Prosecuting Terrorism - Models for Confronting Organized Violence

Abstract

This chapter reviews application of the two existing paradigms of law and crime to international terrorism. Terrorism is not an entity with which the model of war makes sense, and ordinary crime is not an adequate model for addressing the problem. Rather than contorting the traditions of either existing paradigm, it would be better to recognize the applicability of a third paradigm that has been applied successfully to piracy and slavery - the model of crimes erga omens under jus cogens which can be supported by military operations other than war (MOOTW). There is already the emerging supra-state body of international humanitarian law (IHL) to address offenses that are characterized by ongoing violence against civilians that is "widespread or systematic."

A valuable corollary is the US experience with racial terrorism and the so-called KKK statutes. The reason for supra-state intervention by international organizations into the affairs of a nation-state is the same as the reason for supra-state intervention by the U.S. federal government into the affairs of a U.S. state. It is the presence of an organization (whether recognized as the state or not) with sufficient resources to carry out violent actions against a civilian population without the state’s being willing or able to control it. This is the identical problem with terrorism today.

This realization feeds into the need for recognition of an international norm of counter-terrorism in which "widespread or systematic" attacks on civilians can be addressed by any nation with use of MOOTW. The model avoids most, but not all, of the confusion and problems that have surrounded the concept of "enemy combatant" in recent U.S. initiatives. Some of the problems not addressed are what to do with tortured miscreants such as KSM and how to address targeted killings – those are to be resolved by other analysis suggested at the end of this article.

Keywords: terrorism, war, crime, MOOTW

JEL Classification: K14, K33