specializes in the problems of political violence. He has a special interest in terrorism and the problems of wars and conflicts as well as the factors that negatively influence international relations. Among other things, he published Terroryzm w s! w iecie podwubiegunowym (Terrorism in the Postbipolar World), Wydawnictwo Adam MarszaÂek, Torun, 2001; “Terrorism as the Destabilizing Factor in the International Community,” in R. Stemplowski (Ed.), Transnational Terrorism in the World System Perspective, Polish Institute of International Affairs, Warsaw, 2002; and he is coauthor of the fifth volume of the Polish Encyclopedia of Political Science, Zakamycze, Krakow, 2002. Downloaded from abs.sagepub.com by guest on March 4, 2012 Americanhttp://abs.sagepub.com/ Behavioral Scientist Notes on Punishment and Terrorism R. Antony Duff American Behavioral Scientist 2005 48: 758 DOI: 10.1177/0002764204272577 The online version of this article can be found at: http://abs.sagepub.com/content/48/6/758 Published by: http://www.sagepublications.com Additional services and information for American Behavioral Scientist can be found at: Email Alerts: http://abs.sagepub.com/cgi/alerts Subscriptions: http://abs.sagepub.com/subscriptions Reprints: http://www.sagepub.com/journalsReprints.nav Permissions: http://www.sagepub.com/journalsPermissions.nav Citations: http://abs.sagepub.com/content/48/6/758.refs.html >> Version of Record - Dec 20, 2004 What is This? Downloaded from abs.sagepub.com by guest on March 4, 2012 Notes on Punishment and Terrorism R. ANTONY DUFF University of Stirling, Scotland This article focuses on the question of whether we should see terrorists as criminals, who are both bound and protected, as all citizens are, by the criminal law, or as enemy combatants with whom we are engaged in a war and who are entitled the protection of the rules of war, or as “unlawful combatants” who are entitled to no such protection. It argues that, however terrible their actions, they are minimally entitled to be treated as enemy combatants; and it discusses the dilemma that can be presented by the prospect of using torture to extract essential, life-saving information. Keywords: punishment; terrorism; citizenship; communication; law Terrorism poses a significant challenge to a liberal account of punishment that emphasizes its communicative character and that seeks to reconcile punishment with a proper recognition of our fellow citizenship with those whom we punish. Can we really argue that in our responses to those who engage in terrorist attacks on us (and who, thus, deny any fellow citizenship with us) we must address them as fellow citizens to whom censure must be communicated? Can we really deny that however we should deal with other criminals, in our dealings with terrorists we must aim simply to deter and incapacitate? Let us accept that terrorists can be defined, for present purposes, as those who engage in violent attacks, which are intended or expected to cause death not only on individuals or on groups but also on the state, and who use violence in pursuit of political or revolutionary aims. Assume that we are faced with terrorists whose actions are neither legally nor morally justified (an assumption that needs to be spelled out because it is, to put it very mildly, far from obvious that Author’s Note: These notes were originally written as an addendum to my article “Karanie obywateli” (Punishing Citizens) in the journal Ius et Lex (in press). In that article, I argued that if we are to justify criminal punishment in a liberal democracy (in, that is, what purports to be a polity of free and equal citizens), we must show how it can treat those who are punished or threatened with punishment as citizens and that if punishment is to have this character, it must be a mode of moral communication with the offender that seeks the offender’s recognition and repentance of the wrong he or she has done (see also my Punishment, Communication, and Community, 2001). Whatever plausibility such an account of punishment, and of the criminal law more generally, might have in relation to most kinds of crime and criminal, it faces obvious problems in relation to those who commit terrorist crimes. These notes sketch a first attempt to address those problems. AMERICAN BEHAVIORAL SCIENTIST, Vol. 48 No. 6, February 2005 758-763 DOI: 10.1177/0002764204272577 © 2005 Sage Publications 758 Downloaded from abs.sagepub.com by guest on March 4, 2012 Duff / NOTES ON PUNISHMENT AND TERRORISM 759 terrorism, as roughly defined here, is never justified); even if their ends are legitimate or at least worthy of respect, their means are quite illegitimate. How then should we picture them and treat them? One possibility is that we should see and treat them as criminals—whether as criminals in terms simply of the municipal laws of the polity they attack or as criminals in terms of the laws of the international order. To see them thusly is to see them as being bound by those laws—as bound by the municipal laws, whether as citizens (in the case of domestic terrorists) or as visitors; or as bound by an international criminal law that concerns our mutual dealings not as fellow citizens of this or that polity but simply as fellow human beings. It is also to see them as being answerable to the national polity or the international community through its courts, which are to call them to account, to answer, for their wrongdoing. And it is to see them as moral agents with whom we must still seek to communicate, through both their trial and their punishment, in the moral terms in which we understand and condemn their deeds. From this perspective, we must also recognize the kinds of constraints on the processes of investigation, prevention, and interrogation that apply to our dealings with other kinds of criminals. Terrorists (and just as crucially, those suspected of terrorist crimes) are entitled to the same protections as any citizen. (There is clearly much more to be said about the role of an international criminal court and about the proper roles and remits of national and of international courts, but that is not an issue we can pursue here.) Now the mere fact that terrorists might deny their citizenship of the polity and refuse to recognize the authority of its courts is not enough to undermine the possibility or legitimacy of treating them as criminals: Citizenship is not, or not to that degree, a voluntary matter, and it is open to us to insist that the terrorist is a citizen who is both bound and protected by the values of the polity. Nor will it do simply to say that terrorists have breached the most basic terms of the social contract and have, thus, excluded themselves from it. One danger of contractualist models of both political association and morality is that they can seem to invite this move of excluding from their protection those who flout their basic terms; but if we are to think contractually at all—something that some of us would doubt—we should not make it that easy to fall out of the contract’s protection. However, we might plausibly feel that especially with the more serious kinds of international (as distinct from domestic) terrorism, we are faced by something that is more like war than crime: that some terrorist actions constitute not crimes that could be dealt with under our ordinary criminal laws and processes but, instead, attacks as part of a war that, although not formally declared between nation states, is nonetheless real. To see ourselves as engaged in a war against a terrorist enemy is not to see ourselves as engaged in a battle in which the only moral imperative is to win— by whatever means might be necessary and effective. It is true that warfare does not aim—as punishment should aim—at moral communication with the enemy. Rather, it aims to defeat their unjust aggression in crucial part by killing or Downloaded from abs.sagepub.com by guest on March 4, 2012 760 AMERICAN BEHAVIORAL SCIENTIST otherwise incapacitating those engaged in that aggression as combatants. When combatants are captured and imprisoned as prisoners of war, the aim of their imprisonment is not moral communication but effective incapacitation. War is, however, subject to its own moral constraints—those that define the terms both of ius ad bellum and of ius in bello (of when a state can justly go to war and of what it can justly do in prosecuting the war). We can say that these constraints mark our recognition that those whom we are fighting are still our fellow human beings and are, therefore, still due a kind of respect that limits what we may do to them (a strictly contractualist model might again mislead us here, because the moral status of a human being is not conditional on the observance of the terms of a moral or social contract). In particular, if we are to justify our actions as part of a just war against terrorism, we must make sure that those actions are targeted only against those who are themselves engaged in a war of terrorism; and in our treatment of the terrorists themselves, we must respect those principles of international law that govern the treatment of enemy combatants—including the principles concerning the treatment of prisoners. I will not try here to decide whether or when it is appropriate to see our dealings with and our responses to terrorism in terms of crime or of war save to say, first, that we probably can no longer maintain any simple and clear-cut distinction between crime and war, and second, that we should be slow and reluctant, especially in the case of domestic terrorism, to abandon the constraints and protections of the criminal law and the criminal process in favor of the much weaker constraints of war—to turn the terrorist from a citizen into an enemy. But my main concern here is to reject what some clearly favor as a third way of responding to terrorism—the view that we should treat terrorists neither as criminal wrongdoers subject to the demands and entitled to the protections of our criminal laws nor as enemy soldiers who are subject to the demands and entitled to the protections of the laws and conventions of war, but instead as “unlawful combatants” who have no such moral claims on our respect or concern and whom we may treat in any way that seems necessary to ensure our own safety and to “defeat terrorism.” Such a view might reflect, first, a crude idea of national self-interest according to which “anything goes” in defense of the nation against attack, or second, the thought that terrorists have by their actions excluded themselves not just from citizenship (if they were citizens in the first place) but from humanity. The moral inadequacy of such a crude nationalism should be obvious as soon as it is made explicit: Whatever view we take of the relative importance of national self-interest (and leaving aside the problems involved in deciding what that means) and of other claims on a state, we cannot plausibly claim either that the demands of national self-interest or defense are the only demands on a state or that they must always trump any other demand. There are demands of humanity and justice that must transcend and override those of national interest if they conflict. Downloaded from abs.sagepub.com by guest on March 4, 2012 Duff / NOTES ON PUNISHMENT AND TERRORISM 761 The suggestion that terrorists have excluded themselves from humanity is more insidious and tempting, especially if we take a contractualist perspective on ethics as well as politics or think that reciprocity is the key to moral respect: For why should we not say that the terrorists have by their own voluntary actions breached the most basic bonds of the human contract or failed utterly to perform their side of even the most minimal moral bargain? Now it might be true that the terrorists themselves are ill placed to complain about their treatment (depending on the character of their campaign), but this example just shows the serious limitations of a contractualist or reciprocity-based approach. To deny anyone’s humanity, whatever they have done, is to reduce ourselves to or below their level. If we are to lay claim to even the most minimal level of moral decency, we must recognize the humanity of others, including those who have committed the most terrible wrongs or engaged in the most violent and unlawful attacks on us; but to recognize their humanity is to recognize moral constraints on how we may treat them—constraints of the kind reflected in the rules of war. (I leave aside here the further point that if we see terrorists as subhuman or nonhuman, we are also all too likely to see and to treat those suspected of terrorist acts in that way.) My claim is, therefore, that the rules of war mark the minimal constraints that we must respect in our dealings with other human beings, whatever they have done. So even if we cannot or should not see some terrorist groups as criminals who should be subjected to (and so also protected by) the normal criminal process, we should minimally see them as enemies whom we should treat with the minimal respect and decency required by the rules of war. This is not to deny that people might, in this as in other contexts, face terrible conflicts. The familiar, frightening example is that of the terrorist who knows, but refuses to divulge, the location of a bomb that is set to explode and to cause terrible loss of innocent life. Surely, it is said, the army or police officer interrogating the terrorist should use torture if that might get the terrorist to reveal the bomb’s location. That is certainly a terrible position to find oneself in, and we could not condemn a person who contemplated using torture if that contemplation flowed from an agonized concern to prevent such loss of life. The question is, however, whether we should see the use of torture as an understandable temptation that the interrogator must strive to resist or instead, as something that might be morally required or at least permitted: whether the conflict that the interrogator faces is a conflict between moral demands, neither of which clearly overrides the other, or between what morality demands and an absolute wrong that the interrogator is—albeit understandably—tempted to commit. Does the interrogator face a dilemma that it is agonizingly difficult to resolve or a temptation that it is agonizingly difficult to resist? One thing should be clear: If we are to see this as a serious dilemma, we must suppose not only that the person under interrogation is a terrorist who has planted this bomb but also that this is known to be the case on the basis of evi- Downloaded from abs.sagepub.com by guest on March 4, 2012 762 AMERICAN BEHAVIORAL SCIENTIST dence that would warrant conviction in court. If the individual is not a terrorist, or is not guilty on this occasion of planting this bomb, what the interrogator is tempted to do is to torture an innocent person. If the individual cannot be proved to be a terrorist who is guilty of planting this bomb, what the interrogator is tempted to do is to torture someone who might well, for all the interrogator knows, be innocent. However strong that temptation might be, it is one that must be resisted by anyone who recognizes the victim’s humanity, because the use of torture is the most outright denial of, and the most terrible attempt to destroy, the victim’s humanity. Suppose, however, that the terrorist is in the relevant sense provably guilty: Should we not say that the terrorist’s own actions (of planting the bomb and refusing to reveal its location) made it permissible for the interrogator to attach more weight to the humanity of the innocent potential victims, and to the moral demand that they be saved, than to the humanity of the terrorist and the demand that torture not be used? This way of putting the claim is misleading, however, because it implies that the conflict is between two moral demands—not to use torture and to save the potential victims—of the same type. From a consequentialist perspective, of course, they are of the same type, because from that perspective, all genuine moral demands are ultimately of the same type; but from the nonconsequentialist perspective that informs these comments, they are of quite different types. The demand that we not torture anyone, even the terrorist in this example, is a demand that we refrain from a particular kind of wrongdoing. If we torture, it is we who commit the wrong, and those in whose name we act are complicit in that wrong. The demand that we save the innocent potential victims, by contrast, is a demand that we prevent the wrong that another—the terrorist—will do. If we do not find the bomb, the primary, terrible wrong is committed by the terrorist who planted it. Those who insist that such wrongs as torture are absolute wrongs that must never be considered as options would then argue that whereas the interrogator who uses torture is responsible for the commission of that wrong, one who does not use torture (but uses, in vain, every morally legitimate means to find the bomb) is not responsible for the killing of the innocents whom the bomb kills. For the interrogator’s responsibility is to do what can be done, within the bounds of what is morally possible, to save those innocents. In this case, this interrogator has fully discharged that responsibility and could not prevent those deaths. Such a denial of responsibility might seem like an evasion—even if it is accompanied, as it should be, by desperate efforts to do what morally can be done and by a terrible sense of horror and of failure. It is not an evasion: It rather expresses a particular, demanding moral perspective that takes very seriously the idea that there are moral limits, limits reflecting a conception of what it is to be human, on what we may even think of doing. But most of us will, and perhaps if we are to be human should, also feel the pull of the other perspective, which demands that we save the innocent even at the cost of torturing the guilty—and that is why someone facing this situation might reasonably think that they face a Downloaded from abs.sagepub.com by guest on March 4, 2012 Duff / NOTES ON PUNISHMENT AND TERRORISM 763 tragic dilemma created by the irresolvable contradiction between these two perspectives. We certainly should not condemn, as incontrovertibly mistaken or corrupt, someone who saw this as a dilemma rather than as a temptation, or someone who felt morally compelled to take on a larger responsibility to use torture on the guilty terrorist as an absolutely last resort while recognizing (for this is an essential feature of moral dilemmas) that to do this is to commit a terrible wrong. In the end, I believe, this is not an issue on which it is possible to speak either impersonally of what must be done or in the first person plural of what we would or should do. We, each of us, can speak only in the first person singular—if we do not actually face such a situation, of what I can hope that I would find myself able to do or to resist doing, or, if we are unlucky enough to face such a situation, of what I find that I can or must do. (It follows from this that the law should certainly not be so formulated as to allow a justification for torture in such a situation.) However, I do believe there are some points on which we can and should collectively insist: that every human being, however terrible the wrongs they might have committed or might be committing, retains an unconditional moral claim to our recognition and respect; that this claim is violated if we subject people to treatment, such as torture, that denies or seeks to destroy their humanity; that nothing—no good to be achieved, no evil to be averted, no wrong that they have committed—can negate the wrong involved in such a violation; and, thus, that the belief that I “must” torture this terrorist as the only way to gain the information that will save the potential victims can claim our moral sympathy or respect only if it is accompanied and informed by a full recognition of the wrong that I would thereby do. REFERENCES Duff, R. A. (2001). Punishment, communication, and community. New York: Oxford University Press. Duff, R. A. (in press). Karanie obywateli [Punishing citizens]. Ius et Lex. R. ANTONY DUFF was educated at Oxford University, spent a year as a visiting lecturer at the University of Washington in Seattle, and has taught philosophy at the University of Stirling, Scotland, since 1970. He held a British Academy Research Readership from 1989 to 1991, currently holds a Leverulme Major Research Fellowship from 2002 to 2005 to work on a project on the structures of criminal liability, and is a fellow of the British Academy and of the Royal Society of Edinburgh. His research interests are in the philosophy of criminal law. He has published Trials and Punishments (Cambridge University Press, 1986), Intention, Agency and Criminal Liability (Blackwell, 1990), Criminal Attempts (Oxford University Press, 1996), and Punishment, Communication and Community (Oxford University Press, 2001) and has edited a number of collections of papers on punishment and the philosophy of criminal law. Downloaded from abs.sagepub.com by guest on March 4, 2012 Americanhttp://abs.sagepub.com/ Behavioral Scientist International Law and Terrorism Zdzislaw Galicki American Behavioral Scientist 2005 48: 743 DOI: 10.1177/0002764204272576 The online version of this article can be found at: http://abs.sagepub.com/content/48/6/743 Published by: http://www.sagepublications.com Additional services and information for American Behavioral Scientist can be found at: Email Alerts: http://abs.sagepub.com/cgi/alerts Subscriptions: http://abs.sagepub.com/subscriptions Reprints: http://www.sagepub.com/journalsReprints.nav Permissions: http://www.sagepub.com/journalsPermissions.nav Citations: http://abs.sagepub.com/content/48/6/743.refs.html >> Version of Record - Dec 20, 2004 What is This? Downloaded from abs.sagepub.com by guest on March 4, 2012 International Law and Terrorism ZDZISLAW GALICKI Institute of International Law, University of Warsaw, Poland What important developments have occurred in multilateral international treaties between the Convention for the Prevention and Punishment of Terrorism of 1937 and the InterAmerican Convention Against Terrorism of 2002? This article answers this question as well as whether these laws have been an effective legal response in combating terrorism. After differentiating between comprehensive and sectoral conventions and between universal and regional conventions, the article comparatively analyzes them based on definitions of offenses, the extent of criminalization, exceptions concerning scope of application, measures to be taken by the states parties, obligatory and optional jurisdiction, obligations of states in the sphere of legal cooperation and assistance, rights of the offender, extradition, exceptions from extradition or legal assistance, and issues not covered by the conventions. Solutions proved to be the most effective against international terrorism and discrepancies and overlaps between the conventions are discussed. Keywords: terrorism; treaty; criminalization Almost 70 years have passed since the adoption of the Convention for the Prevention and Punishment of Terrorism of 1937 (Geneva Convention of 1937)— the first international treaty against terrorism (see United Nations, 1972, pp. 19). In 2003, the last—up to now—international legal instrument in this field was adopted under the auspices of the Council of Europe, namely, the European Convention on the Suppression of Terrorism of 1977, as amended by its Protocol of May 15, 2003 (see also United Nations, 2004a, pp. 139-152). These two conventions may be treated as the milestones on the road of longlasting efforts of the international community of states to create an effective legal response to one of the most disastrous and horrifying phenomena of our times: international terrorism. The main role in this process has been played by multilateral treaties—universal and regional—although some bilateral treaties against terrorism have also been elaborated, such as the 1973 agreement between the United States and Cuba on the suppression of certain terrorist acts (see Polish Institute of International Affairs, 1973). However, the practical importance of such bilateral treaties has been rather a limited one. AMERICAN BEHAVIORAL SCIENTIST, Vol. 48 No. 6, February 2005 743-757 DOI: 10.1177/0002764204272576 © 2005 Sage Publications 743 Downloaded from abs.sagepub.com by guest on March 4, 2012 744 AMERICAN BEHAVIORAL SCIENTIST Although the Geneva Convention of 1937 (see United Nations, 1972), unfortunately, has never entered into force,1 one cannot overestimate its importance as the first comprehensive and multilateral antiterrorist convention. Furthermore, it was accompanied by another international treaty providing for the establishment of the first international criminal court for the punishment of terrorists, a precursor of postwar international criminal tribunals. Also for the first time, the Geneva Convention of 1937 formulated a definition of acts of terrorism, described therein as “criminal acts directed against a State or intended to create a state of terror in the minds of particular persons, or a group of persons, or the general public” (Article 1, para. 1; see United Nations, 1972). It is interesting that this double target—the life or health of individual persons and the vital interests or security of a state—as a main characteristic of international terrorist acts, has remained, in general, unchanged; and now, after more than half a century, it has been used as a core definition proposed in the most recent UN draft comprehensive convention on international terrorism. The said draft, originally introduced by India (see United Nations, 2000, pp. 9-24), stresses once again in its Article 2, paragraph 1, that as it concerns offenses to be covered by a future comprehensive convention, “the purpose of the conduct, 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” (United Nations, 2002, p. 6). A large number of already existing, or currently under elaboration, international treaties for the suppression of terrorism may be classified into categories, taking into account either their substantial scope or territorial extent. In consequence, we may differentiate between comprehensive and so-called sectoral conventions on one hand and universal and regional conventions on the other hand. There is, of course, a possibility of combined characteristics of particular conventions, for instance, comprehensive conventions of universal territorial extent such as the Geneva Convention of 1937 (see United Nations, 1972) or those of a regional nature such as the Inter-American Convention Against Terrorism of 2002 (adopted at Bridgetown on June 3, 2002; see United Nations, 2004a, pp. 239-250). On the other hand, so-called sectoral conventions, limited substantially to some specific categories of terrorist acts, are also either universal (the Convention for the Suppression of Unlawful Seizure of Aircraft of 1970) or regional (the Organization of American States Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion That Are of International Significance of 1971). It is worth noting that among universal antiterrorist conventions, there is an overwhelming majority of those of sectoral nature, whereas in the case of regional conventions, comprehensive treaties prevail. Because there are already approximately 20 conventions, universal and regional, adopted or elaborated in the field of combating terrorism,2 it is possible to comparatively analyze them from the point of view of their characteristics, including definitions of offenses, the extent of criminalization, exceptions as Downloaded from abs.sagepub.com by guest on March 4, 2012 Galicki / INTERNATIONAL LAW AND TERRORISM 745 they concern scope of application, measures to be taken by the states’ parties, obligatory and optional jurisdiction, obligations of states in the sphere of legal cooperation and assistance, rights of the offender, extradition, exceptions from extradition or legal assistance, and issues not covered by the convention. These particular elements of antiterrorist treaties and spheres of their international regulation should be considered with the purpose of finding which solutions applied by the said conventions have appeared in practice to be the most effective measures against international terrorism. There is also an important question of mutual relationship between comprehensive and sectoral conventions as it concerns a possibility of their parallel implementation. LEGAL DEFINITION OF INTERNATIONAL TERRORISM As already mentioned, the first international attempt to define acts of terrorism was undertaken by the Geneva Convention of 1937 (see United Nations, 1972). Since then, the question of defining international terrorism remains the most difficult and unsatisfactorily solved for all engaged in the process of elaboration of antiterrorist treaties, either universal or regional. Conventional practice shows that so-called sectoral conventions have had a relatively easier job in this field because their substantial scope of operation is limited to specific kinds and forms of terrorist activities. The first of such sectoral definitions was contained in the Convention for the Suppression of Unlawful Seizure of Aircraft of 1970, which defines the offense of unlawful seizure of aircraft as committed by any person who on board an aircraft in flight: (a) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or (b) is an accomplice of a person who performs or attempts to perform any such act. (Article 1) All contracting states to this convention have been obliged to make the said offense “punishable by severe penalties” (Article 2). This definition later served as a model for subsequent definitions included in other sectoral international legal instruments. In consequence, we have a series of universal sectoral definitions of terrorist acts, including such offenses as “unlawful acts against safety of civil aviation” (in 1971), “crimes against internationally protected persons, including diplomatic agents” (in 1973), “taking hostages” (in 1979), “theft, robbery or any other unlawful taking of nuclear material or of credible threat thereof” (in 1979), “unlawful acts of violence at airports serving international civil aviation” (in 1988), “unlawful acts against the safety of fixed platforms located on the continental shelf” (in 1988), “terrorist bombings” (in 1997), and “financing of terrorism” (in 1999). 3 Downloaded from abs.sagepub.com by guest on March 4, 2012 746 AMERICAN BEHAVIORAL SCIENTIST In the case of the last definition, contained in the International Convention for the Suppression of the Financing of Terrorism of 1999, it may be said that its sectoral character has been doubled. First of all, this convention recognizes that an offense is committed if a person by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out . . . an act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex. (Article 2, para. 1) And subsequently, in the annex accompanying the convention, one finds a list of nine universal sectoral conventions, starting with the Convention for the Suppression of Unlawful Seizure of Aircraft of 1970 and ending with the International Convention for the Suppression of Terrorist Bombings of 1997. Article 23 of the International Convention for the Suppression of the Financing of Terrorism of 1999 also provides that the said list may be extended in the future— through a relatively easier procedure—by the addition of other relevant antiterrorist treaties. This approach, allowing one to avoid searching for a substantial and exhaustive comprehensive definition of international terrorism, also has been applied by other regional conventions and drafts aiming to elaborate such a comprehensive definition.4 There is also a specific sectoral definition of regional nature contained in the above-mentioned Organization of American States Convention of 1971 that deals with “acts of terrorism taking the form of crimes against persons and related extortion that are of international significance” (Article 2). All sectoral conventions provide for the obligation of their states’ parties to criminalize acts described by these treaties as offenses. It is the obligation either to “make the offence punishable by severe penalties” (e.g., the Convention for the Suppression of Unlawful Seizure of Aircraft of 1970, Article 2) or to make these crimes “punishable by appropriate penalties which take into account the grave nature of the offences” (e.g., the International Convention for the Suppression of the Financing of Terrorism of 1999, Article 4b). The first internationally adopted comprehensive definition of acts of terrorism was elaborated, as observed above, within the framework of the Geneva Convention of 1937 (see United Nations, 1972); such acts are defined as “criminal acts directed against a State or intended to create a state of terror in the minds of particular persons, or a group of persons or the general public” (Article 1, para. 2). In addition, this convention’s definition is accompanied by more detailed provisions, saying that these acts would include “any willful act causing death or grievous body harm or loss of liberty” to public officials in general (Article 2, paras. 1a, 1b, 1c), “any willful act calculated to endanger the lives of members of the public” (Article 2, para. 3), “willful destruction of or damage to Downloaded from abs.sagepub.com by guest on March 4, 2012 Galicki / INTERNATIONAL LAW AND TERRORISM 747 public property” (Article 2, para. 2), and “manufacture, obtaining, possession or supplying of arms or ammunition, explosives or harmful substances with a view to the commission in any country whatsoever” of one of the offenses mentioned (Article 2, para. 5). This convention also covers attempts; conspiracy; incitement, if successful, to all offenses; direct public incitement to certain acts even if unsuccessful; willful participation; and assistance knowingly given. As a result of such an approach, it has been suggested in the doctrine that a number of states were reluctant to ratify the Geneva Convention of 1937 (see United Nations, 1972) because of the breadth of its definition of terrorism (Dugard, 1973, p. 94). And it is a kind of paradox that since then, the international community of states has not been able to agree and adopt any universal comprehensive definition of international terrorism. Although there were numerous attempts toward this end, together with the establishment in 1972 of the UN Ad Hoc Committee on terrorism as well as appropriate drafts presented by individual states, it was impossible—because of political differences—to reach a final consensus concerning a generally acceptable, comprehensive definition of international terrorism together with the conclusion of an appropriate universal comprehensive convention (Franck & Lockwood, 1974). A revival of the United Nations’s efforts in this field brought to life a new body, that is, the Ad Hoc Committee on terrorism (United Nations, 1996). In parallel with a successful elaboration of two sectoral conventions (on terrorist bombings and on the financing of terrorism), this UN Ad Hoc Committee once again has undertaken work on a comprehensive convention against terrorism, based on the draft presented by India. Although after 8 years this work has yet to be successfully finalized, there is nonetheless a high degree of understanding that the text (informal) of Article 2, prepared by the coordinator during the sixth session of the Ad Hoc Committee (United Nations, 2002), may serve as a good basis for further considerations of definition/scope problems.5 A description of the scope of the UN draft convention, being simultaneously a comprehensive definition of international terrorism, is actually the most developed and “all-inclusive” universal definition. As such, it will still require a lot of substantial and “cosmetic” work from a legal point of view before it will reach its final shape. But what may bring us to some optimistic conclusions is the fact that the most disputable issues are no longer within Article 2 of the draft convention but instead, have been clearly articulated and to a great extent isolated from the rest of the draft text. The effect of this isolation from the draft text is such that it is not the question of the definition of terrorist acts that is most problematic but rather, the question of still-not-agreed-on exceptions and exclusions from the scope of operation of the convention. Draft Article 18, dealing with the savings clause and exclusions from the scope of the convention, will, of course, require a high dose of mutual concessions before reaching a final compromise (United Nations, 2002). This compromise will be necessary to reach an agreement on two principal disputable points. The first point concerns finding a generally acceptable legal Downloaded from abs.sagepub.com by guest on March 4, 2012 748 AMERICAN BEHAVIORAL SCIENTIST distinction between terrorist acts and a people’s struggle for the right of selfdetermination. Such a distinction has been proclaimed already by some regional comprehensive conventions against terrorism, including the Arab Convention on the Suppression of Terrorism of 1998, Article 2, paragraph a (see United Nations, 2004a, pp. 158-174); the Convention of the Organization of the Islamic Conference on Combating International Terrorism of 1999, Article 2, paragraph a (see United Nations, 2004a, pp. 188-209); and the Organization of African Unity Convention on the Prevention and Combating of Terrorism of 1999, Article 3, paragraph 1 (see United Nations, 2004a, pp. 210-225). The second, mostly disputable, point is connected with a question of so-called state terrorism, which is condemned by some states and rejected generally as a concept by others. It seems, however, that two opposing formulas, presented lastly in the UN Ad Hoc Committee’s Article 18 (United Nations, 2002), are in fact not so far apart from each other. Suffering the lack of a legally binding universal comprehensive definition of international terrorism, we have to stress that such definitions have been elaborated by some regional conventions already. Some of them adopted an easier method, establishing their scope of application by including in their texts the list of universal sectoral conventions or offenses established in these conventions, for example, the European Convention on the Suppression of Terrorism of 1977, as amended by its Protocol of 2003, Article 1 (see also United Nations, 2004a, pp. 139-152), and the Inter-American Convention Against Terrorism of 2002, Article 2 (see United Nations, 2004a, pp. 239-250). Another group of regional conventions—the Organization of African Unity Convention on the Prevention and Combating of Terrorism of 1999, Article 1, paragraph 3 (see United Nations, 2004a, pp. 210-225) and the Treaty on Cooperation Among the States Members of the Commonwealth of Independent States in Combating Terrorism of 1999, Article 1 (see United Nations, 2004a, pp. 175-187)—tries to elaborate a substantial comprehensive definition of terrorism or of terrorist acts, describing them with subjective and objective characteristics of criminal acts. Finally, there are regional conventions of comprehensive character that try to combine the methods of defining terrorism applied by two previous categories: the Arab Convention on the Suppression of Terrorism of 1998, Article 1 (see United Nations, 2004a, pp. 158-174); the Convention of the Organization of the Islamic Conference on Combating International Terrorism of 1999, Article 1 (see United Nations, 2004a, pp. 188-209); the original version of the European Convention on the Suppression of Terrorism of 1977, Article 1 (United Nations, 2001, pp. 139-146); and the South Asian Association for Regional Cooperation Regional Convention on Suppression of Terrorism of 1987, Article 1 (see United Nations, 2004a, pp. 153-157). These combined definitions seem to fill up, in the best way possible, gaps and loopholes in definitions based exclusively on one of the above-mentioned backgrounds. Downloaded from abs.sagepub.com by guest on March 4, 2012 Galicki / INTERNATIONAL LAW AND TERRORISM 749 JURISDICTION AND EXTRADITION As it has been correctly noted in the doctrine, states traditionally have predicated their jurisdiction to prosecute and punish criminal offenders on one or more of the following four principles: territoriality, nationality, protection/ security, and universality (Franck & Lockwood, 1974, p. 82). Antiterrorist conventions, universal as well as regional, base jurisdictional obligations and rights of their states’ parties on these principles, although with different extensions of their application. The earliest conventions (in the 1970s) deal exclusively with the mandatory establishment of jurisdiction over offenders by concerned states. On the other hand, antiterrorist conventions concluded in past years have developed a variety of possibilities for optionally established jurisdiction. For instance, the International Convention for the Suppression of the Financing of Terrorism of 1999 provides for the mandatory establishment of jurisdiction in three cases and for an optional one in five cases. Analogous provisions are also contained in the International Convention for the Suppression of Terrorist Bombings of 1997. But what seems to be most important and should be considered the greatest achievement of antiterrorist treaties is the principle of universality, which appears, without any exception, in all of these conventions. It was included, for the first time, in the Convention for the Suppression of Unlawful Seizure of Aircraft of 1970.6 Subsequently, it has been repeated—in practice without any change—in all other universal conventions to date. The said principle is also proposed in the last United Nations (2002) draft convention on terrorism. The principle of universality and its consequent application is one of the best guarantees for effective suppression of international terrorism through the punishment of terrorists whenever and wherever they may be found, without a possibility of any safe haven for them. Antiterrorist conventions do not provide directly for mandatory extradition of the offenders to states obliged or entitled to establish their jurisdiction over them. There were, at the very beginning of the 1970s, some attempts to introduce the obligation of extradition (e.g., to the state of registration of an aircraft), but soon they were abandoned. This does not mean, however, that the question of extradition was eliminated altogether from antiterrorist conventions. On the contrary, together with the elaboration of new conventions, provisions on extradition occur more and more often in their texts. All of them are based on the general principle aut dedere aut punire (either extradite or punish) or aut dedere aut judicare (either extradite or prosecute), giving states the choice to either extradite terrorists or establish over them their own jurisdiction. Another important provision, which appears in many conventions in connection with extradition, is the elimination of the possibility of regarding a terrorist act “as a political offence or as an offence connected with a political offence or as an offence inspired by political motives.” This necessity of removing politics from terrorist acts for purposes of jurisdiction and extradition has been stressed, Downloaded from abs.sagepub.com by guest on March 4, 2012 750 AMERICAN BEHAVIORAL SCIENTIST in particular, by the original European Convention on the Suppression of Terrorism of 1977, Article 1, paragraph 1 (United Nations, 2001) and its amended version in the Protocol of 2003, Article 1, paragraph 1 (see also United Nations, 2004a). Terrorist acts shall be deemed to be included as extraditable offenses in all extradition treaties already concluded between states who are parties to antiterrorist conventions and have to be included in future extradition treaties. Antiterrorist conventions may also be considered by states, at their option, as the legal basis for extradition in respect to given terrorist offenses. Such elasticity in relation to the question of extradition allows states, from the very beginning, to use this instrument to facilitate appropriate procedures without limiting the sovereign powers of states. In the most recently concluded antiterrorist conventions, provisions on jurisdiction and extradition are usually accompanied, as noted above, by detailed rules concerning mutual assistance in connection with investigations or criminal or extradition proceedings in respect to the offenses in question, including assistance in obtaining evidence necessary for the proceedings. Furthermore, these conventions provide for wide cooperation in the prevention of the offenses covered by the said conventions by taking all practicable measures, inter alia, adapting their domestic legislation, including coordination of administrative and other preventive measures, exchanging of information on preventive measures, and cooperating with regard to and transferring of technology, equipment, and related materials. This enlargement of obligations deriving from new antiterrorist conventions seems inevitable for their effectiveness in the struggle against developing, from a technical and organizational point of view, international terrorist activities. DEVELOPMENT AND UPDATING OF INTERNATIONAL NORMS Although existing multilateral conventions represent a variety of possible attitudes to the problem of eradication of international terrorism from contemporary international relations, it seems that they possess one common denominator: a growing tendency toward developing international cooperation for this purpose, using various methods and measures. If we compare, for example, the first universal sectoral convention, which is the Convention for the Suppression of Unlawful Seizure of Aircraft of 1970, with the International Convention for the Suppression of Terrorist Bombings of 1997, it is rather obvious that their principal rules concerning formulation of the definitions of offenses and their criminalization and the establishment of obligatory jurisdiction and extradition are to a great extent similar. There is, however, an advantage of the latter convention as it concerns additional provisions dealing with optional possibilities of establishing jurisdiction and widely developed Downloaded from abs.sagepub.com by guest on March 4, 2012 Galicki / INTERNATIONAL LAW AND TERRORISM 751 obligations of states parties to cooperate in the sphere of prevention of the offenses in question, as well as to guarantee appropriate rights of the offender against whom legal measures have been taken. The elapse of time caused, in many cases, an objective necessity of reviewing, completing, or updating international antiterrorist conventions, both universal and regional. We may recall here the Protocol on Unlawful Acts of Violence at Airports Serving International Civil Aviation of 1988 (see also United Nations, 2004a, pp. 63-67), supplementary to the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation of 1971. The original 1971 convention did not provide for the criminalization and suppression of a terrorist act that “endangers or is likely to endanger safety at [the] airport” (as it is now provided by Article 2, para. 1 of the 1988 Protocol). However, it soon became obvious that such acts also require an international legal reaction and counteraction. Similarly, in 2001, the Council of Europe, through the especially established Multidisciplinary Group on International Action Against Terrorism, undertook the consideration of a possible updating of the European Convention on the Suppression of Terrorism of 1977 (see United Nations, 2001, pp. 139-146). Despite its misleading title, this convention is, in fact, only an extension of the European Convention on Extradition of 1957 and in today’s circumstances, it cannot serve as an effective measure in the fight against terrorism. The said Multidisciplinary Group has prepared a draft amending protocol to the European Convention on the Suppression of Terrorism of 1977, which significantly extends its scope and opens the convention to the nonmember states of the Council of Europe. Let us hope that this Protocol Amending the European Convention on the Suppression of Terrorism, opened for signature on May 15, 2003, in Strasbourg, France, will be ratified soon by all states’ parties to the original convention (see also United Nations, 2004a, pp. 139-152). A continuous development of international legal norms against terrorism is also of paramount importance in the face of developing methods and forms of terrorist activities. The international community should react in such cases without any delay. For this reason, it seems inevitable to accelerate work on the elaboration and final adoption of the aforementioned United Nations (2002) draft convention against terrorism, as well as of a new sectoral instrument, the Draft Convention for the Suppression of Acts of Nuclear Terrorism, initially introduced by the Russian Federation and still not finally agreed on by the UN Ad Hoc Committee (for the last text of this draft, prepared by the Bureau of the Ad Hoc Committee for discussion, see United Nations, 2004b, pp. 15-27). OTHER TREATIES It seems that only a concerted action of the international community of states, based on their international obligations deriving from international antiterrorist Downloaded from abs.sagepub.com by guest on March 4, 2012 752 AMERICAN BEHAVIORAL SCIENTIST treaties—universal and regional as well as comprehensive and sectoral—may bring satisfying results in the common struggle with international terrorism. It must be added that not only “direct” antiterrorist conventions may effectively serve this purpose but also other treaties, such as bilateral treaties concluded, among others, by Poland, on the mutual cooperation of law enforcement organs in combating various crimes, including terrorism. A special role may also be played in this field, as recognized by the UN General Assembly,7 by the Convention Against Transnational Organized Crime of 2000 (Palermo Convention of 2000), originally initiated in 1996 by Poland and finally concluded in Palermo, Italy. The UN General Assembly recommended that the UN Ad Hoc Committee, as it works toward developing a comprehensive convention on international terrorism, should take into consideration the provisions of the Palermo Convention of 2000 (see, specifically, para. 7 of Resolution A/RES/55/25). These directives of the UN General Assembly clearly show that a coordinating role played by the UN Ad Hoc Committee should not be limited only to filling gaps and avoiding overlaps between already existing sectoral conventions concerning international terrorism in its various forms but instead, should also extend to achieving a harmonization between a future universal comprehensive convention on international terrorism and the newly born Palermo Convention of 2000. Although a mutual interdependence between sectoral conventions and a comprehensive convention is something that the UN Ad Hoc Committee has already had in its “collective” mind for a rather long time, the necessity of also recognizing the links between transnational organized criminal activities, as now internationally regulated by the Palermo Convention of 2000, and acts of terrorism appears to be quite a new factor in the work of the UN Ad Hoc Committee on the comprehensive convention against international terrorism. As a result of these links, it seems that we presently may find two kinds of impacts— one direct, the other indirect—of the convention in the field of combating international terrorism. First of all, the Palermo Convention of 2000 may be considered itself as a separate and useful legal tool within the concept of “measures to eliminate international terrorism,” although it must be admitted that the convention does not list international terrorism among the four categories of offenses that are required to be criminalized by the states’ parties to the convention.8 However, it seems that the Palermo Convention, in practice, may be applicable with a great probability also to acts of international terrorism, thanks to an interesting construction of the provisions concerning its scope of application (Article 3). This scope of application goes beyond the above-mentioned four categories of offenses (see Note 8) that must be criminalized in a mandatory way. Downloaded from abs.sagepub.com by guest on March 4, 2012 Galicki / INTERNATIONAL LAW AND TERRORISM 753 Apart from them, the scope of application of the Palermo Convention of 2000 depends generally on the coexistence of three elements: 1. The offense is a “serious crime,” which means “punishable by a maximum deprivation of liberty of at least four years or a more serious penalty” (Article 2b); 2. The offense is “transnational in nature,” which means (a) it is committed in more than one state; (b) it is committed in one state, but a substantial part of its preparation, planning, direction, or control takes place in another state; (c) it is committed in one state but involves an organized criminal group that engages in criminal activities in more than one state; or (d) it is committed in one state but has substantial effects in another state; 3. The offense “involves an organized criminal group,” which is defined as a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit. (Article 2a) It is interesting and worth noting that although the Palermo Convention of 2000 gives us a detailed definition of an organized criminal group, it does not define, in fact, the very concept of transnational organized crime. But on the other hand, such an approach makes it possible to extend the application of the convention to an unlimited number of crimes, providing they fulfill all three above-mentioned conditions. Analyzing these conditions, it seems that in practice, they will be fulfilled in a majority of cases of international terrorist acts. Consequently, it will make it possible to apply this convention to such terrorist acts. There is a principal question for which provisions of the Palermo Convention of 2000 are especially useful and that could be applied for combating international terrorism. It seems, first of all, these are the provisions that create obligations for international cooperation in combating transnational organized crime and that are widely developed by the convention. The cooperation under this convention includes not only traditional means such as extradition and mutual legal assistance but also other more specific measures, such as law enforcement cooperation and exchange of information. It includes, as well, training and technical assistance. The Palermo Convention of 2000 and its protocols call on states’ parties to adopt measures to prevent various forms of transnational organized crime. At the international level, countries will seek to prevent organized crime by exchanging information on trends in transnational organized crime and on best practices to prevent it. They will also take part in international projects aimed at preventing transnational organized crime. Summing up, it seems that the provisions of the Palermo Convention of 2000 dealing with widely understood cooperation and prevention are of primary importance for being applied, whenever and wherever possible, to acts of terrorism as well. Equally important and applicable are some progressive obligations Downloaded from abs.sagepub.com by guest on March 4, 2012 754 AMERICAN BEHAVIORAL SCIENTIST introduced by the convention, such as those concerning protection of witnesses and assistance to and protection of victims. As to the indirect impact of the Palermo Convention of 2000 in the field of the international struggle with terrorism, it may be found in the form of influence, which various norms of the convention have or should have on the content of analogous norms of the cu...
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