Abstract
This chapter illustrates that a key challenge in contemporary discourses on this subject lies in identifying the limits between terrorism and war. It makes clear that there appears to be considerable confusion between the concept of terrorism and the concept of war in the post 9/11 era, especially in the context of military action in Iraq and Afghanistan. The link between terrorism and war is analysed from three distinct but interrelated perspectives. Firstly, terrorist practices are also performed by the armed forces and organised groups of resistance in wartime. However, it is argued that, as a phenomenon, terrorism should not be confused with war or warfare guerrilla. Secondly, it is explored whether the threat of contemporary international terrorism is a manifestation of some sort of criminality, or, by contrast, represents a new form of warfare. The chapter considers the consequences of taking into account one or the other approach, as each would lead to the application of two opposite legal models.
Translated by Marta Garcia Bel.
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Notes
- 1.
Either way, international norms of the Ius in Bello serves to establish which situations can be considered state of war and which not. Thus, the determination of whether the conflicts in Iraq and Afghanistan are still wars is beyond the scope of this paper [on this issue, see H. Duffy, The “War on Terror” and the Framework of International Law (Cambridge/New York: Cambridge University Press, 2005) at 255 ff.]. In this article, we just want to analyze what are the consequences on terrorism if lived in peacetime or wartime (which previously must be defined by another branch of law).
- 2.
In this sense, Ackerman, “The Emergency Constitution,” The Yale Law Journal 113 (2004): 1029 at 1032, shows that the wars in Iraq and Afghanistan were wars. Instead, the fight against Al Qaeda is not. Is of the same opinion Duffy, The “War on Terror” and the Framework of International Law, at 271.
- 3.
Cfr. R. M. Chesney, “Careful Thinking About Counterterrorism Policy: Terrorism, Freedom, and Security: Winning Without War. By Philip B. Heymann,” Journal of National Security Law & Policy 1 (2005): 169 at 170. However, as the author says, at 172, the term “war on terrorism” is so closely associated with the Bush administration that many have forgotten that it has also been used by presidents of both parties over the past twenty years, to invoke its commitment to the fight against terrorism. Moreover, according to Dubber, MD, ‘Guerra y paz: Derecho Penal del enemigo y el modelo de potestad de supervisión policial del Derecho Penal estadounidense’, in M Cancio Meliá/C Gómez-Jara Díez (coords), Derecho Penal del enemigo. El discurso penal de la exclusión I (Montevideo/Buenos Aires, Edisofer, 2006) at 685, “American criminal law has been immersed in the so-called ‘war on crime’ since the late Sixties”. Therefore, the introduction of the word war in the fight against crime is common in the U.S. (cfr. B. Ackerman, “This is not a war,” The Yale Law Journal 113 (2004): 1.871 at 1.871), especially in the war on drugs.
- 4.
On this point see Duffy, The “War on Terror” and the Framework of International Law, at 186 ff.
- 5.
P. Wilkinson, “Las leyes de la guerra y del terrorismo,” in DC Rapoport, La moral del terrorismo (Barcelona, Ariel, 1985) at 136.
- 6.
J. Avilés, “Democratización y terrorismo en Irak” (www.realinstitutoelcano.org, ARI n 130/2003, 6-11-2006), states that “the guerrilla is a form of unconventional warfare in which irregular units attack by surprise military targets and then leave before having to deal with superior enemy forces. Thus, it represents an asymmetric strategy which can compensate for a significant imbalance of forces”. Therefore, note that, in this context, the term “guerrilla” does not refer to criminal organizations that, especially in Latin America, are also defined with the same expression: for example, in Colombia, the FARC – which is a group that has all the characteristics to qualify it as terrorist.
- 7.
We must emphasize that there is a fourth area where criminal law and war are intertwined, namely, in cases in which State officials may be held criminally liable under the crime of aggression because they intervene in a “war of aggression” (on this issue, see K. Ambos, “Derecho penal y guerra: ¿Intervención punible del gobierno alemán en la guerra de Irak?” Revista de Derecho Penal y Criminología 15 (2005): 171 at 171 ff.).
- 8.
See The Geneva Conventions of 1949 and their Additional Protocols.
- 9.
Arts. 43.2 and 50.1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, for the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, define combatants and civilians. On this issue, see Duffy, The “War on Terror” and the Framework of International Law, at 228 ff.
- 10.
Art. 35.1 and 2 of Protocol I.
- 11.
Art. 8.2 b) xx) of Rome Statute (RE).
- 12.
G. Rona, “Legal Issues in the “War on Terrorism” – Reflecting on the Conversation Between Silja N.U. Voneky and John Bellinger,” German Law Journal 9 (2008): 711 at 722–723, shows that a combatant would not be held criminally liable for acts of war that respect the laws, but may be prosecuted for war crimes if he attacks civilians or uses prohibited methods.
- 13.
According to S. Tiefenbrun, “A Semiotic Approach to a Legal Definition of Terrorism,” Journal of International & Comparative Law 9 (2003): 357 at 381, an attack against combatants during an armed conflict with the purpose of inspiring them or the population fear or terror should not be called terrorism. “This is war, plain and simple,” he states.
- 14.
Although, as indicated by F. Gudín Rodríguez-Magariños, La lucha contra el terrorismo en la sociedad de la información. Los peligros de estrategias antiterroristas desbocadas (Madrid: Edisofer, 2006), 42, “terrorizing the population through cruelty is not a basic war strategy”, the author also admits that “indiscriminate attacks on civilians have become normal in modern wars”. In fact, Duffy, The “War on Terror” and the Framework of International Law, at 25, emphasizes that international law provides a definition of terrorism in the context of war, prohibiting acts of violence whose purpose is to spread terror among the civilian population. In this regard, Tiefenbrun, ‘A Semiotic Approach to a Legal Definition of Terrorism’, at 384, proposes that an act of terrorism committed during an armed conflict can be regarded as a specific type of war crime.
- 15.
In this sense, if the Afghan conflict was characterized as war and Taliban forces were considered combatants, the seizure of 23 South Korean missionaries held by the Taliban militia in July 2007, in order to exchange the hostages for Afghan prisoners, would be a real example of this assumption. In this case, the militia finally agreed with South Korea, and the Asian government agreed to withdraw all its troops from Afghanistan by the end of 2008, and hostages were released.
- 16.
Art. 8.2 a) viii) RE considers that the taking of hostages protected by the Geneva Conventions is a war crime. On this point, see M. Abad Castelos, “La toma de rehenes como crimen internacional,” Lucha contra el terrorismo y Derecho Internacional (2006) 133 Cuadernos de Estrategia, at 137 ff.
- 17.
For the purposes of the Rome Statute attacks against civilians that do not take direct part in hostilities in an armed conflict (see art. 8.2 b) i) in case of international conflicts and art. 8.2 c) i) in case of national conflicts) are considered war crimes.
- 18.
Think of the genocide committed during the Balkan War between 1992 and 1995.
- 19.
In this sense, Tiefenbrun, ‘A Semiotic Approach to a Legal Definition of Terrorism’, at 358 ff., stresses that terrorism as a method is also used to commit crimes against humanity.
- 20.
Under the International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations in December 1999 and entered into force in April 2002, is considered terrorism: any act “intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict , (…)” (emphasis added).
- 21.
In this sense, Avilés (“Democratización y terrorismo en Irak”, already cited) believes that terrorism is characterized by attacking “noncombatant targets”. In my opinion, we should add a second condition, namely, the non-combatant status of the offender. On this issue, see also A. Valsecchi, “La definizione di terrorismo dopo l’introduzione del novo art. 270-sexies c.p,” Rivista Italiana di Diritto e Procedure Penale 1103 (2006) at 1108 and 1116 ff.
- 22.
In this sense, the Human Rights Watch organization has accused the Taliban militia for war crimes, as they attacked indiscriminately civilians and combatants. Of the 136 suicide bombings in 2006, 20 were only targeting civilians and the rest military objectives, but in any case causing more deaths among the population, 272, than among Afghan and international troops, 37 (cf. his report ‘El coste humano: las consecuencias de los ataques insurgentes en Afganistán’).
- 23.
In the same sense, H. Olásolo Alonso and A. I. Pérez Cepeda, Terrorismo internacional y conflicto armado (Valencia: Tirant lo Blanch, 2008) at 150 ff.
- 24.
Note that, in early February 2007, had already died about 400 civilians in Baghdad, in several attacks performed on markets and Shiite neighborhoods since the beginning of that year.
- 25.
For example, the November 7th, 2006, following the announcement of the death sentence of former Iraqi dictator, Saddam Hussein, two attacks on districts of Baghdad caused 25 deaths. On the one hand, several mortar rounds made in a Sunni neighborhood killed seven people. In retaliation, 17 people died in a Shiite neighborhood after a suicide bomber blew himself up inside a coffee shop. However, Iraqi police described that persona as “suicide bomber” and so appeared in the media.
- 26.
Similarly, we must also qualify as war crimes attacks of non-combatants against military forces where necessary or possible side effect is the killing of civilians.
- 27.
In a similar vein, see Tiefenbrun, “A Semiotic Approach to a Legal Definition of Terrorism” at 386–387.
- 28.
As stated by Tiefenbrun, “A Semiotic Approach to a Legal Definition of Terrorism” at 358 ff., when terrorism is conceived as a means to perpetrate other crimes, is overlaid with crimes against humanity, genocide, war crimes, etc.
- 29.
Art. 4.A) of III Convention and art. 44 of the Protocol I define who the prisoners of war are.
- 30.
Authorization for Use of Military Force, September 18th 2001 (Public Law 107–40, § 2[a]).
- 31.
Public Law 109-366 (10/17/2006). The history of this Act is interesting (cfr. Kness, AJ, ‘The Military Commissions Act of 2006: an Unconstitutional Response to Hamdan v. Rumsfeld’ (2007) 52 South Dakota Law Review 382 at 383 ff.): in Afghanistan, the U.S. military camp captured thousands of individuals, mainly because of a reward system offering $ 5,000 for every Taliban and $ 20,000 for each member of Al Qaeda, of whom about 86% were transferred to Guantanamo. On November 13th, 2001, President Bush signed the Military Order in which provided for a special military court system, composed of military commissions, to try those detainees. The U.S. Supreme Court in its Judgment in the case Hamdan v. Rumsfeld (05–184) 548 U.S. _ (2006), overruled the decision of the president and said that charges could not proceed without specific authorization from Congress. Thus, only a few months later, Congress passed the Military Commissions Act (for more information on this Act, military commissions and the Judgement, see R. J. Araujo, “A Judicial Response to Terrorism: The Status of Military Commissions Under Domestic and International Law,” Tulane Journal of International and Comparative Law 11 (2003): 117 at 117 ff.; J. Y. Capozzi, “Hamdan v. Rumsfeld: A Short-Lived Decision?,” Whittier Law Review 28 (2007): 1.303 at 1.303 ff.; B. W. Earley, “The War on Terrorism and the Enemy Within: Using Military Commissions to Prosecute U.S. Citizens for Terrorist-Related Violations of the Laws of War,” New England Journal on Criminal and Civil Confinement 30 (2004): 75 at 77–78; S. Estreicher and D. O’scannlain, “Hamdan’s Limits And The Military Commissions Act,” Constitutional Commentary 23 (2006): 403 at 403 ff.; C. M. Evans, “Terrorism on Trial: The President’s Constitutional Authority to Order the Prosecution of Suspected Terrorists by Military Commission,” Duke Law Journal 51 (2002): 1.831 at 1.831 ff.; R. O. Everett, “The Role of Military Tribunals Under the Law of War,” Boston University International Law Journal 24: (2006): 1 at 1 ff.; J. R. Fricton, “The Balance of Power: The Supreme Court’s Decision on Military Commissions and the Competing Interests in the War on Terror,” William Mitchell Law Review 33 (2007): 1.693 at 1.693 ff.; T. M. Gore, “Commission Control: The Court’s Narrow Holding in Hamdan v. Rumsfeld Spurred Congressional Action But Left Many Questions Unanswered. So What Happens Now?,” Mercer Law Review 58 (2007): 741 at 741 ff.; N. K. Katyal, “Hamdan v. Rumsfeld: The Legal Academy Goes to Practice,” Harvard Law Review 120 (2006): 65 at 65 ff.; D. Stoelting, “Military Commissions and Terrorism,” Denver Journal of International Law and Policy 31 (2003): 427 at 427 ff.; J. Yoo, “An Imperial Judiciary at War: Hamdan v. Rumsfeld,” Cato Supreme Court Review 83 (2005/2006): 86 at 86 ff.; and S. Yousef, “Military Tribunals: Cure for the Terrorism Virus or a Plague All Their Own?,” Houston Law Review 42 (2005): 911 at 911 ff., usually very critical of the establishment of military commissions).
- 32.
Defined in § 948a[1].
- 33.
Public Law 111–84 (10/28/2009).
- 34.
Or, as war criminals, if accused of committing this kind of crimes.
- 35.
Moreover, indeed, they should have been at the end of hostilities under art. 118 of the Geneva Convention of August 12, 1949, relative to the Treatment of Prisoners of War, Convention III. In the same vein, Duffy, The “War on Terror” and the Framework of International Law, at 257. Thus, the decision in Hamdi v. Rumsfeld (03–6696) 542 U.S. 507 (2004) of the U.S. Supreme Court emphasized that, in light of the rules of war, the “vital purposes” of the detention of uncharged “enemy combatants” were preventing those combatants from rejoining the enemy. Thus, the imprisonment can only last as long as hostilities remain active.
- 36.
On this question see D. Golove and S. Holmes, “Terrorism and Accountability: Why Checks and Balances Apply Even in “The War on Terrorism”,” The NYU Review of Law and Security 2 (2004): 2 at 3–4.
- 37.
However, it is not acceptable to argue with criteria of efficacy. W. H. Taft IV, “War Not crime,” in The Torture Debate in America, ed. K. J. Greenberg (New York: New York University, 2006) at 224 ff., considers that applying the rules of an armed conflict, adapted to the characteristics of Al Qaeda, is legitimate, since those allow detaining and interrogating indefinitely uncharged people, and therefore are more effective in combating terrorism. Although that may be, it does not confer legitimacy. This would only be possible if this phenomenon constituted a real war.
- 38.
However, for some authors (Golove/Holmes, “Terrorism and Accountability…’, at 3 and 7), international terrorism is neither war nor crime in the traditional sense of the terms. On the contrary, it is a combination of both, or perhaps a new phenomenon.
- 39.
J. L. González Cussac, “El Derecho Penal frente al terrorismo. Cuestiones y perspectivas,” in Terrorismo y proceso penal acusatorio, coord. J. L. Gómez Colomer and J. L. González Cussac (Valencia: Tirant lo Blanch, 2006) at 84.
- 40.
Thus, for instance, A. M. Dershowitz, Why terrorism works? Understanding the Threat Responding to the Challenge (New Haven: Yale University Press, 2002).
- 41.
González Cussac, “El Derecho Penal frente al terrorismo. Cuestiones y perspectivas,” at 84 ff.
- 42.
However, there are proposals that claim the creation of a third regulatory domain. Ackerman, ‘The Emergency Constitution’, at 1.030 ff., considers that, in order to face the current threat from terrorism, both Criminal Law and the Law of War are inappropriate. In his view, a third way is needed, namely, the “state of emergency” (for more details on this proposal, see two of the later work of Ackerman, “The Emergency Constitution,” at 1871 ff.; and Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (New Haven: Yale University Press, 2006) at 13 ff.); or M. P. Scharf, “Defining Terrorism as the Peacetime Equivalent of War Crimes: Problems and Prospects,” Case Western Reserve Journal of International Law 37 (2005): 359 at 373, proposes to define terrorism as the peacetime equivalent of war crimes. Thus, he advocates the need to apply the laws of war to the terrorists, so it would be permitted to conduct more vigorous measures that cannot be used if applying of common law.
- 43.
For example, the Military Commissions Act de 2009 expressly provides: “No alien unprivileged enemy belligerent subject to trial by military commission under this chapter may invoke the Geneva Conventions as a basis for a private right of action” (§ 948b[e]).
- 44.
As stated by L. Ferrajoli, Derecho y razón. Teoría del garantismo penal (Madrid: Trotta, 1995, translated by Perfecto Andrés Ibáñez) at 830, only on the assumption that terrorism is a real threat against the foundations of the state an emergency legislation would be legitimate. In addition, we must add to this first premise the following: once the state of war is determined, the regulation provided in case of armed conflict should be applied, or, on the contrary, once the threat is faced with the emergency regulations, we have to go back to normality (in this sense, K. L. Scheppele, “Law in a Time of Emergency: States of Exception and the Temptations of 9/11,” 6 Journal of Constitutional Law 1 (2004) at 3). Thereby, the proposal of Ackerman, ‘The Emergency Constitution’, at 1030 ff., consisting of using the emergency law is, in the first place, unnecessary, because of the lack of the major premise, namely, the real threat from terrorism to the survival of democratic systems. But in addition, whether terrorism ever becomes such a risk or not, his model is illegitimate because the state of emergency becomes a permanent situation and ordinary regulation is exceptional. The same author believes that the aim of settling a state of emergency is to show people that the danger is under control and that the Government is taking effective action in the short term to prevent further terrorist attacks that could cause panic. Thus, if the emergency regulation just wants to calm society, but not effectively prevent the dangers which are frightening, and so, it is merely symbolic, the terrorist threat has no end (as the author admits explicitly). Consequently, the time frame of the emergency state becomes final and the exception the rule, because while the dangers from terrorism still remain, the need of calming the population is going to be necessary. Thus, although the solution from Ackerman wants to avoid long term damage that the introduction of the exceptional in the ordinary law inflicts on individual rights, it causes the same effect (see criticism of the proposal Ackerman made by D. Cole, “The Priority of Morality: The Emergency Constitution’s Blind Spot,” Yale Law Journal 113 (2004): 1.753 at 1.753 ff.; and L. H. Triebe and P. O. Gudridge, “The Anti-Emergency Constitution” The Yale Law Journal 113 (2004): 1.801 at 1.801 ff.). In short, both exceptional standards as the emergency powers tend to last longer than the state of emergency or the emergency request, and, this way, the exception remains, either in ordinary legislation, either in a state of emergency. Thus, we find ourselves, in the words of Ferrajoli, at 820 and 828, in the “perennial emergency”.
- 45.
In this sense, the following words by Rorty are very illustrative, “Fundamentalismo: enemigo a la vista,” in El País, 29 March 2004 at 11: “The widespread suspicion that the war on terrorism as potentially more dangerous than terrorism itself seems entirely justified. Because if the direct consequences of terrorism were all we had to fear, there would be no reason to suppose that Western democracies would not be able to survive the explosions of nuclear bombs in their cities. At the end of the day, natural disasters that cause human death and destruction on a scale do not represent a risk to democratic institutions. For example, if the tectonic plates of the Pacific Coast moved and all skyscrapers collapsed, this event would mean certain death for hundreds of thousands of people. But after burying the victims, they would begin again with the reconstruction”. In the same opinion, Ferrajoli (Derecho y razón. Teoría del garantismo penal, at 829 ff.) noted that there would be an agreement in the fact that terrorism that struck Italy in the 1970s and 1980s should not be qualified as a civil war, as anyone except the terrorists themselves or few prosecutors, could “seriously think that terrorism really threatened the foundations of the state”; M. Ignatieff, El mal menor (Madrid: Taurus, 2005) at 81, believes that “there is a huge difference between the threat of an armed attack by another state and a terrorist incident. Even if the plane that crashed in Pennsylvania had beaten the White House or the Capitol, “the 11-S attacks would not have threatened to collapse the U.S. democracy”; and W. Laqueur, Una historia del terrorismo (Barcelona: Paidós, 2003, translated by Tomás Fernández Aúz y Beatriz Eguibar) at 19, emphasizes that all terrorism comes to an end and that “radical Islamic groups [that] are now at the forefront of terrorism” will not be an exception.
- 46.
Cfr. Ignatieff, El mal menor, at 92 ff.
- 47.
As noted by J. Dratel, “The curious debate,”, in The Torture Debate in America, ed. K. J. Greenberg (New York: New York University, 2006) at 113, Al Qaeda does not present a military threat comparable to Nazi Germany or the Empire of Japan during the II World War, since that terrorist organization does not control Europe or dominate Asia. In the same vein, Lord Hoffmann, in the Judgement of the House of Lords on December 16, 2004 ([2004] UKHL 56, A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent), declaring unconstitutional the Prevention of Terrorism Bill, 2001 regarding the possibility of indefinite detention for foreign nationals), states: “I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. (…) Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community” (emphasis added; cfr. M. Cancio Meliá, Los delitos de terrorismo: estructura típica e injusto (Madrid: Reus, 2010) at 45; and Ignatieff, El mal menor, at 81–82, notes that “although the September 11 is often compared to Pearl Harbor, certainly Al Qaeda does not have anything like the resources of the Empire of Japan”.
- 48.
In this sense, Gudín Rodríguez-Magariños, La lucha contra el terrorismo en la sociedad de la información, at 28–29.
- 49.
Cfr. Ignatieff, El mal menor, at 81.
- 50.
In the same vein, U. Beck, Sobre el terrorismo y la Guerra (Barcelona: Paidós, 2003, translated by Rosa S. Carbó) at 35; W. K. Clark and K. Raustiala, “Why Terrorists Aren’t Soldiers,” The New York Times 8-8-2007 (www.nytimes.com); P. B. Heymann, Terrorism, Freedom and Security: Winning Without War (Cambridge: The MIT Press, 2003); and Viganò, “Terrorismo, guerra e sistema penale,” at 679 ff. Of a different opinion, Dershowitz, Why terrorism works, at 21 ff.; and Taft IV, “War Not crime”, at 223 ff.
- 51.
Thus, the European Parliament in its report of February 2, 1994, said that “terrorism is a harm of peacetime, which must be treated with the remedies we have for peacetime”.
- 52.
Heymann, Terrorism, Freedom and Security, at 19 and 87 ff., emphasizes that the “war metaphor” diverts attention to the measures that States should take to fight terrorism.
- 53.
In the same sense, Ackerman, ‘The Emergency Constitution’, at 1.070 and n 4 at 1.872–1.873; and H. Steinert, “The Indispensable Metaphor of War. On Populist Politics and the Contradictions of the State’s Monopoly of Force,” Theoretical Criminology 7 (2003): 265 at 265 ff.
- 54.
Beck, Sobre el terrorismo y la Guerra, at 31.
- 55.
Beck, Sobre el terrorismo y la Guerra, at 33–34. For him, the individualization of war could lead to the death of democracy because “governments should join with other governments against their citizens to avert the dangers that come from them”. And the person used as a mere object of control is what characterizes a totalitarian regime (cfr. Gudín Rodríguez-Magariños, La lucha contra el terrorismo en la sociedad de la información, at 176).
- 56.
For instance, in Iraq and Afghanistan.
- 57.
See Earley, “The War on Terrorism and the Enemy Within…’, already cited; Heymann, Terrorism, Freedom and Security, at 32–33, is critical to the expansion of military intelligence at a domestic level.
- 58.
In this sense, the Bush Administration stated that even the U.S. territory is a combat zone in the “global war on terror” (cfr. Golove/Holmes, “Terrorism and Accountability…’, at 4–5).
- 59.
See his dissenting opinion in the case decision Hamdi v. Rumsfeld (03–6696) 542 U.S. 507 (2004).
- 60.
In the ruling of the case Hamdi v. Rumsfeld, the U.S. Supreme Court stated that “captivity in war is neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war” (emphasis added).
- 61.
In this sense, Stoelting, “Military Commissions and Terrorism”, at 435, shows that the qualification “wartime” legitimates indefinite detention by military authorities.
- 62.
Thus, the judgment of the case Hamdi v. Rumsfeld acknowledged that, from this perspective, Hamdi’s detention could be extended until the end of his life, since the Bush administration declared that the war on terrorism will not cease, at least for the next two generations. In the literature, see Taft IV (n 38 at 226) who, in order to alleviate the life imprisonment of enemy combatants, proposes a periodic individual review that highlights the intentions of each captured if released, and A. C. McCarthy, “Torture: Thinking about the Unthinkable,” in The Torture Debate in America, ed. KJ Greenberg (New York: New York University, 2006) at 101, who finds unacceptable the indefinite detention of members of Al Qaeda.
- 63.
In the same vein, D. Cole, “Enemy Aliens and American Freedoms”, The Nation 23-9-2002 (www.thenation.com).
- 64.
In this sense, Ackerman, (‘The Emergency Constitution’, at 1.033) and Dershowitz (Why terrorism works, at 21) show that the war on terrorism could never end.
- 65.
On this kind of war, see D. Cole and J. Lobel, Less Safe, Less Free. Why America Is Losing the War on Terror (New York/London: New Press, 2007) at 70 ff.
- 66.
In the same sense, J. Lobel, “The War on Terrorism and Civil Liberties,” The University of Pittsburgh Law Review 63 (2002): 767 at 790. And, as demonstrated by Scharf, ‘Defining Terrorism as the Peacetime Equivalent of War Crimes…’, at 365), one of the consequences (which for this author is positive) to equate terrorism with a war crime is that, then, the State is entitled to use military force in self-defense against a terrorist group physically located within the boundaries of another State.
- 67.
Clark/Raustiala, Why Terrorists Aren’t Soldiers, already cited.
- 68.
Along with these reasons, finally, as demonstrated by M. Cancio Melià, “Terrorismo y Derecho Penal: sueño de la prevención, pesadilla del estado de derecho,” in Política criminal en vanguardia. Inmigración clandestina, terrorismo, criminalidad organizada, coord. M. Cancio Meliá and L. Pozuelo Pérez (Navarra: Civitas, 2008) at 317–318, the use of the slogan “war on terror” is offering just what the terrorists intend.
- 69.
Article 51 of the UN Charter. On this issue, with the specific case of Afghanistan, see Duffy, The “War on Terror” and the Framework of International Law, at 188 ff.
- 70.
Although, as stressed by F. Reinares, Terrorismo y Antiterrorismo (Barcelona/Buenos Aires/México: Paidós, 1998) at 199 ff., “there is great controversy among diplomats and lawyers over whether the logistical support or harboring terrorists is enough to place charges against an State and consider that it is involved in terrorist activities performed by the terrorists against other countries, thus justifying the use of force by the latter in the territory of the former”. See, also, Prittwitz, C, ‘¿Guerra en tiempos de paz? Fundamento y límites de la distinción entre Derecho penal y guerra’ (2004) 14 Revista Penal (translated by F. Navarro Cardoso) at 179.
- 71.
Cfr. Prittwitz, “¿Guerra en tiempos de paz?…,” at 179–180. Perhaps the most devastating effect of a retributive war is the idea of collective punishment (on this issue, see Golove/Holmes, “Terrorism and Accountability…’, at 7).
- 72.
In the same vein, Duffy, The “War on Terror” and the Framework of International Law, at 84; B. Garzón, “La respuesta,” El País, 2 October 2001 (www.elpais.es); and Prittwitz, “¿Guerra en tiempos de paz?…,” at 179.
- 73.
As noted by W. K. Clark, Winning Modern Wars: Iraq, Terrorism, and the American Empire (New York: Public Affairs, 2003) at X, it is not an exaggeration to compare the 11-S with an act of war. For the society, for public opinion and the media, the attacks were a crime and a war: “‘attack on America’ and ‘terrorist attack’, ‘war against USA’ and ‘monstrous massacre’”.
- 74.
Resolutions 1368 and 1373. Critical to this decisions, Garzón (“La respuesta”) and Prittwitz (‘¿Guerra en tiempos de paz?…’ at 179 ff.).
- 75.
Garzón ((“La respuesta”); A. I. Pérez Cepeda, “El paradigma de la seguridad en la globalización: guerra, enemigos y orden penal,” in P Faraldo Cabana (dir)/LM Puente Aba/EM Souto García (coords), Derecho Penal de excepción. Terrorismo e inmigración (Valencia: Tirant lo Blanch, 2007) at 111; and Prittwitz (‘¿Guerra en tiempos de paz?…’, at 176).
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Llobet, M. (2012). Terrorism: Limits Between Crime and War. The Fallacy of the Slogan ‘War on Terror’. In: Masferrer, A. (eds) Post 9/11 and the State of Permanent Legal Emergency. Ius Gentium: Comparative Perspectives on Law and Justice, vol 14. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4062-4_5
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