A difficult threat to define


One of the principle successes that terrorism can achieve is that of making us lose faith in the concepts on the base of which our fundamental legal categories were constructed. We must acknowledge it: never before, have security and liberty appeared not only as values which are difficult to reconcile, but even as alternative factors. However, there is the risk of losing control of the phenomenology of the crisis, instead of seeing how, notwithstanding everything, the validity of the foundations of our constitutional culture remains intact. We must only make an effort (not a small one) to distinguish these foundations from the various ways and various forms in which they have been expressed until now.
The question regarding the definition of “terrorism” is repeatedly raised, with particular reference to the concepts of “war” and “struggle for liberation”.
Let us start by recognizing the fact that the threat of the new terrorism is qualitatively different from the traditional threats which we have had to face during the last half century. The coordinates to define and deal with it are no longer those of the national states, but those of world views and economic interests. The wars, today, tend to have reticular and diffused characteristics, with asymmetric protagonists: states, armed bands, ethnic groups etc., (Kaldor, 1999).
It is not by chance that the very concept of “neutrality” is in irreversible crisis, together with the “everyday” situation of the state of peace. How can there be neutrality if the fundamental rights are at stake? (Andò, 2002 and De Vergottini, 2004). On the contrary, never before have fundamental rights been so vulnerable for the very reason of the difficulty in fixing the procedures to establish who, every time, must decide in what measure their fruition can be limited for reasons of security. In short, if the principle of sovereignty makes way for the primacy of rights, at the same time, it increases the risk that the affirmation of the primacy of rights renders the framework of political responsibilities opaque and permits a concealed practice of the principle of sovereignty. This applies to both the international politics and the internal life of each country.
The greatest and oldest democracy in the world, the United States of America, is the unquestioned protagonist of this process. The Patriot Act, Guantanamo Bay and Abu Ghraib are manifestations of a unique problem. The globalization of the threat brings with it the globalization of the politics of security, with respect to which the limits of constitutionalism appear insufficient because they are constructed within national-state systems. But this brings the risk of a de-legitimization of the democracies, since we are “the others of the others” (“gli altri degli altri” (Amato, 2006).


Arbitrary decisional shortcuts and
expansion of judicial power

A temporary way-out, which is always more practical in the Western democracies, is to strengthen the competence of the Executive and make ample use of administrative powers, leaving the job of “watch dog” of the fundamental rights to the judicial power and public opinion. If an attack is avoided or a terrorist cell is dismantled through a police-type initiative, one remains reasonably faithful to the people’s mandate.
In this way, one avoids interfering in the region of the fundamental rights, where there is always a risk of damaging the very dna of the Western societies. In short, never, as at this time, does it seem that not only the separation, but also the conflict between the powers, is healthy for the democracies.. To exemplify, with reference to only internal aspects of the question, more intelligence, without trying to force the law to transform it, always, and in any way, into evidence, accepting the risk – can terrorism be fought without running risks? – of entering into head-on collision with the mass-media and judges.
Obviously, it is not a situation destined to last for a long time. In the short term, both on an internal and international level, the uncertainty of the jurisdictional picture with respect to the threat could lead to the assumption of arbitrary decisional behaviour on the part of governments. But such decisional behaviour over a long term, is dangerous. Not certainly because there is any danger of a police state: the democratic-constitutional sensitiveness is too strong and widely diffused, in the USA and Europe, for this to happen.
If anything, the risk is the opposite: that is, a drastic weakening of governments due to a further and uncontrolled expansion of judicial power. Many recent studies show how the due process of the law principle, from which the principle of the separation of the powers originates, is and remains, the motor of the Western constitutional life, but it is no longer satisfied by the Executive-Legislative-Judicial triangulation, as parliaments tend, always more, to become instruments of governments, but rather by the political power – judicial power dialectics. (Aragon – Garrorena, 1991 and Soriano – Rasila, 2002)
For this, we can say, that the much deprecated expansion of judicial power is none other than the reply of the constitutional systems to the decisional simplification of the dynamics between Executive and Legislative. In brief, since parliaments count always less, when the accelerator on government powers is pressed, there is the risk, today, of triggering off a strong inhibiting action by the judges (and of public opinion, their natural ally in this phase).
This means that the constitutional democracies have before them an ancient problem, which is represented in unpublished forms, today: la "democrazia “protetta” (Di Giovine, 2005) (the “protected” democracy). At the present time, it is inevitable that a judge acquits a radical "islamist" who extols Bin Laden or defends Iraqi cut-throats. But in the long-term, also with reference to radical Islamism, the antique democratic-constitutional problem must be faced, of “tolerance” or not, towards the intolerant: a problem which is posed, symmetrically, at an internal law level, and at an international law level.


Democracy
The right to self-defence


As we were saying, the problem of the protection of democracy is not a new one, at all. The European constitutional experience of the period after the 2nd World War is characterized, among other things, by a real "positivization" of the principle of the protected democracy. The process has its origins in the debate around the Weimar Constitution, marked by a total rule of law choice, considered by many to be one of the principle causes of its tragic conclusion.
The fundamental German Law and the Italian Constitution contain precepts which are clearly directed to impede that democratic liberties are not used to destroy the democracy. Likewise, they contain rules of suspension of constitutional rights in the case that it is the Constitution itself which is threatened. The relative “reservations of the law” are a confirmation of this, it does not deny it: to provide that the law can limit the liberty of creating a political association means to say that the exercise of rights outside of the constitutional framework is unthinkable. The European Constituent Legislator, in its turn, seems to have taken note of such a lesson where it provides that the say on the subject of fundamental rights returns to the national States when it concerns exceptional cases (Art. 15 CEDU). In line, besides, with the “International Pact on Civil and Political Rights”, adopted by the General Assembly of United Nations Organization, 16th December, 1966 and ratified by Italy on the 15th of September, 1978.
At the same time, the fundamental right to security, together with that of liberty,(Treaty which institutes the European Constitution, II, 6) is recognized; while the principle of the “reservations of the Law” for eventual limitations of rights and liberty recognized in the Charter (II, 52) is reaffirmed, and the “abuse of the Law” (II, 54), or rather, the use of the constitutional guarantees to destroy or limit fundamental rights is explicitly forbidden.
To sum up, democracies have the right to defend themselves.
Besides, is not the same constitutional democracy, after all, a democracy “protected” against the risks of dictatorship of the majority? Furthermore, if also security is a right, as is affirmed in the Treaty which institutes a European Constitution, (II, 66) does it not merit an analogous protection to that, for example, of the free manifestation of thought?


Everyone is in agreement to
fight terrorism, but…..

The problem, therefore, is not that of the principle of the protection of the democracy, which by now, is a stable part of our constitutional landscape. The problem is – and here is the novelty – in the fact that this time the enemy of democracy uses a communicative and operative syntax which renders it very difficulty to describe within our juridical systems.
The conviction is widely diffused that democracies have the right to defend themselves through rules which forbid terrorism, understood also as political culture. The universality of their values is at stake (Aznar, 2004).
But there is no convergence on what must be technically understood for “terrorism”. In the EU General Decision of the 13th June, 2002, the fight against terrorism was founded on “universal values of human dignity, liberty, equality and solidarity, with respect to the rights of man and to the fundamental liberties”, on which was constructed the European constitutional experience (preamble, [1] and of which terrorism constitutes one of the most serious violations (preamble, [2]).
On the other hand, once it has been consolidated that “the definition of terrorist crimes should be comparable in all member states, including that of crimes connected with terrorist organizations” a distinct and unequivocal definition of terrorism is not yet provided for. A distinction is made between “terrorist crimes” (Art. 1), “crimes traceable to or connected with a terrorist organization” (Art. 2), “crimes connected to terrorist activities” and “instigation, complicity, attacks” (Art. 3).
This subdivision is certainly a sign of the difficulty in giving an unequivocal definition of terrorism. But it is also a useful fighting instrument against terrorism in so far as it permits a diversification of conduct on the basis of the different geopolitical and historical contexts, of the kind in combination with the prevision of a legislation which considers favourable treatment in cases of disassociation and reformed co-operators (Art. 6).
Although it does not contain a distinct definition of terrorism, the General Decision seems to be efficacious. Besides, the empirical way has already shown to be valid in other experiences. For example, the Agreements between the member States of the European Union relative to extraditions (10th March, 1995 and the 27th September, 1996) have given an important contribution to impede that political motivation could legitimize criminal conduct.
On the directly operative level, the common actions of the 21st December, 1998, have shown to be useful in the liability to punishment for participation in a criminal organization in the member States of the European Union, and that of the 15th October, 1996, for the institution and constant up-dating of an index of competence, capacity and specialist knowledge in the anti-terrorist sector, to facilitate co-operation between the member States in the fight against terrorism.
An analogous comment can be made with regard to the Regulation of the Council no. 2580/2001 (13) of the 27th December, 2001 and of the Regulation no. 881/2002(CE of the 27th May, 2002, regarding the freezing of the goods and properties of terrorists.
Moving from the European context to the global one, it can be said that important progress has been made over the years also regarding the distinction between terrorism and struggle for liberation, and to the involvement of States in terrorist operations.

It is to be remembered that on the basis of the Agreements against hostage-taking of 1979, Article 12, even kidnapping was justified, when considered within the framework of a struggle for liberation. The turning point in this regard came with the Sirte Gulf Crisis in 1986. The United States, in fact, with the raid of the 14th April, treated Libya as a terrorist State. To justify itself before the United Nations, the USA appealed to the Article 51 of the UNO Charter, asserting that the “natural right to self-defence” could be considered valid with respect to a State also as a consequence of an “armed attack” suffered from individuals and terrorist organizations.
The question again arises, always with reference to Libya, with the Lockerby case, when the Security Council established with the Resolution 748/1992, that where the members, in their international relations, did not abstain from “threats or the use of force against, either the territorial integrity or the political independence of any State, or in any other way which is incompatible with the objectives of the United Nations” (Article 2, United Nations Charter), or support terrorism, then the reaction towards them is legitimate.
From that point on, in the ambit of the United Nations, there has been a continual effort to find the balance, on the one side, between the right of the people to rebel against tyrannical regimes or struggle for independence, and the right of the States to security from the other (the Declaration for the elimination of international terrorism of 1994, The Terrorist bombing of 1997, The Terrorist Financing Convention of 1999, The 1267 Resolutions of 1999 and the 1333 Resolution of 2000, directed against Bin Laden, Al Quaeda and the Taliban, together with Resolutions 1373 and 1377 of 2001, as well as Resolution 1390 of 2002).
These efforts have demonstrated that the States are in general agreement over the necessity of fighting terrorism, but they are not able to come to an agreement on the definition of terrorism. The principle difficulties seem to be: a) legal definition of terrorism; b) relation between terrorism and struggles for liberation and against anti-colonialism; c) activities of the armed forces of the States in armed conflicts and the carrying out of their tasks.
It could be said that the problem starts when one wants to move from the strategic level to the paradigmatic one. The Secretary of the United Nations, Kofi Annan, recently admitted that “the State members are discussing a definition in the context of the omni-comprehensive agreement of international terrorism” (www.onuitalia.it, the 26th May, 2006. In other words, the work of the Commission is still all at sea. In fact, his report of the 27th April, 2006, “Unite against terrorism: recommendations for a global counter-terrorism strategy” (United Nations, General Assembly, Sixtieth session, Agenda, items 46 and 20) do not contain a definition of “terrorism”.
The Draft Agreement on international terrorism is not able to take-off. The prepared text on the Indian proposal establishes that “the activities of the armed forces during an armed conflict” regulated by international law do not fall under the Agreement (Art. 18)
This means, for example, that the Israeli Army operations in the Gaza Strip do not legitimize terrorist acts on the part of the Palestinians. In fact, the member States of the Islamic Conference propose to not speak of “armed forces”, but of “activities of the parts during the armed conflicts”, with particular reference to the “situations of foreign occupation”. This would be regulated by international law and would not, therefore, come under the competence of the Agreement. In other words, the equalization between the regular Israeli army and the Intifada is proposed, as it is, if we take a close look, between the troops of the ‘willing coalition” and the Iraqi guerrillas.
The Islamic countries already offered resistance to the Terrorist Bombing Agreement of 1997, because what was expressed in Articles 11 and 19, appeared, to their eyes, as the criminalization of the Intifada and the legitimization of the conduct of the Israeli Army in the occupied territories. In this regard, the Geneva Convention was cited, which recognizes the legitimacy of non-State subjects employed in an armed conflict against a foreign occupation (first supplementary protocol, Article 1.4). The protest was then dropped. But I think it difficult that it could be called off now.
Beyond such specific questions, it cannot be denied that there are dangerous imprecisions in the text, which could threaten the principles of the individual responsibility or legality, as where the terrorist act is qualified, moreover, “as a serious damage to public and private property”, or where the “scope of its conduct” in virtue of “its nature or context” is that of “intimidating the population” (Art. 2).

With the United Nations’ crisis, a cycle
which started in the middle of the 1600’s closes?

It would be over-simplifying to explain this difficulty of defining terrorism, or rather, to distinguish between acts of war and acts of terrorism, with the prevailing specific interests of each State or group of States. One could be in agreement, or not, with who places the obstacles, but certainly, one could not say that those obstacles were placed in an unfounded or illegitimate manner. We find ourselves, therefore, in front of a problem which seems insoluble with logical reasoning, or rather, in front of the difficulty of finding a way out because the parties in conflict are both right. In cases like this, the analysis must be removed to a higher plain: a plain above the level of the problem.
In this sense, it can be said that the difficulty in finding a definition is a consequence of the crisis of the national State or of the “monstrous nonsense of the sovereignty” (Kelsen, 1989). The matter can also be formulated in this way: the rationalization of the conflicts cannot be achieved by dealing with them within the traditional political spaces When it is said that the world of the cold war was “orderly”, it does not mean that it was a sort of paradise, only that the events which took place in that time were describable in a rational manner. Many things escaped the control of Washington D.C. and Moscow.
But any geo-political crisis, whatsoever, could be described starting from the entire relations between the two super powers. This rendered the politicization of the conflicts possible, or rather, the distinction between war and terrorism. The rationalization of the war, or rather, bringing the war within the political space, was a great conquest of the Western civilization. It reached its maximum level with the cold war. But the breakdown of the bi-polar equilibrium seemed to close a cycle which opened in Europe after the end of the thirty-year war, with the peace in Westphalia (Held, 1997).
According to the description of Carl Schmitt, starting from that moment, war became a relation between equally sovereign States: In opposition to the religious and the civil war, the purely State war of the new European international law takes place with an end to neutralize and, therefore, to overcome the conflicts between the parties” (Schmitt, 1991, pg. 165).
This also implies a surpassing of the just war, which is strictly connected to the total war, where the adversary is annihilated. In this way, the war no longer tends to the “annihilation” of the other, but to its defeat.
The “enemy” and the “criminal” are two distinct categories, as are the soldier and the terrorist. In this way, it is possible to also stipulate a treaty of peace between the victors and the defeated. The so-called “crisis of the United Nations”, which is so talked about and where the difficulty of finding a definition of terrorism appears the most evident manifestation, and, from this point of view, it is perfectly explicable.
The United Nations Organization represents the maximum contemporary expression of the Westphalian model. It is composed of national States and is organized according to the principle of the invariance scale reproducing, in spite of the generous efforts of opening to the world of the ONG, the structure and the internal mechanisms of the parties of which it is composed.
Today, the rationalization model of the constructed violence, starting from the 2nd half of the 17th Century and founded on the national States, no longer appears efficacious. Violence has an ever increasing diffused and unpredictable character. The logistics, the tactics, the choice of objectives flow together with ethnic, economic and criminal reasons, which at times are mingled and at times they legitimize and strengthen each other. The civil victims are not casual accidents, but targets which are sought and wanted.
There is the explicit objective to shock the civil population, through brutal actions against the people and the “symbols” In this sense, terrorism represents the “ideal type” of the new war. For this reason, the wait for an unequivocal and unanimously accepted definition of terrorism risks to be dangerously long. An agreement could be reached, but only at a price of extreme vagueness. The simplest way to avoid disputes and recriminations is to create a tautology of the type “terrorism means, to create terror through acts of violence”.
A courageous and unilateral choice, vice versa, would render this definition unusable due to the opposition (which could also take the form of instrumental and captious interpretations) from many States. On the other hand, our governments and judges can do without global definitions of terrorism for only a short while to come.


The empirical way to the definition of
terrorism and the prospect of international courts

As has already been said, there are no obstacles to the production of “protective” regulations for the democracy with reference to terrorism, but it is still not known to what definition of terrorism we can refer. It seems, at this point, we must take into consideration the eventuality that the definition may very well derive from a legal corpus formed via jurisprudence, since the borders between the various juridical systems are becoming always more transient.
Also the system of the sources tends to be always more dynamic, in the sense that regarding the subject of fundamental rights, the jurisprudence of a country can very well inform itself on constitutional experiences developed in extra-national or over-national contexts.
Now, since the 2nd World War, the contrast between the globality of the problems to face on the legal level and the national-State dimension of the jurisdiction has been handled through the experience of the international courts.
Essentially, we have two types; jurisdictional and non-jurisdictional.
Among the experiences of a jurisdictional type, we feel the most significant is that of the Permanent International Criminal Court, which came into effect after the Statute was approved in Rome on the 17th July, 1997, work of the Diplomatic Conference, convened for this objective by the United Nations. The United States are among the seven countries which did not sign the Statute. This certainly denotes a weakness. In fact, bodies of this kind obtain legitimacy and operative capacity from the national States. The problem arises when it is precisely these latter which can be placed in the dock.
On the other side, we cannot under-estimate the role of public opinion, its trans-nationality, it organizing power with respect to political trials. In the case of the United States Administration, for example, one can understand the reluctance to give legitimacy to a legal instrument which could become a formidable political weapon in the hands of the numerous enemies of the Administration. But it is difficult that the public opinion of that great democracy could remain insensitive before an affair like that of Abu Ghraib, around which, most probably, Inquiry Commissions will be formed: the work of which will become sources from which to establish what the limits are within which the conduct of a military contingency must remain and, how the determination of such limits can reflect upon the difference between war, terrorism and struggle for liberation. Then, the experiences of ad hoc criminal courts of law must be taken into account.
The first experiences are those of Nürmberg and Tokyo, after the 2nd World War. It certainly does not mean that these courts should be taken as models. They were instituted by the winning powers in the defeated countries. Only the odiousness of the Nazi crimes was able make people forget the serious violations of rights which were committed against the fundamental principles of the law.
Neither are today’s experiences of ad hoc law courts absent of problems, such as the one of Ruanda (Resolution of the Security Council ONU 955 of the 8th November, 1994) and, especially, the one for crimes committed in ex-Jugoslavia, during the year 1994 (Resolution of the Security Council ONU 827 of the 25th May, 1993. The acquittal of Milosevich was judged – and it is difficult not to be in agreement – as an unacceptable eventuality. But it is just for this reason that we cannot say that Milosevich was “tried”, since a trial must, by definition, be open to any outcome. It would be more correct to say that Milosevich was “judged”.
A political decision can, in the end, be blamed on some individual: at the end of a “chain of command” there is always someone who is asked to pay the bill. Vice versa, a court decision can be appealed, but not imputed. In Western law, no judge, in his role as judge, can be punished for the sentence that he has handed down.
The non-jurisdictional models seem to present fewer problems. In this regard new models in dealing with the past have been experimented, of the type, Truth Commissions, in Argentina, El Salvador, Guatemala, South Africa etc., It regards experiences which are particularly important in the processes of democratic transition. We are speaking, here, of bodies that lack coercive powers, which normally let investigations and revelations be followed by the provisions of amnesty, generalized or subordinate to admissions of responsibility. In this case, the problem is not so much to do justice or put the guilty in prison, but to establish a series of formal agreements which can help the legislators and national courts to decide, in a framework of substantial legitimacy.

It is difficult to say, at the moment, if something analogous can happen in the question of terrorism. Certainly, if it is possible to institute an ad hoc Criminal Law Court or have recourse to an International Court to establish whether or not there have been violations of fundamental rights by a regime, nothing forbids us to think of something analogous to decide the indexing of a defined conduct, under the headings of “terrorism”, “war”, “struggle for liberation”, “military occupation”, or “humanitarian intervention”, but to make concrete hypotheses in the matter is, to say the least, premature.
What is certain is that the empirical way becomes always more attractive to the eyes of the international community. A distinction between “war”, “terrorism” and “struggle for liberation” on a legal basis is equally attractive and perhaps more effective than a formula elaborated at a table in the ‘Glass Building’ but it is also easier to achieve, insofar as it permit who is not in agreement to maintain an attitude of elasticity and negotiation, without de-legitimizing oneself, awaiting the evolution of the international picture and of the fight against terrorism itself.


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