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GLOBAL ANTI-TERRORISM LAW
AND POLICY




All indications are that the prevention of terrorism will be one of the
major tasks of governments and regional and international organizations
for some time to come. In response to the globalized nature of terrorism,
anti-terrorism law and policy have become matters of global concern.
Anti-terrorism law crosses boundaries between states and between
domestic, regional and international law. It also crosses traditional disci-
plinary boundaries between administrative, constitutional, criminal,
immigration and military law, and the law of war. This collection is
designed to contribute to the growing field of comparative and inter-
national studies of anti-terrorism law and policy. A particular feature
of this collection is the combination of chapters that focus on a parti-
cular country or region in the Americas, Europe, Africa and Asia, and
overarching thematic chapters that take a comparative approach to
particular aspects of anti-terrorism law and policy, including inter-
national, constitutional, immigration, privacy, maritime, aviation, and
financial law.

. R A M R A J is an Associate Professor at the Faculty of Law,
VICTOR V
National University of Singapore (NUS). His main areas of teaching and
research are anti-terrorism law and policy, legal theory, criminal law and
theory, and constitutional law. Before joining the NUS Faculty of Law in
1998, he served as a judicial law clerk at the Federal Court of Appeal
in Ottawa and as a litigation lawyer in Toronto. He has published widely
in anti-terrorism law, criminal law and constitutional law.

is a Professor at the Faculty of Law, National University
MICHAEL HOR
of Singapore. He is a former Magistrate of the Subordinate Court of
Singapore and has been Chief Editor of the Singapore Journal of Legal
Studies. He is a Member of the Criminal Practice Committee of the Law
Society of Singapore.

is a Professor of Law at the University of Toronto. He has
KENT ROACH
appeared before the Canadian Senate and Indonesia’s working group on
anti-terrorism law. He co-taught an innovative seminar at the University
of Toronto on Comparative Anti-Terrorism Law and Policy, and has been
a special lecturer at the National University of Singapore, the University of
Siena and New York University on comparative anti-terrorism law. He has
written eight books and over eighty articles published in a wide variety of
countries.
GLOBAL ANTI-TERRORISM
LAW AND POLICY


Edited by
VICTOR V. RAMRAJ, MICHAEL HOR
AND KENT ROACH
cambridge university press
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, SĂŁo Paulo

Cambridge University Press
The Edinburgh Building, Cambridge cb2 2ru, UK
Published in the United States of America by Cambridge University Press, New York
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© Cambridge University Press 2005


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without the written permission of Cambridge University Press.

First published in print format 2005

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Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
CONTENTS




List of contributors page ix
Acknowledgements xi


1 Introduction
Victor V. Ramraj, Michael Hor and Kent Roach 1


Theoretical Perspectives on Anti-Terrorism Law and Policy
PART ONE

2 Terrorism and the counter-terrorist discourse
Laura K. Donohue 13
3 The question of a generic definition of terrorism under
general international law
C. L. Lim 37
4 The state of emergency in legal theory
David Dyzenhaus 65
5 Stability and flexibility: a Dicey business
Oren Gross 90
6 Terrorism, risk perception and judicial review
Victor V. Ramraj 107


A Comparative Study of Anti-Terrorism Measures
PART TWO

7 The criminal law and terrorism
Kent Roach 129
v
vi contents

8 And fairness for all? Asylum, national security and the
rule of law
Colin Harvey 152
9 The financial war on terrorism
Kevin E. Davis 179
10 Terrorism and technology: policy challenges and current
responses
Mary W. S. Wong 199
11 Recent developments relating to terrorism and aviation
security
Alan Khee-Jin Tan 225
12 International responses to combat maritime terrorism
Robert C. Beckman 248


Anti-Terrorism Law and Policy in Asia
PART THREE

13 Law and terror: Singapore stories and Malaysian
dilemmas
Michael Hor 273
14 Indonesia’s Anti-Terrorism Law
Hikmahanto Juwana 295
15 The Philippines: the weakest link in the fight against
terrorism?
H. Harry L. Roque, Jr. 307
16 Japan’s response to terrorism post-9/11
Mark Fenwick 327
17 Legal and institutional responses to terrorism in India
V. Vijayakumar 351
18 Enacting security laws in Hong Kong
Simon N. M. Young 368
vii
contents

Regional Cooperation
PART FOUR

19 Southeast Asian cooperation on anti-terrorism: the
dynamics and limits of regional responses
Simon S. C. Tay and Tan Hsien Li 399
20 Anti-terrorism law and policy: the case of the European
Union
¨
Jorg Monar 425


Anti-Terrorism Law and Policy in the West
PART FIVE

21 Legislative over-breadth, democratic failure and the
judicial response: fundamental rights and the UK’s
anti-terrorist legal policy
Helen Fenwick and Gavin Phillipson 455
22 United States responses to September 11
William C. Banks 490
23 Canada’s response to terrorism
Kent Roach 511
24 The rule of law and the regulation of terrorism in
Australia and New Zealand
George Williams 534


Anti-Terrorism Measures in Africa, the Middle East
PART SIX

and Argentina
25 Terrorism and governance in South Africa and
Eastern Africa
C. H. Powell 555
26 Rocks, hard places and human rights: anti-terrorism
law and policy in Arab states
Lynn Welchman 581
viii contents

27 Terrorism in Argentina: government as its own worst enemy
´
William C. Banks and Alejandro D. Carrio 609
28 Postscript: Some recent developments
Victor V. Ramraj, Michael Hor and Kent Roach 625


Index 635
CONTRIBUTORS




WILLIAM C. BANKS, Laura J. and L. Douglas Meredith Professor, Syracuse
University College of Law; Professor of Public Administration, Maxwell
School of Citizenship and Public Affairs, Syracuse University
ROBERT C. BECKMAN, Associate Professor, Faculty of Law, National University
of Singapore
ALEJANDRO D. CARRIO, Visiting Professor of Law, Louisiana State University
´
and Professor of Law at Palermo University
KEVIN E. DAVIS, Professor of Law, New York University School of Law
LAURA K. DONOHUE, Center for International Security and Cooperation,
Stanford Institute for International Studies, Stanford University
DAVID DYZENHAUS, Professor of Law and Philosophy, University of Toronto
MARK FENWICK, Associate Professor, Faculty of Law, University of Kyushu
HELEN FENWICK, Professor in Law, Human Rights Centre, Department of
Law, University of Durham
OREN GROSS, Julius E. Davis Professor of Law and Director, Center for Legal
Studies, University of Minnesota Law School
COLIN HARVEY, Professor of Human Rights Law, School of Law, Queen’s
University Belfast
MICHAEL HOR, Professor, Faculty of Law, National University of Singapore
HIKMAHANTO JUWANA, Dean and Professor of Law, University of Indonesia
C. L. LIM, Associate Professor, Faculty of Law, National University of
Singapore
JORG MONAR, Professor of Contemporary Studies and Jean Monnet Professor,
¨
Sussex European Institute, University of Sussex
PHILLIPSON,Senior Lecturer in Law, Human Rights Centre,
GAVIN
Department of Law, University of Durham
ix
LIST OF CONTRIBUTORS
x

C.H. POWELL, Senior Lecturer, Faculty of Law, University of Cape Town
VICTOR V. RAMRAJ, Associate Professor, Faculty of Law, National University
of Singapore
KENT ROACH, Professor of Law, University of Toronto
H. HARRY L. ROQUE, JR., Assistant Professor, University of the Philippines
College of Law
ALAN KHEE-JIN TAN, Associate Professor, Faculty of Law, National University
of Singapore
TAN HSIEN LI, Ph .D . Candidate, Faculty of Law, National University of
Singapore and Associate Researcher, Singapore Institute of International
Affairs
SIMON S. C. TAY,Associate Professor, Faculty of Law, National University of
Singapore and Chairman of the Singapore Institute of International Affairs
V. VIJAYAKUMAR, Professor of Law, National Law School of India University
LYNN WELCHMAN, Senior Lecturer in Islamic and Middle Eastern Law,
Department of Law, SOAS, University of London
Anthony Mason Professor and Director, Gilbert Ăľ Tobin
GEORGE WILLIAMS,
Centre of Public Law, Faculty of Law, University of New South Wales
MARY W. S. WONG, Professor of Law, Franklin Pierce Law Centre, formerly
Associate Professor of Law, Singapore Management University
SIMON N. M. YOUNG, Assistant Professor, Faculty of Law, University of
Hong Kong
ACKNOWLEDGEMENTS




We owe an enormous debt of gratitude to R. Rueban Balasubramaniam,
Sandra A. Booysen, Meyghan McCrea, Ng Pei Suin, Paul Tan, Paul Seah,
and especially to Tecla Mapota, Abhinav Bhatt and Elizabeth Chua for their
hard work on and dedication to this project. We are grateful to the Faculties
of Law at the National University of Singapore and University of Toronto and
their respective Deans, Tan Cheng Han and Ronald J. Daniels, for funding that
allowed the editors to work together over a number of years in preparing this
volume and this introduction. We are also extremely grateful to the National
University of Singapore for providing the generous grant which made this
book and the symposium that inspired it possible.




xi
1

Introduction
VICTOR V. RAMRAJ, MICHAEL HOR AND KENT ROACH




I. Global anti-terrorism law and policy
The terrorist attacks of 11 September 2001 and subsequent attacks in many
other parts of the world have resulted in an increased emphasis at the
international, regional and national levels on anti-terrorism efforts. All indi-
cations are that the prevention of terrorism will be one of the major tasks
of domestic governments and regional and international organizations for
some time. Anti-terrorism law and policy has become a matter of global
concern.
It is important that academics bring their critical and comparative insights
to the global development of anti-terrorism law and policy. This will be a
challenging task because anti-terrorism law crosses boundaries between
states and between domestic, regional and international law. It also crosses
traditional disciplinary boundaries between administrative, constitutional,
criminal, immigration, military law and the law of war. In addition, insights
from a broad range of disciplines including history, international affairs,
military studies, philosophy, religion and politics will assist in understanding
the development of anti-terrorism law and policy.
This book is designed to contribute to the growing field of comparative
and international studies of anti-terrorism law and policy. The chapters in
this book are revised versions of papers presented at a major international
research symposium in Singapore in June 2004 that brought together leading
legal academics from around the world to examine and compare anti-terrorism
laws and policies in many of the major jurisdictions.
A particular feature of this book is the combination of chapters that focus
on a particular country or region and overarching thematic chapters that take
an overtly comparative approach by examining particular aspects of anti-
terrorism law and policy.
Part One adopts various theoretical perspectives on anti-terrorism law and
policy. The chapters in this Part examine distinctions between illegitimate
terrorism and legitimate anti-terrorism, the definition of terrorism, and the
role of risk perception and of legality in anti-terrorism efforts.
1
GLOBAL ANTI-TERRORISM LAW AND POLICY
2

Part Two engages in a comparative study of anti-terrorism measures
including the criminal law, laws against the financing of terrorism, immigra-
tion and asylum laws, laws involving technology and the regulation of avia-
tion and maritime security.
Part Three discusses anti-terrorism law and policy in the strategically
important and theoretical complex region of Asia. Various papers examine
the evolution of anti-terrorism law and policy in Malaysia and Singapore,
Indonesia, the Philippines, Japan, India and Hong Kong.
Part Four looks at the often neglected role of regional organizations in
inspiring and coordinating anti-terrorism efforts. The organizations exam-
ined are ASEAN and the European Union.
Part Five examines anti-terrorism law and policy in the West with chapters
on the United Kingdom, the United States and Canada. A final chapter
examines both Australia and New Zealand. These last two jurisdictions could
have been included in the Asian group, but seem to fit more naturally with the
other western nations.
Finally, Part Six attempts to complete the world tour with chapters on the
important regions of Africa, the Middle East and Latin America. No doubt
other countries should have been included but there are limits to what is
already a large volume. We have attempted to be as comprehensive and
inclusive as we could given limits on time and space, but we are well aware
that we are only starting to scratch the surface. Many other thematic topics,
jurisdictions and disciplinary perspectives could usefully have been added to
this collection. We see this as a preliminary point of departure for a genera-
tion of scholarship and debate about anti-terrorism law and policy.

II. Defining terrorism
Terrorism is an emotionally charged, morally laden and political contentious
concept, which has nevertheless emerged as a critical and unavoidable feature
of the legal landscape both internationally and domestically. As with any
attempt to articulate the meaning of a contentious term, the mention of
‘terrorism’ evokes a range of images. Yet the emergence of terrorism as a
crucial legal and political concept has forced the issue, challenging us to
articulate a definition that in most cases has profound implications for the
way in which individuals, businesses, communities, states, and regional and
international organizations conduct their affairs.
The first step in defining terrorism consists in distinguishing terrorism
from what it is not. Whatever terrorism is in its contemporary legal use, it is
conceptually distinct from: (a) legitimate state responses or counter-terrorism,
(b) national liberation struggles, and (c) ordinary criminal offences. And yet,
on each of these counts, the attempt to define terrorism is fraught with diffi-
culties. One important problem is that terrorism and counter-terrorism are
INTRODUCTION 3

indistinguishable in as much as they involve violence and fear, seek a broader
audience, are purposive and instrumental, and affect non-combatants (see
Chapter 2). Thus, to distinguish legitimate state responses from terrorist attacks
is more difficult than it might first appear, and might well involve a closer look at
what states do and choose not do – at the range of responses available to states
and the ways in which they refrain from acting in the face of an act of political
violence.
The uncertain distinction between terrorism and counter-terrorism has
serious implications for the definition of terrorism under international law.
While there is some agreement in international law in defining terrorism for
specific purposes (such as stopping the flow of funds to terrorism groups –
see Chapter 9), the attempt to formulate a comprehensive definition of
terrorism is stymied by long-standing concerns over the legitimate use of
political violence by national liberation movements.1 Given the political
difficulties involved in finding a comprehensive international definition
(see Chapter 3), terrorism is defined at the domestic level with varying
degrees of success.
But at the domestic level, the definition of terrorism is plagued by another
concern. Once the ordinary criminal law is seen as inadequate for dealing
with the perceived threat of terrorism, the tendency of legislators has been to
create new super-criminal offences under the banner of terrorism. But this
means that the new terrorist offences have to be distinguished from ordinary
crimes and the way in which this is done often invites controversy. For
example, the United Kingdom’s influential Terrorism Act 2000 defines ter-
rorism as requiring proof of religious or political motives. The political or
religious motive approach has been followed with some variations in other
jurisdictions including Australia (Chapter 24), Canada (Chapter 23), Hong
Kong (Chapter 18) and New Zealand (Chapter 24), but has been resisted in
others including the United States (Chapter 22), Indonesia (Chapter 14), and
many countries in the Middle East (Chapter 26), which define terrorism
primarily by reference to the nature of the harm caused.

III. The interplay between international, regional
and domestic law and structures
One of the challenges of the study of global anti-terrorism law and policy is
the important interplay between international, regional and domestic sources
of law. There have been a number of important conventions on specific forms
of terrorism at the international and regional levels, but, as discussed above, a

1
This has important implications in the Philippines, for instance, where the government is
involved in armed conflict with two groups which claim to be exercising the right to self-
determination: see Chapter 15.
GLOBAL ANTI-TERRORISM LAW AND POLICY
4

universal definition of terrorism has so far proved impossible to achieve. On
28 September 2001 the United Nations Security Council issued Resolution
1373 calling on all member states to criminalize terrorists acts and financing,
planning, preparation and support for terrorism. This resolution, however,
did not define what was terrorism, leaving that crucial, difficult and some
might argue impossible task to each national state.
Security Council Resolution 1373 was unprecedented in part because it set
forth in detail an anti-terrorism agenda for all member states and because it
was issued under the mandatory provisions of Chapter VII of the United
Nations Charter and as such bound all member states. It also created a new
Counter-Terrorism Committee of the United Nations and called on all states
to report to this new Committee no later than ninety days after the resolution
was issued. In many countries this facilitated a rush to legislate new anti-
terrorism laws, including the United Kingdom which already had tough anti-
terrorism laws on the books (see Chapter 21). The country reports to the new
Counter-Terrorism Committee provide a unique source of information
about how nations are responding to terrorism.2 At the same time, however,
the resolution can be criticized for its relative inattention to international
human rights norms and standards.3 Indeed, it is not clear how this process
relates to other rights-based activities at the United Nations. At both the
international and domestic level, it can be argued that the imperative of
security has, temporally at least, assumed a greater importance than respect
for human rights.
The dominant role of the most powerful countries and of the executive in
formulating Security Council Resolution 1373 has interesting parallels to the
dominant role that the executive has played with respect to security issues at
the domestic level (see Chapter 25). One of the starkest examples of executive
domination has been the executive compilation of lists of terrorists and
terrorist organizations, both domestically and internationally. In some
cases, these lists can be subject to judicial review at the domestic level, but
in all cases they provide an alternative to the traditional principles of the
presumption of innocence and the adjudication of guilt for a specific offence
in court.
Although the United Nations has played a very important role in
encouraging and shaping anti-terrorism laws throughout the world, the


2
See the Counter-Terrorism Committee’s website at www.un.org/Docs/sc/committees/
1373/reports.html.
3
The only reference in the original resolution to human rights standards is found in
paragraph 3(f) that calls on states to ‘take appropriate measures in conformity with the
relevant provisions of national and international law, including international standards of
human rights, before granting refugee status, for the purpose of ensuring that the asylum-
seeker has not planned, facilitated or participated in the commission of terrorist acts’.
INTRODUCTION 5

role of regional organizations and regional instruments should not be
ignored. This collection includes a chapter on the important role that the
European Union has played in coordinating and structuring anti-terrorism
efforts in members states (see Chapter 20) and the less robust role played by
ASEAN (see Chapter 19). The role of regional instruments such as the Arab
Convention on the Suppression of Terrorism should also not be ignored (see
Chapter 26). Regional bodies and instruments can be an important mediating
force between the international and the domestic. In the future, students of
comparative anti-terrorism law and policy will have to be attentive to the
complex interplay between international, regional and domestic laws and
structures.

IV. Fairness, emergencies and the rule of law
State concerns about international terrorism have given rise to important
questions of practice and principle concerning the emergence in many coun-
tries of a new broad anti-terrorism regime or the revitalization in other
countries of older anti-terrorism measures. In Singapore and Malaysia few
amendments to the anti-terrorism regime were needed in light of pre-existing
internal security legislation dating back to the days of the communist insurgency
of the 1950s and 1960s during the British colonial period (see Chapter 13). Steps
have been taken under these existing laws to detain without trial suspected
terrorists and, some might say, several non-terrorist suspects as well. In neigh-
bouring Indonesia, the newly emerging democracy in the world’s most populous
Muslim nation, concern about the abrogation of human rights and a return to a
not-yet-distant era of authoritarian rule, has so far resisted the imposition of
harsh new security laws. The courts have been strict about state incursions into
human rights, such as the retroactive application of anti-terrorism laws, includ-
ing the death penalty (see Chapter 14).
In other countries mostly in the developed West, especially the United
Kingdom (see Chapter 21) and the United States (see Chapter 22), govern-
ments have been quick to construct a complex anti-terrorism regime,
amending the existing regimes of, for example, criminal law and procedure,
immigration law, administrative law, aviation and maritime law, and financial
law, in response to the perceived new threat of international terrorism.
A particularly striking feature of anti-terrorism efforts in many of these regimes
is how, despite the many amendments to the formal criminal law, governments
have instead relied on alternatives to the criminal law, and in particular
immigration law, which often has lower standards of proof than the criminal
law. This raises important questions concerning fairness towards non-citizens
including refugees seeking asylum (see Chapter 8). Indeed, claims of political
and other forms of persecution made by immigrants and especially asylum
seekers who in turn may be suspected as terrorists take us back full circle
GLOBAL ANTI-TERRORISM LAW AND POLICY
6

to the difficult process of defining what constitutes terrorism, particularly in
societies in conflict and failed states.
The breadth of many anti-terrorism regimes and the vigour with which
they are being enforced give rise to fundamental normative questions about
the constitutional order and their implications for the role of the legislative,
executive and judicial branches of government. We might question whether
fundamental changes to the legal order are needed or justified in the first
place. One of the important theoretical questions arising from the changing
legal landscape is the extent to which the rule of law can and should be
preserved. This volume features an important debate on this issue between
Oren Gross and David Dyzenhaus. Building on his extra-legal measures
model,4 and the work of Dicey, Gross argues that Acts of Indemnity issued
by the legislature after state officials have responded in an illegal fashion to an
emergency such as terrorism can preserve legality by authorizing and con-
straining such illegal actions (see Chapter 5). Dyzenhaus, also drawing on
Dicey, argues in favour of keeping state actions within the bounds of legality
without ex post authorization of illegal acts. Drawing on common law prin-
ciples of administrative law, Dyzenhaus proposes a ‘Legality model’ accord-
ing to which, in times of emergency, governments adapt to the new
circumstances by creating imaginative institutions with the necessary expert-
ise to review national security decisions. While these institutions might not
conform strictly to a formal conception of the separation of powers, the right
sort of institution would be able to preserve legality while remaining sensitive
to the special circumstances of terrorism that affect national security.
Whether and to what extent the judiciary should play a role in imposing
normative constraints on the executive and legislative branches in times of
crisis is an important issue. The literature on the psychology of risk percep-
tion suggests that public perception of risk may well be distorted after high-
profile disasters, with such public fear having an influence on the formulation
of anti-terrorism policy in the legislature and the executive branches of
government. Either the judiciary or a specialized, independent administrative
tribunal may well have a role to play in compelling the other branches of
government to justify normatively and publicly any restrictive measure they
seek to impose in the name of risk-prevention (see Chapter 6). But whether
the courts are ready in practice to use their powers to constrain executive
power is, however, another matter. This is so not only in Singapore and
Malaysia, where judges might perceive a price to pay for asserting themselves
‘against a determined government, especially if the spectre of legislative and
constitutional amendment is not very far off ’ (see Chapter 13), but equally in
the United States and the United Kingdom. Even after the United States

4
‘Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?’ (2003)
112 Yale Law Journal 1011.
INTRODUCTION 7

Supreme Court’s decisions in Hamdi v. Rumsfeld5 and Rasul v. Bush,6 which
insisted on judicial review of any detention of enemy combatants, it is ‘as
likely as not that the limited judicial role required by the Rasul and Hamdi
decisions will be played out . . . with little if any inconvenience to the govern-
ment’ (see Chapter 22). Similarly, while in the United Kingdom the courts
‘have managed to achieve some amelioration of the scheme through the
Human Rights Act . . . the prospects for any general curtailment of the
draconian legislative scheme . . . seem remote indeed’ (see Chapter 21).
As with other emergencies, the prospect of terrorist attacks forces us to take a
closer look at our assumptions about fundamental values, legality and the role of
the branches of government in a crisis. We are forced to consider to what extent
we are prepared to subject anti-terrorism measures to judicially imposed norm-
ative side-constraints on state power, even if by doing so we reduce the
effectiveness of our anti-terrorism policies. To answer this question, we need
to consider whether the anti-terrorism agenda is effective in the first place.

V. How effective is the anti-terrorism agenda?
Those who study global anti-terrorism law and policy should be concerned
not only with normative questions of fairness, but also more empirical
questions concerning the effectiveness of anti-terrorism policy. Indeed, norm-
ative and positive analysis may complement each other should it prove to
be the case that some of the most problematic anti-terrorism strategies – such
as the use of torture and other extra-judicial means or the use of crude
stereotypes or profiles based on race, religion or national origins – may be
ineffective in stopping terrorism. Indeed, the hypothesis that violent over-
reaction to terrorism may spawn more terrorism should be closely examined.
Security Resolution 1373 placed much emphasis on laws against the
financing of terrorism, and international, regional and domestic jurisdictions
have devoted much effort to compiling lists of terrorists who cannot be
financially supported and to broad laws against the financing of terrorism
(see Chapter 9). The effectiveness of these interventions, however, remains an
open question. The American 9/11 commission for example found that the
costs of the attacks were less than half a million US dollars and expressed
considerable scepticism about the ability to stop terrorists by stopping their
financing.7
This book includes chapters outlining steps that have been taken at various
levels since 9/11 to improve aviation (Chapter 12) and maritime (Chapter 11)
security. The strategies to protect aircraft and ports often rely on

5
124 S Ct 2633 (2004). 6 124 S Ct 2686 (2004).
7
National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission
Report (New York: Norton, 2004) at 12.3.
GLOBAL ANTI-TERRORISM LAW AND POLICY
8

administrative and licensing measures that are softer or less coercive than the
use of criminal or immigration law or military force. Technology can play an
important role in anti-terrorism law and policy by, for example, increasing
the ability to screen material on aircraft and ships for hazardous substances.
At the same time, the use of technology to facilitate surveillance presents
serious risks to privacy (see Chapter 10).
After initially stressing the use of criminal or immigration law as the prime
instruments to be used against terrorism, Canada released a new national
security policy in 2004 that takes an all-risk approach that seeks to address
not only the threats of terrorism including bio-terrorism and terrorism
directed at critical infrastructures, but also diseases such as SARS and the
disruptions of essential services by man-made or natural disasters (see
Chapter 23). Even the American 9/11 Commission has recommended a softer
‘hearts and minds’ strategy and a strategy to prevent failed states as part of its
anti-terrorism recommendations.8 Two chapters in this book (Chapters 2
and 7) raise the issue of what would constitute a comprehensive approach to
terrorism and security issues as an alternative to the use of coercive force. It
remains to be seen whether a comprehensive all-risk approach to human
security will result in a more rational allocation of resources and restrain
some of the excesses and failures that may be associated with interventions
that place all of their energies on detecting and detaining suspected terrorists.

VI. Convergence, divergence and context in anti-terrorism
law and policy
It is understandable that the many lawyers that have contributed to this
volume should focus on the analysis of law and legal institutions. That should
not, however, be allowed to tempt us to underestimate the often decisive
political and historical forces that are at play. At the level of regional
cooperation in anti-terrorism initiatives, there is a striking contrast between
the highly advanced discourse in Europe over the details of regional law and
institutions devoted to the enterprise (see Chapter 20), and the growing
accumulation of non-binding declarations of intent in Southeast Asia (see
Chapter 19). In anti-terrorism as in other areas, historical reasons appear to
explain the degree to which the nations of Europe trust each other, and the
manner in which the nations of Southeast Asia jealously guard their national
sovereignty.9


8
The 9/11 Commission at 12.3 or pp. 361–98.
9
Simplistically, European unity was forged in the fires of (at least) two catastrophic wars,
while Southeast Asia bears the legacy of being colonized by different colonial powers, with
the result that nations in the region have historically very little to do with each other.
INTRODUCTION 9

Exclusive attention to legal and institutional design in anti-terrorism
efforts will also fail to capture the fascinating, but troubling experience of
countries like Argentina (see Chapter 27) and the Philippines (see Chapter 15)
where the complicity of governmental elements in acts of terrorism reveal far
more basic problems, such as the establishment of a sufficiently orderly and
corruption-free government. Here it will be more fruitful to talk about how ‘rule
by law’ may be installed, rather than how the ‘rule of law’ might constrain
governmental excesses in the fight against terrorism.
The widely perceived ‘anti-Islamic’ flavour of anti-terrorism efforts since
9/11 is a serious problem anywhere, but nowhere does it influence public
affairs more strongly than it does in Muslim or Muslim majority jurisdic-
tions. In Indonesia (see Chapter 14) and the Middle East (see Chapter 26)
there is a popular sentiment that many governments are being pressured by
the United States to enact anti-Islamic legislation in the name of anti-terrorism.
The results can be both surprising and alarming. Some governments at times
appear to ‘allow’ real terrorists to escape the full force of the law, while at other
times they use anti-terrorism legislation against mere political opponents, labelled
‘extremist’ for this purpose. Anti-terrorism law and policy may frequently be
shaped at international and regional levels, but it also often has particular
domestic uses that can only be fully understood by those familiar with local
context and history.
This volume can only scratch the surface of what is really going on with
anti-terrorism law and policy around the globe. In the Philippines, where the
lack of institutional capacity to deal with terrorism is the most prominent
issue, the alternative of importing US troops to do the work has sparked off
an intense political controversy stemming from the historical experience of
the Philippines being a US colony, and of the subsequent location of major
US military bases there (see Chapter 15). Calls for Japan to be more pro-
active in the ‘war against terrorism’ is snagged by the nation’s professed total
and perpetual renunciation of military solutions in international relations, a
legacy of Japan’s aggression and subsequent defeat in the Second World War
(see Chapter 16). For better or for worse, attempts in Hong Kong to enact
security legislation foundered, perhaps more out of a desire not to be dictated to
by China, than because of human rights concerns (see Chapter 18). In many
countries such as India and Pakistan, post-September 11 developments in anti-
terrorism policy can only be fully understood in the context of past historical
concerns and current geo-political realities (see Chapter 17).
In talking about regional and national peculiarities, care ought to be taken
not to go to the other extreme of dismissing the common challenges and
similarities in anti-terrorism law and policies throughout the world. Indeed,
the indefinite detention of suspected terrorists under immigration laws and
military orders in countries such as the United Kingdom, the United States
and Canada calls into question any thesis that suggests that western responses
GLOBAL ANTI-TERRORISM LAW AND POLICY
10

to terrorism will necessarily reflect a more individualistic and libertarian
culture than those found in the east and the south. This volume will have
served its purpose if it gives some insight into the extent to which nations can
usefully learn from each other, or simply talk to each other, about the
problem of terrorism, a phenomenon which, however it may be defined, is
common to all.10


10
The chapters in this book were last revised between September and November 2004 and
thus do not reflect changes in the law after that period. However, some of the important
recent developments through June 2005 that bear directly on the chapters in this book are
discussed in the Postscript (Chapter 28).
PART ONE

Theoretical Perspectives on Anti-Terrorism
Law and Policy
2

Terrorism and the counter-terrorist discourse
LAURA K. DONOHUE




I. Introduction
Nearly every essay on the subject of terrorism makes an apologetic nod to
the difficulties of defining the term. Despite frequent mentions of ‘state
terrorism’ as a form of many types of terrorisms, relatively few works then
go on to discuss state terror, and those that do treat it as independent of non-
state terror, state-sponsored terror or counter-terrorist policy. This chapter
in some sense is little different, in that it too addresses definitional considera-
tions. It departs from other works, however, in important ways. It adopts a
Weberian mode of definition: that is, the elements discussed that constitute
what is meant by ‘counter-terrorism’ or ‘terrorism’ are included not because
I claim to have reached any great truth or resolved a discussion that is
centuries old, but rather because I am writing about liberal, democratic states’
response to what they perceive to be terrorist challenge. Thus, while I take
Annamarie Oliverio’s point well, that to have amassed a number of defini-
tions and isolated common elements – as though truth were dependent on a
majoritarian decision – distorts academic inquiry, I nevertheless find it help-
ful to describe the rules by which certain types of challenge become categor-
ized. My contention is that once a challenge to a liberal, democratic state has
been labelled as ‘terrorist’, certain responses follow. My purpose is to point
out the associated risks. And my aim is to present a model of counter-
terrorism that avoids the pitfalls of liberal states’ past responses.
This chapter also departs from others in its evaluation of state counter-
measures. It suggests that counter-terrorism, terrorism and state terrorism
are not necessarily distinct phenomena. There is a relationship between them,
often within the same state, and frequently within liberal, democratic
regimes. Some scholars argue that state measures may be ineffectual or
counter-productive.1 But the list of individuals writing in the counter-
terrorist field who suggest that liberal, democratic states’ counter-terrorist

Special thanks to the Carnegie Corporation of New York for providing support for the
research conducted in this chapter.
1
See, e.g., Nadine Gurr and Benjamin Cole, The New Face of Terrorism: Threats from
Weapons of Mass Destruction (New York, I. B. Tauris, 2000), at 232.

13
LAURA K. DONOHUE
14

policies cross into state terrorism, or are anything but a response to a non-
state, or state-sponsored challenge, are few.
This trend sits uneasily with the evidence: the United Kingdom, United
States, Israel and Turkey, all liberal democracies, have been called on to
defend their use of torture and ‘inhuman and degrading’ treatment.
Controversial ‘shoot to kill’ policies and the disappearance of those labelled
enemies of the state mark both the late twentieth and early twenty-first
century treatment of terrorist challenge. Israel, the United Kingdom,
Turkey, the United States and the Republic of Ireland have conducted sudden
wide sweeps in which individuals have been held, incommunicado and
indefinitely, with little information on their whereabouts made available.
And Israel, the United States and Turkey have all openly used assassination
and military measures leading to the death of thousands of unarmed civilians
as a means of addressing terrorist challenge.
This is not to say that all counter-terrorist actions undertaken by these
states amount to state terrorism. But rather than examining counter-terrorism
separately from the phenomenon of terrorism, or including state terrorism in a
broad definition or understanding of the term and then moving to case studies
wherein ‘terrorism from above’ or ‘terrorism from below’ become manifest, I
leave the door open to looking at state responses as themselves linked to the
evolution of a terrorist discourse.2
One consequence in looking at links between state measures and chal-
lenges to the state is to distribute responsibility for the challenge itself. This
conflicts with the aim of those in authoritative positions, whose ability to
uphold their obligation to the citizenry has just been called into question.
Because of this, and because such political violence is such an anathema to the
principles of a liberal, democratic state, counter-terrorism is narrowly
regarded as the state’s response to a specific act or series of actions levied
against it. Egregious state measures are then excused on the basis that their
end is justified, that they apply only to the guilty, that they are present only for
a temporary amount of time, or that the state faces extraordinary danger and
is simply defending itself. The first three claims fail. The fourth, although
frequently invoked as a consequence of the possible threat faced, is accurate
in only an extremely select number of cases. Even then, it is not a blanket
excuse for the adoption of extreme measures. Rather, it gives rise to an
important debate regarding absolute and inalienable rights in the context of
a liberal, democratic state. Together and singly, these four claims do not
negate the actual circumstances surrounding counter-terrorist provisions:
many aggressive as well as seemingly benign provisions contribute to grie-
vances which become manifest in this type of violence and, more

2
For a distinction between terrorism from above and terrorism from below, see Walter
Laqueur, Terrorism (Boston, Little, Brown and Company, 1977), ch. 1.
TERRORISM AND COUNTER-TERRORIST DISCOURSE 15

importantly, for support for this type of violence. ‘Counter-terrorist’ actions
may thus end up forming the basis for a response to what others perceive as a
‘terrorist’ act.3
Beyond spurring a violent response, state counter-terrorist measures, both
in form and function, serve alternatively to undermine and reinforce state
political legitimacy. State measures thus answer the challenge posed by non-
state violence: whether the protections afforded to the individual within the
liberal, democratic state will be upheld. On the one hand, this entails the right
to life and property, which places a correlative duty on the government to
ensure that these rights are not violated. In a liberal, democratic state it is on
the basis of the protection of life and property that individuals leave a state
of nature and enter into a social compact. On the other hand, this entails
the protection of basic freedoms.
With these considerations in mind, what exactly is meant, in the United
States, the United Kingdom, and elsewhere, by the term ‘terrorism’? In the
following discussion I argue first that counter-terrorism often shares many of
the same qualities as terrorist acts themselves. This becomes particularly true
as the state adopts a national security approach. In this way counter-
terrorism can be understood not as a distinct phenomenon, but as a mirror
image with many of the same consequences and implications demonstrated
by acts of terror. Counter-terrorism and terrorism also share the same array
of targets. And both are emotive, blatantly infused with moral meaning, and
carry heavy religious overtones. This chapter addresses the issue of moral
equivalence raised by this analysis. It concludes by challenging an assumption
that undergirds the counter-terrorism world: that counter-terrorism is what
states do. In contrast, the chapter asserts that of equal, and perhaps greater
importance, is what states neglect – or choose not to do.


II. Defining the terms
Disagreement dogs the best efforts to come to a common definition of
‘terrorism’. The Western inter-disciplinary debate in academia privileges
the orientation of each field, with legal definitions focused on the criminal


3
For instance, in 1988 the US military shot down an Iranian civilian aircraft over the Persian
gulf. Although the United States claimed it was an unintended attack, the loss of 290
civilians led to international charges of terrorism against the United States. More recently,
in December 2001 and January 2002, Gallup conducted a survey of 10,000 people in several
Islamic countries including Jordan, Kuwait, Lebanon, Morocco, Saudi Arabia, Iran,
Pakistan, Indonesia and Turkey. 66 per cent of those polled suggested that the 9/11 attacks
lacked legitimacy. But a larger majority, 76 per cent, suggested the US military response to
the attacks was unjustifiable. William Schneider, ‘Reciprocal Hostility’, National Journal,
9 March 2002.
LAURA K. DONOHUE
16

nature of the acts, political constructs focused on governmental concerns
such as the military or political aspects, and psychological definitions
emphasizing motivation and the impact of the acts. These debates share
some common elements, but few sufficiently address the deeply subjective
nature of labelling an act ‘terrorist’. The locus of this subjectivity is the
designation of the injured party as innocent and violence as unjust. In the
absence of a common, identical understanding of ethics, history and politics,
however, no normative solution is possible. I return to this point in a
moment. For now, a brief discussion of the term in its historical setting will
demonstrate its highly manipulable qualities and lay the groundwork for
a broad understanding of elements common to many interpretations of acts
of terror.

A. Placement of terrorism in history
The word ‘terrorism’ derives from the Latin terrere, ‘to frighten, to terrify; to
scare away; to deter’. Its ancient root mirrors its antediluvian use as a means
to obtain – and to maintain – power. The building of Ancient Egypt, Greece,
and Rome depended upon it. From the Archaic to the Ptolemaic age, political
upheaval and ruthless state action punctuated Egyptian history. In Anabasis,
Xenophon recognized how psychological warfare could be used to great
effect. And the Julio-Claudian dynasty – Tiberius, Caligula, Claudius, and
Nero – employed terrorist techniques to subdue the population and counter
political opposition.
Not only did states wield terror, but small bands used terrorism to pursue
political and religious goals. The Sicarii of the first century, for example,
sought to drive the Romans out of Palestine. They took over the fortress at
Masada and attacked nearby villages, killing thousands of unarmed men,
women and children. Many of the words we use to describe violence derive
from such entities: the Zealots targeted Romans; the Assassins fought the
Ottoman Seljuq Empire; and the Thugs assassinated travelers to pay homage
to the Hindu goddess, Kali.
Despite the similarity of the ruthless actions of ancient emperors to those
of later despots, and the Zealots, Assassins, and Thugs to neoteric non-state
actors, the term ‘terrorist’ was not used until relatively recently to describe
political violence. In the eighteenth century the term entered into common
parlance – notably, in relation to the state, or what has come to be termed,
‘terrorism from above’. Maximilien Robespierre’s Jacobin party imposed its
Reign of Terror, in which mass executions and extensive use of the guillotine
paralyzed the population.
France was not alone in using terror to subdue the people. The Spanish
Inquisition punished heresy with torture and death. England, Germany,
Portugal and Italy at times depended on fear to secure their colonies. The
TERRORISM AND COUNTER-TERRORIST DISCOURSE 17

United States at its founding initiated a campaign that drove the number of
Native Americans from between six and ten million in 1776 to less than
250,000 by 1900.4 In the early- to mid-twentieth century totalitarian states,
such as the Soviet Union under Stalin and Hitler’s Germany, persecuted and
killed civilians for political ends.
As previously alluded, academics frequently distinguish between terrorism
from above and terrorism from below. In the nineteenth century, the Klu
Klux Klan engaged in a widespread system of intimidation.5 Attacks by one
sub-state group on another, though, constitute just one type of terror from
below. Non-state actors also attack states or leaders of states. In the early
twentieth century a wave of anarchism swept the globe, with murders of
prominent political leaders in the United States, Europe and Russia.
Nationalist rebel groups such as the Irish Republican Brotherhood, precur-
sors to the Irish Republican Army in Northern Ireland, religious groups, such
as the Islamic al-Jihad in Egypt, and ideologically motivated organizations
such as Sendero Luminoso in Peru provide further examples of terror from
below. These groups contested those in control of state power.
Upon examination, however, the distinction between terror from above
and terror from below quickly blurs. Decolonization and the advent of the
Cold War led to an explosion in nationalist and ideologically-based terror-
ism, often fought through proxy groups by states with enormous power.6
They supplied money, training, and weapons to rebel groups. In Nicaragua
the United States supported the Contras against the Soviet-backed
Sandanista regime. The Contras murdered, raped, mutilated, and kidnapped
innocent civilians. In the 1960s the Central Intelligence Agency trained
Cuban exiles to overthrow of Fidel Castro. In Mozambique, the US funded
ˆ
Resistencia Nacional Mocambicana (RENAMO) against the Soviet-backed
¸
¸ˆ
Frente de Libertacao de Mocambique (FRELIMO). In Rhodesia the Soviets
¸
subsidized the Zimbabwe African Peoples’ Union (ZAPU) in opposition to
Chinese support for the Zimbabwe African National Union (ZANU). More
recently, the United States allied itself with the Northern Alliance in
Afghanistan, a group responsible for the rape and murder of civilians and
the death after capture of hundreds, perhaps thousands, of Taliban fighters.


4
Miki Vohryzek-Bolden, Gayle Olson-Raymer, Jeffrey O. Whamond, Domestic Terrorism
and Incident Management: Issues and Tactics (Springfield, Charles C. Thomas, 2001),
40–3.
5
See ‘History’ at http://www.britannica.com/original?content_idÂĽ1447&pager.offsetÂĽ2 for
mention of the Klu Klux Klan and some of the other examples noted in the previous
paragraphs.
6
The following examples draw from the discussion in Noam Chomsky, ‘International
Terrorism: Image and Reality’ in Alexander George, ed., Western State Terrorism (New York,
Routledge, 1991), 12–38.
LAURA K. DONOHUE
18

The lines are equally blurred when we consider the many ‘governments in
exile’ that mark the twentieth century.

B. Problems with existing definitions
Some might disagree with the examples I have given of terrorism. It is one
feature of the term that gray area marks not just the edges, but the very centre
of what is considered a terrorist act. Despite numerous attempts largely
spearheaded by Western liberal, democratic countries, to gain international
agreement on the definition of terrorism, significantly different views exist.
For instance, at the International Conference on Terrorism called by the
Organization of the Islamic Conference in Geneva in June 1987, Ayatullah
Shaykh Muhammad ‘Ali Taskhiri, provided the following definition:
‘Terrorism is an act carried out to achieve an inhuman and corrupt [mufsid]
objective, and involving threat to security of any kind, and violation of rights
acknowledged by religion and mankind.’7 Taskhiri accused the United States
of being the ‘mother of international terrorism’. He writes:
It is indeed comical that the United States of America, which is the mother
of international terrorism, and the author of all the circumstances of
oppression and subjection of peoples, by strengthening dictatorial regimes
and supporting occupation of territories and savage attacks on civilian
areas, etc. should seek to convene symposia on combating ‘terrorism’,
i.e. any act that conflicts with its imperialist interests . . . The real cure
of terrorism – acts of individual terrorism in particular – consists, in our
view, in removing the conditions that have brought it about.8

Taskhiri’s definition includes air and sea piracy, colonialist operations,
dictatorial acts against people, and all military methods contrary to human
practice (such as the use of chemical weapons, the shelling of civilian popu-
lated areas, the destruction of homes and the displacement of civilians).
It considers all actions that undermine the international or any one national
economy, adversely impact the poor and deprived, and impose debt on
countries unable to burden them, to be terrorist. His definition covers any
act that crushes the attempts of individuals to accomplish self-determination,
and any imposition of ‘disgraceful pacts’. It includes all types of pollution
of geographical, cultural and informational environments. He writes,
‘Indeed, intellectual terrorism may be one of the most dangerous types of
terrorism.’


7
Ayatullah Shaykh Muhammad ‘Ali Taskhiri, ‘Towards a definition of terrorism’, Al-Tawhid,
Vol. V No. 1 (Muharram 1408 AH/1987 CE), available at http://www.al-islam.org/
al-tawhid/definition-terrorism.htm.
8
Ibid.
TERRORISM AND COUNTER-TERRORIST DISCOURSE 19

I offer this concept of terrorism to illustrate the breadth of views on
terrorism within the intellectual discourse. Taskhiri’s definition also helps
to explain support generated from socio-economic and political realities for
the reaction to be perceived as violence. And it underscores the diverse
manner in which terrorist actions become thus designated. In this chapter,
however, I limit my understanding of what constitutes ‘terrorism’ more
narrowly to the observed phenomena within five regions: the United States,
United Kingdom, Ireland, Israel and Turkey. Within these geographically
defined areas, numerous attempts have been made to define what is meant by
terrorism. Many government and academic definitions share elements of, yet
substantially differ from, Taskhiri’s definition. And, like Taskhiri’s defini-
tion, these contain faults. Where simplistic definitions have fallen short, more
complex (but not necessarily more robust) have sought to take their place.
These too, however, are fraught with difficulty.9
States, for instance, define terrorism in a manner that reflects the
power bias. Since Edmund Burke’s scathing condemnation of the French
Revolution, the dominant interpretation of terror and terrorism has been
violence thrust on society by radical elements bent on destroying the status
quo: ‘Thousands of those Hell-hounds called Terrorists, whom they had shut
up in Prison on their last Revolution, as the Satellites of Tyranny, are let loose
on the people.’10 A term wielded by individuals with a vested interest in
not just maintaining but expanding state power, the term terrorism, and
countering this terrorism, has thus become embedded in the state domain –
an entity with a vested interest in resisting a radically altered social and
political order.



9
A minimalist definition might read: ‘the use, or threat of use, of violence against non-
combatants in pursuance of a political end’. This definition is close to that the British
Government used from 1974 until 2001. Britain’s Prevention of Terrorism (Temporary
Provisions) Act (PTA), defines terrorism as, ‘the use of violence for political ends’ and ‘any
use of violence for the purpose of putting the public, or any section of the public in fear’.
But this deceptively simple definition quickly falls apart. Some definitions are so broad as
to be almost nonsensical. In 2001 the United Kingdom replaced the Prevention of
Terrorism (Temporary Provisions) Act, with the Terrorism Act. This legislation saw a
new, energized terrorist definition, which became a focal point for discussions in parlia-
ment and in the media. Five subsections elaborate the meaning of the term. ‘Terrorism’
can mean the threat of, as well as the use of, an action listed in the subsections, that occurs
anywhere in the world or impacts anyone, any property, or any government in the world:
see Prevention of Terrorism (Temporary Provisions) Act 1989, c. 4, and Anti-terrorism
Crime and Security Act 2001, c. 24.
10
Letter to the Earl Fitzwilliam, Christmas 1795. First printed by Bishop King, from
Burke’s Manuscript, in vol. V. of the 4th ed. of Burke’s works, 1812. Argument Part I,
Lord Auckland’s Pamphlet criticized, 3.4.72, located online as of 22 August 2002 at
http://www.econlib.org/library/LFBooks/Burke/brkSWv3c4.html.
LAURA K. DONOHUE
20

Even when definitions of terrorism allow for state terrorism, state actions
in this area tend to be seen through the prism of war or national self-defence,
not terror, such as the allied carpet-bombing of civilians in the Second World
War, the United States’ use of the atomic bomb on Hiroshima and Nagasaki,
or the American use of more than seven million tons of bombs on Vietnam,
Cambodia and Laos.11 Even state support of insurgent groups, such as US aid
to the Contras or Soviet training provided to ZAPU, while seen by other states
and non-state actors as state-sponsored terrorism, again escape classification
within those societies as terrorist violence. Individuals in society who try to
draw attention to these as instances of state terrorism are seen as radical. It
somehow flies in the face of convention to call something that a ‘legitimate’
government does, ‘illegitimate.’
Although the state in many ways controls the application of the term, it is
not immediately clear to which organizations, groups, or individuals states will
apply this designation. The term frequently becomes subservient to geopolitical
concerns.12 As Michael Stohl writes, ‘great power use and the threat of the use
of force is normally described as coercive diplomacy and not as a form of
terrorism’ – despite the fact that it often involves ‘the threat and often the use
of violence for what would be described as terroristic purposes were it not great
powers who were pursuing the very same tactic’.13 He notes that even the term
‘great power’ only applies to members of an exclusive club. Yet it is ‘great powers’
that have the resources to engage in widespread terror.14
Because of dependence on geopolitical concerns, the term frequently
carries with it a shifting designation. Yitzhak Shamir led Lehi, the ‘Stern’
gang, as a member of which Ya’akov Eliav arranged for seventy letter bombs
to be sent to all members of the British Cabinet, heads of the Tory opposition
and several military commanders. Irgun and the Stern gang committed
numerous other atrocities. Shamir himself assassinated Jews suspected
of collaborating with Britain. Menachem Begin, also a member of these
avowedly terrorist organizations, went on to become Prime Minister.
Yassar Arafat, the Founder of Fatah Revolutionary Council, in 1967 became
chairperson of the Palestinian Liberation Organization (PLO) Executive

11
Commager, 1985, 77, cited in Oliverio, The State of Terror, at 58.
12
E.g., former Secretary of State George Schultz, in The Challenge to Democracies, writes, ‘It is
not a coincidence that most acts of terrorism occur in areas of importance to the West. More
than 80 per cent of the world’s terrorist attacks in 1983 occurred in West Europe, Latin
America, and the Middle East.’ Schultz’s assertion clearly presents a chicken and egg issue:
these events were deemed terrorist because they mattered to the United States. Steven
Anzovin, ed., Terrorism (New York, H. W. Wilson Company, 1986), 54, 58.
13
Michael Stohl in Alex P. Schmid and Albert J. Jongman, Political Terrorism: A New Guide
to Actors, Authors, Concepts, Data Bases, Theories, and Literature (New York, North-
Holland, 1988).
14
Chomsky, ‘International Terrorism’, 12–38.
TERRORISM AND COUNTER-TERRORIST DISCOURSE 21

Committee. From the beginning he made no secret of his use of violence.15
Yet over fifty governments recognized the PLO during the 1970s and 1980s.16
This shifting designation is not singular to the Middle East. In Northern
Ireland Martin McGuinness, former member of the IRA’s Army Council,
became the Minister for Education. Gerry Adams, previously commander of
the Belfast Brigade, without renouncing violence, became a Member of
Parliament. The United States initially welcomed Fidel Castro, as a response
to what the country perceived as Batista’s dictatorship in Cuba. When Castro
paid a visit to then Vice President Richard Nixon, however, Nixon became
convinced that he was a communist and in 1960 the US began plotting to
reduce Castro’s authority and charisma. After two mafia hit men failed to
assassinate Castro, the United States attempted the ill-fated Bay of Pigs
invasion.
Perhaps in reflection of the revolutionary origins of many states, successful
political violence tends to be interpreted not as terrorist action, but according
to nationalist histories. The leaders of the 1916 Easter Uprising in Dublin
were patriots, leading Revolutionists in the United States became the
‘Founding Fathers’, the Stern gang translated into Lehi, Lohamei Herut
Israel or Fighters for the Freedom of Israel, and Mustafa Kemal became
¨
Ataturk – the Father of the Turks. Their causes were just, their means a last
resort. They were not terrorists, although they, and the states thus created,
then had to face terrorism: Thomas Jefferson battled the Barbary Coast
pirates, the PLO emerged as a force in Israel, and the Kurdistan Workers’
Party (PKK) dominated the south-eastern territory of modern-day Turkey.
It is precisely groups like these that now form the basis for David
Rappoport’s much acclaimed ‘wave theory’ of terrorism. But this, and
other theories which tabulate ‘terrorist’ incidents, or which group together
terrorist movements and seek to compare them over time as marking differ-
ent ages, represent less than half-truths. It brings to mind images of Plato’s
Allegory of the Cave, with chained individuals facing the wall and under-
standing the shadows as though the images were the bodies passing behind
them. Terrorism can be seen in the shadow on the wall: a silhouette of a gun,
discharged into the body of a man who crumples before us. But, beyond
missing the full picture of those engaged in the campaign, the story of how the
gun was delivered into the shooter’s hands, the claim (valid or not) which
gave rise to the shooting, and the nature of the structure to which the shooter


15
See film footage: Arafat addressing UN, 18:50–19:20, 22:34–23:10, Palestine 1890–1990
(Films for the Humanities and Sciences), United Nations.
16
Aharon Yariv, ‘A Strategy to Counter Palestinian Terrorism’, in Merari, ed., On Terrorism
and Combating Terrorism (1985), 1. Evidence continues to come forward in relation to his
involvement in arms running and terrorist operations. See William Saffire, ‘Arafat’s
Implausible Denials’, New York Times, 10 January 2002.
LAURA K. DONOHUE
22

is subject took place away from the mouth of the cave. All of these are
beyond the story as related by the shadows. To look, then, at the wall of the
cave and to try to discern patterns without acknowledging the corporal
bodies behind us, and the more powerful structures and norms away from
the mouth of the cave that influence behaviour, conveys only a small portion
of the truth.



C. Essential qualities of acts of ‘terrorism’ and reflection in acts
of ‘counter-terrorism’
Just because a term is controversial, or subject to geopolitical concerns, does
not mean that the phenomenon itself cannot be subjected to examination.
In the five regions under consideration, seven qualities appear to form
a necessary basis for an act to be considered terrorist.17 What makes these
elements important is that many of them are shared by counter-terrorist
measures – and this is increasingly true as states adopt a national security
approach. Recognizing these constituents contributes to an understanding
of the dynamics that mark the terrorist – and counter-terrorist – dialogue.
First, the most obvious quality is that terrorist acts include violence. While
I recognize the disagreement over this term, I use it here to mean causing
significant physical or psychological harm. Notably, the ‘otherness’ implicit
in the term ‘violence’ reinforces the ‘otherness’ of the application of the term
‘terrorist’. Violence, like terrorism, is what other people do.
Counter-terrorism, too, reflects this otherness and often seeks physical and
psychological harm. This is increasingly true as states adopt a national
security approach, which is then used to justify the adoption of more and
more aggressive provisions. Measures such as assassination, torture, military
campaigns and missile attacks are, at their core, acts of extreme violence. But
states, and state supporters, do not openly discuss them in this manner.


17
My discussion of the definitional elements also draws from Schmid and Jongman. In their
study of over one hundred definitions, the authors found that most include elements of
violence or force and emphasize the political aspects of such acts. Fear and the threat of
more actions, the psychological effect, and victim-target differentiation are also common.
Definitions often reference the purposive nature of the acts, the use of terrorism as a
strategy or tactic, and its extra-normal quality – that is, its tendency to violate existing,
accepted rules. Its coercive nature is matched by its tendency to seek and attract publicity.
To achieve maximum effectiveness, it involves a sense of unpredictability and indiscrimi-
nateness. Many definitions reference civilians, neutrals, or outsiders as victims and under-
score the role of such actions as in order to intimidate. Some emphasis is placed on the
clandestine nature of the perpetrator and the symbolic aspect of the action. Terrorism may
also be defined by the criminal nature of the acts themselves. See Schmid and Jongman,
Political Terrorism.
TERRORISM AND COUNTER-TERRORIST DISCOURSE 23

Instead, they are ‘countermeasures’, or pre-emptive operations, justified as
‘necessary’. The guilt of the individuals affected is generally pre-determined
by intelligence not made available to the population at large. In contrast, the
term ‘violence’ is reserved to those who engage in the act of terrorism – to
which the state actions supposedly respond. This sense of the ‘other’ bearing
the unacceptable moral quality reflects in the application of both terrorism
and counter-terrorism.
Second, to consider an act terrorist, fear must be present. This fear depends
on the threat of future, unpredictable actions. The credibility of this threat is
established by specific acts, and implicit in the threat is that future acts might
occur, might possibly be larger, or possibly even less discriminate. This
quality stems from the unknown, covert nature of terrorism. When non-
state terrorist acts occur, a wide range of organizations may try to claim
responsibility. Because of the covert nature of terrorism, those that engage in
it must exhibit a pattern that clearly relates to the perpetrators’ political
programme. In other words, by establishing a pattern, individuals and orga-
nizations develop a signature, making future attacks more effective.
Effectiveness is grounded in the certainty that a particular individual, group
or organization engaged in the act, and that it could engage in similar or more
extreme acts in the future. This breeds terror.
Like the quality of violence, counter-terrorism also incorporates an ele-
ment of fear. And like violence, it becomes an essential element of counter-
terrorism as the state adopts a national security approach. The government
depends upon fear engendered in the target population to prevent sympathi-
zers from aiding and abetting the actors posing a challenge, and to dissuade
those participating in violence from remaining loyal to the original organiza-
tion or cause. It seeks to head off the copycat effect that violent acts some-
times generate. And it tries, through its use of fear, to uphold the state’s
authority and ability to impose order on society.
Third, terrorism generates fear in a broader audience than the immediate,
physical target. It is a form of armed propaganda. As media and technology
advance and the distribution of media becomes more widespread, it may well
become easier for terrorism to achieve its aim, making it more effective and
more likely. If it works, people will use it. This broader audience is almost
ensured by human nature itself. When a bomb goes off, people want to know
why. If someone is killed, the immediate question is what happened. In
answering this question, the very aims of terrorist organizations become
public, bringing attention to their goals – which is why they engage in this
act in the first place.
Looking more broadly at counter-terrorism, it quickly becomes apparent
that state measures too are directed at a broader audience. State officials
frequently target not only those immediately engaged in violence. They also
target their possible community of support, possible state sponsors, other
LAURA K. DONOHUE
24

individuals and organizations who might engage in similar acts but for
different reasons, the world community, and their own populations who
have been targeted by an act of terror. Counter-terrorism becomes a way
of saying that the state will not tolerate a certain type of challenge.
Simultaneously, the state reasserts its right to sovereign control of its terri-
tory. And it is an attempt again to build state political legitimacy when it has
just been found wanting in its ability to protect the population’s right to life
and property. Because counter-terrorism is so often thought of as a response,
however, and not as part of an ongoing dialogue, this element is often masked.
Fourth, an act of terrorism is purposive. It is not accidental. It is mindful of
goals, actions and the effect of these actions on each of the target areas. This
aspect of the term addresses the intent of actions we or others might – or might
not – deem terrorist. It combines with the concept of non-combatant, so that
acts during war in which unintentional casualties result might not be considered
terrorist, whereas the deliberate killing or targeting of non-combatants might
be deemed terrorist.
Counter-terrorism too exhibits qualities of purposefulness. The state must
act and be seen to act to protect the life and property of the citizens. Political
leaders become eager to distinguish themselves through their deliberate
response to the challenge posed. This quality is so important in the counter-
terrorist discourse that the perception which dominates is that if a state
does not purposefully act following a terrorist event, its credibility suffers
greatly, and it opens itself to a proliferation of additional attacks. It is thus
perceived as critical in ‘good’ counter-terrorist policy and emphasized by
the state.
Fifth is the political nature of the act of terrorism. It is concerned with
authoritative direction and control. In this capacity it targets or relates to the
elites who control the current structures and institutions or the population
that resists the current keepers of state power. Thus, it may be focused on
instituting change or on maintaining the status quo.
Counter-terrorism, like terrorism, is ultimately about political power. It is
the state reasserting its claim over the coercive mechanisms of government.
There is thus an internal reinforcement of the use of power following an
event: it is at once both a visible response and a use of the very power that has
been called into question by the act itself.
Sixth, perhaps most important, for an act to be considered terrorist, it
must be levied on what individuals ascribing the nomenclature consider to be
non-combatants. This, more than anything, grounds the moral opprobrium
that accompanies use of the term. By calling an act terrorist, it is always a way
of denying the legitimacy of the act itself against a particular set of victims.
The nexus of this delegitimation is the interception between illegitimate
violence and illegitimate targets. An individual may agree with the cause
that has driven a terrorist to act, and even the individual as a representative
TERRORISM AND COUNTER-TERRORIST DISCOURSE 25

of a particular group – but disagreement with the legitimacy of the target and
nature of the act underlies use of the term. Three observations follow.
The first is that, in the case of anti-state terrorism, those engaged in the
violence frequently deny that the immediate victims lack culpability; they are
not seen as non-combatants. This is an important aspect of an act of terror,
for it recognizes that all groups and individuals who engage in this behavior
are subject to limits. There must be some sort of justification offered for why
these particular people, why this particular place, why at this particular time.
These are the questions immediately asked by humanity, questions that
groups and individuals are under pressure to answer. Regardless of the
breadth of individuals included in what terrorists consider to be ‘legitimate’
targets, what is critical is that for terrorist organizations to obtain support,
people otherwise considered ‘non-combatants’ must be re-defined as ‘combat-
ants’ by those engaged in violence.
Terrorist organizations have constituents. This did not change on 9/11: al
Qaeda had to make frequent media releases following the attacks to justify
their actions. Public commentary on both sides of the Atlantic often empha-
sizes that Jenkins’ assertion18 that terrorists want a lot of people watching, not
a lot of people dead no longer holds true. But what is lost in this assertion is
that the shift is possible only with an elaborate justification moving victims
into combatant status. Within the United States virtually no one buys al
Qaeda’s claims. But outside the US, where communities provide al Qaeda
with refuge and resources, such claims provide a valuable opportunity to
discredit the terrorist organization. There are multiple ways to do this: for
instance, by offering convincing justification within the attackers’ own reli-
gious doctrine that establishes the victims as illegitimate targets, by denying
the grievance exists, by limiting the number of people responsible for the
grievance to exclude the victims, by offering justification for the presence of
the grievance and pointing out other ways the grievance can be changed, by
distinguishing the grievance from the organization’s true aims, or by elimin-
ating the grievance. Any one of these solutions undermines the claim that the
class of individuals targeted constitutes legitimate targets.
For nationalist, separatist movements, combatant status is equally impor-
tant. And it can be countered further through the very structure of the
state. Take, for instance, the claim that a particular group lacks the ability
to change the political structure. Such organizations may announce that
agents of the state from which they are disenfranchised (metaphorically, if
not literally) are ‘legitimate targets’. Yet in a democratic state, the govern-
ment ostensibly reflects the voice of the people – including those engaged in
violence. Agency is thus ascribed broadly, derived from the very freedoms

18
Brian Michael Jenkins, ‘The Future Course of Terrorism’, The Futurist, July–Aug. 1987,
available at http://www.wfs.org/jenkins.htm.
LAURA K. DONOHUE
26

that define citizenship. The reality, of course, is that in a representative
democracy, such as Britain, America, Israel, Ireland or Turkey, citizens are
removed from policy decisions. State structures may not allow minority
positions to surface, or public policy negotiations to grant concessions to
minority groups. And the plurality of issues considered by the multiple
representatives for whom one votes may be in tension with each other and
the aims of certain organizations. Nevertheless, adopting a strategy that
emphasizes the political, non-violent routes open to an organization under-
mines claims to broader ‘combatant’ status for civil servants and politicians:
it is the terrorist who elects government officials. By collapsing the distinction
through political structures that ensure inclusion and through an effective
counter-terrorist media campaign, efforts to distinguish a legitimate ‘com-
batant’ group can be undermined.
The second observation relates to the changing designation of ‘comba-
tants’ by the terrorist organization. Such shifts, considered in relation to each
other and not to an absolute base line, reveal much about the strength of the
terrorist movement. A latent conservatism acts on most non-state organiza-
tions that engage in terrorism. Whether or not this relates to the importance
of human life as ascribed by most religions and cultures, the result of this
conservatism is that changes to the list of ‘combatants’ reveals the strength of
a movement, group or individual. That is, when an organization or move-
ment is at its strongest, it can afford a more select target base to pursue its
aims. For most organizations, this approach will offset the negative repercus-
sions caused by less discriminate violence. As organizations become weaker,
however, less discriminate violence ensues, and broader claims as to the
‘combatant’ status of civilian targets are made.19 The weakness may stem
from diminished resources available to the organization, from the ‘harden-
ing’ of targets by the state, or from the state successfully undermining pre-
viously stated grievances (such as through the approaches highlighted above).
Regardless of why it is occurring, expanded combatant lists do seem to
indicate that the organization has lost strength.
The third observation is that the more obvious the status of the victims as
non-combatant, and the greater the number of non-combatants injured or
killed in the attack, the greater the public emotional fervour that greets actual
instances of violence. This in turn drives a particular sort of response to each
attack. The level of acceptance for measures with a direct impact on indivi-
dual rights, such as those common in a national security approach, increases
commensurate to the devastation. I return to this point in the later discussion
of the targets of the attack.

19
See, e.g., results of regression equations cited in Laura K. Donohue, Master’s Dissertation,
State and Paramilitary Strategies and Tactics in Northern Ireland 1972–1992 (University of
Ulster, Magee College, 1993).
TERRORISM AND COUNTER-TERRORIST DISCOURSE 27

Like terrorism, counter-terrorism also claims to apply only to those
directly responsible for the violence – a form of ‘terrorist combatant’. But
the counter-terrorist claim also fails. The reasons are twofold: first, it is
extremely hard to distinguish who is a terrorist and who is not. So measures
such as widespread detention, the alteration of judicial structures, the suspension
of due process, increased powers of surveillance, strictures on the media, house
and village demolition, assassination and torture become applied across entire
communities, if not society itself. Second, counter-terrorist measures also seep
into other areas of law and become instruments of other special interests.
As the ‘war on drugs’, criminal processes, and other state interests begin to
apply the counter-terrorist provisions, the audience subject to the strictures
extends far beyond the immediate combatant target.
Seventh, terrorist acts, like counter-terrorism, bear an instrumental aspect.
They are meant to achieve something else. At least three purposes are neces-

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