Terrorism: Stratagems for Remediation from an International Law Perspective

Terrorism: Stratagems for Remediation TERRORISM: STRATAGEMS FOR REMEDIATION FROM AN INTERNATIONAL lAW PERSPECTIVE* by Richard J. Chasdi Richard]. Chasdi is a doctoral candidate in political science at Purdue University. His areas of interest are international politics, comparative politicS, political theory, and public policy. He is completing his dissertation on the dynamics of Middle East terrorist groups and group types. A General Theory of Counter-terrorism 59 The prospect of developing more effective methods of counterterrorism to guide decision-makers remains an unrealized objective. Some counter-terrorism analysts, though clearly not all, continue to affirm that policies recommending prompt retaliation serve to deter religious fanatics and ideologues such as Hezbollah (Party ofGod) and the Popular Front for the Liberation of Palestine (PFLP).1 Others, who view those policies as merely palliative, attempt to move beyond that mode of analysis by suggesting that if aggression in general derives from the interplay of psychological and political processes, a more prophylactic approach to terrorism is required.2 International law should serve as the cornerstone for that second approach. First and foremost, it provides a way to look at terrorism with increased precision that makes it possible to draw critical distinctions between terrorism and justifiable insurgency. The juridical touchstones of 'The author is indebted to Professor Louis Rene Beres for his guidance and steadfast support. In addition, the author is very grateful to Professors Christopher 1. Blakesley, Robert F. Melson, Michael S. Stohl, and Michael A. Weinstein for their helpful suggestions. ,Because ofspace constraints, endnotes have been omitted, although endnote numbers have been included. Anyone wishing to consult the very extensive documentation attached to this' essay may request a copy from the editor. 60 SHOFAR Summer 1994 Vol. 12, No.4 counter-terrorism policy are the standards of jus ad bellum (justice of war) ,3 jus in bello (justice in war),4 and the post-Nuremberg conception of the human rights regime.5 In the case of jus ad bellum (justice of war), Professor Louis Rene Beres, an authority on international law, tells us that the use of force is permissible under international law in four instances: in self-defense when an attack is imminent, in post-attack situations, for humanitarian intervention reasons either to protect a population at risk or a nation's own citizens from egregious violations of the human rights regime, and to fulfiIl collective security agreements. With respect tojus in bello (justice in war), we are told that the legitimacy of an insurgency under international law is evaluated by three standards that must be met. First, the degree of force used by an insurgency must be consistent with the minimum amount of force necessary to acquire the political objective and proportionate to the amount of force that is wielded against the insurgency by opponents. Second, it is incumbent upon an insurgency to make a compelling case that the use of force is necessary. Faced with the looming catastrophe of warfare, the insurgency must make the case persuasively that all peaceful options have been pursued in an exhaustive manner without success. Third, it is essential for an insurgency to distinguish between military forces and noncombatants during its operations with the singular purpose of protecting non-combatants from harm.6 Clearly, an underlying concern for those thinking seriously about a more preventive approach in ways consistent with international law involves making certain that counter-terrorism policy does not deteriorate into terrorist activity. Regrettably, "many if not most nations exploit [terrorist] fears to justify their own acts of criminal terrorism; they become terrorists to fight terrorists.,,7 Professor Christopher Blakesley is one of several authorities on international law who have discussed the insidious effects of geopolitical considerations and how ignoring international law in favor of short-term political gain increases the chance of illegal activity taking place at home.s The French reaction to terrorism in Algeria, for example, is perhaps the most glaring example of that happening. In response to the Algerian National Front (FLN), the French created an ultra-nationalist right-wing organization in the Organisation Armee Secret (OAS) that repeatedly made attempts to assassinate President Charles de GauIle in the early 60s because of his staunch support for an independent A1geria...