Terrorism and International Law
Suter, Keith, Contemporary Review
INTERNATIONAL action against terrorism is once again on the agenda. On the one hand, there have been terrorist attacks such as those of 11 September 2001 in the United States and 7 July 2005 in London. On the other hand, the UN Secretary General in his 21 March 2005 report 'In Larger Freedom: Towards Development, Security and Human Rights for All' has called for the UN to at last finalize a treaty banning terrorism.
I began living, so to speak, with 'terrorism' when I did research for my first PhD just over three decades ago. The PhD was on the development of the law of armed conflict (the updating of the four Geneva Conventions of 1949). This included attending the Geneva Diplomatic Conference on the Reaffirmation and Development of the International Law of Armed Conflicts 1974-77, where there were various discussions on terrorism and how it could be dealt with by international law. Nothing came from all that effort in the 1970s. To the veterans of 'terrorism' discussions, then, there is a sense of here we go again with yet another fresh bout of enthusiasm and determination to oppose 'terrorism'. In each flurry of activity, there may be the creation of declarations and treaties. But they never amount to very much by way of practical action.
What is going wrong? For those of us who have written about 'terrorism' over the decades there is a sense of weariness. So little has been achieved in international law on an agreed definition. Ironically, while it has not been possible to obtain international agreement on a definition of 'terrorism', this has not prevented countries from co-operating extensively in adopting measures against specific acts. The United Nations website (http://untreaty.un.org/English/tersumen.htm) has a list of twelve treaties adopted under its aegis. This is at first sight an impressive list. But the problem is the lack of common agreement on just what the governments do regard as terrorism.
This article looks at the problems in combating terrorism. It begins by looking at the problem of defining 'terrorism'. It then examines the failure of the first attempt to outlaw terrorism--70 years ago. It concludes with some comments on how President Bush could have responded differently to the 11 September attacks as an illustration of the need for lateral thinking in combating terrorism.
The Problem of Defining of 'Terrorism'
The basic problem with trying to create an international regime against 'terrorism' is that there is no agreed definition of it. The practical problem is that one government's 'terrorist' is another's 'freedom fighter'. Indeed, it is possible for a person to move from 'terrorist' to 'freedom fighter' and even become a head of government. For example, Nelson Mandela recalls in his memoirs how his liberation movement decided not to use 'terrorism' but instead opted for 'sabotage' (he defines neither phrase). However the South African government regarded him as a 'terrorist' and so throughout the 1960s to late 1980s refused to negotiate with him. Later there was a change in the political circumstances and he was released from prison and went on to become South Africa's president. Similarly, in 1947 the Jewish Irgun group that fought against the British for the creation of an independent Israeli state--which the British considered a 'terrorist' group--had Menachem Begin as a leader and he was later to become a prime minister of Israel. Indeed, many of the first generation of leaders of the new countries created out of the former British and French colonies had served time in prison or had been on the run for offences which their colonial masters had regarded as one form of 'terrorism' or another. Thus, 'terrorism' is a pejorative and politically coloured phrase.
A second problem is that governments are themselves inconsistent on what they regard as terrorism. For example, the first major use of aerial hi-jacking was made by East Europeans fleeing communism in the early years of the Cold War. …