Glenn Greenwald’s most excellent series on Security and Liberty in The Guardian addresses most recently the definition of terrorism, and in particular the case of a gangland shooting where a man called Morales shot and killed an innocent 10-year-old girl by mistake. The State of New York convicted him of being a terrorist, defined by state laws as acting with ‘intent to intimidate or coerce a civilian population.’ The interpretation of the court was that Morales actions were designed to coerce the entire Mexican-American community, and were therefore terrorist. On appeal, the court not only rejected the terrorism conviction, but also sent the entire case for retrial, as the standards by which terrorist trials were conducted were different to those of non-terrorist offences.
This is scary stuff for the integrity of the rule of law, though we’ve been there before in Public International Law with the notion of enemy combatants, Guantanamo Bay, and Extraordinary Rendition. In those cases, international law has been bent so far out of shape so as to be meaningless, albeit in a world of non-state actors that the instruments of international law did not account for. Bringing that kind of dual legal standard into domestic law – one for the terrorist, and one for the common-or-garden criminal – is a deeply worrying development.
Another blogger recently asked whether the suicide / mass murder in Connecticut should be classified as a terrorist offence. It’s a dangerous road to go down. Here in Ireland, the Special Criminal Court was established in order to deal with subversive activity, namely the operations of the IRA. Its processes were draconian, its relationship with human rights was restricted, and the standards of evidence for prosecution were set very low. While the Irish Government may have condemned British internment without trial in the North of the island, the SCC in the south was in truth not a million miles away from that. As the IRA campaign wound down through the peace process, it persisted to deal with gangland crime. The argument was made that many former terrorists were also major criminals, and had been funding political terrorism through organised crime. They had transitioned from quasi-political to exclusively criminal operations. The extent of the crime was so great, and so organised, that it required special powers to deal with it, and it was subversive to the state because it was so well able to get around the conventional criminal justice system.
Most definitions of terrorism include some reference to political objectives. In essence, this is not crime that is offensive to society, such as common murder, or theft, but something designed to offend the state itself. It has, in effect, the same threat as that of an invading foreign army, to a greater or lesser degree. (Note: I am in the process of securing access to the Max Planck Encyclopedia of Public International Law, and will blog accordingly when I have read its appropriate sections) We must remember that human rights, and rights generally exist to limit government. The power of the state is restricted by the courts. Only the most grave matters of national security should be allowed to circumvent that constitutional structure, otherwise we open up the possibility that the law simply becomes a tool of the state. The separation of powers in such circumstance would be severely damaged, and the power of the State would swing out of control.
There are two separable issues here. In terms of International Law, the stewards of that canon need to nurture a kind of universal standard that is applicable in the international field, and that can deal more effectively with non-state actors and terrorism, or whatever we may call it. Non-state actors include multi-national corporations, which we’ve discussed on this blog before. The second issue is in domestic law. It is understandable that international law has difficulty in dealing with new concepts such as so-called enemy combatants, with organised international (or more accurately non-national) terror groups, and that there are failings in terms of Human Rights as a result. But it is less understandable why those standards are beginning to infect domestic law. The case of Moralés is one instance; labeling Adam Lanza a terrorist is potentially another. The extension of government power to deal with extreme cases, as opposed to pure terrorism, such as with the Irish Special Criminal Court, is equally troublesome. Police powers are becoming too extreme in many countries, and measures will need to be taken in order to re-set the balance if we genuinely believe in human rights.
Once I get access to the Max Planck resource, I’m going to do some work – and some blogging! – on four key concepts and their relationship with one another in the context of State Legitimacy – terrorism, rule of law, sovereignty and legitimacy itself.
A final point – it was nice to be recognised by the WordPress team recently for my blog on Syria. For those of you who liked it, thank you; a special thanks to those who engaged and commented on it. For those of you who followed my blog as a result, welcome to the conversation.
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