By Aleksandar Marsavelski, Assistant Professor, Faculty of Law, University of Zagreb.
Abstract
In the early 1990s, Leonard Weinberg wrote the first and foremost article about the conditions under which political parties turn to terrorist activities. He argued that the links between terrorist groups and political parties have become common, often affecting each other’s appearances and disappearances. There are many examples of such links. Political parties labelled as terrorist include the Kurdistan Workers’ Party (PKK), which is linked to Kurdish militant separatism, as well as radical Islamist political parties linked to the Islamic State of Iraq and the Levant (ISIS). ISIS itself could be considered a terrorist political party seeking to establish a pan-Islamic state. Donetsk Republic is another proto-state political party, which is classified as a terrorist organization by the Ukrainian authorities. In China, Uyghur jihadists have established a terrorist organization called Turkistan Islamic Party aimed at seeking the independence of East Turkestan. Some terrorist political parties have been dissolved, such as Batasuna and its successors, which served as political wings of the recently dissolved Basque terrorist organization ETA. Other parties continue to exist after renouncing their terrorist activity, such as Sinn Féin, an Irish political party historically associated with the Irish Republican Army (IRA).
Bringing political parties to court in order to determine their liability for terrorism is a feature of the contemporary judicialization of politics. This tendency has direct implications for the constitutional division of powers, which is the most plausible reason why, in many countries, it appears inconceivable to attribute criminal liability to political parties. Countries have introduced or maintained various legal obstacles to the prosecution or conviction of political parties, and most law enforcement bodies are unwilling to undertake criminal procedures and hold political parties criminally liable. The jurisprudence of the European Court of Human Rights clearly indicates that neither criminal prosecutions nor alternative sanctions on terrorist political parties, including party bans, would be incompatible with human rights standards.
But when it comes to terrorist political parties, jurisdictions worldwide find a way to impose sanctions. Listings of political parties as terrorist organizations spark controversy as such procedures are the result of government decisions rather than the outcome of court proceedings. To avoid this, international criminal law should follow the Nuremberg precedent and include the liability of terrorist political parties.
Having political parties on trial is not always an ideal solution either. Various controversies linked to political trials throughout history have demonstrated the need for restrictions on the criminal responsibility of political parties in political settings where criminal proceedings risk being instrumentalized in confrontations with the opposition parties. Therefore, it is necessary to strike an adequate balance between the interests of justice and the need of preserving a functioning democratic system. Having evaluated different models of criminal liability of political parties, we can conclude that each model has its advantages and disadvantages. It is an illusion to think that there is one model that fits all situations, because it also depends on the political system, the legal tradition (common law vs. civil law), the type of terrorist activity, and many other circumstances. After all, one man’s terrorist organization is another man’s freedom party.
I. Introduction
In the early 1990s, Leonard Weinberg wrote the first and foremost article about the conditions under which political parties turn to terrorist activities. (1) He argued that the links between terrorist groups and political parties have become common, often affecting each other’s appearances and disappearances. There are many examples of such links. Political parties labelled as terrorist include the Kurdistan Workers’ Party (PKK), which is linked to Kurdish militant separatism, as well as radical Islamist political parties linked to the Islamic State of Iraq and the Levant (ISIS). ISIS itself could be considered a terrorist political party seeking to establish a panIslamic state. Donetsk Republic is another proto-state political party, which is classified as a terrorist organization by the Ukrainian authorities. 3 In China, Uyghur jihadists have established a terrorist organization called Turkistan Islamic Party aimed at seeking the independence of East Turkestan. Some terrorist political parties have been dissolved, such as Batasuna and its successors, which served as political wings of the recently dissolved Basque terrorist organization ETA. Other parties continue to exist after renouncing their terrorist activity, such as Sinn Féin, an Irish political party historically associated with the Irish Republican Army (IRA).
In Weinberg’s view, political parties that are most likely to stimulate the formation of terrorist groups share two things in common: (1) advocating grandiose political goals and (2) highlighting the illegitimacy of the dominating political order.4 Both these characteristics create challenges in finding an adequate definition of terrorism in the context of freedom fighter vs. terrorist dilemma. 5 For example, Hamas won the majority of seats in the 2006 Palestinian Parliament elections as a result of Palestine’s struggle for freedom from Israeli oppression, but it also killed hundreds of Israeli civilians, and many countries consider Hamas a terrorist organization, including the U.S. and the EU.
According to Michels, modern political parties are ‘fighting organizations’ in the political sense of the term, and as such they must conform to the laws of tactics.(6) In democratic settings, their strategy is generally non-violent, because it consists of election campaigns. In authoritarian settings, however, they can take recourse to violence to maintain or obtain political power. The former are those ruling authoritarian parties, while the latter are considered revolutionary or terrorist organizations. Many contemporary social democratic parties evolved from communist parties that had used violence to overthrow monarchs or otherwise change the form of government in their countries. Many conservative political parties also evolved from militant nationalist parties that had fought for national unification or for the secession of a particular nation. Many of them used similar means of struggle to what ISIS is using today. Take for instance the assassination of the King Alexander I of Yugoslavia, orchestrated by the Internal Macedonian Revolutionary Organization (IMRO), a militant political organization with a background of armed uprisings against the Ottoman regime a few decades earlier. Today, attacks on any European head of state as well as violent uprisings would constitute acts of terrorism.(7)
But why do political parties take recourse to terrorism? The criminological explanation for this lies in Merton’s concept of ‘rebellion’. (8) Terrorist violence occurs when opposition parties reject legitimate means to change the government or where such means are not available, so their actions are directed towards a replacement of the political system that conforms with their ideology and enables them to obtain political power. (9) In authoritarian countries, this is often the only way to change the government.
While the international community has laid down important international rules to prosecute individuals for atrocities constituting war crimes, crimes against humanity, genocide, and even terrorism, (10) the international law neglects liability of political parties for such atrocities, as organizational liability is generally still disputed. Yet even at Nuremberg, the Nazi Party was not left without punishment. The International Military Tribunal charged the bodies of the Nazi Party with all crimes under the Nuremberg Charter, while the Tribunal convicted three of its bodies as criminal organizations. The statutory jurisdiction of the International Criminal Court, however, accepts neither the crime of terrorism nor the criminal liability of organizations. Furthermore, the terror of the Nazi Party initially began through its military wing, the SA (Sturmabteilung), which was also prosecuted at Nuremberg but acquitted due to lack of temporal jurisdiction.
Suggested Citation:
Marsavelski, Aleksandar, The Phenomenon of Terrorist Political Parties and Countermeasures for Their Suppression (2019). in: Engelhart, M., & Roksandić Vidlička, S. (Eds.), Dealing with Terrorism: Empirical and Normative Challenges of Fighting the Islamic State. Berlin: Duncker & Humblot, pp. 236-254 (2019). Available at SSRN: https://ssrn.com/abstract=3442745