An exchange on the legitimacy of terrorism on ASIL forum, 23 August 2005:
Mortimer Sellers: Ms. Knightly raises the interesting point whether the chivalric rules of "civilized" warfare should ever be suspended — inotherwords, can the nature or behavior of combatants ever justify variations in the usually accepted standards of ius in bello? The same question has come up in earlier discussions of Hiroshima and Guantanamo. Many people on this list do seem to think that terrorism (for example) may sometimes be justified. That should not mean, however, that it is always justified. I think that those who excuse terrorism should try to articulate more clearly an objective list of circumstances under which terrorism would be justified. The threshold ought to be very high, perhaps insuperably high. I do not think that mere asymmetries of power are enough.
Can any normal rules of civilized warfare be suspended in response to terrorism? If so, when and why?
Charles Gittings: I wouldn’t say "justified," but it is understandable in the same way that someone committing an armed robbery to feed his family is.
I would also say that it is unreasonable to expect that the poor and the weak will passively suffer abuse in a world where the rich and the powerful deal in violence so readily, indiscriminately, and *profitably*.
And I don’t think it’s really possible to objectively evalute these considerations. We have a ready model: Nazi-occupied territory from 1939-1945.
The Resistance, partisans, and our own O.S.S. all staged attacks that would qualify as "terrorist" by the "standards" applied now — yet who would claim those attacks were unjustified?
Oh, but that’s different the neo-cons would say — "we aren’t Nazis" — yet I have no difficulty imagining that a Palestinian Arab might disagree.
And clearly, there are some very substantial objective differences. For example, the Nazi occupations only lasted 7 years; Israel has occupied Palestine for 58.
For another, Buah and Sharon are elected representatives of democratic republics, while Hitler was a dictator. But Hitler was also a very popular dictator who no doubt could have won elections had he bothered. Would a legitimate electoral process have justified the acts of a Hitler? Did it justify the rape of Iraq by George W. Bush? The ancient philosophers were
mostly agreed that the biggest problem with democracy was precisely that it was the form of government most prone to tyranny.
Tolstoy had it right: "The only way to get rid of an enemy is to love him."
As for the last question, to assert that "terrorism" justifies "suspending" the rules of civilized conduct is to deny that any such rules actually exist or that there is any significant difference between human civilization and a pack of hyenas. A good summary of what can be said intelligently about that topic on both sides of the question is readily available in Black’s Law Dictionary in the entries relating to NECESSITY.+
Elias Davidsson: As a contribution to the debate on terrorism, I suggest that individuals who do not enjoy some specific human rights, including the right to have an independent judicial body determine whether their substantive rights have been violated, cannot be regarded as legal subjects and thus cannot be held responsible for breaches of the law, including murder.
As an example, I suggest that persons treated as sub-human beings (such as slaves), subjected to inhuman conditions of existence (including torture) or denied the most basic procedural legal rights such as effective access to judicial remedies, cannot be held responsible for what are regarded as penal offenses. In principle obligations by individuals to respect the Law only exist when such individuals also enjoy the protection of the law, and ideally the capacity to influence the enactment of the law by peaceful means.
The link between rights and obligations is most often disregarded in the discussion about the legitimacy of "terrorism".
On the other hand, it would be right to say that individuals who do enjoy human rights may not engage in terrorism nor induce or promote the use of terrorism by others.
If this approach to terrorism is accepted, the question remains at what point individuals stop to be true subjects of the law, and become merely objects in the hands of others. Are individuals subjected to military occupation and denied the protection of the law, legally responsible for their acts?