A Liberal Communitarian Paradigm for Counterterrorism
Etzioni, Amitai, Stanford Journal of International Law
This paper argues that the current normative and legal paradigms that shape the United States' response to security threats posed by acts of transnational terrorism are misapplied In the international arena, we should downplay states' right to sovereignty in favor of a paradigm that requires nation states not only to protect select common goods including the responsibility to protect (R2P), but also to observe a new duty, namely, not to harbor or support terrorists. With regard to those alleged terrorists who are captured the current paradigm that treats them as criminals should be replaced with one that treats them as a distinct class of defendants, entitled to their own rights and procedures--just as we deal differently with ex-cons, sex offenders, and many other classes of offenders. Finally, those terrorists faced in armed conflicts should be expected to abide by the rule of distinction and, if they violate it, they should bear part of the onus for the resulting collateral damage.
The paradigms most often employed in conceptualizing and legitimating counterterrorism campaigns--the paradigms of war among nations and of law enforcement--are ill-suited to meet new realities. (1) The considerable policy mistakes, misjudgments, and above all, morally flawed positions that are caused by the misapplication of these concepts, point to a need for a distinct normative and legal paradigm for dealing with transnational terrorism. This Article focuses on the normative assumptions of such a paradigm, which have clear legal parallels. Further, this Article seeks to develop this distinct paradigm by situating it in ongoing transnational moral dialogues on the just and effective ways to combat terrorism. (2) This distinct paradigm would benefit if it were consolidated into a new Geneva Convention in the future.
I. INTRODUCTION II. RIGHTS AND RESPONSIBILITIES OF NATIONS A. A Stressed Paradigm 1. Respect for Borders: "Declared Theaters of War" 2. Misapplied Rules of War B. Toward a New Paradigm 1. Defining Down Sovereignty 2. Sovereignty as Conditional 3. A Third Responsibility III. TERRORISTS AS ABUSIVE CITIZENS: CAPTURED AND NOT KILLED A. The Misapplication of the Civil Society Paradigm 1. Prosecution Instead of Prevention 2. Criminal Procedures: Damaging and Undeserved 3. Distinct Rights for a Distinct Class B. Toward a New Paradigm 1. National Security Board IV. NORMS AND RULES FOR ARMED CONFLICTS WITH TERRORISTS A. The Main Onus of Responsibility for Collateral Damage 1. No Moral Equivalency and Just War Principle B. Boots Off the Ground 1. Working with Local Forces 2. The Use of Special Forces 3. Drones: Major Advantages 4. Review and Oversight C. Armed Conflict Zones and Evacuation Opportunities V. CONCLUSION
The dialogue surrounding the principles that guide the treatment of terrorists is hardly new, although its focus has shifted over the years. In the 1970s, much attention was paid to the ways Britain dealt with terrorists in wake of "the troubles" in Northern Ireland and to the new antiterrorism laws the mother of democracy enacted in response. In the 1980s, considerable attention was paid to the ways Israel dealt with terrorists. In the aftermath of the 2001 attacks on the United States homeland, attention has shifted from terrorists who limit their activities to their nation and "lone wolf" terrorists, such as Timothy McVeigh, to a focus on transnational terrorists and their networks.
The transnational moral dialogue about the issue lost some of its intensity in the decade after 9/11 as terrorist acts in the West were infrequent and often failed, and those that succeeded did not cause massive casualties. In many other parts of the world, however, terrorists continue to pose a major threat. The risk that terrorists will acquire weapons of mass destruction (WMDs) continues to constitute a major security threat. …