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Dealing With Terrorism in International Law (by Sebastian De Brennan)

Sebastian De Brennan (age 24) is a Research Associate within the College of Law and Business at the University of Western Sydney, Australia. He Can be contacted on: s.debrennan@uws.edu.au.

It has often been said that ‘one person’s terrorist is another person’s freedom fighter’. Indeed, delineating between these two concepts continues to pose enormous problems for international law makers today.

At international law, the plight of the freedom fighter seems to be acknowledged in the 1977 Protocols Additional to the Geneva Conventions. Protocol II of those conventions extended the recognition accorded to irregular forces by providing protections during armed conflicts which occurred in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

Of significance also is Protocol 1 to the Geneva Conventions of 1977. This Protocol extended the application of the Geneva Conventions to armed conflicts in which "peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination." Article Forty-four, recognized that there were situations in which, given the nature of the hostilities, combatants could not distinguish themselves from the civilian population. In these situations, they retained their status as combatants provided that they openly carried their arms during a military engagement and during such time that they were visible to an adversary while engaged in a military deployment preceding the launching of an attack. This substantially modified the traditional four-prong requirement (under Article 44) for recognition of prisoner of war status articulated in the Geneva Conventions.

Frequently, ‘terrorist groups’ have attempted to be recognised at international law in respect of their causes. Palestinian resistance groups, for example, have lobbied for many years now to be regarded as freedom fighters and therefore be afforded certain rights, notably the right to receive Prisoner of War (POW) status under international law. However, these attempts have been consistently rejected by the Courts of Israel. Similarly, the Protocols Additional to the Geneva Conventions outlined above have not been accepted by all nations. Conspicuously absent from the list of signatories include nations such as Israel, the United States, and Britain (some would say the very nations critical to maintaining the legitimacy of international law).

Terrorists are frequently portrayed as odious beings that pay no regard to international law. Often this is true, but it does not resolve the fundamental issue, that being: How can we expect certain ‘terrorist groups’ to abide by international law if we refuse to recognise them under that law in the first place?

Of little assistance to resolving these fundamental issues is what I like to call the ‘Islamatization of terrorism’. Today terrorism is habitually equated to fundamentalist Islam. To view it in these terms is to overlook a whole variety of other factors associated with terrorism such as politics, economics, culture, and history. Despite the interplay of all of these forces, it would seem that religion is often prioritised over the other, equally important motivations for terrorism. Given the lessons of history, it is likely that couching current conflicts in religious terms is a convenient device for both sides. Thus, commentators are quick to make the link between contemporary terrorism and Islamic fundamentalism but they often do so in a piecemeal way, simply noting that the perpetrators of 9/11 were fanatical Muslims who were intent on launching a ‘jihad’ against the ‘Great Satan’ (America), before moving the discussion on. Indeed, comparatively little academic attention from the West seems to have been devoted to systematically uncovering what religious concepts such as jihad mean, and how it sits in relation to the so-called, new and internationalised terrorism. As Professor Syed notes, it is almost as if Muslim history, culture, religion and politics are not judged through the history or proper context of their Holy Book but through the dusty clouds that followed the destruction of the twin towers of New York City and the attack on the Pentagon in Washington D.C.

To paint terrorism as an Islamic phenomenon is not only myopic but mischievous. Is it really that far-fetched, for instance, to see Muslim wars as wars of State, as opposed to wars of religion? There is no doubt that many Islamic leaders dressed up their conquests in an Islamic/doctrinal cloak but do not all leaders attempt to legitimate their invasions? Consider President Bush’s recent attempt to justify the U.S. entry into Iraq on the basis of that nation possessing weapons of mass destruction and its record of flagrant human rights abuses. If the U.S. was an Islamic nation would we equate its entry of Iraq and Afghanistan with jihad, or would we rightly recognise that there is more than religion at play here?

Professor Barlas provides a classic example of this double standard at play, pointing to the Jewish struggle that resulted in the founding of the Israeli state. He notes that this struggle is almost universally represented as a nationalistic one even though the Jewish claim to Palestine is theological, not political, in nature inasmuch as it arises with the covenant of God. In juxtaposition, the Palestinian struggle for a state of their own is almost axiomatically depicted as a ‘holy war’ rather than a nationalistic and anti-colonial struggle even though it culminates in a political claim to land and is not strictly grounded in arguments of religious rights and freedom.  He notes: 

...few people would consider terrorism as an innately ‘Jewish’ phenomenon even though it was the Jewish Irgun, Stern Gang, and Hagana that, sixty years ago, began the practice of bombing gathering places and crowded Arab areas in order to terrorise the Arab community.

The Irgun’s method, expressed succinctly by their leader at the time, Menachem Begin, was “a prolonged campaign of destruction”. In one incident, the Irgun massacred some 250 civilians, including women and children in the village of Deir Yassin. At the time Begin’s organization was widely deplored as being a terrorist group of the highest order by the colonial powers and Jews alike, yet for those sympathetic to its cause, Irgun were patriots whose efforts enabled the founding of Israel. Begin’s picture, that of a wanted terrorist, was posted in all British prisons and offices in Palestine and a significant price was put on his head. Menachem Begin was never prosecuted for any of his actions as head of the Irgun. In 1977, he became sixth Prime Minister of Israel. In 1978, he was awarded the Nobel Peace Prize.

This is not just an exercise in recounting an isolated incident from the past. Nelson Mandela and Yasser Arafat, also recipients of the Nobel Peace Prize, were at one time labelled as terrorists. At this very moment we know that according to certain individuals, Hamas is engaging in terrorism, the CIA by contrast, in ‘covert activities’.

In painting terrorism as an Islamic phenomenon, we conveniently overlook the acts of those associated with the Boston Tea Party, which abetted the American Revolution, an act which would likely fall within the ambit of terrorism under a number of legal jurisdictions today, as would John Brow’s raid on the federal arsenal at Harpers ferry which similarly assisted in the abolition of American slavery.  It is as if a case of chronic amnesia kicks in. Quite forgotten are the Jewish gangs aforementioned, the Japanese kamikaze pilots of World War II (the first suicide bombers of last century), and all those we have been taught to venerate throughout history because of their willingness to kill and die in the name of God, king or country.

So that no reader is mistaken, to highlight these inconsistencies is in no way to act as an apologist for those ghastly perpetrators of terrorism, especially those responsible for recent episodes of terror. Nevertheless, these few examples show why fighting terrorism will be, in both the circles of international law and the battlefields, a long and bloody war.

If intellectuals, practitioners, or members of our civilisation do one good thing in the next few years it would be to develop a generally accepted, workable definition of terrorism. This is not only important to ensure that unsatisfactory laws are not passed by both totalitarian and democratic states alike (for democratic nations have been just as culpable in passing dubious terrorist laws) but also to add some clarity to the ephemeral boundaries inherent in the internationalized terrorist landscape. As Tharoor has declared: “What is needed to maintain the sense of shared mission--across nations but also across cultures, religions, and ethnicities--is that elusive consensus definition. We must keep trying to find it until we succeed”.

Sources

Barlas, Asma. “Jihad = Holy War = Terrorism: The Politics of Conflation and Denial.” Americal Journal of Islamic Social Sciences, 2002.

Gross, Emanuel. “Democracy’s Struggle Against Terrorism: The Powers of Military Commanders to Decide Upon the Demolition of Houses, the Imposition of Curfews, Blockades, and Encircles and the Declaration of an Area as a Closed Military Area.” Ga. J. Int’l & Comp, 2002.

Protocol Additional to the Geneva Conventions. 12 August 1949.

Relating to the Protection of Victims of International Armed Conflicts. 10 June 1977.

Relating to the Protection of Victims of Non-International Armed Conflicts. 10 June 1977.

Seto, Theodore P. “The Morality of Terrorism.” Loy. L.A. L. Rev, 2002.

Syed, Aslam. “Book Review Essay: Viewing Islam Through Dark Clouds.” Annals, 2003.

Tharoor, Shashi. “September 11, 2002: Understanding and Defeating Terrorism, One Year Later.” Fletcher F. World Aff., 2003.

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