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...
Purchase answer to see full
attachment