Could a "Material Support" Treaty Reduce Suicide Bombings?
How The U.S.'s Reluctance To Support Such a Treaty Will Harm the War on Terrorism

By NOAH LEAVITT

Tuesday, Aug. 26, 2003

The massive, deadly bombs that were detonated last week in Baghdad and Jerusalem reminded us that terrorists - and those who provide them with financial and moral support - have not been deterred by America's military strength. Indeed, America's armed reprisals in Iraq, Afghanistan, and other parts of the Middle East only seem to be catalyzing violent responses, rather than reducing them.

The U.S. thus may need to explore other strategies in the war on terrorism - including the use of international treaties. For instance, the international community could develop a treaty addressing the important issue of punishing those who provide material support to suicide bombers.

As a major article in the New York Times noted this Sunday, August 24, suicide bombers are becoming recognized as an inexpensive and effective weapon for terrorist groups around the world. Yet hard as it may be to believe, this issue is not currently effectively addressed by international law.

Israel has proposed a treaty addressing just this issue. But unwisely, the U.S. has refused to support it. And meanwhile, even if the U.S. did support the treaty, its own failure to adhere to international legal agreements in the past would doubtless impede its ability to spearhead international support.

The U.S. should support this important treaty - for if suicide bombers cannot themselves be deterred, at least their sources of financing and other support can be cut off.

Moreover, in order to rebuild its credibility with respect to treaties like this, the U.S. should reverse its stance on those major international agreements by which it has refused to abide. The U.S. cannot ask for international cooperation, and agreements, in the war on terrorism, when it is not itself willing to provide such cooperation, and comply with such agreements.

The Difficulty with Reaching an Internationally-Agreed Definition of Terrorism

Twelve international agreements addressing various aspects of terrorism are on file with the United Nations. Yet each of these agreements is severely limited. Perhaps most glaringly, there is no universal definition of "terrorism" common to all of the agreements. Rather, the agreements' definitions vary widely, and there are broad exceptions to all of them.

As Joanne Mariner has discussed in a two-part series of columns for this site, part of the definitional issue is the problem of perspective: "one man's freedom fighter is another man's terrorist." The issue is especially acute because a majority of UN member states are newly independent former colonies that celebrate the men and women who led them to freedom - people who were once labeled terrorists.

For example, for much of the second half of the 20th century, the African National Congress, led by Nelson Mandela, was regarded as a terrorist scourge by the apartheid government, but as inspiring and heroic by the vast majority of the black South Africans. Plainly, a definition of "terrorism" that would apply to Mandela and the ANC would be one with which modern South Africa thus could not agree.

Furthermore, there are difficulties drawing distinctions in international law between acts by terrorists, and acts by armies against civilians. During the past two years, the UN established a special committee to try to develop a unified plan on addressing terrorism. However, it was deactivated - in large part by a bloc of Islamic nations that wanted to exclude activities taken "during an armed conflict, including the situation of foreign occupation."

The definitional issue is underlined by the fact that terrorism is not defined as a war crime under international law - nor is it defined as a crime against humanity, or as a form of genocide when it is based on race or ethnicity. The International Criminal Court statute, which includes these categories of crimes, does not include terrorism, mostly because the drafters were not able to agree on a clear definition.

Some strange and rather shocking results follow from all this. For instance, although Osama Bin-Laden masterminded the September 11 attacks, the international community would not be able to try him on the specific charge of terrorism. Crimes against humanity for murdering more than 3000 people? Yes. Hijacking planes? Yes. But terrorism? No.

Indeed, not only is terrorism not defined as a war crime or crime against humanity, not a single international convention even takes the lesser step of simply condemning terrorism itself. Instead, these conventions only condemn certain, limited particular actions taken by terrorists.

Some condemn hijacking airplanes. (Most were drafted in the 1970s after a wave of airport and airplane attacks.) Others call for marking plastic explosives to make them easier to detect at border crossings. Another addresses hostage taking. Another condemns attacking ships at sea. Yet another criminalizes placing bombs designed to explode in public spaces. But none condemns terrorism generally.

Breaking down terrorism into specific acts this way results in gaps in the law. And these gaps can have deadly consequences.

The Proposed New Treaty on Material Support to Suicide Bombers

Recently, the international community has started to address the new reality of more complex and deadly forms of terrorism through international agreements. For instance, there is the International Convention for the Suppression of Terrorist Bombings, which went into effect in 2001. There is also the International Convention for the Suppression of the Financing of Terrorism, which took effect in 2002.

However, even these agreements do not focus on those who provide material support to suicide bombers and their families - and that is a crucial gap.

A project that would do just that is in an early stage of development. Israel has taken the lead on drafting. (Unsurprisingly - for during the past three years, more than 17,000 recorded terrorist actions against Israelis caused 750 deaths. Moreover, while only half of one percent were suicide bombings, they caused more than 40 percent of the deaths.)

Earlier this year, Israel completed a draft of an international convention on these topics, with three main points. First, it would define as an international crime inciting suicide attacks or providing assistance in perpetrating them. Second, it would forbid states and organizations from offering financial support to the families of suicide bombers. Third, it would create a new international organization, in coordination with the U.N., to help states combat suicide bombings.

The draft permits signatories to try, extradite, or demand extradition of persons violating its provisions, even if a particular bombing has not yet occurred. This draft convention criminalizes both incitement to commit suicide attacks, and rewards given to the families of the bombers before or after the attacks are completed.

Israel's ability to lobby for this agreement is diminished, however, by its status as an international pariah, due to Prime Minister Ariel Sharon's forceful policies toward the Palestinians. Accordingly, Israel has been seeking to persuade other countries who are also victims of suicide bombers to lobby for the agreement. Russia, India, Turkey, Germany and other countries have said they are interested.

Their interest is laudable. Whether or not such an agreement becomes international law, proposing it would at least place the critical discussion about how to stop suicide bombers squarely on the international stage - and do so before the attacks increase in number and deadliness.

Given their close strategic relationship and interconnected history, Israel also approached the United States for early support. Yet, surprisingly, the United States has indicated that it is not interested - despite the obvious usefulness of such an agreement in the war on terrorism.

Why America's Objection to the "Material Support" Agreement Is Unpersuasive

Although the U.S.'s exact criticism is not on the record, it appears to be based on possible conflict with the right to free expression under the First Amendment of the U.S. Constitution. But as a reason for declining to support the agreement, this is not persuasive.

After all, under American constitutional law, incitement to violence may be criminalized - as long as it poses an immediate harm. Inciting a suicide bomber who acts soon thereafter ought often to pass this test. Thus, if the U.S. is truly concerned about free speech, it ought to press for changes in the agreement's language on incitement - rather than simply failing to lend its support to the agreement. (Moreover, U.S. speech doctrine in this are may, in any case, be outmoded in an age of terrorism, as Julie Hilden has suggested in a column for this site.)

This First Amendment objection, in any event, is a very odd one for this Administration to make. In the domestic arena, First Amendment concerns have not stopped the Bush Administration from aggressively pursuing U.S. citizens who provide "material support" to terrorist groups, even if that support is intertwined with the exercise of the freedoms of speech and association.

For instance, the U.S. has actively gone after supporters of charities that, among other activities, send funds to groups defined as terrorist. And it seeks to do even more. As Anita Ramasastry has discussed in a column for this site, the much discussed PATRIOT Act I legislation, if enacted, would even authorize stripping U.S. citizens of citizenship for speech or actions that indicate they may have provided assistance to a terrorist or terrorist group.

The U.S. Should Put Its Objection Aside, and Press for a Material Support Agreement

So why is the U.S. really declining to support the Israeli "material support" proposal - or one like it?

This position might be based on a fallacious belief that the domestic law - and domestic firepower - alone can address terrorist attacks. But if the U.S. hasn't yet disavowed any such belief, it should soon. Only international cooperation has led to the apprehension of key terrorists and would-be terrorists. And that is hardly a coincidence: Groups like Al Qaeda and individuals like Bin Laden work across and around borders. That plainly makes terrorism an international problem requiring international solutions, both military and legal.

The U.S. may also be concerned about its relationship with Saudi Arabia, and with the Palestinians. But Saudi Arabian support for families of suicide bombers must be addressed, even at a cost to that relationship. Especially since September 11, many commentators have urged the U.S. to put greater pressure on the Saudis relating to links to, and funding of, terrorists, if it truly wants to stop the war on terrorism. This is one way to do so.

With respect to the Palestinians, the U.S. should tread carefully, but needs to make its position clear. It should oppose suicide bombings, and lobby for an international agreement to punish those who support them, because such bombings have derailed the peace process that is in the interest of both Palestinians and Israelis. And it should oppose Israeli violations of international law as strenuously as it does suicide bombings on the Palestinian side.

Taking a stand of principle on this issue is the right thing to do. And its political cost - like its free speech cost - is often overstated. Sadly, though, the Bush Administration might not even be able effectively to push this solution to suicide bombing even if it wanted to, for in recent years, it has lost the necessary credibility to do so.

The U.S.'s Credibility Gap On International Agreements

During the past few years, the Bush Administration has rejected, and even undermined, many of the most important recent international agreements. These include the Kyoto Protocol, which addresses global warming, numerous missile reduction programs, and the statute creating the International Criminal Court. The U.S.'s recent use of force in Iraq was also contrary to numerous international agreements and United Nations Security Council resolutions.

Meanwhile, however, the Administration has supported those international agreements that help extend U.S. power, and keep Americans safe. For instance, the U.S. has signed numerous bilateral agreements with other countries that provide for the extradition of people who have committed crimes in the U.S. and then fled abroad.

Increasing America's compliance with, and use of, international law is all the more important now, when terrorism is high both of the global agenda, and the U.S.'s. The ability to seek, and achieve, cooperation on this issue may determine whether terrorists and their supporters are brought to justice, and funds for terrorism cut off - or whether the terrible attacks we have recently seen only continue, and even escalate.


Noah Leavitt, an attorney, has practiced human rights law in numerous international and domestic settings. He can be contacted at nsleavitt@hotmail.com.

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