Suppressing terrorism: some major hurdles - 2

Our first article on terrorism, entitled 'Terrorism: A New World War - why should neutral Malta be concerned?' manifested the international potential and effects of this phenomenon.

A fortnight ago, terrorism as a concept was dealt with in the light of a major dilemma surrounding it - the problem of defining it. In the last two articles on the matter, obstacles hindering the enforcement of international laws prohibiting and punishing terrorism will be considered.

Why, until this very day, are basic human rights still being violated by terrorist activities? Why hasn't the international community managed to suppress these activities? We will therefore be noting that the problem does not only lie in the absence of providing an internationally recognised and universally accepted definition of terrorism.

In our first article on the matter a fortnight ago, some major hurdles were identified. In today's last article other obstacles will be considered.

Another legal flaw of many conventions is the political offence loophole. Its affirmation defeats the whole structures and functions of these international instruments.

Terrorist acts are truly 'terroristic' primarily because they involve a purely political element. It has been held that terrorism is the deliberate and systematic murder, maiming and menacing of the innocent to inspire fear for political ends (see Netanyahu B., (1986), Terrorism: How the West can Win, New York, Farrar Press, Straus Press, Giroux Press, p. 9).

Consequently, it would be correct to conclude that terrorism is intrinsically a political phenomenon, that is, its innate nature is political. Therefore, the acknowledgement and retention of this exception to prosecution acts only to provide a sustainable line of defence to alleged terrorists.

The political offence exception has been the terrorists' first line of defence ever since it appeared. However, there are examples showing that when the worst comes to the worst and the situation of violence becomes untenable, it is likely that states put aside their political conceptions in favour of re-establishing order. This occurred in various situations, such as in the 1973 US-Cuba Memorandum of Understanding on Hijacking of Aircraft and Vessels and Other Offences. (See Vecher A., (1992), Terrorism in Europe: An International Comparative Legal Analysis, Oxford, Clarendon Press, p. 355.)

Unfortunately international law always seems to come into play after the occurrence of mass disasters, and in the real sense of the word, when the worst comes to the worst. The 1949 four Geneva Conventions are a fair example which demonstrate this.

The same may be said about the European Convention on the Suppression of Terrorism (1977), which only came into being after the attack on Israeli athletes in the Munich Olympic Games, the kidnapping and murder of Hans Martin Schleyer, and the abduction and assassination of Aldo Moro.

In fact, Aston states that "the precipitating motivation behind many instruments of international legislation against terrorism can often be linked to a single, specific incident" (see Aston C., "The United Nations Convention Against the Taking of Hostages: Realistic or Rhetoric?" in Wilkinson P., (1981), British Perspectives on Terrorism, London, Allen & Unwin Limited, p. 139).

International law should not function as a painkiller or as a cure, no matter how effective it might be, healing the sorrow that transnational crimes create on their perpetration. Instead, it should be anticipatory and predominantly preventive.

"According to the prevailing conception of socialist jurisprudence... the most effective way to combat terrorism is to have actions which are completely free from politics, such as joint international actions against terrorism, applying the most severe legal means available.

"The socialist states believe that as long as a terrorist can avoid criminal responsibility by crossing a national border, and the anti-terrorist convention (the European Convention) offers the ordinary criminal offender a favourable opportunity to declare an ordinary criminal act to be a 'political offence', one can expect only ambiguous results from the application of the Convention" (See Lovassy T., (1979), "Collective Western Legal Efforts Concerning the Suppression of Terrorism," in Comparative Law Yearbook, Volume 3, pp. 157-158).

The only convention which did not retain the political offence exception is the European Convention on the Suppression of Terrorisim. This is its main distinguishing feature.

However, the same convention, by virtue of Article 13, allowed signatories to "register a reservation", which then permits a state to deny a request for extradition. This reservation clause therefore preserves the states' prerogative to grant asylum to terrorists or 'political offenders', and thus defeated the whole purpose of the elimination of the exception.

In practice, the reservation has no effect if one proves that it is incompatible with the purposes of the Convention, which should be read and applied in its entirety according to the principle of purposive, logical interpretation of laws, as opposed to literal interpretations of provisions considered in isolation and not conjointly with others (See Article 31 of the Vienna Law of Treaties [1969]).

Though this argument can be said to stand on fertile 'legal' soil since it originates from the Vienna Convention of the Law of Treaties (1969), its probative force and value is rather weak. Therefore, the clause permitting reservations still hindered the denial of the political offence exception.

It is expedient to consider the reasons for the ineffectual responses offered by the international community and by international law per se to combat the ever present plague of terrorism. A list of those reasons include:

1. The UN has chosen to adopt a political approach to aggression and terrorism. The League of Nations' failure convinced many that a legal approach to these problems would not work. Legal systems require shared values, and those do not exist in sufficient measure at today's UN to support legal remedies to terrorism.

2. The members of the UN have shown repeatedly that they value their independence and sovereignty more than security from terrorism. The prerogative to grant asylum, for example, is something states refuse to give up, despite the need to extradite and prosecute terrorists.

3. The UN has other built-in barriers to universal organisational co-operation on terrorism. Ideological differences lead different states to consider different actions as terroristic. Also, the interdependence between some states inhibits them from taking a strong position on terrorism. States that import large amounts of Middle East petroleum, for example, fear they cannot afford to comment on Palestinian terrorism.

4. The UN has inadequate peace-keeping capability to try to effect military solutions to terrorism.

5. International law also lacks a forceful enforcement mechanism to prevent or punish international terrorism.

6. Multilateral and UN agreements usually fail to obtain unanimous approval, which undermines collective enforcement. States have different, frequently conflicting interests that they pursue and that may cause them to refuse to ratify terrorism conventions.

7. Bilateral and unilateral action also must be taken by governments. Bureaucratic responses are often halting and ineffective. Examples are the US efforts to extradite Provisional IRA fugitives or the 1980 rescue mission to Iran.

8. Within most organisations, the debate between those interested in the causes of terrorism and others interested in punishing terrorists continues. This debate characterises the confusion and difficulty organisations and states face in formulating a response to international terrorism

9. The most effective response to terrorism comes from the targets, those who have the most to lose. Targets such as airlines, diplomats and businesses have taken the quickest and, to date, most effective action to prevent further attacks. The action has been technical, not political, which may account for its speed. This reflects, perhaps, the opinion of the international community that it is not a target, per se, of terrorism.

Judge Sofaer had held that: "...any evaluation of States' efforts to suppress or repress the phenomenon was bound to reach 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, the law leaves political violence unregulated. On other issues the law is ambivalent, providing a basis for conflicting arguments as to its purposes. At its worst the law has, in important ways, actually served to legitimise international terror, and to protect terrorists from punishment as criminals. These deficiencies are not the product of negligence or mistake. They are intentional."

Cassese, however, commenting on the Achille Lauro incident, bases his criticism of the judge's perspective on the following two points:

1. Important progress has been made as regards the definition of terrorism; and

2. The international community has made progress in its basic attitude to terrorism (Cassese A., Terrorism, Politics and Law: The Achille Lauro Affair, ibid., pp. 4-5).