Ruminations on Terrorism: Expiation and Exposition
New Criminal Law Review, Vol. 10, p. 554, 2007
29 Pages Posted: 25 Jun 2008 Last revised: 24 Jul 2008
Date Written: June 25, 2008
To paraphrase Richard Falk: Terrorism is political or ideological violence without restraint of law and morality. This article will consider terrorism and reactions to terrorism through a prism of history, philosophy, literature, and law. I argue that terrorism is committed by state actors as well as non-state-actors, and not only by sponsoring them or giving them a safe-haven. I argue that intentional or reckless slaughter of innocents or torturing "enemies" constitutes terrorism and that it ultimately erodes a state's or a group's morality and well-being. It is ultimately self-destructive in most every way. Most nation-states and groups define terrorism in a way that "allows" them, under their definition, to commit that atrocity, but condemns the very same action by "others." This ultimately promotes terrorism. Some definitions of terrorism obscure the line between terrorism as a crime and terrorism as a tactic or strategy in armed conflict. It is important that the law not abide this blurring. Terrorism is criminal conduct. If this is so, it is necessary to define terrorism in a way that applies to all or any actors, and which excludes conduct that is legal action in self-defense, rebellion from oppression, or armed conflict. In addition, many - perhaps most - definitions of terrorism, even in criminal statutes and in treaties, do not comport with basic principles of criminal, such as the principles of legality, due process, and other human rights and constitutional norms. This deficiency exists even though the statutes, obviously, and the treaties call for prosecution. I will also compare terrorism to other core international concepts, such as war crimes and crimes against humanity. Thus, I will consider terrorism as a crime, noting the conceptual relationship between terrorism and basic domestic and international criminal law. I define terrorism and provide its constituent elements. This allows me to study terrorism in the context of basic principles of culpability and innocence. The definition applies to conduct whether performed by state or government actors, by those who attack innocents to get at state government, or who use it against innocent members of factions whom they don't see as adhering to the actor's vision of the "good order." Much of this article, however, is aimed at providing context by analyzing historical evidences of terrorism, including torture and other atrocities, designed to promote the power of those committing it (or ordering it). I present a brief historical, literary, and comparative excursus, considering terrorism or analogous conduct and its punishment from antiquity, through the Middle Ages, the French Revolution, to the present day, to show why such conduct ought to be punished as well as the dangers that lie in the punishment. My paper will consider the conceptual relationship between terrorism and basic domestic substantive criminal law. It will attempt to establish a definition that applies to conduct whether performed by state or government actors or by those who attack a state or government. This will allow us to study terrorism in the context of basic principles of culpability and innocence. I will present my own more detailed definition of terrorism and my view of its constituent elements, then compare them to the constituent elements of murder and manslaughter. I will compare terrorism and its elements, not only to those common crimes, but also to war crimes, crimes against humanity. I will show the distinctions and similarities among these offenses. In doing this, I will consider the applicability of justifications or excuses, such as self-defense, necessity, duress, and others. I will also present a brief, historical and comparative excursus, considering terrorism or analogous conduct and its punishment from antiquity, through the Middle Ages, to the present day. The project, of course, is not without significant difficulty. Issues include the following. How should terrorism be defined? Is terrorism always criminal? May terrorism ever be justified or excused? Is terrorism analogous to war crimes or crimes against humanity? Is it similar to a "hate crime?" It seems necessary or, at least, helpful, to define the term, "innocent," just as it is useful in distinguishing justifiable or excusable homicide from criminal homicide." The term, "innocent," like "terrorism," is value loaded and difficult to define, yet it is crucial to analysis of terrorism as a crime. What is a legitimate military engagement and who are the legitimate entities allowed to attack or to be attacked under international law? Does analysis of domestic criminal law help with this question? The similarities and differences between terrorism and common crime need to be understood in the global efforts to identify and prosecute potential terrorists.
Keywords: terrorism, public international law, law and literature, law and history, international criminal law
JEL Classification: K14, K19, K33, K42
Suggested Citation: Suggested Citation