Terrorism: Do you handle it as a crime or as a war or both?

Terrorism: Do you handle it as a crime or as a war or both?

If we take a step back (well, a few kilometres of steps back) and look at the way terrorism is addressed, we usually find two ways. The first is what I call as the British school, where terrorism is treated as a crime, while the other school of thought is the American school, where terrorism (especially after 9/11) is treated as a war. Other countries, which have seen recent significant levels of terrorism such as Russia, Israel and Pakistan, fall into the latter school, while Spain and India fall in the British School. So which school do you want to be in?

There is a deep fundamental debate, usually in the arcane and rarefied world of academics and think tanks, about how to approach terrorism. Putting it in another way the debate is about which school of thought a counter–terrorist strategy should be based upon. The two schools can be termed as terrorism as a crime and secondly terrorism as a war. In this essay, we first explore what are the components and characteristics of the two schools and if there are any pre-requisites to be following any school and if one can switch from one school to another and finally, some thoughts on the ongoing war against Islamist terrorism. If I remember it correctly, Mark Twain said, “a school is an institution but who wants to be in an institution? “ Similarly, given a choice, nobody actually wants to have a terrorist campaign rampaging away requiring a counter-terrorist strategy. However, given the current state of the world, terrorism is here to stay and understanding how to handle it or how countries handle it is important to make sense of this phenomena.

The British School relies on a counter-terrorist strategy, geared primarily towards treating terrorism as a crime. This means, there is much more police work, more intelligence (an emphasis more on the human side rather than electronic although both are used) operations and a much softer approach. Individual rights are protected, apprehended terrorists are handled through the standard criminal justice system, and international links are usually done on a government-to-government diplomatic basis, involving the United Nations, Interpol and other standardised channels of international criminal cooperation. The American school treats terrorism as an existential threat and goes heavily into use of military assets and operations. Given an existential threat, individual liberties are frequently threatened; terrorists are either shot on sight or are imprisoned without recourse to judicial oversight. The counter-terrorist strategy is based upon looking at the entire terrorist group(s) as an enemy, which has to be handled through military means. Of course, intelligence of both types is used, but military intelligence is the added factor in here.

We mentioned some examples in the introduction. For example, Russia is one of the clear-cut examples of where the American school is followed in handling terrorism emanating from Chechnya. Individual rights are an interesting theoretical concept, military force is massively applied both inside and outside, international alliances are weak or non-existent, and the insurgents/terrorists are usually treated with contempt and usually shot out of hand. A similar situation occurs in Pakistan, which is facing terrorist campaigns in Baluchistan and Waziristan. It is treated as civil war and police work is minimal with the army and paramilitary forces dominating. Israel, while a bit more restricted, also follows the same model with tanks, attack aircraft, artillery, military intelligence, assassinations, etc. all being primary counter terrorist assets. While Israel does have a good judicial system, comparatively speaking, terrorists are liable to be shot rather than arrested to be tried and letting the civil judicial system take care of them. USA is a slightly different case. While it does allow American citizens to be treated under American law and have civilian oversight, the presence of Guantanamo Bay, the rendition flights, press reports of exporting suspects to other countries for torture, strange judicial and security measures against American citizens means that the “rights” situation is more akin to war like conditions rather than crime. Combined with a propensity to use military solutions rather than crime fighting solutions means that the counter-terrorism strategy is what we call as the American School.

On the other hand, Spain, India, Germany and the UK tend to rely more on a policing led approach to counter terrorism. The rights of suspects and terrorists are held inviolate, and while lapses (like the tragic mistake of shooting of the Brazilian man, Jean Charles de Menezes, in London, frequent lapses in India’s judicial process or collapse of judicial terrorist trials in Germany and Spain) do occur, overall, a strong human rights and legalistic framework remains. If we see the situation in India, even in a rabid terrorist situation like in Kashmir with frequent gun battles where terrorists are killed, one does find news reports that pure police detective or intelligence work has managed to capture terrorists who then have been sentenced to prison, etc. Internationally, these countries prefer to work with the other nations in trying to build international coalitions, to force terrorism sponsoring states to reduce it, and work through international agencies like Interpol. While India has threatened to go to war with Pakistan over the parliament terrorist strike, in the end it did not do that for various reasons. Still, overall these countries can be said to follow the British school for counter-terrorist strategies.

What a country chooses as its counter-terrorist strategy depends on the type of threat, the type of group, the tactics, the history of the campaign, its neighbour, the legal system, the system of international alliances, the presence of allies in the first place, where the terrorists are coming from, and a few dozen more factors which are too numerous to list. Nevertheless, this is not the objective of this essay. So for example, one of the main reasons for the European nations to adopt the British School of thought is their prior experience with handling left wing and/or secessionist violence for the past few decades in Northern Ireland, the Red Army Faction, Baader Meinhof gang, Palestinian terrorists, etc. In addition, with the adoption of the EU Human Rights Charter, one cannot go about shooting terrorists willy nilly, even though this has happened. Furthermore, most of the British School adherents have signed up to the International Criminal Court statutes, which means that a legalistic crime focussed strategy is a foregone conclusion.

However, while there is no clear-cut judgement of either approach, there are definite downsides. Following the British School means that because of the extremely high degree of proof required to successfully prosecute terrorists, many terrorists slip through the nets and are let go. A legal and security system which is oriented towards preventing and prosecuting garden-variety criminals is not fit to handle terrorism and terrorist ideologies. This causes legal limbo, gaps and holes. As one would appreciate, ordinary crime does not have a political agenda and consequently one does not have the legal tools available to handle it. A fundamental part of the legal security system is that the perpetrators accept that they are working under that umbrella. It is not stated or agreed, but no legal system can handle terrorists who totally refute these legal systems. Can you imagine Al Qaeda admitting the validity of the London police to prosecute the 7/7 bombers? Of course not, for them it is a religious duty. Moreover, no secular legal system will allow you to pop off people for religious reasons. Therefore, while they might think they are doing it for political or religious reasons, if you treat them as war participants, you run the risk of them turning into martyrs. Treat them as ordinary murderers and people react differently.

Finally, the current international policing, extradition and criminal system is extremely slow and highly bureaucratic. While it has worked somewhat, it is not ideal at all. You also face the demoralising effect of police and security forces who know this person is a terrorist but have no way of prosecuting him/her as the crime was hatched abroad, garden variety ammonium nitrate was purchased, etc. etc. They also know that if the terrorist is prosecuted at all, it will be for namby pamby reasons like violating immigration law or incitement to commit murder. Plus the terrorist will be released sooner rather than later, and as soon as he/she is free, they will immediately go back (in many cases) to do exactly the same.

The American school of treating terrorism as a war runs into the opposite problem of using a sledgehammer to whack a fly. The way the world and international system treats war is to see war between two countries, with uniformed soldiers bashing each other’s brains out. Terrorist groups, by their very nature, do not behave like a country and they most certainly do not have uniformed troops. That means that you end up with the chance of a serious legal challenge or massive over-use of power. Soldiers in a war are trained to bring overwhelming force and destroy the enemy. As the terrorists slip in and out of civilian areas, using civilians as cover, asking soldiers to use their normal skills is a sure shot way of having a serious human rights issue. This is the reason why you find situations like wedding bombings in Afghanistan and Iraq, dinner party bombings in Pakistan, Guantanamo Bay, renditions, indiscriminate killing of civilians in Chechnya, Baluchistan, Palestine, etc. The other problem is, given the existence of the British School, the American school’s treatment of terrorists is thrown into starker relief. While saying that, when faced with an enemy who does not have a concept of limits, such as Al Qaeda (as opposed to the RAF, Provos, etc.), then the equation changes and war as a means does end up having the upper hand.

Therefore, in conclusion, I would prefer to go down the British School. The reason is that given a strong legal system, it is always better to de-legitimise the political agenda of the terrorists. At end of the day, the Madrid Bombers and the 7/7 bombers were pure and simple mass murderers. Why allow them to retain the cover of either religious or political reasons? Secondly, as evidence has confirmed, following the American school means international opprobrium. While the short term benefits of the American School are clear – you have a direct way of handling terrorists, you shoot them and they be damned, no silly rules of evidence collection, etc. etc. etc. – the long term impact on society, the international standing and respect, the diminution of the respect for law and order and finally the strong element of hypocrisy charges all combine to make this a less suitable option.