How best to combat terrorism? What is permitted and what is not, in counter-terrorism? With the negative experiences of Western military action in Iraq and Afghanistan, especially the former, the hitherto dominant doctrine of counter-terrorism, that of neo-conservatism, has been badly damaged and discredited both intellectually and as a policy discourse.

by Dayan Jayatilleka

The struggle against terrorism has an intellectual dimension. How does one distinguish between legitimate struggles for liberation, and terrorism? Terrorism strives to hide behind the mask of legitimate liberation struggles. Conversely, liberation struggles are sometimes demonised by being dubbed terrorist. Some liberation struggles and movements (such as those resisting Zionist occupation) also erode their legitimacy by resort to terrorism. Hence the need for conceptual clarity on these different, yet sometimes intersecting, forms of the political violence of non-state actors.

How best to combat terrorism? What is permitted and what is not, in counter-terrorism? With the negative experiences of Western military action in Iraq and Afghanistan, especially the former, the hitherto dominant doctrine of counter-terrorism, that of neo-conservatism, has been badly damaged and discredited both intellectually and as a policy discourse. This is deservedly so. It has been replaced by two theoretical frameworks: a resurgent liberal democratic discourse and a resurgent Realist discourse.

On Tuesday, March 11th at the Auditorium Jacques-Freymond, rud de Lausanne, Geneva, an outstanding British scholar delivered a prestigious lecture which set out with great lucidity, the liberal democratic outlook and policy framework. Prof. Vaughan Lowe, Chichele Professor of Public International Law and Fellow, All Souls College, University of Oxford delivered the Europaeum Lecture entitled The Double Helix of Terrorism and Tyranny: Can Civil Liberties survive the "War on Terror?"

According to this framework, there are two attitudes a society may have: to focus on what someone does or to focus on what someone is. If what one does is the key criterion, then one is innocent until proven guilty. Criminal law is then the guiding framework. If one the other hand, one is guided by the notion of "the enemy", then it is the law of war that becomes the operative framework. This latter approach is damaging to the social fabric and social life of democracies. The repressive measures that are taken during the conflict, award a victory to the terrorists because it is exactly the kind of polarising reaction they are hoping to trigger off. Terrorism and tyranny interact and create a downward spiral. The repressive measures are rarely rolled back and continue to weigh upon society down the decades.

This distinguished scholar also drew a distinction between separatist movements – and the necessary treatment of movements – that have little chance of success, such as the Basque ETA, and those that control territory and "maintain a perimeter". The dangerous implications of such an approach for Sri Lanka, especially after Kosovo, are obvious. This was one of the reasons (apart from my own intellectual specialisation) that led me to articulate a critique and suggest a counterview.

The following points were made by me as a verbal response to Prof. Lowe, to whose lecture I was an invitee. The lecture was organised by the Graduate Institute of International and Development Studies of the Graduate Institute, Geneva.

1) Terrorism is defined by method, not objective, however laudable the goal, if the method included the witting targeting of unarmed civilians, then that movement or state is engaging in terrorism. If the recourse to this tactic is widespread, then the movement concerned is describable as terrorist. Thus, Sendero Luminoso in Peru was terrorist while Fidel and Che’s guerrilla army in Cuba was not.

2) Terrorism is not defined by feasibility of objective. The Basque ETA has no realistic chance of success, but that is not what damns it as terrorist. The secessionist movement in Chechnya had a greater prospect of success, which did not however, make it less of a terrorist movement.

3) Representative character or feasibility of success do not warrant a less warlike or repressive response from the state. The secessionist project in America in the 1860’s displayed a distinctive territory and conventional army. In response, Abraham Lincoln, one of the greatest, if not the greatest democratic leader, defended the union with a war that approached its "absolute form".

4) It is questionable that counter-terrorist military measures inevitably result in an irreversible change in the nature of the state and public life in the direction of greater authoritarianism. India, the world’s most populous democracy, had to wage a harsh struggle involving army and police, against a bitter campaign by separatist terrorism, without any long term adverse effects after that terrorist insurgency was defeated.

5) As for the distinction between two ways of treating with terrorism: one, as a problem of criminal law, the other as a problem of the law of war, that policy choice is not a "free" one. It depends on the scale and scope of the terrorist threat. If it is a small terrorist group, a matter of terrorist cells, then it is a challenge that can be dealt with by the police, under criminal law. However, if it is a challenge against the military, waged by relatively large units, then it has to be dealt with by the armed forces. The Taliban, al Qaeda, the Chechens, Sendero Luminoso and the Tamil Tigers fall into this category. In such situations, the more profitable theoretical framework would be the Just War tradition and its recent refinement by Michael Walzer.

At the conclusion of the exchange, Professor Lowe and I agreed on one of each others’ central points. He said that the approach suggested by me was the more appropriate one for situations of "internal war" such as that threat which is posed by the Taliban and the Tamil Tigers. I agreed with him that the criminal law approach, in which the Police should be the main instrument, was more appropriate for the Western liberal democracies and the relatively low level of the terrorist threat faced by them.

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