Freedom fighters, terrorists and lawful combatants. The violent quest for moral certainty and social change

 

By: dr. Ted A. van Baarda[1]

 

When introducing a bill in Parliament, the Minister of Justice of a European country faced fiercely critical questions over an unsatisfactory definition in the bill. When asked what the definition actually said, he conceded de­feat when he spoke: “With this definition, it’s like when St. Augustine was asked about the defi­nition of time. ‘When I am not asked what time is, I know what it is, but when I am asked, I don’t know.’”

Although the definition under scrutiny did not con­cern terrorism, it might well have been the case. For in the case of terrorism too, many have a gut feeling what it is, certainly when it is shown on television screens, but it has been remarkably difficult to find a definition that is satisfactory on a world-wide basis. In this pa­per, I will discuss:

·        the difficulties in arriving at an internationally acceptable definition of terrorism;

·        the vexed issue of the distinction between freedom fighters and terrorists;

·        the so-called ‘justification’ of terrorist acts;

·        finally, at the level of legal philosophy I will conclude with some remarks con­cerning the moral nature of a democratic society as such - something which needs to be defended both militarily and morally. Failure in doing so would put our identity as free nations in peril.

 

Political violence and criminal violence: blurred distinctions

The difficulties in finding an internationally acceptable definition of terrorism are of a practical as well as ethi­cal and legal nature. Of a practical nature is the fact that there are both differences and similari­ties between terrorism and guerrilla warfare, while the same can be submitted for the rela­tionship between terrorism and ‘ordinary’ criminality. As a result, it is diffi­cult, if not impossible to juxtapose terrorism une­quivocally to either guerrilla warfare or criminal behaviour.

            Guerrilla’s frequently use methods of combat which are similar to those of ter­rorists, such as the use of indiscriminate violence. Both frequently ignore the obliga­tion pertinent under the laws of war to distinguish themselves visibly from the civilian population.

While the motive in ‘ordinary’ crime is frequently that of material gain, per­sonal pas­sions or the wish to even the scores, terrorism is frequently described as quintessentially political. However, the distinction between terrorism and ‘ordinary’ crime can blur. In order to finance their operations terrorist organisations have en­gaged in ‘ordinary’ criminal activities, such as hostage taking or drugs dealing (Groll Yaari, 1998, 35).

While the criterion of the political motive is not incorrect, it may lead on oc­casion to arbitrary results. This may be the case when the motive is both material as well as political. Thus one branch of a criminal organisation specialises in acquir­ing wealth through criminal means in an attempt to sponsor the political, terrorist branch of the same organisation. Furthermore, it may occur that virtually the same act may be clas­sified differently, solely depending on the motive. The murder for in­stance of the German cap­tains of industry Alfred Herrhausen and Jurgen Ponto in 1978 by the Baader-Meinhof group is re­garded as an act of terror. However, the murder of the Dutch captain of industry Ger­rit Jan Heijn in the late eighties is seen as an act of common criminality, because of the financial motive. If one does not take the motive into account but sim­ply the act, the murders are indistinguishable.

 

Ethical and legal complications

Two issues which lie on the borderline between ethics and law, complicate the quest for a definition of terrorism, which is acceptable on a (near) world-wide basis. The two can be distinguished, but are clearly related.

·      Who has the authority to define terrorism? In other words: who has legitimate authority over a given society, territory or population? More often than not, the is­sue of the legitimacy of public authority is one of the key issues that keeps a gov­ernment and terrorists apart. A case in point is the heated discussion on the distinc­tion between terrorism and a liberation struggle in the context of the wars of inde­pendence.

·      Should terrorism primarily be defined from the per­spective of the penal code (as many governments prefer) or from the per­spective of the laws of war (as many terrorist movements prefer).

Implied in the quest for a definition is the issue of ‘the power to define’. The unspo­ken premise that the agency or body that drafts the definition is acting within its authority. Although this may be cor­rect from the point of view of legal positivism, the group targeted by the definition is likely to call that authority into question. The organisa­tion targeted is likely to per­ceive the government authorising the drafting of a defini­tion as oppres­sive, unjust and criminal. Whatever the modalities of the defi­ni­tion, the organisation targeted is likely to dismiss the definition out of hand or de­clare it inapplicable to itself. The cause is clear: he who succeeds in label­ling his op­ponent as a terrorist, has succeeded in influencing the public at large to see the con­flict from his point of view (Hoffman, 1998, 8; Crenshaw, 1995, 11). However, the definition as such says little about the moral standing of the government who drafted it. History shows a number of countries where terrorists have succeeded in over­throwing the government and outlawed terrorism once they had assumed governmen­tal authority themselves.

The inevitable conclu­sion is that penal defi­nitions of ter­rorism that empha­sise the political motivation of the perpetrator are problematic.

An alternative method for defining terrorism has the laws of war as its starting point. Terrorism is seen as a form of war­fare, in lieu of a form of crime (Jenkins, 1986). In the battle between terrorists and gov­ernment forces, the ius in bello would be applicable.

            There are limited advantages to this approach. It may assist in distin­guishing an insurrection or a liberation struggle from terrorism, in view of arti­cle 1 (4) of Ad­di­tional Protocol I to the four Geneva Conventions. If in the context of a liberation struggle only members of the secu­rity ap­pa­ratus are targeted but no unsuspecting bystanders, it would not be an act of terror but an act of lawful resistance. Summa­rised briefly, the controversial ar­ticle 1 (4) states inter alia that wars against foreign domination, coloniali­sation or apart­heid, are to be regarded as international armed conflicts.

The provision is more of a symbolic rather than practi­cal nature. Because ter­rorists rarely respect the ius in bello, the vast ma­jority of their acts would still remain criminal. A modern terrorist is unlikely to re­spect the distinction between combatants and non-combatants be­cause it hinders him too much with the psychological aspects of his struggle. Invoking fear is the main weapon with which he attempts to under­mine the resolve of a nation. Unlimited fear is - from his point of view - the best. The distinc­tion between com­batants and non-combatants denies him one of his options, since the fear among the public that every­one is a target is his trump card.

            The approach of the laws of war has its disadvantages:

Firstly, there is the issue of the threshold of violence which has to be met, before a situation of ‘armed conflict’ can exist which, in turn, would trigger the applicability the laws of war. The laws of war are not applicable to an incidental shooting. Al­though there is some discussion about the minimum threshold on the applicability of the Ge­neva Conventions and Protocols, it appears certain that:

·        there should be continuous and large-scale hostilities;

·        between the regular armed forces and an organised armed group, respectively between such armed groups among each other (ICTY, Tadić case, 1995, §§ 67-70).

Because many acts of terrorism occur in what is widely viewed as peacetime, “… the illegality of such acts has to be established first and foremost by reference to the na­tional law of states; international treaties on terrorism and related matters; and other relevant parts of international law …” (Roberts, 2002, 8).

Secondly and perhaps more importantly, even if the laws of war would be ap­plicable, they would in effect bypass the question whether terrorism is criminal by nature. This effect occurs notwithstanding the distinction between international and non-international armed conflicts. In the case of international armed conflicts, the highly con­troversial provision of article 1 (4) of Additional Protocol I appears to grant a measure of legitimacy to the insurgents con­cerned. The mere fact that they have taken up arms would not qualify as a crime - at least under inter­national treaty law. Hence president Reagan advised the US Senate against ratifying Additional Pro­tocol I (Roberts, 2002, 12-13). If on the other hand, the case would be one of a con­flict of a non-international nature, common article 3 of the Four Geneva Con­ven­tions, and possibly Additional Protocol II would come into ef­fect. Common article 3 states that it applies without prejudice to “… the legal status of the Parties to the con­flict”. By remaining silent on the status of the parties to the con­flict, common article 3 too bypasses the question whether terrorism is criminal in na­ture. Govern­ments are likely to per­ceive this as unac­ceptable. Wars on terrorism, more often than not, are seen by governments as a mortal battle been the forces of justice and human dig­nity pitted against the forces of evil and lack of civili­sation. Hence, the governments involved are likely to demand that any application of the law will refer in one way or other, to the ethical distinction be­tween ‘good’ and ‘evil’. The bypassing of the is­sue whether a terrorist is an evil criminal would, in effect, put members of the police and the regular armed forces on a par with any given terrorist organisation. No democratic govern­ment up-holding the rule of law can af­ford such a point of view.

Sadly, the approach that starts from the laws of war will not be satisfactory either in providing with a definition of terrorism that is both sufficiently accurate and acceptable on a world-wide basis.

Although the inadequacy of the laws of war merits further examination, this does not suggest that their application is unimportant. Roberts argues that there can be strong prudential considerations that militate in favour of ob­serving the laws of war. One is clearly of an ethical nature: “in anti-terrorist cam­paigns in particular, a basis for engaging in military operations is often a perception that there is a definite moral distinction between the types of ac­tions engaged in by terrorists and those engaged in by their adversaries. Observance of the ius in bello can form part of that moral dis­tinction” (Roberts, 2002, 9).

 

Freedom fighter or terrorist?

The question “freedom fighter or terrorist?” is not a new one. It was already topical during the Second World War - particularly in those countries where there existed ac­tive resistance against the enemy occupation. On closer analysis, two main questions can be distinguished:

·        Is a population living under enemy occupation is under an obligation to respect the authority established by the Occupying Power?

·        If the answer is no: to what extent is that population obliged to respect the laws of war when resisting the occupying forces?

As far as the obligation to respect the authority of the Occupying Power is concerned, Dutch criminal courts, trying war crimes cases in the immediate aftermath of the war, were not insensitive to the argu­ment in favour of a right to resistance of the occupied population. In the well-known case against the general of the German SS Rauter, the (then) highest court of the land on war crimes cases, considered that, from the Ger­man viewpoint, “… the resistance in the Netherlands to the occupying Power could be considered unlawful because the irregular fighters in the Netherlands did not fulfil the requirements concerning legal fighting forces as prescribed by the Regulations of Land Warfare, and the accused was therefore justified in acting against the resis­tance.” The Special Court of Cassation then took a U-turn. It added that “from the Netherlands viewpoint the matter can be considered differently, because the occupy­ing Power only exercises a factual and not a legitimate authority, so that the popula­tion of the occu­pied territory is in general neither ethically nor juridically obliged to obey it as such; it follows from this that resistance to the enemy in the occupied terri­tory can be a permissible weapon.”[2] In his an­notation of the ruling, the former Jus­tice of the In­ternational Military Tribu­nal for the Far East, Röling, observed that it deviated from views held in Great Brit­ain and the United States. In the latter, the population is perceived as having the obli­gation to obey the occupying authority. “One cannot es­cape the impression, that the national interpretation of international law on this issue is, in part at least, being de­cided by the consideration whether a given nation has a larger chance to occupy, than to be oc­cupied. In the first instance, one leans toward the duty to obey, in the second instance one does not” (our transla­tion - TvB).

            His observation is wise, because the question whether the population living under oc­cupation possesses a right to resistance is one of the contentious issues which was left unresolved at the end of the Hague Peace Conferences of 1899 and 1907. Given the fiercely opposing views between the Occupying Power and the local population, it will be virtually impossible to arrive at a common view on what is just, legitimate or criminal. When the Hague Regulations of Warfare on Land were drafted, the smaller nations opposed the views of the larger nations concerning the right to re­sistance. In the end the Russian diplomat Martens offered his well-known compro­mise formula. It contains the phrase “… in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and rule of the principles of the law of nations (…) the laws of humanity, and the dictates of public conscience.” The text has both ethical and legal elements. A slightly modi­fied version of the Martens’ clause remains is a cor­nerstone of modern international humanitarian law, currently codified in article 1 (2) of Additional Protocol I (1977).

In the Rauter case the Special Court of Cassation observed that a situation ex­isted where the occupying power had ex­ceeded its authority as Occupying Power deliberately, frequently and systematically. One cannot possibly expect of an occu­pied population to respect the authority of an Occupying Power if that power is un­willing to respect the laws of occupation. During the German occu­pation of Hol­land, obedience to the Occupying Power was perceived as unpatriotic and disloyal to HM Queen, living in ex­ile in London. In the eyes of the majority of the Dutch population there hardly existed a conflict of loyalty. Confronted with the choice of loyalty to HM the Queen or obedience to the Occupying Power, the choice was not diffi­cult at the level of princi­ple, albeit that the desire to put that choice into practise was dan­gerous to the point of suicidal. Throughout Europe resis­tance movements were sup­ported militarily from London, giving rise to the suspicion that the interpre­tation of major powers of this issue is not as strict as it appears on paper.

 

The Geneva Conventions

When the four Geneva Conventions were drafted between 1946-1949, the dis­cussion on the distinction between terrorists and freedom fighters revived. Many countries had just been liberated. It was both politi­cally and mor­ally unthinkable that their parti­sans, nationalists, maquis and freedom fighters would be viewed as criminals. Re­vealing is the analysis in a British Manual of Mili­tary Law dating back to the nine­teen forties: characteristic for the distinction between a com­batant and a non-combat­ant is that it implies that someone has to choose where he stands. Either he is a com­batant, or he is a non-combatant. He can­not enjoy the ad­vantages of both categories. More specifically, he cannot legally kill enemy soldiers in his capacity as a combat­ant, only to act as if he was a peaceful ci­vilian once he is caught (Best, 1997, 127 et. seq.).

            The tactic of blending in with the local population until a one has become vir­tually invisible to the enemy has also been practised with the premeditated aim of in­ducing a violation of the distinction between combatants and non-combatants. With this hideous goal in mind, a two-fold purpose is served. First, it offers the op­portu­nity to portray, at international press conferences, human rights record of the en­emy as questionable in view of the death of “innocent” civilians. Second, it offers the op­portunity of strengthening the resolve of one’s own supporters to continue the strug­gle, given the perceived viciousness of the enemy (Kellogg, 1997; Andreopou­los, 1994, 196; Rappoport, 1989, 16).

A corollary to the distinction between combatants and non-combatants is the distinc­tion between lawful and unlawful combatants. Although the distinction does not for­mally exist in law, in is in effect pertinent in view of the definition of combat­ants in art. 4A of the Third Geneva Convention. A combatant meets the following criteria:

a)      that of being commanded by a person responsible for his subordinates;

b)      that of having a fixed distinctive sign recognisable at a distance;

c)      that of carrying weapons openly;

d)      that of conducting their operations in accordance with the laws and customs of war.

According to the leading author of the ICRC Commentary to the Geneva Conven­tions, Jean Pictet, partizans, freedom fighters, etc., who meet these criteria, are lawful combatants (Pictet, 1960, 44-61). By reasoning a contrario one could argue that indi­viduals who participate in the hostilities without meeting these criteria are unlawful combatants. While commenting on article 5 of the Fourth Geneva Convention, Pictet has observed that persons who take part in hostilities while not belonging to the armed forces, are acting deliberately outside the laws of warfare (Pictet, 1958, 53). Hence, they loose a great deal of the protection of the Geneva Conventions to which they would otherwise be entitled.

During the drafting of the Geneva Conventions a second argument was in­voked. The ius in bello should be applied with greater flexibility towards freedom fighters, certainly in the case where a violation of the ius ad bellum has lead to the conclusion that the initial attack was illegal. Although this argument rung a cord with the populations which were recently liberated of German occupation, it had sev­eral draw­backs. In its most extreme form, it would result in a total war and the break­down of international humanitarian law as such. Violations committed by one side, perceived or true, would free the opposing side from re­specting interna­tional hu­manitarian law as well. Psy­chologically and ethically this phenomenon is known as a “moral disengagement factor” (Ban­dura, 1998). It may recalled however that such a course of action is pro­hibited. The applica­tion of the principle of reci­procity does not apply to inter alia treaties of a hu­mani­tarian nature (art. 60 para. 5 Vienna Con­vention on the Law of Treaties).

The argument in favour of greater flexibility could not be entertained. Firstly, the argument in effect introduces a double standard. The goal of national lib­eration appar­ently sanctifies any means of combat, resulting in the total war mentioned. Sec­ondly, proponents of the argument overlook one of the cornerstones of law as such: there exists a principle of equality before the law; the metaphorical goddess of jus­tice is blindfolded. The ius in bello does not deal with the issue that keeps the war­ring parties apart. It only deals with permissible means of combat, the merits of the bone of contention regardless (Best, 1997, 127 et.seq.; Paust, 1975, 16).

Terrorists often prefer to portray themselves as freedom fighters in an attempt to dis­tinguish themselves from ‘ordinary’ criminals who have to appear before a cri­minal court. They describe themselves as a ‘soldier’ being a member of an ‘army’. They do not display in accordance with the requirements of the Hague Regulations on War­fare on Land (1899/1907), military insignia. However, once they are taken into cus­tody they fre­quently demand special treatment or even the status of a Prisoner of War under the Third Ge­neva Convention. The struggle of the IRA convict Bobby Sands in the Maze prison in the seventies, is an example. Neither can it be sur­prising that a number of terro­rist movements have names which have a militaristic sound: the Red Army Fraction in Germany, the Red Brigade in Italy, the Japanese Red Army, etc. (Cren­shaw, 1995, 12). The use of such names creates the erroneous impres­sion that their res­pective movements have a status that is on a par with the official regular army.

 

Wars of liberation and Additional Protocol I

During the nineteen-seventies international negotiations led to a norm which can to­day be found in art. 1 (4) of Additional Protocol I. It states that situations of in­terna­tional armed conflict include struggles “… in which peoples are fighting against colo­nial domination and alien occupation and against ra­cist regimes in the exercise of their right of self-determination…”

            The paragraph would not have been included in the final text of the Protocol without the strong support of Asian and African nations, overriding objections of Western nations. During the negotiations, the former observed that the Geneva Con­ventions as well as the Hague Regulations in effect posed rules and limitations on wars be­tween western nations themselves. Wars in their colonies were outside the pro­tective scope of the Regulations because the Regulations only govern interna­tional armed con­flicts. In the eyes of many Asian and African nations this was a case of double stan­dards. As long as west­erners fought each other (in inter-state con­flicts), there existed clear rules, but when Westerners fought Asians and Africans (in colonial conflicts), hardly any rule existed. Why is it impossible as a matter of princi­ple, they argued, to apply the legal distinction between combatants and non-combat­ants to wars of libera­tion?

The criticism concerning the double standard cannot be rejected out of hand. Many experts have observed that the fundamental concepts on which international law has been developed through the ages, is in fact of European, even Christian ori­gin. What many Asian and African nations saw as le­giti­mate wars of liberation against colonial subjugation, had been labelled ‘criminal’ by the colonial regimes by calling the armed struggle terrorism. Again, the fiercely opposing views on what is just, legitimate of criminal, prevented an agreement on what is terrorism and what is not. The discussion on article 1 (4) of Additional Protocol I illustrates how diffi­cult it is to define terrorism as distinguished from a lawful liberation struggle.

In sum, it is fair to say that terrorism, as method of combat is the whole mark of many liberation movements and that their method of combat is undoubtedly crimi­nal in nature. Liberation movements that do respect the laws of war and use dis­crimi­natory violence only are not by definition terrorist, at least under the laws of war. However, the large majority of modern-day ter­rorist organisations commit their acts of violence outside the context of coloni­alism, military occupation or struggle against a racist (apartheid) regime. Thus, the complicated issue of distin­guishing free­dom fighters from terrorists is not applicable to them. They remain murderous criminals by any standard.

 

The so-called justification of terrorism

Several experts have observed that people ordinarily do not exhibit criminal behav­iour unless they have found a self-justification. What would be a criminal act under normal circumstances, becomes a justifiable, even honourable act by redefining the act in question (Hoffman, 1998; Bandura, 1998). An act that would constitute homi­cide in time of peace can be redefined during time of war as “incurring losses to the enemy”. It has been observed that the most marked shifts in human behaviour take place in the military context. The Dutch anthropologist Köbben (1994,12) is amazed by the human ability to see others as objects that have to be destroyed or damaged, as soon as their surroundings define them as such. The redefining of a person as an en­emy combatant turns him into a legitimate military target. The process is apparently no different in the case of a terrorist. He too, seeks a justification for the deeds, which he would consider immoral in circumstances that are more benign. Therefore, it is ideology, not technology, which is the source of terrorism. In sharp contrast however to the regular armed forces, the process of redefining by a terrorist is illegal.

 

Reduction of differences in power

Terrorism seems to be a good illustration of, what a Dutch polemologist called the “machtsaf­standreductietheorie” - the theory of reduction of differences in power. Summarised briefly, the theory states that persons will strive to reduce the difference in power between themselves and more powerful others. The tendency toward a reduction in the difference of power will be stronger when that difference, in the perception of those involved, is smaller. Most support­ers of this theory defend the view that the thirst for power is not at its high when the differ­ence in power is huge, but when the thirst has been quenched slightly. In other words, power whets the appetite for more. (Mulder, 1972, 18; Röling, 1982, 25; Achterhuis, 1988, 139-140). Envy plays a prominent part. Through the centuries power has been seen as a scarce commodity and the accumulation of power by one will almost by definition be and the disad­vantage of another. By striking at a seemingly omnipotent government, it is compelled to de­vote a dis­proportionate amount of resources to a relatively small group of people. Thus, the difference in power is reduced - at least in the perception of the terrorist, who frequently works with cheap arms.

            The theory of the reduction of power differentiation states that the assertion of power as such will be gratifying - even without the presence of ideological mo­tives. Political and economical arguments can play a role in the thirst for power, because dep­rivation can lead to desire for power and recognition. However, Mulder points out that his the­ory of the reduc­tion of the differentiation of power (1972, 15, 19) is mainly a theory of ad­diction: “more consumption of power leads to a stronger desire for power, like the use of hard drugs leads to a stronger desire to use them” (our transl. TvB). As a matter of course, the term addiction is used here as a pathological concept, not as an ethical concept.

 

Terrorism rooted in religious fundamentalism has a message of promise as its starting point. A terrorist can come to the conclusion that he obeys a holy command. Con­fronted with a choice between obeying earthly laws or holy commands, he will choose without hesitation for the latter. Therefore, the morals, rules and laws of the society in which he lives must be replaced. The people, who will follow the holy command and the set of morals emanating therefrom, will apparently become morally better persons. However, Rappoport cautions aptly that “… the road to Paradise runs directly through Hell” (1989, xvi).

            The world as a terrorist sees it, has to be saved. If that amounts to the annihi­lation of large parts of the (morally corrupt) population, to allow a small group of chosen people to survive, then so be it. In the case of supporters of the jihad, Simon and Benjamin suggest that the issue is the re-establishment of a seventh-eighth cen­tury Califate, when, according to their interpretation of Islam, a just leader governed an undivided umma (community of believers). It is depicted as a per­fect example where a two-fold order -- religious and political -- in those countries where Islam was pre­vailing. Simon and Benjamin observe that infidels will have to be subjugated or killed in the struggle to re-establish the Califate. To these jihadists the Koran forms the only proper base for governance, and Muslim leaders who do not support this view have to be dealt with as deviants. Because the struggle is deemed as holy, a fatwa is necessary to endow the struggle with legitimacy and a religious context. The supporters of sheikh Umar abd ar-Rahman in Brooklyn were apparently of the opinion that they needed his approval every time “… one did something ‘basically unlawful’, which would bring wrong unless the ‘mission [was] under the flag of God and his messen­ger’” (Simon and Benjamin, 2000, 67-69). The perceived moral cor­ruption prevailing in the West would make the western civilisation an easy prey.

            The view of sheikh Umar abd ar-Rahman serves as an exam­ple of the glorifi­cation of one’s own culture, while considering the foreign as doubtful or devil­ish. Remarkable is the desire to return to a source of religious inspiration that was ap­par­ently lost in past centuries. The source has to be regained or salvaged at all costs. Only the source is pure, true and morally good, while evolution from that source is virtually synonymous with deviation, dilution and, hence, corruption of its purity (Burggraeve, 1994, 60).

 

The self-righteousness of Osama bin Laden

In January 1999 Time asked Osama bin Laden whether he was responsible for the bombing of 1998 of the American Embassies in Nairobi en Dar-es-Salaam. He answered: “The Interna­tional Isla­mic Front for Jihad against the US and Israel has, by the grace of God, issued a crystal-clear fatwa calling on the Islamic nation to carry on jihad aimed at liberating the holy sites. The nation of Muhammed has responded to this appeal. If the instigation for jihad against the Jews and the Americans in order to liberate al-Aqsa Mosque and the Holy Ka’aba is con­sidered a crime, then let his­tory be a witness that I am a criminal. Our job is to inves­tigate and, by the grace of God, we did that, and certain people re­sponded to this in­stiga­tion” (Osama bin Laden, 1999, 32).

 

Not only terrorism rooted in religion can contain a promise of mythical pro­portions. The same can be true for certain cases of politically motivated terrorism. One pas­sionate advocate of the violent overthrow of colonial rule was the Algerian author Frantz Fanon († 1961). Hailed in the Third World as one of the chief ideolo­gists of decoloniali­sation, despised in the West as a terrorist, Fanon immediately makes clear that his struggle was not only one for territory and political independence, but a moral as well. Fanon mocks the values and civilisation of the West, including the racism he observes within the ranks of the colonial authorities. Harshly he criti­cises the - in his view - arrogance of the colonial powers when they presume that the colo­nised peo­ples do not have an ethic and civilisation of their own. The West de­clares an in­dige­nous popu­lation impervious to ethics, devoid of values, even ne­gating values (Fanon, 1961/2002, p. 44). It is this moral arrogance of the colonial powers, which he finds not only deeply insulting and humiliating, but also a major justification for his cause. Colonialism is violence in its natural state, and it will not yield until con­fronted by greater violence (Fanon, 1961/2002, p. 61). He conse­quently rejects the notion of negotiation and compromise, because a compromise will involve the colo­nial system, thus slowing down its overthrow.

One may ob­serve that, from the perspective of the perceived lack of moral integrity of the Western civilisation, there is occasion for little, if any difference of principle between politically motivated ter­rorism and religiously motivated terror­ism.

Fanon continues to state the key values which are, for colonised peoples worth fight­ing for: “… la terre qui doit assurer le pain, et, bien sûr, la dignité” (“… the earth which has to guarantee bread, and, of course, dignity” - our translation, TvB; Fanon, 1961/2002, 47). The use of the word dignity merits further attention. The word “dignity” has been echoed by many in Africa. The issue of dignity may give us further insight in the so-called justification of terrorism.

A personal grudge can be a motivation for a terrorist in addition to a political motive. Unfulfilled ambitions, a series of disappointments or a feeling that the gov­ernment has treated him unfairly, may contribute to his decision to disassociate him­self from society and to choose violent means (Bandura, 1999, 204). The personal sense of pain and grievance may dovetail with the higher, more abstract, political ar­gument. In the seventies for in­stance, the Dutch government invited the then Head of State of Indo­nesia to visit Holland on a formal state visit. The visit was politically sensitive, since Indonesia was former colony of Holland, formerly known as the Dutch East Indies. The visit was seen by certain members the Moluccan mi­nority in Holland as a personal insult. The president of Indonesia was regarded by them as re­sponsible for the ruthless suppression of the Moluccan popu­lation on the South Moluccan Islands which are part of the Indone­sian archipel­ago. Here, a man with blood on his hands was afforded all the honours of a state visit by the former colonial power - a shame that in their view could not be extinguished. Cornelis Thenu was one of the perpetrators of the violent high jacking of a train in the North of Holland. He de­scribes how the feeling of being deeply hurt became a decisive argument which added to their political motivation for their high jacking in the late seventies (Thenu as quoted by Van der Linden, 1999).

            The key issue is not only the achievement of a mate­rial or political goal, but just as much one of recognition: to be accepted and recognised by a fellow human being as fully equal in dignity and rights. It entails a climate where one is able to walk up­right and look a man in the street straight in the eye, without being shamed by an im­proper sense of inferiority. There remains a measure of uncer­tainty on the precise description of the concept of dignity (Paust, 1984). However, it cannot be a consid­eration that one can easily afford to ne­glect, as the British social philosopher Isaiah Berlin points out. “The lack of freedom about which men or groups complain amounts, as often as not, to the lack of proper recog­nition. (…) What I may seek to avoid is simply being ignored, or pa­tronised, or de­spised, or being taken for granted - in short, not being treated as an individual, having my uniqueness insufficiently rec­ognised (…). What oppressed classes of na­tionalities, as a rule, demand is neither simply unhampered liberty of action for their members, not, above everything, equal­ity of social or economic op­portunity, still less assign­ment of a place in a friction­less, organic state devised by a rational lawgiver. What they want, as often as not, is simply recognition (of their class or nation, or col­our or race) as an independent source of human activity, as an entity with a will of its own, in­tending to act in ac­cordance with it (whether it is good or legitimate, or not), and not to be ruled, edu­cated, guided, with however slight a hand, as being not quite fully human, and there­fore not quite fully free” (Berlin, 1969/1979, 155, 156; McDou­gal, 1980, XVIII).

 

Max Weber (1864-1920)

At this point, it may be useful to refer briefly to the philosophy of Max Weber. As is known, Weber made a distinction between the “ethic of responsibility” (in German: Verantwortungsethik) and the “ethic of conviction” (in German: Gesinnungsethik).

Weber defines the ethics of responsibility as the form of ethic which is perti­nent to those holding public office, like civil servants and politicians. Characteristic for the ethic of responsibility is that the incumbent is not only responsible for his de­cisions and actions as such. He is also responsible for the foreseeable, undesirable side-effects of his decisions and actions. The incumbent is consequently obliged to balance his preferred course of ac­tion with the foreseeable consequences, in an at­tempt to minimise the negative side-effects.

The ethic of conviction is of a completely different nature and it is more perti­nent to our study. In the ethic of conviction a key issue is the obligation to follow certain specified values. This is to be done without compromise, regardless the ques­tion whether the following of those values is feasible. As long as the follower of the ethic of conviction is convinced he is following the proper values, he must do any­thing to adhere to them, even if this implies the sacrifice of his own life. Strict de­on­tologists will let a clean conscience come above everything else. The conse­quences of the actions are not the concern of the believer of the ethic of conviction. Weber has aptly pointed out that the ethic of conviction bears the promise of a bright future:

“… zur letzten Gewalt, die dann den Zustand der Vernichtung aller Gewalt­samkeit brin­gen würde, - die unsere Militärs den Soldaten bei jeder Offensive sagten: es sei die letzte, sie werde den Sieg und dann den Frieden bringen” (“… the last act of violence, which would then bring the situation of the anni­hilation of all violence -- as our military told our soldiers with each offensive: this will be the last one, this one will bring victory and then peace will prevail” -- Weber, 1919, 59; our translation -TvB).

Weber has correctly observed that the two approaches, the ethic of responsibility and the ethic of conviction are in their rawest form, irreconcilable. He shies away from a choice between the two, preferring a synthesis. He apparently finds it in a moderated version of the ethic of responsibility, which he describes as a combination of personal commitment and professional detachment to avoid errors of judgement (Weber, 1919, 51 and 65).

            In our view, this synthesis would seem correct. The ethic of conviction in its rawest form is blind without the ethic of responsibility because it refuses to deal with any consequence. With a slight exaggeration, one could say: it is content without form. The ethic of responsibility on the other hand can, when it is taken to its extreme, lead to undue bureaucracy, pragmatism and op­portun­ism, even when a principled stance is required. With an other slight exaggera­tion, one could say: it is form or pro­cedure without content. A moderate ethic of re­sponsi­bility would then appear to be key criterion in distinguishing terrorists from honour­able soldiers. While the former are likely to adhere to the ethic of conviction without fur­ther hesitation, the latter will fight with conviction while recognising the impor­tance of the value of hu­man dig­nity and the laws of war that emanate there­from.

 

Evolution

Perhaps it is the whole mark of a society that all of it is in a process of development. Fre­quently quoted are the words of legal philosopher Roscoe Pound: “Law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to rec­oncile the con­flicting de­mands of the need of stability and the need of change. The social in­terest in the ge­neral security has led men to seek some fixed basis for an absolute ordering of human action whe­reby a firm and stable order might be assured. But conti­nual changes in the circumstances of so­cial life demand continual new adjust­ments to the pressure of other social interests as well as to the new modes of endan­gering security. Thus the legal order must be flexible as well as stable. It must be overhauled continually and refitted continually to the changes in the actual life which it is to govern. If we seek princi­ples, we must seek principles of change no less than principles of stabil­ity. Accordingly, the chief problem to which legal thinkers have addressed themselves has been how to reconcile the idea of a fixed body of law, affording no scope for individual wilfulness, with the idea of change and growth making new law ...” (Pound, 1923, 1).

The quest for a balance between change and stability, the quest too for princi­ples of change belong as a matter of course, to the core issues of democratic govern­ance, respect for civil rights and the rule of law. Modern multicultural societies are societies where the sets of values of one individual or community may collide with that of another individual or community. Actions committed by one citizen are likely to be regarded by a fellow citi­zen as immoral, sinful and perhaps even crimi­nal. Un­doubtedly it is the cause for heated discussions on issues such as the burning of the national flag, transports of nuclear waste, abortion, the unrest in the Palestinian terri­tories, etc. On the one hand issues like these – and many others could be men­tioned – sug­gest that the public at large generally demands laws to be just. Laws are, in other words, not to be detached from moral considerations as the legal philosopher Hans Kelsen argued. Rather, laws are expected to contain, to a certain extent at least, moral consid­erations and hence to serve the cause of justice. On the other hand, the issues men­tioned demonstrate that there exists a considerable disagreement as to whether the lawgiver actually succeeds. There is even less agreement on a definition of ‘jus­tice’.

            Whenever there are within a society fundamental differences of opinion on what is morally good and fair, there will be colliding opinions of justice. They even may exclude each other. This raises difficult questions: “… should one’s own le­gal order always have priority, even when passion­ate minorities see their views being cast aside? How unassailable is the [national] legal order - which is subject to human error - and should minority views, during the process of semi-continuous alteration of that order, be given special leeway? How tol­erant should one be toward the intoler­ance of alter­native points of view” (Bletz and Van Delden, 1991, 7; our transl. - TvB)? In other words, can people invoke a so-called ‘higher law’ which can set aside the appli­cable positive law which was properly adopted by parliament?

            Rosenthal argues that it is difficult to decide beforehand which of the collid­ing, mutually excluding opinions of justice is the superior. That raises a problem which is as annoying as it is intriguing, namely that no one can prescribe for others on which grounds they should accept certain political structures, institutions and authori­ties as legiti­mate. No claim to legitimacy can be judged in advance as superior to another. “When one counters that the claim of legitimacy of many has more signifi­cance that that of a few or of an individual, one introduces the criterion of numbers, thus confusing legitimacy with power” (Rosenthal, 1991, 13-14; our transl. - TvB).

            It is perhaps the tragedy of the legal philosophy that in our modern time peo­ple seek a just legal order through the development of law; yet what a just legal order actually is, remains uncertain. It requires a quest for a balance between stability and change, and the quest itself presupposes the acceptance, how­ever reluctantly, of a situation of moral and legal uncertainty, a situation of collective doubtfulness, hope­fully to ac­quire the maturity of a new balance and new insights. As a matter of course, there ex­ists the temptation to lapse into revolutionary one-sided­ness. This in turn could cause the ascendancy of a strong leader, a strict hierarchy and a tough col­lectivist codex of morals. The leader decides what is morally just and what is not. A terrorist does not take the developmental nature of society into account. He seeks the violent overthrow of the legal, social and moral order in utter disregard to the interests of others. Society should change, literally and figuratively, with a shock.

Such extremism denies the quintessentially developmental character of soci­ety. Through develop­ment, both the legal order and ethical sets of values can and will change. During this process of devel­opment, mo­ments will come when it ap­pears that the existing legal order is no longer adequate, or can even become a drag on de­velopment. Further development will become possible if the old concepts and struc­tures can be called into question and an opening can be found to seek out new values and new concepts. This may be, and usually is, a painful process. However, pain is inherent to a developmental proc­ess.

Considering the many violations which had occurred during the first world war, which also saw the dissolution of the Donau Monarchy, Politis observed: “[T]he phenomenon which so preoccupies international authorities is not so strange as many of them seem to think. It is neither new not pe­culiar to international law, but is merely an essentially relative and evolutionary mani­festation of character common to all branches of law. For law, indeed, is only the im­age of life (…) As man grows older, his tastes, ideas and physi­cal features are con­stantly changing. He hardly no­tices it because the change is daily and in details im­perceptible. But let an illness come, or some grave moral crisis: he realises it per­fectly; only he imagines that the change has been sudden and that it is cause by the ordeal he has undergone. In re­ality the or­deal is not the cause of change, but only the opportunity which makes it notice­able” (Politis, 1926, 2 - 3).

            A more recent philosophical study on development confirmed this view. “De­velopment is not, then, an aim that our socie­ties are free to adopt or reject; it is their very substance and link between the past, pre­sent and future generations. If rightly understood, it is not just one particular social duty amongst others, not even the pri­mary duty: development is the condition of all social life and therefore an inherent requirement of every obligation. Individuals and nations can only be united with each other it they first exist. And, as we have just seen, indi­vidual experiences and the existence of human societies are a function of progress, in other words of the expan­sion of human potentialities and of a corre­sponding increase of material goods. To reject development as a primary obligation would be to reject the humanisation of man and therefore the possibility of a moral system” (Domenach, 1971, p. 14; ECOSOC, 1979, § 40).

            These considerations seem to lead us, to a certain extent at least, to the con­cept of uncertainty. Though uncertainty is not a moral value as such, it can and does have its influence on political and moral judgements. If a new medical pill could lead to un­certain health hazards for example, it is likely to be prohibited, bearing in mind the safety of the patient. In our modern societies, uncertainties are frequently spoken of in terms of risks. Uncertainty about the nature of risks may lead to serious moral or political controversy. Fre­quently, risk avoidance will be the pre­ferred strat­egy. In the example of the new medical pill with its undetermined side effects, its prohibition will be based on the policy of risk avoidance, even if that im­plies that an uncer­tain (!) number of patients could have been saved by the new drug. Uncertainty con­cern­ing the how, where and when of the next terrorist attack will lead to a massive effort of a society to strengthen its assets to de­fend itself. This can imply that certain costly assets will never be deployed, sim­ply because the terrorist attack is not coming from that particular direction. Deci­sions concerning risk and the ac­ceptability of risks are fun­damen­tally moral and po­liti­cal decisions (Kirschenmann, 2001, 10). However, given the developmental nature of society, the total absence of risk, that is ab­so­lute cer­tainty cannot exist. One can even doubt whether absolute certainty in a moral sense is desir­able. The quest for truthfulness, the search for a fair balance of opin­ions and interests, will by definition imply that one’s own views will have to be re­lated with those hold­ing opposing views. Whatever the definition of social justice, social justice cannot be realised in solitary confinement. It will always be in need of an honest dia­logue, where the participants are pre­pared to engage in the quest to­gether, in an at­tempt to adapt the old moral and legal concepts to the needs and the perception of justice of modern times.

            In 1938, the President of the District Court of Amsterdam held his fare­well address, against the backdrop of the ascendance to power of Hitler in Germany. He warned against the quest for absolute certainty in law and ethics. “I know that it is cus­tomary to introduce as much as possible the conviction that the law is beyond doubt. This is surely understandable and within certain constraints, a positive effect ema­nates from legal certainty. However, it also harbours a great danger: that of intol­er­ance. (…) In certain countries, wars are fought ruthlessly and in others, significant tensions exist. Why those struggles? Why those tensions? A battle is always a battle concern­ing justice, both in peace and in war. Never is the conviction of each of the warring parties that they are in the right stronger than in time of war; he who does not share this opinion is by necessity a traitor in the eyes of his compatriots. However, tensions also arise through a difference in opinion concerning what is just, and the more dearly the convictions are held, the stronger the tension. He, who feels absolute cer­tainty about what is just, as he sees it, cannot think otherwise and those who hold a different view are inferior, stupid or evil, regardless. Towards these people he may do anything, literally anything, and it is not only permissible, but also obligatory. Ab­solute certainty con­cerning justice has annihilated complete populations, religious sects, and social classes. He who has this certainty cannot be tolerant; he may not be it. Eve­ry­one who doubts the concept of justice that he believes in with such vigour, has to be an en­emy who must be silenced at all cost. Or he ought to recognise, at least real­ise, that he himself can err and that, even if he doesn’t err, there exists a higher con­sid­eration which demands respect for each honestly held view. Certainly, there is cause to warn: thou shalt not be too certain of thy law” (Huysinga, 1938, 475, 476; our trans­lation; emphasis in the original -- TvB).

            In conclusion, the war on terrorism is not only a military battle, but a moral one as well. Too often, have terrorists have denounced the culture and democracies of the West as inherently corrupt. Though imperfections do exist, this by no means im­plies that the value of human dignity or the values underlying human rights and democratic order are ready to be discarded. In stark contrast to totalitarianism in its various forms, democracies allow people to seek new concepts, values and structures. In a democracy, one has the freedom to take part in a process of soul searching. Free­dom allows the quintessential developmental nature of society to run its course. Thus, it allows social change including the adaptation of values to take place through peace­ful means. If we are to win the war on terrorism, we must be pre­pared to highlight and develop the moral cornerstones, which hold our nations to­gether. Those funda­mental values are, after all, worth fighting for.

 

 

 

 

·      Achterhuis, Hans, Het rijk van de schaarste. Van Thomas Hobbes tot Michel Fou­cault, Utrecht, 1988;

·      Andreoploulos, George J., “The age of national liberation movements,” in: How­ard, Michael, Andreopoulos, George J., and Shulman, Mark R., The laws of war. Con­straints on warfare in the Western world, Yale, 1994;

·      Bandura, Albert, Moral disengagement in the perpetration of inhumanities, Per­sonality and social psychology review, vol. 3, 1999, no. 3;

·        Bedjaoui, Mohammed, “Frantz Fanon: he took the name of all the oppressed,” in: International Tribute to Frantz Fanon, United Nations Centre against Apartheid, New York, 1978;

·        Berlin, Isaiah, Four essays on liberty, Oxford, 1969 (consulted edition: Oxford and New York, 1979);

·      Best, Geoffrey, War and law since 1945, Oxford, 1994/1997;

·      Bletz J.C.F. en Delden, A.Th. van, see under: Bovens, M.A.P.;

·        Bovens, M.A.P., e.a., Heftige affaires. Absolute overtuigingen in de rechtsstaat, 1991;

·      Burggraeve, Roger, Het eigene en het vreemde in hun spanningsverhouding. Een fundamenteel ethische benadering van tolerantie, 1994, see under: Corijn, H.;

·      Corijn, Herman (ed.), Van wereldburger tot ‘bange blanke man’ UNESCO Centre Flanders, Antwerp, 1994;

·      Crenshaw, Martha, The causes of terrorism, 1981, see: Whittaker, David J.;

·      Crenshaw, Martha, Terrorism in context, 1995, see: Whittaker, David J.;

·      Crenshaw, Martha, Counter-terrorism policy and the political process, in: Studies in conflict and terrorism, vol. 24, 2001, nr. 5;

·        Department of the Army, Guerrilla warfare and special forces operations, FM 31-21, 1961;

·      Dinstein, Yoram, The distinction between unlawful combatants and war criminals, in: Dinstein, Y. (red.), International law in time of perplexity, Dordrecht, 1998;

·        Domenach, Jean-Marie, Our moral involvement in development, United Nations Centre for Economic and Social Information, New York, 1971;

·        ECOSOC, The international dimensions of the right to development as a human right, UN doc. E/CN.4/1334, Geneva, 2 January 1979;

·        Fanon, Frantz, Les damnés de la terre, Paris, 1961, (consulted edition: in Paris, 2002; transl. The wretched of the earth, Middlesex, 1965);

·      Groll-Yaari, Y., “Defining terrorism,” in: Wolfson, H., (red.), The political econ­omy of war and peace, Boston, 1998;

·      Hoffmann, Bruce, Inside terrorism, 1996, see under: Whittaker, David, J.;

·      Huysinga, J.W., Een afscheidsrede, Nederlands Juristenblad, 1938, pp. 472-477;

·      Jenkins, Brian, Defence against terrorism, 1986, see: Whittaker, David J.;

·      Kahn, S.G., Private armed groups and world order, in: Netherlands Yearbook of International Law, vol. 1, 1970, pp. 32-54;

·      Kellog, Davida, Guerrilla warfare: When taking care of your men leads to war crimes, JSCOPE paper, 1997;

·      Köbben, André J.F., What is a human life worth? PIOOM Newsletter, Summer 1994, vol. 6, nr. 1;

·        Kirschenmann, P.P., Onzekerheid en risico, in wetenschap, maatschappij en ethiek, farewell address, Amsterdam, 2001;

·        Laden, Osama bin, The wrath of God. Conversation with terror, interview, Time, 11 jan. 1999;

·      Linden, Frénk van der, Geen berouw. Geen excuses. Geen verzoening, Interview with Cornelis Thenu, NRC Handelsblad, 28 November 1998 Zaterdags Bijvoegsel;

·        McDougal, Myres, Lasswell, Harold D., and Chen, Lung-Chu, Human rights and world public order: the basic policies of an international law of human dignity, New Haven, 1980;

·        Mulder, Mauk, Het spel om de macht, Meppel, 1972;

·      Paust, Jordan J., Terrorism and the international law of war, in: Revue de Droit Pénal Militaire en de Droit de la Guerre, vol XIV, 1975;

·      Paust, Jordan J., Human dignity as a constitutional right, in: Howard Law Journal, vol. 27, 1984;

·      Pictet, Jean S., Commentary on IV Geneva Convention relative to the civilian population, ICRC, 1958;

·      Pictet, Jean S., Commentary on III Geneva Convention relative to the treatment of prisoners of war, ICRC, 1960;

·      Politis, N., New aspects of international law, Washington,1926;

·      Pound, Roscoe, Interpretations of legal history, Cambridge, 1923;

·      Rappoport, David C., and Alexander, Yonah, The morality of terrorism. Religious and secular justifications, New York, 1989;

·      Röling, B.V.A., Volkenrecht en vrede, 2nd ed, Deventer, 1982;

·      Rosenthal, U., see under: Bovens, M.A.P. e.a.;

·      Simon, S. en Benjamin, D., America and the new Terrorism, in: Survival vol. 42, Spring 2000, nr. 1;

·        Benjamin, Daniel and Simon, Steven, The age of sacred terror, New York, 2002;

·        Roberts, Adam, Counter-terrorism, armed force and the laws of war, in: Sur­vival, vol. 44, no. 1, Spring 2002;

·        Weber, Max, Politik als Beruf, speech, 1919, 6th ed., Berlin, 1977;

·      Whittaker, David J. (red.), The terrorism reader, London, 2001.

 

NOTES

 


[1] The author is a staff member of the Bureau for Ethics and the Armed Forces at the Netherlands Defence College in The Hague.

[2] Special Court of Cassation (Bijzondere Raad van Cassatie), 12 January 1949, NJ 1949, 87 (Rauter case) annotated by B.V.A. Röling, translation of the verdict in: Annual Digest and Reports of Public International Law Cases, vol. 16, 1949, case. no. 193, at pp. 529 - 530 (emphasis added).