Korean Job Discussion Forums

[Manner of Speaking]

What Is Terrorism?


Columnist Argues Lack of Accepted Definition Makes for a Problematic Legal Concept

by Amin George Forji


There is no universally accepted definition of terrorism today. Countries tend to define the term according to their own beliefs and quite often to support their own national interests. International bodies, when they do craft a definition, do so in the interests of their member states. Academics are also subject to their own political points of view.


The heinousness of the attacks on Sept. 11, 2001 is painfully clear. But why it happened, how it is to be legally defined, and what to do about it are painstakingly complicated questions. Politicians, international lawyers, and states are seen to have very divergent and opposing views on how to prosecute the War on Terror (WOT). In other words, international law is at a defining moment with regard to the ongoing campaign against terrorism.


Clearly, war and terror are intimately related, yet not the same. One way of distinguishing war from terrorism might be to say that war is what states do, terrorism is the recourse of those too weak to oppose states openly. But can we really call these events or the reaction to them "war," as they are called, whether rhetorically or not, in the US (e.g. the "war against terrorism")? One could consider the "war on terrorism" to be something like the figurative "war on poverty," but is this war in the legal, technical sense? Can there be a war, in the formal legal sense, between a state and a trans-national criminal group or organization? Doesn't this confer on such a group the dignity of a subject of international law? And with what implications?


In 1997, the international legal expert Rosalyn Higgins wrote,
"Terrorism is a term without legal significance. It is merely a convenient way of alluding to activities, whether of states or of individuals, widely disapproved of and in which either the methods used are unlawful, or the targets protected, or both." The question thus arises of whether terrorism should be a legal concept at all, of whether it would not be preferable to define rather the criminal acts that are part of terrorist activities and refrain from the painstaking task of trying to define terrorism as such.


Yet a substantial number of international conventions have already been agreed upon which deal with various aspects of terrorism. In all these conventions, terrorism is defined in a way that is specific to the subject matter of the particular convention. No universal definition of terrorism can thus be discerned from them. Although it is noticeable that the framework of conventions is relatively well developed in terrorist matters, this is not matched by a corresponding efficiency in the law itself. To the extent that definitions of terrorism do appear, they are enumerative and descriptive, not to say a confused mix.


Would it be better then to refer to approaches of terrorism? Even here, it is a difficult compromise to make, because defining terrorism as such may give certain acts of terrorism undue impunity for reasons of self-exclusion -- for example, if the act was not specifically defined in the approach.


However, if people seem to agree on the methods used in terrorism (indiscriminate use of violence) and on the qualification of the act (rather than the more precise question of its qualification as a crime and its penalty), on its consequences (serious public or private material human damage), and on its aim (to spread terror by dissociating victim and target); disagreement still arises on its causes, its motivation, and its legitimation and therefore also the qualification of its perpetrators.


Also problematic about the definition of terrorism is the argument held by a good number of other international lawyers that they need abstract definitions -- the most famous definition of "pornography" by Justice Potter Stewart of the US Supreme Court in the interesting case of Jacobellis v. State of Ohio being the exception which confirms the rule. In that case, the learned judge made the following pronouncement in lieu of a definition of pornography: "I know it when I see it." This might be applied to the case at hand. In the armed conflict against terrorism, I cannot specifically tell you who my enemy is. I know him when I see him, but I cannot give you a complete list in advance.


Unfortunately, the rule is that we have to know it before we see it. Therefore, although we may all agree with the representative of the United Kingdom to the United Nations, that "what looks, smells, and kills like terrorism is terrorism," as lawyers, we still have to work on an abstract definition of what should legally constitute terrorism.


Terrorism and Ambiguity: Over-inclusiveness and Under-inclusiveness

Again, there have been numerous conventions on terrorism, but still, none has succeeded in reaching a universally accepted definition of the term. Most if not all of the conventions have, however, succeeded in laying down groundwork agreements, internationalizing terrorist crimes, and accepting that there is a legal duty to deliver up or bring to court aut dedere aut judicare, the expansion of the state's jurisdiction in favor of terrorism, a call to all contracting states to punish the crimes mentioned in the various conventions, a call to assist contracting states when faced with acts of terrorism, etc. In a nutshell, these conventions all have as their goal to lay down rules that will help fight or prevent acts of terrorism.


However terrorism has been defined or envisaged, the rules in every convention have met with the problematic obstacles of either over-inclusiveness or under-inclusiveness, or both. The problematic can be summarized thusly: First, the problem of over-inclusiveness is that if you over-include rules in your legislation, in the future, these rules will lead to many claims and cases that you never wanted as you initially never intended these rules to apply to those cases.


Second, the under-inclusive problem is that when you enact a rule with rigid precision, or shortsightedness, it follows that the rule will not be able to cover future situations that you will have wanted the rule to administer or deal with. Imprecision breeds uncertainty, uncertainty breed evasion, and the WOT is caught up in this midst.


There are at least two general lessons that we can learn from the WOT with respect to the above limitations. One is that to wrap everything up in the language of "war on terrorism" or a "war on evil" does not contribute much to clear operational thinking. A war on against evil is, almost by definition, unlimited and interminable. The concept does not help us much in identifying points of entry, and there's certainly no obvious exit strategy. Martti Koskenniemi has pointed out, "Arguments from legal principles are countered with arguments from equally legal counter-principles. Rules are countered with exceptions; sovereignty with sovereignty... International law thus becomes singularly useless as a means of justifying or criticizing international behavior."


As Jarna Petman writes, the problem with defining terrorism is this. On the one hand, any such definition will have to encompass any serious enemy that one might have in the future. But the future remains unknown and the experience of the past is insufficient to grasp it. She asked the following hypothetical questions. What if one's Mujahedeen friend turns into tomorrow's Taliban adversary? Or if one's former Kosovo Liberation army ally is transformed into a saboteur of one's future governance plans? So the definition would have to be open-ended enough so as to govern future perceptions of the enemy. On the other hand, it should not be such as to enable the definition of one's own action, or those of one's ally, as terrorism.


But again, she adds, it is impossible to know what kinds of action may be needed in order to protect important values in the future. What if one's country is invaded by a foreign occupier and one needs to set up a clandestine organization of military resistance? Such a definition should not cover such actions. In other words, any definition should be binding so as to bite hard on the acts of one's adversaries, but open-ended as to be adjustable as needed in changing circumstances. This analogy leads us to the next problematic (perhaps the most outstanding) question when it comes to defining terrorism: Is one man's terrorist another man's freedom fighter?


This concept has become somewhat commonplace in our times. But is it true? What do Nelson Mandela, Menachem Begin, Gerry Adams, and Yasser Arafat have in common? They all made the transition from being regarded as terrorists to being recognized as statesmen and peacemakers. In fact, three of them, Mandela, Begin, and Arafat, have been awarded the Nobel Peace Prize, and Mandela is viewed today by many as the leading moral authority of his time in the world.


Salah Khalef (Abu Iyad) was Yasser Arafat's deputy and one of the leaders of Fatah and Black September. He was responsible for a number of lethal attacks, including the killing of Israeli athletes at the 1972 Munich Olympics. In order to rationalize such actions, he used the tactic of confounding "terrorism" with "political violence," stating, "By nature and even on ideological grounds, I am firmly opposed to political murder and, more generally, to terrorism. Nevertherless, unlike many others, I do not confuse revolutionary violence with terrorism, or operations that constitute political acts with others that do not."


Abu Iyad tries to present terrorism and political violence as two different and unconnected phenomena. The implication of this statement is that a political motive makes the activity respectable, and the ends justify the means. Despite the "myth" of terrorism having given birth to a cruel reality, the border between resistance and terrorism remains subjective and contested.


A look into the historical development of U.N. action against terrorism reveals that freedom fighters and the question of whether or not the official forces of a state can commit terrorist offences has always rendered debates on defining terrorism very difficult. While violence is at no time an acceptable means of protest, people may feel that violence is their only recourse (such as freedom fighters in the early 20th century who fought to oust colonial powers from their countries).


Moreover, many nations were founded by freedom fighters who then returned to civil governance rather than continue in the cycle of violence. Therefore, the problem is crafting a legal definition of terrorism upon which the majority of nations will agree. The Security Council and the General Assembly have both tried to define terrorism with resolutions, but have unfortunately left the meaning of 'terrorist' rather fuzzy.


If one keeps searching for acts of terrorism without defining terrorism itself, then its denunciation is encouraged more than its understanding by confusing the reason for an action with its explanation, definition, and support. The subject as a whole is based on an excessive, repetitive, and sometimes meaningless terminology. Without a universally shared definition of terrorism, how can there be a coherent regime for preventing it? That is the question before international lawyers in the global WOT.


The threats posed by international terrorism are real, as seen by the 9/11 incidents and the extensive global networks established by the Al Qaeda organization. Thus, the global community is in need of an international convention to suppress terrorism. At present no such international convention exists due to the problems in defining the term terrorism. A working definition, therefore, might begin as follows: international terrorism is an illicit act (irrespective of its perpetrators or its purpose) which creates a disturbance in the public order as defined by the international community, by using serious and indiscriminate violence (in whatever form, whether against people or public or private property) in order to generate an atmosphere of terror with the aim of influencing political action.

2006-04-17 15:58 (KST)
©2006 OhmyNews

[ddeubel]

TERRORISM's just another word for nothing left to lose.................

DD (Don Dylan)