Professor Frank Emmert

Our first panelist is Professor Dr. Frank Emmert, who was a visiting professor at Benjamin N. Cardozo School of Law during the year 2002/03. Professor Emmert taught World Trade Law, European Union Law, International Business Transactions, and European Union Intellectual Property Law at Cardozo. He spent four years in Estonia as the Dean of the Law School at Concordia International University Estonia. Before that, he taught for five years at the Europainstitut of Basle University in Switzerland. Professor Emmert has been teaching at various other universities in Europe and the US and is now going to Indianapolis, where he was appointed to a tenured chair in international and comparative law at Indiana University. Professor Emmert has widely published on European Union and International Law, the Transition in Central and Eastern Europe, as well as International Protection of Human Rights. He speaks regularly at universities and conferences in Europe and the United States and has advised various governments and larger enterprises. Please welcome Professor Frank Emmert.


Commentary by Professor Frank Emmert

In addressing the topic “negotiating with terrorists”, I would like to start with some reflections about the definition of “terrorist”. Everybody knows the phrase that “one man’s terrorist is another man’s freedom fighter”. The label “terrorist” often involves a value judgment, in particular whether or not the speaker or writer supports the ultimate goals pursued by the terrorists, such as independence from a colonial power. The dichotomy between freedom fighters and terrorists reveals the shortcomings of a value-based definition. In particular at a time when the nation is waging a war on terrorism, we need more objective ways of designating who is and who is not to be seen as a terrorist.

An alternative approach to the definition of terrorism has focused on the targets or victims of violent activities. It has been claimed that activities aimed at harming civilians are terrorism, while activities aimed at military targets and emanations of state authority are not. The latter may be part of a civil war, often cloaked in anti-colonial or ethnic liberation terms, where the actors are military combatants but not terrorists. Again, I submit that this distinction is not helpful since it makes it too easy to justify activities primarily directed at governmental structures and officers. Perpetrators might claim that they are not terrorists because in their activities civilian targets are merely collateral damage or that commercial entities are part of an imperialistic and exploitative occupation.

A third approach has been looking at the actors themselves. If they are acting as part of a governmental or state structure or within a recognized liberation movement or as representatives of an ethnic group, they have been designated as legitimate fighters per se (which does not mean, of course, that their activities are also legitimate per se), while perpetrators outside of such structures are guerilla fighters or terrorists.

By combining the second and third approach, namely who is acting and what they are trying to hit, four combinations are possible. First, if state actors commit violent acts or attacks against (foreign) military targets, then these are state military acts, subject to the laws of war (and the prohibition of the use of force in Article 2 (4) of the UN Charter, which in turn is merely a codification of generally accepted ius cogens). If the acts are directed at civilian targets, they can be classified as state terrorism. On the other hand, if the perpetrators are non-combatants or otherwise not acting on behalf of a state or recognized organization, their acts are guerilla military acts when directed against military targets and (guerilla) terrorism when directed at civilian targets. While the relevance of such distinctions is another question, they are frequently being made in practice.

If we look specifically at the definitions being used in our society and by our authorities, we find significant differences and shortcomings. The Encyclopedia Britannica defines terrorism as “the systematic use of terror or unpredictable violence against governments, publics, or individuals to attain a political objective.” This is both circular and under-inclusive. On the one hand, it defines terrorism via terror. On the other hand, it might seem that unsystematic or unorganized acts and/or those that do not strictly pursue political goals cannot qualify as terrorism. Different U.S. governmental agencies have applied and to some extent still apply different definitions of “terrorism”, several of which are not without problems. Greg Walden, the United States Representative from Oregon, has used another definition, namely terrorism as “using violence to advance political goals”. Arguably, this would cover recent U.S. military action in Iraq.

More sophisticated definitions are offered by the U.S. Department of Defense and the FBI. The former defines terrorism as “the calculated use of violence or the threat of violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological”. The FBI uses the same main elements: “Terrorism is the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” As part of the recently introduced legislation on homeland security, there is now an “official” definition in U.S. federal law: “The term `terrorism` means premeditated, politically motivated violence perpetrated against non-combatant targets by sub-national groups or clandestine agents, usually intended to influence an audience. The term `international terrorism` means terrorism involving citizens or the territory of more than one country. The term `terrorist group` means any group practicing, or that has significant subgroups that practice, international terrorism.

It is worthwhile, pinning down the decisive elements. First, there is a person or group of persons using violence or threatening to use violence while not acting on behalf or with the authorization of a state or recognized international organization. The use of force or violence is unlawful, i.e. not justified under international law by principles such as the right to individual or collective self-defense or the implementation of measures authorized by the Security Council under Chapter VII of the UN Charter. Furthermore, the violence is part of a strategy or plan and not just a random or spontaneous act. Second, while there is violence or the threat of violence against persons or property – usually unprotected and innocent civilian targets – the injury or destruction of these targets is not the principal objective of the violence. Rather, the violence or threat thereof is aimed at creating fear, panic, and terror in the general population, at intimidating a government or society in order to coerce that government to do something or to refrain from doing something not directly related to protecting itself against the violence. Third, the ultimate motives of the better known terrorist groups differ greatly. However, a common element is the quest for power over territory and people in order to compel them to conform to certain religious or ideological beliefs. The final goals of the terrorists are of political, religious or ideological nature. Personal enrichment is of subordinate importance, if any. Terrorists are distinguishable, therefore, from “ordinary” criminals by two elements, their aim of creating fear, and their ideological rather than material motives.

“Terrorism is a psychological act conducted for its impact on an audience.” It injures or threatens one group of persons – the victims – in order to put pressure on another group of persons – the politicians and decision-makers. In total, there are four groups of individuals involved in terrorist activities: The terrorists themselves are a relatively small group with quite limited resources as far as financial means, manpower, and firepower are concerned. The actual victims are also relatively few. They are a diffuse sub-group of the general population that is quite randomly determined at the time of the attack and not at any time before and that, therefore, cannot be effectively protected against such attacks. Even in large attacks like the one on the World Trade Center, the total number of victims is tiny compared to the total number of victims in wars. If the terrorist acts would be limited to these two groups, they would go largely unnoticed, and would certainly not have an impact on the way our society goes about its life in the families, communities, business entities, national and international relations, the way our leaders are taking decisions of national and international importance.

The third group consists of our leaders and decision-makers. This is another small but this time well-defined group. As such it can be largely protected against terrorist attacks and terrorists would have no serious hope of creating a degree of fear in our leaders that would coerce them into the behavior desired by the terrorists. However, there is the fourth group, the rest of the population, the audience.

Terrorists would never stand a chance in open battle with our police and armed forces. That is why they carefully avoid this kind of open confrontation and rather work in deceptive and undercover ways. Their goal is to injure or threaten the second group, the victims, in such a way as will have the largest possible impact on the last group, the audience. Obviously, 9/11 was the ultimate act of terrorism. The symbolic value for the terrorists could hardly have been higher. Even some 20 months later, millions of people are still saying that they will not fly if they can avoid it, that they are afraid to use the subway, and that they do not feel comfortable in tall buildings. Billions of dollars have been lost in the airline industry, in the tourism industry, and in various related industries, in addition to all the billions of dollars that have been and are being spent on passive security.

Up to the 19th and early 20th century, terrorists who wanted to achieve regime change would try to kill the king or president or prime minister and thereby force a change of government. This is hardly happening nowadays because on the one hand, we can protect these kinds of targets relatively well, and on the other hand, our States and systems of government enjoy a continuity that does not or not much depend on individual leaders any more. Even if the head of a government should be murdered, the State as such continues to exist and to conduct its political and economic affairs more or less in the same ways as before. Thus, terrorists cannot achieve their goals by “just” eliminating leading decision-makers in a system. Instead, they use an indirect approach of influencing these same decision-makers by terrorizing an entire society to the point where the system either collapses or changes itself “voluntarily”, for example if the U.S. were to give up its support for Israel or withdraw its military bases from certain Middle Eastern countries.

The question how best to deal with terrorists can be answered in several different ways. On a scale from one extreme to the other we can first of all give in to their demands and attempt to take the wind out of their sails. In practice, this option is rarely used because the demands are often such that they cannot be fulfilled without betrayal of our own fundamental beliefs and, even if far reaching concessions are made, it is not at all certain that the terrorists will indeed give up any unlawful activities. The situation in Israel and the Palestine territories is a case on point. Secondly, legitimate States can enter into negotiation with terrorists, which is the topic of the present event and will be elaborated in more detail below and by the other contributors. Thirdly, we can improve passive protection and vigilance in order to at least reduce the vulnerability of sensitive targets to terrorist attacks. Fourthly, we can attempt to go after the terrorists and fight them actively on their own territory. Obviously, the different approaches are not mutually exclusive.

The approach taken by the current U.S. adminitration against organizations such as Al-Qaeda if focused on a combination of the third and fourth approaches. The creation of the Homeland Security Department and the allocation of vast additional financial resources to its various branches seek to improve passive security and thus protect Americans in the United States and – to a lesser extent – American interests abroad against future terror attacks. The hunt for Al-Qaeda operatives in Afghanistan, Yemen, and other countries, and ultimately the war in Iraq, are elements of the fourth strategy, seeking to root out the support networks and going after the key perpetrators themselves.

The question before us today is whether genuine negotiations – i.e. not just attempts at luring terrorists out of their hiding places in order to arrest them – should be initiated as a complementary or even alternative way of dealing with the problem of terrorism. The answer might seem to depend – at least in part – on ethical considerations, i.e. whether a democratic State governed by the rule of law should or even could sit down and talk face to face with criminals and murderers about their goals and about possible compromise between each side’s interests. The argument being made here, however, is that such ethical considerations are secondary. For one, they have not stopped legitimate governments in the past from negotiating with representatives of terrorist organizations and from – sometimes – even making some progress in the resolution of a situation. Top level U.S. support for the peace process in Northern Ireland or Israel would be examples here. Furthermore, proactive measures included under the fourth strategy, specifically the large scale intervention in Iraq, are not without ethical problems either, in particular when considering so-called “collateral damage” inflicted upon the civilian population and a variety of archeological, historic, and cultural treasures.

The proposal would be, therefore, to engage in a more rational analysis of costs and benefits. Under this proposal, any possible measure or strategy would have to meet a two-tier test before being seriously considered. First, a measure or strategy would have to have some chance of success – under an objective analysis – in order to be justified. The chance of success would have to be higher, the more “expensive” the measure, i.e. the higher the cost in financial terms and the stronger the intrusion into the privacy, civil liberties, and general human rights of anyone who is not part of the actual terrorist group itself. The chance of success would also have to be higher for measures bearing great risk or with unpredictable cost elements. Secondly, a measure or strategy would be justifiable only if there was not an alternative measure or strategy available that would promise similar chances of success at a lower cost in terms of financial resources, individual rights, and general risk.

Let us apply this test to the two primary strategies applied by the Bush administration, i.e. measures applied in the context of homeland security and the war in Iraq. How do they fare under the proposed test? The cost of improving homeland security is gigantic both as far as financial resources are concerned and as far as the intrusion into the very rights and privileges is concerned, that make up the fabric of our society and the very reason why certain Muslim groups hate the U.S. so much. By creating a police state that sticks its nose into everybody’s private lives, from our correspondence and communications to our financial transactions, a police state where fundamental rights of the accused can be suspended at whim of the administration, a police state where foreigners of any background and in particular Muslims and people with ties to Muslim States can be lawfully treated as rightless outlaws and pariahs, conforms much more to the kind of society desired by groups like Al-Qaeda.

Muslim fundamentalist terrorists hate the land of the proud and of the free. They hate a society where everybody is entitled to pursue his or her happiness in any which way as long as it does not infringe upon the rights of the neighbors. And they hate the phenomenal success in economic, cultural, social, and political terms that we have achieved with that freedom. Muslim fundamentalist terrorists desire nothing more than a society where people are being controlled in every step they take, where people do not speak up against the authorities for fear of being overheard and punished, a society that excludes everyone who is different, where foreign elements are looked upon with suspicion rather than curiosity, a society that lives in fear and hides behind its walls, isolates itself from the world around it. In this sense, virtually every single measure taken under the cloak of homeland security has given Al-Qaeda more reason to celebrate victory.

And the benefit? Can the real improvement in our security justify such a massive intrusion into our life style and values? And the gigantic financial resources that are diverted from other causes such as schools, health care, AmeriCorps and other social programs? Are we actually safer now than we were before? Can the goal of protecting Americans and American interests against terrorist attacks be achieved? Can we really be safe without sitting behind very high walls with closed circuit television and multiple alarm systems, in a self-imposed high security prison from which we would emerge only under peril of death? Is the Bush administration seriously trying to tell us that we can be protected wherever we go to work, school, shop, play, relax? At home and abroad when we do business to earn the tax dollars that are required to pay for all these measures? We can close our embassy in Nairobi because of specific threats but can we even try to protect some 1.100 Americans living in that town? In their homes, the shops they like to go to, the restaurants and bars they frequent, the companies they work for? If we prohibit parking in front of one building in order to prevent attacks via car bombs, a determined terrorist will find another building. As previous attacks have shown, the terrorists are not selective. They do not mind killing hundreds of Kenyans or Saudi Arabians in their efforts at also killing a handful of Americans.

Any claim that real protection of all possible targets – including hundreds of thousands of “soft” targets that do not constitute specific emanations of American authority – is even remotely possible is so far off that it begs the question what the real motives of the claimant are. Certainly, there cannot be the slightest doubt that the homeland security strategy fails abysmally on the first test.

us turn to the war in Iraq. Again, the costs are nothing short of gigantic. Billions of dollars have already been spent and an end is not in sight. About 130 American soldiers were killed during the hot phase of the war, a figure that will soon be exceeded by American troops killed by snipers and in guerilla attacks almost every day in the present phase of trying to rebuild Iraq. And the casualties among the Iraqi civilian population certainly exceed these figures by a factor of twenty or more. Even if we disregard damage to the infrastructure and buildings in that country under the assumption that by the time the intervention ends, most of that will be rebuild and much will actually be better than before, the costs remain enormous and the risks involved – for example that American troops and civilian bystanders would be attacked with chemical or biological weapons – were even higher.

Again, what about the benefits? Can these enormous costs be justified by the results to be achieved? The answer to this question is not easy to give. At least under an optimistic assessment, there are multiple benefits to be gained from the war on Iraq. First of all, the government of Saddam Hussein has been brought down and will no longer terrorize its own people nor support terrorism elsewhere. Secondly, a powerful message has been sent to other dictatorial governments in the region and elsewhere and they will be much more careful about vocal, let alone material support for terrorist groups. With both of these benefits the big question is, however, whether they will be sustainable. This will largely depend on America’s success in building a new society with a democratic government that respects fundamental rights and the rule of law in Iraq. If this goal is indeed achieved, a further result would be the introduction of a germinating piece of sour-dough in the Middle East, a bridge-head of freedom and democracy, which could become a beacon for the neighboring countries and lead to real and peaceful change in the area. On the other hand, if the U.S. should fail in this endeavor, if continuing ambushes and attacks on American administrators in Iraq should grind down the morale of the troops over there and the public back home, then nothing will be won and all will be lost. For the time being, President Bush seems willing to stay the course. Let us see what will happen as the costs are creeping up and the benefits may seem harder and harder to obtain.

With the one strategy unmasked as shadow-boxing for the American media and public, a show of activity as a goal in and of itself, a futile chasing of the wind, and the other strategy having turned up limited results so far, which may or may not be increased, the analysis must now turn to possible alternatives, in particular to the option of negotiations with terrorists for some kind of compromise.

To be fair, the cost-benefit analysis has to be applied to the strategy of negotiations with terrorists as well. The costs are less of a financial nature, nor are the lives of our troops or the human rights and freedoms of our citizens directly at stake. However, there is a cost, which consists of both the acknowledgment that the State cannot win the war against terrorism with its classical means of law and authority, as well as the legitimization, of sorts, of the terrorists, and their goals and measures. If a sovereign State enters into negotiations with non-state actors, it elevates those actors to a quasi-State level. In international relations, only sovereign States are full subjects of international law. All other entities are subjects of international law only to the extent that such subjectivity is granted to them by sovereign States.

The acknowledgment is a sign of weakness of the State which may invite other groups to try and blackmail it. The legitimization is victory on a silver platter for the ideologically motivated terrorists. States should be very careful about accepting this price tag of negotiations and should be very sure about the benefits to be won.

I suggest that the only negotiations a State can have with perpetrators who have personally and recently been involved in terrorist attacks are plea bargains along the lines of “you give us information about your organization and we can discuss the punishment you will receive for your crimes”. Democratic and law-based States simply cannot “negotiate” whether murderers of innocent civilians are justified as political actors with legitimate quests for “their” territory. That is just not an option.

On the other hand, negotiations should not be ruled out in principle with organizations that seek a non-violent and political representation of certain interests, like regional autonomy or even statehood, just because these interests are also pursued by terrorists in violent ways, even if there are links between the violent and the non-violent branch. The fight of the Palestinian people for a viable State of their own is a case on point. However, there must be pre-conditions imposed by a State prior to entering into such negotiations with non-State actors. The State must be careful that it does not compromise its own core values by endorsing dictatorial regimes that disregard even the most fundamental human rights and freedoms in the territories claimed by them.

It is easy to see that negotiations with terrorists will rarely provide a better way to the resolution of a dispute. The ultimate question is, therefore, whether there is another way, a fifth strategy that can be pursued in addition to or instead of passive security, active pursuit, and/or negotiations. Can the cycle of terrorism be broken? This brings us back to the psychology of terrorism, which is about the audience, the imposition of the greatest possible amount of fear with very limited means. We are this audience. And we should remind ourselves and be reminded by our government that we have a choice to be terrorized or not to be terrorized. Much of the time and money spent on increased homeland security would be better invested in a campaign to remind people that they are ten times more likely to win the jackpot in the lottery than to die from a terrorist attack on American soil. It is up to us to decide whether we will change our lives because of a handful of isolated and limited acts of terrorism, whether we are willing to compromise the very values our society is founded on, namely tolerance, non-discrimination, equal protection before the law, protection of civil liberties and human rights, due process for the accused, and the presumption of innocence until proven guilty. That is not to say that we should not be vigilant and that sensible security checks at airports are a waste of time and money. But we must not play the game of the terrorists. We must not be the victims of our own fear and irrational reactions. We must not give up our freedom for a police state. We need not run and we must not hide. The terrorists are the cowards and all those that continue their lives in freedom, and continue to defend what our society and our Constitution stand for, are the heroes.