The story of attempts to define "terrorism" in international law is well known, as are the related attempts to exempt liberation violence from any definition of terrorism. The highly charged political atmosphere surrounding international discussions of terrorism has tended to entrench opposing ideological and rhetorical positions, often leading to neither side taking the arguments of the other seriously. This article pauses to take seriously two specific claims of justification for terrorist violence: firstly, that some civilians are not "innocent" and deserve to be killed; and secondly, that suicide bombing is excused by the defense of necessity. It unravels each of these claims and subjects them to the scrutiny of existing international legal principles (particularly international humanitarian law (IHL)) and the moral framework underlying those principles. While there are a range of different justifications presented for terrorism, this article concludes that neither of these two specific claims is legally sustainable.
One justification for terrorism rests on a challenge to IHL norms concerning the distinction between military and non-military targets. On this view, some non-combatants are not "innocent" and therefore become legitimate targets of violence: Israeli settlers in the Palestinian Occupied Territories, pied-noirs in Algeria, or white South Africans during apartheid. (1) These cases involve unlawful occupations or gravely unlawful acts under international law. Foreign settlers may be seen as instruments or beneficiaries of the State's unlawfulness. As Fanon writes:
The appearance of the settler has meant ... the
death of the aboriginal society, cultural lethargy,
and the petrification of individuals. For the
native, life can only spring up again out of the
rotting corpse of the settler. (2)
The argument for "non-innocence" (or "half-innocence") (3) is most persuasive for voluntary settlers with knowledge of the international unlawfulness (regardless of domestic legality). Children of settlers ought to also be excluded, since they may have no choice but to follow their parents and their minority may preclude informed choice.
On one hand, law sometimes prohibits violence but accepts it as morally excusable: "when the victim is Hitler-like in character, we are likely to praise the assassin's work." (4) Assassinations of oppressive politicians, which avoid innocent casualties, are distinguishable from random murders of innocents: (5) "who would say that he commits a crime who assassinates a tyrant?" (6) Courts have even recognized assassinations as proportionate political acts exempt from extradition. (7) While settlers are not oppressive politicians, they are voluntary, knowing agents of oppression, displacing and impoverishing local populations. (8) The protection of civilians in general does not disappear if the targeting of such a limited class is accepted, just as the targeting of oppressive officials does not endanger ordinary citizens. (9)
Yet the argument for killing "non-innocent" civilians is still unacceptable. The killing of combatants in armed conflict is justified because soldiers are militarily dangerous to an adversary. (10) Civilian munitions workers are lawful targets for the same reason. (11) Violence against combatants aims to disable them so they can no longer keep fighting. (12) In contrast, settlers are not militarily harmful, although some may be if they engage in hostilities and hence lose their civilian immunity. (13)
The argument for targeting settlers rests on a different argument about their moral or legal culpability, (14) not their military threat. (15) But allowing settlers to be killed for moral, political, or legal wrongdoing is little more than vigilante justice. Punishment is a judicial function, requiring procedural fairness, and not easily given over to summary justice. …