When does terrorism become an act of war, instead of a crime?

Great Debates
21

Except our laws could easily deal with this sort of issue. The people at Gitmo were largely Taliban fighters captured in Afghanistan. And so they can be treated very simply as prisoners of war. Getting status as a POW doesn’t mean you can’t be tried for crimes. POWs absolutely could be tried for various crimes. What they can’t be tried for is just fighting against US soldiers. It’s not a crime simply to be an enemy soldier who shoots at American soldiers. Not that this standard is exactly the same thing that makes it not a crime for American soldiers to shoot at Taliban soldiers. If just shooting at the other side makes you a criminal, then we need to start arresting our entire military.

Of course that’s not going to happen. So why are we saying that, when we invaded Afghanistan, anyone fighting against us had to be a criminal? Except they were mostly never tried as criminals, were they? And the reason why is because for the most part their only crime was fighting US soldiers, which is not actually a crime.

And of course the beauty of holding these people as POWs is that, since POWs are not criminals, they don’t have to be charged with crimes to hold them prisoner. You can hold them prisoner until the war is over. And that way, if we think they’re just going to go back to Afghanistan and start fighting again, we just keep them detained on the simple ground that they’re an enemy soldier.

The reason we got into such a mess is very much because the Bush administration refused to treat these prisoners either as POWs, or as criminals. If they’re criminals you charge them with a crime, give them a trial, and they are either convicted or exonerated. If they’re POWs you can detain them until the war is over. But no, we couldn’t give them trials, since that would expose the fact that they’re just enemy soldiers and not terrorist masterminds. And we can’t treat them as POWs, because we need to torture them in revenge for 911, and torturing POWs is against the Geneva Conventions.

And so we declare that these are non-persons who are neither criminals nor prisoners of war, just people with no rights that happen to have found themselves in our power, and we can do whatever we like to them. Which means, 15 years later we still have prisoners that we don’t know what to do with, we can’t try them without revealing that we tortured them, we can’t release them because they hate America because we tortured them, and besides no country wants them back.

So why the fuck did we capture them in the first place? It was nonsensical.

22

I’m not sure why killing nonstate actors who are seizing ships is so substantively different than killing nonstate actors who are blowing up buildings.

In any case, how about these examples? From 1820 to 1823, the US Navy attacked slave traders off the coast of Africa pursuant to an act of Congress prohibiting further slave trade. In 1840, the Navy conducted reprisals against Fijian natives who were attacking American explorers. In 1866, the Marines burned villages in Formosa in retaliation for the murder of shipwrecked Americans. I can go on and on if you wish.

23

For me, the IRA assassinating Mountbatten was FINALLY a political act. Blowing up pubs and grocers were the worst form of terrorism.

It depends on the target. With civilians it’s evil.

24

I think the OP presumes - wrongly - that the categories “act of war” and “crime” are mutually exclusive. They’re not, of course; it’s perfectly possible to commit crimes while engaged in warfare.

The 9/11 attacks were treated as acts of war because, basically, treating them purely as domestic crimes would have left the administration with little to do. All of the perpetrators who had been within the jurisdiction of the US were dead. Any superiors who might have been involved in conceiving, planning and ordering the attacks were outside the jurisdiction of the US and it was going to be difficult to arrest, charge and try them under the US criminal justice system. Hence, to respond in any way that even might be effective, you have to go beyond treating this as a crime. So you announce that you’re treating it as an act of war.

25

To some degree, pirates are a special case, in that a navy is pretty much the only real way to go after them, regardless of whether it’s state-sponsored piracy (Letters of Marque, I suppose), or mere criminal piracy. So while they haul them in to court when they can, they still use military forces (navies) to do the actual patrolling and enforcement.

26

One can often make the same claim about terrorist groups. It is not realistic to think that the FBI could parachute into Yemen and arrest leaders and operatives of Al Qaeda in the Arabian Peninsula, just like it is unrealistic to give the FBI boats and expect them to arrest pirates. The only realistic option to do something about AQAP in foreign territory involves some kind of military force, as opposed to law enforcement.

Of course, it is sometimes possible to seize people on foreign territory and hand them over to law enforcement in this country, which has been done on a few occasions.

27

That’s where the state sponsorship comes in (or lack of civil order and functional government, Afghanistan-style, I guess).

If there were Al Qaeda people in say… Belgium, who we wanted, the Belgian cops would round them up and extradite them to the US as criminals.

If the government in question isn’t willing to do that, it amounts to state sponsorship of terrorism, and that’s where armies get involved. Pirates are a bit different in that your typical pirate (as opposed to privateer) is not affiliated with or protected by a state, and is just a high-seas criminal.

28

I disagree that it is about state sponsorship. It’s about the nature of the domain that an adversary is operating in.

Where there is a functioning government that is both willing and capable of exercising police power, that’s the tool that’s generally used. Even if a government is willing to crack down on terrorism, but incapable of doing so (such as today’s Iraqi government or recent governments in Yemen, which had the will to crack down on ISIL or AQAP, but not the means), the tool most likely defaults to military force. Just because Iraq/Yemen is incapable of cracking down on ISIL/AQAP does not mean that ISIL is sponsored by Iraq, or AQAP is sponsored by Yemen.

29

I propose these definition:

  1. Act of War–Violence by a state actor* which targets primarily the military forces of another state actor, although general civilian casualties may be a side effect.

  2. Terrorism–Violence by a state actor* which targets primarily the civilian population of any territory, even if an overall military goal is secondary. The purpose of the act must be primarily to instill general fear in that general civilian population.

  3. Crimes–Violence by a non-state actor which targets civilians or groups of civilians for a purpose less than instilling fear in the general civilian population.

*state actor may be defined to include not only states in their official capacity, their agents, or those, through its own gross inability to provide social structure allow rogue groups to flourish.

It is imperfect and done quickly, so nitpick away.

30

Well, my first nitpick would be that your definition of terrorist excludes non-state actors who are opposed by the state they are based in. On this view Timothy McVeigh was not a terrorist, for example, and neither were the IRA during their campaign of violence.

(Unless you take the view that “flourish” means “is capable of any action at all”, such that if there is a campaign of violence against civilians and the state is not successful in completely supressing it, that’s “gross inability”.)

I suggest a more useful concept of terrorism ignores completely the question of state or non-state actors. (Recall that the concept of terrorism was conceived to characterise the policy of the French Republic during 1793/94, and only later applied to non-state actors.) Terrorism is a tactic, and whether a person or group is employing that tactic doesn’t depend on whether he is wearing a uniform or not.

How about this: terrorism is the use of violence against randomly selected individuals, usually without regard to their combatant status or lack of it, or against the community at large, for the purpose of weakening the community’s political support for/assent to the position of your opponent (who typically is, but need not necessarily be, a state).

31

this reminds of the argument “what’s the difference between a revolutionary/freedom fighter and a domestic terrorist ?”

32

No necessary difference at all. Whether he is a freedom fighter depends on the object he seeks to attain. Whether he is a terrorist depends on the tactics he employs to attain that object.

33

I like your proposal, however a couple of concerns. Yes, McVeigh’s act was one of terrorism in the colloquial sense, but it was treated as a crime. He was given the full due process protections of the Constitution.

The IRA claimed to be a different state, so maybe that should be added to the list of state action. I fear that if the state action provision is not left in then many common crimes can bleed over into terrorism.

(wild hypo) What if Ted Bundy’s subjective motivation for serial rape and murder of women was that he was opposed to the ERA and that thought that by putting women in fear, they would stop advocating for it?

It would fall under the hate crimes statutes of modern day, but is it really terrorism? I think terrorism is a more indiscriminate targeting of citizens instead of one particular group.

34

The answer is that its a political decision. The decision by UK authorities to try IRA men under criminal laws and treat them as criminals was a made due to political reasons; the Brits did not want to give the IRA legitimacy by calling it an act of war.

OTH, the US decision to declare “A war on terror” was due to a desire (in part) to bring political pressure on states to support U.S aims and also I suspect to placate domestic anger.

35

Of course. Terrorist actions generally are crimes, so terrorists are treated as criminals. Why not? That doesn’t make them any less terrorists.

If State A is perpetrating terrorist acts against State B, or is hosting terrorists who are perpetrating terrorist acts against State B, that may also lead to diplomatic action, sanctions, military action or whatever by State B in its defence. There is no contradiction there.

Where (obviously) all right-thinking people will draw the line is in saying that, if a crime can be or is categorised as “terrorist”, then it ceases to be a crime and the perpetrator is not entitled to be treated as a criminal. If that’s your attitude you might as well just put the Bill of Rights in the shredder now.

Many common crimes - at least, crimes of violence - can bleed over into terrorism, if they are committed for the purpose of weakening the community’s political support for/assent to a particular political position. I don’t see why you would think that would be a problem. If a crime is rightly characterised as “terrorist”, why should we avoid characterising it as terrorist?

If he really was committing rape and murder in pursuit of a political agenda, yes, that would be terrorist.

And if he’s picking women at random for his crimes, that is pretty indiscriminate. Obviously we can imagine terrorist crimes targeted on the basis of race or religion, so why not terrorist crimes targeted on the basis of gender?

36

This statement is absolutely and unequivocally wrong.

To limit “war” purely to state vs. state conflicts is an astonishingly naïve and factually incorrect perspective. The history of man is replete with examples of war at the state-vs-nonstate, or nonstate-vs-nonstate level. If you say that war only happens between states, that is the same as saying every revolution, rebellion, or insurgency cannot qualify as “war” because it doesn’t rise to the “state” level. By that definition, the Iraq War ended in 2003. Further, your definition of terrorism is so profoundly limited and fundamentally incorrect that no one of any education would agree with it. Terrorism is a stratagem, and it can be perpetrated by states and nonstate actors alike.

The entire premise that war is, or should, be limited to state-vs-state conflict was always a joke. It is and was always a fantasy, despite the fact that our laws of warfare tried their best to criminalize nonstate actors attempting to participate in war. Any, and I mean ANY person with even an elementary grounding in military science can tell you that this the question of emergent nonstate threats is one of the dominant problems facing modern military strategists.

But to address OP’s real topic: The question of whether terrorism is or is not a military problem is simply obsolete. This is the problem our modern legal systems have to grapple with. We now live in an age where nonstate actors have more power than ever before, and more states choose to sponsor nonstate proxies as a way to achieve parity when their conventional armies are outmatched. That is why our existing legal codes are inadequate. We have spent decades, if not centuries, telling ourselves that military and nonmilitary violence can be neatly divided into boxes, but it can’t.

There is a huge spectrum of gray between the two, and it boils down to two inescapable facts: (1) The enemy doesn’t care which category he is in and (2) the enemy actively exploits this confusion. This is why you see so many human rights advocates whining and bitching about things like “illegal” drone strikes and assassinations. They don’t realize that they are defining war in 19th century terms and the reality of modern warfare has left them in the dust. This is also why military, intelligence, and law enforcement agencies are becoming more closely intertwined with each other… Because the reality of the situation is that the enemy criminal, terrorist and insurgent are all interconnected in ways that cannot be easily sorted.

Have you ever heard the saying that “The Army exists to protect the police?” It reflects the notion that (1) law enforcement and military skill sets are not identical and (2) effective law enforcement and mechanisms of justice can only exist when the government has already achieved a monopoly on violence.

America is lucky because it doesn’t really have any armed groups that are too large the police to handle. But imagine terrorism in somewhere like Sri Lanka, Iraq, or Nigeria, where terrorist insurgencies are too large and too powerful for police to handle. What do you do then? (A) You could continue to insist that they are nonstate actors and therefore not military targets, in which case your police get killed and anarchy reigns. (B) You could increase the scale and firepower of your police, in which case you have (for all intents and purposes) turned the police into a military. Or (C) you could just admit that they have outgrown the police and are now military problems.

We hit (C) in 2001, but we continue to argue about it because our laws haven’t yet caught up to the reality of the situation. And this problem is not going away any time soon. The military/intelligence/law enforcement triangle is just going to continue to grow closer together and more interconnected, because nothing makes the bad guys happier than living in that gray zone where criminal, terrorist, and insurgent collide and become indistinguishable.

37

THANK YOU. I am sick of hearing that same dumbshit platitude. Terrorism is a stratagem or a tactic. “Freedom” is the object for which you are fighting. There is no contradiction between the two. Every time I hear someone say that I want to sock them in the mouth for their stupidity.

38

Sri Lanka (and since 2014, Iraq) insurgencies have been defined by control of large parts of territory and pitched battles. The biggest success that the Sri Lankans has was in conventional face to face battles.

Especially in Sri Lanka, terror was just one tactic utilised by the militants to achieve theiraims.

39

(And, possibly, utilised by miltants on both sides of the conflict.)

40

Yes, it is. The word “terrorism” was first coined to describe the policy of the French government in 1793/94. (Trivial fact: Tom Paine is the author of the first cite for the word “terrorism” recorded in the Oxford English Dictionary, with reference to his time in a French prison.) From there it very soon came to be applied to other governments, historical and contemporary, who had employed terror to maintain their grip on power or to push through policies that were encountering opposition. Only later did it come to be applied to similar tactics employed by opposition or revolutionary groups.

I think confusion arises because terrorism is a tactic which particularly commends itself to groups that have limited resources and manpower, since you don’t need much of either to make an impact through terrorism. Governments generally have a wider range of tactics available to them, and so less need to resort to terrorism. Therefore, a lot of the examples of terrorism that we see are perpetrated by groups opposing established governments.

But Winston Churchill, for example, didn’t hesitate to describe Nazi rule as “the most hideous form of terrorism”. Naturally, Churchill never condemned any actions of the British government as terrorist, but the term was used by Indian nationalists with reference to British rule in India. In turn, the more militant factions of the Indian nationalist movement were themselves condemned as terrorist by the Raj. And so on.