War on terror or terror wars: the problem in defining terrorism.

• Author: Acharya, Upendra D.

1. INTRODUCTION

   The definition of terrorism has emerged as a central focus of power politics and propaganda. Differential and ideological posturing, the absence of boundaries of conflict and fixed enemies, messages of fear, legal narratives, and creating, remaking and reconfiguring judicial reality have a profound tendency to make terrorism a never-ending battle. As Foucault suggests, "... knowledge, power, oppression and resistance always circulate around one another, alternately feeding off and nourishing one another." (2) The ultimate goal of law is to maintain justice by facilitating human dignity and worth, while defining substantive aspects of rights and duties of individuals and nations in the international legal context. Law then lays out procedural arrangements to realize those substantive rights and duties. The ultimate goal of politics is to obtain or maintain power within the legal and constitutional framework of a nation. When a group of people, a government, or a nation instills terror to obtain or maintain power, terrorism exists; even though such terror, particularly when used by governments, is molded within a framework of legal or other justifications. Terrorism is a psychological phenomenon, with criminal acts being used to fight for political power or to maintain a political status quo. This particular characteristic of terrorism and the techniques employed to eliminate it, create a narrative, on a normative scale, that threatens the potential for global consensus in defining terrorism. At the same time, domestically, governments willfully scare the populace into uncritical and unquestioning faith in governmental actions. Powerful countries replicate this approach on an international level.

2. TERRORISM: A NEBULOUS CONCEPT

   The employment of terrorism is an age-old practice. (3) However, the term terrorism Was first used in English in 1528. (4) It was subsequently used in France to describe the political violence of the Jacobian Party. (5) After the Second World War, peoples in the colonized countries initiated self-determination movements to flee their nations from state occupation and terrorism. (6) This struggle focused in particular on the state terrorism of colonial powers. (7) Similarly, the advent of the Cold War initiated ideological confrontations and tensions in which ideology-based terror was employed by both sides, simultaneously creating or provoking rebels and supplying money, training and weapons for use against the opposing ideology-based government. (8)

   At present, the violence that uses terrorism as a tactic includes not only state-sponsored regimes of fear, but also a religious ideology-based terrorism that calls for securing and protecting sacred lands and sacred religious and cultural practices. (9) The fatwa declared by the 1998 World Islamic Council, of which Bin Laden was a co-author, can be considered an ideology-based statement of terrorism translated into action on September 11, 2001. (10) This fatwa calls for "kill[ing] Americans and their allies--civilians and military ... in order to liberate the Al-Aqsa [Jerusalem] Mosque and the Holy Mosque [Mecca] from their grip, and in order for their armies to move out all of the lands of Islam ... and plunder their money wherever and whenever ... and launch the raid in satan's U.S. troops and Devil's supporters allying with them...." (11) The 9/11 event, a recent example of ideology-based terrorism, established state and non-state terrorist activities and forced the world to ponder once again the nature, meaning and understanding of terrorism. With 9/11 came fluctuations in the political agenda of powerful nations and oppressed groups, (12) artificially manufactured, ideologically motivated or naturally evolving to address internal or external political situations.

   Terrorism remains a nebulous concept for the international legal system mainly because it has no acceptable definition. (13) In the absence of a definition, there is a free and open tendency for the persons using the term, whether states, organized groups or scholars, to define it as suits their purposes at the moment, leading to uncertainty as to how to fashion a legal structure to address terrorism. (14)

3. THE PROBLEM IN DEFINING TERRORISM

   For some, terrorism is an offense, and for others, it is an activity assigned by God; for some, it is a distinctive act of maintaining power pride, and for others, it is a justified action against oppression; for some, it is an attack on the peace and security and for others, it is a quest for identity. (15) It follows that it has been difficult to reach a definition of terrorism that is acceptable to the international community. It is worth noting the statement made by Robespierre in 1794 in the context of the complexity of the distinction between terrorist and freedom fighter: "Terror is nothing but justice, prompt, severe, inflexible; it is therefore an emanation of virtue; it is not so much a special principle as it is a consequence of the general principle of democracy applied to our country's most urgent needs." (16) Such divisive views have created a pendulum approach, in which the definition of terrorism oscillates from favorable to unfavorable.

   The problem of defining terrorism is further complicated in modern days by one party's tactical use of characterizing another party as a terrorist. (17) Generally, weak, less militarily equipped and marginalized people are identified as terrorists. Their quest for self-governance or self-determination is generally undermined by powerful actors either in the national or international arena. When their legitimate demands are unmet, they react--sometimes with and sometimes without violence. In this situation, each side labels the other a terrorist, each seeking to justify its own violence while condemning the other's violence.

   The question is where to draw the line between the quest for nationalist identity and an act of terrorism, between legitimate political demands within a country and suppression of those who make demands. Once a terrorist, always a terrorist? Are Palestinians (18) terrorists? Are Irish (19) terrorists? Are Maoists (20) in Nepal terrorists? Are the LTTE (21) in Sri Lanka terrorists? Are Hezbollah (22) terrorists? Are the Taliban (23) terrorists? The focus is not or should not be whether a group is a terrorist group, but rather what activities or actions constitute terrorism. A group labeled as terrorist at one time may eventually become a viable partner in international peace and security. Unfortunately, our focus is now more on rushing to identify (with political motives) groups as terrorists rather than on identifying terrorist activities. This (de)focus on terrorism is caused by the absence of a definition of the term. In this modern age of globalization of terrorism, it is important that we conduct a historical evaluation and determine, not who is a terrorist, but what is a terrorist act. This will help us understand what we are fighting against and how to bring the world together while excluding terrorist acts, but not excluding people. Such a historical evaluation and analysis of the present legitimate demands and conditions (24) of different non-state groups and underdeveloped (oppressed) societies is necessary to arrive at a comprehensive and inclusive approach to defining terrorism.

4. ANTI-TERRORISM CONVENTIONS

   To date there is no universally accepted definition of terrorism in the context of international law. (25) International terrorism has been labeled, at least by Western leaders, as a threat to Western democracy and civilization, and this label has been consistent during the pre- (26) and post-9/11 eras. (27) This label alone is problematic in tackling international terrorism for two reasons. First, while democracy is a universal value, its modus operandi and implementation may differ from society to society and nation to nation. It is not accurate to claim that Western democracy and its modus operandi reflect the only permissible (inevitable) universal practice and that other societies and nations should adapt to it. Second, it dictates that only the civilization of the (self-styled) civilized nations is important to the extent that it should be promoted at any cost, which, in turn, may undermine civilizations of other regions and societies. Let us at least assume (if not believe) that whether a people belong to a historically recorded civilization or to a historically non-recorded civilization, they may be proud of their group's structure and culture.

   Notwithstanding this labeling problematique, the international community has made efforts to address and outline the definition of international terrorism. In 1930, during the League of Nation period, a definition of the term was proposed at the Third Conference for the Unification of Penal Law at Brussels. (28) This proposed definition (29) is important for one reason: it addressed both state and non-state terrorism. In its 1937 Convention for the Prevention and Punishment of Terrorism, (30) the League of Nations defined acts of terrorism as "criminal acts directed against a state and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public." (31) This is perceived to be the first international effort to define terrorism. (32) The 1937 Convention, which avoided the issue of terrorism by state actors, (33) was ratified by only one country (34) and signed by another 25 countries. (35) So this Convention never came into force, and was soon voided by World War II. (36) Under the 1937 Convention, countries were required to enact legislation criminalizing terrorism and certain other acts. (37) While its definition of terrorism was not limited by an express reference to political objective, its failure to address state actors led Hitler to justify his "Proclamation on the German occupation of Bohemia and Moravia...