Saturday, February 18, 2006

Italian court acquits in terror charges

Opinio Juris has this extremely interesting post on the acquittal by an Italian court of three North African men of charges of international terrorism. The men were accused of having been recruited to go to Iraq to kill American soldiers. The court, as far as I can tell from reading the post and the links, seems to have said (a) going to Iraq to engage in armed resistance is not international terrorism under Italian law and (b) under Italian law, international terrorism only applies to attacks directed against civilians, not to attacks against soldiers. (Update, February 19, 2006: See also this post by Lorenzo Zucca, at Transatlantic Assembly, here.)

I found this very striking in part because I have just been writing on the definition of international terrorism for a seminar discussion at Harvard Law School next week with Jack Goldsmith and Ryan Goodman. The issue in the definition of international terrorism that interests me in this seminar is not the usual exception for anti-colonial, racist, occupation, etc., stuff, nor the "one man's terrorist is ..." My interest, rather, is exactly the point raised by (b) above, that international terrorism does not include attacks directed against militaries, but only those directed against soldiers.

As I have noted earlier on this blog, this tracks the proposed definition of international terrorism for purposes of a comprehensive treaty against terrorism. This treaty, including this definition, was a high priority of both the UN Secretary General and the US in UN reform discussions that took place in September 2005 at the opening of the 60th General Assembly session. It harks back to a draft comprehensive anti-terrorism treaty offered for discussion by India in the Sixth Committee of the GA way back in the 1990s - 1996, if I recall when it started. It was then endorsed by the Secretary General High Level Panel report, and by the Secretary General, in his UN reform proposal, In Larger Freedom. The limiting of the definition of terrorism to attacks directed against civilians is taken from law of war concepts - a peacetime analogue to the idea that direct attacks on civilians is always and under all circumstances prohibited. The difficulty with the definition, of course, is that it essentially says, by implication, that attacks against military are never terrorism.

This is not something that can make the US happy, thinking about the 2000 attack on the USS Cole in Yemen, the UK happy thinking about IRA attacks on British soldiers, or Spain happy thinking about ETA cross border attacks against Spanish soldiers from France, or any of many other situations around the world. Those are all situations where the states involved clearly characterize the attacks against military targets as terrorism, but they would not fall under the international definition in a supposedly comprehensive convention. I have mixed feelings about this, as I'm sure the US government does. For example, I spoke with Israeli military officers about this issue who, while readily conceding the conceptual point, said flatly that they, as military, would be willing to be targets if it meant that general acceptance of the point that civilians could never be the direct object of attack.

On the one hand, getting to a clear acceptance of the principle that civilians may not be the object of attack would be a huge step forward in establishing a definition of terrorism, getting to neutrality and universality, and getting rid of all the arguments of moral equivalence about "state terrorism" and "terrorism," and all the exceptionalism for terrorism based on resistance to occupation and so on. On the other hand, this definition leaves out a big category that governments have always regarded as terrorism - peacetime attacks on the military by nonstate actors. In going for the "neutral" definition of terrorism taken by analogy from the law of war, the US in particular is conceding in advance matters of terrorism that it is unlikely to be willing to concede when the situation comes up. Is the US likely to concede that a future USS Cole attack is not terrorism? I very much doubt it. That is, however, what it is essentially saying - as the Italian court might be read to have found - by accepting the proposed comprehensive definition that refers to civilians only.

But there is another and even larger implication here. If you draw the new 'neutral' and 'universal' definition of terrorism from the law of war, and the rule prohibiting direct attack on civilians, it is arguably the case that you also thereby accept the rest of what the law of war says about attacks - viz., that if you attack a military target, then if the collateral damage to civilians is proportionate, etc., etc., then it is legal.

Given that the law of war allows combatants a certain latitude in judgment about what constitutes legal collateral damage - judgments about proportionality and what you can know about that in the circumstances of launching an attack being by their nature subjective and uncertain - the most important result of a rule drawn from the law of war might be very considerable civilian casualties as justifiable damage collateral to an attack directly upon military targets. Kevin Jon Heller, guest blogging at Opinio Juris, suggests that the rule should be that "suicide bombing that is exclusively directed at soldiers does not qualify as terrorism, a suicide bombing that targets soldiers but also injures or kills civilians does." The problem with this is that it does not follow from the analogous law of war rule, which accepts a prohibition on direct attacks against civilians while also accepting direct attacks on military with proportionate collateral damage. And it is noteworthy that the further restriction has not been proposed, so far as I know, in diplomatic discussions about this proposed universal and neutral definition; I think people understand what they are saying by implication about collateral damage.


Anonymous said...

Kenneth Anderson wrote:

"This is not something that can make the US happy, thinking about the 2000 attack on the USS Cole in Yemen, the UK happy thinking about IRA attacks on British soldiers, or Spain happy thinking about ETA cross border attacks against Spanish soldiers from France, or any of many other situations around the world."

I don't see why this follows: surely it's not generally believed that just because something isn't terrorism it must be morally or legally justifiable. What substantial interest do these states forfeit if they are obliged to describe these acts as attacks carried out against them (perfidiously or not, depending on the case) by irregular forces without sufficient justification?

The only one seems to be that other states won't convict the perpetrators of the attack under anti-terrorism universal jurisdiction statutes (the question at issue in the Italian case) -- but why, in general, should third-party states take an interest in putting their legal systems at the service of one side in a military conflict? The argument for universal jurisdiction over terrorism depends on the special horror associated with the deliberate killing of civilians, which all just states presumably have an interest in preventing; when the term is broadened to include jus ad bellum as well as jus in bello violations, this interest is greatly diluted.

It may be very convenient for major nation-states to be able to call all their enemies, rather than merely some, "terrorists", but I don't think rhetorical utility should be purchased at the cost of conceptual obscurity.

Anonymous said...

Perhaps, on rereading, I should say "conceptual awkwardness" rather than "conceptual obscurity". A broad concept of terrorism covering both jus in bello and jus ad bellum violations might well be very clear in the sense of having detailed and specific application conditions, but it would still be a cobbled-together disjunct of items falling under very different moral calculi. It would not, as philosophers are fond of saying, cut the moral world at its joints; and surely that is what legal reasoning at its best ought to help us do.

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