Hamas's Ironic Victory?: Why It May Change The Way International Law Defines and Prohibits Terrorism

Hamas's victory in the recent Palestinian elections has rattled political leaders around the world. While Hamas operates a wide range of mosques, medical clinics, social services programs and schools, it is better known for its violent goals and its violent actions, which have often targeted civilians.

Hamas's Covenant calls for the destruction of the current state of Israel. And, since 2000, Hamas's aggressive military wing, the Izz al-Din al-Qassam Brigades, has carried out hundreds of suicide bombings and other attacks that have killed and injured thousands of civilians in Israel. Because of these attacks, and other forms of support for terrorism, the E.U., Canada, the U.S., Australia, and Israel all list Hamas as a terrorist organization.

The election thus raises critical diplomatic questions: Should governments recognize Hamas, especially given that Hamas does not recognize another UN member state, Israel? Should governments withhold funding in order to encourage or pressure Hamas to renounce its terrorist goals?

But these diplomatic questions are intimately linked to legal questions, too: Much of the confusion about how to deal with Hamas stems from the fact that the international legal order is troublingly ambiguous about the very definition of terrorism, and, in particular, about who must be held accountable for terrorist actions. Astonishingly - especially given the high priority placed on fighting terrorism since September 11 - international law simply has no clear definition of terrorism.

Hamas's victory underlines why that must change: The UN must define terrorism clearly, specify who will be deemed responsible if it occurs, and act to prevent and punish it.

Sadly, Hamas is unlikely to be the only terrorist-friendly organization to gain political legitimacy, and even legitimate governmental power, in the Middle East. We are almost certain to see the 'Hamas Victory Scenario' happen again and again. And if the U.S. goes to war with Iran and attempts to bring democracy to that county of 70 million people, Hamas's victory may seem very small, compared to the backlash that will result.

One can hope, then, that the Hamas victory will spur the international community to definitively address the longstanding question of how to define terrorism. To hesitate now, may only lead to much greater harms down the road.

Terrorists-turned-Governors: How Will Hamas Evolve?

Human rights organizations have called on the new government to declare publicly that Hamas will no longer use lethal force to target civilians, nor will it cause indiscriminate harm to civilians.

Even Amnesty International, which has been accused of being blindly sympathetic to Palestinians, pointed out: "Leaders and spokespeople of Hamas have often condemned Israel's attacks against Palestinians as violations of international law. But they must recognize that the same international law is equally applicable to them - both in their conduct vis-à-vis Israel and at home."

These appeals to the new government ask no more than international law requires. Article 33 of the Fourth Geneva Convention explicitly prohibits "all measures … of terrorism" against civilians - including acts of retaliation for attacks against one's own civilians, and acts allegedly intended to resist occupation.

Might Hamas renounce terrorist actions? It's possible. Consider two other groups that once employed terrorist tactics - and were deemed terrorist organizations by many world powers - but officially renounced these tactics when they rose to power in democratic governments.

Under apartheid, Nelson Mandela's Umkhonto we Sizwe, the military arm of the then-outlawed African National Congress (ANC), was considered a terrorist organization, but was supported by the majority of South Africans. Now, of course, the ANC leads South Africa's democratically-elected government, has instituted a host of progressive social welfare programs, and Mandela himself is the world's moral conscience and peacemaker.

In Ireland, the Irish Republican Army, often considered the political/military arm of the Sinn Fein, was considered a terrorist organization by many countries. Sinn Fein is now a vital political force in Northern Ireland and the Republic of Ireland.

Both of these military entities officially renounced their use of violence when their affiliated political parties assumed control. Will Hamas do the same, under international pressure?

Article 13 of its Covenant is far from encouraging: It states that "Initiatives, and so-called peaceful solutions and international conferences, are in contradiction to the principles of the Islamic Resistance Movement" and that they "are all a waste of time and vain endeavors." Still, now that Hamas is in power, it may change its mind.

It would help greatly if international law were to provide a benchmark for Hamas's potential transformation - defining what terrorism is, and who counts as a terrorist or terrorist co-conspirator.

The Key Legal Question: Who is a Terrorist?

Terrorism, and the need to clearly define it, has been the subject of debate for nearly seventy years. Thus far, the international community has approved of twelve terrorism conventions and numerous resolutions - but they provide slightly varying definitions and contain long lists of exceptions and carve-outs.

The U.S., which has signed and ratified the twelve conventions, has said it wants a Comprehensive Terrorism treaty. And it is right: The international community needs to speak with one voice, in one authoritative document, on this subject. Terrorism's theater is the entire world, and the threat of terrorist attacks unites nations around the globe.

Since 1996, substantial work toward a comprehensive convention on terrorism has been done. This past December, the relevant working group almost had a final draft -- but it was scuttled at the last minute because of a few differences of opinion. Negotiations will resume on February 28.

The current draft defines terrorism as acts by a person that "unlawfully and intentionally" cause death or serious damage "when the purpose of the conduct …is to intimidate a population … or to compel a government or international organization" to act in a particular manner.

In other words, this draft takes a blackmail-based view of terrorism - seeing terrorism as an impermissible tactic to coerce certain results. One example of terrorism that would fit this definition would be the recent kidnapping of journalist Jill Carroll, coupled with the demand that female Iraqi prisoners be released.

This definition would criminalize not only acts, but threats and attempts. And it would place criminal responsibility not only on direct perpetrators but also accomplices, conspirators, and persons who direct or organize such actions.

This makes sense, but there are other proposals worth considering, too. One approach would be to simply define an act of terrorism as the peacetime version of a war crime. International law is clear about what war crimes are: They include deliberate attacks on civilians, hostage-taking, and the killing of prisoners.

Here, too, the Jill Carroll kidnapping would be a core example of what terrorism is - and it could be one even if the kidnappers had made no demands at all, and had no political agenda at all.

The U.S., As the New Security Council President, Should Spearhead the Anti-Terrorism Effort

The United States, represented by Ambassador John Bolton, recently assumed the presidency of the Security Council. That puts the U.S. in an excellent position to help negotiate a definition of terrorism, as well as to spearhead the coalition-building and collaboration necessary for long-term enforcement of that definition.

And it gives Bolton a chance - if he so chooses - to reverse his reputation for disdain for the UN and its procedures, which I discussed in a prior column. Bolton himself should lead the negotiations for the Comprehensive definition, and should provide greater muscle to the UN's Counter-Terrorism Committee.

Meanwhile, on the political side, Bolton should push the UN, and its individual member states, to pressure Hamas to renounce its terrorist agenda and to publicly renounce its call for the destruction of another UN member state. Even within the past week, Hamas seems to be reacting to calls to cut funding to the Palestinian Authority by saying that the new government will abide, for now, with past agreements its predecessors made with Israel.

Yet, the U.S. should go further, too - initiating a vigorous and engaged partnership with the European Union, Japan, Russia, India and others to address the long-term issue of which Hamas's election victory is just one example.

That issue is this: How should the international community, collectively, react to states that have governments led by terrorist-supporting politicians? The issue is only made more thorny by the fact that ignoring negotiations, diplomacy and the rule of law is the classic mark of a terrorist rogue state.