Ruminations on Terrorism: Expiation and Exposition

Abstract

To paraphrase Richard Falk: Terrorism is political or ideological violence without restraint of law or morality. This article will consider terrorism and reactions to terrorism through a prism of history, philosophy, literature, and law. It is an attempt to show how terrorism is committed by state actors, as well as non-state-actors. I argue that intentional or reckless slaughter of innocents or torturing "enemies" constitutes terrorism and that it ultimately erodes a state's or a group's morality and well-being. Most nations and groups define terrorism in a way that "allows" them to commit atrocity, but condemns "others" who commit the same acts. This ultimately promotes terrorism. Some definitions obscure the line between terrorism as a crime and terrorism as a tactic or strategy of armed conflict. It is important that the law not do this, as I argue that terrorism is criminal conduct. In addition, many, perhaps most, definitions of terrorism, even in criminal statutes and treaties, do not comport with basic principles of criminal law, such as principles of legality, due process, and other human rights and constitutional norms. I will also compare terrorism to other core international concepts, such as war crimes and crimes against humanity. Thus, the article will consider terrorism as a crime, noting the conceptual relationship between terrorism and basic domestic and international substantive criminal law. I will present a definition of terrorism as a crime, including its constituent elements. This allows me to study terrorism in the context of basic principles of culpability and innocence. The definition applies to conduct whether performed by state or government actors, by those who attack innocents to get at state government, or who use it against innocent members of factions whom they don't see as adhering to the actor's vision of "good order." Much of the article, however, is aimed at providing context by analyzing historical evidences of terrorism, including torture and other atrocities, designed to promote the power of those committing it. Thus, I will present an historical and comparative excursus, considering terrorism or analogous conduct and its punishment from antiquity, through the Middle Ages, to the present day, to show why such conduct ought to be punished.