Terrorism: The International Response of the Courts

Abstract

Terrorism:The International Response of the Courts* Michael Kirby, The Honorable Justice (bio) I. A Century of Terrorism The events of September 11, 2001 in the United States, of October 12, 2002 in Bali, and during 2004 in Madrid, Breslan, and Jakarta, have brought home to the world the challenge that acts of terrorism present when combined with new means of causing destruction and of enlivening the capacity of the global media to cover the suffering. However, terrorism is not new. The last century was a century of terrorism. It was not always so perceived. Yet from the early days-from the anarchists and communists in 1901 through the colonial unrest that followed, right up to the new century we have entered-that was the reality. The Great War began in 1914 with an act of terrorism. The reality struck home within the British Isles in the Easter Rebellion in Dublin in 1916. Not a year of the century was free from acts of terror. Mahatma Gandhi deployed a very skillful combination of passive resistance, sporadic violence, and political showmanship, ultimately to lead India, the jewel in the Crown, out of British rule. Mohammed Ali Jinnah did the same with Pakistan, obliging the division of the subcontinent that has since witnessed unrest and terrorist acts as a consequence. Over many decades (most of them in prison on Robben Island), Nelson Mandela led the African National Congress (ANC), modeled on that of India. For decades the ANC was branded a "terrorist" organization. What did these three leaders have in common? All were lawyers.1 All [End Page 313] were gifted communicators. Gandhi and Mandela, at different times, were even prisoners in the same jail, near where the Constitutional Court of South Africa now proudly stands in the center of Johannesburg. Other "terrorist" movements were led by people who refined their skills on the battlefield-Mao Tse Tung, General Giap, Ho Chi Minh, Colonel Boumédienne, Gamel Abdel Nasser. As the old European empires crumbled, terrorists struck at their quarry. They did so against the new autocratic Nazi and Soviet empires and were repaid with fearsome reprisals. They did so against the relatively benign British Empire in Palestine, Kenya, Malaya, Aden, Cyprus, and elsewhere. They attacked the faded glories of France in Algeria and Vietnam. The new empires that took the place of the old were then themselves attacked, as in East Timor, Chechnya, Kosovo, and West Irian. Terrorists mounted separatist campaigns in Northern Ireland and Quebec. Successive coups in Fiji deployed unconstitutional and violent means. Bougainville, the Solomons, and East Timor came uncomfortably close to collapse. Indonesia has repeatedly fallen victim to suicide bombers of Jemaah Islamiah. Russia has suffered repeated violence, much of it apparently caused by Chechnyn separatists. In my youth, I followed the Cyprus campaign of General Grivas. He was a commander of no more than 250 EOKA terrorists with extreme nationalist sympathies, demanding union with Greece. Those few ultimately drove 28,000 British troops from the island by destroying their political capability to wage war.2 The fate of the French in Algeria was similar. The same has not proved true in Northern Ireland. Whereas the "colons" in Algeria constituted only 2 percent of the population, the overwhelming majority of the Muslims in that country had a common interest in forcing their increasingly desperate and violent French rulers to leave.3 Eventually they succeeded. In Northern Ireland, there always were, and still are, substantial numbers in both communities who found continuing connection with the United Kingdom acceptable and terrorism unacceptable.4 The story of Uruguay is particularly instructive. Before 1974, it was one of the few longstanding, stable constitutional democracies of Latin America. In 1967 it adopted a new and stronger constitution. That document incorporated [End Page 314] impeccable rule of law and human rights principles. But then Uruguay suffered a serious economic downturn which threatened its welfare laws. At the same time, it had to grapple with a challenge from a small, determined band of terrorists known as the Tupamaros. The Tupamaros resorted to indiscriminate acts of violence and cruelty that shook Uruguayan society. The citizens, and especially the military, began to demand solutions. Coups had...