From the Introduction...  Introduction: Perspectives on International Terrorism
Methodological Perspective
Definition, Characterization, and Context of International Terrorism
Identification of Certain Characteristics of Terroristic Violence
Classification of Perpetrator's Motives and the Strategies of Terror Violence
Individual Terrorism: The Ideologically-Motivated Perpetrator
State-Sponsored Terrorism: Motivation
Comparing Individual and State-Sponsored Terroristic Motivation
Goals of State-Sponsored Terrorism
Destroying Active Resistance and Nullifying Opposition
Destroying Passive Resistance and Asserting Control
Counter-Strategies to Terror-Violence: Controlling the Individual Through Penal Sanctions
Theories of Punishment and Their Application to Terrorists
International Cooperation and Preventive Law Enforcement
The Machinery for Cooperation
The Political Offense Exception
State Responses to Individual Non-State-Sponsored Acts of Terror Violence
Control of State Terrorism
Assessment of Enforcement Means
State Responses to Individual Terror-Violence and the Rights and Responsibilities of Other States
Assessing Terrorism into the New Millennium
Policy Considerations on Inter-State Cooperation in Criminal Matters
Enforcement Assumptions and Policies
Integrating the Modalities of Inter-State Cooperation for the Prevention, Control and Suppression of International, Transnational and Domestic Criminality
Principles and Policies for the Increase in Effectiveness of the Indirect Enforcement Scheme
Concluding Assessment on Inter-State Cooperation
Introduction: Perspectives on International Terrorism
Terror-violence, commonly referred to as "terrorism," has been a matter of legal concern to the international community since 1937, with the League of Nations' drafting of the Convention for the Prevention and Punishment of Terrorism.[1] Subsequently, the United Nations, as a result of a spate of aircraft hijacking incidents, began its work in connection with terrorism in 1963.[2] Since then, and throughout the last sixty-two years the United Nations has focused essentially upon individual or small group violence directed against civilians, diplomats, civilian aircrafts, commercial maritime navigation and sea-based platforms and attacks involving the use of explosives and weapons of mass destruction. The United Nations work has focused on state-actors as parties responsible for implementing efforts to combat, suppress and prevent terror-violence, while sidestepping possibilities of terror-violence committed by state-actors themselves.
During that period of time, however, technological advances in the fields of transportation, communication and weapons increased the actual, as well as, the perceived, dangers faced by civil society, particularly those presented by the possible use of chemical, biological and nuclear weapons at the hands of non-State actors. The combination of increased dangers and threat perceptions has produced a climate of understandable concern in governments and general populations, especially in Western societies which feel more vulnerable to these threats.
This symbiotic relationship between terror inspiring violence events and their psychological impact on societies, has enhanced the concerns of governments whose functions are to prevent such occurrences from happening. These concerns, however, have frequently been manipulated by the media and politicians who saw these issues as an opportunity to advance individual or political party agendas.[3] The media and political manipulation of the question have contributed to a climate of fear and heightened public perceptions of vulnerability.
The dissolution of the Soviet Union in 1991 instigated fears that nuclear weapons would fall into the wrong hands and be used for purposes of terror violence or blackmail. Although these apprehensions failed to materialize, the world community has increased its vigilance against possible terrorism involving the use of nuclear and other weapons of mass destruction, such as chemical and biological weapons. Though the later two are more accessible to State and non-State actors and relatively easy to use, there has been only one incident involving the use of chemical weapons by non-State actors for purposes of terror-violence, and no significant attacks involving biological agents since their use in World War II. The incident involving chemical weapons occurred on March 20, 1995 when a religious cult released sarin gas in a Tokyo subway station, resulting in a dozen deaths and thousands more injured.
The low level of occurrence of such dangers does not, however, suggest that the dangers arising out of the particular use of weapons of mass destruction should be taken lightly by governments. These occurrences increased societies' perception of vulnerability to acts of terrorism and heighten public anxieties, thus predicting the need for governments to implement precautionary measures against such attacks.
The phenomenon of terrorism includes the actual dangers of terror-violence faced by contemporary societies, the reasonably perceived threats of their potential occurrence and the unreasonable threat perceptions of these dangers. The elimination of this phenomenon has generated a new world-wide climate of fear, as well as, a new sense of urgency to develop adequate means to prevent such occurrences. This situation lead to the development of domestic and international mechanisms to prevent, control and suppress acts of terror-violence. States developed national specialized legislation granting enforcement power to various agencies of the executive branch of government and international mechanisms of law enforcement, intelligence, prosecutorial and judicial cooperation through bilateral and multilateral treaties.
Although both national, regional and international enforcement mechanisms developed legal responses to control, prevent and suppress terrorism, these legal responses also produce some control mechanisms, such as intelligence sharing, which are beyond the reach of the law. In recent years these modalities have curtailed civil and political liberties of the suspects and accused during the processes of the investigation, prosecution and adjudication of cases involving terrorism. Most of the substantive treaties relating to terrorism have been developed by the international community within the context of the United Nations and its Specialized Agencies. Regional multilateral organizations, such as the Council of Europe[4] and the Organization of American States[5] have likewise developed substantive treaties relating to terrorism.
The United Nations work on terrorism has essentially been conducted by the General Assembly's Sixth Committee, through the Security Council, the Economic and Social Council and certain Specialized Agencies, such the International Civil Aviation Organization, the International Maritime Organization and the International Atomic Energy Organization. The subject matter oriented approach to prevent, control and suppress terrorism dominated the work of the Ad Hoc Committee on International Terrorism in 1973, 1977, and 1979 because efforts to develop a comprehensive definition of "international terrorism" proved politically difficult.[6] The first Report of the Ad Hoc Committee on International Terrorism, set up pursuant to General Assembly Resolution 3034 (XXVII) of December 18, 1972, demonstrated that a comprehensive definition of "terrorism" was unfeasible, due to the diversity of member-States' views. The contentious issues that arose included: the characterization of who is an innocent victim, the disparate power relations between forces fighting in wars of national liberation and colonial or occupying forces and the legal consequences of actors' motivation. These contentious issues were also exacerbated by the divisions existing during the Cold War between 1949 and 1989. The major powers of the West sought to limit the definition of "terrorism" to individual and small group conduct, excluding actions by States involving police and military operations, irrespective of their legitimacy, while other States, particularly the nonaligned States, wanted to include consideration of terror-violent actions by States particularly in connection with the use of armed force. This broader application of "terrorism," while furthering State-responsibility to encompass all forms of illegitimate State conducted or State sponsored violent activities–including those of a military or paramilitary nature–also extend individual criminal responsibility to agents of the State.[7]
The fifteen conventions and two draft convention directly pertaining to the suppression, control or prevention of "terrorism" [hereinafter the seventeen conventions] are: Convention on the High Seas; Convention on Offenses and Certain Other Acts Committed on Board Aircraft; Convention for the Suppression of Unlawful Seizure of Aircraft; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation; Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons; International Convention Against the Taking of Hostages; Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents; International Convention Against the Taking of Hostages; Convention on the Physical Protection of Nuclear Material; Convention on the Law of the Sea; Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation; Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation; Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf; Convention on the Marking of Plastic Explosives for the Purpose of Detection; Convention on the Safety of United Nations and Associated Personnel; International Convention for the Suppression of Terrorism Bombings; International Convention for the Suppression of Financing of Terrorism; Draft Convention on the Suppression of Acts of Nuclear Terrorism; and the Draft Convention on International Terrorism.[8]
The first multilateral convention created with the specific purpose to suppress acts of terrorism was the Convention on Offenses and Certain Other Acts Committed on Board Aircraft [hereinafter Tokyo Convention on Offenses on Board Aircraft], developed under the auspices of the International Civil Aviation Organization and entered into force in 1963.[9] The most recently adopted Convention is the Convention for the Suppression of Financing of Terrorism in 1999 [hereinafter Financing Convention].[10] Still pending are the Draft Convention on the Suppression of Acts of Nuclear Terrorism and India's Draft Comprehensive Convention. The seventeen conventions deal with specific manifestations of "terrorism," namely: the hijacking of civil aircraft; sabotage of civil aircraft and air navigation facilities; attacks on international airports; attacks on internationally protected persons and kidnappings of diplomats; the taking of hostages; attacks on civil maritime targets and on fixed platforms on the continental shelf; the financing of terrorist activity; the use of bombing and explosive devices against civilian installations and persons. An analysis of the subject matter of these conventions reveals that four of the sixteen conventions deal specifically with attacks upon civil aviation, four conventions encompass attacks upon civil maritime navigation and sea based platforms, three cover attacks upon persons, including hostages, diplomats, United Nations personnel and other internationally protected persons, one covers the means of financing acts of terror-violence and four involve the use of explosives and weapons of mass destruction, specifically nuclear weapons.
While these seventeen conventions deal directly with specific means of terror violence, other international treaties also apply indirectly to violent acts associated to terrorism. For example, the Universal Postal Union, an agency mainly concerned with the licit international regulation, standardization and cooperation of mail delivery, included prohibitions against the unlawful use of the mails for bombings. The Universal Postal Union Convention and the Postal Parcels Agreement, since 1964, prohibit the insertion of any explosive, flammable or other dangerous substance, in letter-post items.[11] These prohibitions extend to articles which, by their nature or their packing, may expose officials and recipients to danger. While the prohibitions contained in the Universal Postal Union treaties apply to individual conduct, international treaties concerning weapons of mass destruction only extend their prohibitions to State-Parties. Thus, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (hereinafter Chemical Weapons Convention][12] and the Convention on the Prohibition of the Development, Production, Stockpiling of Bacteriological and Toxin Weapons and on their Destruction [hereinafter Biological Weapons Convention),[13] renders it illegal for any State to use or sponsor the use of chemical or biological weapons, thus prohibit State conducted or State sponsored use of chemical and biological terrorism. No such prohibitions, however, apply to the use of nuclear weapons by States, although a convention concerning the physical protection of nuclear materials does render States a duty to cautiously deal with such weapons.[14]
The seventeen conventions, which resulted from this piece-meal approach, are relatively narrow as to their respective subject matter and reflect a variety of content, specificity and style. Although breaking up the larger problem of "terrorism" into manageable parts is easier and more politically acceptable to the majority of States Parties, the piece-meal approach does not account for, nor justify, the lack of specificity, the ambiguities and the gaps contained within and among these Conventions.[15] These shortcomings are due essentially to the processes of the United Nations and the fact that the majority of the participants involved in the treaty making process are diplomats who either have limited expertise in international criminal law, or who are more concerned with reaching consensus than with the ultimate quality of the legal product.
Notwithstanding their diversity, these conventions, share the six modalities of international cooperation in penal matters, namely: extradition, mutual assistance, transfer of criminal proceedings, transfer of prisoners, seizure and forfeiture of assets and recognition of foreign penal judgments.[16] These seventeen conventions, nevertheless, differ as to the inclusion of all or some of these six modalities, as well as, the articulation of the legal obligations pertaining to these modalities. Furthermore, many provisions use language which may lead to differing interpretations, thus causing confusion as to what the applicable law may be.[17] This discrepancy in language allows for State Parties, seeking to avoid there obligations to prosecute or extradite terrorists within their jurisdiction, to achieve that result with some plausible justification.[18]
In 1996, India proposed to the General Assembly the need to establish a comprehensive convention on terrorism.[19] For a variety of reasons, mostly lack of political will, this proposal was never followed through. However, in August 2000, India submitted a revised draft of the 1996 proposal, which is presently being considered in the Ad Hoc Committee.[20]
A comprehensive convention which combines all existing conventions pertaining to terrorism into a single updated text would significantly advance the overall objectives of these conventions. Such a comprehensive text would contribute to the elimination of overlaps, gaps and ambiguities which currently exist in the sixteen separate subject matter conventions. It would also eliminate the need to consult multiple legal sources in order to enforce State Party obligations. If this piece meal subject-matter approach trend continues, there is no end to the number of conventions likely to be developed over the years to come, and there is no hope to make the legal mechanisms contained within each convention more effective.
Methodological Perspective
All forms of violence can be placed on a single continuum. Distinctions as to goals, means, perpetrators and victims are based on socio-political judgments in order to devise modalities of social and legal controls. It is axiomatic that all forms of violence cause harm to persons and things, and that all societies grade the nature and severity of the harm which is produced in order to develop appropriate responses to control and prevent such harm. Equally self-evident is the fact that every form of violence is potentially terror-inspiring to its victim and to those it indirectly affects. These truisms do not, however, mean that the manifestations and consequences of violence lack complexity as to their causes and with respect to the policies and means which are necessary for their prevention and control.[21]
It is important to distinguish between three concepts that are frequently used interchangeably, namely: "terror," "terrorism," and the "terrorist."[22] "Terror" is a general concept of emotionally enhanced fear. "Terrorism" is descriptive of the processes of terror-violence. "Terrorist" is the label society attributes to the perpetrator of a terror-inspiring act. Therefore, to refer to "terrorism" without a clear understanding of the term's meaning and scope is misleading, though popularly and politically useful. "International terrorism" is also a term that requires defining. However, to define "international terrorism" in a way that is both all-inclusive and unambiguous is very difficult, if not impossible. Thus, it now simply means that the present conduct is prohibited by an international convention.
One of the principal difficulties we face in dealing with terrorism lies in the fundamental values that are at stake in the acceptance or rejection of terror-inspiring violence as a means of accomplishing a given goal, particularly when that goal reflects certain values. The wide range of views on these issues make the development of a definition of "terrorism," a politically unfeasible undertaking. Therefore, the search for an internationally agreed upon definition may well be a futile and unnecessary effort.[23] This does not exclude the development of a subject-matter definition of "international terrorism" based on the identification and appraisal of the elements of this multifaceted phenomenon.[24] Such a working definition must reflect a consensus of the world community's commonly shared values and expectations. In the process of achieving that consensus, strengthening the world community's values and expectations should also lead to the development of more effective social and legal control mechanisms at the national and international levels.
There is, however, no internationally agreed upon methodology for the identification and appraisal of what is commonly referred to as "terrorism," including: causes, strategies, goals, and outcomes of the conduct in question and as to those who perpetrate violent conduct against protected persons or targets or who engage in such conduct in an unlawful manner. There is also no international consensus as to the appropriate reactive strategies and means of individual states and the international community. As a result, it is difficult to identify who, why, how, or what is sought to be prevented, controlled and suppressed.[25] Therefore, the pervasive and indiscriminate use of the often politically convenient label of "terrorism" continues to both mislead and make ambiguous the phenomenon of terror violence.[26]
One of the consequences of this ambiguous and misleading situation is that world attention has focused almost exclusively on individual acts of terrorism with little attention given to state-conducted terrorism.[27] Furthermore, some terror-inspiring common crimes with transnational dimensions, such as narco-terrorism, are substantially excluded from the literature on terrorism. That may be due to the fact that most commentators on terrorism are from a political-science background who have only in the last decade become more conscious of the interrelated problems of narco-trafficking, organized crime and terrorism.[28]
Quantitatively and qualitatively, individual terrorism causes much more limited harm than either domestic common crimes or state-conducted terror-violence.[29] This distinction, however, is not reflected in public attitude, legal literature on the subject, government policies and international reactions, given some exceptions. This is due in large part to the media's role in creating and reinforcing perceptions and to the media's attributions of the scope, and harm produced by some forms of terrorism.[30] This media created situation explains, in part, why the individual, ideologically-motivated terrorist carefully selects certain targets in order to ensure that the act has both the intended political impact and terror-inspiring consequence as disseminated through the media's coverage.
The worldwide concern with individual terrorists over the last two decades is not, however, due exclusively to media coverage, but also to the policies of some states, who for political reasons, have sponsored or given support, aid or comfort to such perpetrators.[31] Thus, state-sponsored terror-violence must be addressed in addition to all other forms of individual non-state-sponsored terror-violence. In addition however, we must address the question of state-conducted acts of terror-violence whether domestically or international. Meeting this challenge requires improving and enhancing techniques for conflict resolution, enforcing internationally protected human rights, and enforcing international humanitarian law.[32] In short, a global and comprehensive approach based on commonly shared values, applied consistently and in good faith, is indispensable if the international community is to ensure a better result in the prevention, control and suppression of all forms and manifestations of terror-violence. Admittedly, however, it is much more difficult to deal with state-conducted acts of terror-violence than with individual ones. But without consistency in policy, normative formulation, and implementation practices based on ethically premised and commonly shared values, the world community surrenders the high moral ground, which is indispensable for inducing greater international compliance.[33]
Lastly, there is the question of whether new international norms are needed in order to cope with terrorism. It is this author's belief that what is needed is not so much the development of new international norms, but a refinement of existing norms and the effective enforcement and consistent application of these relevant norms.[34] Detailed regulations for armed conflicts already exist, whether of an international or non-international character, which protect certain persons and targets from violence.[35] A number of international conventions also specifically protect certain targets, which have historically been victim to acts of terror-violence, such as: international conventions on piracy,[36] hijacking,[37] kidnapping of diplomats,[38] civilian hostage-taking,[39] and unlawful use of the mails.[40] There are, however, insufficient legal norms to adequately regulate contemporary forms of internal civil conflicts.[41] In these two contexts, experience since World War II has tragically indicated that the existing normative framework is insufficient.[42] In addition, there are practically no effective means to ensure compliance with, and enforcement of, these norms. Furthermore, effective enforcement of existing conventions, by means of greater inter-state cooperation in penal matters, such as extradition[43] and judicial assistance, is still needed.[44] But differences in perceptions and values continue to divide scholars and policy-makers in the determination of an appropriate approach to international penal cooperation.
Definition, Characterization, and Context of International Terrorism
The initial problem in defining "terrorism" stems from various popular perceptions and misconceptions, which ultimately condition the political and legal meaning of the term. Legal literature reflects a shared perception as to certain types of prohibited conduct which target civilian aircraft, innocent civilians, diplomats and other internationally protected persons, civilian installations, archaeological and cultural monuments, artifacts and records.[45] But there is no agreement as to just who the persons deemed "innocent civilians" or genuine diplomats are, or what constitutes purely civilian installations or legitimate targets. This confusion stems, in part, from the mass media's indiscriminate and inconsistent use and application of the term "terrorism," as well as, government pronouncements, which are influenced in turn by the political or ideological content of the term, thus reflecting differing values. It is best expressed in the maxim: "what is terrorism to some is heroism to others."[46]
Efforts to define terrorism have met with the resistance of some governments who, in the absence of commonly shared values and agreed-upon goals and means, prefer the ambiguity of the undefined term while other states have sought an internationally agreed-upon definition of "terrorism." That result has yet to be attained, if indeed it is attainable at all.[47]
Despite the difficulties involved, several commentators have struggled to develop a definition.[48] This author proposed a working definition, which subsequently received a significant degree of international acceptance, at the 1973 international conference.[49] If a definition is at all possible, or necessary, then it should be descriptive in order to allow for the development of a non-inclusive list of specifically prohibited acts which would, as much as possible, be devoid of political subjectivity and bias. This author expressed this position at the United Nations' Meeting of Ad Hoc Experts on International Cooperation for the Prevention and Control of the Various Manifestations of Crime, Including Terrorism which convened at the International Institute of Higher Studies in Criminal Sciences (Siracusa, January 20-24, 1988). The group adopted this approach and most of the textual formulation that follows, which were originally prepared by this writer and contained within the Draft Working Paper submitted to meeting. The United Nations Inter-Regional Meeting of Experts (Vienna, March 14-18, 1988) accepted this report.
"Terrorism" may thus be defined as: an ideologically-motivated strategy of internationally proscribed violence designed to inspire terror within a particular segment of a given society in order to achieve a power-outcome or to propagandize a claim or grievance, irrespective of whether its perpetrators are acting for and on behalf of themselves, or on behalf of a state.
This definition includes strategies of terror-violence engaged in by individuals acting on their own, as part of a small group, or on behalf of a state, irrespective of their goals or their claimed justification. The definition, however, excludes conduct that is not motivated by ideological or political goals and purposes. The unlawfulness of the violent means employed is determined by international legal norms. Individual international criminal responsibility is just one consequence of violating these norms.[50]
In order to be deemed international, acts of terror-violence must contain an international element, be directed against an internationally protected target, or violate an international norm.[51]
A. An act of terror-violence contains an international element when: (1) the perpetrator and victim are citizens of different states; or
(2) the conduct is performed in whole or in part in more than one state.
(3) the perpetrator is a citizen of one state and the act is committed in another state.
B. Internationally-protected targets are: (1) innocent civilians, whether protected by international legal instruments or not;
(2) duly-accredited diplomats and personnel of international organizations acting in their official capacities;
(3) international civil aviation and international civilian maritime navigation;
(4) the mail and other means of international communications; or
(5) members of non-belligerent armed forces.
C. A power-oriented outcome is: an outcome which is aimed at changing or preserving the political, social or economic structures, or the policies, conduct, or practices of a given state by means of coercive terror-violence strategies.
D. Internationally proscribed conduct applicable to terror-violence includes: (1) aggression;
(2) war crimes;
(3) crimes against humanity;
(4) genocide;
(5) apartheid;
(6) unlawful human experimentation;
(7) torture;
(8) slavery and slave-related practices;
(9) piracy, and unlawful acts against the safety of maritime navigation;
(10) hijacking and sabotage of aircraft, and acts of violence at airports;
(11) kidnapping of diplomats and other internationally protected persons;
(12) taking civilian hostages;
(13) serious environmental damage; or
(14) serious violation of fundamental human rights.
Within the framework of this definition, international terrorism arises in the following contexts:
1. Armed conflicts of an international character or of a non-international character: A. Conventional Wars
The intended power outcome is victory over the enemy, or the subjection of an enemy population or territory, to foreign control.
B. Wars of National Liberation
(1) against settler regimes, the intended power outcome is either the removal of the settlers or the transfer of power from the settler group to the indigenous population;
(2) against foreign occupation and/or colonial regimes, the intended power outcome is the total removal of the foreign occupation or colonial presence.
2. Internal political conflicts which may or may not involve an armed conflict of non-international character. A. Between opposing ethnic, racial, religious, or linguistic communities.
The intended power outcome is either the social, economic or political transformation of existing structures, or the breaking of the political unity of the state;
B. Between those seeking to effect social or political transformation of existing structures or the breaking of political unity of the state;
C. Between individuals or groups seeking to propagandize a claim or grievance and organized society.
The power outcome is the advocacy of a given claim or grievance.
Within these contexts, a distinction must also be made between individual terror-violence, small group terror-violence, and state-sponsored terror-violence.
Individual and small group terror-violence may occur in the context of wars of national liberation or internal political conflict which may, or may not be, deemed conflicts of a non-international character within the meaning of the Geneva Conventions of August 19, 1949 and the 1977 Additional Protocols.[52]
State conducted or state-sponsored terror-violence may occur in the context of wars of international or non-international character, military occupation, support for individual and small group terror-violence, or in the maintenance of political regimes by means of serious violations of internationally protected fundamental human rights.
Finally, there should no longer be a place in contemporary international law for distinguishing between the law of war and the law of peace and jus ad bello and jus in bellum.[53] The development of contemporary international law should be more clearly and unambiguously focused on proscribing certain forms of violence, irrespective of by whom, where, or why such violence occurs. Contemporary debates over the legitimacy of wars of national liberation, radical revolution movements, and states' national security interests have tended to obscure the clarity of this focus. These debated are analogous to the debate during the middle ages over just and unjust wars without regard to the means employed or harm produced.[54]
Even so, "international terrorism" is, to some extent, more easily definable, or at least more clearly identified than its purely domestic counterpart, which can include acts committed by common criminals. Thus, the two essential distinguishing characteristics of terrorism are: (1) the ideological motivation of the actor; and (2) the political purpose, or power-outcome, contemplated by the act of violence.[55] The question, however, remains with a number of scholars and government experts as to whether "terrorism" should be defined, or whether it is better to substantively identify those acts which are prohibited by international law and require international cooperation with respect to their prevention, control and suppression.[56]
The increasing volume and spectacular nature of individual terror-violence acts since the 1960s,[57] their transnational effects, and the mass media's publicity of such acts, have combined to generate a disproportionately high level of worldwide concern with the aspect of terrorism. As a result, terrorism, like street crime in many states, has become an emotional law-and-order issue with added international and ideological dimensions.[58] As stated earlier, however, state-sponsored and state-conducted acts of terror-violence and other forms of serious deprivation of human rights remain largely outside the scope of contemporary international and national efforts to prevent and control all forms and manifestations of terror-violence.[59]
As with other value-laden problems, remedies to control and prevent its manifestations have been inadequate and largely ineffective. These remedies range from armed preparedness by governments and private vigilante groups to government censorship and control of the media, usually employed for the benefit of governments involved. Nearly every proposed or enacted piece of legislation in the world that purports to prevent and control individual terrorism exists in the nature of repressive penal and administrative measures.[60] These measures needlessly create new categories of crimes or increase the penalties for violations of existing law.[61] The temptation to legislate these problems out of existence has and will continue to prove futile. The phenomenon of terrorism thus requires a more careful analysis of the characteristics of terror-violence as they relate to the proposed definitions of "terrorism." More particularly, analysis demands a distinction between domestic terrorism and international terrorism, and even within that category, a distinction between state-sponsored and non-state-sponsored conduct.
Identification of Certain Characteristics of Terroristic Violence
The purpose of any definition of criminal behavior is to clearly state the proscribed conduct for which a sanction is to be applied in order to prevent and control such harmful behavior. To accomplish this goal, a definition must identify those harmful consequences it seeks to prevent and the behavior it seeks to control. Since there are different types of terror-inspiring violence, one must first identify the characteristics commonly attributed to terrorism in contrast to similar acts of violence which are not regarded as such. The reasons for the consensus, or lack thereof, regarding the inclusion or exclusion of certain acts of violence from the category of terrorism must also be appraised.
The following example illustrates the problem of the same act falling within or without the scope of terrorist conduct. Consider the bombing of a restaurant. If an individual, claiming to be acting for and on behalf of a group dedicated to the overthrow of the government of the state in which the act occurred bombed the restaurant, the act is terrorism. If, however, the perpetrator is the owner of the restaurant and destroys it in order to collect insurance, the act is not "terrorism."
The following characteristics assist in understanding why one act constitutes terrorism and the other does not: 1. Motivation
The motives of the perpetrator[s] are ideological rather than personal profit.
2. Resulting Harm
The resulting harm to life or property presents no personal benefit for the ideologically-motivated offender, whereas it is personally beneficial for the common criminal.
3. Target
The ideologically-motivated offender's selection of the target does not necessarily bear a relationship to his ultimate goal or purpose, whereas, for the common criminal, the target is either the goal or is essentially linked to the goal.
4. Publicity
The ideologically-motivated offender seeks publicity for the act, whereas the common criminal shuns publicity.
5. Desired Outcome
The outcome sought by the ideologically-motivated offender, usually the dissemination of a particular claim, does not necessarily bear a relationship to the target, whereas for the common criminal the desired outcome and target are, more often than not, one in the same.
6. Risk-taking
The ideologically-motivated offender will weigh the risks incurred in perpetration of the acts against the ultimate goal sought to be achieved, or against other ideological or political benefits to be obtained, that are not necessarily inherent in the primary target, whereas the common criminal will weigh the risks incurred against any immediate material benefits he can derive from the very act.
7. Methodology
The contemplated harm resulting from a given act will usually be less of a consideration in the decision-making process of the ideologically-motivated offender than that of the common criminal. As a direct result, the ideologically-motivated offender will usually perpetrate the act in a manner designed to ensure maximum effect in relationship to his goal, irrespective of the harm produced thereby. The common criminal will usually resort to only those means most likely to accomplish the immediate result, incurring the least possible risk of harm.
This analysis emphasizes the cause and effect relationship between act and outcome, and between means and end. Each is much more complicated with respect to ideologically-motivated offenders than with respect to common criminals. The conduct of common criminals can usually be evaluated relative to a single goal, personal profit, while the goals of ideologically-motivated offenders must be analyzed at three levels: (1) Must the target be directly attacked in order to achieve the tactical objective?
(2) Is the strategic objective of the act: mass media's dissemination of the ideological claim, or the effect of the act, or both?
(3) The power outcome, or the achievement of the desired political impact, is varied.
The observations presented above do not always sufficiently distinguish between similar types of acts which have the same elements of terrorism. For example, where a public official is implicated in a case of torture, motivation is determinative. If the act is perpetrated in order to further a bribe, it is a common crime. If the act is perpetrated in order to elicit a confession, it is an international crime.[62] Thus, the degree of public consensus in defining an act labeled as "terrorism" is largely subjective, because it depends on the perpetrator's motives. As a result, if the act is committed by an ideologically-motivated offender, irrespective of the characteristics of the act, it is deemed terrorism. When persons who are not ideologically-motivated commit the exact same act, it is not labeled as "terrorism." This labeling process is based on five factors: (1) the professed or perceived motivation of the perpetrator,
(2) the actor's self-stated goal,
(3) the target of the act,
(4) the intended audience which is, or could be, subject to the terror-inspiring act of violence, and
(5) the evidentiary or causal link between the above factors.
The primary distinguishing factor, which permeates all others, is the subjective motivation of the perpetrator. But why should the primary focus depend on the actor's subjective state of mind instead of the actor's objective conduct? In other words, why not move away from the actor's subjective characterization of his conduct or the state's evaluation of the ideological motivation of the actor to a more neutral objective characterization of the act? In short, why not characterize an act of killing innocent civilians as an objective crime, irrespective of the perpetrator's ultimate goal? This avoids unnecessary and cumbersome rationalizations for graduated distinctions of quasi-justifiable or quasi-excusable crimes. Instead, why not rely on fundamental principles of criminal responsibility that have long been recognized and applied in every legal system of the world as a basis for accountability.
Classification of Perpetrator's Motives and the Strategies of Terror Violence
Perpetrators are classified according to their acts, according to their motives, or a combination of both. In the context of terror violence, the classification made in international law and by most countries is, as stated above, essentially made on the basis of the perpetrator's motives. This subjective approach is also relevant to state-sponsored terror-violence. State-sponsored terror-violence is implicitly excluded from the generally accepted meaning of "terrorism," presumably because it reflects the political goals of the state. Both are wrong.
Individual Terrorism: The Ideologically-Motivated Perpetrator
Individuals who engage in acts of terror-violence act out of complex motives.[63] Thus, a rigid or precise classification of "terrorists" is necessarily artificial. It is nevertheless useful, for analytical purposes, to identify four basic categories: (1) common criminals motivated by personal gain;
(2) persons acting as a consequence of a psychopathological condition;
(3) persons seeking to publicize a claim or to redress a grievance; and
(4) ideologically-motivated individuals acting pursuant to actual or perceived political reasons.
The third of these categories is sometimes subsumed in the fourth. The fourth category, more than the other three, seems to fascinate writers, terrify the public, and intrigue the media.
Ideologically-motivated offenders have received, or seek to confer upon themselves, a special status by virtue of their purported adherence to higher political or ideological values. This applies irrespective of whether these actors commit common or international crimes that are seldom, if ever, deemed justifiable or excusable by general principles of criminal responsibility under the laws of most countries. The ideologically-motivated offender seeks to accomplish an ideological or political objective by means which are unlawful, presumably because no effective legal means are available to accomplish this goal by peaceful means, or because the offender rejects, in whole or in part, the political or legal system under which he operates. This proposition is the cornerstone of the rationalization process for resorting to almost all forms of terror-violence.
The contemporary ideologically-motivated offender frequently claims to act in self-defense, by reason of necessity, or under compulsion.[64] In some instances, the perpetrator claims either to be the victim of a system which left him no viable alternative, or the defender of a system that he believes is under attack and which requires such strategies and tactics for its legitimate defense.[65] Those who claim to act under this motivation are as convinced of the legitimacy of their deeds as are those who defend the system under attack. Both categories of actors claim that their resort to violence is equivalent to measures taken by duly-constituted authorities in order to protect higher values or interests. Accepting these premises leads to the logic supporting the rationalization for their violent deeds. The consequence is that as values and perceptions change, so does the concept of terror-violence.[66] This alone should be enough to argue against the purely subjective approach in defining or analyzing terrorism.[67]
Ideologically-motivated actors, irrespective of whether they claim to defend or attack a given system, also perceive themselves as "justice-makers."[68] They consider their action, even when they recognize that such acts are abhorrent, to be dictated by circumstances beyond their control or forced upon them by the limitations of the political context in which they operate. The gradual psychological transformation, which such individuals undergo before resorting to forms of terror-violence, is further evidence of this belief.[69]
Ideologically-motivated actors seem to possess the following psychological characteristics: (1) heightened perception of oppressive conditions, whether real or imaginary;
(2) recognition that such conditions are not the immutable order of things, but amenable to change;
(3) recognition that a peaceful process designed to promote change is not forthcoming;
(4) decision that one must resort to violence to create or effect necessary change;
(5) recognition that violent acts need not be successful, but may merely contribute to initiating events that may lead to change, including the acceptance that dissemination of the cause is sometimes at least as important as the ultimate success of the cause;
(6) convinced that the goal outweighs the actual harm of the violent act, thus violence without guilt;
(7) recognition that "the cause" transcends the need to justify the particular act of violence, thus self-gratification merges with the purpose.
Two additional characteristics accompany transformation of consciousness: (8) The ethnocentricity of the values opposed to the desired change justifies the same ethnocentricity of the actor's values. This produces a polarization of values without a possible mechanism for reconciliation and inevitably leads to the logic of violence.
(9) The absence of resocialization of actors who do not conform to social norms stigmatizes the actors and prevents their reintegration into society. This further radicalizes and leads the actors, and others who emulate them, to further violence.
The net effect creates a final psychological shift: (10) Violence is a justifiable means to an end. The rationalized "cause," now legitimized, makes the actor both a hero and a victim.
Individuals so motivated are willing to take risks and to bear personal sacrifice to a far greater extent than the more calculating common criminals who are motivated only by personal gain. The ideologically-motivated actor does not weigh risks only against opportunities for success, but includes the abstract value of the cause as a necessary element of the equation. This is why traditional concepts of deterrence cannot be applied to ideologically-motivated actors.[70] The cost-benefit equation does not apply to ideologically-motivated offenders in quite the same way and strategies of prevention and control based on that equation are of limited effect.
Distinguishing between psycho-pathological individuals, and ideologically-motivated actors, who may manifest the same characteristics and who engage in the same conduct, is even more difficult.[71] The similarity of apparent psychological characteristics may explain why the media frequently depicts, and the public thereby perceives, ideologically-motivated actors as ruthless, brutal psychopaths. It may also explain why psychopaths are drawn to ideological causes.[72]
Individual ideologically-motivated actors engage in certain forms of violence on the basis of perceptions directly related to the choice of means and targets selected. These choices are in turn intrinsically linked to both ideological beliefs and the goals the actor feels compelled or committed to achieve. The individual profile and the type(s) of conduct in which he engages are: (1) The actor is, or believes himself to be, ideologically-motivated.
(2) The purported outcome is alleged or designed to achieve a certain power outcome or political goal.
(3) The means employed and the methods pursued are designed to have a psychological impact on the population at large or a selected segment thereof.
(4) The psychological impact produced is disproportionately larger than the actual harm.
(5) The tactical objective may be narrow or limited in scope, as is the actual harm.
(6) The tactical objective or target, whether it be a person or an object, is either chosen at random to highlight the system's and/or public's vulnerability, or it is carefully selected to avoid a negative public reaction, or backlash, or it is designed essentially to generate a positive or sympathetic public reaction.
(7) The long-range strategic objectives are considerably varied, but they generally are chosen to:
(a) demonstrate the vulnerability and weakness of the organs of power;
(b) attract broader public sympathy through the strategic choice of a carefully selected target that may be publicly rationalized;
(c) force the organs of power to react in a manner likely to create other conflicts and crises, or simply to bring them into ridicule or disrepute;
(d) cause a polarization and radicalization among the public or a segment
thereof; or
(e) force the organs of power into repressive action likely to discredit them and to bring new support to the actor's cause.
(8) Use of the mass media as a disseminator of the terror-inspiring nature of the act, or of the actor's political message, or both.
[9] The variety and diversity of the acts of violence are usually determined by the circumstances in which the action takes place.
[10] The perpetrators rely on the existence of a certain degree of public apathy, or sympathy, or societal/cultural tolerance for a certain level of violence. Thus, violent incidents increase in number, or intensity, or both, until they reach a point of diminishing returns, which is the level of social tolerance beyond which the public's reaction turns against the perpetrator's cause.
These characteristics are not necessarily the only characteristics that psychological, sociological, political and juridical disciplines can identify, but they represent a consensus of the views expressed by most experts on the subject.
States are abstract entities and as such they do not commit crimes.[73] They act for or on behalf of the state, and they determine its ideology and shape the means to achieve its purported goals. How the state is represented by a single individual as a head of state, or by a political party, or by an organized group, is largely immaterial for purposes of identifying the nature of the prohibited act. However, these are critical distinctions for purposes of assessing responsibility and for developing a means of prevention, control, and eventually, repression.[74]
The purported motivation of states in the commission of acts of terror-violence, committed by persons acting for or on their behalf, includes the goal of asserting or consolidating control over a given territory or population in order to destroy or eliminate opposition to a given political system or a given program of that system.
State-sponsored policies of terror-violence, as committed by individuals, have the following common characteristics: (1) The actor claims to act for, or on behalf of, the state or under color of law or authority and will either claim to be ideologically-motivated or claim to be acting under superior orders;
(2) The purported outcome is alleged or designed to achieve a certain power outcome [e.g., acquisition or consolidation of power];
(3) The means employed are designed to produce harm to one or more individuals, or a segment of society, or certain representative personalities, in order to achieve specific political or psychological goals;
(4) The actual harm produced is often disproportionately greater than publicly acknowledged, yet its effects are not always widely known;
(5) The actual harm produced is frequently concealed and the identity of the individual actor is almost always concealed;
(6) Reliance on different actors, and segments of actors within the system may serve either to conceal the source of the action or to prevent the imposition of responsibility;
(7) The action may be the product of one or more government officials abusing their authority, or misconstruing the directives or wishes of their superior.
Thus, it is clear that there are certain similarities and dissimilarities between ideologically-motivated individuals who act either for or against the politically constituted system, irrespective of the constitutionality or legitimacy of that system. Once again, the adage that "what is terrorism to some is heroism to others" is true. This is why a policy of prevention and control of all forms of terror-violence should not be predicated exclusively, or even primarily, on subjective factors. Rather, prevention and control should be based on the relatively objective identification of specifically proscribed conduct, equally applied, irrespective of whether individuals are acting for or on behalf of a state. Such a policy reduces subjectiveness, promotes consistency, and symbolizes rejection of unlawful violent means, irrespective of the reasons and ultimate beneficiaries thereof.
Comparing Individual and State-Sponsored Terroristic Motivation
Differences in strategy and outcome between individual terror-violence and state-sponsored policies of terror-violence are most significant in consideration of the element of public perception.
State-sponsored terror-violence usually seeks to avoid attracting public attention, whereas non-state-sponsored terror-violence seeks to publicize the act, the intended outcome, and the claims of the actor. State-sponsored terror-violence, including, for example, torture or other human rights violations,[75] is usually conducted in secrecy to avoid media coverage.[76] The dissemination of repressive state measures may also be initiated by state-controlled media or by the propagation of rumors designed to produce the desired effect. Unlike ideologically-motivated terror-violence which may have diverse desired outcomes, state-sponsored terror-violence has one primary objective: the establishment or preservation of power. Secondary objectives and intended outcomes are also, invariably related to the goal of re-establishing or preserving power.
Some who act for or on behalf of a state in committing unlawful acts of violence share the same psychological profile as individual offenders. But others have the same motives as common criminals–personal gain. These, therefore, come within the cost-benefit equation of preventive deterrence through effective criminal punishment. Effective deterrence will depend largely on whether individual positions of power insulate or shield such actors from detection and effective prosecution. Regardless of motivation, those who act for or on behalf of the state expect to do so with relative or total impunity, while individual ideologically-motivated actors accept the inherent risk of danger and punishment.
Psychopathic personalities may also be found among those acting for a state and among ideologically-motivated groups resorting to violence. They share the same characteristics and are seldom, if ever, deterred by criminal punishment. These personalities are more difficult to reveal and less susceptible to control, even by their own peer groups. For such individuals, early detection strategies and prevention are more effective than relying on traditional notions of general deterrence and punishment, particularly where such actors may invoke the defense of insanity or diminished criminal responsibility with a large measure of success.
The aim of a state, as represented by a single tyrant or by a ruling elite, or even by a popularly broad-based government, in its use of terror-violence is the same whether in the context of war or peace, and whether the means employed are against its own population or another, or segments of either one of these. This aim is the destruction of the will of its primary targets to resist control. Whether part of an armed conflict or not, state-sponsored terror-violence aims to destroy either active or passive resistance in either the population of the territory under control or sought to be controlled.[77]
Destroying Active Resistance and Nullifying Opposition
States employing terror-violence strategies against opposition groups must first identify the primary target persons or groups. Incidental targets may include persons or groups of similar beliefs or tendencies, members of other opposition groups, or any other class of persons which are related to members of the primary target. The intended message to all such persons is usually simple and clear–that such harm will also come their way unless they abandon their course of action and submit to the state's control, or refrain from supporting, sustaining or succoring those who are members of the primary target group.
The forms of harm inflicted on members of the class constituting the incidental target include a variety of means, which are usually explicitly or implicitly prohibited by international human rights norms and standards. In addition, the acts and resulting harms are also prohibited by national laws, unless said laws were deliberately changed or manipulated to fit the needs of the state, or unless such laws are simply ignored or unenforced, and thereby ineffective under the ruling regime.
Arbitrary arrest and detention, torture, extrajudicial executions, confiscation and destruction of property, restricted freedom of movement and travel, and the right to leave and to return to one's country are examples of unlawful state-sponsored measures. The most recurring form of unlawful act is torture. Its use accomplishes three purposes: it may secure information, it serves as a means to terrorize others, and it inflicts punishment upon the victim. The internal criminal justice system is seldom effective in preventing and controlling such egregious crimes, necessitating development of other international enforcement techniques in order to prevent and control such behavior. Barring effective international enforcement, such conduct will all too often go unpunished. In response, such unlawful conduct by state agents may also trigger responses by supporters of the victim and opponents of such state policies, which may include additional unlawful acts of terror-violence.
The conflict between law as an instrument of power and its moral-ethical underpinning is nowhere more evident than in the use of unlawful violence to resist unlawful violence.[78] The distinction can only be drawn by the moral-ethical foundations of the positive law, which is violated by the protagonists of both positions when they engage in prohibited conduct. Extreme situations, made somewhat clear by others, may ultimately be dependent upon, or arguably nothing more than, value-judgments.
Destroying Passive Resistance and Asserting Control
Peacetime use of terror-violence against passive resistance arises when a sweeping policy is implemented, necessitating drastic changes in the political, social and economic structure of the state. In such cases, the government may lack the persuasive power or resources to achieve the desired policy changes without employing violent or repressive tactics. As a result, the state may be compelled to resort to terror-inspired violence by its own inability to achieve its goals, thus attempting to force the population to engage in the process of change. In this context, selection of individual or collective targets is particularly arbitrary. The primary target of the acts of terror-violence may be a class of persons who are now willing to cooperate in the state's programs. Likewise, a class of people may also be identified for direct coercive action on a selective basis to further the transformative programs of the state. Such coercive means are also designed to instill terror in other groups, either in order to maximize their compliance, or to enhance the group's general submissiveness to the regime in question. At times, the state may allow such "terrorism" to be performed by unofficial groups supporting the regime, or by public officials acting in their alleged private capacity.[79]
It is noteworthy that in instances of state-initiated terror-inspiring strategies, the media never enjoys much freedom, if any at all. The mass media is invariably controlled and manipulated to serve as an instrument of the state's policies. Control and cooperation are indispensable to the effective implementation of such state policies. Conversely, it must be emphasized that a free media carrying out its responsibilities is one of the most effective bulwarks against such state policies, not only because it deprives the state of the terror-inspiring means of disseminating the effects of their policies and practices, but because it also counteracts state-initiated terror-inspiring strategies by exposing them.
The principles of state responsibility and the obligations of states under international human rights norms are applicable to such activities, but their effective enforcement is lacking in these situations.[80] The outcome is that such instances of state-sponsored terror-violence remain uncontrolled and unpunished, yet the international community may condemn individual acts of terror-violence committed as a response to these and other forms of human rights depredations. The lack of legal and moral symmetry is glaringly obvious in such cases and it erodes, if not destroys, the assumption of legitimacy upon which the law is founded.[81] Without a legitimate foundation, voluntary compliance with law dwindles or disappears, leaving only a thin veneer of form and little or no substance at all. The world community cannot, therefore, expect a much higher level of compliance with international norms prohibiting terror-violence by individual actors when qualitatively similar state-conducted or state-sponsored violations go unpunished. What logic, reason, or argument could one have presented to a South African who suffered under Apartheid,[82] or a Palestinian who lives under a hardship of military occupation, to refrain from acts of terror violence when all the violations and abuses that occur in these territories against the indigenous populations remain unchecked, and worse yet, when these regimes assert legal justification for their violative conduct.[83]
If there is to be a lawful international order, which induces voluntary compliance with its norms, then these norms must apply equally to all transgressors. Might cannot make right if law is to be the difference between tyranny and civilization.
Counter-Strategies to Terror-Violence: Controlling the Individual Through Penal Sanctions
A basic postulate of criminal law is that, as an instrument of social control, it employs socially accepted coercive strategies in an effort to obtain legally justifiable and valid social goals. That postulate is predicated on the assumption that society, having made value-judgments concerning the significance of certain social interests which it seeks to protect and preserve, may resort to coercive means in order to achieve its legitimate essential goals of protection and preservation of those social interests through justifiable legal means.
These social interests reflect certain basic values, such as preservation of the social order and protection of individual members of society from unwarranted harm. The ideologically-motivated offender perceives, rightly or wrongly, a basic value conflict with these criminal laws, thus evading the issue of the individual harm he produces. Rather, he focuses upon the legitimacy of the social or political order he attacks. Such a person perceives the violation of a criminal law as a clash of ideologies or as a clash of morality. He believes that the conflict is necessary or unavoidable and ignores its harmful consequences. Thus, if the victim is a person who holds political office, or has a symbolic or representative capacity in the system attacked, then the harm caused to such a person is deemed justified as punishment or as self-defense. However, if the victim is an uninvolved person who is harmed as a result of random violence or by accident [e.g., the innocent bystander], then the offender rationalizes the result as a political necessity, or as a mistake or mishap, and thus deems it excusable. The actor blames the system under attack for causing or compelling the violent act that produced the harmful result. It is, of course, a rationalization process, but it emphasizes the fact that criminal sanctions are irrelevant to that intellectual process. The ideologically-motivated offender is essentially unconcerned with the fact that he is committing a violation of criminal law. Consequently, only preventive control measures can effectively limit that person's decision to commit or to refrain from committing such a criminal violation. In that respect, however, the sanction of the criminal law can only be effective if the personal risks which the actor may incur outweigh the importance of the political objective sought to be achieved. The effectiveness of the criminal sanction is relative to the personal commitment of the actor to his ideological purpose in light of the importance that he attributes to the contemplated act. Consequently, attention must be directed toward the criminal sanctions employed and their application to such offenders in order to assess their effectiveness.
Criminologists, penologists and other experts of the criminal justice systems of the world contend that in such cases, imprisonment has failed as an instrument of social control and resocialization. It should be reconsidered.[84] Some experts maintain that imprisonment should be abolished altogether because it has generally failed even in the context of common crimes. As a result, there is a trend in many states toward reducing prison sentences and developing alternatives to imprisonment. The question arises, therefore, as to whether imprisonment is still a valid means of controlling violent behavior and, in particular, ideologically-motivated violent actors.
Theories of Punishment and Their Application to Terrorists
Theories of punishment and rehabilitation are predicated on a quasi-medical model, which assumes that a person placed in an institutional setting, will be cured or resocialized once released. Irrespective of the merits of this theory, which is now widely and uniformly discredited because of its failures, it is particularly inapplicable to the ideologically-motivated offender. Essentially, such a person will remain anti-social even after release because he is opposed, in whole or in part, to the very social system into which he is to be resocialized. There can be no success in resocializing one whose basic values are fundamentally opposed to the preservation of the very system he is fighting. (1)Deterrence[85]
Criminal sanction is considered a deterrent when its general effect outweighs the benefits of the contemplated transgression of the law. The special effect of deterrence is felt when, in the evaluation of a given transgressor, the particular penalty outweighs the benefit derived from the violation. In the case of the ideologically-motivated offender, such evaluation is made in light of the degree of personal commitment the individual possesses, as compared to the ideological values or goals sought to be achieved. In this evaluative framework, two other factors must be considered: [a] the tactical importance of the objective to be attained by commission of the violation; and [b] the risk of neutralization resulting from the actor's apprehension and detention.
For a committed ideological offender, the threat of imprisonment is counterbalanced by the importance of the objective to be attained by perpetrating a given act of violence. Even the consequences of capture and imprisonment include an opportunity to obtain valuable publicity of the willingness of those holding such ideological beliefs to sacrifice themselves on behalf of the cause. Thus, merely choosing a sufficiently important target satisfies the first of these factors. The second factor may be achieved when the target is secondary to the publicity gained by the act. The deterrent effect of imprisonment is therefore largely ineffective.
(2) Retribution or lex talionis
Retributive justice is also part of social justice in that it redresses an imbalance between the victim and the aggressor, an imbalance occasioned by the aggressor's action. There can be no effective deterrent value to criminal sanctions in the absence of a retributively punitive element. Thus, to the extent that the punitive element is indispensable to deterrence, retribution cannot be ignored. In light of this conclusion and with respect to the ideologically-motivated offender, rehabilitation is inapplicable and deterrence is largely ineffective. The punitive theory remains the only effective criminal sanction, although even it carries the seeds of its own limitations.
The punitive element of criminal sanctions may well be the principal basis upon which to mete out effective punishment to the ideologically-motivated offender. It may be the only way to redress the imbalance created with respect to the rights of the victim. Any effectiveness such criminal sanctions may bear is destroyed if those who impose punitive consequences are tainted by the effect of their own unlawful conduct.
In essence, there is a form of retributive justice, which is not repressive injustice. It is, nevertheless, important to realize that retributive justice, which is a response to instinctual justice, must balance the social and individual need for vengeance against certain standards of humaneness. The values of each society will determine that balance, subject to the standards of humaneness achieved by world community norms and standards. As a matter of criminal justice policy, it is better to err on the side of humaneness than on the side of retributiveness in order to avoid the martyrdom with which the offender might be endowed by excessive or severe punishment. On the other hand, leniency should not reach a level that would remove all retribution from the criminal sanction, since retribution is the principal ingredient of deterrence–no matter how effective.
(3) Incapacitation.
The premise of incapacitation is that the offender is dangerous and must be neutralized in an institutional setting in order to prevent repetition of similar antisocial behavior. The problem is one of predicting the offender's future threat to society on the basis of prior conduct. A seductive, yet deluding appeal, is present in this approach of prophylactic punishment, whereby the predictability of dangerousness is based on past conduct. This is a hazardous guessing game, all too often based on little more than hunches derived from general perception. The length of imprisonment for an ideologically-motivated offender compounds the problem, by the fact that penalties must be meted out for crimes actually committed and not for foreseeable crimes. Incapacitation serves as a control device only as long as a person is imprisoned.
(4)The Death Penalty[86]
Throughout the world community, the death penalty has been under attack since the late sixteenth century. The death penalty has already been abolished in a number of states and it is rarely applied even where retained. Since the end of World War II, it has seldom been employed in cases of international terrorism. The incapacitating nature of the sanction is unquestionable, but it is this very finality of the sanction that has raised serious moral questions against its use. Indeed, whether the death penalty is or is not a cruel, unusual, or inhumane punishment continues to be debated. More troublesome is the question of whether its deterrent effect is real or merely presumed. Its use is ultimately governed by a fundamental social value judgment.
The death penalty's finality, which casts doubt on its use, also serves as its very advantage. It removes the individual as a plausible target for release and thus, theoretically precludes further "terrorist" acts by fellow "terrorists" attempting to secure the actor's release. Several factors, however, mitigate against the death penalty as a policy choice. First, it is seldom if ever employed, and it applies to only a limited number of violations. Second, it tends to make martyrs of the executed person and thus brings sympathy to the deceased and his movement. Third, it is offensive to public morality and is rejected by a large segment of the world population. Fourth, its use tends to discredit the society that employs the death penalty as revenge against individuals. Lastly, it diminishes the moral authority of the state that seeks to enlist public support against violence.
International Cooperation and Preventive Law Enforcement
Although the deterrent sanctions available are of limited value, there is no question that, whenever possible, the intellectual authors and perpetrators of terror violence must be apprehended and punished. However, due to the character of their activities and inherent weaknesses in the international enforcement scheme, such offenders often succeed in evading prosecution, mostly by escaping from the state in which their crimes were committed.
Acts of terror-violence are either international crimes or crimes under the domestic laws of almost all countries in the world [or both]. Only a few regimes that conduct, sponsor, or support acts or policies of terror-violence exclude such acts from their own rule of law or simply do not enforce existing law. Thus, the question is not whether legal norms exist or whether such norms are sufficient, but whether they are enforced either internationally or domestically.[87]
The Machinery for Cooperation
Treaties, customary practice, and the national laws of states establish the basis for international cooperation in the prevention and suppression of criminality. The maxim commonly referred to in this context is aut dedere aut juticare.[88] The state's duty is restricted to the prosecution or extradition of the alleged offender. This duty is an extension of the state's responsibility for the prevention and control of violence. The failure of a state to carry out such a duty can only frustrate the effectiveness of any domestic or international crime control scheme. Thus, the international duty to extradite or prosecute becomes a significant factor in assessing the effectiveness of the domestic and international prevention and enforcement scheme. It should be observed, however, that the apparent principal impediment to this international duty is the "political offense exception" to extradition and inter-state cooperation in penal matters.[89] The real impediments, however, are the differences in ideological values among states and the political will of governments in carrying out such a duty to prosecute or extradite. The existence of certain injustices, and the policies and practices of certain states which violate fundamental human rights, heavily impair the burden of those states seeking to carry the duty to prosecute or extradite. The duty is a difficult, if not at times, an impossible one.
The Political Offense Exception [90]
Not all acts of violence are committed with a view toward achieving a political or power outcome. Indeed, certain acts of terror-violence may be committed as a last resort, by reason of necessity or self-defense. These cases arise whenever the actor's fundamental human right to personal freedom and safety is the object of serious and repeated repression, which by reasonable standards, can only be averted through the commission of an act of violence. Nevertheless, persons who commit acts of violence against others as a means of safeguarding themselves or others for humanitarian or political reasons violate positive law. However, such actors may have a valid claim to the defense of necessity, supporting the mitigation of any punishment. This is one justification for the preservation of the political-offense exception in extradition.
Not all states share the same form of government, nor agree on the means to be employed for preservation of their internal order. Thus, acts which violate certain positive laws in one state may be deemed justified in other states. In addition, states may not wish to use their powers to act against certain ideologically-motivated offenders when states believe that the issues at stake involve a political or value judgment they support, or about which they prefer to remain neutral. Finally, states may, for political or humanitarian reasons, be supportive of the causes or values adhered to by the ideologically-motivated offender. Thus, states may exercise their prerogative in denying extradition whenever they deem that political or humanitarian necessity motivates the actor's criminal act.[91] It is essentially in recognition of this consideration that the emerging international duty to extradite in international criminal law is an alternative to the duty to prosecute. These alternatives have yet to be effectively carried out in the practice of states.
All states presently exclude political offenders from the scope of extradition, but a trend has developed to restrict application of this exception and exclude it with respect to international crimes. This is termed an "exception to the exception."[92] This trend, thus far, has extended to individual ideologically-motivated terror-violence acts, but has not yet fully encompassed those who engage in such conduct for and on behalf of a state. This lack of equal application is one reason why the policy does not have the credibility and applicability that it should.
In the absence of an absolute duty to extradite or prosecute all international criminal law violations, and, in the absence of a clear policy on the defense of necessity in exoneration of responsibility or in mitigation of punishment, the effectiveness of the international and domestic control schemes are necessarily limited. It must be concluded, finally, that the weaknesses of any scheme for the control of violence are compounded by the opportunity of evading that scheme altogether, by resorting to safe-havens or to countries from which the likelihood of extradition is remote or non-existent, or where the prospects of a trial and punishment are equally remote or non-existent.[93]
Individual non-state-sponsored terrorism, as well as other forms of lower level violence with international ramifications, are a challenge to states with respect to the lawful responses they can engage in as a form of legitimate reaction.[94] The essential problem is that such individual actors will usually either seek refuge or hide in another state which is sympathetic to their cause. Without the cooperation of such states, it is impossible for the reacting state to proceed against such individuals without violating some aspect of international law, in particular Article 2 (4) of the United Nations Charter and the prohibition against aggression.[95]
Responsible state measures would have to fall under the doctrine of self-defense as enunciated in Article 51 of the United Nations Charter.[96] Notions of pre-emptive strikes and reprisal action, intervention and interdiction, and direct or indirect attacks upon states where such individuals may be found, have yet to be resolved under international law.[97]
Conversely, sanctions against states in violation of international law are permissible, but sharply circumscribed by the law of the Charter and its application through the Security Council where five states still hold the veto power. Some states have, on occasion, engaged in isolated instances of reprisals. But even the successful intervention on humanitarian grounds have raised larger issues of legitimacy and legality. To a large extent, such unilateral reprisals and interventions only underscore the failure of the international legal control system.
Control of State Terrorism
Generally, sovereign states are subject to few international legal controls within their own territory, except to the extent that they are limited by international law in some aspects of the exercise of their sovereignty. A number of international conventions relating to human rights presently exist to protect the security of individuals.[98] Signatories to such conventions are bound to refrain from certain actions, even against populations under their sovereign control. The implementation of such rights are limited throughout the world.[99]
Assessment of Enforcement Means
State terrorism is subject to few sanctions or controls. The possibility of sanctions exist in the following ways: (1) Repeated instances of state policies and practices constituting widespread and serious violations of human rights may result in a claim by another state of a right of humanitarian intervention to end such conduct;
(2) Repeated instances of such state action may result in United Nations intervention and the eventual imposition of sanctions;
(3) Such state action may also result in economic and diplomatic sanctions by other states;
(4) Such offending states are subject to the customary rules of state responsibility for wrongful conduct, even though such sanctions are limited only to financial compensation or damages;
(5) Individuals acting for or on behalf of such offending states are subject to individual criminal responsibility, even though its application has historically been limited and sporadic.
It should be noted that the effectiveness of any potential sanction against a state, or those acting for it, inevitably depends on the concerted action by other states and that has yet to become an established practice of the world community.
State Responses to Individual Terror-Violence and the Rights and Responsibilities of Other States
There are essentially three types of responses in which a state may engage; however, each raises questions of international law violations. Each involves the balancing of various United Nations Charter norms, including Articles 2 (4), 51 and 52 and other conventional and customary norms of aggression and self-defense.[100]
An analysis of these norms is beyond the scope of this article. What is outlined hereinafter are certain forms of intervention based on contemporary events and their related questions pertaining to the rights and responsibilities of states. Situation A: The affected state acts against the perpetrator of an act of terror-violence, or the perpetrator's support group, and the affected state's responsive action takes place in another state.
Situation B: Action by an affected state directed against another state, which supported an action of individual terror-violence.
Situation C: A "liberation organization" acts against a state with the support of another state.
Situation D: A "liberation organization" acts against the economic interests or individual targets of the state against which it is operating, but these actions take place in another state.
All of these situations raise the question of whether an act of aggression may have taken place against a given state, whether the response by one state against another falls within the doctrine of self-defense, and whether the response was proportional. These situations highlight the failure of the international community to adequately define the scope of actions of "liberation organizations," the support such organizations may receive from other states, and the scope of permissible responses by the affected state or other states. During the decolonization efforts of the 1960s, the United Nations justified a resort to armed struggle in order to attain what it considered a legitimate goal. Unlike the Geneva Conventions of 1949[101] and its 1977 Protocols,[102] which defined the conditions required in conflicts of a non-international character, the various United Nations' resolutions recognizing the legitimacy of armed struggle in the context of decolonization do not address the question of appropriate means for such armed struggle.[103]
In addition, nowhere is there a clear definition of what constitutes a legitimate liberation organization. By inference, one can assume as an emerging custom, that a legitimate liberation organization is one so recognized by the United Nations once it has granted observer status to the liberation organization. Other criteria include: that such an organization have a large following within or outside the state, that it possesses a political machinery capable of expressing both the political will of its struggle and to carry out international obligations, and that it has a military arm engaged in violence against the oppressive state commanded by a military structure willing to abide by the international regulation of armed conflict. The acceptance of such criteria necessarily excludes self-styled groups or criminal organizations choosing to use the label of "liberation" in pursuit of their criminal goals. The fact remains, however, that no definition of what constitutes a legitimate liberation organization, and its consequential rights and obligations under international law, exists except for the customary and conventional regulation of non-international armed conflicts.[104] Consequently, the parameters of international and military action remain undefined, especially with respect to actions outside the territory intended to be liberated and against other states. There is also a question of whether "liberation organizations" have a privilege of self-defense under customary and conventional international law. There is no satisfactory, let alone definitive, answer to this question.
Similarly, there are no satisfactory answers with respect to the legal obligations of states which allow a "liberation organization" to use its territory to carry out its armed conflict against another state. The regulation of armed conflicts, whether customary or conventional, which presumably apply to "wars of national liberation" and other types of conflicts of a non-international character, are presumed to be normatively adequate to deal with the manifestations and ramifications of these cases. This presumption is far from true. The broad range of problems extends from what was the self-evident and legitimate right of Afghan[105] resistence to the Soviet military occupation during the 1980s to the debatable claims of the ETA's use of terror-violence in Spain, ostensibly to secure independence of the autonomous Basque from Spain. Furthermore, the practices of liberation groups and states are frequently in contradiction with the very norms on which they base the legal legitimacy of their actions.[106] The same conflicting political and value-oriented judgments are as apparent in this context as they are with respect to ideologically-motivated offenders acting as individuals, or as part of small groups, in the context of other forms of political violence.[107]
Assessing Terrorism into the New Millennium[108]
Two thousand years ago, the Zealots Sicarii assassinated Roman citizens in Judea, and in particular in Jerusalem, in order to bring an end to their colonial rule.[109] The Roman governor of Palestine retaliated against these terrorists of the time by ordering the death of all zealots, banning Jews from Jerusalem, and destroying the Second Temple.[110] History has never clarified whether the zealots were "terrorists" or "freedom fighters." The same question can be asked about the Palestinian "freedom fighters." Indeed, two millennia later the international community still faces the dilemma that "what is terrorism to some is heroism to others."[111]
During the last thirty years, many acts of terror-violence have occurred in the context of armed conflicts, specifically in the context of de-colonization and wars of national liberation.[112] At first, these acts were labeled "terrorism" and then war crimes. To enhance compliance with lawful uses of force in these contexts, Protocol II to the Four Geneva Conventions of August 12, 1949 extended pre-existing legal protections to combatants and civilians in the context of non-international armed conflict.[113] That legal development did not however reduce the unlawful violence that occurred in these types of conflicts. The reason may well be that unlawful terror-inspiring methods used by national liberation fighters were the most effective means available to them to combat the more powerful colonial powers. Furthermore, because of the inherent political nature of these conflicts, the use of terror-violence became hopelessly mired in politics. Thus, the legitimacy of the cause seeped into the illegitimacy of the means employed. In short, it was a reversion to the Machiavellian concept that the "end justifies the means."
Though most armed struggles for national liberation ended in the 1970s, new ones emerged, which concerned the rights of self-determination by ethnic groups seeking cessation from the states in which they lived.[114] Regrettably, the world community remained unable to find ways to peacefully resolve these conflicts, which gave rise to massive victimization.[115]
The latter half of the twentieth century, extending to the present, witnessed an extraordinary large number of internal conflicts and civil strife, during which massive victimization occurred.[116] The acts that produced this victimization constitute the crimes of genocide,[117] crimes against humanity,[118] and war crimes.[119] These acts however could also be characterized as acts of terror-violence.[120]
Since the 1960s, however, international and national concerns have been almost exclusively focused on acts of terror-violence committed by ideologically motivated individuals and small groups, almost to the exclusion of state-sponsored terror-violence.[121] However, state-sponsored terror-violence, particularly when carried out by repressive regimes, is estimated to have caused more than 70 million casualties during the twentieth century.[122] In contrast, it is estimated for the same time period that some 100,000 casualties resulted from attacks by individuals and small groups that comprise the category of "terrorists."[123] Comparing numbers like these is probably neither relevant nor morally valid. However, it provides a basis for assessing the extent of the harm in order to allow for the development of appropriate means to prevent, control, and suppress these criminal activities. It should be noted that while state-sponsored terror-violence by far exceeds the harm done by individuals and small groups, sometimes individual acts of "terrorism," such as an assassination, can have consequences that far exceed the initial harm. For example, the assassination of Austria's Archduke Ferdinand in Sarajevo by a Serb extremist brought about World War I with all its attendant consequences.[124]
The imbalance of attention given by the international community to acts of terror-violence committed by individuals and small groups as opposed to states needs further reflection. Certainly, that imbalance is not a product of the qualitative nature of the violent acts or their terror inspiring effects. Rather, it can be attributed to the asymmetry between the power of states and the powerlessness of individuals who oppose the state irrespective of their legal or moral claim of legitimacy. One explanation is revealed in a story recounted by St. Augustine of a pirate who was captured by Alexander the Great. In response to the question of how he dare molest the sea, the pirate replied to the Macedonian leader, "(h)ow dare you molest the whole world? Because I do it with a little ship only, I am called a thief; you, doing it with a great navy, are called an emperor."[125] Another explanation is that crimes committed as part of state policy or by agents of states are not considered "terrorism" because they are labeled differently. Thus, the crimes of the Nazi regime were labeled "crimes against humanity."[126] One reflection that can be made in this context is that legal labels are of little relevance unless they conform to the manifestations of an actual phenomenon, are capable of conveying the predictability of deterrence, and result in consistent application. When the label of the offense and its legal consequences are uncertain, the legitimacy of the prohibition is tarnished and called into question.
The international community's response to manifestation of individual and small group acts of terror-violence has traditionally been influenced by sensational events.[127] In 1934, a Croatian nationalist assassinated the French statesman Jean-Louis Barthou and King Alexander of Yugoslavia in Marseilles.[128] This event induced the League of Nations in 1937 to adopt the first convention on terrorism.[129] Twenty-four states were signatories to this convention, though it is telling that only one state, India,[130] ratified it, even though it was not at the time fully independent.
The growth of civil aviation after World War II was extraordinary. As a result, civilian aircraft proved a vulnerable target for hijacking and sabotage. These attacks made a large segment of international society vulnerable to random and unexpected threats. In the wake of repeated attacks on international civil aviation, terrorism became a feared feature of modern life.[131] The international community reacted to the large number of aircraft hijacking and sabotage incidents with fear and determination, resulting in a number of international conventions adopted between 1969-1988.[132] However, enhanced security in airports[133] and on planes as well as the effective use of metal detectors have since then significantly minimized the occurrence of these attacks.[134]
A rash of assassinations and kidnappings of diplomats from the 1960s to the 1990s brought about the adoption of several multilateral conventions.[135] However, these conventions have not been entirely effective in preventing these acts as evidenced by the 1998 attacks against the United States embassies in Nairobi, Kenya, and Dar-es-Salaam, Tanzania.[136]
That same time period also witnessed a rapid increase in the kidnappings of civilian hostages for ransom, mostly business persons and their families. This brought about the adoption of a specialized United Nations Convention in 1979.[137] This convention however did not decrease these attacks. Rather, a reduction in the taking of hostages for ransom resulted from more effective precautionary and security measures that were adopted by the business community.
Terrorists aim at particular political results, which depend in some part on the support of public opinion. When the general public becomes vulnerable to these attacks, it is not likely to give these causes the support they want. Consequently, there is a point of diminishing returns that terrorists reached with hijackings and kidnappings that may well be credited with the reduction of these attacks. The terrorism of the last century depended extensively on media coverage and the dissemination of the perpetrators' claims, as well as exposing the inability of the state to prevent their actions. Thus, they sought to achieve power outcomes through the manipulation of the media, or by exploiting the media's attraction to sensationalism.[138] But, as the media became more savvy and as responsible journalism curtailed some of the manifestations of sensationalism in the coverage of terror-violence incidents, the media impact waned. Consequently, attacks motivated by media impact reduced.
While the objectives of terror-violence remain somewhat constant, namely to achieve political or power outcomes, the means by which such violence is carried out constantly evolve. Nevertheless, contemporary societies remain highly vulnerable to conventional means of attack, as evidenced by the 1993 bombing of the World Trade Center in New York,[139] the 1995 bombing of the Federal Building in Oklahoma City,[140] and the 1998 bombings of the American embassies in Kenya and Tanzania.[141] As such, even though more advanced means of attack exist, terrorists still depend heavily upon conventional explosives as their weapon of choice. One reason is that explosive materials can be easily purchased and assembled into bombing devises. Moreover, techniques about bomb-making are readily available, even on the Internet.[142]
As the arsenal available to today's terrorist expands, many of them are believed to have become more sophisticated in their ability to carry out more devastating acts of terror-violence. Governmental and societal fear are thus enhanced by the new threats against, for example, infrastructure, public and private buildings, and transportation systems.[143] Indeed, attacks upon power plants, water and sewage filtration centers, and communications networks have the potential to cause large-scale damage and havoc to civil society, creating significant physical, environmental, and economic damage.[144]
New vulnerabilities have also developed in the last decade as a result of the risks associated with the use of weapons of mass destruction by both state actors and their potential use by non-state actors. These risks created a worldwide concern that effective responses to those threats may be lacking, particularly because existing modalities of international weapons control and modalities of international criminal law enforcement are insufficient to prevent a catastrophic event from occurring.[145] Currently, no international convention addresses the issue of chemical or biological weapons for purposes of terror-violence. Moreover, conventions concerning the use of nuclear weapons for terror-violence fail to provide effective means to address the problem.[146]
While there have been numerous speculative writings on the risk of nuclear weapons used by terrorist groups, none has occurred. Indeed, the danger of terrorist groups turning to nuclear weapons is of low probability due to effective security measures by nuclear powers. However, the world community has received many threats of nuclear "terrorism" and occasionally encountered cases of nuclear theft feared to be commissioned for the purposes of terror-violence.[147] Similarly, it is important to note that while chemical and biological agents have been available since the beginning of the twentieth century, only two terrorist incidents involving chemical weapons occurred.[148] Regrettably, however, the Iraqi government used chemical weapons against civilians during the Iran-Iraq war in 1988,[149] which is a war crime under both conventional and customary international law.[150]
The international community also faces new vulnerabilities as the result of this era of expanding globalization.[151] One of these are the threats posed by what is now termed "cyber terrorism."[152] This new threat consists of computer generated attacks against adverse entities, whether civilian, corporate, or governmental, which affect aspects of our professional and personal lives and impacts on national and international security. Terrorist computer "hackers" are capable of destroying corporate computer files, accessing private database entries, falsely manipulating the stock market, rerouting transportation systems, intercepting military communications, accessing personal email accounts, disrupting banking operations, and manipulating government files. These attacks can also cause serious military consequences and even lead to war. The impact of these acts, while materially different from traditional attacks, such as bombing or assassinations, are capable of generating higher levels of insecurity and likely a more harmful impact on society.
As the metal detector and bomb detection have significantly reduced the occurrence of airline hijackings, other technological and scientific devices presently being developed will help us detect and prevent nuclear, chemical, and cyber threats.[153] Thus, technology may become the best prevention.
Governments are also improving their capabilities towards preventing and suppressing acts of terror-violence by increased international cooperation through bilateral and multilateral treaties. Indeed, the United Nations'[154] and regional organizations'[155] anti-terrorism conventions call upon governments to implement such increased efforts. Whether these approaches will be effective remains to be seen, because that depends largely on the political will of governments. It may also be that the strategies and tactics of terror-violence of the last four decades have seemingly run their course and that the new millennium will bring with it a new breed of terrorists and a new brand of "terrorism."
The ideologically motivated offender of the 1960s[156] will probably be replaced by new religious fanatics and political zealots of the 2000s who care not for the harmful consequences they can cause no matter how catastrophic. These types of personalities present a greater danger to society, but are more difficult to detect and deter. In addition organized crime groups may find the use of threatening catastrophic "terrorism" as a more profitable means to pursue their criminal ends.[157] These groups can also develop strategic alliances with terrorist groups, thus creating a dangerous multiplier effect.[158] These new terrorist threats to contemporary society's wide-ranging vulnerabilities necessitate a more determined will on behalf of the international community to effectively cooperate in detecting, preventing, and deterring potential perpetrators and prosecuting and punishing those who commit such crimes. Specifically, enhanced international cooperation is needed in the areas of extradition, mutual legal assistance, transfer of criminal proceedings, transfer of prisoners, seizure and forfeiture of assets, and recognition of foreign penal judgments.[159] Regrettably, the modalities of inter-state cooperation in penal matters remain at a stage that can at best be described as archaic.[160]
Complementing such international cooperation, national and local law enforcement must similarly work together towards preventing and responding to acts of terror-violence. Cooperation is necessary to apprehend the actors responsible for such violence. In addition, local authorities must be greater equipped to respond to the consequences of catastrophic terrorism.[161]
The threats of contemporary and future acts of terror-violence require more than traditional law enforcement techniques, and present-day modalities of inter-state cooperation. Effective prevention requires not only the strengthening of governmental efforts and cooperation, but a wide-range of new strategies which include employing the resources and capabilities of the private sector to supplement the efforts of governments, as evidenced by the fact that increased security measures taken by the business community have lowered the occurrence of terrorist attacks against the private sector. Another approach that has not yet been fully utilized is to follow the money trail. Acts of terror-violence, particularly those that could involve weapons of mass destruction and other techniques likely to produce harm of a catastrophic nature require funding beyond the cost of conventional weapons or explosives. Effective means of tracking funds, which usually follow the same paths as crime proceeds, have yet to be implemented by most governments.[162] Many governments lack the political will to pierce bank secrecy and to trace the movement of funds, even though this would be an effective means for preventing terror-violence attacks.[163]
Whimsical as the thought may be, every era has brought with it different manifestations of terror-violence and all have been absorbed and overcome by the societies in which they occurred.[164] Maybe the catastrophic threats we now perceive will never materialize, but, unlike the ostrich, we cannot bury our heads in the sand and pretend they do not exist. Perhaps, Professor Barry Kellman's admonition in a recent article is the best conclusion to this assessment: that we must think fearfully but act decisively, effectively, and legally to insure our collective security.[165]
Responses by different governments to these types of terror violence acts will necessarily vary depending on their capabilities and levels of readiness. As vulnerabilities increase as well as the potential for catastrophic consequences, so will the temptation by governments to increase the powers and mandates of law enforcement, intelligence agencies, and the military. The increased authority that will likely be bestowed on these entities to fight terrorism will inevitably have the effect of curtailing certain civil and political rights. A balance will have to be found in order to avoid losing hard won rights and liberties and democratic practices in the name of increased security for such threats. Perhaps more important is the need to avoid being overwhelmed by perceived threats and their eventual consequences which can make us not only lose sight of the need to preserve the rule of law and democracy, but which could also alter the nature of free societies and the quality of life within these societies. We must make sure that our concerns and fears do not become such that we lose cherished liberties and individual rights.[166] Demonizing terrorism and forecasting catastrophic results may prove as harmful as the threats sought to be averted. What is the correct balance is a challenge that we now face. Hopefully, we will strike that correct balance.
Policy Considerations on Inter-State Cooperation in Criminal Matters[167]
This volume contains all United Nations and regional anti-terrorism treaties and their penal provisions. States must adopt methods of cooperation in penal matters in order to effectively suppress, prevent and combat acts of terror violence. Inter-state cooperation in penal matters in necessary because criminal organizations practice on an international sphere. Such cooperation requires states to consider various policy considerations.
The same modalities and techniques of inter-state cooperation in penal matters are relied upon to enforce international, transnational, and domestic crimes. These modalities, which are independent of one another, are: extradition, mutual legal assistance in penal matters, transfer of prisoners, seizure and forfeiture of illicit proceeds of crime, recognition of foreign penal judgements, and transfer of penal proceedings. The order of their listing reflects the ranking of their level of recognition and application in states' practice. These modalities are independent of one another, and relied upon separately in the practice of states, which reduces their cumulative effect. As discussed below, they are rarely part of an integrated or unified text, either as convention or as part of national legislation. This lack of an integrated approach reduces the effectiveness of these modalities which can be best used as complementary to one another in order to avoid the gaps created by resorting to them singularly. Multilateral conventions on substantive International criminal law refer to them, but mostly in general terms. Specialized regional conventions developed mostly by the Council of Europe and the organizations of American States deal with these modalities in detail. They are also the object of bilateral treaties and national legislation.
Cumulatively, these modalities of inter-state cooperation are the foundation of International criminal law enforcement. Without them, international, transnational, and national crimes would be deprived of effective inter-state enforcement means.
International criminal law enforcement essentially relies on the indirect enforcement scheme,[168] whereby states carrying out their enforcement duties resort to these modalities. Multilateral conventions contain provisions on one or more of these modalities, but seldom do they provide detailed prescriptions for their application. Of all International criminal law Conventions, the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances contains detailed provisions delineating a state's enforcement obligations.[169]
International criminal law instruments do not, however, deal with international law enforcement cooperation except through Interpol. But in recent times, inter-governmental groups have been established to coordinate inter-state law enforcement activities. Among these are the Council of Europe's "Pompidou Group"[170] whose subject matter is drugs, and the "Trevi Group"[171] which operates at the Cabinet and sub-Cabinet level of representation for purposes of enhancing cooperation against terrorism. That group consists of some European States, the U.S., Canada, and Japan. Lastly, another group is the "Financial Action Task Force"[172] which deals with money laundering.
The work done by police and intelligence agencies is crucial to the prevention, control and suppression of international, transnational and national criminality. It should be encouraged, but legally regulated. Absent such regulation, preferably by international conventions, there are dangers inherent in unstructured and legally uncontrolled law enforcement cooperation which are likely to produce: human rights abuses,[173] violations of privacy rights[174] and, at times, breaches of national sovereignty.[175]
It should be noted that in the direct enforcement scheme which now exists with the International Criminal Tribunal for the Former Yugoslavia (ICTY)[176] and International Criminal Tribunal for Rwanda (ICTR),[177] some of these modalities are relied upon. They are: extradition, referred to as surrender,[178] and mutual legal assistance. By implication, the judgements of the ICTY and ICTR are to be enforced by all states because these bodies are subsidiary organs of the Security Council whose decisions are under Chapter VII of the United Nations Charter and binding on Member-States. Eventually, the International Criminal Court will also rely on these same modalities.[179]
Enforcement Assumptions and Policies
As stated above, substantive International criminal law so far relies on the indirect enforcement scheme by which international duties are incumbent upon states who have voluntarily accepted them by virtue of treaty obligations and who enforce these obligations through their domestic criminal justice processes.
The maxim aut dedere aut judicare: to prosecute or extradite,[180] which some see as alternative and others as cumulative,[181] provide states with a choice. But so far it is not clearly established that such a duty exists for anything but certain international crimes of a jus cogens character. Some, like this writer, maintain that the duty is a civitas maxima which obligates all states under general international law to prosecute or extradite for all 25 categories of crimes. But that is a progressive view. The problem with the aut dedere aut judicare principle is that it does not provide content. Presumably the two-prong duty is predicated on an unarticulated premise, namely that the prosecution is to be effective and fair, and that the extradition be to a state whose prosecution will also be effective and fair. But nowhere do we find a clear statement as to these premises, nor are there guidelines for the resolution of conflicts between states in case of disagreement as to the effective execution of the dual obligation to prosecute or extradite. Lastly, the general treaty obligation of "good faith" applies to states who are bound by treaty provisions concerning the duties of prosecution, extradition and mutual legal assistance. Thus, the implementation of these obligations remains imperfect for lack of norms.
To effectively carry out these obligations, states rely on international criminal procedural law, which relies, in turn, on modalities and techniques of inter-state penal cooperation. Any obligations, however, are limited to the extent and the manner in which these modalities are embodied in a state's respective domestic legislation. The very obligation to prosecute or extradite is, therefore, dependent upon what a state's national criminal justice system permits and is capable of executing.
International criminal law, however, has other international implementation mechanisms which include non-penal modalities that do not necessarily rely on domestic criminal justice processes. But these non-penal modalities are compliance-inducement mechanisms, whereas enforcement modalities rely on the coercive techniques of the domestic criminal justice processes of states and cooperating inter-governmental bodies like Interpol.
Integrating the Modalities of Inter-State Cooperation for the Prevention, Control and Suppression of International, Transnational and Domestic Criminality
The six modalities of inter-state cooperation arise under diverse law-making processes, namely: international, regional, and national ones. However, even within the context of these three law-making processes, the resulting product differs in scope and legal technique while lacking consistency and systematization. What is needed is the integration of these modalities into a comprehensive codification that would permit the cumulative and alternative utilization of these modalities to ensure their enhanced effectiveness. In this respect the national legislative approach adopted by Austria,[182] Germany[183] and Switzerland,[184] which integrates all of these modalities of inter-state penal cooperation, is a valuable model. Other countries are also considering the integrated approach in their codification reforms. Under this approach, the modalities of inter-state cooperation operate like multiple gears in a single gear-box, allowing states to shift from one modality to the next instead of being limited to only one gear at a time. This same approach is needed at the regional and international levels. While a number of regional and sub-regional multilateral agreements have been developed, their elaboration has been piecemeal. None of these agreements integrate the various modalities into a comprehensive, codified form of inter-state penal cooperation.[185]
At the regional level, the Council of Europe has been considering such an integrated approach since 1987 on the basis of a project developed by an ad hoc Committee of Experts. This committee convened twice at the International Institute of Higher Studies in Criminal Sciences in Siracusa, Italy. There, the Committee of Experts determined that the Council of Europe should integrate all of the European Conventions into a single, integrated code of inter-state penal cooperation. This conclusion was supported by a Resolution of the Council of Ministers of Justice in 1987. In addition, the Council of Arab Ministers of Justice developed such a model code in 1988. Regrettably, it has not received attention by the Arab governments, as those states have not yet made international penal cooperation a priority.
The integrated approach has been accepted at a relatively slow pace within international and regional organizations. This hesitation stems from the familiarity and comfort which government representatives feel toward the bilateral approach and with the process of gradually strengthening modalities in a piecemeal fashion. Efforts by a few scholars and government experts to spur the multinational integrated approach have been met with some reluctance in international conferences because some government representatives feel that such an approach may not be politically acceptable to their superiors.
Due, in part, to diplomatic timidity, regional and international organizations have not advanced beyond the fragmented or uncoordinated use of the modalities discussed above. This situation persists even though the resort to these modalities on a singular and unintegrated basis has not worked effectively and has been inadequate in coping with increased international, transnational and national criminality, particularly with respect to organized crime, drug traffic, and terrorism.[186] Consequently, international, transnational, and national criminal phenomena are not controlled as they could be due to this weakness.
It must be admitted, however, that this state of affairs is mainly due to the fact that government officials, whether in ministries of foreign affairs or justice, are not sufficiently knowledgeable in the field of international criminal law to envision better and more effective means of international cooperation. Instead, they persist in traditional ways, with their concomitant weaknesses, or they seek to develop less than lawful methods of accomplishing that which they can not seem to accomplish lawfully. These practices pose very serious problems in the field of international penal cooperation.
Furthermore, the administrative and bureaucratic divisions, which exist among the national organs of law enforcement and prosecution, impair the effectiveness of inter-state penal enforcement. National criminal justice systems consist of different sub-systems. The most common divisions are among law enforcement, prosecution, judiciary and corrections. In addition, within each sub-system, there are separate bureaucratic and administrative units. All too frequently, each of these sub-systems is a self-contained entity with its own peculiar bureaucratic and administrative exigencies with each having a life of its own.
As a result, each sub-system defends its respective turf and supports its own methods, goals and purposes; all of which leads to difficulties of integration, and ultimately, to the fragmentation of the criminal justice system. Conversely, criminal organizations and individual offenders are not similarly hindered by the inefficiencies of bureaucratic and administrative divisions.
The international response to criminal phenomena which does not s at national boundaries is piecemeal, divided, and ineffective. More significantly, few states make the effort to use all the existing modalities of inter-state cooperation and even fewer states seek to develop new modalities of cooperation in other fields. Such new modalities could include the following: i. sharing law enforcement intelligence;
ii. increasing teamwork in inter-state law enforcement cooperation;
iii. tracing international financial transactions;
iv. developing effective national financial controls to trace proceeds of illicit activities; and
v. developing regional "judicial spaces."[187]
None of the above, however, should be construed or applied in a manner that violates international and regional human rights norms and standards.[188]
A multilateral or regional integrated approach is an eminently desirable course of conduct, and both the Council of Europe and the United Nations could significantly contribute to the field of international criminal justice by developing such a model. Any such model should also include new approaches to the problems of criminal jurisdiction.
The United Nations General Assembly adopted a set of measures approved by the Eighth United Congress on the Prevention of Crime and Treatment of Offenders [Havana, August-September, 1990] which included the following: measures for international cooperation for crime prevention and criminal justice;[189] a model treaty on extradition;[190] a model treaty on mutual assistance in criminal matters;[191] and a model treaty on the transfer of proceedings in criminal matters. These model treaties are expected to provide a useful framework for states interested in negotiating bilateral arrangements in these areas; however, they are too general and are not integrated.[192]
The Organization of American States has, in the last few years, followed in the footsteps of the Council of Europe and developed, inter alia: (1) the American Convention on Human Rights; (2) the Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance; (3) various instruments concerning extradition, asylum and international penal law; and (4) the establishment of the Inter-American Drug Abuse Control Commission via the Inter-American Program of Action of Rio de Janeiro Against the Illicit Use and Production of Narcotic Drugs and Psychotropic Substances and Traffic Therein. Qualitatively, the European Conventions on Inter-State Cooperation[193] are moving into the stage of second generation, whereas the OAS and U.N. are still at the stage of first generation. However, we are now at a time when we need a third generation of international instruments.
Principles and Policies for the Increase in Effectiveness of the Indirect Enforcement Scheme[194]
In order to render the international system of prevention, control and suppression of domestic, transnational and international criminality more effective, the following recommendations are offered: 1. Recognition of the rule aut dedere aut judicare as a civitas maxima[195] and development of international minimum standards of compliance, including standards for effective, good faith prosecution and extradition;
2. Recognition of a ranking of criminal jurisdiction in this order: territoriality, nationality, passive personality, protected interest, and universality and development of rules and mechanisms for conflict resolution, including compulsory adjudication before International Criminal Court, the International Court of Justice or regional tribunals;[196]
3. Granting individual victims the right to initiate prosecution as partie civile, including countries other than that of their nationality;[197]
4. Codification of international and transnational crimes and their inclusion in the national legislation of all countries;[198]
5. Developing means by which to detect abuses of power by those public officials who may commit international offences or who, by purposeful omission, are derelict of their duties to enforce international criminal law;
6. Integrating modalities for inter-state penal cooperation in a codified fashion. This should be done in specialized international and regional instruments and in national legislation for application to international and transnational crimes, as well as to domestic crimes requiring inter-state cooperation;
7. Development of a convention on inter-state cooperation between law enforcement agencies setting forth the means, methods and limitations of such cooperation, including the protection of fundamental human rights and the right to privacy. This systematized approach should be included in an integrated code of inter-state penal cooperation;
8. The consistent and specific inclusion of the integrated modalities of enforcement in all substantive international criminal law conventions;
9. Development of new modalities of inter-state cooperation and enforcement mechanisms similar to those outlined above;
10. Development of education and training programs in international criminal law at the level of legal education as well as within public agencies[199] and specialization programs for judges, prosecutors and law enforcement officials in international criminal law aspects of their work. A specialized cadre of legal technicians should be developed in each government and within international, regional and inter-governmental organizations to draft instruments and provisions on international criminal law;
11. International, regional, inter-governmental and non-governmental organizations and academic institutions should develop educational, training, professional and practical materials in international criminal law which can be widely used by all professional categories;[200]
12. Development of networks of information and criminal justice data-sharing within states and as between states;[201]
13. Providing and requiring increased technical assistance to states;[202] and
14. Development of regional centers for the accumulation of specialized library materials, documents, and research with the capacity to provide technical legal advice to government and public agencies and to academic and scientific organizations.
All of the above recommendations must be applied in conformity with international, regional and national human rights norms and standards. This caveat is particularly important in light of some law enforcement branches. In this respect, it should be stated that the observance of human rights norms and standards does not reduce the efficiency or effectiveness of the criminal justice system. The inefficiency of criminal justice derives from a variety of other factors. Suffice it to observe that if any successful industrial or commercial enterprise, in today's world of modern management techniques, was administered like many of the criminal justice systems, that enterprise would cease to be successful and would eventually become bankrupt. The symptoms of the bankruptcy of our criminal justice systems are all too evident, from law enforcement to corrections, as almost every aspect needs reform.
Concluding Assessment on Inter-State Cooperation
Since the end of World War II, international, transnational, and national incidents of crime and the number of offenders have consistently increased. The distinction between the increase in the incidents of crime and the number of offenders is critical because any system of criminal justice is based on substantial compliance with the law. Thus, the system is only equipped to deal with a particular, limited number of offenders. As the number of offenders increases, the criminal justice system's resources become strained. Eventually, the system becomes unable to handle the increased volume of offenders and ultimately breaks down.[203]
At the inter-state level, other factors which have enhanced this phenomenon are the extraordinary ease of inter-state movement of persons and goods and the free-flow of financial transactions in a worldwide banking system that provides maximum flexibility and anonymity. National criminal justice systems, which are no longer capable of meeting their domestic challenges, must face the added difficulties of pursuing offenders, and seeking evidence in multiple states. However, the lack of expert personnel and the limited resources allocated by governments to such endeavors and to inter-state penal cooperation render these processes slow and ineffective.
Governments believe that the problems in extradition and other forms of international cooperation stem from approaches which tend to elevate the procedural rights of the requested person to the detriment of the process. The argument is not entirely without merit, but it is limited to occasional effects and ignores endemic and operational causes. One of these causes is the limited number of experts among judges, prosecutors, and administrative officials working in this field. They face a large volume of cases with limited resources and personnel.
Probably the most serious of all problems is bureaucratic divisions which burden the administration of criminal justice and sometimes paralyze the system. Even those law enforcement agencies which have exhibited increased capacity for inter-state cooperation have become less concerned with the proper application of the law. As some of these public officials engage in questionable or unlawful practices such as abduction, they compel greater procedural rigidity and tighter judicial controls. The cumulative effect of these and other systematic and operational deficiencies reduces the speed and effectiveness of the processes of inter-state penal cooperation.
Operational problems, though more visible, are not, however, the most serious causes of the systemic problems in interstate penal cooperation. Many states still favor bilateral treaties and make extradition and other forms of cooperation a consequence of, and contingent upon, their political relations. Thus, governments reduce procedural barriers to extradition and other forms of cooperation with friendly nations and increase these barriers with less friendly ones. Extradition and other forms of cooperation are therefore still a process of political accommodation. They should be a judicial process based on an international civitas maxima free from political considerations.[204]
A new approach is needed whereby modalities of inter-state cooperation are regarded as an objective and politically neutral international judicial process which preserves international standards of legality and human rights protections in its judicial and administrative workings. It is particularly important to understand that the protection of individual human rights is not and should not be placed in a confrontational relationship with the effectiveness of the process.
Multilateralism should replace the archaic, inefficient and politicized bilateralism, and all modalities of inter-state penal cooperation should be integrated. Thus, multilateral treaties and national legislation should integrate the following modalities: extradition; legal assistance; transfer of criminal proceedings; transfer of prisoners; transfer of sentences; recognition of foreign penal judgements; tracing, freezing and seizing of assets derived from criminal activity; and, law-enforcement and prosecutorial cooperation. Only then will these complementary processes work to the benefit of ensuring efficiency without sacrificing proper legal procedures and violating individual human rights.
Without the intellectual and technical contribution of scholars and experts and without the leadership of international and regional organizations, states will probably continue to pursue familiar courses charted by years of practice, even though that practice has proven unsatisfactory. Instead, states should explore new courses in the hopes of discovering the best route to a brave new world of effective inter-state penal cooperation.
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