Defining terrorism, 2

In my earlier post on defining terrorism, I suggested that the full definition of terrorism cannot stop merely with direct attacks on civilians. Although direct attacks on civilians (done with a political purpose, etc.) will always constitute terrorism, they do not exhaust the category of terrorism (I am ignoring here the equally abhorrent but quite different phenomenon of state terrorism by a state against its own population). In particular, it does not take into account terrorism directed not against civilians but against what would be, in a legitimate war, legitimate targets such as military personnel or facilities, and collateral damage to civilians arising from such attacks. Examples include attacks against British soldiers by the IRA or the attack upon the USS Cole. The attack on the USS Cole, I noted earlier, in a legitimate war would be an exemplary attack against a legitimate military target in which - being a ship away from civilians - no civilian collateral damage occurred, although dozens of US military personnel were killed or injured.

I remarked that this is terrorism rather than a legitimate surprise attack not because of the means or methods of warfare - as would be the case in direct attack against civilians - but because the attackers had no legal right to be engaged in warfare at all, and hence any violence they engaged in (for political ends, etc.) constitutes terrorism. No concept of combatant's privilege applies. That is, determining whether it is terrorism or legitimate warfare depends crucially on the concept, in just war theory, of "right authority." Who has the rightful authority to engage in war? well, the sovereign, plainly - even if the war, for other reasons, is unjust or illegal.

But does anyone else? Historically, the world's great democracies very often arose out of assertions of the rightful authority to make war, rebellion, secession, and revolution - the US and France, to start with. In contemporary times, similar assertions arose out of the decolonialization movements and national liberation movements, notwithstanding that international law then and now allows the legitimate sovereign to punish such movements as rebellion, sedition, treason, etc. Hence the terrain of who is permitted to undertake war is contested - it is not, by law or history, entirely confined to sovereigns. Yet sovereigns are allowed to punish with the full weight of domestic law, those who undertake rebellion - put another way, rebellion is not a subject of international law as such, and its suppression fully available under domestic law. Rebels whose rebellions arise to a certain level of activity benefit from a special international law governing internal armed conflict and civil war, Common Article 3 of the Geneva Conventions but, although that article prohibits summary execution, it does not prohibit or address the domestic law right of a sovereign to charge and try rebels not only for rebellion, but to treat any violence in those acts as terrorism.

In attempting to define fully terrorism, then, the question is whether international law can or should pronounce upon who is permitted to make war or, instead, whose acts of political violence should be regarded as rebellion which might (depending on whether it is violence used to try and influence a government (etc.)), constitute terrorism - as a matter not merely of domestic law, but international law. One approach is to limit international law only to the question of direct attack on civilians, while leaving the rest of it to domestic law. A second approach is to seek to incorporate it all into international law. As a practical matter, I cannot see that international consensus will be reached on the non-civilian part of the question, or put another way, on those aspects of the definition of terrorism that go beyond prohibited means and methods of warfare - and it is better to explicitly announce that the prohibitions in international law are not comprehensive, and that individuals are subject to domestic law in addition to international law.

But that does not answer the question of where to draw the line, provided that one goes beyond the concept of only-sovereigns. The reality is that, beyond legitimate sovereigns, the question of who may use force is, for practical reasons, often answered post-hoc - if your rebellion was successful, then you won't be hanged, and your exercise of force (eventually) legitimate. If it wasn't, then you'll be hanged and your exercise of force will remain illegitimate. Force molds legitimacy in some cases, and this is one of them. It is, to be sure, an invitation to the use of force, and that is a large problem - precisely the same problem faced by those attempting to set out the ante-hoc criteria of legitimate self-determination - which, after all, is often another name for the legitimate exercise of force on behalf of a political community.

I don't propose to set out a full definition here. As a practical matter, I think the best approach is to have international law acknowledge its incompleteness on this matter, while working out prohibitions on direct attacks on civilians as terrorism as well as in particular circumstances - aviation, etc. - and leaving the rest, explicitly, domestic law. This is an approach that favors the strong sovereigns, such as the United States, and that is fine by me. But I will suggest some limited, incomplete criteria for terrorism going beyond civilians that might be put into international law. Political violence by transnational groups that have no limitation in territory - not only no attachment to a territory, but no limitation provided by one either, might be fit for international criminal law. This would rule out Al Qaeda, assuming one rejected the claim that it was really territorially based, but it would not, note, rule out the IRA or ETA; there are other principles, at the level of international law and not only domestic law, that could be used to rule them out. Beyond that, there are other criteria (some of which arise in the definitions of terrorism used in specific treaties covering specific types of terrorism) that I am still considering. I am tentative about the above as a matter of international law, and might change my mind about some of this, mostly because international law so often turns out to be a way of limiting the scope of sovereign action and, in the war on terror, turning it into a variety of criminal law enforcement, whether domestic law enforcement or international criminal law enforcement, seems to me a very, very bad idea.