Terrorists, Freedom Fighters, and the Law

Much though I hate to revisit endless debates, again responses to my post beg the critical question: who is to be deemed a “terrorist”, who gets to decide this, and whose judicial process applies?

I hate to drag out the ancient trope that “one man’s terrorist is another man’s freedom fighter”, but no one has addressed this question. If a terrorist is someone who seeks to overthrow an established goverenment by force, then those who fought the Nazis in occupied Europe were “terrorists” (as indeed the Nazis deemed them to be), and so was Nelson Mandela and his ANC comrades and so on. No need to belabour the point. These “illegal combatants” are now national and international heros. Incidentally, they didn’t wear uniforms either.

The other equally important point: if crimes fall outside national jurisdiction, how are they to be dealt with? The American answer is that they will decide for themselves and the whole world, arresting whom they wish, where they wish, and decide how they are to be tried. “Sherlock” points out that had the British responded in the same way to the IRA, they would have raided New York and Boston and detained the IRA supporters there in secret camps. Ludicrous? Only because it illustrates that there are two sets of rules, one for the powerful and one for the weak.

In any case, it’s simply not true that international law has no mechanism to deal with circumstances that fall outside national jurisdiction. Thanks in part to the diplomatic and political efforts of Canada and like-minded nations, the International Criminal Court was established to deal with crimes occuring outside national jurisdictions or in circumstances where national governments were unable to try criminals. But the establishment and jurisdiction of the court has met with the most vehement opposition from the United States: they do not want a legal regime that could try Americans for the same crimes, and they want a veto and substantial control over all extra-national prosecutions.

I would have no objection whatsoever if the United States turned the Guantanamo detainees over to the ICC. But I am joining the growing movement protesting a system which allows the Americans alone to be global police, judge, and jury.