Can International Law Fight Terrorism?

Critics of the U.S. government’s post-September 11 “war on terror” have a variety of complaints. One of the most salient is the “unilateral” and perhaps even “illegal” use of military force by the U.S. in its attempt to either attack terrorist groups or prevent such groups from acquiring weapons of mass destruction.

There is some force to this critique, but ultimately such critics will get nowhere unless they can offer a internationalist alternative to dealing what most reasonable people agree is a real and serious threat. But the international legal infrastructure is far more focused on restraining the use of military force against terrorism by governments.

For instance, the much vaunted internationalist hobby horse, the International Criminal Court, is much more likely to prosecute a U.S. soldier for engaging in war crimes in the prosecution of the war on terror than it would prosecute a terrorist for engaging in terrorist acts. Why? Because terrorism itself is not a crime within the ICC’s jurisdiction. Rather, terrorist acts would have to be shoehorned into one of the ICC’s other categories as a “war crime” or maybe (but not necessarily) a crime against humanity.

Indeed, as Kofi Annan pointed out last week in Madrid, there is no internationally agreed upon definition of what constitutes a terrorist act. While there is no shortage of international treaties prohibiting acts that are associated with terrorism, the “[l]ack of agreement on a clear and well-known definition undermines the normative and moral stance against terrorism and has stained the United Nations image. Achieving a comprehensive convention on terrorism, including a clear definition, is a political imperative.” So concluded a high-level panel of security experts appointed by Annan last fall.

This political imperative is likely to go nowhere because almost every Arab state opposes the definition of terrorism that prohibits the deliberate targeting of civilians, if such activities take place in an occupied territory (e.g. one that would define Palestine attacks on Israeli civilians as terrorism). These objections are reflected in these states’ (Syria, Iran, Saudi Arabia, etc) refusal to sign most of the 12 anti-terrorism treaties.

Such obstreperous rejection of basic international norms has drawn pretty much zero criticism from international lawyers, who prefer to devote their efforts to denouncing U.S. delay in ratification of the tobacco control treaty. This is not to say that international lawyers are always wrong when they argue against the use of military force against terrorism by states like the U.S. But it would be nice if just a few of those lawyers (perhaps as Chris notes here) would devote some of the same energy to fashioning an international legal infrastructure that can prevent and punish international terrorists like Al Qaeda.