The indefinable concept of terrorism

Journal of International Criminal Justice

Volumn 4, Issue 5, 2006, Pages 894-911

  Fletcher, George P ^a  

^a Columbia University School of Law ^*  (United States)

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EID: 33846663938     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mql060     Document Type: Article

References (55)

1. There are a few shared concepts that derive from the trade routes of old; coffee and tea usually bear the names of the countries of their origin.
2. T, Becker, Terrorism and the State: Rethinking the Rules of State Responsibility (Oxford: Hart Pub, 2006) (hereinafter cited as Becker).
3. See in this issue the contribution of T. Weigend.
4. In order to avoid repeated recitations of the relevant sources, I rely in this article primarily on the recent and comprehensive studies of the problem. For an extensive analysis of these resolutions by an author who shares a belief in their purpose, see Becker, supra note 2
5. and for a careful analysis of the problems of criminal liability under the various UN resolutions and existing state statutes, see Weigend, supra note 3.
6. See 18 USC 2339B(g)(6) ('[T]he term "terrorist organization" means an organization designated as a terrorist organization under Section 219 of the Immigration and Nationality Act').
7. GA Res. 54/109, 9 December 1999.
8. Ibid., at §1(b).
9. Weigend, supra note 3, note 80.
10. SC Res. 1373, 28 September 2001, §§ 1(b) & (c).
11. Ibid., at §4.
12. See J. Preston, 'Hurt By Hamas, Americans Sue Banks in the U.S.', N.Y. Times, 15 April 2006, A1
13. M. Gordon, 'Arab Bank to Pay $24 Million Fine', Washington Post, 18 August 2005, D3.
14. The relationship between crime and war has been a topic of my research and reflection since the first days after 9/11. See 'We Must Choose: Justice Or War?', Washington Post, 6 October 2001.
15. See also the analysis of the problem in my Romantics at War: Glory and Guilt in the Age of Terrorism (Princeton: Princeton University Press, 2002).
16. See the attempt to mix the categories in D. Kretzmer, 'Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defense?' 16 European Journal of International Law (2005) 171.
17. United States v. Quirin, 317 U.S. 1 (1942).
18. Geneva Protocol I (1977), Art. 51(3) ('Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities').
19. Third Geneva Convention, Art. 4(2) (defining the four conditions for members of militias to qualify as prisoners of war).
20. 371 U.S., at 31 ('Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.')
21. Geneva Protocol I, supra note 15.
22. US General Order No. 100, 24 April 1863 (the Lieber Code), Art. 20 ('It is a law and requisite of civilized existence that men live in political, continuous societies, forming organized units, called states or nations, whose constituents bear, enjoy, and suffer, advance and retrograde together, in peace and in war').
23. G. Jakobs, Strafrecht: Allgemeiner Teil: Die Grundlagen und die Zurechnungslehre (2nd edn., Berlin, NY: De Gruyter, 1993).
24. F. Muñoz Conde, 'El nuevo derecho penal autoritario. Consideraciones sobre el llamado "derecho penal del enemigo"', in A. Pelaez Ferrusca (ed.), La influencia de la ciencia alemana en Iberoamerica, Part I (Mexico City: Instituto Nacional de Ciencias Penales, 2003) 117.
25. For my previous thoughts on point, see my 'Citizens and Persons in the Jurisprudence of War', 2 Journal of International Criminal Justice (2004) 953.
26. In the aftermath of Hamdan v. Rumsfeld, 2006 Lexis US 5185, the Bush Administration was forced to recognize the applicability of Geneva Convention Common Article 3 to the detainees in Guantánamo. This does not guarantee an individualized determination of the detainee's dangerousness.
27. M. Mazzetti and K. Zernike, 'White House Says Terror Detainees Hold Basic Rights', N.Y. Times, 12 July 2006, A1.
28. In the United States Code, there is no single crime called 'Terrorism'. Chapter 113B of Title 18, titled 'Terrorism', encompasses a family of crimes.
29. R. Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), at 60-61.
30. The purpose of terrorism, he wrote, is 'to destroy the morale of a nation or a class, to undercut its solidarity; its method is the random murder of innocent people'. M. Walzer, Just and Unjust War: A Moral Argument with Historical Illustrations (3rd edn., NY: Basic Books, 2000).
31. 18 USC 2331.
32. See Weigend, supra note 3, note 80.
33. The account of the objective features of torture in the literature is very weak, largely because the International Convention Against Torture - and thus lawyers and scholars working in the area are preoccupied with the intention to inflict serious 'pain or suffering'. See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entry into force 26 June 1987), Art. 1.
34. See my account of the transformation of theft offences in 'The Metamorphosis of Larceny', 89 Harvard Law Review (1976) 269.
35. See the International Convention for the Suppression of the Financing of Terrorism, Art. 2, 9 December 1999, UN Doc. A/RES/54/109 (1999), (entered into force 10 April 2002), as reported online at http://www.un.org/law/cod/finterr.htm (visited 20 July 2006).
36. SC Res. 1566, 7 October 2004.
37. See Becker, supra note 2, at 85, note 8
38. Rome Statute of the International Criminal Court (hereinafter cited as ICCSt.), Art. 8(2)(a).
39. ICCSt., Art. 8(2)(b).
40. An indication of this intuition is the closing scene in the film Paradise Now (Warner Independent, 2005), which is designed to condemn suicide bombing but which seeks to create sympathy for the Palestinian protagonist by showing him about to blow himself up on a bus full of Israeli soldiers.
41. Hamdan v. Rumsfeld, 1006 US Lexis 5185.
42. See G.P. Fletcher, "The Hamdan Case and Conspiracy as a War Crime: A New Beginning for International Law in the US', 4 Journal of International Criminal Justice (2006) 442-447.
43. Military Commission Instruction Number 2, §6(A)(18). The full definition reads: (18) Terrorism a. Elements. (1) The accused killed or inflicted great bodily harm on one or more persons or destroyed certain property; (2) The accused: (a) intended to kill or inflict great bodily harm on such person or persons; or (b) intentionally engaged in an act that is inherently dangerous to another and evinces a wanton disregard of human life or intended to destroy such property; (3) The killing or destruction was an attack or part of an attack designed to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government; (4) The accused did not enjoy combatant immunity or an object of the attack was not a military objective; and (5) The killing or destruction took place in the context of and was associated with armed conflict.
44. The matter largely hinged on two small changes of language in the draft convention's Art. 18. Where the draft Art. 18(2) reads 'The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention', the Organization of the Islamic Conference (OIC) proposed this alternative - 'The activities of the parties during an armed conflict, including in situations of foreign occupation, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention'. (Emphasis added.) Likewise, in draft Art. 18(3): 'The activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention' - the OIC proposed changing the wording to, 'The activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are in conformity with international law, are not governed by this Convention'. (Emphasis added.) This would have the effect of broadening the scope of the convention to include state military action outside of an armed conflict. While the Israeli-Palestinian conflict would be the most obvious example, other ongoing conflicts such as those in Iraq and Jammu and Kashmir would also be affected by this proposed language. Becker, supra note 2.
45. It remains so as this article goes to press.
46. ICCSt., Art. 27(1)
47. SC Res. 1566 (2004), §3.
48. Becker, supra note 2, at 105-8.
49. K.R.Weiss and M. Landsberg, 'Gunman Kills Two at LAX; FBI Identifies Shooter as Egyptian-Born Resident of Irvine', Los Angeles Times, 5 July 2002, A1.
50. Avishai Margalit and Ian Buruma associate 9/11 with the Islamic hatred for the commercial, scientific and secular mind of the West. The attack on the Twin Towers - the great symbols of world commerce - cannot be entirely separated from the ideology of 'Occidentalism', which finds its primary expression in fundamentalist Islamic circles. A. Margalit and I. Buruma, Occidentalism: The West in the Eyes of Its Enemies (NY: Penguin Press, 2003).
51. B. Jenkins, 'ntentional Terrorism: A New Mode of Conflict', Research Paper No. 48, California Seminar on Arms Control and Foreign Policy (Crescent Publications, 1976), at 4.
52. Supra note 45.
53. On the concept of the Rodef - seriously misunderstood, in my opinion, by Yigal Amir - see my 'Punishment and Self-Defense', 8 Law & Philosophy (1989) 201.
54. For an exhaustive analysis, see B.K. Freamon, 'Martyrdom, Suicide, and the Islamic Law of War: A Short Legal History', 27 Fordham International LawJournal (2003) 299.
55. L. Wittgenstein, Philosophical Investigations: The German Text with Revised English Translation (1953) (3rd edn., London: Blackwell Publishers, 2001), Aphorism 67, at 52