Nitzan Horowitz - Haaretz 18 novembre 2001
Why is the attack on the Twin Towers called terrorism, while the bombing of a hospital in Kabul is not?
Jurists in the United States and the rest of the world are having a hard time devising the mechanisms and principles for use in the war on terror. One major sticking point is the absence of a fixed international definition of what constitutes "terror" and who is a "terrorist." From the days of Robespierre to the era of Stalin and Franco, terror had primarily been thought of as the actions of repressive organs of government. Conversely, it is now widely considered as anti-state activity by opposition groups. However, the Americans are afraid that if, and when, an international institution is created to fight terror, it might conceivably put members of the U.S armed forces on trial, as well.
While the forces of the Northern Alliance were pounding their way to Kabul and Kandahar, U.S. President George W. Bush was signing his name to a rarely invoked presidential order in Washington. Only three times in U.S. history - during World War II, the Civil War and the Mexican-American War - has an American president seen fit to do so. Bush authorized his secretary of defense to set up military tribunals that would try and sentence those suspected of terrorism throughout the world.
"A new tool against terror," was what Al Gonzalez, the White House counsel, termed it. The court-martials can be held outside the borders of the United States, even in the operational theater itself, and the investigation may be conducted entirely within the military framework. The Americans assure that anyone brought up before the military tribunal will be given a fair trial. But in the opinion of human rights organizations, this development is another sign of bad news, part of what they call "the assault on freedoms" in the wake of the September 11 trauma. Bush must first prove why ordinary courts cannot do the job, says Laura Murphy of the American Civil Liberties Union. She said without that kind of compelling reason, the order is deeply disturbing - and a sign the administration is ready to undermine safeguards that are central to American democracy.
Ever since the collapse of the Twin Towers, jurists in the United States and the rest of the world have feverishly endeavored to develop new mechanisms and rules for fighting "terrorism." Several weeks ago, this column discussed a proposal to create an international tribunal that would be composed of justices from supreme courts around the world, and which would be jointly headed by a U.S. Supreme Court justice and an Islamic jurist. Other proposals urge adopting an international convention on the war against terror, quickly completing the ratification of the International Criminal Court charter (ICC), with amendments to the charter that would define large-scale terrorist attacks as crimes against humanity (over which the court would have jurisdiction), and convening an international conference to draft a set of binding regulations for the struggle against terrorism.
However, all of these proposals, without exception, come up against a perplexing, and at times, impassable obstacle: What is "terrorism" and who is a "terrorist"? Even ostensibly straightforward dictionary entries present problems. The Random House Dictionary defines terror as "intense, sharp, overmastering fear," terrorism as "the use of terrorizing methods" or "a terroristic method of governing or of resisting a government." A terrorist is "a person who uses or favors terrorizing methods." The Oxford Dictionary defines "terrorism" as use of violence and scare tactics primarily for political objectives, but makes no connection between these tactics and underground groups or opposition movements that lay ambush or strike from hiding places as is the accepted present-day connotation of the term.
The term "reign of terror" is not an aggregation of terror attacks (in the popular sense found in the media today) perpetrated by groups struggling for national liberation or resisting military occupation, but rather acts perpetrated by a repressive state system. This sense of the word applies to Stalinist Soviet Union or Francoist Spain. In an earlier era, the "reign of terror" was used to described the forces that ascended to power after the French Revolution and which peaked in the days of Robespierre. The government of the republic owes the enemies of the people only death," explained Saint-Just at the time.
Terror - according to today's accepted meaning today - has incredibly varied, contradictory roots: Jacobinism and nihilism, anarchism and Balkanism. Terrorist violence, committed in the name of ideas and ideology, has gone a long way since its debut in the late 19th century, and its subsequent transformation into an act of all-out and total murder. As Emile Henry, the French terrorist, declared in his speech to the court: There are no innocents!"
One of the earliest definitions of revolutionary terror appears in the program of "Narodnaya Volya" and the Socialist Revolutionaries in Russia who refer to "destructive and terrorist activity," as noted by Ze'ev Ivanski in his book "Personal Terror - the Idea and the Act," published here in 1977. The Russian revolutionary platform declares that "the objectives of terrorist activity are shattering the appeal of the regime's power, establishing the convincing proof of the viability of struggle against the regime, marshaling appropriate forces for the struggle, and thereby magnifying the revolutionary spirit of the people and its belief in the chances of success."
More than 50 years after this platform of the Russian revolutionaries was formulated, "Hazit" (Front) - the underground gazette of the Lehi pre-statehood group (that some have called terrorist) - posed the issue this way: "Is it possible to foment revolution or liberate something through terror? The answer is: No! Is there any benefit to terror in advancing the revolution and the liberation? The answer is: Yes!"
Politics is the most important thing
But a key issue remains: What is the difference, if any, between the terror of a revolutionary or insurrectionist movement and acts perpetrated by a government or state? "When a bomb explodes in a school and 20 children are killed - that is terror, but when a plane bombs the same school and the same children are killed - it is referred to as a military action," protests Dr. Eyal Gross, an expert on international law at Tel Aviv University. "These things should be said: According to the various international conventions, there is no legal differentiation between the attack on the Twin Towers and the bombing of a school in Kabul. Why is an attack in Ma'alot considered terror, while an attack on Lebanese soil not terror? Why are the acts now being committed by the Palestinians called terror, while Israel's actions in the territories are not? There is terror committed by organizations and then there is state terror.
"In the American perspective, there is a big difference between an act such as the Twin Towers attack, which had the object of simply sowing slaughter and destruction in a civilian population, and the objective of preventing such attacks, which is the avowed American objective in Afghanistan. But even when acts are perpetrated as part of this legitimate goal, there is an obligation to differentiate between civilians and fighters. When mass attacks against civilian populations become a significant element of the military strategy of states, it is clear that the states are themselves adopting the methods of terror."
The fundamental problem in this polemic is that international law has no definition for terror. "The only convention on terror was signed in 1937 by most other countries in Europe at the time, but it never came into force," explains professor Natan Lerner, an expert on international law at the Interdisciplinary Center in Herzliya. "Since then, special conventions have been adopted on terror committed in the air and at sea and in airports, but there is no comprehensive pact, since it would be extremely hard to define what terror is and who terrorists are."
As a way of getting closer to such a definition, Lerner suggests differentiating between the procedural aspect and the substantive aspect. Procedurally speaking, terror is an undiscriminating attack against a certain population; the substantive aspect focuses on the political goals, which may be legitimate or not, depending on the eye of the beholder. "When the Basque underground ETA carries out terror attacks, international society for the most part rejects it out of hand, but when the Palestinians carry out similar acts, many observers, in and outside of the Arab world, say that it is not terrorism, but simply actions against the occupation."
There have been attempts in recent years to put a sharper edge on this differentiation. As an example, the 1997 International Convention for the Suppression of Terrorist Bombings states: "Any person commits an offense within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility: (a) With the intent to cause death or serious bodily injury; or (b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss."
The same convention calls on each signatory to adopt legislation that would criminalize acts "intended or calculated to provoke a state of terror in the general public or in a group of persons or particular persons, [which] are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature."
As for jurisdiction, each signatory nation agreed to take measures to extend its jurisdiction over the offenses if they were committed on its territory, or on a plane or ship flying that country's flag, or by a national of the state. The convention empowers the signatory states to place on trial those responsible for such acts, even when the acts were committed against its citizens or facilities of the state on foreign soil. The general principle applied here is "extradite or put on trial."
But still, even this up-to-date definition does not differentiate between the toppling of a World Trade Center and the bombing of a Kabul hospital. It is not surprising that the key to this sort of distinction cannot be found within the realm of the law. "The focus is on the political weight [brought to bear]," says Lerner. "This issue, perhaps more than any other, is dependent upon political considerations. Whoever has the political power and influence can dictate the definition, and how it is applied."
What is justified self-defense?
The issue of self-defense lies at the heart of the legal perspective on America's war against global terror. International law sets up two tests - need and relativism. The Americans claim they meet both criteria. Before the bombing of Afghanistan began, the United States officially informed the UN Security Council that it was invoking its right to self-defense, based on Section 51 of the UN Charter. In effect, the international community accepted the American claim that the events of September 11 were an "armed attack" against the United States, and the Security Council authorized action on the basis of chapter VII of the charter, which is entitled "Action with respect to threats to the peace, breaches of the peace, and acts of aggression." The Americans also argue that their attacks are pinpointed and balanced, and therefore comply with the requirement of relativism.
The embrace of the American claims places international law in unfamiliar territory. Traditionally, this sector contended with disputes between nations. Over the years it began to extend its jurisdiction to civil wars, and it has also judged how the rules of war should be applied vis-a-vis populations under occupation or in colonial situations. Yet now, international law faces a brand new challenge - the definition of acts of terror as an "armed attack" against a country, which in turn, justifies the invoking of the right to self-defense. NATO - the world's largest military organization - has already accepted this legal reasoning.
After September 11, the NATO alliance made a decision that was based on Section 5 of its own founding charter, according to which the attack on any one of its members would be considered an attack on all of its members. At the time, it was emphasized that the Washington convention of 1949, at which NATO was founded, was formulated under a categorically different set of circumstances, and did not, of course, foresee the reality of global terror. "No one was thinking at all about the relevance of invoking the right of self-defense against terror, and especially so when the agent of terror is something so invisible, so out of the ordinary, something that is hard to even call it by name, except for `September 11,'" says Gross. "The new direction of international law since the terrorist acts in New York and Washington, of providing justification for American action, essentially contradicts the whole trend in this area, which for the past 100 years has striven to reduce the use of force."
If the United States succeeds in capturing Osama bin Laden, Washington plans to bring him to trial on the charge of committing crimes against humanity. American jurists believe this is a very viable option. "One of the definitions of crime against humanity is acts such as murder and even serious bodily harm that are carried out as part of a widespread or systematic attack against a civilian population," explains Gross. "This definition might apply to Bin Laden, but you need to be very careful that it does not differentiate between any individual, group or state. Some people will argue that in the same way, what the United States is doing in Afghanistan can be viewed in the same light."
Perhaps this is why no global criminal court has yet been established. Such an institution could have held the trials of members of Al Qaida backed by concrete international legitimacy. "The whole desire of setting up a special court for terror cases stems from the fact that there is no international criminal court," says Lerner.
The primary obstacle to setting up a permanent court is the opposition of the United States, which is afraid that American soldiers could be put on trial. American politicians readily admit this. They do not want to be portrayed as "judging the whole world." They would like an international institution to help them in the war on terror, but are not willing for that institution to ever put an American in the defendant's dock. They are also unwilling to assign to anyone else the critical task of defining "terror." "Such a definition is really extremely difficult," sums up Lerner, "but despite it all, I still believe it is possible to define terror, because I am a big believer in the power of words."
And why not fight terror in Kashmir, for example?
Bush's avowed commitment to fight terror everywhere, without discriminating between the identity or objectives of its perpetrators, has been whetting the appetite of governments from Moscow to Manila. Two months after the collapse of the Twin Towers in New York, voices are being raised in the United States, cautioning against an expansion of the war and the resultant entanglement in a war against terror that is not directed at the country.
Richard Cohen, writing in the Washington Post, reports on a press briefing held with Bush. An Indian reporter was determined to ask the president a vexing question: "Sir," he cried out to the president last week at the White House, "why are there two laws in this world, one for America and one for the rest of us? When terrorism hits America, you go halfway around the world and make war in Afghanistan. But when we suffer terrorism, you ask us to be restrained. Is an Indian life less precious than an American life?"
Bush replied that terrorism is wrong wherever it is practiced, no matter who practices it and for whatever reason. "I think there is one universal law, and that's terrorism is evil, and all of us must work to reject evil," he said. "Not so fast, Mr. President," counters the columnist Cohen. "This declaration of war against all terrorism anywhere is becoming a liability. It was Bin Laden who allegedly murdered Americans. It is he - not the pro-Pakistani terrorists in Kashmir - who is our enemy and who must be hunted down and, as the cliche goes, brought to justice. No one gets to murder Americans.
"But the rest - all those other terrorist groups - are much more problematic. In the first place, much of the Islamic and especially the Arab world rejects applying the label to terrorist activity directed at Israel. That means not only the passive Palestinian Authority, but also Hamas and Islamic Jihad and their sponsors in the Middle East - Syria, Iraq and, most particularly, Iran, the strangest bedfellow yet produced by the politics of this situation. We cannot make war on much of the Middle East.
"Do we intervene somehow in Indonesia? What about Northern Ireland, if the peace there should once again collapse? Do we take on Tamil Tigers in Sri Lanka while at the same time hunting down bin Laden and fighting the Taliban? Not a chance. The danger is that we will lose our focus.
"Permit me a caveat to my own doctrine - Iraq. That's because the regime of Saddam Hussein really is a global menace," the Washington Post columnist continues. "But the rest is not in that category of menace. It should be our policy to eradicate terrorism, to fight it as best we can and, in particular, to have others join the fight. But there is a distinction between the implementation of policy and the waging of war. We're in a war now with an identifiable enemy. For the time being, that's challenge enough."