The impossibility of the liberal democratic order to  defeat  the  global terrorism 

The first difficulty in the successful dealing with that phenomenon is the lack of its definition in the legal documents. In the constitutional or international instruments, there is a talk of different kinds of terrorism, but never on a global one. We can only guess what we speak when we refer to: it affects at least two countries or the only one, but with an outside input.

In the contemporary — increasingly interconnected world — there is practically no space for the exclusively local terrorism. The most isolated terrorist attack might be always linked to the external factors or influences, let me say, the ideological ones, coming through the formal state borders. In our times, it would be an arduous task to identify such an endemic violence. The terrorism without the broader background is unimportant, reduced to a naked force, not transcending a one polity.

If my reasoning is correct, the national constitutions might play in relation to the global terrorism a little role. The constitutions are the juridical documents tackling primarily with the domestic questions. There is no one national fundamental charter in the world regulating imperatively the issues of the foreign countries. The constitutions can at least proclaim, like the current Brazilian Constitution, that the international relations should be governed by the principle of repudiation of terrorism. However such a general statement is only the expression of this individual national stance on the phenomenon. The possible future actions in that field will depend on the willingness of the other nations to act jointly.

Comparative constitutional standards?

The second problem arising in connection with the theme under study is whether the fundamental national charters can provide with an appropriate model of approaching the problems of global terrorism. The point is that at the moment we have only the seven national basic statutes taking up this question. We can wonder if the provisions of these limited number of states, can be a pattern to be imitated by the others. If we are of the opinion that this is possible, here some lessons that can be drawn from these documents. 

Firstly, the constitutions are equalizing the terrorism with the ordinary delinquency (Brazil, Chile, Peru, and Spain) or at least require its disqualification as a political activity. Despite this trivialization of the terrorism, the persons condemned for it in Brazil should have to serve the sentence in the high-security facilities without the right to the release on own recognizance. Additionally, this constitution deprives a convicted terrorist the right to a bail, pardon, amnesty and the Chilean one even the benefits of the extradition.

Secondly, two constitutions allow the suspension of the habeas corpus guarantee when we have to do with the terrorist offences. This possibility does exist in Peru and in Spain. In the first mentioned country, the prerogative of maintaining into custody the suspected terrorist by the police without bringing him before a judge can be prolong up to the fifteen days, while in Spain this time-limit is restricted to 72 hours. An attempt of the Spanish legislators to extend this deadline has been struck down by the Constitutional Court.

Third, the Portuguese Constitution establishes the three terrorist-related provisions. It allows the extradition on its own citizens when this possibility is provided for on the reciprocal basis in the international treaty and when the domestic legal order of the receiving State enshrines the due process of law guarantees. On the other hand, the jury was excluded from the administration of justice of the crimes of terrorism. And finally, the night intrusion to the private places of residence was authorized in the terrorist flagranti delicto cases or when the appropriate judicial warrant was issued.

Fourth, the Chilean basic law provides for a kind of the fifteen years civic death for the condemned terrorist. That person should be precluded from holding managerial positions both in the educational establishments (or teach thereat) and in the media of mass communication (or exploit them). He or she cannot also be eligible for public duties or dignities, even obtained through popular vote. Moreover, during the same period, these individuals will not be able to act as leaders of political and/or student organizations (or having to do with the education). Besides, the convicted terrorist should not occupy positions in local (community), professional, entrepreneurial, labor and guild groups or entities.

Fifth, last year in the German Basic Law was introduced the principle of repression of international terrorism exclusively by the federal statute.

Implicit antiterrorist constitutional arrangements?

Even in the absence of the clear constitutional terrorist clauses, every basic national charter has some rules, which take care, at least, indirectly of the terrorist facets. I mean here the so-called extraordinary measures. It is difficult to find a basic law jurisdiction without a regulation on the state of necessity. The relevant provisions are usually so broadly formulated that the terrorism can fit in them easily. Let me take the Polish regulation on that score. The section 228 of our country main statute determines that in situation of particular danger, if ordinary constitutional measures are inadequate, the martial law, the state of emergency or the state of natural disaster can be introduced. The reasons for the proclamation of the state of emergency: threats to the constitutional order of the State, to the security of the citizenry or public order, can easily include the terrorist situations.

The argument for the correctness of my reasoning provides the Polish Law on the State of emergency approved in compliance with the constitutional mandate. In this act is said that in case of the particular threat to the constitutional order of the State, to security of the citizenry or public order, triggered off also by the terrorist actions, which cannot be removed through the ordinary constitutional measures, the President of the Republic may, on request of the Council of Ministers, introduce a state of emergency.

During the state of emergency, a lot of restrictions of the individual freedoms, like the more than a week incommunicado of the suspected person, the postal and telecommunication services surveillance, the limitation of the economic freedoms, including the seizure of the national and foreign financial resources may be introduced. That investigative authority can entitled to record by the technical means the characteristics of the places, installations or areas. The examination of the terrorist cases is conducted as the petty offence proceedings pursuant to the speed-up procedure.

Dubious international counter-terrorism instruments?

Every constitution has the clauses on the effectiveness of the international law in its internal legal system. This foreign normative input should be taken into account when treating domestically the terrorism. However, the international law has not too much in offering in that field. Up to now, the so-called Comprehensive Treaty against Terrorism was not signed. There is not even an universally agreed definition of terrorism. Some countries insist that the acts of terrorism should be distinguished from the legitimate struggle of peoples for self-determination and against foreign occupation and that the definition of terrorism should include the so-called State terrorism.

Instead of this, we have about 20 fragmentary antiterrorism conventions. These instruments boast also a lot of flaws. The most serious one is its heterogeneity. For instance, a part of the antiterrorist agreements are applied to the deeds of international dimension (international flights, airports, navigation on high see) whilst the newest conventions (on bomb attacks, nuclear terrorism, financing terrorism), establish two different legal regimes. The most stringent and comprehensive measures are obligatory in relation with the international terrorism crimes, while the repression of the domestic terrorism is more limited. The other manifestation of its composite character is the presence in the features of the terrorist offences of the subjective or objective elements. However, the indication or the purpose of the terrorist crime (subjective factor) allows the separation of this kind of delinquency from the common law one. The other negative aspect of the international regulation is the inclusion in some modern conventions the military targets as the aim of the terrorist attacks.

The international counterterrorist code?

It is a paradox to note that the only compulsory to all countries international instrument on terrorism is the UN Security Council Resolution 1373 of 28 September 2001. This document — passed under Chapter VII of the UN Charter, after the 9/11 events — obliges the States, to take the steps, like the defining — in the domestic laws — of the terrorist acts (and their supporting) as serious criminal offenses with the heavy penalties, the excluding terrorists from asylum and refugee protection, the freezing of their assets. The other restrictions should include the indefinite preventive detention of suspected of involvement in the international terrorism, the enhancement of the police and security forces powers to search premises and people and to monitor communications.

Six years after

To this day, the world community is unable to agree on the generally accepted definition of terrorism. We witness only the piecemeal initiatives trying to put an end to the phenomenon. As wrote it aptly E.Gross, until international unity can be achieved, the war against terrorism will continue to be conducted almost entirely on the domestic state level. However, the antiterrorist international instruments do not introduce in realty the innovations known already in the domestic legislation. Let’s compare the constitutional standards with the international norms on terrorism. The only salient thing that we assist both internationally and nationally is the legislative rush, after each terrorist onslaught.

At the same time, there is a robust international body and case law of the human rights law. This pose the question of compatibility of this normative order with the international security law. Suffice to remember that in the 1990s, the human rights became the dominant component of the whole juridical thinking and practice in the so-called civilized nations. The prominence of the human rights organizations led to the establishing instruments of accountability for mass atrocities such as special courts (Yugoslavia, Rwanda) and truth commissions (Chile, South Africa). The 1998 Rome Statute created the mandate for the International Criminal Court. The national judicial organs had asserted their universal jurisdiction in Spain and in UK (Pinochet case). In sum, the human rights passed from law in book to law in action.

However, simultaneously we must not loose from sight the failures in that system. The much talked International Criminal Court have not the jurisdiction over the terrorist crimes. It is no accident that the mentioned UN Security Council Resolution of 28 September 2001 identified the existing international antiterrorist conventions as lacking implementation and called on states to ratify them. The first version of the harsh British Anti-Terrorism Crime and Security Act 2001 had suffered a lot of softening modifications. The suspension of the writ of habeas corpus introduced by the US Patriot Act 2001 was declared unconstitutional by the Supreme Court in less the three years after the enactment of that major counterterrorist legislative piece. The anti-terrorist experience in other countries is much the same.

The terrorism is accompanying the Mankind from the immemorial times and will accompany us also in the future. The most dangerous aspect of the contemporary thinking on terrorism is believing that we assist at its totally new variant. This phenomenon cannot be link with whatever nationalistic, religious or other movements. These attributes are only the sheer labels. When the societies introduce the restrictive measures on civil liberties, they simply comply with the objectives of the terrorists. The democracy and the rule of law cannot be eliminated without the threatening of the foundations of the contemporary liberal order.

For further reading (in English): 

1. Mary Ellen O’Connell, International Law and the «Global War on Terror», Editons A.Pedone 2007;
2. David Dyzenhaus, The constitution of Law. Legality in a Time of Emergency, Cambridge University Press 2006;
3. Emanuel Gross, The Struggle of Democracy against Terrorism. Lessons from the United States, the United Kingdom and Israel, University of Virginia Press 2006;
4. Helen Duffy, The ‘War on Terror’ and the Framework of International Law, Cambridge University Press 2006;
5. Michael Jacobson, The West at War. U.S. and European Counterterrorism Efforts, Post-September 11, The Washington Institute fro Near East Policy 2006;
6. Richard Asby Wilson (ed.), Human Rights in the ‘War on Terror’, Cambridge University Press 2006;
7. Conor Gearty, Can Human Rights Survive?, Cambridge University Press 2006;
8. Ben Saul, Defining Terrorism in International Law, Oxford University Press 2006;
9. Christopher  L.Blakesley,  Terrorism  and  Anti-terrorism.  A  normative  and  Practical    Assessment, Transnational Publishers, Inc. 2006;
10. Tal Becker, Terrorism and the State. Rethinking the Rules of States Responsibility, Hart Publishing 2006;
11. L.Ali Khan, A Theory of International Terrorism. Understanding Islamic Militancy, Martinus Nijhoff Publishers 2006;
12. Giuseppe Nesi (ed.), International Cooperation in Counter-terrorism. The United Nations and Regional Organizations in the Fight Against Terrorism, Ashgate Publishing Limited 2006;
13. Gregory E.Maggs, Terrorism and the Law. Cases and Materials, Thomson/West 2005;
14. Wayne McCormack, Legal Responses to Terrorism, LexisNexis 2005;
15. Norman Abrams, Anti-Terrorism and Criminal Enforcement, Thomson/West 2005;
16. Peter Berkowitz (ed.), Terrorism, the Laws o War, and the Constitution. Debating the Enemy Combatant Cases, Hoover Institution Press 2005;
17. Ved P.Nanda (ed.), Law in the War on International Terrorism, Transnational Publishers Inc. 2002;
18. Alan M.Dershovitz, Why Terrorism Works, understanding the threat responding to the challenge, Yale University Press 2002;