On state as the subject of terrorism
Jiang Zheng-Chun economic law Student ID: s06140
Research Paper Supervisor: Dr. Sekou Conde
Minzhu University of China
2006-2007 Academic Year
The confusion over whether a state is a subject of terrorism is the practical obstacle for the legal definition of terrorism. Developing countries and western developed countries can not see eye to eye on this confusion. The author holds that state is the subject of terrorism which is based on the following 5 reasons. First, historically, state terrorism is the root of individual terrorism and organic group terrorism; what’s more, it has more harm than the later two. Thus, we should face it instead of dodging it; otherwise, it is just a daydream to hold back the terrorism crime at its source. Second, according to international law, states enjoy the sovereignty and privileges, such as diplomatic immunity. As a result, some states often make use of those privileges and immunities to provide protection for terrorism they support. Meanwhile, a state will not be against the common law in contemporary international relations to directly be engaged in terrorist crime to infringe other countries’ sovereignty. However, state terrorist activities secretly countenanced by states should be paid high attention and not be ignored. Thirdly, scholars’ theories together with the endeavor of countries and UN to fight against state terrorism prove the existence of state terrorist crime. Fourthly, the criminal responsibility of state terrorist activities could be prosecuted in a special way according to international conventions. Finally, The democratization and civilization of international relationships and international political actions require persisting generally－acknowledged truth, justice, law, as well as anti－terrorism of states.
The confusion over whether a state is a subject of terrorism is the practical obstacle for the legal definition of terrorism. Developing countries and western developed countries can not see eye to eye on this confusion. For example, the United States defines terrorism as violent activities that are carried by non-state groups and secret organizations and are usually premeditated and politically empowered to aim at non-military targets and influencing the public. [1] While many developing countries pay their attention to state terrorism and regard it as the root of individual terrorism and organic group terrorism. They believe that policies, which aim to repress struggles of fighting against racial discrimination and colonialism and efforts to achieve national freedom, independence and any other basic rights, are terrorism. And they allege that terrorism is result from colonial rule, racial discrimination and state terrorism, so the priority to solve the problem of terrorism must be given to hold back state terrorism, which is the prime criminal to breach the equal international economic and political order. [2]( p.6) In 1979, at the special commission of UN on the definition of international terrorism, countries including Senegal underscored that the definition should contain state terrorism and they unambiguously ranked state terrorism as one conduct of government and claimed it should be grouped into 2 categories. One is the actions like imperialism, colonialism, racialism and actions against basic human rights carried out by metropolitan states. The other is actions against the sovereignty of other countries. While in 1981, Yugoslav put forward that state terrorism should include all forms of invasion, revenge and subversion to revolt and occupy other countries’ territory on discussing the definition of terrorism at the meeting of the sixth commission of UN. But it is not easy to take state terrorism in politics into that of legal concept, to put it into international convention under the agreement of all countries and to put the written rule into practice. State is universally recognized as a basic subject of international law, yet it has for a long time still been a doubt whether a state could be the defendant in international criminal court, if so, then whether is there a proper way for a state to be criminally liable? As a matter of fact, even up to today a state’s criminal responsibility has always been in dispute in the theories of international law. The overwhelming majority of countries hold that there will be great difficulties both in theory and in practice if a state can be a criminal subject. And the major difficulties are the following: who will be supposed to judge whether a state is guilty or not? What’s the legal consequence of the crime of a state? And who will be supposed to enforce the penalty? Even in case of group terrorism crimes, it is a politically and legally touchy problem which is complicated and sensitive to countries, if it involves governments, armies and police. Thus it is political tactics to cover their invasions and interference that are violation of international laws for western countries to delay state terrorism. While some developing countries insist subjects include state, their purpose is just to hold back state terrorism and combat crimes that violate international laws. Therefore, anti terrorism, which originally confronts with difficulties in law, are now entangled in politics.
state is a subject of terrorism
The author holds that state is the subject of terrorism which is based on the following 5 reasons. First, historically, state terrorism is the root of individual terrorism and organic group terrorism; what’s more, it has more harm than the later two. Thus, we should face it instead of dodging it; otherwise, it is just a daydream to hold back the terrorism crime at its source. Second, according to international law, states enjoy the sovereignty and privileges, such as diplomatic immunity. As a result, some states often make use of those privileges and immunities to provide protection for terrorism they support. Meanwhile, “one of the obligations that a state should take on is not to infringe other countries’ sovereignty”.[3]( p.233) That’s why a state will not be against the common law in contemporary international relations to directly be engaged in terrorist crime to infringe other countries’ sovereignty. However, state terrorist activities secretly countenanced by states should be paid high attention and not be ignored. Thirdly, the endeavor of countries and UN to fight against state terrorism prove the existence of state terrorist crime. Fourthly, the criminal responsibility of state terrorist activities could be prosecuted in a special way according to international conventions. Finally, The democratization and civilization of international relationships and international political actions require persisting generally－acknowledged truth, justice, law, as well as anti－terrorism of states.
To summarize, state terrorist crime is defined as terrorist activities of a government by controlling state organs. It was used as a tool to realize the government’s internal and external policies. Generally, state terrorist crime is committed through political, religious and military organizations and individuals. It can be classified into internal state terrorism and international state terrorism. The mode to ascertain the criminal responsibility of the state that is engaged in state terrorism can be referred to the advice of “the Draft Articles on State Responsibility” in 1979, and the penalty can be taken out by UN Security Council either by force or by non-force.
1. Internal state terrorism
From a historical prospective, the word of terrorism in the French Revolution in 18th century referred to the violent way that the administration used to maintain its regime and its own rule, which is absolutely state terrorism. In 1934, the king of Yugoslavia was assassinated by Nazi in Paris; this resulted in the transformation of terrorism in legal terms from state terrorism to individual terrorism and organic group terrorism，which realize certain social goals by causing terrorist activities. Under this circumstance, internal state terrorism could be subdivided into two types. One is individual terrorism or organic group terrorism. Nowadays there are about 1000 terrorism organizations, which can be classified into the following five kinds: ⑴ultra-left terrorism, which scatters mainly in some Latin American countries and developed countries including US, Japan and some European countries. ⑵ultra-right terrorism, this mainly distributes in Western Europe, United States and Latin America. It is a kind of terrorism organization pursuing new fascism, totalitarianism and racism. ⑶terrorism of nationalism, which exists in all parts of the world, such as the Republican Army of North Ireland. ⑷religious terrorism organization. ⑸ mafia-like terrorism organization. For example, the Mafia in Italia. And the other is internal state terrorism, which means the current administration uses terrorist activities to repress the challenge to its authority to sustain its rule. In other words, it refers to the terrorist activities of authorities by controlling the state organs, just like the definition given by Great Britain Encyclopedia. So, terrorism can be the violence of individual and non-government political power including assassination, explosion, and poisoning and can also mean a totalitarian action of a state i.e. internal state terrorism. It’s true that the history has proved terrorism is an efficient measure to sustain the stability and regime in special times, such as what has been mentioned above i.e. the terrorism policy carried out by French administration in French revolution and the Red Terror of Bolshevik after Russian October Revolution, however, what more it bring about are personnel and financial loss, public terror and pain, the trample of democracy and civilization. Therefore, [...]
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