From the Introduction...
Introduction: Perspectives on International
Terrorism
Methodological Perspective
Definition, Characterization, and Context of
International Terrorism
Identification of Certain Characteristics of
Terroristic Violence
Classification of Perpetrator's Motives and the
Strategies of Terror Violence
Individual Terrorism: The
Ideologically-Motivated Perpetrator
State-Sponsored Terrorism: Motivation
Comparing Individual and State-Sponsored
Terroristic Motivation
Goals of State-Sponsored Terrorism
Destroying Active Resistance and Nullifying
Opposition
Destroying Passive Resistance and Asserting
Control
Counter-Strategies to Terror-Violence:
Controlling the Individual Through Penal
Sanctions
Theories of Punishment and Their Application to
Terrorists
International Cooperation and Preventive Law
Enforcement
The Machinery for Cooperation
The Political Offense Exception
State Responses to Individual
Non-State-Sponsored Acts of Terror Violence
Control of State Terrorism
Assessment of Enforcement Means
State Responses to Individual Terror-Violence
and the Rights and Responsibilities of Other
States
Assessing Terrorism into the New Millennium
Policy Considerations on Inter-State Cooperation
in Criminal Matters
Enforcement Assumptions and Policies
Integrating the Modalities of Inter-State
Cooperation for the Prevention, Control and
Suppression of International, Transnational and
Domestic Criminality
Principles and Policies for the Increase
in Effectiveness of the Indirect Enforcement
Scheme
Concluding Assessment on Inter-State Cooperation
Introduction: Perspectives on International Terrorism
Terror-violence, commonly referred to as "terrorism," has
been a matter of legal concern to the international
community since 1937, with the League of Nations' drafting
of the Convention for the Prevention and Punishment of
Terrorism.[1] Subsequently, the United Nations, as a result
of a spate of aircraft hijacking incidents, began its work
in connection with terrorism in 1963.[2]
Since then, and throughout the last
sixty-two years the United Nations has focused essentially
upon individual or small group violence directed against
civilians, diplomats, civilian aircrafts, commercial
maritime navigation and sea-based platforms and attacks
involving the use of explosives and weapons of mass
destruction.
The United Nations work has focused on
state-actors as parties responsible for implementing efforts
to combat, suppress and prevent terror-violence, while
sidestepping possibilities of terror-violence committed by
state-actors themselves.
During that period of time, however, technological advances
in the fields of transportation, communication and weapons
increased the actual, as well as, the perceived, dangers
faced by civil society, particularly those presented by the
possible use of chemical, biological and nuclear weapons at
the hands of non-State actors. The combination of increased
dangers and threat perceptions has produced a climate of
understandable concern in governments and general
populations, especially in Western societies which feel more
vulnerable to these threats.
This symbiotic relationship between terror inspiring
violence events and their psychological impact on societies,
has enhanced the concerns of governments whose functions are
to prevent such occurrences from happening. These concerns,
however, have frequently been manipulated by the media and
politicians who saw these issues as an opportunity to
advance individual or political party agendas.[3] The media
and political manipulation of the question have contributed
to a climate of fear and heightened public perceptions of
vulnerability.
The dissolution of the Soviet Union in 1991 instigated fears
that nuclear weapons would fall into the wrong hands and be
used for purposes of terror violence or blackmail. Although
these apprehensions failed to materialize, the world
community has increased its vigilance against possible
terrorism involving the use of nuclear and other weapons of
mass destruction, such as chemical and biological weapons.
Though the later two are more accessible to
State and non-State actors and relatively easy to use, there
has been only one incident involving the use of chemical
weapons by non-State actors for purposes of terror-violence,
and no significant attacks involving biological agents since
their use in World War II. The incident involving chemical
weapons occurred on March 20, 1995 when a religious cult
released sarin gas in a Tokyo subway station, resulting in a
dozen deaths and thousands more injured.
The low level of occurrence of such dangers does not,
however, suggest that the dangers arising out of the
particular use of weapons of mass destruction should be
taken lightly by governments. These occurrences increased
societies' perception of vulnerability to acts of terrorism
and heighten public anxieties, thus predicting the need for
governments to implement precautionary measures against such
attacks.
The phenomenon of terrorism includes the actual dangers of
terror-violence faced by contemporary societies, the
reasonably perceived threats of their potential occurrence
and the unreasonable threat perceptions of these dangers.
The elimination of this phenomenon has generated a new
world-wide climate of fear, as well as, a new sense of
urgency to develop adequate means to prevent such
occurrences. This situation lead to the development of
domestic and international mechanisms to prevent, control
and suppress acts of terror-violence. States developed
national specialized legislation granting enforcement power
to various agencies of the executive branch of government
and international mechanisms of law enforcement,
intelligence, prosecutorial and judicial cooperation through
bilateral and multilateral treaties.
Although both national, regional and international
enforcement mechanisms developed legal responses to control,
prevent and suppress terrorism, these legal responses also
produce some control mechanisms, such as intelligence
sharing, which are beyond the reach of the law. In recent
years these modalities have curtailed civil and political
liberties of the suspects and accused during the processes
of the investigation, prosecution and adjudication of cases
involving terrorism. Most of the substantive treaties
relating to terrorism have been developed by the
international community within the context of the United
Nations and its Specialized Agencies. Regional multilateral
organizations, such as the Council of Europe[4] and the
Organization of American States[5] have likewise developed
substantive treaties relating to terrorism.
The United Nations work on terrorism has essentially been
conducted by the General Assembly's Sixth Committee, through
the Security Council, the Economic and Social Council and
certain Specialized Agencies, such the International Civil
Aviation Organization, the International Maritime
Organization and the International Atomic Energy
Organization. The subject matter oriented approach to
prevent, control and suppress terrorism dominated the work
of the Ad Hoc Committee on International Terrorism in 1973,
1977, and 1979 because efforts to develop a comprehensive
definition of "international terrorism" proved politically
difficult.[6]
The first Report of the Ad Hoc Committee on
International Terrorism, set up pursuant to General Assembly
Resolution 3034 (XXVII) of December 18, 1972, demonstrated
that a comprehensive definition of "terrorism" was
unfeasible, due to the diversity of member-States' views.
The contentious issues that arose included: the
characterization of who is an innocent victim, the disparate
power relations between forces fighting in wars of national
liberation and colonial or occupying forces and the legal
consequences of actors' motivation.
These contentious issues were also
exacerbated by the divisions existing during the Cold War
between 1949 and 1989. The major powers of the West sought
to limit the definition of "terrorism" to individual and
small group conduct, excluding actions by States involving
police and military operations, irrespective of their
legitimacy, while other States, particularly the nonaligned
States, wanted to include consideration of terror-violent
actions by States particularly in connection with the use of
armed force. This broader application of "terrorism," while
furthering State-responsibility to encompass all forms of
illegitimate State conducted or State sponsored violent
activities�including those of a military or paramilitary
nature�also extend individual criminal responsibility to
agents of the State.[7]
The fifteen conventions and two draft convention directly
pertaining to the suppression, control or prevention of
"terrorism" [hereinafter the seventeen conventions] are:
Convention on the High Seas;
Convention on Offenses and Certain Other
Acts Committed on Board Aircraft;
Convention for the Suppression of
Unlawful Seizure of Aircraft;
Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation;
Convention on the Prevention and
Punishment of Crimes Against Internationally Protected
Persons; International Convention Against the Taking of
Hostages;
Convention on the Prevention and
Punishment of Crimes Against Internationally Protected
Persons, including Diplomatic Agents;
International Convention Against the
Taking of Hostages;
Convention on the Physical Protection of
Nuclear Material;
Convention on the Law of the Sea;
Protocol for the Suppression of Unlawful
Acts of Violence at Airports Serving International Civil
Aviation;
Convention for the Suppression of
Unlawful Acts Against the Safety of Maritime Navigation;
Protocol for the Suppression of
Unlawful Acts Against the Safety of Fixed Platforms
Located on the Continental Shelf;
Convention on the Marking of Plastic
Explosives for the Purpose of Detection;
Convention on the Safety of United
Nations and Associated Personnel;
International Convention for the
Suppression of Terrorism Bombings;
International Convention for the
Suppression of Financing of Terrorism; Draft Convention
on the Suppression of Acts of Nuclear Terrorism; and
the Draft Convention on International
Terrorism.[8]
The first multilateral convention created
with the specific purpose to suppress acts of terrorism was
the Convention on Offenses and Certain Other Acts Committed
on Board Aircraft [hereinafter Tokyo Convention on Offenses
on Board Aircraft], developed under the auspices of the
International Civil Aviation Organization and entered into
force in 1963.[9] The most recently adopted Convention is
the Convention for the Suppression of Financing of Terrorism
in 1999 [hereinafter Financing Convention].[10] Still
pending are the Draft Convention on the Suppression of Acts
of Nuclear Terrorism and India's Draft Comprehensive
Convention.
The seventeen conventions deal with specific
manifestations of "terrorism," namely: the hijacking of
civil aircraft; sabotage of civil aircraft and air
navigation facilities; attacks on international airports;
attacks on internationally protected persons and kidnappings
of diplomats; the taking of hostages; attacks on civil
maritime targets and on fixed platforms on the continental
shelf; the financing of terrorist activity; the use of
bombing and explosive devices against civilian installations
and persons.
An analysis of the subject matter of these
conventions reveals that four of the sixteen conventions
deal specifically with attacks upon civil aviation, four
conventions encompass attacks upon civil maritime navigation
and sea based platforms, three cover attacks upon persons,
including hostages, diplomats, United Nations personnel and
other internationally protected persons, one covers the
means of financing acts of terror-violence and four involve
the use of explosives and weapons of mass destruction,
specifically nuclear weapons.
While these seventeen conventions deal directly with
specific means of terror violence, other international
treaties also apply indirectly to violent acts associated to
terrorism. For example, the Universal Postal Union, an
agency mainly concerned with the licit international
regulation, standardization and cooperation of mail
delivery, included prohibitions against the unlawful use of
the mails for bombings. The Universal Postal Union
Convention and the Postal Parcels Agreement, since 1964,
prohibit the insertion of any explosive, flammable or other
dangerous substance, in letter-post items.[11] These
prohibitions extend to articles which, by their nature or
their packing, may expose officials and recipients to
danger.
While the prohibitions contained in the
Universal Postal Union treaties apply to individual conduct,
international treaties concerning weapons of mass
destruction only extend their prohibitions to State-Parties.
Thus, the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on
their Destruction (hereinafter Chemical Weapons
Convention][12] and the Convention on the Prohibition of the
Development, Production, Stockpiling of Bacteriological and
Toxin Weapons and on their Destruction [hereinafter
Biological Weapons Convention),[13] renders it illegal for
any State to use or sponsor the use of chemical or
biological weapons, thus prohibit State conducted or State
sponsored use of chemical and biological terrorism. No such
prohibitions, however, apply to the use of nuclear weapons
by States, although a convention concerning the physical
protection of nuclear materials does render States a duty to
cautiously deal with such weapons.[14]
The seventeen conventions, which resulted from this
piece-meal approach, are relatively narrow as to their
respective subject matter and reflect a variety of content,
specificity and style. Although breaking up the larger
problem of "terrorism" into manageable parts is easier and
more politically acceptable to the majority of States
Parties, the piece-meal approach does not account for, nor
justify, the lack of specificity, the ambiguities and the
gaps contained within and among these Conventions.[15]
These shortcomings are due essentially to
the processes of the United Nations and the fact that the
majority of the participants involved in the treaty making
process are diplomats who either have limited expertise in
international criminal law, or who are more concerned with
reaching consensus than with the ultimate quality of the
legal product.
Notwithstanding their diversity, these conventions, share
the six modalities of international cooperation in penal
matters, namely: extradition, mutual assistance, transfer of
criminal proceedings, transfer of prisoners, seizure and
forfeiture of assets and recognition of foreign penal
judgments.[16] These seventeen conventions, nevertheless,
differ as to the inclusion of all or some of these six
modalities, as well as, the articulation of the legal
obligations pertaining to these modalities.
Furthermore, many provisions use language
which may lead to differing interpretations, thus causing
confusion as to what the applicable law may be.[17] This
discrepancy in language allows for State Parties, seeking to
avoid there obligations to prosecute or extradite terrorists
within their jurisdiction, to achieve that result with some
plausible justification.[18]
In 1996, India proposed to the General Assembly the need to
establish a comprehensive convention on terrorism.[19] For a
variety of reasons, mostly lack of political will, this
proposal was never followed through. However, in August
2000, India submitted a revised draft of the 1996 proposal,
which is presently being considered in the Ad Hoc
Committee.[20]
A comprehensive convention which combines all existing
conventions pertaining to terrorism into a single updated
text would significantly advance the overall objectives of
these conventions. Such a comprehensive text would
contribute to the elimination of overlaps, gaps and
ambiguities which currently exist in the sixteen separate
subject matter conventions. It would also eliminate the need
to consult multiple legal sources in order to enforce State
Party obligations. If this piece meal subject-matter
approach trend continues, there is no end to the number of
conventions likely to be developed over the years to come,
and there is no hope to make the legal mechanisms contained
within each convention more effective.
Methodological Perspective
All forms of violence can be placed on a single continuum.
Distinctions as to goals, means, perpetrators and victims
are based on socio-political judgments in order to devise
modalities of social and legal controls.
It is axiomatic that all forms of violence
cause harm to persons and things, and that all societies
grade the nature and severity of the harm which is produced
in order to develop appropriate responses to control and
prevent such harm.
Equally self-evident is the fact that every
form of violence is potentially terror-inspiring to its
victim and to those it indirectly affects. These truisms do
not, however, mean that the manifestations and consequences
of violence lack complexity as to their causes and with
respect to the policies and means which are necessary for
their prevention and control.[21]
It is important to distinguish between three concepts that
are frequently used interchangeably, namely: "terror,"
"terrorism," and the "terrorist."[22] "Terror" is a general
concept of emotionally enhanced fear. "Terrorism" is
descriptive of the processes of terror-violence. "Terrorist"
is the label society attributes to the perpetrator of a
terror-inspiring act.
Therefore, to refer to "terrorism" without
a clear understanding of the term's meaning and scope is
misleading, though popularly and politically useful.
"International terrorism" is also a term that requires
defining. However, to define "international terrorism" in a
way that is both all-inclusive and unambiguous is very
difficult, if not impossible. Thus, it now simply means that
the present conduct is prohibited by an international
convention.
One of the principal difficulties we face in dealing with
terrorism lies in the fundamental values that are at stake
in the acceptance or rejection of terror-inspiring violence
as a means of accomplishing a given goal, particularly when
that goal reflects certain values.
The wide range of views on these issues make
the development of a definition of "terrorism," a
politically unfeasible undertaking. Therefore, the search
for an internationally agreed upon definition may well be a
futile and unnecessary effort.[23]
This does not exclude the development of a
subject-matter definition of "international terrorism" based
on the identification and appraisal of the elements of this
multifaceted phenomenon.[24] Such a working definition must
reflect a consensus of the world community's commonly shared
values and expectations. In the process of achieving that
consensus, strengthening the world community's values and
expectations should also lead to the development of more
effective social and legal control mechanisms at the
national and international levels.
There is, however, no internationally agreed upon
methodology for the identification and appraisal of what is
commonly referred to as "terrorism," including: causes,
strategies, goals, and outcomes of the conduct in question
and as to those who perpetrate violent conduct against
protected persons or targets or who engage in such conduct
in an unlawful manner. There is also no international
consensus as to the appropriate reactive strategies and
means of individual states and the international community.
As a result, it is difficult to identify
who, why, how, or what is sought to be prevented, controlled
and suppressed.[25] Therefore, the pervasive and
indiscriminate use of the often politically convenient label
of "terrorism" continues to both mislead and make ambiguous
the phenomenon of terror violence.[26]
One of the consequences of this ambiguous and misleading
situation is that world attention has focused almost
exclusively on individual acts of terrorism with little
attention given to state-conducted terrorism.[27]
Furthermore, some terror-inspiring common crimes with
transnational dimensions, such as narco-terrorism, are
substantially excluded from the literature on terrorism.
That may be due to the fact that most commentators on
terrorism are from a political-science background who have
only in the last decade become more conscious of the
interrelated problems of narco-trafficking, organized crime
and terrorism.[28]
Quantitatively and qualitatively, individual terrorism
causes much more limited harm than either domestic common
crimes or state-conducted terror-violence.[29] This
distinction, however, is not reflected in public attitude,
legal literature on the subject, government policies and
international reactions, given some exceptions.
This is due in large part to the media's
role in creating and reinforcing perceptions and to the
media's attributions of the scope, and harm produced by some
forms of terrorism.[30] This media created situation
explains, in part, why the individual,
ideologically-motivated terrorist carefully selects certain
targets in order to ensure that the act has both the
intended political impact and terror-inspiring consequence
as disseminated through the media's coverage.
The worldwide concern with individual terrorists over the
last two decades is not, however, due exclusively to media
coverage, but also to the policies of some states, who for
political reasons, have sponsored or given support, aid or
comfort to such perpetrators.[31] Thus, state-sponsored
terror-violence must be addressed in addition to all other
forms of individual non-state-sponsored terror-violence. In
addition however, we must address the question of
state-conducted acts of terror-violence whether domestically
or international.
Meeting this challenge requires improving
and enhancing techniques for conflict resolution, enforcing
internationally protected human rights, and enforcing
international humanitarian law.[32] In short, a global and
comprehensive approach based on commonly shared values,
applied consistently and in good faith, is indispensable if
the international community is to ensure a better result in
the prevention, control and suppression of all forms and
manifestations of terror-violence. Admittedly, however, it
is much more difficult to deal with state-conducted acts of
terror-violence than with individual ones. But without
consistency in policy, normative formulation, and
implementation practices based on ethically premised and
commonly shared values, the world community surrenders the
high moral ground, which is indispensable for inducing
greater international compliance.[33]
Lastly, there is the question of whether new international
norms are needed in order to cope with terrorism. It is this
author's belief that what is needed is not so much the
development of new international norms, but a refinement of
existing norms and the effective enforcement and consistent
application of these relevant norms.[34] Detailed
regulations for armed conflicts already exist, whether of an
international or non-international character, which protect
certain persons and targets from violence.[35]
A number of international conventions also
specifically protect certain targets, which have
historically been victim to acts of terror-violence, such
as: international conventions on piracy,[36] hijacking,[37]
kidnapping of diplomats,[38] civilian hostage-taking,[39]
and unlawful use of the mails.[40] There are, however,
insufficient legal norms to adequately regulate contemporary
forms of internal civil conflicts.[41] In these two
contexts, experience since World War II has tragically
indicated that the existing normative framework is
insufficient.[42] In addition, there are practically no
effective means to ensure compliance with, and enforcement
of, these norms. Furthermore, effective enforcement of
existing conventions, by means of greater inter-state
cooperation in penal matters, such as extradition[43] and
judicial assistance, is still needed.[44] But differences in
perceptions and values continue to divide scholars and
policy-makers in the determination of an appropriate
approach to international penal cooperation.
Definition, Characterization, and Context of International Terrorism
The initial problem in defining "terrorism" stems from
various popular perceptions and misconceptions, which
ultimately condition the political and legal meaning of the
term. Legal literature reflects a shared perception as to
certain types of prohibited conduct which target civilian
aircraft, innocent civilians, diplomats and other
internationally protected persons, civilian installations,
archaeological and cultural monuments, artifacts and
records.[45]
But there is no agreement as to just who the
persons deemed "innocent civilians" or genuine diplomats
are, or what constitutes purely civilian installations or
legitimate targets. This confusion stems, in part, from the
mass media's indiscriminate and inconsistent use and
application of the term "terrorism," as well as, government
pronouncements, which are influenced in turn by the
political or ideological content of the term, thus
reflecting differing values. It is best expressed in the
maxim: "what is terrorism to some is heroism to others."[46]
Efforts to define terrorism have met with the resistance of
some governments who, in the absence of commonly shared
values and agreed-upon goals and means, prefer the ambiguity
of the undefined term while other states have sought an
internationally agreed-upon definition of "terrorism." That
result has yet to be attained, if indeed it is attainable at
all.[47]
Despite the difficulties involved, several commentators have
struggled to develop a definition.[48] This author proposed
a working definition, which subsequently received a
significant degree of international acceptance, at the 1973
international conference.[49] If a definition is at all
possible, or necessary, then it should be descriptive in
order to allow for the development of a non-inclusive list
of specifically prohibited acts which would, as much as
possible, be devoid of political subjectivity and bias.
This author expressed this position at the
United Nations' Meeting of Ad Hoc Experts on International
Cooperation for the Prevention and Control of the Various
Manifestations of Crime, Including Terrorism which convened
at the International Institute of Higher Studies in Criminal
Sciences (Siracusa, January 20-24, 1988). The group adopted
this approach and most of the textual formulation that
follows, which were originally prepared by this writer and
contained within the Draft Working Paper submitted to
meeting. The United Nations Inter-Regional Meeting of
Experts (Vienna, March 14-18, 1988) accepted this report.
"Terrorism" may thus be defined as:
an ideologically-motivated strategy
of internationally proscribed violence designed to
inspire terror within a particular segment of a given
society in order to achieve a power-outcome or to
propagandize a claim or grievance, irrespective of
whether its perpetrators are acting for and on behalf of
themselves, or on behalf of a state.
This definition includes strategies of
terror-violence engaged in by individuals acting on their
own, as part of a small group, or on behalf of a state,
irrespective of their goals or their claimed justification.
The definition, however, excludes conduct that is not
motivated by ideological or political goals and purposes.
The unlawfulness of the violent means employed is determined
by international legal norms. Individual international
criminal responsibility is just one consequence of violating
these norms.[50]
In order to be deemed international, acts of terror-violence
must contain an international element, be directed against
an internationally protected target, or violate an
international norm.[51]
A. An act of terror-violence contains an international
element when:
(1) the perpetrator and victim are
citizens of different states; or
(2) the conduct is
performed in whole or in part in more than one state.
(3) the perpetrator is a citizen of one state and the
act is committed in another state.
B. Internationally-protected targets are:
(1) innocent civilians, whether
protected by international legal instruments or not;
(2) duly-accredited diplomats and personnel of
international organizations acting in their official
capacities;
(3) international civil aviation and
international civilian maritime navigation;
(4) the
mail and other means of international communications; or
(5) members of non-belligerent armed forces.
C. A power-oriented outcome is: an outcome
which is aimed at changing or preserving the political,
social or economic structures, or the policies, conduct, or
practices of a given state by means of coercive
terror-violence strategies.
D. Internationally proscribed conduct applicable to
terror-violence includes:
(1) aggression;
(2) war crimes;
(3) crimes against humanity;
(4) genocide;
(5)
apartheid;
(6) unlawful human experimentation;
(7)
torture;
(8) slavery and slave-related practices;
(9) piracy, and unlawful acts against the safety of
maritime navigation;
(10) hijacking and sabotage of
aircraft, and acts of violence at airports;
(11)
kidnapping of diplomats and other internationally
protected persons;
(12) taking civilian hostages;
(13) serious environmental damage; or
(14) serious
violation of fundamental human rights.
Within the framework of this definition,
international terrorism arises in the following contexts:
1. Armed conflicts of an international character or of a
non-international character:
A. Conventional Wars
The intended
power outcome is victory over the enemy, or the
subjection of an enemy population or territory, to
foreign control.
B. Wars of National Liberation
(1) against settler regimes, the intended power outcome
is either the removal of the settlers or the transfer of
power from the settler group to the indigenous
population;
(2) against foreign occupation and/or
colonial regimes, the intended power outcome is the
total removal of the foreign occupation or colonial
presence.
2. Internal political conflicts which may or
may not involve an armed conflict of non-international
character.
A. Between opposing ethnic, racial,
religious, or linguistic communities.
The
intended power outcome is either the social, economic or
political transformation of existing structures, or the
breaking of the political unity of the state;
B.
Between those seeking to effect social or political
transformation of existing structures or the breaking of
political unity of the state;
C. Between
individuals or groups seeking to propagandize a claim or
grievance and organized society.
The power
outcome is the advocacy of a given claim or grievance.
Within these contexts, a distinction must
also be made between individual terror-violence, small group
terror-violence, and state-sponsored terror-violence.
Individual and small group terror-violence may occur in
the context of wars of national liberation or internal
political conflict which may, or may not be, deemed
conflicts of a non-international character within the
meaning of the Geneva Conventions of August 19, 1949 and the
1977 Additional Protocols.[52]
State conducted or
state-sponsored terror-violence may occur in the context of
wars of international or non-international character,
military occupation, support for individual and small group
terror-violence, or in the maintenance of political regimes
by means of serious violations of internationally protected
fundamental human rights.
Finally, there should no
longer be a place in contemporary international law for
distinguishing between the law of war and the law of peace
and jus ad bello and jus in bellum.[53] The development of
contemporary international law should be more clearly and
unambiguously focused on proscribing certain forms of
violence, irrespective of by whom, where, or why such
violence occurs. Contemporary debates over the legitimacy of
wars of national liberation, radical revolution movements,
and states' national security interests have tended to
obscure the clarity of this focus. These debated are
analogous to the debate during the middle ages over just and
unjust wars without regard to the means employed or harm
produced.[54]
Even so, "international terrorism" is,
to some extent, more easily definable, or at least more
clearly identified than its purely domestic counterpart,
which can include acts committed by common criminals. Thus,
the two essential distinguishing characteristics of
terrorism are: (1) the ideological motivation of the actor;
and (2) the political purpose, or power-outcome,
contemplated by the act of violence.[55]
The question, however, remains with a number
of scholars and government experts as to whether "terrorism"
should be defined, or whether it is better to substantively
identify those acts which are prohibited by international
law and require international cooperation with respect to
their prevention, control and suppression.[56]
The
increasing volume and spectacular nature of individual
terror-violence acts since the 1960s,[57] their
transnational effects, and the mass media's publicity of
such acts, have combined to generate a disproportionately
high level of worldwide concern with the aspect of
terrorism. As a result, terrorism, like street crime in many
states, has become an emotional law-and-order issue with
added international and ideological dimensions.[58]
As stated earlier, however, state-sponsored
and state-conducted acts of terror-violence and other forms
of serious deprivation of human rights remain largely
outside the scope of contemporary international and national
efforts to prevent and control all forms and manifestations
of terror-violence.[59]
As with other value-laden
problems, remedies to control and prevent its manifestations
have been inadequate and largely ineffective. These remedies
range from armed preparedness by governments and private
vigilante groups to government censorship and control of the
media, usually employed for the benefit of governments
involved. Nearly every proposed or enacted piece of
legislation in the world that purports to prevent and
control individual terrorism exists in the nature of
repressive penal and administrative measures.[60] These
measures needlessly create new categories of crimes or
increase the penalties for violations of existing law.[61]
The temptation to legislate these problems out of existence
has and will continue to prove futile.
The phenomenon of terrorism thus requires a
more careful analysis of the characteristics of
terror-violence as they relate to the proposed definitions
of "terrorism." More particularly, analysis demands a
distinction between domestic terrorism and international
terrorism, and even within that category, a distinction
between state-sponsored and non-state-sponsored conduct.
Identification of Certain Characteristics of Terroristic Violence
The purpose of any definition of criminal behavior is to
clearly state the proscribed conduct for which a sanction is
to be applied in order to prevent and control such harmful
behavior. To accomplish this goal, a definition must
identify those harmful consequences it seeks to prevent and
the behavior it seeks to control. Since there are different
types of terror-inspiring violence, one must first identify
the characteristics commonly attributed to terrorism in
contrast to similar acts of violence which are not regarded
as such. The reasons for the consensus, or lack thereof,
regarding the inclusion or exclusion of certain acts of
violence from the category of terrorism must also be
appraised.
The following example illustrates the
problem of the same act falling within or without the scope
of terrorist conduct. Consider the bombing of a restaurant.
If an individual, claiming to be acting for and on behalf of
a group dedicated to the overthrow of the government of the
state in which the act occurred bombed the restaurant, the
act is terrorism. If, however, the perpetrator is the owner
of the restaurant and destroys it in order to collect
insurance, the act is not "terrorism."
The following characteristics assist in understanding
why one act constitutes terrorism and the other does not:
1. Motivation
The motives of
the perpetrator[s] are ideological rather than personal
profit.
2. Resulting Harm
The resulting
harm to life or property presents no personal benefit
for the ideologically-motivated offender, whereas it is
personally beneficial for the common criminal.
3.
Target
The ideologically-motivated offender's selection of
the target does not necessarily bear a relationship to
his ultimate goal or purpose, whereas, for the common
criminal, the target is either the goal or is
essentially linked to the goal.
4. Publicity
The ideologically-motivated offender seeks publicity for
the act, whereas the common criminal shuns publicity.
5. Desired Outcome
The outcome sought by the ideologically-motivated
offender, usually the dissemination of a particular
claim, does not necessarily bear a relationship to the
target, whereas for the common criminal the desired
outcome and target are, more often than not, one in the
same.
6. Risk-taking
The ideologically-motivated offender will weigh the
risks incurred in perpetration of the acts against the
ultimate goal sought to be achieved, or against other
ideological or political benefits to be obtained, that
are not necessarily inherent in the primary target,
whereas the common criminal will weigh the risks
incurred against any immediate material benefits he can
derive from the very act.
7. Methodology
The contemplated harm resulting from a given act
will usually be less of a consideration in the
decision-making process of the ideologically-motivated
offender than that of the common criminal. As a direct
result, the ideologically-motivated offender will
usually perpetrate the act in a manner designed to
ensure maximum effect in relationship to his goal,
irrespective of the harm produced thereby. The common
criminal will usually resort to only those means most
likely to accomplish the immediate result, incurring the
least possible risk of harm.
This analysis emphasizes the cause and
effect relationship between act and outcome, and between
means and end. Each is much more complicated with respect to
ideologically-motivated offenders than with respect to
common criminals. The conduct of common criminals can
usually be evaluated relative to a single goal, personal
profit, while the goals of ideologically-motivated offenders
must be analyzed at three levels:
(1) Must the target be directly attacked
in order to achieve the tactical objective?
(2)
Is the strategic objective of the act: mass media's
dissemination of the ideological claim, or the effect of
the act, or both?
(3) The power outcome, or the
achievement of the desired political impact, is varied.
The observations presented above do not
always sufficiently distinguish between similar types of
acts which have the same elements of terrorism. For example,
where a public official is implicated in a case of torture,
motivation is determinative. If the act is perpetrated in
order to further a bribe, it is a common crime. If the act
is perpetrated in order to elicit a confession, it is an
international crime.[62] Thus, the degree of public
consensus in defining an act labeled as "terrorism" is
largely subjective, because it depends on the perpetrator's
motives. As a result, if the act is committed by an
ideologically-motivated offender, irrespective of the
characteristics of the act, it is deemed terrorism. When
persons who are not ideologically-motivated commit the exact
same act, it is not labeled as "terrorism." This labeling
process is based on five factors:
(1) the professed or perceived
motivation of the perpetrator,
(2) the actor's
self-stated goal,
(3) the target of the act,
(4)
the intended audience which is, or could be, subject to
the terror-inspiring act of violence, and
(5) the
evidentiary or causal link between the above factors.
The primary distinguishing factor, which
permeates all others, is the subjective motivation of the
perpetrator. But why should the primary focus depend on the
actor's subjective state of mind instead of the actor's
objective conduct? In other words, why not move away from
the actor's subjective characterization of his conduct or
the state's evaluation of the ideological motivation of the
actor to a more neutral objective characterization of the
act? In short, why not characterize an act of killing
innocent civilians as an objective crime, irrespective of
the perpetrator's ultimate goal? This avoids unnecessary and
cumbersome rationalizations for graduated distinctions of
quasi-justifiable or quasi-excusable crimes. Instead, why
not rely on fundamental principles of criminal
responsibility that have long been recognized and applied in
every legal system of the world as a basis for
accountability.
Classification of Perpetrator's Motives and the Strategies of Terror Violence
Perpetrators are classified according to their acts,
according to their motives, or a combination of both. In the
context of terror violence, the classification made in
international law and by most countries is, as stated above,
essentially made on the basis of the perpetrator's motives.
This subjective approach is also relevant to state-sponsored
terror-violence. State-sponsored terror-violence is
implicitly excluded from the generally accepted meaning of
"terrorism," presumably because it reflects the political
goals of the state. Both are wrong.
Individual Terrorism: The Ideologically-Motivated Perpetrator
Individuals who engage in acts of terror-violence act out of
complex motives.[63] Thus, a rigid or precise classification
of "terrorists" is necessarily artificial. It is
nevertheless useful, for analytical purposes, to identify
four basic categories:
(1) common criminals motivated by
personal gain;
(2) persons acting as a consequence of a
psychopathological condition;
(3) persons seeking to publicize a claim or to redress a
grievance; and
(4) ideologically-motivated individuals acting pursuant
to actual or perceived political reasons.
The third of these categories is sometimes
subsumed in the fourth. The fourth category, more than the
other three, seems to fascinate writers, terrify the public,
and intrigue the media.
Ideologically-motivated
offenders have received, or seek to confer upon themselves,
a special status by virtue of their purported adherence to
higher political or ideological values. This applies
irrespective of whether these actors commit common or
international crimes that are seldom, if ever, deemed
justifiable or excusable by general principles of criminal
responsibility under the laws of most countries. The
ideologically-motivated offender seeks to accomplish an
ideological or political objective by means which are
unlawful, presumably because no effective legal means are
available to accomplish this goal by peaceful means, or
because the offender rejects, in whole or in part, the
political or legal system under which he operates. This
proposition is the cornerstone of the rationalization
process for resorting to almost all forms of
terror-violence.
The contemporary
ideologically-motivated offender frequently claims to act in
self-defense, by reason of necessity, or under
compulsion.[64] In some instances, the perpetrator claims
either to be the victim of a system which left him no viable
alternative, or the defender of a system that he believes is
under attack and which requires such strategies and tactics
for its legitimate defense.[65] Those who claim to act under
this motivation are as convinced of the legitimacy of their
deeds as are those who defend the system under attack. Both
categories of actors claim that their resort to violence is
equivalent to measures taken by duly-constituted authorities
in order to protect higher values or interests. Accepting
these premises leads to the logic supporting the
rationalization for their violent deeds. The consequence is
that as values and perceptions change, so does the concept
of terror-violence.[66] This alone should be enough to argue
against the purely subjective approach in defining or
analyzing terrorism.[67]
Ideologically-motivated actors, irrespective of whether
they claim to defend or attack a given system, also perceive
themselves as "justice-makers."[68] They consider their
action, even when they recognize that such acts are
abhorrent, to be dictated by circumstances beyond their
control or forced upon them by the limitations of the
political context in which they operate. The gradual
psychological transformation, which such individuals undergo
before resorting to forms of terror-violence, is further
evidence of this belief.[69]
Ideologically-motivated
actors seem to possess the following psychological
characteristics:
(1) heightened perception of oppressive
conditions, whether real or imaginary;
(2)
recognition that such conditions are not the immutable
order of things, but amenable to change;
(3)
recognition that a peaceful process designed to promote
change is not forthcoming;
(4) decision that one
must resort to violence to create or effect necessary
change;
(5) recognition that violent acts need
not be successful, but may merely contribute to
initiating events that may lead to change, including the
acceptance that dissemination of the cause is sometimes
at least as important as the ultimate success of the
cause;
(6) convinced that the goal outweighs the
actual harm of the violent act, thus violence without
guilt;
(7) recognition that "the cause"
transcends the need to justify the particular act of
violence, thus self-gratification merges with the
purpose.
Two additional characteristics accompany
transformation of consciousness:
(8) The ethnocentricity of the values
opposed to the desired change justifies the same
ethnocentricity of the actor's values. This produces a
polarization of values without a possible mechanism for
reconciliation and inevitably leads to the logic of
violence.
(9) The absence of resocialization of
actors who do not conform to social norms stigmatizes
the actors and prevents their reintegration into
society. This further radicalizes and leads the actors,
and others who emulate them, to further violence.
The net effect creates a final psychological
shift:
(10) Violence is a justifiable means to
an end. The rationalized "cause," now legitimized, makes
the actor both a hero and a victim.
Individuals so motivated are willing to take
risks and to bear personal sacrifice to a far greater extent
than the more calculating common criminals who are motivated
only by personal gain. The ideologically-motivated actor
does not weigh risks only against opportunities for success,
but includes the abstract value of the cause as a necessary
element of the equation. This is why traditional concepts of
deterrence cannot be applied to ideologically-motivated
actors.[70] The cost-benefit equation does not apply to
ideologically-motivated offenders in quite the same way and
strategies of prevention and control based on that equation
are of limited effect.
Distinguishing between
psycho-pathological individuals, and ideologically-motivated
actors, who may manifest the same characteristics and who
engage in the same conduct, is even more difficult.[71] The
similarity of apparent psychological characteristics may
explain why the media frequently depicts, and the public
thereby perceives, ideologically-motivated actors as
ruthless, brutal psychopaths. It may also explain why
psychopaths are drawn to ideological causes.[72]
Individual ideologically-motivated actors engage in certain
forms of violence on the basis of perceptions directly
related to the choice of means and targets selected. These
choices are in turn intrinsically linked to both ideological
beliefs and the goals the actor feels compelled or committed
to achieve. The individual profile and the type(s) of
conduct in which he engages are:
(1) The actor is, or believes himself to
be, ideologically-motivated.
(2) The purported
outcome is alleged or designed to achieve a certain
power outcome or political goal.
(3) The means
employed and the methods pursued are designed to have a
psychological impact on the population at large or a
selected segment thereof.
(4) The psychological
impact produced is disproportionately larger than the
actual harm.
(5) The tactical objective may be
narrow or limited in scope, as is the actual harm.
(6) The tactical objective or target, whether it be a
person or an object, is either chosen at random to
highlight the system's and/or public's vulnerability, or
it is carefully selected to avoid a negative public
reaction, or backlash, or it is designed essentially to
generate a positive or sympathetic public reaction.
(7) The long-range strategic objectives are considerably
varied, but they generally are chosen to:
(a)
demonstrate the vulnerability and weakness of the organs
of power;
(b) attract broader public sympathy
through the strategic choice of a carefully selected
target that may be publicly rationalized;
(c)
force the organs of power to react in a manner likely to
create other conflicts and crises, or simply to bring
them into ridicule or disrepute;
(d) cause a
polarization and radicalization among the public or a
segment
thereof; or
(e) force the organs
of power into repressive action likely to discredit them
and to bring new support to the actor's cause.
(8) Use of the mass media as a disseminator of the
terror-inspiring nature of the act, or of the actor's
political message, or both.
[9] The variety and
diversity of the acts of violence are usually determined
by the circumstances in which the action takes place.
[10] The perpetrators rely on the existence of a certain
degree of public apathy, or sympathy, or
societal/cultural tolerance for a certain level of
violence. Thus, violent incidents increase in number, or
intensity, or both, until they reach a point of
diminishing returns, which is the level of social
tolerance beyond which the public's reaction turns
against the perpetrator's cause.
These characteristics are not necessarily
the only characteristics that psychological, sociological,
political and juridical disciplines can identify, but they
represent a consensus of the views expressed by most experts
on the subject.
State-Sponsored Terrorism: Motivation
States are abstract entities and as such they do not
commit crimes.[73] They act for or on behalf of the state,
and they determine its ideology and shape the means to
achieve its purported goals. How the state is represented by
a single individual as a head of state, or by a political
party, or by an organized group, is largely immaterial for
purposes of identifying the nature of the prohibited act.
However, these are critical distinctions for purposes of
assessing responsibility and for developing a means of
prevention, control, and eventually, repression.[74]
The purported motivation of states in the commission of acts
of terror-violence, committed by persons acting for or on
their behalf, includes the goal of asserting or
consolidating control over a given territory or population
in order to destroy or eliminate opposition to a given
political system or a given program of that system.
State-sponsored policies of terror-violence, as committed by
individuals, have the following common characteristics:
(1) The actor claims to act for, or on
behalf of, the state or under color of law or authority
and will either claim to be ideologically-motivated or
claim to be acting under superior orders;
(2) The
purported outcome is alleged or designed to achieve a
certain power outcome [e.g., acquisition or
consolidation of power];
(3) The means employed
are designed to produce harm to one or more individuals,
or a segment of society, or certain representative
personalities, in order to achieve specific political or
psychological goals;
(4) The actual harm produced
is often disproportionately greater than publicly
acknowledged, yet its effects are not always widely
known;
(5) The actual harm produced is frequently
concealed and the identity of the individual actor is
almost always concealed;
(6) Reliance on different actors, and segments of
actors within the system may serve either to conceal the
source of the action or to prevent the imposition of
responsibility;
(7) The action may be the product of one or more
government officials abusing their authority, or
misconstruing the directives or wishes of their
superior.
Thus, it is clear that there are certain
similarities and dissimilarities between
ideologically-motivated individuals who act either for or
against the politically constituted system, irrespective of
the constitutionality or legitimacy of that system. Once
again, the adage that "what is terrorism to some is heroism
to others" is true.
This is why a policy of prevention and
control of all forms of terror-violence should not be
predicated exclusively, or even primarily, on subjective
factors. Rather, prevention and control should be based on
the relatively objective identification of specifically
proscribed conduct, equally applied, irrespective of whether
individuals are acting for or on behalf of a state. Such a
policy reduces subjectiveness, promotes consistency, and
symbolizes rejection of unlawful violent means, irrespective
of the reasons and ultimate beneficiaries thereof.
Comparing Individual and State-Sponsored Terroristic Motivation
Differences in strategy and outcome between individual
terror-violence and state-sponsored policies of
terror-violence are most significant in consideration of the
element of public perception.
State-sponsored
terror-violence usually seeks to avoid attracting public
attention, whereas non-state-sponsored terror-violence seeks
to publicize the act, the intended outcome, and the claims
of the actor. State-sponsored terror-violence, including,
for example, torture or other human rights violations,[75]
is usually conducted in secrecy to avoid media coverage.[76]
The dissemination of repressive state measures may also be
initiated by state-controlled media or by the propagation of
rumors designed to produce the desired effect. Unlike
ideologically-motivated terror-violence which may have
diverse desired outcomes, state-sponsored terror-violence
has one primary objective: the establishment or preservation
of power. Secondary objectives and intended outcomes are
also, invariably related to the goal of re-establishing or
preserving power.
Some who act for or on behalf of a state in committing
unlawful acts of violence share the same psychological
profile as individual offenders. But others have the same
motives as common criminals�personal gain. These, therefore,
come within the cost-benefit equation of preventive
deterrence through effective criminal punishment. Effective
deterrence will depend largely on whether individual
positions of power insulate or shield such actors from
detection and effective prosecution. Regardless of
motivation, those who act for or on behalf of the state
expect to do so with relative or total impunity, while
individual ideologically-motivated actors accept the
inherent risk of danger and punishment.
Psychopathic
personalities may also be found among those acting for a
state and among ideologically-motivated groups resorting to
violence. They share the same characteristics and are
seldom, if ever, deterred by criminal punishment. These
personalities are more difficult to reveal and less
susceptible to control, even by their own peer groups. For
such individuals, early detection strategies and prevention
are more effective than relying on traditional notions of
general deterrence and punishment, particularly where such
actors may invoke the defense of insanity or diminished
criminal responsibility with a large measure of success.
Goals of State-Sponsored Terrorism
The aim of a state, as represented by a single tyrant or
by a ruling elite, or even by a popularly broad-based
government, in its use of terror-violence is the same
whether in the context of war or peace, and whether the
means employed are against its own population or another, or
segments of either one of these. This aim is the destruction
of the will of its primary targets to resist control.
Whether part of an armed conflict or not, state-sponsored
terror-violence aims to destroy either active or passive
resistance in either the population of the territory under
control or sought to be controlled.[77]
Destroying Active Resistance and Nullifying Opposition
States employing terror-violence strategies against
opposition groups must first identify the primary target
persons or groups. Incidental targets may include persons or
groups of similar beliefs or tendencies, members of other
opposition groups, or any other class of persons which are
related to members of the primary target. The intended
message to all such persons is usually simple and clear�that
such harm will also come their way unless they abandon their
course of action and submit to the state's control, or
refrain from supporting, sustaining or succoring those who
are members of the primary target group.
The forms of
harm inflicted on members of the class constituting the
incidental target include a variety of means, which are
usually explicitly or implicitly prohibited by international
human rights norms and standards. In addition, the acts and
resulting harms are also prohibited by national laws, unless
said laws were deliberately changed or manipulated to fit
the needs of the state, or unless such laws are simply
ignored or unenforced, and thereby ineffective under the
ruling regime.
Arbitrary arrest and detention,
torture, extrajudicial executions, confiscation and
destruction of property, restricted freedom of movement and
travel, and the right to leave and to return to one's
country are examples of unlawful state-sponsored measures.
The most recurring form of unlawful act is torture. Its use
accomplishes three purposes: it may secure information, it
serves as a means to terrorize others, and it inflicts
punishment upon the victim. The internal criminal justice
system is seldom effective in preventing and controlling
such egregious crimes, necessitating development of other
international enforcement techniques in order to prevent and
control such behavior. Barring effective international
enforcement, such conduct will all too often go unpunished.
In response, such unlawful conduct by state agents may also
trigger responses by supporters of the victim and opponents
of such state policies, which may include additional
unlawful acts of terror-violence.
The conflict
between law as an instrument of power and its moral-ethical
underpinning is nowhere more evident than in the use of
unlawful violence to resist unlawful violence.[78] The
distinction can only be drawn by the moral-ethical
foundations of the positive law, which is violated by the
protagonists of both positions when they engage in
prohibited conduct. Extreme situations, made somewhat clear
by others, may ultimately be dependent upon, or arguably
nothing more than, value-judgments.
Destroying Passive Resistance and Asserting Control
Peacetime use of terror-violence against passive
resistance arises when a sweeping policy is implemented,
necessitating drastic changes in the political, social and
economic structure of the state. In such cases, the
government may lack the persuasive power or resources to
achieve the desired policy changes without employing violent
or repressive tactics. As a result, the state may be
compelled to resort to terror-inspired violence by its own
inability to achieve its goals, thus attempting to force the
population to engage in the process of change. In this
context, selection of individual or collective targets is
particularly arbitrary.
The primary target of the acts of
terror-violence may be a class of persons who are now
willing to cooperate in the state's programs. Likewise, a
class of people may also be identified for direct coercive
action on a selective basis to further the transformative
programs of the state. Such coercive means are also designed
to instill terror in other groups, either in order to
maximize their compliance, or to enhance the group's general
submissiveness to the regime in question. At times, the
state may allow such "terrorism" to be performed by
unofficial groups supporting the regime, or by public
officials acting in their alleged private capacity.[79]
It is noteworthy that in instances of state-initiated
terror-inspiring strategies, the media never enjoys much
freedom, if any at all. The mass media is invariably
controlled and manipulated to serve as an instrument of the
state's policies. Control and cooperation are indispensable
to the effective implementation of such state policies.
Conversely, it must be emphasized that a free media carrying
out its responsibilities is one of the most effective
bulwarks against such state policies, not only because it
deprives the state of the terror-inspiring means of
disseminating the effects of their policies and practices,
but because it also counteracts state-initiated
terror-inspiring strategies by exposing them.
The principles of state responsibility and the obligations
of states under international human rights norms are
applicable to such activities, but their effective
enforcement is lacking in these situations.[80] The outcome
is that such instances of state-sponsored terror-violence
remain uncontrolled and unpunished, yet the international
community may condemn individual acts of terror-violence
committed as a response to these and other forms of human
rights depredations.
The lack of legal and moral symmetry is
glaringly obvious in such cases and it erodes, if not
destroys, the assumption of legitimacy upon which the law is
founded.[81] Without a legitimate foundation, voluntary
compliance with law dwindles or disappears, leaving only a
thin veneer of form and little or no substance at all.
The world community cannot, therefore,
expect a much higher level of compliance with international
norms prohibiting terror-violence by individual actors when
qualitatively similar state-conducted or state-sponsored
violations go unpunished. What logic, reason, or argument
could one have presented to a South African who suffered
under Apartheid,[82] or a Palestinian who lives under a
hardship of military occupation, to refrain from acts of
terror violence when all the violations and abuses that
occur in these territories against the indigenous
populations remain unchecked, and worse yet, when these
regimes assert legal justification for their violative
conduct.[83]
If there is to be a lawful international order, which
induces voluntary compliance with its norms, then these
norms must apply equally to all transgressors. Might cannot
make right if law is to be the difference between tyranny
and civilization.
Counter-Strategies to Terror-Violence: Controlling the Individual Through Penal
Sanctions
A basic postulate of criminal law is that, as an instrument
of social control, it employs socially accepted coercive
strategies in an effort to obtain legally justifiable and
valid social goals. That postulate is predicated on the
assumption that society, having made value-judgments
concerning the significance of certain social interests
which it seeks to protect and preserve, may resort to
coercive means in order to achieve its legitimate essential
goals of protection and preservation of those social
interests through justifiable legal means.
These social interests reflect certain basic values, such as
preservation of the social order and protection of
individual members of society from unwarranted harm. The
ideologically-motivated offender perceives, rightly or
wrongly, a basic value conflict with these criminal laws,
thus evading the issue of the individual harm he produces.
Rather, he focuses upon the legitimacy of the social or
political order he attacks. Such a person perceives the
violation of a criminal law as a clash of ideologies or as a
clash of morality. He believes that the conflict is
necessary or unavoidable and ignores its harmful
consequences.
Thus, if the victim is a person who holds
political office, or has a symbolic or representative
capacity in the system attacked, then the harm caused to
such a person is deemed justified as punishment or as
self-defense. However, if the victim is an uninvolved person
who is harmed as a result of random violence or by accident
[e.g., the innocent bystander], then the offender
rationalizes the result as a political necessity, or as a
mistake or mishap, and thus deems it excusable.
The actor blames the system under attack for
causing or compelling the violent act that produced the
harmful result. It is, of course, a rationalization process,
but it emphasizes the fact that criminal sanctions are
irrelevant to that intellectual process. The
ideologically-motivated offender is essentially unconcerned
with the fact that he is committing a violation of criminal
law.
Consequently, only preventive control
measures can effectively limit that person's decision to
commit or to refrain from committing such a criminal
violation. In that respect, however, the sanction of the
criminal law can only be effective if the personal risks
which the actor may incur outweigh the importance of the
political objective sought to be achieved. The effectiveness
of the criminal sanction is relative to the personal
commitment of the actor to his ideological purpose in light
of the importance that he attributes to the contemplated
act. Consequently, attention must be directed toward the
criminal sanctions employed and their application to such
offenders in order to assess their effectiveness.
Criminologists, penologists and other experts of the
criminal justice systems of the world contend that in such
cases, imprisonment has failed as an instrument of social
control and resocialization. It should be reconsidered.[84]
Some experts maintain that imprisonment should be abolished
altogether because it has generally failed even in the
context of common crimes. As a result, there is a trend in
many states toward reducing prison sentences and developing
alternatives to imprisonment. The question arises,
therefore, as to whether imprisonment is still a valid means
of controlling violent behavior and, in particular,
ideologically-motivated violent actors.
Theories of Punishment and Their Application to Terrorists
Theories of punishment and rehabilitation are predicated on
a quasi-medical model, which assumes that a person placed in
an institutional setting, will be cured or resocialized once
released. Irrespective of the merits of this theory, which
is now widely and uniformly discredited because of its
failures, it is particularly inapplicable to the
ideologically-motivated offender. Essentially, such a person
will remain anti-social even after release because he is
opposed, in whole or in part, to the very social system into
which he is to be resocialized. There can be no success in
resocializing one whose basic values are fundamentally
opposed to the preservation of the very system he is
fighting.
(1)Deterrence[85]
Criminal
sanction is considered a deterrent when its general
effect outweighs the benefits of the contemplated
transgression of the law. The special effect of
deterrence is felt when, in the evaluation of a given
transgressor, the particular penalty outweighs the
benefit derived from the violation. In the case of the
ideologically-motivated offender, such evaluation is
made in light of the degree of personal commitment the
individual possesses, as compared to the ideological
values or goals sought to be achieved. In this
evaluative framework, two other factors must be
considered: [a] the tactical importance of the objective
to be attained by commission of the violation; and [b]
the risk of neutralization resulting from the actor's
apprehension and detention.
For a committed
ideological offender, the threat of imprisonment is
counterbalanced by the importance of the objective to be
attained by perpetrating a given act of violence. Even
the consequences of capture and imprisonment include an
opportunity to obtain valuable publicity of the
willingness of those holding such ideological beliefs to
sacrifice themselves on behalf of the cause. Thus,
merely choosing a sufficiently important target
satisfies the first of these factors. The second factor
may be achieved when the target is secondary to the
publicity gained by the act. The deterrent effect of
imprisonment is therefore largely ineffective.
(2) Retribution or lex talionis
Retributive
justice is also part of social justice in that it
redresses an imbalance between the victim and the
aggressor, an imbalance occasioned by the aggressor's
action. There can be no effective deterrent value to
criminal sanctions in the absence of a retributively
punitive element. Thus, to the extent that the punitive
element is indispensable to deterrence, retribution
cannot be ignored. In light of this conclusion and with
respect to the ideologically-motivated offender,
rehabilitation is inapplicable and deterrence is largely
ineffective. The punitive theory remains the only
effective criminal sanction, although even it carries
the seeds of its own limitations.
The punitive
element of criminal sanctions may well be the principal
basis upon which to mete out effective punishment to the
ideologically-motivated offender. It may be the only way
to redress the imbalance created with respect to the
rights of the victim. Any effectiveness such criminal
sanctions may bear is destroyed if those who impose
punitive consequences are tainted by the effect of their
own unlawful conduct.
In essence, there is a form
of retributive justice, which is not repressive
injustice. It is, nevertheless, important to realize
that retributive justice, which is a response to
instinctual justice, must balance the social and
individual need for vengeance against certain standards
of humaneness. The values of each society will determine
that balance, subject to the standards of humaneness
achieved by world community norms and standards. As a
matter of criminal justice policy, it is better to err
on the side of humaneness than on the side of
retributiveness in order to avoid the martyrdom with
which the offender might be endowed by excessive or
severe punishment. On the other hand, leniency should
not reach a level that would remove all retribution from
the criminal sanction, since retribution is the
principal ingredient of deterrence�no matter how
effective.
(3) Incapacitation.
The premise
of incapacitation is that the offender is dangerous and
must be neutralized in an institutional setting in order
to prevent repetition of similar antisocial behavior.
The problem is one of predicting the offender's future
threat to society on the basis of prior conduct. A
seductive, yet deluding appeal, is present in this
approach of prophylactic punishment, whereby the
predictability of dangerousness is based on past
conduct. This is a hazardous guessing game, all too
often based on little more than hunches derived from
general perception. The length of imprisonment for an
ideologically-motivated offender compounds the problem,
by the fact that penalties must be meted out for crimes
actually committed and not for foreseeable crimes.
Incapacitation serves as a control device only as long
as a person is imprisoned.
(4)The Death
Penalty[86]
Throughout the world community, the death penalty
has been under attack since the late sixteenth century.
The death penalty has already been abolished in a number
of states and it is rarely applied even where retained.
Since the end of World War II, it has seldom been
employed in cases of international terrorism. The
incapacitating nature of the sanction is unquestionable,
but it is this very finality of the sanction that has
raised serious moral questions against its use. Indeed,
whether the death penalty is or is not a cruel, unusual,
or inhumane punishment continues to be debated. More
troublesome is the question of whether its deterrent
effect is real or merely presumed. Its use is ultimately
governed by a fundamental social value judgment.
The death penalty's finality, which casts doubt on
its use, also serves as its very advantage. It removes
the individual as a plausible target for release and
thus, theoretically precludes further "terrorist" acts
by fellow "terrorists" attempting to secure the actor's
release. Several factors, however, mitigate against the
death penalty as a policy choice. First, it is seldom if
ever employed, and it applies to only a limited number
of violations. Second, it tends to make martyrs of the
executed person and thus brings sympathy to the deceased
and his movement. Third, it is offensive to public
morality and is rejected by a large segment of the world
population. Fourth, its use tends to discredit the
society that employs the death penalty as revenge
against individuals. Lastly, it diminishes the moral
authority of the state that seeks to enlist public
support against violence.
International Cooperation and Preventive Law Enforcement
Although the deterrent sanctions available are of
limited value, there is no question that, whenever possible,
the intellectual authors and perpetrators of terror violence
must be apprehended and punished. However, due to the
character of their activities and inherent weaknesses in the
international enforcement scheme, such offenders often
succeed in evading prosecution, mostly by escaping from the
state in which their crimes were committed.
Acts of
terror-violence are either international crimes or crimes
under the domestic laws of almost all countries in the world
[or both]. Only a few regimes that conduct, sponsor, or
support acts or policies of terror-violence exclude such
acts from their own rule of law or simply do not enforce
existing law. Thus, the question is not whether legal norms
exist or whether such norms are sufficient, but whether they
are enforced either internationally or domestically.[87]
The Machinery for Cooperation
Treaties, customary practice, and the national laws of
states establish the basis for international cooperation in
the prevention and suppression of criminality. The maxim
commonly referred to in this context is aut dedere aut
juticare.[88] The state's duty is restricted to the
prosecution or extradition of the alleged offender. This
duty is an extension of the state's responsibility for the
prevention and control of violence. The failure of a state
to carry out such a duty can only frustrate the
effectiveness of any domestic or international crime control
scheme.
Thus, the international duty to extradite
or prosecute becomes a significant factor in assessing the
effectiveness of the domestic and international prevention
and enforcement scheme. It should be observed, however, that
the apparent principal impediment to this international duty
is the "political offense exception" to extradition and
inter-state cooperation in penal matters.[89]
The real impediments, however, are the
differences in ideological values among states and the
political will of governments in carrying out such a duty to
prosecute or extradite. The existence of certain injustices,
and the policies and practices of certain states which
violate fundamental human rights, heavily impair the burden
of those states seeking to carry the duty to prosecute or
extradite. The duty is a difficult, if not at times, an
impossible one.
The Political Offense Exception [90]
Not all acts of violence are committed with a view
toward achieving a political or power outcome. Indeed,
certain acts of terror-violence may be committed as a last
resort, by reason of necessity or self-defense. These cases
arise whenever the actor's fundamental human right to
personal freedom and safety is the object of serious and
repeated repression, which by reasonable standards, can only
be averted through the commission of an act of violence.
Nevertheless, persons who commit acts of violence against
others as a means of safeguarding themselves or others for
humanitarian or political reasons violate positive law.
However, such actors may have a valid claim to the defense
of necessity, supporting the mitigation of any punishment.
This is one justification for the preservation of the
political-offense exception in extradition.
Not all
states share the same form of government, nor agree on the
means to be employed for preservation of their internal
order. Thus, acts which violate certain positive laws in one
state may be deemed justified in other states. In addition,
states may not wish to use their powers to act against
certain ideologically-motivated offenders when states
believe that the issues at stake involve a political or
value judgment they support, or about which they prefer to
remain neutral.
Finally, states may, for political or
humanitarian reasons, be supportive of the causes or values
adhered to by the ideologically-motivated offender. Thus,
states may exercise their prerogative in denying extradition
whenever they deem that political or humanitarian necessity
motivates the actor's criminal act.[91] It is essentially in
recognition of this consideration that the emerging
international duty to extradite in international criminal
law is an alternative to the duty to prosecute. These
alternatives have yet to be effectively carried out in the
practice of states.
All states presently exclude
political offenders from the scope of extradition, but a
trend has developed to restrict application of this
exception and exclude it with respect to international
crimes. This is termed an "exception to the exception."[92]
This trend, thus far, has extended to individual
ideologically-motivated terror-violence acts, but has not
yet fully encompassed those who engage in such conduct for
and on behalf of a state. This lack of equal application is
one reason why the policy does not have the credibility and
applicability that it should.
In the absence of an
absolute duty to extradite or prosecute all international
criminal law violations, and, in the absence of a clear
policy on the defense of necessity in exoneration of
responsibility or in mitigation of punishment, the
effectiveness of the international and domestic control
schemes are necessarily limited. It must be concluded,
finally, that the weaknesses of any scheme for the control
of violence are compounded by the opportunity of evading
that scheme altogether, by resorting to safe-havens or to
countries from which the likelihood of extradition is remote
or non-existent, or where the prospects of a trial and
punishment are equally remote or non-existent.[93]
State Responses to Individual Non-State-Sponsored Acts of Terror Violence
Individual non-state-sponsored terrorism, as well as other
forms of lower level violence with international
ramifications, are a challenge to states with respect to the
lawful responses they can engage in as a form of legitimate
reaction.[94] The essential problem is that such individual
actors will usually either seek refuge or hide in another
state which is sympathetic to their cause. Without the
cooperation of such states, it is impossible for the
reacting state to proceed against such individuals without
violating some aspect of international law, in particular
Article 2 (4) of the United Nations Charter and the
prohibition against aggression.[95]
Responsible state
measures would have to fall under the doctrine of
self-defense as enunciated in Article 51 of the United
Nations Charter.[96] Notions of pre-emptive strikes and
reprisal action, intervention and interdiction, and direct
or indirect attacks upon states where such individuals may
be found, have yet to be resolved under international
law.[97]
Conversely, sanctions against states in
violation of international law are permissible, but sharply
circumscribed by the law of the Charter and its application
through the Security Council where five states still hold
the veto power. Some states have, on occasion, engaged in
isolated instances of reprisals. But even the successful
intervention on humanitarian grounds have raised larger
issues of legitimacy and legality. To a large extent, such
unilateral reprisals and interventions only underscore the
failure of the international legal control system.
Control of State Terrorism
Generally, sovereign states are subject to few
international legal controls within their own territory,
except to the extent that they are limited by international
law in some aspects of the exercise of their sovereignty. A
number of international conventions relating to human rights
presently exist to protect the security of individuals.[98]
Signatories to such conventions are bound to refrain from
certain actions, even against populations under their
sovereign control. The implementation of such rights are
limited throughout the world.[99]
Assessment of Enforcement Means
State terrorism is subject to few sanctions or
controls. The possibility of sanctions exist in the
following ways:
(1) Repeated instances of state
policies and practices constituting widespread and
serious violations of human rights may result in a claim
by another state of a right of humanitarian intervention
to end such conduct;
(2) Repeated instances of
such state action may result in United Nations
intervention and the eventual imposition of sanctions;
(3) Such state action may also result in economic and
diplomatic sanctions by other states;
(4) Such
offending states are subject to the customary rules of
state responsibility for wrongful conduct, even though
such sanctions are limited only to financial
compensation or damages;
(5) Individuals acting
for or on behalf of such offending states are subject to
individual criminal responsibility, even though its
application has historically been limited and sporadic.
It should be noted that the effectiveness
of any potential sanction against a state, or those acting
for it, inevitably depends on the concerted action by other
states and that has yet to become an established practice of
the world community.
State Responses to Individual Terror-Violence and the Rights and
Responsibilities of Other States
There are
essentially three types of responses in which a state may
engage; however, each raises questions of international law
violations. Each involves the balancing of various United
Nations Charter norms, including Articles 2 (4), 51 and 52
and other conventional and customary norms of aggression and
self-defense.[100]
An analysis of these norms is
beyond the scope of this article. What is outlined
hereinafter are certain forms of intervention based on
contemporary events and their related questions pertaining
to the rights and responsibilities of states.
Situation A: The affected state acts
against the perpetrator of an act of terror-violence, or
the perpetrator's support group, and the affected
state's responsive action takes place in another state.
Situation B: Action by an affected state directed
against another state, which supported an action of
individual terror-violence.
Situation C: A
"liberation organization" acts against a state with the
support of another state.
Situation D: A
"liberation organization" acts against the economic
interests or individual targets of the state against
which it is operating, but these actions take place in
another state.
All of these situations raise the
question of whether an act of aggression may have taken
place against a given state, whether the response by one
state against another falls within the doctrine of
self-defense, and whether the response was proportional.
These situations highlight the failure of the international
community to adequately define the scope of actions of
"liberation organizations," the support such organizations
may receive from other states, and the scope of permissible
responses by the affected state or other states.
During the decolonization efforts of
the 1960s, the United Nations justified a resort to
armed struggle in order to attain what it considered a
legitimate goal. Unlike the Geneva Conventions of
1949[101] and its 1977 Protocols,[102] which defined the
conditions required in conflicts of a non-international
character, the various United Nations' resolutions
recognizing the legitimacy of armed struggle in the
context of decolonization do not address the question of
appropriate means for such armed struggle.[103]
In addition, nowhere is there a clear
definition of what constitutes a legitimate liberation
organization. By inference, one can assume as an emerging
custom, that a legitimate liberation organization is one so
recognized by the United Nations once it has granted
observer status to the liberation organization. Other
criteria include: that such an organization have a large
following within or outside the state, that it possesses a
political machinery capable of expressing both the political
will of its struggle and to carry out international
obligations, and that it has a military arm engaged in
violence against the oppressive state commanded by a
military structure willing to abide by the international
regulation of armed conflict.
The acceptance of such criteria
necessarily excludes self-styled groups or criminal
organizations choosing to use the label of "liberation" in
pursuit of their criminal goals. The fact remains, however,
that no definition of what constitutes a legitimate
liberation organization, and its consequential rights and
obligations under international law, exists except for the
customary and conventional regulation of non-international
armed conflicts.[104] Consequently, the parameters of
international and military action remain undefined,
especially with respect to actions outside the territory
intended to be liberated and against other states.
There is also a question of
whether "liberation organizations" have a privilege of
self-defense under customary and conventional
international law. There is no satisfactory, let
alone definitive, answer to this question.
Similarly, there are no satisfactory answers
with respect to the legal obligations of states which allow
a "liberation organization" to use its territory to carry
out its armed conflict against another state. The regulation
of armed conflicts, whether customary or conventional, which
presumably apply to "wars of national liberation" and other
types of conflicts of a non-international character, are
presumed to be normatively adequate to deal with the
manifestations and ramifications of these cases. This
presumption is far from true.
The broad range of problems extends from
what was the self-evident and legitimate right of
Afghan[105] resistence to the Soviet military occupation
during the 1980s to the debatable claims of the ETA's use of
terror-violence in Spain, ostensibly to secure independence
of the autonomous Basque from Spain. Furthermore, the
practices of liberation groups and states are frequently in
contradiction with the very norms on which they base the
legal legitimacy of their actions.[106] The same conflicting
political and value-oriented judgments are as apparent in
this context as they are with respect to
ideologically-motivated offenders acting as individuals, or
as part of small groups, in the context of other forms of
political violence.[107]
Assessing Terrorism into the New Millennium[108]
Two thousand years ago, the Zealots Sicarii assassinated
Roman citizens in Judea, and in particular in Jerusalem, in
order to bring an end to their colonial rule.[109] The Roman
governor of Palestine retaliated against these terrorists of
the time by ordering the death of all zealots, banning Jews
from Jerusalem, and destroying the Second Temple.[110]
History has never clarified whether the zealots were
"terrorists" or "freedom fighters." The same question can be
asked about the Palestinian "freedom fighters." Indeed, two
millennia later the international community still faces the
dilemma that "what is terrorism to some is heroism to
others."[111]
During the last thirty years, many acts
of terror-violence have occurred in the context of armed
conflicts, specifically in the context of de-colonization
and wars of national liberation.[112] At first, these acts
were labeled "terrorism" and then war crimes.
To enhance compliance with lawful uses of
force in these contexts, Protocol II to the Four Geneva
Conventions of August 12, 1949 extended pre-existing legal
protections to combatants and civilians in the context of
non-international armed conflict.[113] That legal
development did not however reduce the unlawful violence
that occurred in these types of conflicts.
The reason may well be that unlawful
terror-inspiring methods used by national liberation
fighters were the most effective means available to them to
combat the more powerful colonial powers. Furthermore,
because of the inherent political nature of these conflicts,
the use of terror-violence became hopelessly mired in
politics. Thus, the legitimacy of the cause seeped into the
illegitimacy of the means employed. In short, it was a
reversion to the Machiavellian concept that the "end
justifies the means."
Though most armed struggles
for national liberation ended in the 1970s, new ones
emerged, which concerned the rights of self-determination by
ethnic groups seeking cessation from the states in which
they lived.[114] Regrettably, the world community remained
unable to find ways to peacefully resolve these conflicts,
which gave rise to massive victimization.[115]
The
latter half of the twentieth century, extending to the
present, witnessed an extraordinary large number of internal
conflicts and civil strife, during which massive
victimization occurred.[116] The acts that produced this
victimization constitute the crimes of genocide,[117] crimes
against humanity,[118] and war crimes.[119] These acts
however could also be characterized as acts of
terror-violence.[120]
Since the 1960s, however,
international and national concerns have been almost
exclusively focused on acts of terror-violence committed by
ideologically motivated individuals and small groups, almost
to the exclusion of state-sponsored terror-violence.[121]
However, state-sponsored terror-violence,
particularly when carried out by repressive regimes, is
estimated to have caused more than 70 million casualties
during the twentieth century.[122] In contrast, it is
estimated for the same time period that some 100,000
casualties resulted from attacks by individuals and small
groups that comprise the category of "terrorists."[123]
Comparing numbers like these is probably
neither relevant nor morally valid. However, it provides a
basis for assessing the extent of the harm in order to allow
for the development of appropriate means to prevent,
control, and suppress these criminal activities. It should
be noted that while state-sponsored terror-violence by far
exceeds the harm done by individuals and small groups,
sometimes individual acts of "terrorism," such as an
assassination, can have consequences that far exceed the
initial harm. For example, the assassination of Austria's
Archduke Ferdinand in Sarajevo by a Serb extremist brought
about World War I with all its attendant consequences.[124]
The imbalance of attention given by the international
community to acts of terror-violence committed by
individuals and small groups as opposed to states needs
further reflection.
Certainly, that imbalance is not a product
of the qualitative nature of the violent acts or their
terror inspiring effects. Rather, it can be attributed to
the asymmetry between the power of states and the
powerlessness of individuals who oppose the state
irrespective of their legal or moral claim of legitimacy.
One explanation is revealed in a story
recounted by St. Augustine of a pirate who was captured by
Alexander the Great. In response to the question of how he
dare molest the sea, the pirate replied to the Macedonian
leader, "(h)ow dare you molest the whole world? Because I do
it with a little ship only, I am called a thief; you, doing
it with a great navy, are called an emperor."[125]
Another explanation is that crimes committed
as part of state policy or by agents of states are not
considered "terrorism" because they are labeled differently.
Thus, the crimes of the Nazi regime were labeled "crimes
against humanity."[126] One reflection that can be made in
this context is that legal labels are of little relevance
unless they conform to the manifestations of an actual
phenomenon, are capable of conveying the predictability of
deterrence, and result in consistent application. When the
label of the offense and its legal consequences are
uncertain, the legitimacy of the prohibition is tarnished
and called into question.
The international
community's response to manifestation of individual and
small group acts of terror-violence has traditionally been
influenced by sensational events.[127] In 1934, a Croatian
nationalist assassinated the French statesman Jean-Louis
Barthou and King Alexander of Yugoslavia in Marseilles.[128]
This event induced the League of Nations in 1937 to adopt
the first convention on terrorism.[129] Twenty-four states
were signatories to this convention, though it is telling
that only one state, India,[130] ratified it, even though it
was not at the time fully independent.
The growth of
civil aviation after World War II was extraordinary. As a
result, civilian aircraft proved a vulnerable target for
hijacking and sabotage. These attacks made a large segment
of international society vulnerable to random and unexpected
threats. In the wake of repeated attacks on international
civil aviation, terrorism became a feared feature of modern
life.[131] The international community reacted to the large
number of aircraft hijacking and sabotage incidents with
fear and determination, resulting in a number of
international conventions adopted between 1969-1988.[132]
However, enhanced security in airports[133] and on planes as
well as the effective use of metal detectors have since then
significantly minimized the occurrence of these
attacks.[134]
A rash of assassinations and
kidnappings of diplomats from the 1960s to the 1990s brought
about the adoption of several multilateral conventions.[135]
However, these conventions have not been entirely effective
in preventing these acts as evidenced by the 1998 attacks
against the United States embassies in Nairobi, Kenya, and
Dar-es-Salaam, Tanzania.[136]
That same time period
also witnessed a rapid increase in the kidnappings of
civilian hostages for ransom, mostly business persons and
their families. This brought about the adoption of a
specialized United Nations Convention in 1979.[137] This
convention however did not decrease these attacks. Rather, a
reduction in the taking of hostages for ransom resulted from
more effective precautionary and security measures that were
adopted by the business community.
Terrorists aim at particular political results, which
depend in some part on the support of public opinion. When
the general public becomes vulnerable to these attacks, it
is not likely to give these causes the support they want.
Consequently, there is a point of diminishing returns that
terrorists reached with hijackings and kidnappings that may
well be credited with the reduction of these attacks.
The terrorism of the last century depended
extensively on media coverage and the dissemination of the
perpetrators' claims, as well as exposing the inability of
the state to prevent their actions. Thus, they sought to
achieve power outcomes through the manipulation of the
media, or by exploiting the media's attraction to
sensationalism.[138] But, as the media became more savvy and
as responsible journalism curtailed some of the
manifestations of sensationalism in the coverage of
terror-violence incidents, the media impact waned.
Consequently, attacks motivated by media impact reduced.
While the objectives of terror-violence remain somewhat
constant, namely to achieve political or power outcomes, the
means by which such violence is carried out constantly
evolve. Nevertheless, contemporary societies remain highly
vulnerable to conventional means of attack, as evidenced by
the 1993 bombing of the World Trade Center in New York,[139]
the 1995 bombing of the Federal Building in Oklahoma
City,[140] and the 1998 bombings of the American embassies
in Kenya and Tanzania.[141] As such, even though more
advanced means of attack exist, terrorists still depend
heavily upon conventional explosives as their weapon of
choice. One reason is that explosive materials can be easily
purchased and assembled into bombing devises. Moreover,
techniques about bomb-making are readily available, even on
the Internet.[142]
As the arsenal available to
today's terrorist expands, many of them are believed to have
become more sophisticated in their ability to carry out more
devastating acts of terror-violence. Governmental and
societal fear are thus enhanced by the new threats against,
for example, infrastructure, public and private buildings,
and transportation systems.[143] Indeed, attacks upon power
plants, water and sewage filtration centers, and
communications networks have the potential to cause
large-scale damage and havoc to civil society, creating
significant physical, environmental, and economic
damage.[144]
New vulnerabilities have also developed
in the last decade as a result of the risks associated with
the use of weapons of mass destruction by both state actors
and their potential use by non-state actors. These risks
created a worldwide concern that effective responses to
those threats may be lacking, particularly because existing
modalities of international weapons control and modalities
of international criminal law enforcement are insufficient
to prevent a catastrophic event from occurring.[145]
Currently, no international convention addresses the issue
of chemical or biological weapons for purposes of
terror-violence. Moreover, conventions concerning the use of
nuclear weapons for terror-violence fail to provide
effective means to address the problem.[146]
While
there have been numerous speculative writings on the risk of
nuclear weapons used by terrorist groups, none has occurred.
Indeed, the danger of terrorist groups turning to nuclear
weapons is of low probability due to effective security
measures by nuclear powers. However, the world community has
received many threats of nuclear "terrorism" and
occasionally encountered cases of nuclear theft feared to be
commissioned for the purposes of terror-violence.[147]
Similarly, it is important to note that while chemical and
biological agents have been available since the beginning of
the twentieth century, only two terrorist incidents
involving chemical weapons occurred.[148] Regrettably,
however, the Iraqi government used chemical weapons against
civilians during the Iran-Iraq war in 1988,[149] which is a
war crime under both conventional and customary
international law.[150]
The international community
also faces new vulnerabilities as the result of this era of
expanding globalization.[151] One of these are the threats
posed by what is now termed "cyber terrorism."[152] This new
threat consists of computer generated attacks against
adverse entities, whether civilian, corporate, or
governmental, which affect aspects of our professional and
personal lives and impacts on national and international
security.
Terrorist computer "hackers" are capable of
destroying corporate computer files, accessing private
database entries, falsely manipulating the stock market,
rerouting transportation systems, intercepting military
communications, accessing personal email accounts,
disrupting banking operations, and manipulating government
files. These attacks can also cause serious military
consequences and even lead to war. The impact of these acts,
while materially different from traditional attacks, such as
bombing or assassinations, are capable of generating higher
levels of insecurity and likely a more harmful impact on
society.
As the metal detector and bomb detection
have significantly reduced the occurrence of airline
hijackings, other technological and scientific devices
presently being developed will help us detect and prevent
nuclear, chemical, and cyber threats.[153] Thus, technology
may become the best prevention.
Governments are also
improving their capabilities towards preventing and
suppressing acts of terror-violence by increased
international cooperation through bilateral and multilateral
treaties. Indeed, the United Nations'[154] and regional
organizations'[155] anti-terrorism conventions call upon
governments to implement such increased efforts. Whether
these approaches will be effective remains to be seen,
because that depends largely on the political will of
governments. It may also be that the strategies and tactics
of terror-violence of the last four decades have seemingly
run their course and that the new millennium will bring with
it a new breed of terrorists and a new brand of "terrorism."
The ideologically motivated offender of the
1960s[156] will probably be replaced by new religious
fanatics and political zealots of the 2000s who care not for
the harmful consequences they can cause no matter how
catastrophic. These types of personalities present a greater
danger to society, but are more difficult to detect and
deter.
In addition organized crime groups may find
the use of threatening catastrophic "terrorism" as a more
profitable means to pursue their criminal ends.[157] These
groups can also develop strategic alliances with terrorist
groups, thus creating a dangerous multiplier effect.[158]
These new terrorist threats to contemporary society's
wide-ranging vulnerabilities necessitate a more determined
will on behalf of the international community to effectively
cooperate in detecting, preventing, and deterring potential
perpetrators and prosecuting and punishing those who commit
such crimes.
Specifically, enhanced international
cooperation is needed in the areas of extradition, mutual
legal assistance, transfer of criminal proceedings, transfer
of prisoners, seizure and forfeiture of assets, and
recognition of foreign penal judgments.[159] Regrettably,
the modalities of inter-state cooperation in penal matters
remain at a stage that can at best be described as
archaic.[160]
Complementing such international
cooperation, national and local law enforcement must
similarly work together towards preventing and responding to
acts of terror-violence. Cooperation is necessary to
apprehend the actors responsible for such violence. In
addition, local authorities must be greater equipped to
respond to the consequences of catastrophic terrorism.[161]
The threats of contemporary and future acts of
terror-violence require more than traditional law
enforcement techniques, and present-day modalities of
inter-state cooperation. Effective prevention requires not
only the strengthening of governmental efforts and
cooperation, but a wide-range of new strategies which
include employing the resources and capabilities of the
private sector to supplement the efforts of governments, as
evidenced by the fact that increased security measures taken
by the business community have lowered the occurrence of
terrorist attacks against the private sector.
Another approach that has not yet been fully
utilized is to follow the money trail. Acts of
terror-violence, particularly those that could involve
weapons of mass destruction and other techniques likely to
produce harm of a catastrophic nature require funding beyond
the cost of conventional weapons or explosives. Effective
means of tracking funds, which usually follow the same paths
as crime proceeds, have yet to be implemented by most
governments.[162] Many governments lack the political will
to pierce bank secrecy and to trace the movement of funds,
even though this would be an effective means for preventing
terror-violence attacks.[163]
Whimsical as the
thought may be, every era has brought with it different
manifestations of terror-violence and all have been absorbed
and overcome by the societies in which they occurred.[164]
Maybe the catastrophic threats we now perceive will never
materialize, but, unlike the ostrich, we cannot bury our
heads in the sand and pretend they do not exist. Perhaps,
Professor Barry Kellman's admonition in a recent article is
the best conclusion to this assessment: that we must think
fearfully but act decisively, effectively, and legally to
insure our collective security.[165]
Responses by
different governments to these types of terror violence acts
will necessarily vary depending on their capabilities and
levels of readiness. As vulnerabilities increase as well as
the potential for catastrophic consequences, so will the
temptation by governments to increase the powers and
mandates of law enforcement, intelligence agencies, and the
military. The increased authority that will likely be
bestowed on these entities to fight terrorism will
inevitably have the effect of curtailing certain civil and
political rights.
A balance will have to be found in order to
avoid losing hard won rights and liberties and democratic
practices in the name of increased security for such
threats. Perhaps more important is the need to avoid being
overwhelmed by perceived threats and their eventual
consequences which can make us not only lose sight of the
need to preserve the rule of law and democracy, but which
could also alter the nature of free societies and the
quality of life within these societies.
We must make sure that our concerns and
fears do not become such that we lose cherished liberties
and individual rights.[166] Demonizing terrorism and
forecasting catastrophic results may prove as harmful as the
threats sought to be averted. What is the correct balance is
a challenge that we now face. Hopefully, we will strike that
correct balance.
Policy Considerations on Inter-State Cooperation in Criminal Matters[167]
This volume contains all United Nations and regional
anti-terrorism treaties and their penal provisions. States
must adopt methods of cooperation in penal matters in order
to effectively suppress, prevent and combat acts of terror
violence. Inter-state cooperation in penal matters in
necessary because criminal organizations practice on an
international sphere. Such cooperation requires states to
consider various policy considerations.
The same
modalities and techniques of inter-state cooperation in
penal matters are relied upon to enforce international,
transnational, and domestic crimes. These modalities, which
are independent of one another, are: extradition, mutual
legal assistance in penal matters, transfer of prisoners,
seizure and forfeiture of illicit proceeds of crime,
recognition of foreign penal judgements, and transfer of
penal proceedings.
The order of their listing reflects the
ranking of their level of recognition and application in
states' practice. These modalities are independent of one
another, and relied upon separately in the practice of
states, which reduces their cumulative effect. As discussed
below, they are rarely part of an integrated or unified
text, either as convention or as part of national
legislation.
This lack of an integrated approach reduces
the effectiveness of these modalities which can be best used
as complementary to one another in order to avoid the gaps
created by resorting to them singularly. Multilateral
conventions on substantive International criminal law refer
to them, but mostly in general terms. Specialized regional
conventions developed mostly by the Council of Europe and
the organizations of American States deal with these
modalities in detail. They are also the object of bilateral
treaties and national legislation.
Cumulatively, these modalities of inter-state
cooperation are the foundation of International criminal law
enforcement. Without them, international, transnational, and
national crimes would be deprived of effective inter-state
enforcement means.
International criminal law
enforcement essentially relies on the indirect enforcement
scheme,[168] whereby states carrying out their enforcement
duties resort to these modalities. Multilateral conventions
contain provisions on one or more of these modalities, but
seldom do they provide detailed prescriptions for their
application. Of all International criminal law Conventions,
the 1988 Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances contains detailed
provisions delineating a state's enforcement
obligations.[169]
International criminal law
instruments do not, however, deal with international law
enforcement cooperation except through Interpol. But in
recent times, inter-governmental groups have been
established to coordinate inter-state law enforcement
activities. Among these are the Council of Europe's
"Pompidou Group"[170] whose subject matter is drugs, and the
"Trevi Group"[171] which operates at the Cabinet and
sub-Cabinet level of representation for purposes of
enhancing cooperation against terrorism. That group consists
of some European States, the U.S., Canada, and Japan.
Lastly, another group is the "Financial Action Task
Force"[172] which deals with money laundering.
The
work done by police and intelligence agencies is crucial to
the prevention, control and suppression of international,
transnational and national criminality. It should be
encouraged, but legally regulated. Absent such regulation,
preferably by international conventions, there are dangers
inherent in unstructured and legally uncontrolled law
enforcement cooperation which are likely to produce: human
rights abuses,[173] violations of privacy rights[174] and,
at times, breaches of national sovereignty.[175]
It
should be noted that in the direct enforcement scheme which
now exists with the International Criminal Tribunal for the
Former Yugoslavia (ICTY)[176] and International Criminal
Tribunal for Rwanda (ICTR),[177] some of these modalities
are relied upon. They are: extradition, referred to as
surrender,[178] and mutual legal assistance. By implication,
the judgements of the ICTY and ICTR are to be enforced by
all states because these bodies are subsidiary organs of the
Security Council whose decisions are under Chapter VII of
the United Nations Charter and binding on Member-States.
Eventually, the International Criminal Court will also rely
on these same modalities.[179]
Enforcement Assumptions and Policies
As stated above, substantive International criminal
law so far relies on the indirect enforcement scheme by
which international duties are incumbent upon states who
have voluntarily accepted them by virtue of treaty
obligations and who enforce these obligations through their
domestic criminal justice processes.
The maxim aut
dedere aut judicare: to prosecute or extradite,[180] which
some see as alternative and others as cumulative,[181]
provide states with a choice. But so far it is not clearly
established that such a duty exists for anything but certain
international crimes of a jus cogens character. Some, like
this writer, maintain that the duty is a civitas maxima
which obligates all states under general international law
to prosecute or extradite for all 25 categories of crimes.
But that is a progressive view. The problem with the aut
dedere aut judicare principle is that it does not provide
content.
Presumably the two-prong duty is predicated
on an unarticulated premise, namely that the prosecution is
to be effective and fair, and that the extradition be to a
state whose prosecution will also be effective and fair. But
nowhere do we find a clear statement as to these premises,
nor are there guidelines for the resolution of conflicts
between states in case of disagreement as to the effective
execution of the dual obligation to prosecute or extradite.
Lastly, the general treaty obligation of "good faith"
applies to states who are bound by treaty provisions
concerning the duties of prosecution, extradition and mutual
legal assistance. Thus, the implementation of these
obligations remains imperfect for lack of norms.
To
effectively carry out these obligations, states rely on
international criminal procedural law, which relies, in
turn, on modalities and techniques of inter-state penal
cooperation. Any obligations, however, are limited to the
extent and the manner in which these modalities are embodied
in a state's respective domestic legislation. The very
obligation to prosecute or extradite is, therefore,
dependent upon what a state's national criminal justice
system permits and is capable of executing.
International criminal law, however, has other international
implementation mechanisms which include non-penal modalities
that do not necessarily rely on domestic criminal justice
processes. But these non-penal modalities are
compliance-inducement mechanisms, whereas enforcement
modalities rely on the coercive techniques of the domestic
criminal justice processes of states and cooperating
inter-governmental bodies like Interpol.
Integrating the Modalities of Inter-State Cooperation for the Prevention,
Control and Suppression of International, Transnational and
Domestic Criminality
The six modalities of
inter-state cooperation arise under diverse law-making
processes, namely: international, regional, and national
ones. However, even within the context of these three
law-making processes, the resulting product differs in scope
and legal technique while lacking consistency and
systematization.
What is needed is the integration of these
modalities into a comprehensive codification that would
permit the cumulative and alternative utilization of these
modalities to ensure their enhanced effectiveness. In this
respect the national legislative approach adopted by
Austria,[182] Germany[183] and Switzerland,[184] which
integrates all of these modalities of inter-state penal
cooperation, is a valuable model. Other countries are also
considering the integrated approach in their codification
reforms.
Under this approach, the modalities of
inter-state cooperation operate like multiple gears in a
single gear-box, allowing states to shift from one modality
to the next instead of being limited to only one gear at a
time. This same approach is needed at the regional and
international levels. While a number of regional and
sub-regional multilateral agreements have been developed,
their elaboration has been piecemeal. None of these
agreements integrate the various modalities into a
comprehensive, codified form of inter-state penal
cooperation.[185]
At the regional level, the Council
of Europe has been considering such an integrated approach
since 1987 on the basis of a project developed by an ad hoc
Committee of Experts. This committee convened twice at the
International Institute of Higher Studies in Criminal
Sciences in Siracusa, Italy. There, the Committee of Experts
determined that the Council of Europe should integrate all
of the European Conventions into a single, integrated code
of inter-state penal cooperation. This conclusion was
supported by a Resolution of the Council of Ministers of
Justice in 1987. In addition, the Council of Arab Ministers
of Justice developed such a model code in 1988. Regrettably,
it has not received attention by the Arab governments, as
those states have not yet made international penal
cooperation a priority.
The integrated approach has
been accepted at a relatively slow pace within international
and regional organizations. This hesitation stems from the
familiarity and comfort which government representatives
feel toward the bilateral approach and with the process of
gradually strengthening modalities in a piecemeal fashion.
Efforts by a few scholars and government experts to spur the
multinational integrated approach have been met with some
reluctance in international conferences because some
government representatives feel that such an approach may
not be politically acceptable to their superiors.
Due, in part, to diplomatic timidity, regional and
international organizations have not advanced beyond the
fragmented or uncoordinated use of the modalities discussed
above. This situation persists even though the resort to
these modalities on a singular and unintegrated basis has
not worked effectively and has been inadequate in coping
with increased international, transnational and national
criminality, particularly with respect to organized crime,
drug traffic, and terrorism.[186] Consequently,
international, transnational, and national criminal
phenomena are not controlled as they could be due to this
weakness.
It must be admitted, however, that this
state of affairs is mainly due to the fact that government
officials, whether in ministries of foreign affairs or
justice, are not sufficiently knowledgeable in the field of
international criminal law to envision better and more
effective means of international cooperation. Instead, they
persist in traditional ways, with their concomitant
weaknesses, or they seek to develop less than lawful methods
of accomplishing that which they can not seem to accomplish
lawfully. These practices pose very serious problems in the
field of international penal cooperation.
Furthermore, the administrative and bureaucratic divisions,
which exist among the national organs of law enforcement and
prosecution, impair the effectiveness of inter-state penal
enforcement. National criminal justice systems consist of
different sub-systems. The most common divisions are among
law enforcement, prosecution, judiciary and corrections. In
addition, within each sub-system, there are separate
bureaucratic and administrative units. All too frequently,
each of these sub-systems is a self-contained entity with
its own peculiar bureaucratic and administrative exigencies
with each having a life of its own.
As a result, each
sub-system defends its respective turf and supports its own
methods, goals and purposes; all of which leads to
difficulties of integration, and ultimately, to the
fragmentation of the criminal justice system. Conversely,
criminal organizations and individual offenders are not
similarly hindered by the inefficiencies of bureaucratic and
administrative divisions.
The international response
to criminal phenomena which does not s at national
boundaries is piecemeal, divided, and ineffective. More
significantly, few states make the effort to use all the
existing modalities of inter-state cooperation and even
fewer states seek to develop new modalities of cooperation
in other fields. Such new modalities could include the
following:
i. sharing law enforcement intelligence;
ii. increasing teamwork in inter-state law enforcement
cooperation;
iii. tracing international financial
transactions;
iv. developing effective national
financial controls to trace proceeds of illicit
activities; and
v. developing regional "judicial
spaces."[187]
None of the above, however, should be construed or
applied in a manner that violates international and regional
human rights norms and standards.[188]
A multilateral
or regional integrated approach is an eminently desirable
course of conduct, and both the Council of Europe and the
United Nations could significantly contribute to the field
of international criminal justice by developing such a
model. Any such model should also include new approaches to
the problems of criminal jurisdiction.
The United Nations General Assembly adopted a set of
measures approved by the Eighth United Congress on the
Prevention of Crime and Treatment of Offenders [Havana,
August-September, 1990] which included the following:
measures for international cooperation for crime prevention
and criminal justice;[189] a model treaty on
extradition;[190] a model treaty on mutual assistance in
criminal matters;[191] and a model treaty on the transfer of
proceedings in criminal matters. These model treaties are
expected to provide a useful framework for states interested
in negotiating bilateral arrangements in these areas;
however, they are too general and are not integrated.[192]
The Organization of American States has, in the last few
years, followed in the footsteps of the Council of Europe
and developed, inter alia: (1) the American Convention on
Human Rights; (2) the Convention to Prevent and Punish the
Acts of Terrorism Taking the Form of Crimes Against Persons
and Related Extortion that are of International
Significance; (3) various instruments concerning
extradition, asylum and international penal law; and (4) the
establishment of the Inter-American Drug Abuse Control
Commission via the Inter-American Program of Action of Rio
de Janeiro Against the Illicit Use and Production of
Narcotic Drugs and Psychotropic Substances and Traffic
Therein. Qualitatively, the European Conventions on
Inter-State Cooperation[193] are moving into the stage of
second generation, whereas the OAS and U.N. are still at the
stage of first generation. However, we are now at a time
when we need a third generation of international
instruments.
Principles and Policies for the Increase in Effectiveness of the Indirect
Enforcement Scheme[194]
In order to render
the international system of prevention, control and
suppression of domestic, transnational and international
criminality more effective, the following recommendations
are offered:
1. Recognition of the rule aut dedere aut judicare as
a civitas maxima[195] and development of international
minimum standards of compliance, including standards for
effective, good faith prosecution and extradition;
2. Recognition of a ranking of criminal jurisdiction in
this order: territoriality, nationality, passive
personality, protected interest, and universality and
development of rules and mechanisms for conflict
resolution, including compulsory adjudication before
International Criminal Court, the International Court of
Justice or regional tribunals;[196]
3. Granting
individual victims the right to initiate prosecution as
partie civile, including countries other than that of
their nationality;[197]
4. Codification of
international and transnational crimes and their
inclusion in the national legislation of all
countries;[198]
5. Developing means by which to
detect abuses of power by those public officials who may
commit international offences or who, by purposeful
omission, are derelict of their duties to enforce
international criminal law;
6. Integrating
modalities for inter-state penal cooperation in a
codified fashion. This should be done in specialized
international and regional instruments and in national
legislation for application to international and
transnational crimes, as well as to domestic crimes
requiring inter-state cooperation;
7. Development
of a convention on inter-state cooperation between law
enforcement agencies setting forth the means, methods
and limitations of such cooperation, including the
protection of fundamental human rights and the right to
privacy. This systematized approach should be included
in an integrated code of inter-state penal cooperation;
8. The consistent and specific inclusion of the
integrated modalities of enforcement in all substantive
international criminal law conventions;
9.
Development of new modalities of inter-state cooperation
and enforcement mechanisms similar to those outlined
above;
10. Development of education and training
programs in international criminal law at the level of
legal education as well as within public agencies[199]
and specialization programs for judges, prosecutors and
law enforcement officials in international criminal law
aspects of their work. A specialized cadre of legal
technicians should be developed in each government and
within international, regional and inter-governmental
organizations to draft instruments and provisions on
international criminal law;
11. International, regional, inter-governmental and
non-governmental organizations and academic institutions
should develop educational, training, professional and
practical materials in international criminal law which
can be widely used by all professional categories;[200]
12. Development of networks of information and criminal
justice data-sharing within states and as between
states;[201]
13. Providing and requiring
increased technical assistance to states;[202] and
14. Development of regional centers for the accumulation
of specialized library materials, documents, and
research with the capacity to provide technical legal
advice to government and public agencies and to academic
and scientific organizations.
All of the above recommendations must be applied in
conformity with international, regional and national human
rights norms and standards. This caveat is particularly
important in light of some law enforcement branches. In this
respect, it should be stated that the observance of human
rights norms and standards does not reduce the efficiency or
effectiveness of the criminal justice system. The
inefficiency of criminal justice derives from a variety of
other factors.
Suffice it to observe that if any successful industrial
or commercial enterprise, in today's world of modern
management techniques, was administered like many of the
criminal justice systems, that enterprise would cease to be
successful and would eventually become bankrupt. The
symptoms of the bankruptcy of our criminal justice systems
are all too evident, from law enforcement to corrections, as
almost every aspect needs reform.
Concluding Assessment on Inter-State Cooperation
Since the end of World War II, international,
transnational, and national incidents of crime and the
number of offenders have consistently increased. The
distinction between the increase in the incidents of crime
and the number of offenders is critical because any system
of criminal justice is based on substantial compliance with
the law. Thus, the system is only equipped to deal with a
particular, limited number of offenders. As the number of
offenders increases, the criminal justice system's resources
become strained. Eventually, the system becomes unable to
handle the increased volume of offenders and ultimately
breaks down.[203]
At the inter-state level, other
factors which have enhanced this phenomenon are the
extraordinary ease of inter-state movement of persons and
goods and the free-flow of financial transactions in a
worldwide banking system that provides maximum flexibility
and anonymity. National criminal justice systems, which are
no longer capable of meeting their domestic challenges, must
face the added difficulties of pursuing offenders, and
seeking evidence in multiple states. However, the lack of
expert personnel and the limited resources allocated by
governments to such endeavors and to inter-state penal
cooperation render these processes slow and ineffective.
Governments believe that the problems in extradition and
other forms of international cooperation stem from
approaches which tend to elevate the procedural rights of
the requested person to the detriment of the process. The
argument is not entirely without merit, but it is limited to
occasional effects and ignores endemic and operational
causes. One of these causes is the limited number of experts
among judges, prosecutors, and administrative officials
working in this field. They face a large volume of cases
with limited resources and personnel.
Probably the
most serious of all problems is bureaucratic divisions which
burden the administration of criminal justice and sometimes
paralyze the system. Even those law enforcement agencies
which have exhibited increased capacity for inter-state
cooperation have become less concerned with the proper
application of the law. As some of these public officials
engage in questionable or unlawful practices such as
abduction, they compel greater procedural rigidity and
tighter judicial controls. The cumulative effect of these
and other systematic and operational deficiencies reduces
the speed and effectiveness of the processes of inter-state
penal cooperation.
Operational problems, though more
visible, are not, however, the most serious causes of the
systemic problems in interstate penal cooperation. Many
states still favor bilateral treaties and make extradition
and other forms of cooperation a consequence of, and
contingent upon, their political relations. Thus,
governments reduce procedural barriers to extradition and
other forms of cooperation with friendly nations and
increase these barriers with less friendly ones. Extradition
and other forms of cooperation are therefore still a process
of political accommodation. They should be a judicial
process based on an international civitas maxima free from
political considerations.[204]
A new approach is needed whereby modalities of
inter-state cooperation are regarded as an objective and
politically neutral international judicial process which
preserves international standards of legality and human
rights protections in its judicial and administrative
workings. It is particularly important to understand that
the protection of individual human rights is not and should
not be placed in a confrontational relationship with the
effectiveness of the process.
Multilateralism should
replace the archaic, inefficient and politicized
bilateralism, and all modalities of inter-state penal
cooperation should be integrated. Thus, multilateral
treaties and national legislation should integrate the
following modalities: extradition; legal assistance;
transfer of criminal proceedings; transfer of prisoners;
transfer of sentences; recognition of foreign penal
judgements; tracing, freezing and seizing of assets derived
from criminal activity; and, law-enforcement and
prosecutorial cooperation. Only then will these
complementary processes work to the benefit of ensuring
efficiency without sacrificing proper legal procedures and
violating individual human rights.
Without the
intellectual and technical contribution of scholars and
experts and without the leadership of international and
regional organizations, states will probably continue to
pursue familiar courses charted by years of practice, even
though that practice has proven unsatisfactory. Instead,
states should explore new courses in the hopes of
discovering the best route to a brave new world of effective
inter-state penal cooperation.
|
