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The Legal Debate is Over: Terrorism is a War Crime

May 3, 2005 |
It is no longer acceptable to sneer that one person's terrorist is another person's freedom fighter.
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Suicide bombing. The massacre of school-children. The crashing of hijacked airliners into buildings. Can acts like these ever be justified by a legitimate cause?

The debate about how best to deter and defeat terrorism worldwide is at an early stage. But the debate about the legitimacy of terrorism is over. It is no longer acceptable to sneer that one person's terrorist is another person's freedom fighter.

The debate ended in March, when Kofi Annan, the United Nations secretary-general, issued his comprehensive report on UN reform following recommendations by his high-level panel. Mr Annan noted that "the moral authority of the United Nations and its strength in condemning terrorism have been hampered by the inability of member states to agree on a comprehensive convention that includes a definition". He then provided one: "In addition to actions already proscribed by existing conventions, any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a government or an international organisation to do or abstain from doing any act." Terrorism against civilians, according to the UN secretary-general, is illegitimate as a tactic, always and everywhere. Terrorism is a crime, even when committed on behalf of a just cause. Like torture, genocide, ethnic cleansing and slavery, terrorism can never be justified.

But can states that are able and sometimes willing to use armed force lecture stateless groups about the means of resistance they choose? Mr Annan dismissed this line of argument as sophistry, saying it was "time to set aside debates on so-called 'state terrorism'. The use of force by states is already thoroughly regulated under international law," he noted. "And the right to resist occupation must be understood in its true meaning. It cannot include the right to deliberately kill or maim civilians."

Mr Annan was correct to note that the "use of force by states is already thoroughly regulated under international law". It is true that some critics mock the very concept of international law. But ever since the second world war, most countries have supported the project of limiting the purposes, as well as the methods, of war.

Unlike the naive and utopian Kellogg-Briand treaty of 1928, the UN charter does not attempt to outlaw war in all circumstances. The charter outlaws wars of conquest and preventive wars, but its article 51 acknowledges the "inherent right of individual or collective self-defence", including pre-emptive wars to forestall imminent attacks. In addition to wars of self-defence by individual countries or alliances, article 42 empowers the Security Council to authorise wars in the interest of regional or global security.

International law governs not only the resort to war but also the use of force during war. Even when waging a war of individual or collective self-defence, or a war authorised by the Security Council, states are obliged to obey the laws of war.

In this connection, it is important to note that "just war theory", in both its Roman Catholic and secular forms, is completely irrelevant under the UN Charter system. The legitimacy of means used in war is not to be determined by individual statesmen, on the basis of personal or collective moral judgment -- as just war theory would have it. Rather, the use of force, like the resort to force, is governed by black-letter law, codified in treaties such as the Geneva conventions. Whether or not the treatment of some prisoners in Guantanamo Bay and Abu Ghraib prison has amounted to torture is an objective question for international lawyers, not for the personal moral judgment of US leaders.

The framers of the UN Charter were focused on outlawing wars of imperial conquest and annexation by aggressive states such as National Socialist Germany and Imperial Japan. Almost immediately after adoption of the UN Charter in 1945, however, decolonisation and struggles for independence by stateless nations raised questions of an entirely different kind. Today many conflicts are wars of attempted secession by stateless peoples. We need to complement the existing law that governs when states may resort to war, and what methods they may use, with a new body of international law that governs when stateless peoples may resort to war, and what methods they may use. This will require prolonged and contentious debate.

Fortunately, it is not necessary to agree about cases in which stateless peoples can legitimately resort to war in order to outlaw terrorism against civilians as a tactic in every case. After all, the world has agreed that certain methods including torture, ethnic cleansing and genocide can never legally be used by states in warfare, even when the wars are legal wars of defence or collective security. A state waging a legal war according to the UN Charter is obliged to observe the Geneva conventions and other established rules of war. By the same reasoning, the fact that an oppressed nationality is waging a legitimate war for national independence should not mean that it is free to use "any means necessary". It is one thing for the oppressed to target the military and police of the oppressor, and quite another to target civilians of the oppressive nationality. No oppression, however great, can ever justify the deliberate massacre of civilians by tactics such as suicide bombing in the midst of crowds. As Mr Annan says, the right to resist illegal foreign invasion or colonisation "cannot include the right to deliberately kill or maim civilians".

Terrorism against civilians, whether committed by stateless groups or states, should be treated unambiguously as a war crime by every country in the world. That means suspected terrorists could be tried, not only by international tribunals but also by any nation in its national courts. And, as in the case of other war crimes, no statute of limitations should apply to terrorism.

The terrorist attacks of September 11 2001 changed the world, and the UN secretary-general's report of March 2005 changed the world debate. There now appears to be a global consensus on what terrorism is: attacks targeting civilians. And there also appears to be a consensus that terrorism is never justified. The struggle of the law-abiding states of the world against terrorism continues. But the debate about its definition and legitimacy is over.