Settling the long war: alternative dispute resolution and the War on Terror.

• Author: Chiarello, Matthew P.

TABLE OF CONTENTS INTRODUCTION I. LEGAL UNDERPINNINGS AND TERMS OF ART A. "Terrorist Group" and "Terrorism" B. "Negotiation" II. THE ACTORS A. State Actors: The United States and the United Kingdom B. Provisional Irish Republican Army 1. Historical Background 2. Organizational Dynamics C. Al-Qaeda 1. Historical Background 2. Organizational Dynamics III. HOW THE UNITED KINGDOM RESOLVED THE PIRA PROBLEM A. Tipping the Battlefield: Negotiations and State Leverage B. Organizational Criteria C. Limiting Fundamentalist Collateral IV. NEGOTIATING WITH AL-QAEDA A. Tipping the Battlefield: Negotiations and State Leverage B. Organizational Criteria C. Limiting Fundamentalist Collateral V. COUNTERARGUMENTS A. Sacrificing a Hard-Line Approach B. Opening the Door C. Encouraging Recidivism CONCLUSION War appears to be, or threatens to be, not so much a contest of strength as one of endurance, nerve, obstinacy, and pain. It appears to be, and threatens to be, not so much a contest of military strength as a bargaining process--dirty, extortionate, and often quite reluctant bargaining on one side or both--nevertheless a bargaining process. (1)

INTRODUCTION

Starving themselves for rights allegedly denied to them by the British government, hundreds of imprisoned nationalists protested the Crown in 1981. (2) The republican prisoners refused food, clothing, and cleanliness to force British Prime Minister Margaret Thatcher to meet a litany of demands. (3) Publicly, the Prime Minister denounced the strikes and firmly stated that her nation maintained an unyielding policy: the United Kingdom does not negotiate with terrorists. (4) Yet, documents from the period recently made public indicate that Thatcher secretly negotiated with Irish Republican Army leadership to bring about a conclusion of the strikes. (5) These talks demanded a cessation of the hunger strike in exchange for limited concessions detailed by Parliament. (6) Ultimately, these overtures at settlement were rebuffed and the hunger strike resolved of its own volition. (7) Several decades elapsed before the British and the Irish separatists fashioned a workable peace through negotiation.

In light of this microcosmic example, and in the face of heinous acts of terror and dissident disruptions, Western democracies--namely the United Kingdom and the United States--stand resolute and publicly refuse negotiations. Adopting economic sanctions and waging war to cripple dissident groups have been the preferred methods for addressing the vexing problem presented by extremists. Yet, as the number and frequency of terrorist attacks remain on the rise, the efficacy of this hardline approach deserves objective evaluation. (8) This Note argues that the United States should abandon its antiquated and myopic policy of refusing to negotiate with terrorist organizations. Instead, the United States should adopt a clear policy of active negotiations with dissident groups in order to reach agreements that further American interests and mollify terrorist activities. This Note suggests--as very few commentators to date have--that such a policy of alternative dispute resolution may be effectively used in tandem with America's economic and military might to dismantle extremist threats to the United States. (9)

In order to illustrate both the feasibility and the benefits of a policy of negotiating with terrorists, this Note employs a two-part case study. What follows focuses on the lessons garnered from the British experience with the Provisional Irish Republican Army (PIRA) and explains how the United States might adopt a similar strategy in its war against al-Qaeda. This Note is divided into several sections to facilitate the connection of these empirical dots. Part I addresses the terms and definitions at work in this Note, defining terrorists, terrorism, and negotiations. Part II provides a detailed look at the actors involved in the formulation of this alternative policy through an examination of the United States, the United Kingdom, the PIRA, and al-Qaeda. Part III explores how the British defused a century-long war with Irish nationalists through negotiations, while Part IV applies the lessons gleaned from the Anglo-Irish experience to America's relationship with al-Qaeda. Finally, Part V responds to three prominent critiques of the policy advanced by this Note.

1. LEGAL UNDERPINNINGS AND TERMS OF ART

   The legal system in America is commonly known to thrive on the adversarial practice of law. (10) Lawyers are seen to argue passionately before an impartial party, who determines winners and losers under the law. (11) Yet, such an all-or-nothing approach is rapidly waning, as fewer and fewer cases are formally tried before the bench. (12) Instead, an increasing number of cases are resolved through alternative means of dispute resolution, including negotiations, arbitrations, and mediations. (13)

   Yet, while the legal field rapidly trends away from pure confrontation and towards reasoned, cost-effective bargaining, the American nation at large remains resistant to notions of open dialogue and mutual gain in foreign policy. In fact, when addressing the grave concern of terrorism, the United States repeatedly and specifically singles out and proscribes negotiation as a viable policy option: "there will be no negotiations with terrorists of any kind." (14)

   Discarding this particular policy mantra in favor of a more flexible, negotiation-centric strategic regime forms the crux of this Note's proposal. To achieve this end, some baseline definitions should be established for the sake of conceptual clarity.

   1. "Terrorist Group" and "Terrorism"

      Despite the immense body of nuanced scholarship that attends defining a term like "terrorist group" or "terrorism," this Note elects a streamlined definition for ease of discussion. (15) As this Note addresses American interaction with terrorist groups, the definition of Foreign Terrorist Organizations (FTOs)--as advanced by the U.S. Department of State--will be adopted for purposes of the analysis below. (16) The relevant statutory framework requires that a target group (1) "must be a foreign organization," (2) "must engage in terrorist activity ... or terrorism ... or retain the capability and intent to engage in terrorist activity or terrorism," and (3) such "terrorist activity or terrorism must threaten the security of U.S. nationals or the national security ... of the United States." (17)

      For the purposes of the case study below, al-Qaeda was designated an FTO in 1999. (18) Although the State Department has not designated the PIRA as an FTO, several related Irish nationalist groups--the Real Irish Republican Army and the Continuity Irish Republican Army--have been so classified. (19) Nevertheless, al-Qaeda and the PIRA share identical status under the statutory definition. (20)

   2. "Negotiation"

      Defining the field of negotiation is perhaps less tricky, but certainly as reductive as defining terrorism. Generally, negotiation involves the "deliberation, discussion, or conference upon the terms of a proposed agreement." (21) Roger Fisher and William Ury pose a simplified formula at the outset of their seminal guide to negotiating strategies: "Each side takes a position, argues for it, and makes concessions to reach a compromise." (22)

      As this Note addresses the relation between state and nonstate actors as parties to the negotiation process, it may prove worthwhile to impose a limited foreign policy gloss on the simple definition of negotiation. Nations rely strongly on formal and informal channels of diplomatic relations among and between themselves. Yet, this is not the only manner in which state actors communicate. States often, if not constantly, engage in tacit bargaining processes, in which non-rhetorical posturing and behavior signal policy preferences, choices, and goals. (23) As nonstate actors, by definition, lack the apparatus for handling direct diplomatic communications, so tacit bargaining proves essential to states attempting to engage with nonstate entities. (24) The case studies that underpin this Note lean heavily on notions of both formal and tacit bargaining as a means of effecting state-to-nonstate negotiations.

2. THE ACTORS

   This Note will largely focus on four geopolitical entities: the United States, the United Kingdom, the Provisional Irish Republican Army (PIRA), and al-Qaeda. Clearly, the former two are state actors, while the latter two are nonstate organizations. Understanding the organizational structure and the relevant history--as pertinent to the issue at hand--of these actors is a necessary predicate of the analysis to follow.

   1. State Actors: The United States and the United Kingdom

      Unlike the nonstate actors in this Note, the state actors here discussed are readily understood through common experience, and a discussion of the three branches of American government or the British constitutional monarchy would serve little purpose. Yet, it may prove worthwhile to classify these two nations, as does Robert Pape, as liberal democracies. (25) This classification proves relevant in the context of state reactions to the tactics of terrorism, as liberal democracies prove the overwhelming targets of suicide bombings perpetrated by terrorist organizations. (26) Pape has offered three explanations for this phenomenon. (27) First, Pape suggests that liberal democracies are viewed by terrorist organizations as "soft" targets in that their "publics have low thresholds of cost tolerance and high ability to affect state policy." (28) Second, democratic states tend to react cautiously when dealing with threats to security and are slow to retaliate. (29) Finally, unlike authoritarian regimes, liberal governments, almost by definition, afford wide latitude to those who wish to publicize, organize, and perpetrate dissident agendas. (30) While these factors unfortunately place liberal democracies in the crosshairs of terrorist...