GOOD AND BAD TERRORISM?

In Part One of a two-part series on terrorism, FindLaw columnist Joanne Mariner discusses international anti-terrorism efforts and the question of whether there can ever be good terrorism. Part Two, which will appear on this site on January 21, will analyze the current draft of the U.N. anti-terrorism treaty in light of existing international legal norms. - Ed.

Is there such a thing as good terrorism? While Osama bin Laden seems willing to embrace the concept, having recently characterized his own efforts as "blessed terrorism," few others would agree. To speak of good terrorism is, in the majority view, to reference an oxymoron, and, indeed, a senseless and offensive one.

If the question were ever deemed worthy of consideration, the events of September 11 would appear to have settled it. The world reaction to the devastating attacks on New York and Washington has solidified an apparent global consensus that terrorism is abhorrent and unacceptable, no matter who the perpetrators or what their motives. From Italy to Iran, South Africa to the United Kingdom, government leaders around the world have hastened to condemn terrorism and to promote concerted action against it.

The Superficiality of the International Consensus

An important element of the international anti-terrorism effort is the drafting of a comprehensive United Nations treaty on terrorism. The "Comprehensive Convention on International Terrorism," as the draft treaty is called, is meant to cover the full range of terrorism-related problems, including hijacking, kidnapping, armed attacks and the funding of terrorist groups.

The conflicts are easy to see once the discussion moves from generalities to specific cases. Ask the Israelis for a paradigmatic example of terrorism, and they point to Palestinian suicide bombers. Ask the Iranians -- or the leaders of almost any Muslim state -- and they cite Israeli actions in occupied Palestine.

In late January, when the members of the U.N.'s Ad Hoc Committee on Terrorism meet to continue their treaty negotiations, they will have to grapple with such disputes, and with the fundamental disagreement reflected in them. At its core, the question is whether terrorism is simply an illegal and unacceptable set of methods, or whether in assessing the legitimacy of a group's actions an examination of its circumstances and goals is necessary as well.

The debate over these issues arises out of the negotiators' efforts to formulate a common definition of terrorism and, in particular, to decide whether certain forms of armed struggle should be granted a blanket exemption from the stigmatizing label of terrorism.

Another Man's Freedom Fighter?

The Kosovo Liberation Army, the ethnic Albanian rebel group that was instrumental in the U.S. victory over Yugoslavia in 1999, did not initially enjoy a great deal of U.S. support. Indeed, in February 1998, U.S. envoy Robert Gelbard publicly characterized the KLA as a "terrorist group" in consideration of its record of assassinations and kidnappings.

By the following July, however, such language was long forgotten. Although the KLA's tactics had not noticeably improved, the overall context had changed sufficiently that the U.S. preferred to gloss over, rather than highlight, the KLA's abuses.

There are manifold similar examples. One does not have to accept the radical subjectivity of the overused saw, "one man's terrorist is another man's freedom fighter," to recognize that there is an inverse relation between a government's sympathy for a group's larger goals and its willingness to view the group's members as terrorists. Nobody wants to be branded a terrorist, and nobody wants his or her allies to be seen as terrorists.

Thus, governments inevitably tend to overlook or downplay abuses committed by their own armed forces or by forces they support. Disputes typically occur over the facts -- over, for example, whether a given set of killings were cold-blooded executions or were combat deaths.

With the current U.N. anti-terrorism treaty, however, even though the debate's terrain is similar, the locus of the dispute has shifted from facts to definitions. Because if terrorists are by definition bad (or even, in the post-September 11 lexicon, evil), then it crucial to define terrorism in such a way as to cover the acts of one's enemies and not one's friends, and certainly not one's self.

The critical areas of dispute in the new treaty are thus twofold. First, states sympathetic to the Palestinian cause -- in particular, the members of the Organization of Islamic Conference and the League of Arab States -- insist that any definition of terrorism must clearly distinguish terrorist groups from national liberation movements. Specifically, this means that any group deemed to be engaging in a struggle against "foreign occupation" -- in other words, the Palestinian Liberation Organization, Hizbollah, and groups like them -- should be exempt from all consideration as terrorists.

On the other side of the spectrum, governments including the United States and Israel would like to ensure that terrorism cannot, by definition, be committed by the armed forces of a legitimate government. According to this view, in other words, terrorism is inherently an abuse committed by non-state actors, not by recognized governments.

Although the different sides disagree vociferously in their politics, there is a disconcerting underlying similarity to their positions. Both would permit a horrifying set of acts as long as these acts were committed by certain favored groups. Neither side would choose to formulate the problem using these blunt terms, yet the underlying question remains: is there such a thing as good terrorism?