By Aleksandar Marsavelski, Assistant Professor, Faculty of Law, University of Zagreb.
The revolution you dream of is not ours. You don't want to change the world, you want to blow it up. -- Jean-Paul Sartre, Dirty Hands (1948).
In this Article the author discusses the problem of how to distinguish terrorists and freedom fighters by offering a new perspective on the matter: the constitutional and international law concept of the right of revolution.
The Article contains a historical and a comparative constitutional analysis which lead to the recognition of terrorism as a crime under international law and of the right of revolution as a general principle of law. The Article addresses legal issues arising in some of the major contemporary events from 9/11 to Arab Spring Uprisings (with a special focus on Syria) as well as the 2011 interlocutory decision of the Special tribunal for Lebanon. Finally, the analysis provides criteria of when and how a revolutionary use of force is justified.
On February 16, 2011, the Appeals Chamber of the Special Tribunal for Lebanon (STL) ruled that terrorism has become a crime under customary international law.1 This idea has been advocated by Antonio Cassese,(2) a prominent Italian jurist who was one of the judges sitting in the Tribunal’s Appeals Chamber. However, this is the first time an international court(3) took such a standpoint. The Appeals Chamber’s analysis of international legal standards on terrorism resulted in the conclusion that the international crime of terrorism has three elements: (1) the perpetration of a criminal act (such as killing, kidnapping, hostage taking, etc.), or threatening such an act; (2) the intent to spread fear among the population or coerce a national or international authority to do something, or to refrain from doing it; and (3) the involvement of a transnational element.(4) Although the STL’s Decision has been disputed on various grounds,(5) it represents an important step toward the affirmation of terrorism as a crime under international law.(6) The correct analysis of international crimes lies in the common law scheme adopted in international criminal law: offenses v. defenses. (7) Consequently, this Article is organized as follows: Part I surveys the process of recognition of terrorism as an international offense, and Part II analyses available defenses to allegedly terroristic acts. In Part I, the STL’s Decision shall be used as a springboard for assessing the theoretical approach to terrorism in international law. It is necessary to answer whether there really exists customary international law that introduces terrorism as an international crime, or whether this inclusion simply represents “wishful thinking” on the part of the judges sitting in the STL’s Appeals Chamber. This paper concludes that since international criminal law has not adopted a strict principle of legality and current standards of customary international law tend to be more progressive, terrorism qualifies as an international crime. The consequences of recognizing terrorism as an international crime will be revealed, and the argument made that criminalization of terrorism could live up to the objectives of international criminal justice, specifically because it could require a fair trial for terrorists and also have a deterrent effect in reducing the risk of future terrorist attacks. Finally, Part I assesses theoretical observations and conclusions in a hypothetical case study addressing ways to avoid impunity for the September 11 terrorist attacks.
In discussions about terrorism there is a common phrase that one man’s terrorist is another man’s freedom fighter. Is it possible among various definitions to find one that would most accurately reflect the enormous international documents dealing with terrorism? It is possible, but finding a good definition of terrorism will not solve the puzzle that really bothers contemporary scholars of international law: how to distinguish acts of terrorism from the legitimate acts of freedom fighters? Therefore, in Part II of this Article, a different sort of question will be posed: which defenses are applicable to terrorist acts under international law? The international community puts too much emphasis on finding the “correct” definition of terrorism (8) when in reality, the distinction between acts of terrorists and freedom fighters lies in determining the possible justifications and excuses to those acts. These defenses include the right of revolution, combatant status, the right of self-defense, and necessity.
The right of revolution requires central attention because commentators have largely neglected this doctrine. There are three reasons for this. First is the global dominance of Western countries, which experienced their revolutions a long time ago. The most important ones include the American Revolutionary War (1775- 1783), the French Revolution (1789) and the European revolutions of 1848. Although the pride of these revolutions has never ceased, paradoxically there is not much interest left in the Western view of international law to evoke the same principle they strongly defended two centuries ago. However, the Arab Spring is clear evidence that revolutions are happening even in the 21st century, and this will continue until the last tyrant is removed from Earth.
The second reason commentators neglect the right of revolution is that a complete list of criteria for the justification of revolutionary use of force does not exist. Part II will develop these criteria by relying on historical developments in comparative law, international legal theory and practice.
The third reason is that when the laws of war and human rights law progressively evolved in the 20th century, the right of revolution was not incorporated in international treaty law. This paper concludes that the right of revolution is distinct from laws of war and human rights law. Instead, it should be viewed as an inherent sui generis right and as a general principle of law.
Contemporary international law incorporates one aspect of the right of revolution under the right of self-determination, which permits the use of force against colonial domination, alien occupation and racist regimes. However, the right of self-determination does not cover other situations involving entrapped nations suffering severe oppression by their governments.
One such situation is presently taking place in Syria under the regime of President Bashar al-Assad. In February 2012, according to Navi Pillay, the U.N. High Commissioner for Human Rights, the overall death toll exceeded 5,400 people (including civilians and military personnel who refused to shoot civilians), more than 18,000 were arbitrarily held in detention, 25,000 became refugees, and 70,000 were internally displaced—which indicates “that crimes against humanity are likely to have been committed.”(9) President Assad introduced, then attempted to justify these oppressive measures by arguing that “[n]o political dialogue or political activity can succeed while there are armed terrorist groups operating and spreading chaos and instability.”(10) In September 2012, the Syrian Observatory for Human Rights claimed that 30,000 people have been killed since the beginning of the uprising,(11) and UNHCR estimated that over 500,000 people have fled to neighboring countries.(12)
The situation in Syria will be used in Part II to examine the conditions under which the use of force could be justified in overthrowing an oppressive government. This is important because a revolution against oppression cannot always justify the crimes committed in the name of the oppressed people. A good example is the murder of Muammar al-Gaddafi after his regime was already overthrown. Would it have made a difference if he had been assassinated in February 2011 when his forces killed 500–700 protesters?(13)
If future international practice follows the ruling of the Special Tribunal for Lebanon, recognizing terrorism as a crime under international law, it is essential to determine its limits: at what point does terrorism end and justified freedom fighting begin? Finding an answer to this question motivated the creation of this Article.
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Marsavelski, Aleksandar, The Crime of Terrorism and the Right of Revolution in International Law (January 1, 2013). Connecticut Journal of International Law, Vol. 28, No. 241, 2013. Available at SSRN: https://ssrn.com/abstract=2329401