The ‘War Against Terrorism’ and the Decade of Exceptionalism

Luke Rostill 12th February 2013

Ben Emmerson QC, UN Special Rapporteur on Counter-Terrorism and Human Rights, spoke at the Wadham Human Rights Forum on Thursday February 7th 2013. One question lay at the heart of his talk, namely, ‘what is a terrorist organisation?’ This post summarises what Ben Emmerson QC said about the importance of this question: about why it is significant and how it became so.

The story begins with 9/11. Since that terrible day we have witnessed over a decade of ‘exceptionalism’: a persistent and comprehensive departure from basic principles of law and human rights, and the formation and establishment of new paradigms. Exceptional measures, with worrying implications for human rights and the rule of law, became the norm. Why? It has a lot to do with the position taken by the Bush administration, articulated by President Bush himself on 12th September 2001, that the United States is at war. The war, however, has not been with another state, but with ‘terrorism’ and ‘terrorist organisations’; it is a war against non-state actors on a world-wide scale. The aim, according to President Bush, was to eradicate terrorism from the world.

In the wake of 9/11, the UN Security Council ramped up its counter-terrorism measures. The core measure, Resolution 1373 (2001), imposed an obligation on Member States to criminalise all forms of terrorism (including the financing of terrorism), to freeze the financing of terrorism, and to impose penalties and sanctions on those involved with terrorist activities and/or the financing of terrorism. And so it was that the notions of ‘terrorism’ and ‘terrorist organisations’ were incorporated into the law. The labelling of a group as a ‘terrorist organisation’ has significant consequences. The complex framework for stopping the financing of terrorism, for instance, has meant that many aid organisations find themselves in breach of international law. This reached its pinnacle with the US Supreme Court decision that to teach a group labelled as ‘terrorist’ how to peacefully resolve conflicts was to provide material support to a terrorist organisation, and so a crime. The definition of ‘terrorist organisation’ is critical.

But it was left to Member States to define what counts as a ‘terrorist organisation’. There has been no international agreement over what organisations are ‘terrorist organisations’. It is easy to see the problem. Consider the African National Congress (‘ANC’): it was labelled as a ‘terrorist organisation’ by the apartheid regime and others; but many states refused to regard the ANC as a ‘terrorist organisation’ because of the justness of its cause.  The distinction between internal conflict and terrorism is one that is hard to maintain, a point that is neatly illustrated by the Arab Spring. Leaders across the Western world, including the British Prime Minister, David Cameron, praised those harbingers of democracy, the very same groups who were integral to ‘terrorist organisations’ a few years ago. In Libya, a militarily intervention, described as a ‘regime change’, was effected in support of groups that had previously been labelled as ‘terrorist organisations’.

So where are we with the definition of terrorism (or ‘terrorism’)? For Ben Emmerson QC, ‘terrorism’ should never have crossed the divide from political, emotional name-calling to a legal definition upon which important legal structures are built and from which huge consequences follow. He agreed with an opinion previously expressed by the former Director of Public Prosecutions, Lord Macdonald QC: we are not engaged in a war. What happens, when it happens, on the streets of London, is not a conflict. It is a crime. It should be treated as a crime. And labelling it as a crime removes the false glamour and glory that attracts people to ‘terrorism’, to ‘terrorist organisations’, and ‘terrorist acts.’

Luke Rostill is a DPhil in Law Candidate at the University of Oxford.

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