O PENSAMENTO JURÍDICO ATUAL
POSSIBLE LEGAL SOLUTIONS TO INTERNATIONAL
TERRO RISM
Ted Banks
E d itor-in -C h ief-D en v er Journal o f In tern ation al Law
and Policy U niversity o f D enver College o f Law.
An act of violence is labeled “terrorist” w hen its
psychological effects are out o f proportion w ith its
purely physical re su lt.l
I.
T he Problem o f Terrorism
Persons engage in acts o f terrorism for diverse reasons.
A ny attem pt to deal w ith terrorism will fail if it does not
consider the various m otives behind acts o f terrorism . For
exam ple, the classical idea o f a terrorist is the guerilla fighter,
seeking to gain support for a p olitical cause by engaging in
crim inal activities w h ich have a shock value in addition to
their direct effects. In the past, these activities were usually
con fin ed to one cou ntry, in a civil w ar-type operation, with
perhaps som e in filtration in to n eigh borin g states to avoid
ca p tu re .
M ore recently the international terrorist has emerged,
m otivated by a political or ideological cause (w hich m ay or
m ay n ot transcend n ation al bou ndaries), using m ethods,
such as aircraft h ijack ing, w h ich m ay span the globe. The
extrem e type o f the m odern terrorist is the one w ith no stake
in an y existing state, but whose grievances are against an
entire region (su ch as the P a le stin ia n s).
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REVISTA DA FACULDADE DE DIREITO
A nother type o f m odern terrorist is the one w ho lacks a
political ju stification for his act, the “ m entally u nbalan ced” .
T heir acts are n ot justifiable by any “ n orm a l” standards, but
stem from fam ily problem s, h orm onal im balance, suicidai
intent, pure crim inal motives, etc. Any one solution will n ot
deter ali o f these types o f terrorists; each m ust be considered
separately if a workable plan is to be form ulated.
Terrorists can not operate in a v a cu u m . T hey are able to
fu n ction because there are states that either encourage, are
apathetic about, or are unable to con trol th em . T he reasons
behind the policies that serve to provide the terrorists w ith
a base o f operations are also diverse, and m ust be considered
individually when attem pting to design a solution.
A state m ay encourage terrorist activities against another
cou ntry because it ideologically supports the p olitical position o f the terrorists. Or, a state m ay support terrorist a ctivities for reasons o f convenience, irrespective of ideology. In
the N ineteenth Century, states were able to m ake an effective
show o f force, hopefu lly w ithout starting a war, by using the
sym bol o f the “ gu nboat in the harbor” . The Tw entieth Centu ry ’s sym bolic form o f violence is sporadic or clandestine.2
M any states fin d it easier to encourage a foreign group th an
to engage in their own terrorist activities, w hich would carry
w ith it a risk o f condem nation if their operations becam e
k n ow n . As this process expands, the victim ized state m ay
resort to encouragem ent o f other terrorist groups (or its ow n
terrorist activities) to retaliate for the original activities.
Obviously, unless checked, the terrorism can escalate into
som ething m ore than “ sym bolic” force.
II.
A ttem pted Solutions
M any writers have stated that the best deterrent to acts
o f terrorism is the knowledge, in the m ind o f the terrorist,
o f certain extradition o f apprenh en d ed . 3 As a practical m atter, few requests for extradition have been m ade in the past
INTERNATIONAL TERRO RISM
205
few years, relative to the num ber o f terrorist incidents that
have occurred.4 Even if such a request were m ade under
existing treaties, provisions for extradition are em asculated
by p rovidin g for exceptions in the case o f a “ political
offen se” .5
A political crim e has been defined thusly:
Crimes are political w hen they are crim es com m itted
in ten tion ally against the security o f the s ta te . . . as well
as w hen directed against the h ead o f a governm ent and
the political rights o f citizens. T he state is the passive
o b je ct o f ali political c r im e ... a sim ple violation o f the
political order is n ot in itself su fficie n t to constitute a
political crim e; there m ust be an in ten tion to totally or
partially destroy the political o r d e r .6
T he distin ction outlined above has often been blurred,
especially by those w h o m aintain that “ the law fulness o f an
act depends upon the a c to r’s p olitics” .7 It is for this reason
that the extradition provisions, su bject to an exception in
the case o f a “ p o litica l” crim e, have been rendered ali but
worthless as a deterrrent to terro rism . 8
T he refusal to extradite for political reasons should not
always be viewed in such a cyn ical light. In m an y cases, an
act o f terrorism has been com m ited in a legitim ate attem pt
to topple an oppressive regim e. As Falk has stated:
. . . the insurgent faction in an underdeveloped coun try has, at the begin nin g o f its struggle for power, no
alternative other th an terror to m obilize an effective opera tio n . 9
Article Fourteen o f the Universal D eclaration o f Human
R ights provides that a cou n try should give asylum to political refu gees.10 Further, there is no custom ary rule o f international law requiring a country to extradite a person to
another state that alleges a violation o f its la w . 11 Thus, foi
one reason or another, the effectiveness o f treaties providing
for extradition has been drasticallv diluted.
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REVISTA DA FACULDADE DE DIREITO
In another attem pt at deterrence o f would-be terrorista,
some countries have adopted harsh penalties for crim es such
as h ijack in g. 12 The rationale is that a person would not risk
the ch ance o f being cau ght as a result o f such strong punitive m easures. This type o f approach is actually counterproductive since it deters, at best, only a few would-be terrorists.
The prospect o f the death penality helps to prom ote the notion
that one is “ gam bling with fate” , and to certain disturbed
persons this is an inducem ent, not a deterrent.13 The existence o f harsh penalties contributes to the d ifficu lty in
obtaining extradition from countries that take a m ore civilized
approach to punishm ent for such crim es.
For crimes such as hijacking, non-legal deterrents such
as universal electronic screening at airports, can be effective.
This system, or a body search, can not elim inate ali hijackers,
since a determ ined person can m anage to “ fo o l” the m achine
or hide a w eapon .14
In the case o f hijacking, m any other m ethods of prevention have been suggested and tried. Patrol fligh ts along
com m ercial aviation routes have been tried, but they are
ineffective since “ buzzing” a plane will n ot stop a hijacker,
and sh ootin g it down is out o f the qu estion .15 The use of
arm ed guards aboard a fligh t has the same effect as the
existence o f the death penalty; it serves as an inducem ent
to the suicidai. Also, unless every fligh t is covered, the odds
o f en coun terin g (and stopping) a hijacker are very slim .
Other m ethods, including the use o f police dogs, trap doors
through w hich a hijacker could fali, and spraying hijackers
with m ace have ali been suggested, w ith little ch ance o f
success if they were im p lem en ted. 16
More as punishm ent that deterrent, Israel has used retaliatory raids as a response to acts o f terrorism . W hile there
m ay have been some room for retaliation as self-defense under the older “ Law o f the H ague” ,17 the current views of
INTERNATIONAL TERRORISM
207
m any writers, and the position o f the U .N . Secutity C ouncil
con dem n this type o f self-h elp.18 Even if these objections
did n ot exist, the effica cy o f retaliation as a deterrent is
qu estion able. It is d ifficu lt to lim it a retaliatory action to
“ terrorists o n ly ” , and by the very act o f retaliation, the originally attacked cou ntry m ay lose any sym pathy and Intern ational support that it derived from the original terrorism .
A nother response to countries that harbor or encourage
terrorists has been the b o y co tt. T he threat o f cu ttin g o ff ali
air traffic to a cou ntry has been used w ith som e effect by
the International Federation o f Airline Pilots Association,
but the actual boycott staged in 1972 did n ot seem to have
any im m ediate effect. 19 In spit of this, Secretary o f State
R ogers has urged the suspension o f air Service to countries
that harbor h ija c k e r s.20
It would seem th at the use o f sanctions, such as a boycott, against a cou n try that does not prosecute or extradite
terrorists would, in the lon g run, be counter-productive to
the goal o f world order.21 A ttem pting to punish a country
by isolating it from world activity in one form or another
w ould out of necessity m ake th at cou n try even m ore firm ly
com m itted to its original p o s itio n . The A m erican-led attem pt
at isolation o f the P eople’s R epublic o f China did n ot result
in any m oderation o f C hina’s politics. It was on ly when
actu al Com m unications began that som e progress was made
at narrow ing the p olitical gu lf that separated these two
c o u n trie s.
T he tim e-honored m ethod o f quiet pressure ( i . e . , negotiations) has been utilized with som e sucess in arranging
the release of hostages and the creation o f extradition agreem ents (as between the United States and Cuba) . N egotiations
have the advantage o f bringing tacit pressure on another
country w ithout necessarily doing the dam age to relations
that some type o f punitive action would accom p lish .
208
III.
REVISTA DA FACULDADE DE DIREITO
Ideas for Immediate Implementation
As has been stated previously, the knowledge of certain
extradition for a terrorist act is a powerful deterrent. Un
fortunately, in the past states have been somewhat reluctant
to allow the partial encroachment on their sovereignty that
comes with adherence to a mandatory extradition agreement.
The treaties that have been negotiated in the areas o f hijacking and terrorism are evidence of this.22
If the theory is followed that states encourage acts of
terrorism as a symbolic war by proxy, then they certainly would have no interest in seeing any preventative
measures such as mandatory extradition agreements for certain enumerated acts.
As a somewhat more palatable alternative, the possibility
of international agreements specifying local prosecution
(instead of extradition) has been attem pted. This may have
a certain amount of deterrent effect, but once again the
political views of the country where refuge is sought are an
im portant consideration. Persons sufficiently frustrated
with one political system may be willing to risk a nom inal
period in jail (or perhaps even extensive incarceration) as
the price to pay obtaining their freed om .
A solution to this situation would be the establishment
o f an international right to travei, w hich presently does not
exist.23 This would eliminate one m ajor source of air piracy.
In the past, the United States encouraged persons to
flee from com m unist regimes in whatever manner possible.
This policy seemed to be aimed more at dam aging com m unist
regimes than to strongly support individual rights of freedom.
In any case, the advocacy of this policy (especially during
1959-60) is at least partially responsible for the round of
hijackings between the United States and C u b a .24
There is an obvious need to balance an act o f terrorism
with the political justification offered. A pragm atice ba-
INTERNATIONAL TERRORISM
209
lancing of the means and ends would seem to be m anner in
which the 1970 Hague Convention will be a pplied. 25 However,
this “ balancing a ct” by each country is still unsatisfactory,
for truly objective standards are needed to determine if a
person should be given asylum (or a reduced sentence), or
if the crime com m itted was so heinous that no political justification should be available.
To apply objective standards, some type o f international
court m ust be u sed . M orgenthau 26 and others have argued
that political disputies cannot be settled by judicial methods.
A ccording to M orgenthau, the only time two nations will
agree to arbitrate a dispute is when conflicts involving the
over ali distribution of power between those two countries
are virtually impossible. The limitations o f “ power” ( i.e .
realist) theories o f international relations notwithstanding,
he fails to adequately explain his assertion in terms of his own
theory. International adjudication of disputes can be in the
self-interest of the parties, even if the dispute is of a political nature. As shown by the recent agreement between
the United States and Cuba, the sting o f unrestrained
terrorism cuts both ways. A state that encourages terrorism
will have terrorism encouraged against it. Therefore, it is
prudent to place lim itation on a policy o f encouraging
terrorism, if not abolishing it altogether.
The use o f an international court to decide when extradition should occur (or what penalties should be im posed),
would be an easy way for an “ ideological” state to escape
the onus of having to rationalize its “ defection from the
cause” by allowing a “ h eroic” terrorist to be extradited. Most
states today are not as ideological as they are pragm atic, and
their prim ary interest lies in preserving their national security; advancing world causes would have to come second.
Extradition treaties recently negotiated by the United
States (e .g . with New Zealand) have attem pted to clarify
the political crimes exception. W hether done on a bilateral
210
REVISTA DA FACULDADE DE DIREITO
or m ultilateral basis, some set o f u niform and objective
standards, such as those suggested by B assiouni 27 are needed
to establish a definite pattern to determ ine when an act is
justified for political reasons.
IV .
Suggestions for Future Im plem entation
T he role o f an international organization like Interpol
should be expanded to provide faster and m ore accurate data
on the location and m ethods o f know n terrorists. 28 Further
exchange o f ideas co n cem in g the con trol o f psychologically
or physiologically induced crim e is n e e d e d .29 International
agreem ents should take into consideration the m edicai
aspects o f terrorism, and extradition should n ot signify only
a return for punishm ent, but, if indicated, m edicai treatm ent
and study.
In order to adjudicate the problem s raised by international terrorism m ore effectively, either the role o f the International Court o f Justice m ust be expanded, or a new In ternational Court o f Criminal Justic m ust be establish ed. 30
T hrou gh a m ultilateral treaty objective standards for dealing
w ith acts o f terrorism by the court would be enum erated, and
the list o f crim es for w hich there is n o political ju stification
w ould be clearly stated.31 W hile the establishm ent o f a new
court is still well o ff into the future, the fa ct that diverse
states are recognizing a com m on interest in lim iting
terrorism indicates the foundation of a desire for such a body.
The role o f a new cou rt (or an expanded International
Court o f Justice) cou ld also be made to encom pass the
grievances that lead to acts o f terrorism . D espotic governm ent, u nfulfilled political aspirations, and poverty will con tinue to lay the seeds for international in su rgen cy. As political awareness o f the present continues to leap ahead o f
social and econ om ic progress, frustrated persons will continue
to turn to violence to achieve their goals.
INTERNATIONAL TERRORISM
211
T he standards listed by B assiouni 32 would be a good
stating p oin t for the operation o f this new court. A problem
is presented in securing enforcem ent o f decisions against a
despotic governm ent, but the interest in w orld order would
seem to call for some type o f objective and fair settlem ent.
This type o f cou rt m igh t be able to arbitrate the dispute
between the Israelis, the Arab governm ents, and the Palestinian s. A com m on interest in securing some m easure o f
peace for the region cou ld override the m ilitancy adopted by
ali the parties. Use o f an international cou rt cou ld also serve
to save face for the various parties, by n ot m aking a
settlem ent look like a defeat by a bitter en e m y .
International cooperation is needed to elim inate the poverty that still exists in m u ch o f the w orld . T he activities of
U . N . organs w orking along these lines m ust be expanded
many tim es. Until basic political, social, and econ om ic needs
are satisfied, the problem o f terrorism will still e x is t.
Only w hen a valid w orld ju rid ical system has been
established, and socioecon om ic developm ent is generalized
will it be possible to achieve the im plantation o f world
o rd e r.33
FOOTNOTES
1.
R . Aron, Peace and War, 170 (1966).
2.
Id ., at 60
3. H irsch and Fuller, “A ircraft Piracy and E xtradition” , 16 New
York Law Forum 292.
4. Bassiouni, “Ideologically M otivated O ffenses and the P olitical O ffen se E xception in E xtradition”, 19 De Paul Law Review 217.
219.
5.
Id
6.
Szabo, “Political Crim es: A H istorical P erspective”, 2Denver
Journal of International Law and Policy 7, 18.
7.
at 30.
Bishop,
“Letters to
the Editor,
“Commentary,April,
1973
REVISTA DA FACULDADE DE DIREITO
212
8.
See note 22, infra.
9, Falk, “Six Legal Dimensions o f the U .S . Involvem ent in
Viet Nam ” in R . Falk, 2 The Vietnam War and International Law,
240 (1969).
10. Universal Declaration o f Human Rights, Article 14, adopted
by the General Assembly o f the United Nations D ec. 10, 1948.
Bassiouni, supra note 4 at 233. See also 8 U . S . C. § 1153, 1253.
11. Green, “Piracy o f A ircraft and the law”, 10 Alberta Law
Review 72.
12. 49 U .S .C . § 1472 (i) makes it a crim e punishable by death
or im prisonm ent for not less than twenty years for h ijack ing an
a ircraft. H ijacking will be used frequently in this paper as the m ost
com m on example of international terrorism .
13.
D . Hubbard, The Skyjacker, 230 (1971).
14. Extensive use o f electronic screening devices in the U .S .
has reduced airplane hijackings in this country. But, in some cases
electronic screening or body searches will not turn up w eapons. In
September, 1970, El Al officials refused to let two m en board flight
num ber 219 from Amsterdam. The two m en then boarded Pan Am
fligh t num ber 93. El Al warned Pan Am about the two men, and
the captain o f the plane searched them and found n oth in g. F ortyfive minutes later they had produced concealed guns and taken
over the plane, and eventually destroyed it with explosives.
M eanwhile, El Al did not stop a m an and a wom an from boarding
fligh t 219, even though the wom an was Laliah Khaled, a h ijacker
whose picture had been circulated to ali airlines. W hen the two
attem pted to take over the plane while in fligh t the m an was killed
and Khaled was prevented from activating the grenades she carried
in her bra. When the plane landed in London to obtain m edicai
treatm ent for a wounded steward, Khaled was taken into custody
by British authorities. Later she was returned in an exchange to
the Palestinians.
E. Rich, Flying Scared, 34-37 (1972).
15. Sundberg, “Piracy: Air and Sea”, in M . Bassiound and V.
Nanda, I A Treatise on International Criminal Law, 468 (1973);
Evans, “A ircraft H ijacking: Its Cause and Cure”, 63 Am erican Journal
of International Law 695, 704-705.
16.
Evans, Id.
17.
K alshoven: Belligerent Reprisals (1971).
INTERNATIONAL TERRORISM
213
18. Taulbee, “R etaliation and Irregular W arfare in Contem porary
International Law”, 7 International Lawyer 195, 197, 202.
19. Threat of boy IFALPA aided the release o f passengers from
a h ijacked plane in Algeria (9/22 /6 7 ) and Syria (8 /6 8 ). July, 1972
strik by IFALPA estimated 50% effective in Europe, prevented by
Supreme Court in ju n ction in U .S . R ich. Flying Scared, 192 (1973).
20. Statem ent by U .S . Secretary o f State Rogers to U .N .
General Assebly on 9/2 5 /72 . Department of State Bulletin, October
16, 1972, at 430.
21.
Arey, The Sky Pirates 310 (1972).
22. T he Convention on O ffenses and Certain Other Acts C om m itted on Board A ircraft, done at Tokyo, Septem ber 14, 1963 by
I .C .A .O . 2 International Legal Materials 1042. This convention
failed to specify punishm ent for a h ijacker and left prosecution up
to the state where the plane landed. Even w ith such a loose wording,
the reluctance o f states to becom e signatories resulted in the treaty
n ot becom ing effective until Decem ber 4, 1969. M c W hinney, Aerial
Piracy and International Law, 20-22 (1971) and M c Whinney,
Hijacking of Aircraft, Final Report to Institut du Droit International,
10 (1971).
T he Convention o f the Suppression o f Unlawful Seizure of
Aircraft, done at The Hague, September 16, 1970 by I .C .A .O . p rovided that each state should make h ijack ing punishable by severe
penalties (A rt. 2 ). I f a state does not extradite a hijacker, it should
punish him (A r t. 7 ). Disputes about this treaty are to be submitted
to arbitration, and then to the International Court of Justice, but
if a state wishes, it need n ot abide by this provision (A rt. 14). 10
International Legal Materials 13.
T he Convention fo r the Supression o f Unlawful Acts Against the
Safety o f Civil Aviation, done at M ontreal. Septem ber 23. 1971, by
I .C .A .O . is basically the sam e. 10 International Legal Materials
1151.
T he Convention to Present and Punish Acts o f Terrorism by
the O .A .S ., seems to allow too m uch leeway for refusal to punish
or extradite for political reasons. O .A .S . D oc. A G /d o c . 88 rev/1
arr 1 o f Feb. 2, 1971; 10 International Legal Materials 255.
In spite o f the fa ct that two I .C .A .O . conventionã made
h ijack ing an extraditable offense, it remained a voluntary extradition
with no real constraints on the political desires o f a signatory.
214
REVISTA DA FACULDADE DE DIREITO
23.
Nanda, “The Right to Travei: An International Human
R ight?,” 1 Denver Journal of International Law and Policy 109.
24. Hubbard, supra note 13 at 228; Mc Whinney, Aerlal Piracy,
supra note 22 at 16.
25.
Mc Whinney, id. at 25.
26.
H. Morgenthau, Politics Among Nations, 415 (4th Ed. 1967).
27. Bassiouni, supra, note 4 a 222-257. The following a summary
o f the theory enumerated by Professor Bassiouni. The conceptual
framework for extradition in volves:
1. recognition by each
other states.
country o f
the self-interesest of
2.
an international duty to preserve order.
3.
application of minimum standards of justice.
4.
Collective duty to reduce crim inality.
5.
a balancing of actions within the “rule of law” .
The framework is rationalized by the following:
1. a duty to preserve the public order does not destroy
national sovereignty.
2. the individual is accountable for his violations o f international law.
3. cooperation in penal matters leads to a better order in
states, without a need to compromise individual rights.
4. application of the “rule of law” lends credence to the
procedures used.
In determining extradition the following should be considered:
1.
degree of political involvement.
2.
link between political motive and crime.
3. proportionality considerations between means used and
political purposes.
There should be an allowance made for the hight to “Ideological
Self-Preservation” .
INTERNATIONAL TERRORISM
215
1. The nature of the rights violated give rise to a right of
ideological self-defense
a)
nature of the rights, and source
b)
are rights indispensable?
c)
historical existence o f rights
d)
extent of reliance as fundamental part of life
e)
duration of abridgement
f)
foreseeable end to abridgement
g)
existence of available legal remedy
2. Factors bearing upon the conduct of the state which violated the fundamental right
a)
nature of transgression
b)
evaluation of violation
c)
manner, extent, duration, frequency o f violation
d)
foreseeability of extended violation
e)
justification of violation
f)
methods of re-dress (legal)
g)
repulsive action taken against those seeking re-dress
3. Factors bearing upon the conduct of the individual who
violated the law of the state in defense of the “ fundamental human
right” .
a) exhaustion o f local and international remedies short
o f generating repression
b) understanding o f a reasonable m an that re-dress not
available (i.e . no alternative)
c)
was conduct proportional to the right violated?
d) was conduct negative (revenge) or positive (to termi
nate violation o f rights)?
e) were means used limited to those purposes with no
unnecessary violations?
f) would risks fali on perpetrator, or would they affect
others?
REVISTA DA FACULDADE DE DIREITO
216
28.
Sweden requested th e crim in a l record o f a h ija ck e r on
N ovem ber 11, 1969, but th e in form a tion did n o t arrive until M ay 5.
1970. Sundberg, supra n ote 15, at 487-487. O bviously a m ore
e fficie n t m ethod o f exch a n gin g in fo rm a tio n is ca lled fo r.
29.
M any h ija ck ers h ave ch osen Cuba as a “ Iand o f no retu rn ”
because o f its political isolation fro m th e U n ited States, and w estern
w orld gen erally. These h ija ck ers are usually suicidai, a nd like m ost
suicides wish to call a tten tion to th eir p lig h t. F requ ently th ey have
problem s o f ph ysical disequilibrium th a t lead to m en ta l disturbances
Sexual in adequacy is o fte n noted, and h ija ck in g is o fte n ch osen
because o f th e m ascu lin e overton es o f a via tio n . It is suggested th at
the addition o f w om en to th e space p rogra m cou ld serve as a sym bcl
th at fligh t is n ot a m ale p re ro g a tiv e . T h e above m aterial was obtain ed
by interview s w ith h ijack ers, in H ubbard, supra, n ote 13 at 230.
30.
K utner: “P oliticid e: T h e N ecessity fo r an In tern a tion al
Court o f C rim inal Justice” , 2 Denver Journal of International Law
and Policy 55; th e tailue o f th e U .N . p ro je ct, in this area is n oted
as the basis fo r som e legitam ate pessim ism as to th e crea tion o f an
in tern ation al crim in al court, M c W h in n e y . Hijacking of Aircraft.
Provisional Report to Institut du Droit International, 44 (1970)
31.
Bassiouni suggests th a t treason, sedition, espion age are
types o f crim es th a t should com e u n der th e p olitica l offen ses
excep tion . O ffen ses against th e law o f n ation s (Jure G etiu m ) should
n ot com e under th e politica l e x cep tion d o ctrin e . Supra, n ote 4.
32.
33.
Id.
Jaguaribe, “W orld O rder. R a tio n a lity a nd S o cioecon om ic
D evelopm en te” in S . H offm a n , Conditions of World Order, 209 (1966);
c f A . Etzioni, The Hard W ay to Peace, 202 (1962).