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Outlawing Terrorism

Published online by Cambridge University Press:  12 February 2016

Shalev Ginossar
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Extract

One of the main driving forces of man is fear, and its very paralyzing effect has, in the solution of human conflicts, been sought as method for both attack and defence. No wonder then that Montesquieu recognized fear as the principle of the despotic type of government; while organized terror as practised nowadays on a wide scale has become an instrument for undermining the authority of established government.

Its origin can be traced to Anarchism, that frightful episode in “the war between two divisions of society,… the world of privilege and the world of protest…, the last cry of individual man,… the last fist shaken against the encroaching State”. But organization in every form was so repellent to the 19th century anarchists that they were incapable of drawing together, even for the sake of concerted action.

Type
Articles
Information
Israel Law Review , Volume 13 , Issue 2 , April 1978 , pp. 150 - 159
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1978

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References

1 Montesquieu, , Esprit des Lois, Liv. IIIGoogle Scholar chap. IX: “On ne peut parler sans frémir de ces gouvernements monstrueux”.

2 Tuchman, Barbara W., The Proud Tower (London, 1962) 113.Google Scholar The link between terrorism and the doctrine of anarchy has recently been stressed by Akzin, B. in his essay “Conflicting Tendencies in the Use of Violence” (“Gegensätzliche Tendenzen in der Gewaltsausübung”) in Festschrift für Konrad Duden (Munich, 1977) 6 ff.Google Scholar

3 Lador-Lederer, J.J., “A Legal Approach to International Terrorism” (1974) 9 Is.L.R. 194–220.Google Scholar (Hereinafter Lador-Lederer).

4 Sundberg, Jacob, “Unlawful Seizure of Aircraft” (1974) 6 Arkiv für Luftrett 19.Google Scholar

5 Lador-Lederer, preliminary note at 194.

6 Ibid.

7 As early as 1938 A. Sottile complained that, while terrorism was being internationalized, there was no parallel reaction in the field of repression: see the motto quoted at the head of Lador-Lederer's article.

8 Dinstein, Y., The Defence of Obedience to Superior Orders in International Law (Leiden, Sijthoff, 1965) 80Google Scholar, referring to the case of a “soldier who plunders private or public property, without any harm or danger to human life”.

9 Ibid. But cf. Sundberg, op. cit. supra n. 4, at 44.

10 Dinstein, op. cit., at 180.

11 This is the term used by Lador-Lederer, at 219.

12 Ibid., at 202.

13 Ahmed Ben Ali Snir v. State of Israel (1973) (I) 28 P.D. 234.

14 Ibid., at 242.

15 This is commonly admitted nowadays and the present tendency is for the depoliticization of such crimes. See Sundberg, op. cit. at 58; Lador-Lederer at 200, 216. An important step in this direction has been made by the European Convention for the Suppression of Terrorism signed in January 1977 at Strasbourg. For Johnson, Paul (in his Enemies of Society (London, 1973) at 255)Google Scholar, “anyone who tries to justify political violence, the greatest single evil of our age, must automatically be suspect as an enemy of our society”. This remark might apply to the “new” criminologist school which now seeks to abolish the very notion of crime by reducing it to that of mere deviance, the latter being described as normal behaviour “in the sense that men are now consciously involved in asserting their human diversity”: Taylor, Ian, Walton, Paul and Young, Jock, The New Criminology: For a Social Theory of Deviance (London 1973) 282.CrossRefGoogle Scholar Such a subversive view is naturally a result of the “politicization of crime and criminology” as a whole (ibid. 281).

16 Clutterbuck, R., Guerillas and Terrorists (reviewed by Sieff, M. in the Jerusalem Post, 23 September, 1977).Google Scholar

17 Lador-Lederer, at 207.

18 Op. cit., at 201.

19 Such was the sentence of the Dubrovnik court in the Allaoua case (Sundberg, op. cit., at 69); after which the offenders were expelled to Algeria (ibid., at 40).

20 Sundberg, op. cit., at 37, quoting “the picturesque language” of Professor Cheng.

21 Lador-Lederer, at 197.

22 Sundberg pungently adds: “Oblivious to the existence of their neighbors, it appears, each of them lies brooding like a Roman Empire in miniature over its universal rule!”.

23 Johnson, Paul, Enemies of Society, 253.Google Scholar

24 The Eichmann Judgments in (1968) 36 International Law Reports 280.

25 Ibid., at 281.

26 Ibid., at 304. Therefore a State trying a terrorist “pursuant to the principle of universal jurisdiction” is acting in its capacity as “guardian of international law and an agent for its enforcement” (loc. cit.). See further the detailed discussion of the principle of universality in the judgment of the District Court of Jerusalem in the same case, ibid., at 26–79.

27 Sundberg, op. cit., at 61–62.

28 Dinstein, , “Criminal Jurisdiction over Aircraft Hijacking” (1972) 7 Is.L.R. 195–206CrossRefGoogle Scholar, criticizing the Convention for its “bad draftsmanship” (at 206) and proposing that it should be made to “apply the universality principle”.

29 Feller, , “Comment” on the foregoing article, (1972) 7 Is.L.R. 207–213.CrossRefGoogle Scholar

30 Thus, sees. 10–13 of the Nazis and Nazi Collaborators (Punishment) Law, 1950 (3 L.S.I. 154) exclude most of these defences, including that of prescription.

31 In Israel the death penalty has been abolished for murder. It remains applicable only for genocide and for treason in time of war.

32 See Ginossar, S., “Autonomy of Corrective Law” (1974) 9 Is.L.R. 24–62.Google Scholar

33 Commenting on this feat of “deliberate linguistic conjuring” Paul Johnson remarks that: “In politics, as in war, truth is always the first casualty”. (Enemies of Society, 108).

34 Ibid., at 256.