OpinionWorld News

International law is biased in favor of terrorism

A treaty is required to define terrorists as “unlawful combatants” and enable states to fight them effectively.

View of the General Assembly Hall of the United Nations. Photo: Arie Leib Abrams/Flash90
View of the General Assembly Hall of the United Nations. Photo: Arie Leib Abrams/Flash90
Benjamin Kerstein
Benjamin Kerstein is a writer and editor living in Tel Aviv. Read more of his work on Substack at No Delusions, No Despair. Purchase his books here.

The myth of invincibility is of the utmost importance to any terrorist organization. Such organizations always seek to convince others and especially opponents that they cannot be destroyed. No matter what the authorities do, they claim, terrorism will always rise from the ashes stronger and more deadly than before. This myth was perhaps best expressed in a phrase often attributed to Henry Kissinger: “If a terrorist organization is not destroyed, it wins.” The only available option, this implies, is to give the terrorists whatever they want.

Like most myths, this is nonsense. There is no such thing as an organization that cannot be destroyed, just as there is no such thing as an unwinnable war. The question is not whether a terrorist organization can be destroyed, but whether the authorities are willing to pay the price to do so.

Terrorists know this, so the key to their strategy is to exhaust the enemy. Sooner or later, terrorists believe, societies and especially democratic societies—which are not known for their patience—will tire of the costs of a “forever war” and simply give up. Often, they are right. But it need not be this way.

The truth is that the main reason terror organizations survive is that international laws and norms are biased in favor of terrorists. This bias makes defeating terror a long, expensive and costly process. The terrorists know this quite well and seek to exploit it by taking such measures as embedding themselves among civilians to maximize civilian casualties. This forces their opponents to moderate their military operations to avoid violating international law, thus protracting the conflict.

Most international laws were not originally formulated to enable terrorism. They were intended to protect civilians and prisoners of war; ensure due process; prevent torture, abuse and massacre; and, in general, ameliorate the horrors of war. All of this is well and good, but these laws suffer from an inherent flaw that terrorists exploit to the utmost: International law applies to states. That is, when a state is fighting a terror organization, the terrorists receive all the benefits of international law and none of the obligations. Precisely the opposite applies to the state.

This is not only obviously unjust, it also means that, from the beginning, the terrorists have the upper hand. Terrorists can slaughter civilians; violate the human rights of their victims; torture, abuse and massacre; and do everything possible to maximize the horrors of war with no consequences whatsoever. By contrast, a state that is fighting terrorism is under a microscope, unable to make a single mistake without bringing down the condemnation of the world and possible sanctions of all kinds. International law enables and encourages terrorism.

It is profoundly sad that this situation was not addressed in the aftermath of 9/11 when the situation was dire enough to prompt change. There were a handful of useful reforms, such as the branding of terrorists as “unlawful combatants” under U.S. law, but no wholesale reform of international law was undertaken. That mistake must be rectified.

The first step might be to enshrine the status of “unlawful combatant” in international law. A treaty on the subject should be proposed and pressure brought to sign it, first on democratic countries and then on others. It should define unlawful combatants as non-state actors who, in furtherance of ideological, political or religious goals, deliberately engage in acts of systematic violence or atrocities against civilians.

The treaty should stipulate the following: 1) International laws of war do not apply in military operations against unlawful combatants. 2) Unlawful combatants are not entitled to the protections accorded to lawful combatants under international law or the laws of the signatory nations. 3) The human rights of noncombatants are considered null and void so long as the organization to which they belong does not respect the human rights of others. 4) Aid organizations, NGOs and other international bodies are prohibited from engaging in any activities that may directly or indirectly benefit unlawful combatants. 5) Anyone who arms, finances or otherwise aids unlawful combatants will be considered an unlawful combatant. 6) States that arm, finance or otherwise aid unlawful combatants will be considered in violation of international law and subject to automatic sanctions and/or military action.

Such measures would not solve the problem of terrorism. Barbaric violence has been a constant in human history and it will remain so. Nonetheless, it would tip the legal balance in favor of those who fight terrorism rather than those who engage in it.

The natural objection will be that nations cannot renege on their commitments and values whenever it suits them. This is an emotive argument, but international law itself disagrees. The Fourth Geneva Convention, for example, states in Chapter 1, Article 2, “Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”

This is tangled legalese, but the takeaway is clear: Countries engaged in conflict must observe the Convention only if the enemy “accepts and applies the provisions thereof.” No terrorist organization on earth has ever done this. Their entire strategy is predicated on not doing so. Rather than acknowledge this fact, the international community chooses to pretend it does not exist. Until it stops doing so, states faced with the menace of terror must remind the international community of its own laws and demand change.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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