LETTER TO ABRAHAM D. SOFAER FROM WILLIAM J. CASEY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87B00858R000600950004-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 41
• Document Creation Date: December 22, 2016
• Document Release Date: March 3, 2011
• Sequence Number: 4
• Publication Date: April 23, 1986
• Content Type: LETTER

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The Dirrctor of Central Intelligence bc- 1504 /1
23 April 1986
Dear Abe,
Thanks for sending me your Columbia Law School
talk on "Law and Terrorism."
I thought it was very good and will plagiarize
from it at my first opportunity.
Yours,
William J. Casey
The Honorable Abraham D. Sofaer
Legal Adviser
Department of State
Room 6425
Washington, D. C. 20520
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United States Department of State
The Legal Adviser
Washing:,-,r,, D.C. 20520
TI--- /
irector Casev!
April 10, 1986
Executive Registry
86- 1504X
Enclosed is an analysis of where I think
the law stands on international terrorism. I
hope you find it worthwhile.
Warm regards,
Abraham D. Sofaer
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PMJ
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"LAW AND TERRORISM"
BY
ABRAHAM D. SOFAER
COLUMBIA UNIVERSITY SCHOOL OF LAW
APRIL 5. 1986
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LAW AND TERRORISM
YOUR INVITATION TO GIVE THIS LECTURE IS A WELCOME
OPPORTUNITY. IT'S GOOD TO BE BACK AT COLUMBIA. ENLISTING YOU
ONCE AGAIN AS COLLEAGUES AND FRIENDS. IN AN EFFORT THAT IS
INTELLECTUALLY CHALLENGING AND OF THE GREATEST PRACTICAL
IMPORTANCE.
TERRORISM HAS ABSORBED A GREAT DEAL OF MY TIME DURIFG THE
LAST NINE MONTHS. DEALING WITH THESE ISSUES HAS TAUGHT ME
FIRST-HAND THE DEEP FRUSTRATION EXPERIENCED BY CIVILIZED PEOPLE
AROUND THE WORLD IN ATTEMPTING TO HALT TERRORIST VIOLENCE. THE
SAME QUESTIONS ARE ASKED AFTER EVERY TERRORIST EPISODE: WHY IS
INTERNATIONAL TERRORISM SO LOUDLY CONDEMNED, AND YET SO
PREVALENT? WHAT GOOD IS THE LAW IN FIGHTING TERRORISM? THE
LAW SEEMS INEFFECTIVE IN PREVENTING OR PUNISHING THESE ACTS.
THIS LECTURE PROVIDES AN OPPORTUNITY TO ADDRESS THOSE
FRUSTRATIONS AND CONCERNS.
THE STOCK RESPONSE TO COMPLAINTS ABOUT THE LAW'S FAILURE TO
DEAL EFFECTIVELY WITH TERRORISM IS THAT WE NEED MORE LAWS.
THAT IS A MISLEADING ANSWER. IMPORTANT GAPS DO EXIST IN THE
LEGAL STRUCTURE THAT GOVERNS TERRORIST ACTS. AND THIS
ADMINISTRATION IS WORKING WITH CONGRESS AND OTHER NATIONS TO
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CLOSE THOSE GAPS. FOR EXAMPLE. THE U.S. GOVERNMENT LACKS
JURISDICTION TO PROSECUTE THE TERRORISTS WHO KILLED LEON
KLINGHOFFER DURING THE ACHILLE A R AFFAIR. OR THE TERRORISTS
WHO KILLED FOUR AMERICAN CIVILIANS ON A TWA FLIGHT EARLIER THIS
WEEK. A STATUTE ESTABLISHING JURISDICTION FOR TERRORIST
MURDERS OF AMERICANS HAS BEEN PASSED BY THE SENATE. AND ITS
ADOPTION IN THE HOUSE WOULD BE WELCOME. BUT WHAT IS THE
LIKELIHOOD THAT SIGNIFICANT IMPROVEMENT IN LAW ENFORCEMENT
WOULD RESULT FROM HAVING SUCH A LAW ON THE BOOKS? WE CANNOT
KBD OURSELVES THAT NEW LAWS. CLOSING "GAPS." WILL OVERCOME THE
PROBLEMS THAT CAUSE POOR LAW ENFORCEMENT AGAINST TERRORISTS.
RECENT EVENTS HAVE DEMONSTRATED THAT. EVEN WHEN LAWS CLEARLY
GOVERN PARTICULAR CONDUCT, THEY ARE OFTEN DISREGARDED OR
OTHERWISE FAIL TO ACHIEVE THEIR PURPOSE.
THE LAW HAS A POOR RECORD IN DEALING WITH INTERNATIONAL
TERRORISM. SOME TERRORISTS ARE KILLED OR CAPTURED DURING THE
COURSE OF THEIR CRIMES. BUT FEW OF THOSE WHO GET AWAY ARE EVER
FOUND AND ARRESTED. THE TERRORIST WHO IS PROSECUTED IS LIKELY
TO BE RELEASED FAR EARLIER THAN HIS SENTENCE SHOULD REQUIRE,
OFTEN IN EXCHANGE FOR HOSTAGES IN A SUBSEQUENT TERRORIST
EPISODE.
ONE REASON FOR THIS POOR RECORD IS THAT TERRORISM IS. IN
ESSENCE, CRIMINAL ACTIVITY. AND LAW CANNOT ELIMINATE CRIME. Ii
APPLYING LAW DOMESTICALLY, WE HOPE TO ACHIEVE A LEVEL OF CRIME
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THAT PERMITS US TO CONTINUE OUR WAY OF LIFE. WE CAN EXPECT
EVEN LESS OF THE LAW IN DEALING WITH INTERNATIONAL TERRORISM.
THE WORLD HAS NO INTERNATIONAL POLICE FORCE OR JUDICIAL
SYSTEM.
BUT THE REASONS FOR THE LAW'S FAILURE TOLERABLY TO CONTROL
TERRORISM GO MUCH DEEPER THAN THE ABSENCE OF LAW ENFORCEMENT
MECHANISMS. INTERNATIONAL LAW AND COOPERATION IN LESS
CONTROVERSIAL AREAS HAVE PROVED REASONABLY EFFECTIVE. IN THE
AREA OF TERRORISM, HOWEVER. THE LAW HAS FAILED TO SERVE OUR
POINT OF VIEW.
WE HAVE TRIED TO CONTROL INTERNATIONAL TERRORISM BY
CONDEMNING IT, BY TREATING IT AS PIRACY, BY PROSECUTING THE
ACTS OF TERRORISTS UNDER THE LAWS OF AFFECTED STATES, BY
CREATING INTERNATIONAL NORMS MAKING SOME ACTS CRIMINAL WHEREVER
COMMITTED. AND BY COOPERATING THROUGH EXTRADITION AND OTHER
DEVICES IN AIDING NATIONS ATTACKED BY TERRORISTS. WE WILL
EXAMINE SOME OF THESE DEVICES TO SEE WHY THEY HAVE NOT WORKED.
A FRANK APPRAISAL WILL. I BELIEVE. LEAD TO A PAINFUL
CONCLUSION. THE LAW APPLICABLE TO TERRORISM IS NOT MERELY
FLAWED, IT IS PERVERSE. THE RULES AND DECLARATIONS SEEMINGLY
DESIGNED TO CURB TERRORISM HAVE REGULARLY INCLUDED PROVISIONS
THAT DEMONSTRATE THE ABSENCE OF INTERNATIONAL AGREEMENT ON THE
PROPRIETY OF REGULATING TERRORIST ACTIVITY. ON SOME ISSUES.
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THE LAW LEAVES POLITICAL VIOLENCE UNREGULATED. ON OTHER ISSUES
THE LAW IS AMBIVALENT, PROVIDING A BASIS FOR CONFLICTING
ARGUMENTS AS TO ITS PURPOSE. THE LAW HAS. IN IMPORTANT WAYS.
ACTUALLY SERVED TO LEGITIMIZE INTERNATIONAL TERROR. AND TO
PROTECT TERRORISTS FROM PUNISHMENT AS CRIMINALS. THESE
DEFICIENCIES ARE NOT THE PRODUCT OF NEGLIGENCE OR MISTAKE.
THEY ARE INTENDED.
I. Is TERRORI?M WRONG?
WE SHOULD BEGIN THIS PROCESS BY ASKING THE MOST FUNDAMENTAL
QUESTION OF ALL: IS TERRORISM WRONG? AMERICANS TOO READILY
ASSUME THAT OTHERS AGREE WITH US THAT AT LEAST CERTAIN ASPECTS
OF INTERNATIONAL TERROR ARE UNACCEPTABLE. SURE. WE HEAR
OADDHAFI CALLING THE KILLERS OF A FIVE YEAR OLD GIRL "HEROES."
AND WE KNOW THAT OTHER FANATICS POSITIVELY APPROVE OF TERROR.
BUT THE ACCEPTANCE OF TERROR IS FAR MORE WIDESPREAD. MANY
NATIONS REGARD TERRORISM AS A LEGITIMATE MEANS OF WARFARE.
THE GENERAL ASSEMBLY BEGAN GIVING SPECIAL ATTENTION TO THE
SUBJECT OF TERRORISM AFTER TWO ESPECIALLY HEINOUS ACTIONS. ON
MAY 30. 1972. JAPANESE TERRORISTS, WORKING WITH THE PFLP.
ATTACKED CIVILIAN PASSENGERS AT LOD AIRPORT IN ISRAEL WITH
AUTOMATIC WEAPONS. KILLING 28 AND WOUNDING 78. ON SEPTEMBER 5.
1972, TERRORISTS FROM THE BLACK SEPTEMBER ORGANIZATION MURDERED
11 MEMBERS OF THE ISRAELI OLYMPIC TEAM IN MUNICH.
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ON SEPTEMBER 8. SECRETARY GENERAL WALDHEIM ASKED FOR
INCLUSION IN THE UNGA AGENDA OF AN ITEM ENTITLED. "MEASURES TO
PREVENT TERRORISM AND OTHER FORMS OF VIOLENCE WHICH ENDANGER OR
TAKE INNOCENT HUMAN LIVES OR JEOPARDIZE FUNDAMENTAL FREEDOMS."
HE URGED, "THAT ALL CONCERNED TURN AWAY FROM SENSELESS AND
DESTRUCTIVE VIOLENCE." AND NOTED THAT THE WORLD COMMUNITY
SHOULD CONTINUE "TO EXERT ITS UTMOST INFLUENCE IN SEEKING
PEACEFUL WAYS" TO FIND SOLUTIONS "FOR THE PROBLEMS UNDERLYING
SUCH ACTS OF TERRORISM . . . .
THE SECRETARY GENERAL'S STATEMENT EVOKED ANGRY OPPOSITION,
WHICH TOOK THE IMMEDIATE FORM OF PROTESTS AGAINST CONSIDERING
TERRORISM WITHOUT CONSIDERING ITS CAUSES. THE SECRETARY
GENERAL REITERATED HIS REQUEST ON SEPTEMBER 20. BUT ADDED THAT
IT IS NO GOOD TO CONSIDER TERRORISM "WITHOUT AT THE SAME TIME
CONSIDERING THE UNDERLYING SITUATIONS WHICH GIVE RISE TO
TERRORISM AND VIOLENCE IN MANY PARTS OF THE WORLD." HE THEN
SAID:
THE ROOTS OF TERRORISM AND VIOLENCE IN MANY CASES
LIE IN MISERY, FRUSTRATION, GRIEVANCE AND DESPAIR
SO DEEP THAT MEN ARE PREPARED TO SACRIFICE HUMAN
LIVES, INCLUDING THEIR OWN. IN THE ATTEMPT TO
EFFECT RADICAL CHANGES.
HE ASSURED THE GENERAL ASSEMBLY "IT IS NOT MY INTENTION. IN
PROPOSING THE INCLUSION OF THIS ITEM. TO AFFECT PRINCIPLES
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ENUNCIATED FOR PEOPLES SEEKING INDEPENDENCE AND LIBERATION."
THE TWO POINTS MADE BY MR. WALDHEIM MAY SEEM INNOCUOUS TO
ORDINARY PEOPLE. IN THE U.N., HOWEVER, THEY WERE OF BOTH
THEORETICAL AND PRACTICAL SIGNIFICANCE. ON THE THEORETICAL
LEVEL. TO ATTRIBUTE ACTS OF TERRORISM TO INJUSTICE AND
FRUSTRATION TENDS TO JUSTIFY OR AT LEAST EXCUSE THOSE ACTS.
THIS IS ESPECIALLY SO WHEN THE CAUSES ARE ALL ASSUMED TO BE
SYMPATHETIC. THE LANGUAGE CONCERNING EFFORTS TO SEEK
"INDEPENDENCE." AND "LIBERATION." RELI,TED TO THE PRINCIPLES
WHICH HAD BY THEN BEEN ADOPTED IN U.N. RESOLUTIONS SUPPORTING
"SELF-DETERMINATION" AND WARS OF NATIONAL LIBERATION. IN THE
PURSUIT OF WHICH OPPRESSED PEOPLE WERE SAID TO BE ABLE TO
RESORT TO ALL AVAILABLE MEANS, INCLUDING ARMED STRUGGLE.
THE GENERAL COMMITTEE DEBATE ON WALDHEIM'S PROPOSAL TOOK UP
THE QUESTION OF THE CAUSES OF TERRORISM, AS WELL AS THE
CONCEPTS OF SELF-DETERMINATION AND WARS OF NATIONAL
LIBERATION. MANY STATES OPPOSED ADDING TERRORISM TO THE
AGENDA. SOME STRONGLY SUGGESTED THEIR SUPPORT FOR TERRORIST
ACTIONS. ONE REPRESENTATIVE SAID. FOR EXAMPLE, THAT THE
EXPRESSION TERRORIST "CAN HARDLY BE HELD TO APPLY TO PERSONS
WHO WERE DENIED THE MOST ELEMENTARY HUMAN RIGHTS, DIGNITY.
FREEDOM AND INDEPENDENCE AND WHOSE COUNTRIES OBJECTED TO
FOREIGN OCCUPATION." CITING SITUATIONS IN AFRICA, THE MIDDLE
EAST. AND ASIA. HE SAID "SUCH PEOPLES COULD NOT BE BLAMED FOR
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COMMITTING DESPERATE ACTS WHICH IN THEMSELVES WERE REPREHEN-
SIBLE: RATHER, THE REAL CULPRITS WERE THOSE WHO WERE
IN THE GENERAL ASSEMBLY THE ITEM WAS AMENDED TO INCLUDE
WALDHEIM'S LANGUAGE ON CAUSES OF TERRORISM, AND THE MATTER WAS
REFERRED TO THE SIXTH COMMITTEE, WHERE REPRESENTATIVES VERY
CLEARLY SUPPORTED THE RIGHT OF NATIONAL LIBERATION MOVEMENTS
"TO UNDERTAKE ANY TYPE OF ACTION TO ENSURE THAT THEIR COUNTRIES
ATTAINED INDEPENDENCE . . . ." ANOTHER REPRESENTATIVE REJECTED
ANY PROPOSAL OF "RULES FOR THE PURPOSE OF ASSIGNING LEGAL
LIMITS" TO REVOLUTIONARY ARMED STRUGGLE. "THE METHODS OF
COMBAT USED BY NATIONAL LIBERATION MOVEMENTS COULD NOT BE
DECLARED ILLEGAL WHILE THE POLICY OF TERROR UNLEASHED AGAINST
CERTAIN PEOPLES WAS DECLARED LEGITIMATE." YET ANOTHER SPEAKER
COULD NOT HAVE BEEN CLEARER IN THIS REGARD. HE SAID:
ACTS OF TERRORISM INSPIRED BY BASE MOTIVES OF
PERSONAL GAIN WERE TO BE CONDEMNED. ACTS OF
POLITICAL TERRORISM. ON THE OTHER HAND,
UNDERTAKEN TO VINDICATE HALLOWED RIGHTS
RECOGNIZED BY THE UNITED NATIONS. WERE
PRAISEWORTHY. IT WAS. OF COURSE. REGRETTABLE
THAT CERTAIN ACTS IN THE LATTER CATEGORY AFFECTED
INNOCENT PERSONS.
AND ONE REPRESENTATIVE PRESENTED THE PHILOSOPHICAL RATIONALE
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USED SINCE TIME IMMEMORIAL TO JUSTIFY TERROR:
HIS DELEGATION DID NOT AGREE WITH THE STATEMENT
IN THE SECRETARIAT'S REPORT THAT THE LEGITIMACY
OF A CAUSE DID NOT ITSELF JUSTIFY RECOURSE TO
CERTAIN FORMS OF VIOLENCE: THOSE SERVING THE
CAUSE IN QUESTION SHOULD HAVE A CHOICE OF MEANS
TO BE USED.
THESE POSITIONS WERE REPEATED IN ONE FORM OR ANOTHER FOR
THIRTEEN YE'.RS. DURING THAT PERIOD. THE ASSEMBLY PASSED SEVEN
RESOLUTIONS AS PART OF ITS CONSIDERATION OF TERRORISM AND ITS
CAUSES. THE FIRST. ADOPTED ON DECEMBER 18. 1972, HAD LITTLE TO
SAY ABOUT THE FORMS OF TERRORISM WHICH LED TO THE SUBJECT'S
BEING PLACED ON THE AGENDA. IT EXPRESSED "DEEP CONCERN" OVER
INCREASED ACTS OF VIOLENCE WHICH TAKE INNOCENT LIVES OR
JEOPARDIZE FUNDAMENTAL FREEDOMS. AND INVITED STATES TO CONSIDER
JOINING RELEVANT CONVENTIONS. BUT THE RESOLUTION WAS A VICTORY
FOR THOSE WHO SUPPORTED THE RIGHT TO USE ALL AVAILABLE MEASURES
TO ADVANCE THE ENDS OF SELF-DETERMINATION AND WARS OF NATIONAL
LIBERATION. THE RESOLUTION IN FACT CONDEMNED ONLY ONE THING:
THE CONTINUATION OF REPRESSIVE AND TERRORIST ACTS BY COLONIAL.
RACIST AND ALIEN REGIMES. . . .
IN 1974. THE UNGA DEFINED AGGRESSION. WHILE ITS RESOLUTION
PROHIBITED AGGRESSION. ARTICLE 7 SPECIFICALLY PRESERVED THE
RIGHT TO SELF-DETERMINATION AND TO STRUGGLE AGAINST ALL FORMS
OF ALIEN DOMINATION IN ACCORDANCE WITH THE CHARTER. WITHIN
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DAYS OF THE RESOLUTION'S ADOPTION, THE ASSEMBLY ADMITTED THE
PALESTINE LIBERATION ORGANIZATION TO OBSERVER STATUS, AND
RECOGNIZED THE RIGHT OF PALESTINIANS TO REGAIN THEIR NATION BY
ALL MEANS IN ACCORDANCE WITH THE PURPOSES AND PRINCIPLES OF THE
CHARTER. . . ."
THE TERRORISM RESOLUTION ADOPTED IN 1977 ADDED AN IMPORTANT
ELEMENT. IT INVITED THE AD HOC COMMITTEE SET UP TO STUDY
TERRORISM. TO STUDY FIRST THE UNDERLYING CAUSES OF TERROR, AND
THEN TO RECOMMEND MEASURES TO DEAL WITH ACTS OF TERRORISM. THE
1979 RESOLUTION FOR THE FIRST TIME CONDEMNED ACTS OF TERROR,
BUT IT REFERRED TO THE PROTOCOLS ADDITIONAL TO THE GENEVA
CONVENTION, WHICH SEEK TO GIVE GROUPS FIGHTING WARS OF NATIONAL
LIBERATION THE PROTECTION OF THE LAWS OF WAR. FINALLY. IN
DECEMBER 1985. AFTER A FURTHER SERIES OF TERRORIST ACTS, THE
ASSEMBLY ADOPTED A RESOLUTION THAT "UNEQUIVOCALLY CONDEMNS AS
CRIMINAL ALL ACTS OF TERRORISM." AND CONTAINS SEVERAL
PROVISIONS CALLING FOR INTERNATIONAL COOPERATION AGAINST
TERRORISM. AT THE SAME TIME, HOWEVER, THE RESOLUTION
REAFFIRMED THE INALIENABLE RIGHT TO SELF-DETERMINATION. AND THE
LEGITIMACY OF STRUGGLES AGAINST COLONIAL AND RACIST REGIMES,
AND OTHER FORMS OF ALIEN DOMINATION. THE DEBATES BOTH BEFORE
AND AFTER THIS RESOLUTION WAS ADOPTED MAKE CLEAR THAT MANY
STATES CONTINUE TO BELIEVE THAT WARS OF NATIONAL LIBERATION
JUSTIFY OR EXCUSE TERRORIST ACTS. TERRORISM, THEY CONTEND.
DOES "NOT INCLUDE ACTS BY MEMBERS OF NATIONAL LIBERATION
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MOVEMENTS AND OPPONENTS OF RACISM."
THE WIDE ACCEPTANCE OF THE PREMISE THAT TERRORIST ACTS CAN
BE LAWFUL IN THE PURSUIT OF PROPER GOALS IS AN UNEASY FIRST
LESSON. THE U.S. ALSO RECOGNIZES THAT OPPRESSED PEOPLE ARE
SOMETIMES JUSTIFIED IN RESORTING TO FORCE. BUT ONLY IF PROPERLY
EXERCISED. THE DEBATES AND RESOLUTIONS RELATING TO TERRORISM
DO NOT SUGGEST PRINCIPLED LIMITS ON THE USE OF FORCE, OR ANY
REASONED. FAIR-MINDED BASIS FOR DETERMINING WHICH PEOPLES ARE
ENTITLED TO WAGE WARS OF NATIONAL LIBERATION. THE RESULT IS A
CLEAR SIGNAL TO ALL THAT THOSE GROUPS DEEMED BY THE MAJORITY TO
BE OPPRESSED WILL BE FREE LEGALLY TO USE FORCE. AND THEREFORE
CANNOT FAIRLY BE CALLED TERRORISTS. IN OTHER WORDS. ACTS OF
TERRORISM BY SUCH PEOPLE ARE NOT WRONG. AND THE LAW HAS NO
PROPER ROLE IN PUNISHING OR DETERRING SUCH ACTS
II. EXTRADITION AND POLITICAL CRIMES
OUR NEXT SUBJECT IS EXTRADITION. A CENTRAL ASPECT OF THE
EFFORT TO USE LAW TO COMBAT INTERNATIONAL TERRORISM.
EXTRADITION TREATIES BETWEEN STATES INVARIABLY MAKE
EXTRADITABLE THOSE CRIMES WE ASSOCIATE WITH TERRORISM. SUCH AS
MURDER. BOMBINGS. ARMED ASSAULTS. AND ROBBERY. IN ADDITION,
MOST STATES HAVE AGREED TO EXTRADITE FOR VIOLATIONS OF THE
MULTILATERAL CONVENTIONS AGAINST HIJACKINGS. ASSAULTS ON
DIPLOMATS. AND HOSTAGE TAKING. DESPITE THESE PROVISIONS,
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STATES FREQUENTLY REFUSE TO EXTRADITE TERRORISTS, OFTEN BECAUSE
THE OFFENSE CHARGED IS "POLITICAL."
SOME RELATIVELY RECENT DECISIONS, DENYING EXTRADITION ON
THE GROUND THAT THE CHARGE IS A "POLITICAL OFFENSE." SHOULD
ILLUSTRATE HOW DETRIMENTAL THE LAW CAN BE IN THE BATTLE AGAINST
TERRORISM. IN 1976. ONE NATION REFUSED TO EXTRADITE FIVE
INDIVIDUALS WHO HIJACKED A PLANE IN THE U.S.. EXTORTED $1
MILLION. AND FLEW TO ALGERIA WHERE THEY WERE RECEIVED AS
POLITICAL MILITANTS. THEY PRESENTED NO EVIDENCE OF POLITICAL
INVOLVEMENT, BEYOND THE CLAIM THAT THEY WERE ESCAPING RACIAL
SEGREGATION IN AMERICA AND WERE ASSOCIATED WITH THE "BLACK
LIBERATION MOVEMENT." WE FAILED TO OBTAIN THE EXTRADITION OF
ABU ABBAS FROM TWO STATES, ONE OF WHICH CLAIMED HE WAS ENTITLED
TO DIPLOMATIC IMMUNITY.
SOME U.S. DECISIONS ARE EQUALLY DISTURBING. OUR COURTS
REFUSED TO EXTRADITE ARTUKOVICH TO YUGOSLAVIA FOR THE ALLEGED
MALICIOUS MURDERS OF 200.000 CROATIANS IN CONCENTRATION CAMPS.
A FEDERAL COURT DETERMINED THAT THESE MURDERS WERE
"POLITICAL." IN FOUR RECENT CASES. OUR COURTS HAVE REFUSED TO
EXTRADITE PIRA GUNMEN, ON THE GROUNDS THAT AN UPRISING EXISTS
IN NORTHERN IRELAND. WHICH MAKES CRIMES IN FURTHERANCE OF THE
REVOLT "POLITICAL."
HOW DID WE GET TO THE POINT OF GIVING SANCTUARY TO
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TERRORISTS WHO KILL PEOPLE TO HAVE THEIR WAY IN A DEMOCRACY
SUCH AS THE U.K.? OR TO A MASS MURDERER? THE STORY IS BOTH
INTERESTING AND INSTRUCTIVE.
THE POLITICAL OFFENSE EXCEPTION HAS NOBLE ROOTS. IT
DEVELOPED IN THE PERIOD OF THE FRENCH AND AMERICAN REVOLUTIONS.
AND REFLECTED THE VALUE THE NEW DEMOCRACIES PLACED UPON
POLITICAL FREEDOM. JEFFERSON COMMENTED. FOR EXAMPLE. THAT
"UNSUCCESSFUL STRUGGLERS AGAINST TYRANNY HAVE BEEN THE CHIEF
MARTYRS OF TREASON LAWS IN ALL COUNTRIES." AT T'tAT TIME.
POLITICAL OFFENSES WERE ASSOCIATED WITH ACTS AGAINST THE
SECURITY OF A STATE. SUCH AS TREASON. REBELLION. AND SEDITION.
THE CONCEPT WAS SOON EXPANDED. HOWEVER. TO SO-CALLED
RELATIVE POLITICAL OFFENSES -- ORDINARY CRIMES COMMITTED IN A
POLITICAL CONTEXT OR WITH POLITICAL MOTIVATION. THE LEADING
CASE IN THIS RESPECT IS IN RE CASTIONI. WHERE THE ENGLISH
COURTS DENIED EXTRADITION FOR A KILLING THAT OCCURRED IN THE
MIDST OF A DEMONSTRATION AGAINST THE GOVERNMENT OF A SWISS
CANTON FOR REFUSING TO PUT THE QUESTION OF A NEW CONSTITUTION
TO A POPULAR VOTE. THE SHOOTING SERVED NO MILITARY PURPOSE.
BUT THE COURT FOUND IT "POLITICAL" BECAUSE IT WAS INCIDENTAL TO
AND A PART OF A POLITICAL DISTURBANCE. EVEN IF AN ACT IS
"CRUEL AND AGAINST ALL REASON." THE COURT HELD. ITS PERPETRATOR
IS PROTECTED IF HE ACTED "FOR THE PURPOSE OF FURTHERING AND IN
FURTHERANCE OF A POLITICAL RISING . . . ." A T N WAS
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QUICKLY QUALIFIED IN ENGLAND. WHEN IN 1894 ONE OF THE MANY
ANARCHISTS OF THE PERIOD. MEUNIER, WAS EXTRADITED TO FRANCE FOR
PLACING BOMBS IN A PARISIAN CAFE AND AN ARMY BARRACKS. BUT IT
TOOK HOLD IN THE U.S. AND ELSEWHERE.
IN 1894. THE SAME YEAR E t R WAS DECIDED. A U.S. COURT IN
IN RE EZETA REFUSED TO EXTRADITE HIGH OFFICIALS OF SALVADOR
ACCUSED OF MURDERS IN THEIR UNSUCCESSFUL EFFORT TO RETAIN
POWER. RELYING ON CASTIONI. THE COURT HELD THAT ALL ACTS
ASSOCIATED WITH AN UPRISING WERE POLITICAL OFFENSES. THE COURT
ACCEPTED WITHOUT DISCUSSION THE PREMISE THAT THE DOCTRINE WAS
POLITICALLY NEUTRAL. AND THAT PROTECTION SHOULD BE GIVEN
EQUALLY TO DEMOCRATS AND DICTATORS. IT ALSO EXPLICITLY
REJECTED THE NOTION THAT THE OFFENDER'S CONDUCT IN KILLING
NONCOMBATANTS COULD DISQUALIFY HIM FROM THE DOCTRINE'S
PROTECTION. DURING HOSTILITIES, SAID THE COURT. "CRIMES MAY
HAVE BEEN COMMITTED BY THE CONTENDING FORCES OF THE MOST
ATROCIOUS AND INHUMAN CHARACTER. AND STILL THE PERPETRATORS OF
SUCH CRIMES ESCAPE PUNISHMENT AS FUGITIVES BEYOND THE REACH OF
EXTRADITION."
THE RULINGS AND DICTA IN EZETA HAD SOME SUPPORT IN U.S. AND
FOREIGN PRACTICE DURING THE NINETEENTH CENTURY. GRANTING
ASYLUM TO REVOLUTIONARIES WAS SEEN AS ENLIGHTENED. BUT THE
POLITICAL OFFENSE DOCTRINE HAS ANOTHER SIDE. SEVERAL
INCIDENTS, DIPLOMATIC DECISIONS. AND RULINGS DURING THE
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NINETEENTH AND TWENTIETH CENTURIES INDICATE THAT THE U.S. AND
OTHER COUNTRIES HAVE TAKEN THEIR PARTICULAR INTERESTS AND
POLITICAL IDEALS INTO ACCOUNT IN FORMULATING THE DOCTRINE'S
PRECISE CONTOURS. THIS HAS LED TO CERTAIN MODIFICATIONS AND
LIMITATIONS OF THE POLITICAL OFFENSE CONCEPT.
A PARTICULARLY DRAMATIC INSTANCE FOLLOWED THE ASSASSINATION
OF PRESIDENT LINCOLN. DESPITE THE POLITICAL NATURE OF THE
C'tIME THE U.S. SOUGHT AND OBTAINED COOPERATION FOR THE POSSIBLE
APPREHENSION ABROAD OF BOOTH AND ONE OF HIS SUSPECTED
CONSPIRATORS. ONE SUSPECT ACTUALLY WAS CAPTURED IN EGYPT. AND
SENT BACK TO THE U.S. ON AN AMERICAN PUBLIC VESSEL. THE NEED
TO PROTECT HEADS OF STATE WAS RECOGNIZED BY OTHER STATES AS
WELL. AND IS NOW A WIDELY ACCEPTED QUALIFICATION TO
POLITICAL-OFFENSE TREATMENT.
STATES HAVE ALWAYS FELT FREE TO ADOPT. REJECT. OR MODIFY
THE POLITICAL OFFENSE DOCTRINE TO SUIT THEIR INTERESTS. DURING
THE CIVIL WAR, FOR EXAMPLE. THE U.S. SEIZED IN MOROCCO. WITH
THE ACQUIESENCE OF THE GOVERNOR. TWO CONFEDERATE SAILORS ASHORE
TO OBTAIN COAL. AN OBJECTION WAS RAISED THAT THE SAILORS
SHOULD HAVE BEEN ALLOWED TO ASSERT THE POLITICAL OFFENSE
DOCTRINE. SECRETARY SEWARD REJECTED THE ARGUMENT, REASONING
THAT THESE MEN WERE "TAKEN IN THE VERY ACT OF WAR AGAINST THIS
GOVERNMENT." A SIMILAR INSTANCE OCCURRED WHEN FRANCE AND
BELGIUM AGREED TO SURRENDER INDIVIDUALS CONVICTED OF CRIMES
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DURING WORLD WAR II. AN OFFENDER CLAIMED THE SPYING AND
ASSASSINATION WITH WHICH HE WAS CHARGED WERE POLITICAL
OFFENSES. THE FRENCH COURTS REJECTED THE ARGUMENT BECAUSE
FRANCE COULD NOT BE DEEMED A NEUTRAL ON THE ISSUE: "THE OFFENSE
WAS COMMITTED IN TIME OF WAR BOTH AGAINST AN ALLY AND AGAINST
FRANCE, WHOSE INTERESTS WERE LINKED."
THE MORE RECENT PROBLEM OF AIRCRAFT HIJACKING FURTHER
DEMONSTRATES HOW THE DOCTRINE CAN BE APPLIED IN ACCORDANCE WITH
OUR NATIONAL. INTERESTS. DURING THE 1950'S. DESPITE OUR STRONG
OPPOSITION TO AIRCRAFT HIJACKINGS. WE (AND OUR WESTERN ALLIES)
REFUSED REQUESTS FROM CZECHOSLAVAKIA, THE U.S.S.R.. POLAND.
YUGOSLAVIA. AND OTHER TOTALITARIAN REGIMES FOR THE RETURN OF
PERSONS WHO HIJACKED TO ESCAPE FROM THOSE REGIMES. WHEN
AIRCRAFT HIJACKING REACHED EPIDEMIC PROPORTIONS IN THE LATE
60'S AND EARLY 70's WE DETERMINED THAT HIJACKINGS WERE TOO
SERIOUS A PROBLEM, AND TOO GREAT A THREAT TO THE SAFETY OF
INNOCENT PASSENGERS. TO BE TOLERATED. WE REEXAMINED THE POLICY
AND "CONCLUDED THAT THE HIJACKER OF A COMMERCIAL AIRCRAFT
CARRYING PASSENGERS FOR HIRE SHOULD BE RETURNED REGARDLESS OF
ANY CLAIM HE WAS FLEEING POLITICAL PERSECUTION." WE SUGGESTED,
DURING CONSIDERATION OF THE HAGUE CONVENTION ON HIJACKING. TO
ELIMINATE THE POLITICAL OFFENSE EXCEPTION FOR THAT CRIME. THE
EXCEPTION WAS RETAINED. HOWEVER. IN BOTH THE HIJACKING AND THE
MONTREAL SABOTAGE CONVENTIONS. THEREBY AUTHORIZING STATES TO
REFUSE EXTRADITION ON POLITICAL GROUNDS.
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PRIOR PRACTICE SHOWS. THEREFORE, THAT WE HAVE PRINCIPLED
GROUNDS UPON WHICH TO APPLY THE POLITICAL OFFENSE EXCEPTION SO
IT SERVES OUR NATIONAL VALUES AND INTERESTS RATHER THAN THOSE
OF TERRORISTS AND NATIONS WHICH SPONSOR TERRORISM. AS A FIRST
STEP, WE SHOULD REVISE OUR TREATIES WITH DEMOCRATIC ALLIES TO
NARROW THE POLITICAL OFFENSE EXCEPTION TO MAKE IT INAPPLICABLE
TO CRIMES OF VIOLENCE AND BREACHES OF ANTITERRORIST
CONVENTIONS. WE AR' OPPOSED TO REBELLIONS. REVOLUTIONS. AND
POLITICAL ASSASSINATION IN DEMOCRACIES. AND WE SHOULD NOT
PERMIT A DOCTRINE BORN TO REFLECT OUR BELIEF IN FREEDOM TO
SERVE THE INTERESTS OF THOSE SEEKING TO IMPOSE UNDEMOCRATIC
VIEWS THROUGH FORCE. IN THIS SENSE. WE ARE IN A SITUATION VERY
SIMILAR TO THAT IN WHICH FRANCE AND BELGIUM FOUND THEMSELVES
DURING WORLD WAR II: TERRORIST ACTS AGAINST ANY ONE OF THE
DEMOCRACIES CAN LEGITIMATELY BE SEEN AS PART OF A WAR AGAINST
US ALL.
TO ADVANCE THIS OBJECTIVE. WE RECENTLY SIGNED A
SUPPLEMENTAL TREATY WITH GREAT BRITAIN. WHICH NARROWS THE
POLITICAL OFFENSE DOCTRINE TO NONVIOLENT CRIMES. SIMILAR
TREATIES WITH OTHER NATIONS ARE IN THE WORKS. BUT WE HAVE RUN
INTO FIERCE OPPOSITION IN THE SENATE TO THE PROPOSED TREATY
WITH GREAT BRITAIN. INTENSE LOBBYING AND STRONG, EMOTIONAL
CONCERN ABOUT THE IRISH PROBLEM MAY LEAD THE SENATE TO REFUSE
TO RATIFY THIS TREATY. THAT WOULD BE A GRAVE SETBACK. IT
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WOULD MAKE US NO BETTER THAN THE OTHER NATIONS THAT HAVE THEIR
FAVORITE TERRORISTS. IF WE FAIL TO REJECT ABSOLUTELY THE USE
OF FORCE IN A DEMOCRACY THAT IS OUR CLOSEST ALLY, WE WILL LOSE
OUR CREDIBILITY IN URGING OTHER STATES TO COOPERATE IN OUR OWN
EFFORTS AGAINST TERRORISM.
WE WILL NEED TO DEVELOP OTHER IDEAS AS WELL. WE MUST
ESTABLISH THE PRINCIPLE, FOR EXAMPLE. THAT THE POLITICAL
OFFENSE EXCEPTION WOULD NOT BE APPLIED FOR VIOLATIONS OF
ESTABLISHED HUMAN RIGHTS. WE ALSO NEED TO BE MORE COOPERATIVE
WITH ALL NATIONS IN CONNECTION WITH VIOLATIONS OF ANTITERRORIST
MULTILATERAL CONVENTIONS, EVEN THOSE WHO ARE NOT OUR ALLIES.
WE HAVE A COMMON INTEREST IN REPRESSING SOME FORMS OF POLITICAL
VIOLENCE. WHATEVER THE ALLEGED CAUSE OR JUSTIFICATION.
III. TERRORISM AS PIRACY
PIRACY PROVIDES A RICH SOURCE OF EXPERIENCE BY WHICH TO
UNDERSTAND HOW LAW HAS DEALT WITH POLITICALLY MOTIVATED CRIME.
THE ACHILLE LAURO INCIDENT PRESENTED THE QUESTION WHETHER THE
ACTS OF THE HIJACKERS OF THAT VESSEL CONSTITUTED PIRACY "UNDER
THE LAW OF NATIONS." AND WERE THEREFORE A FELONY UNDER U.S.
LAW. THE HIJACKERS STOLE MONEY AND JEWELRY FROM THE SHIP'S
PASSENGERS. BUT THEIR PRIMARY PURPOSES WERE POLITICAL. THEY
WERE ALLEGEDLY SEEKING TO COMMIT ACTS OF VIOLENCE IN ISRAEL,
WHERE THE VESSEL PLANNED TO DOCK. AND AFTER TAKING CONTROL THEY
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DEMANDED THAT ISRAEL RELEASE CERTAIN TERRORISTS IT HAD
IMPRISONED. IS SUCH AN ENTERPRISE "PIRACY"?
THE ANCIENT LAW OF PIRACY COULD HAVE BEEN ONE VEHICLE FOR
REACHING TERRORISTS. WITH FEWER LOOPHOLES FOR POLITICAL CRIMES
THAN RECENT CONVENTIONS. BUT PIRACY HAS BEEN DEFINED IN THE
U.N. CONVENTION ON THE LAW OF THE SEA. AND IN THE 1958 GENEVA
CONVENTION ON THE HIGH SEAS. AS ANY ILLEGAL ACT OF VIOLENCE.
DETENTION. OR DEPREDATION, COMMITTED AGAINST A SHIP "FOR
PRIVATE ENDS." THE PRIVATE-ENDS REQUI'EMENT WAS USED
DELIBERATELY TO EXCLUDE ACTS WITH PUBLIC OR POLITICAL ENDS.
THE SPECIAL RAPPORTEUR FOR THE INTERNATIONAL LAW COMMISSION,
WHICH DRAFTED THE GENEVA CONVENTION. EXPLAINED THAT "HE HAD
DEFINED AS PIRACY ACTS OF VIOLENCE OR DEPREDATION COMMITTED FOR
PRIVATE ENDS. THUS LEAVING OUTSIDE THE SCOPE OF THE DEFINITION
ALL WRONGFUL ACTS PERPETRATED E A POLITICAL PURPOSE.*
THE DECISION TO LIMIT THE DEFINITION OF PIRACY TO WRONGFUL
ACTIONS TAKEN FOR "PRIVATE ENDS" HAD. AND CONTINUES TO HAVE.
GREAT SIGNIFICANCE. THE CONVENTION ON THE HIGH SEAS WAS
INTENDED TO CONFIRM THE EXISTENCE OF UNIVERSAL JURISDICTION FOR
ANY STATE TO CAPTURE AND PUNISH ALL PERSONS WHO COMMITTED
WRONGFUL ACTS ON THE HIGH SEAS OR IN THE AIR. OR IN ANY OTHER
PLACE WHERE NO STATE HAS JURISDICTIOt1. THE CONVENTION. IN
FACT. GOES FURTHER THAN MERELY PERMITTING STATES TO ACT.
ARTICLE 14 PROVIDES THAT "ALL STATES SHALL COOPERATE TO THE
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FULLEST POSSIBLE EXTENT IN THE REPRESSION OF PIRACY . . . 0a
AND THE COMMENTARY TO THIS PROVISION STATES THAT "ANY STATE
HAVING AN OPPORTUNITY OF TAKING MEASURES AGAINST PIRACY. AND
NEGLECTING TO DO SO, WOULD BE FAILING IN A DUTY LAID UPON IT BY
INTERNATIONAL LAW." BY NARROWING THE DEFINITION OF PIRACY. THE
CONVENTION EXCLUDED FROM THIS INTERNATIONAL DUTY TO REPRESS
PIRACY "TO THE FULLEST POSSIBLE EXTENT." ALL POLITICALLY
MOTIVATED ATTACKS ON VESSELS AND AIRCRAFT.
THIS MISSED OPPORTUNITY TO SUPPRESS TERRORISM WAS NOT
REQUIRED NOR EVEN SUPPORTED BY TRADITIONAL DOCTRINE. PIRACY
LAW HAD LONG EXEMPTED STATE VESSELS AND RECOGNIZED
BELLIGERENTS. WHEN THEY ENGAGED IN LAWFUL ACTS OF WAR. WRITERS
WHO BELIEVED THAT INSURGENTS SHOULD NOT BE TREATED AS PIRATES
REASONED THAT THEY WERE THE ENEMIES, NOT OF MANKIND. BUT ONLY
OF A PARTICULAR STATE. THIS RECOGNIZED EXEMPTION APPLIED.
HOWEVER. ONLY IF THE INSURGENT VESSEL "CONFINES ITSELF TO
DEPREDATIONS AGAINST ITS OWN COUNTRY. . . ." BY FAILING TO
ABIDE BY THIS TRADITIONAL RULE. THE CONVENTION COMES OUT
SQUARELY AGAINST ALLOWING STATES TO RELY ON THE UNIVERSAL
JURISDICTION AS A BASIS FOR REPRESSING POLITICALLY MOTIVATED
CRIMES AS PIRATICAL ACTS.
CONCEIVABLY. THE CONVENTION COULD BE READ TO COVER
INDISCRIMINATE ATTACKS ON CIVILIANS, OR ATTACKS MOTIVATED BY
RACE OR NATIONALITY. HAVING NO ORDINARY RELATIONSHIP TO AN
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INSURGENCY. SUCH AS THE MURDER OF KLINGHOFFER. BUT THE
INSURGENTS INVOLVED WOULD NO DOUBT CLAIM THEY WERE ACTING
POLITICALLY. EVEN IN KILLING KLINGHOFFER. AND HENCE COULD NOT
BE CALLED PIRATES UNDER THE CONVENTION.
WE MUST REVERSE THE PRIVATE-ENDS REQUIREMENT. AND REVERSE
THE CONVENTION IN ANY OTHER RESPECTS NECESSARY TO ENABLE
NATIONS MORE EFFECTIVELY TO SUPPRESS TERRORIST ACTS. PIRACY
FOR PUBLIC ENDS IS A GRATER INTERNATIONAL EVIL THAN PIRACY FOR
PRIVATE ENDS. AND SHOULD BE REGULATED ACCORDINGLY.
IV. TERRORISM AND THE LAWS OF WAR
THE LAWS OF WAR MARK THE LINE BETWEEN WHAT IS CRIMINAL AND
WHAT IS AN ACT OF COMBAT. A PERSON WHO KILLS SOMEONE IS
NORMALLY A MURDEROR. IF HE DOES IT DURING COMBAT. HOWEVER. HE
IS A SOLDIER AND CAN ONLY BE HELD AS A POW AND PUNISHED IF THE
KILLING IS IMPROPER UNDER THE LAWS OF WAR. RADICAL GROUPS
RESPNSIBLE FOR TERRORIST ACTS HAVE LONG SOUGHT LEGITIMACY FOR
THEIR CRIMES BY SECURING TREATMENT UNDER THE LAWS OF WAR AS
COMBATANTS RATHER THAN CRIMINALS.
THE EFFORT OF RADICAL GROUPS TO ACQUIRE LEGAL LEGITIMACY
HAD A SIGNIFICANT SUCCESS IN THE GENEVA DIPLOMATIC CONFERENCE
ON THE REAFFIRMATION OF INTERNATIONAL HUMANITARIAN LAW
APPLICABLE IN ARMED CONFLICT, WHICH SAT BETWEEN 1974 AND 1977.
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THE CONFERENCE, UNDER THE AUSPICES OF THE INTERNATIONAL
COMMITTEE FOR THE RED CROSS ("ICRC"). WAS CALLED TO IMPROVE THE
LAWS OF WAR SET FORTH IN THE GENEVA CONVENTIONS OF 1949. IT
PRODUCED TWO ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS.
ONE DEALING WITH INTERNATIONAL, THE OTHER WITH
NON-INTERNATIONAL. ARMED CONFLICT.
THE ICRC AND THE CONFERENCE DEVELOPED MANY CONSTRUCTIVE
IDEAS TO HELP MINIMIZE THE SUFFERING OF COMBATANTS AND
NONCOMBATANTS IN ARMED CONFLICT. BUT FROM THE BEGINNING OF THE
CONFERENCE, AN EFFORT BEGAN TO EXTEND THE LAW OF INTERNATIONAL
ARMED CONFLICTS TO COVER THE PLO AND OTHER RADICAL GROUPS. MANY
OF WHOM WERE ACCORDED OBSERVER STATUS.
THE FIRST SUBSTANTIVE ADDRESS. AFTER ELECTION OF THE
CONFERENCE PRESIDENT. URGED THE CONFERENCE TO RECOGNIZE
"CERTAIN VALUES AND ELEMENTARY RIGHTS WHICH WENT BEYOND THE
UNIVERSAL DECLARATION OF HUMAN RIGHTS." BECAUSE MILLIONS WERE
"STILL UNDER COLONIAL OPPRESSION IN THE AFRICAN CONTINENT,
WHILE INTERNATIONAL ZIONISM HAD PLACED THE PALESTINIAN
POPULATION IN AN IMPOSSIBLE SITUATION." THE SPEAKER ASKED THE
CONFERENCE TO CONSIDER. NOT ONLY EFFECTS. BUT CAUSES AS WELL.
AND TO RECOGNIZE "THERE WERE SUCH THINGS AS JUST WARS." HE
SAID: "IT WAS QUITE OBVIOUS THAT IT WAS THE ZIONISTS WHO WANTED
TO THROW THE ARABS INTO THE SEA . . .. AND THAT] NATIONAL
LIBERATION MOVEMENTS DID NOT WANT TO SHED BLOOD, ONLY TO SECURE
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RECOGNITION OF THEIR RIGHTS."
THE CONFERENCE ADOPTED IN ITS FIRST SESSION WHAT IS NOW
ARTICLE 1(4) OF PROTOCOL I. THIS ARTICLE MAKES THE LAWS OF
INTERNATIONAL ARMED CONFLICT APPLICABLE TO "ARMED CONFLICTS IN
WHICH PEOPLES ARE FIGHTING AGAINST COLONIAL DOMINATION AND
ALIEN OCCUPATION AND AGAINST RACIST R(GIMES IN THE EXERCISE OF
THE RIGHT OF SELF-DETERMINATION . . ." NEVER BEFORE HAS THE
APPLICABILITY OF THE LAWS OF WAR BEEN MADE TO TURN ON THE
PURPORTED AIMS OF A CONFLICT. MOREOVER, THIS PROVISION
OBLITERATED THE TRADITIONAL DISTINCTION BETWEEN INTERNATIONAL
AND NON-INTERNATIONAL ARMED CONFLICT. ANY GROUP WITHIN A
NATIONAL BOUNDARY, CLAIMING TO BE FIGHTING AGAINST COLONIAL
DOMINATION. ALIEN OCCUPATION, OR A RACIST REGIME. CAN NOW ARGUE
THAT IT IS PROTECTED BY THE LAWS OF WAR, AND THAT ITS MEMBERS
ARE ENTITLED TO POW STATUS FOR THEIR OTHERWISE CRIMINAL ACTS.
MEMBERS OF RADICAL GROUPS IN THE U.S. HAVE ALREADY DONE SO IN
OUR OWN FEDERAL COURTS.
THE ICRC AND MOST WESTERN NATIONS EXPRESSED NO ADMIRATION
FOR ARTICLE 1 (4). SOME CONTEND. HOWEVER. THAT AS A RESULT OF
THE NEW RULE, HUMANITARIAN LAW NOW GOVERNS THE ACTIONS OF
NATIONAL LIBERATION GROUPS. WHILE THE PLO AND OTHER "FREEDOM
FIGHTERS" MAY NOW CLAIM THE BENEFITS OF THE LAWS OF WAR. THEY
THEREBY BECOME BOUND TO OBEY THESE RULES. THIS, IN SOME EYES,
IS SEEN AS AN ADVANCE FOR HUMANITARIAN LAW.
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IN FACT. RADICAL GROUPS RARELY HAVE THE RESOURCES AND
FACILITIES TO PROVIDE THE PROTECTIONS FOR PRISONERS OF WAR
REQUIRED BY THE LAWS OF WAR. EVEN IF THEY HAD THE RESOURCES,
NO REASON EXISTS TO BELIEVE THEY HAVE THE INCLINATION TO
PROVIDE THEM, OR TO ABIDE BY THE LAW'S LIMITATIONS ON THE
ACTIONS THEY MAY TAKE. PARTICULARLY AGATNST CIVILIANS. IN
FACT. NO DOUBT RECOGNIZING THAT THE PLO AND OTHER "FREEDOM
FIGHTERS" HAVE CONCENTRATED THEIR GUNS. BOMBS, AND ROCKETS ON
CIVILIAN NONCOMBATANTS. THE SUPPORTERS or ARTICLE 1(4) OBTAINED
AT THE CONFERENCE AN ADDITIONAL PROTECTION FOR THESE GROUPS.
ARTICLE 44(1) PROVIDES THAT, ONCE A GROUP QUALIFIES AS A
NATIONAL LIBERATION MOVEMENT, PROTECTED BY ARTICLE 1(4). NO
CONDUCT BY MEMBERS OF THE GROUP CAN LEAD TO THE LOSS OF ITS
STATUS AS A PROTECTED ORGANIZATION. THE RATIONALE FOR THIS
RULE IS THAT INDIVIDUALS CAN BE PUNISHED SEPARATELY FOR THEIR
CONDUCT. THE EFFECT IS TO PRESERVE THE RIGHT OF SUCH
ORGANIZATIONS TO BE TREATED AS COMBATANTS, EVEN THOUGH THEY ARE
ALMOST EXCLUSIVELY ENGAGED IN TERRORIZING CIVILIANS.
THE CONFERENCE WENT EVEN FURTHER IN ACCOMMODATING THE NEEDS
OF TERRORIST GROUPS, AND AT THE EXPENSE OF THE CIVILIAN
POPULATION THAT HUMANITARIAN LAW IS INTENDED TO PROTECT. A
FUNDAMENTAL PREMISE OF THE GENEVA CONVENTIONS HAS BEEN THAT. TO
EARN THE RIGHT TO PROTECTION AS MILITARY FIGHTERS, SOLDIERS
MUST DISTINGUISH THEMSELVES FROM CIVILIANS BY WEARING UNIFORMS,
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AND CARRYING THEIR WEAPONS OPENLY. THUS. UNDER THE 1949 GENEVA
CONVENTIONS. IRREGULAR FORCES ACHIEVE COMBATANT (AND, IF
CAPTURED. POW) STATUS. WHEN THEY (1) ARE COMMANDED BY A PERSON
RESPONSIBLE FOR SUBORDINATES: (2) WEAR A FIXED. DISTINCTIVE
INSIGNIA RECOGNIZABLE FROM A DISTANCES (3) CARRY WEAPONS
OPENLY; AND (4) CONDUCT THEIR OPERATIONS IN ACCORDANCE WITH THE
LAWS AND CUSTOMS OF WAR. FIGHTERS WHO ATTEMPT TO TAKE
ADVANTAGE OF CIVILIANS BY HIDING AMONG THEM IN CIVILIAN DRESS.
WITH THEIR WEAPONS OUT OF VIEW. LOSE THEIR CLAIM TO BE TREATED
AS SOLDIERS. THE LAW THUS ATTEMPTS TO ENCOURAGE FIGHTERS TO
AVOID PLACING CIVILIANS IN UNCONSCIONABLE JEOPARDY.
THE TERRORIST GROUPS THAT ATTENDED THE CONFERENCE HAD NO
INTENTION TO MODIFY THEIR CONDUCT TO SATISFY THESE TRADITIONAL
RULES OF ENGAGEMENT. TERRORISTS ARE NOT SOLDIERS. THEY DON'T
WEAR UNIFORMS. THEY HIDE AMONG CIVILIANS. AND AFTER STRIKING
THEY TRY TO ESCAPE ONCE AGAIN INTO CIVILIAN GROUPS. INSTEAD OF
MODIFYING THEIR CONDUCT. THEY SUCCEEDED IN MODIFYING THE LAW.
ARTICLE 44(3) OF PROTOCOL I RECOGNIZES THAT TO PROMOTE THE
PROTECTION OF THE CIVILIAN POPULATION FROM THE EFFECTS OF
HOSTILITIES. COMBATANTS ARE OBLIGED TO DISTINGUISH THEMSELVES
FROM THE CIVILIAN POPULATION WHILE THEY ARE ENGAGED IN AN
ATTACK OR IN A MILITARY OPERATION PREPARATORY TO AN ATTACK."
BUT THE PROVISION GOES ON TO STATE "THAT THERE ARE SITUATIONS
IN ARMED CONFLICTS WHERE. OWING TO THE NATURE OF THE
HOSTILITIES AN ARMED COMBATANT CANNOT SO DISTINGUISH
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HIMSELF. . . ." IN SUCH SITUATIONS. "HE SHALL RETAIN HIS
STATUS AS A COMBATANT. PROVIDED . . . HE CARRIES HIS ARMS
OPENLY: (A) DURING EACH MILITARY ENGAGEMENT. AND (B) DURING
EACH TIME AS HE IS VISIBLE TO THE ADVERSARY WHILE HE IS ENGAGED
IN A MILITARY DEPLOYMENT PRECEDING THE LAUNCHING OF AN ATTACK
IN WHICH HE IS TO PARTICIPATE." FURTHERMORE. THE SECTION
PROVIDES THAT "(A)CTS WHICH COMPLY WITH THE REQUIREMENTS OF
THIS PARAGRAPH SHALL NOT BE CONSIDERED AS PERFIDIOUS" -- FOR
EXAMPLE. FEIGNING PROTECTED STATUS BY USING SIGNS. EMBLEMS OR
UNIFORMS OF THE U.N. OR STATES NOT PARTIES TO THE CONFLICT.
THESE CHANGES UNDERMINE THE NOTION THAT THE PROTOCOL HAS
SECURED AN ADVANTAGE FOR HUMANITARIAN LAW BY GRANTING TERRORIST
GROUPS PROTECTION AS COMBATANTS. UNDER THE GENEVA CONVENTION.
A TERRORIST COULD NOT HIDE AMONG CIVILIANS UNTIL JUST BEFORE AN
ATTACK. UNDER PROTOCOL I HE MAY DO SO: HE NEED ONLY CARRY HIS
ARMS OPENLY WHILE HE IS VISIBLY ENGAGED IN A DEPLOYMENT OR
WHILE HE IS IN AN ACTUAL ENGAGEMENT.
THE SIGNIFICANCE OF PROTOCOL I TO TERRORIST ORGANIZATIONS
IS NOT A MATTER OF HYPOTHETICAL SPECULATION. THEY WERE AT THE
CONFERENCE AND LOBBIED HARD FOR THESE PROVISIONS. THE DEGREE
OF THEIR SUCCESS IS NOT IN DOUBT. AFTER THE VOTE ON PROTOCOL
I. THE PLO'S REPRESENTATIVE "EXPRESSED HIS DEEP SATISFACTION AT
THE RESULT OF THE VOTE, BY WHICH THE INTERNATIONAL COMMUNITY
HAD RE-CONFIRMED THE LEGITIMACY OF THE STRUGGLES OF PEOPLES
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EXERCISING THEIR RIGHT TO SELF-DETERMINATION." TURNING TO
ARTICLE 1(4). HE EXPLAINED ITS SIGNIFICANCE AS AUTHORITY FOR
THE PLO'S ACTIONS:
THE ARAB PEOPLE OF PALESTINE FELL WITHIN ALL
THREE OF THE CATEGORIES MENTIONED IN PARAGRAPH
4: THEY WERE UNDER COLONIAL DOMINATION: THEIR
TERRITORY WAS UNDER FOREIGN OCCUPATION. DESPITE
THE ASSERTIONS OF THE TERRORIST BEGIN: AND THEY
WERE SUFFERING UNDER A RACIST REGIME. SINCE
ZIONISM HAD BEEN RECOGNIZED IN A UNITED NATIONS
RESOLUTION AS A FORM OF RACISM. HE WISHED TO
EXPRESS HIS GRATITUDE TO THE JUSTICE- AND
PEACE-LOVING PEOPLES WHO HAD GIVEN THEIR SUPPORT
TO THE STRUGGLES OF ALL PEOPLES FIGHTING FOR
SELF-DETERMINATION.
V. PROTECTION OF DIPLOMATS AND HOSTAGES
IN A NUMBER OF AREAS. THE INTERNATIONAL COMMUNITY HAS
ADOPTED INTERNATIONAL CONVENTIONS DESIGNED TO COMBAT
TERRORISM. TYPICALLY. THESE CONVENTIONS REQUIRE STATES PARTIES
TO ENACT LAWS CRIMINALIZING SPECIFIED ACTS. AND OBLIGATE THEM
TO EXTRADITE OR PROSECUTE PERSONS SUSPECTED OF ENGAGING IN THE
PROHIBITED CONDUCT. THESE CONVENTIONS REFLECT A WELCOME DEGREE
OF INTERNATIONAL COOPERATION. ON THE OTHER HAND. THE
CONVENTIONS ALSO REFLECT PAINSTAKINGLY NEGOTIATED. FRAGILE
COMPROMISES. PAPERING OVER RADICALLY DIFFERENT CONCEPTIONS OF
THE PROPRIETY OF TERRORIST CONDUCT.
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IN 1973 THE UNITED NATIONS GENERAL ASSEMBLY ADOPTED A
CONVENTION FOR THE PROTECTION OF DIPLOMATS. TO WHICH
THIRTY-THREE COUNTRIES ARE CURRENTLY PARTIES. THE CONVENTION
DEFINES A CLASS OF INTERNATIONALLY PROTECTED PERSONS. REQUIRES
STATES TO CRIMINALIZE CERTAIN VIOLENT ACTS DIRECTED AGAINST
SUCH PERSONS OR THEIR PROPERTY. AND REQUIRES STATES TO
EXTRADITE OR PROSECUTE SUSPECTED OFFENDERS FOUND IN THEIR
TERRITORY. THE CONVENTION TEXT IS NON-POLEMICAL. AND ITS
COVERAGE IS RELATIVELY COMPREHENSIVE -- NOT SURPRISING WHEN ONE
REALIZES THAT IT WAS DRAFTED. NEGOTIATED. AND ADOPTED BY THE
CONVENTION'S PRINCIPAL BENEFICIARIES -- DIPLOMATS.
WHAT IS SURPRISING, HOWEVER. IS HOW CLOSE THE NEGOTIATIONS
CAME TO BEING DERAILED. AND THE LACK OF UNDERLYING CONSENSUS
THAT THE DISCUSSIONS REFLECT.
NEAR THE END OF THE NEGOTIATIONS. A GROUP OF COUNTRIES
PROPOSED AN ARTICLE THAT WOULD HAVE MADE THE CONVENTION
INAPPLICABLE TO "PEOPLES STRUGGLING AGAINST COLONIALISM. ALIEN
DOMINATION. FOREIGN OCCUPATION. RACIAL DISCRIMINATION AND
APARTHEID IN THE EXERCISE OF THEIR LEGITIMATE RIGHTS TO
SELF-DETERMINATION AND INDEPENDENCE." YOU NOW HAVE SOME IDEA
OF WHAT THESE PHRASES MEAN. SOME CLAIMED THE ARTICLE WAS
NEEDED TO PREVENT THE CONVENTION FROM BEING USED BY "COLONIAL
AND RACIST REGIMES AS A PRETEXT FOR OPPRESSING THE PEOPLES
UNDER THEIR DOMINATION EVEN MORE SAVAGELY THAN BEFORE."
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ANOTHER DELEGATE SAID HE COULD NOT FAVOR A CONVENTION THAT
WOULD ENSURE THE GOVERNMENTAL AGENTS OF CERTAIN STATES "AGAINST
ALL RISKS." THE BRUTAL TRUTH IS THAT THESE DELEGATES WERE
ARGUING THAT THE RIGHT OF SELF-DETERMINATION INCLUDED THE RIGHT
TO COMMIT VIOLENT ACTS AGAINST DIPLOMATS.
THIS POSITION WAS UNACCEPTABLE TO THE U.S. AS WELL AS
OTHERS. IT WAS EVENTUALLY REJECTED, BUT ON A BASIS THAT CASTS
A PALL OVER THE WHOLE EXERCISE. WE WERE REQUIRED TO ACQUIESCE
IN A GENERAL ASSEMBLY RESOLUTION RECOGNIZING THAT NOTHING IN
THE CONVENTION COULD "IN ANY WAY PREJUDICE THE EXERCISE OF THE
LEGITIMATE RIGHT TO SELF-DETERMINATION AND INDEPENDENCE . . .
BY PEOPLES STRUGGLING AGAINST COLONIZATION, ALIEN DOMINATION.
FOREIGN OCCUPATION. RACIAL DISCRIMINATION AND APARTHIED." IN
ADDITION, PARAGRAPH 6 OF THE RESOLUTION REQUIRED "THAT THE
PRESENT RESOLUTION. WHOSE PROVISIONS ARE RELATED TO THE AMENDED
CONVENTION. SHALL ALWAYS BE PUBLISHED TOGETHER WITH IT." WHILE
THESE PROVISIONS CANNOT BE CONSIDERED LAW. THEY ARE A CLEAR
INDICATION OF WHAT MANY STATES BELIEVE. AND OF THE MUSCLE THOSE
STATES WERE ABLE TO DEMONSTRATE IN GETTING THE RESOLUTION
ADOPTED AS PART OF A PACKAGE DEAL. THEY PUT US ON NOTICE THAT.
IN THE FUTURE. STATES MAY RELY ON THE RESOLUTION TO CIRCUMVENT
THE ABSOLUTE OBLIGATIONS OF THE CONVENTION. IN FACT. ONE
COUNTRY ACCEDED BUT RESERVED THE RIGHT NOT TO APPLY THE
CONVENTION TO NATIONAL LIBERATION MOVEMENTS. AND ANOTHER
INDICATED ITS INTENTION TO ACCORD PROTECTED STATUS TO THE
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REPRESENTATIVES OF CERTAIN NATIONAL LIBERATION MOVEMENTS. AT
LEAST ONE OF WHICH IS AN ORGANIZATION COMMITTED TO THE USE OF
TERROR. THEREFORE. EVEN SO SEEMINGLY NEUTRAL AN ISSUE AS THE
PROTECTION OF DIPLOMATS FAILED TO ESCAPE THE POLITICAL
DIVISIVENESS THAT PERVADES THE WORLD COMMUNITY ON THE
APPROPRIATE USE OF TERROR.
THE CONVENTION AGAINST THE TAKING OF HOSTAGES TEACHES
SIMILAR LESSONS. THE CONVENTION CRIMINALIZES HOSTAGE TAKING.
REQUIRES STATES TO ENACT IMPLEMENTING LEGISLATION. AND IMPOSES
AN EXTRADITE-OR-PROSECUTE OBLIGATION. ONE EXTRAORDINARY
PROVISION PRECLUDES EXTRADITION WHERE THE SUSPECT IS LIKELY TO
BE UNFAIRLY TREATED. THUS PROVIDING A READY EXCUSE FOR REFUSING
TO EXTRADITE. BUT THE OBLIGATION TO PROSECUTE REMAINS. ON THE
WHOLE. THE CONVENTION ESTABLISHES A USEFUL SCHEME FOR
COMBATTING HOSTAGE-TAKING BY TERRORISTS. AND THE SECURITY
COUNCIL ON DECEMBER 18. 1985. ADOPTED A RESOLUTION CONDEMNING
UNEQUIVOCALLY ALL ACTS OF HOSTAGE-TAKING AND ABDUCTION.
A REVIEW OF THE NEGOTIATING HISTORY OF THE CONVENTION.
HOWEVER, REVEALS THE DEEP DIVISIONS THAT EXIST. AT THE OUTSET,
A NUMBER OF COUNTRIES SOUGHT TO EXCLUDE FROM THE CONVENTION
HOSTAGE-TAKING BY NATIONAL LIBERATION MOVEMENTS. SOME STATES
WANTED. NOT ONLY TO EXEMPT SUCH MOVEMENTS, BUT TO DEFINE
HOSTAGE-TAKING TO INCLUDE THE ACT OF SUBJECTING PERSONS TO
COLONIALISM. RACISM, OR FOREIGN DOMINATION. IN OTHER WORDS.
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ALL THE PEOPLE IN A NATION DETERMINED TO BE RACIST WOULD BE
DEEMED HOSTAGES. AND THE GOVERNMENT TO BE HOSTAGE TAKERS.
THESE RADICAL PROPOSALS WERE EVENTUALLY REJECTED. ONCE
AGAIN. HOWEVER, A PRICE WAS PAID. ARTICLE 12 OF THE HOSTAGE
CONVENTION WAS ADDED TO PROVIDE THAT. TO THE EXTENT THE GENEVA
CONVENTIONS AND THE ADDITIONAL PROTOCPLS IMPOSE SUBSTANTIVELY
IDENTICAL OBLIGATIONS. THE HOSTAGE CONVENTION WILL NOT APPLY TO
THE ARMED CONFLICTS SPECIFIED IN ARTICIE 1 (4) OF PROTOCOL I.
THIS CHANGE DOES NOT, IN OUR VIEW, CREATE A LEGAL GAP IN
COVERAGE. ALL INSTANCES OF HOSTAGE-TAKING WILL BE SUBJECT TO
AN EXTRADITE-OR-PROSECUTE OBLIGATION UNDER ONE OF THE TWO
CONVENTIONS. BUT THE STATES WHICH SOUGHT THIS PROVISION
SUCCEEDED IN USING THE HOSTAGE CONVENTION TO ACHIEVE A
RHETORICAL AND POLITICAL VICTORY. THEY CAN NOW ARGUE THAT THE
STRUCTURE AND LANGUAGE OF ARTICLE 12 REPRESENTS SOME MEASURE OF
ACCEPTANCE THAT MEMBERS OF NATIONAL LIBERATION MOVEMENTS ARE
COMBATANTS. NOT TERRORISTS. ONE DELEGATE. FOR INSTANCE.
EXPRESSED THE VIEW THAT THE COMMITTEE CONSIDERING THE
CONVENTION HAD. BY ITS ACTION. "REAFFIRMED . . . THAT THE
STRUGGLE OF THE LIBERATION MOVEMENTS WAS LEGAL, THAT IT WAS
BASED ON PROVISIONS OF INTERNATIONAL LAW OF WAR AND THAT IT
COULD NOT BE CONFUSED WITH THE CRIMINAL ACTIVITY OF
IRRESPONSIBLE PERSONS AND TERRORIST GROUPS AND ORGANIZATIONS."
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ACCORDINGLY, ALTHOUGH THE LANGUAGE OF ARTICLE DOES NOT
CREATE A LEGAL GAP, IT DOES AFFECT THEIR TREATMENT. ONE
CONSEQUENCE IS THAT THE PROSECUTION OF HOSTAGE TAKERS FROM
"LIBERATION MOVEMENTS" IN COUNTRIES THAT ACCEPT PROTOCOL I AND
RECOGNIZE THE GROUPS AS COMBATANTS MAY HAVE TO TAKE THE FORM OF
A PROCEEDING FOR BREACH OF THE LAWS OF WAR. IT IS COMICALLY
BIZARRE TO SUGGEST THAT PERSONS LIKE ABU ABBAS SHOULD BE
TREATED AS WAYWARD SOLDIERS. THAT THE LAWS OF WAR AND THE LAWS
AGAINST HOSTAGE-TAKING HAVE BEEN REWRITTEN TO PERMIT THAT
RESULT REFLECTS THE STRENGTH OF INFLUENCE TERRORIST
ORGANIZATIONS AND THEIR SUPPORTERS NOW WIELD IN INTERNATIONAL
LAW.
VI. STATE-SPONSORED TERRORISM
WE SHOULD HARDLY BE SURPRISED THAT STATE SUPPORT FOR
TERRORISM IS WIDESPREAD. IT HAS LARGELY BEEN THE
REPRESENTATIVES OF STATES. AFTER ALL, THAT HAVE WRITTEN AND
REWRITTEN INTERNATIONAL LAW SO THAT IT LEGITIMIZES AND PROTECTS
TERRORIST ACTIVITIES. THE DISTINGUISHING FEATURE OF
INTERNATIONAL TERRORISM IS, IN FACT, ITS POLITICAL CHARACTER.
FOR SOME GROUPS. TERRORISM IS THEIR CHOSEN METHOD TO ADVANCE
POLITICAL AIMS. FOR SOME STATES. TERRORISTS ARE A BRANCH OF
THEIR ARMED FORCES -- FUNDED. BASED, TRAINED AND USED AS A
SPECIAL FORM OF MILITARY UNIT. AS A RESULT, INTERNATIONAL
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TERRORISM TODAY HAS BECOME AN ASPECT OF INTERNATIONAL POLITICS.
NATIONS SUCH AS LIBYA AND IRAN USE TERROR TO ADVANCE THEIR
INTERESTS JUST AS OTHER NATIONS PREVIOUSLY HAVE USED DIPLOMACY
AND CONVENTIONAL FORCE. THE SOVIET UNION AND OTHER COMMUNIST
STATES SUPPORT SUCH NATIONS FOR THEIR OWN GEOPOLITICAL REASONS.
OUR RESPONSE TO THEIR CHALLENGE MUST BE CONSISTENT WITH
INTERNATIONAL LAW. UNDER THE U.N. CHARTER, JUST AS UNDER
CUSTOMARY INTERNATIONAL LAW, VICTIMS OF TERRORISM ARE NOf
POWERLESS TO DEFEND THEMSELVES. THE CHARTER ALLOWS US TO ACT
AFFIRMATIVELY AGAINST TERRORIST ATTACKERS AND THE STATES THAT
SUPPORT THEM.
THIS PRINCIPLE IS WELL-ESTABLISHED. IT IS REFLECTED IN THE
CHARTER'S REAFFIRMATION OF THE INHERENT RIGHT TO USE FORCE IN
INDIVIDUAL OR COLLECTIVE SELF-DEFENSE AGAINST ARMED ATTACK.
SINCE THE DAYS OF JAMES MADISON, THE UNITED STATES HAS
REPEATEDLY AND LAWFULLY ACTED AGAINST ARMED BANDS THAT ATTACKED
AMERICANS AND THEN FLED. SEEKING SANCTUARY IN NEIGHBORING
STATES UNWILLING OR POWERLESS TO PREVENT OR PUNISH THEIR ACTS.
WITH THE ACQUIESCENCE OF THE HARBORING STATE. AS IN THE CASE OF
OUR OPERATIONS AGAINST PANCHO VILLA'S TERRORIST ATTACKS IN THE
EARLY PART OF THIS CENTURY, OR WITHOUT SUCH PERMISSION. AS IN
THE CASE OF ANDREW JACKSON'S ACTIONS TO STOP ATTACKS FROM
SPANISH FLORIDA. THE UNITED STATES HAS USED ITS FORCES TO BRING
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AN END TO TERRORIST ATTACKS ON AMERICAN CITIZENS AND INTERESTS.
OTHER STATES CONFRONTED WITH SUCH ATTACKS HAVE DEFENDED
THEMSELVES WITH FORCE. IN THE CELEBRATED CASE OF THE CAROLINE,
THE BRITISH PUSHED OVER NIAGARA FALLS A SHIP WITH SOME MEMBERS
OF AN ARMED BAND OF NEW YORKERS WHO WERE IN THE PROCESS OF
SUPPORTING AN INSURRECTION IN CANADA. WHILE THE AMERICAN
GOVERNMENT THOUGHT THE BRITISH HAD ACTED HARSHLY. BOTH
GOVERNMENTS AGREED ON THE LAW: THE USE OF FORCE IN
SELF-DEFENSE IS APPROPRIATE SO LONG AS IT IS NECESSARY AND
PROPORTIONAL. THE INTERNATIONAL COURT OF JUSTICE RECOGNIZED
THIS PRINCIPLE IN THE CORFU CHANNEL CASE, WHERE BRITAIN HAD
SWEPT MINES FROM THE CHANNEL AFTER SUFFERING DAMAGE TO ITS
SHIPS. IN HOLDING ALBANIA LIABLE FOR THE DAMAGES, THE COURT
REAFFIRMED THE "WELL-RECOGNIZED" PRINCIPLE THAT EVERY STATE HAS
AN OBLIGATION "NOT TO ALLOW KNOWINGLY ITS TERRITORY TO BE USED
FOR ACTS CONTRARY TO THE RIGHTS OF OTHER STATES."
As SECRETARY OF STATE SHULTZ HAS SAID, IN THE FIGHT AGAINST
TERRORISM AS IN THE STRUGGLE TO DETER AGGRESSION AND WAR,
THE LAW IS ON OUR SIDE AND IT IS UP TO US TO USE
IT TO ITS MAXIMUM EXTENT. . . . [A) STATE WHICH
SUPPORTS TERRORIST OR SUBVERSIVE ATTACKS AGAINST
ANOTHER STATE, OR WHICH SUPPORTS OR ENCOURAGES
TERRORIST PLANNING AND OTHER ACTIVITIES WITHIN
ITS OWN TERRITORY, IS RESPONSIBLE FOR SUCH
ATTACKS.
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SUCH CONDUCT CAN AMOUNT TO AN ONGOING ARMED
AGGRESSION AGAINST THE OTHER STATE UNDER
INTERNATIONAL LAW."
SOME PUBLIC OFFICIALS AND INTERNATIONAL LAW EXPERTS HAVE
QUESTIONED THE PREMISE THAT HARBORING AND SUPPORTING TERRORISTS
WHO ATTACK A NATION IS A FORM OF AGGRESSION. OTHERS SUGGEST
THAT NO FORCE MAY BE USED AGAINST SUCH A STATE UNDER THE U.N.
CHARTER. STRONG LEGAL SUPPORT EXISTS FOR THE U.S. POSITION ON
THESE ISSUES. HOWEVER. AS REFLECTED IN SEVERAL U.N. RESOLUTIONS
AND UNIVERSALLY RECOGNIZED PRINCIPLES OF CONSPIRACY AND AGENCY
LAW. HERE, AS IN OTHER AREAS. STATES AND INDIVIDUALS OPPOSED
IN PRINCIPLE TO U.S. POLICIES OR TO THE USE OF FORCE ARE USING
LAW AS A MASK FOR THEIR POLITICAL VIEWS. ONE NEED ONLY RECALL
HOW. DURING OUR UNPOPULAR WAR IN VIETNAM, MANY SCHOLARS AND
OFFICIALS CONTENDED THAT AN UNDECLARED WAR WAS ILLEGAL. DESPITE
OVERWHELMING AUTHORITY TO THE CONTRARY.
LAW CAN MAKE CLEAR THAT STATE SUPPORTED TERRORISM IS
ILLICIT. AND MAY THUS SERVE TO DETER IT. BUT NATIONS DO NOT
SURRENDER SERIOUSLY-HELD AMBITIONS TO EXPAND THEIR POWER AND
INFLUENCE SIMPLY BECAUSE THE LAW IS AGAINST THEM. QADHAFI.
KHOMEINI. AND THE COMMUNISTS ULTIMATELY SCORN OUR VALUES AND
EXPLOIT OUR HUMANITARIAN INHIBITIONS. WE CANNOT EXPECT LEGAL
ARGUMENT ALONE TO PROTECT US.
NOR WILL WE ENHANCE THE PROSPECT FOR PEACEFUL SETTLEMENT OF
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OUR DISPUTES WITH SUCH STATES BY PROMISING TO ABJURE FORCE OR
BY UNREALISTICALLY LIMITING OUR FLEXIBILITY. HOWEVER RELUCTANT
WE ARE AS A PEOPLE TO USE FORCE WE MUST AVOID OVERESTIMATING
THE LIMITS OF OUR TOLERANCE. AND PERHAPS CAUSING OUR
ADVERSARIES TO DO SO AS WELL. SIGNALLING A-LACK OF RESOLVE TO
DEFEND OUR FUNDAMENTAL INTERESTS INVITES RECKLESS ACTIVITY.
RATHER, WE MUST SIGNAL THROUGH WORDS AND DEEDS THAT THE
ALTERNATIVE TO TERMINATION OF STATE SPONSORSHIP OF TERRORISM IS
CONFRONTATION AND ACTION, COVERT OR OVERT, IN SELF-DEFENSE.
THE POLICEMAN IS AN APT PROTECTION AGAINST INDIVIDUAL
CRIMINALS; BUT NATIONAL SELF-DEFENSE IS THE ONLY PROTECTION
AGAINST THE CRIMINAL STATE.
VII. CONCLUSION
THIS SURVEY SHOWS THAT WE CANNOT REASONABLY EXPECT THE LAW,
AS PRESENTLY FORMULATED, EFFECTIVELY TO REPRESS INTERNATIONAL
TERRORISM. INTERNATIONAL TERRORISM IS STILL SUPPORTED BY MANY
NATIONS AS A LEGITIMATE MEANS OF STRUGGLE AGAINST REGIMES
DEEMED BY THEM TO BE COLONIAL, ALIEN, OR RACIST. MOST NATIONS
REFUSE TO EXTRADITE FOR "POLITICAL" CRIMES. AND MANY FAIL TO
ABIDE BY THE INTERNATIONAL CONVENTIONS CALLING FOR EXTRADITION
OR PROSECUTION. PIRACY COULD BE AN EXCELLENT VEHICLE FOR'
REPRESSING SEIZURES OF VESSELS AND AIRCRAFT. INSTEAD, ITS
SCOPE HAS BEEN REDUCED IN RECENT CONVENTIONS TO EXCLUDE
POLITICAL ACTS. THE LAWS OF WAR SERVE IN GENERAL, THROUGH
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APOLITICAL RULES AND STANDARDS. TO PROTECT NONCOMBATANTS AND
ADVANCE OTHER HUMANITARIAN GOALS. BUT PROTOCOL I WAS USED TO
OBTAIN COMBATANT STATUS FOR TERRORIST ORGANIZATIONS. WE HAVE
OBTAINED CONVENTIONS WHICH EXTEND PROTECTION TO DIPLOMATS AND
MAKE CRIMINAL THE TAKING OF HOSTAGES. BUT IN THE PROCESS OF
ADOPTING THOSE CONVENTIONS MANY NATIONS MADE CLEAR THAT THEY
SUPPORT THE LEGALITY OF ATTACKING DIPLOMATS IN WARS OF NATIONAL
LIBERATION. AND HAVE NO INTENTION OF TREATING HOSTAGE-TAKING BY
FAVORED GROUPS AS CRIMINAL. IN VIRTUALLY EVERY SUBJECT, THE
LAW HAS BEEN SYSTEMATICALLY AND INTENTIONALLY FASHIONED TO GIVE
SPECIAL TREATMENT TO, OR TO LEAVE UNREGULATED. THOSE ACTIVITIES
THAT CAUSE AND ARE THE SOURCE OF MOST ACTS OF TERROR.
THE NOTIONS AND VALUES THAT HAVE UNDERMINED THE UTILITY OF
INTERNATIONAL LAW IN CONTROLLING TERRORISM ARE FUNDAMENTALLY
IRRESPONSIBLE. THEY MAKE LAW SERVE TERRORISTS. THESE CONCEPTS
ARE REJECTED BY ALL NATIONS AS BASES UPON WHICH TO GOVERN
THEMSELVES. OUR COURTS. FOR EXAMPLE. HAVE REPEATEDLY REJECTED
DEFENSES IN CRIMINAL PROSECUTIONS BASED ON THE RIGHT TO
SELF-DETERMINATION, OR TO CONDUCT A WAR OF LIBERATION. OR ON
THE LAWS OF WAR, OR BECAUSE OF OTHER ALLEGEDLY LEGITIMATE
CAUSES. WE DO NOT EVEN TAKE THESE CONTENTIONS SERIOUSLY. AND
WE SHOULD NOT. ANY NATION THAT DID SO WOULD SOON BE LIVING IN
THE SAME MORAL CHAOS DOMESTICALLY IN WHICH THE LAW HAS LEFT THE
INTERNATIONAL COMMUNITY.
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THE FAILURE OF INTERNATIONAL LAW TO CONTROL TERRORISM IS A
t1ATTER OF GRAVE ETHICAL AND STRATEGIC CONCERN. WE ARE IN
DANGER OF LOSING OUR PATIENCE. TO AN EXTENT. IMPATIENCE WITH
INJUSTICE IS HEALTHY. BUT IMPATIENCE MAY LEAD TO MORE
PRIMITIVE AND DANGEROUS ACTIONS THAN COOPERATION AMONG
SOVEREIGN STATES. THESE DANGERS ARE ESPECIALLY HEIGHTENED IN
CONNECTION WITH TERRORISM THAT IS STATE-SUPPORTED. IF WE ARE
FORCED TO ASSERT OUR RIGHT OF SELF-DEFENSE, FURTHER ESCALATIONS
OF TERRORIST VIOLENCE MAY RESULT. ULTIMATELY LEADING TO
CONVENTIONAL MILITARY ACTIONS. THE COSTS OF TERRORIST
LAWLESSNESS COULD BE GRAVE INDEED.
TO FOCUS ON THE CAUSES OF MISERY. INJUSTICE. AND VIOLENCE
IS AN ESSENTIAL ASPECT OF ANY PROPER LEGAL REGIME. BUT A JUST
CAUSE CANNOT EXCUSE INDISCRIMINATE KILLING. OR THE PERSECUTION
OF ANY RACIAL. NATIONAL. OR RELIGIOUS GROUP. IN ANY EVENT. WE
ALL KNOW THAT TERRORISTS KILL AND MAIM PEOPLE FOR PLENTY OF
REASONS OTHER THAN A STRONG SENSE OF INJUSTICE. THEY KILL FOR
MONEY. FOR POWER. FOR FAME. OR FOR FUN -- FOR THE PLEASURE OF
KILLING THOSE THEY HATE. THE NOTION THAT TERRORISTS ARE ACTIVE
IN THE MIDEAST BECAUSE THE STATES INVOLVED WILL NOT DEAL WITH
THE PALESTINIAN PROBLEM IS ESPECIALLY PERNICIOUS. TERRORISM
INCREASES EVERY TIME PROGRESS IS MADE IN THE SEARCH FOR PEACE.
THE RECENT MURDER OF THE PRO-PLO PALESTINIAN MAYOR OF NABLUS
CAUSED GRIEF AND DEPRESSION IN THE WEST BANK. IN JORDAN. IN
EGYPT, AMONG THE PLO. AND THROUGHOUT THE HIGHEST LEVELS OF
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AMERICAN GOVERNMENT. HIS APPOINTMENT WAS AN IMPORTANT STEP
TOWARD PALESTINIAN SELF RULE. WERE HIS TERRORIST ASSASSINS
TRYING TO ADVANCE OR TO DISRUPT THE CAUSE OF PEACE?
WE CANNOT GIVE UP ON LAW, HOWEVER FRUSTRATED WE MAY FEEL BY
ITS ABUSE. IN FACT. WHAT I HAVE SAID TODAY IS THAT LAW HAS NOT
REALLY BEEN USED TO COUNTER TERRORISM: IT IS VERY MUCH IN THE
SERVICE OF THOSE WHO EMBRACE POLITICAL VIOLENCE. WE MUST WORK
FOR A BROADER UNDERSTANDING AMONG PEOPLE AS WELL AS GOVERNMENTS
TO BRING ABOUT A SHIFT IN THE OBJECTS WHICH LAW IS DESIGNED TO
SERVE. IF WE SUCCEED IN SHIFTING THE AIMS OF INTERNATIONAL
LAW. WE CAN THEN GIVE IT A FAIR CHANCE TO WORK. IF WE FAIL TO
SHIFT THOSE AIMS. WE MUST CONTINUE WITH LIKE-MINDED NATIONS TO
ARTICULATE AND ABIDE BY RULES THAT REFLECT OUR OWN MORAL AND
POLITICAL VALUES. WE MUST REMAIN TRUE TO THESE VALUES. EVEN
WHEN WE ARE FORCED TO USE OUR STRENGTH. ONLY THEN CAN WE
ULTIMATELY SUCCEED IN BRINGING LAW BACK TO THE UNAMBIVALENT
SERVICE OF HUMANITY.
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