My speech on the occasion of the launch of my book Homeland Insecurity. The Rise and Rise of Global Anti-terrorism Law at LSE
This book, largely completed before the events of 7 October 2023 and all that has followed, strikes me now as a prequel to another volume, one with the title Anti-terrorism and Genocide. That would not be a law book, or only barely a law book, but then the story that I tell here did not start as a legal one, being mainly at the start about ‘might’ not ‘right’.
The first substantive chapter in the book we are launching this evening is called ‘IMPERIUM’ and an early subheading in that chapter is entitled ‘PLUNDER’. The pre-history of anti-terrorism law as I tell it is one of naked seizure, seizure, that is, of land and of wealth, and widespread slaughter too, conducted by sophisticated colonial forces whose military capacity (a quirk of the European industrial revolution) made such voracious empire-building realisable. In vain did local peoples around the world seek to resist this wave of terror, their traditional means of defence futile in the face of an unheard-of capacity to kill and destroy. Whole peoples and cultures disappeared or at best were emasculated under the yoke of these fast-growing European empires. (And if genocide was not the point of Empire then it – or something like it – was a necessary part of its success.) None of this appears by the way in the standard works on terrorism which are preoccupied to the exclusion of all else on sub-state rather than state violence.
Over time two things happened among colonised peoples and my subject was born.
First, elements within the indigenous communities among the victims of colonialism learnt to fight back in survivable ways, an explosion here, an assassination there, a sudden assault followed by fast retreat, efforts aimed at mild destabilisation but mainly communication (‘get out of our country’) rather than the unequivocal success on the field of battle that they could see could now no longer be achieved. Pin-pricks for sure but irritating to power, and a bit scary, and potential focal points as well (or so these actors hoped) for the expression of wider popular discontent. Such discontent was more likely if the colonial power could be lured into Amritsar-style excess, as they often were. Indeed the same year as that infamous massacre by Colonel Dyer and his forces in India, 1919, the colonial authorities had already enacted there the Anarchical and Revolutionary Crimes Act.
Here was the second big change – as we entered the 20th century no longer would crude military necessity govern, rather it would be the law, equipped of course with emergency powers to do what was required but now laid out carefully for all to see. (I think it was the legalisation of state coercion that was developed during the First World War that paved the way.) The Rowlatt committee which gave rise to the Indian Act in 1919 found itself pointing to the threat of what it explicitly called terrorism as a key reason for its necessity, and from then on – first in the British Empire and then further afield – ‘terrorism’ and ‘terrorists’ became a main reason for colonial coercion, an alibi for the promulgation and then exercise of swingeing anti-terrorism laws. The attraction of this language to power lay in its implicit moral evaluation – terrorists were bad so counter-terrorism must be good. There were these wild, barbaric killers in Ireland, Palestine, India, Malaya, Kenya, Cyprus – the list is long – standing between Empire and its grateful subjects. Colonial powers have ever since these early 20th century days had what they have called a ‘terrorist’ problem. They have needed it to explain to themselves and their citizens how they could square their avaricious brutality abroad with their supposed commitment to the rule of law and (increasingly as the 20th century progressed) democracy at home. Home was for the decent; home-away (the colonies) was beset by savages.
Of course as we all know Empire lost eventually. How did the language of terrorism, and of anti-terrorism law specifically, survive?
This is the subject of my second main chapter. The Cold War played a part with newly liberated states needing tools with which to control the radical ambitions of some of their comrades, especially if these were Communist and the strategic choice of the new nation was pro-American. Anti-terrorism laws also remained in place to control local populations especially if there was division over the new countries direction – post 1922 Ireland was a case in point here.
And above all settlor colonialist communities needed these laws to police a local population whose land they had seized and many of whose communities they had destroyed in the immediate aftermath of independence. The Protestant settlors of Northern Ireland fit this bill apart from the quirk of their never having left their homeland, which came with them to Ireland as a new United Kingdom and (as we all know) never fully left. The Boers of South Africa were early in this game and more unequivocally independent from the start, the white supremacists of Ian Smith’s Rhodesia (now Zimbabwe) relatively late to it – settlors both with nowhere to return to in the event of defeat.
Israel was clearly one of these, awarded a state by the UN after the Second World War but aggressively growing its control over the territories around it until by the end of the 20th century a strong police and military presence both in and outside its original territory was necessary to preserve its ascendancy in the region. Uniquely, the Jewish inhabitants of Israel did not have even a notional colonial home to return to, except 1948 Israel of course, itself the result of a colonisation (by Zionists) within a colony (or British protectorate as it was then called). After the attacks of 11 September 2001, Israel was early in pointing anxious UN authorities to the bevy of anti-terrorism laws it already had on the books, many dating back to the Mandate period and just after. (Thus began a brief period when Israel enjoyed non-pariah status in an organisation briefly more consumed by the problem of ‘terrorism’ than it was with compliance with human rights standards.)
Palestine is at the core of my book, occupying its central chapters. In the late 1960s, post the 1967 Arab-Israeli war, it seemed obvious that Palestine would take its place as one of the many residual battles being fought by colonised peoples for independence. True many colonial powers had already given up, but a few remained, Portugal for example and (as settlor colonialists) both South Africa and Rhodesia. How were the Palestinian people different from the many liberation struggles that were either current or more likely just recently successfully completed? International law unequivocally backed the right of a people to self-determination and words like ‘guerrillas’ and (even) ‘freedom fighters’ captured the acceptance of the violence this right necessitated, the esteem even in which at this time its subaltern battalions were held.
This did not happen. Instead the old colonial descriptions came back into play. The Palestinian Liberation Organisation and its satellite fighters were neither guerrillas nor freedom fighters, they were ‘terrorists’, indeed – more damningly – ‘international terrorists’. How did this come about? The movement of people was much easier in the late 1960s and early 1970s than it had previously been, and television was emerging as a compelling new way in which to reach the world’s audiences. Frustrated at the failure of both conventional war (1967) and guerrilla war (directly after that), Palestinian fighters took to the international stage. Violence-as-communication wreaked havoc across the airports and major cities of Europe in a way that could not have been possible in the colonial era. No heed was paid to the culpability of those caught up in these random atrocities. The violence was shocking. At the same time, there was similar violence being perpetrated by Europe-based subversive groups, also engaged in unpopular and frightening acts of violence in pursuit of their local agendas: the IRA, ETA, the Red Army Faction and so on.
Handed this open goal, Israel scored, creating in the 1970s in multiple ways I trace in the book (building on the work of Lisa Stampnitzky but more forthright in my conclusions I think than she is) a panic about a global war being waged by multiple terrorist groups (the Palestinians among them) against ‘civilisation’ or ‘the West’ – us, in other words, against them. This gathered pace after the Iranian revolution of 1979 when Hezbollah’s success against US/Israeli power in Lebanon a few years after that revolution led to a new concern, about ‘Islamist’ terrorism. A leading apologist for this new terrorist discourse was Israeli representative at the UN at the time, Benjamin Netanyahu. It follows that when the attacks of 11 September 2001 came, the world was primed for the ‘war on terror’ that was quickly to follow. The second half of my book is all about that period.
Where does the law fit in all of this? Clearly after 11 September there has been a cascade of anti-terrorism law, both driven by the UN and separate from that body. But what of before? What of Israel? That state has long thrived on simple images, of a nation created out of an abandoned desert, of a plucky band of socialists creating Nirvana on the Kibbutz, and of a country committed (unlike all its neighbours) to democracy and the rule of law, part of ‘us’ rather than the surrounding hostile ‘them’. It has been vital to Israeli’s international reputation (and so to its stability) to keep all three in play, at least at some level of plausibility. Israel has long been persuasive as to the independence of its legal system, its judiciary and so on, persuasive at least to those prepared to overlook the law’s engagement with non-Jewish residents and the people in the land it occupies. The place has seemed to its supporters in the Global North and beyond to be subject to law – and that has been enough for those of its many passive supporters who don’t want to look too closely.
This same pattern was followed with its responses to terrorism. Quite early on, Israel framed its counter-terrorism as legitimate self-defence under Article 51 of the UN Charter. Such defence could, Israel asserted, be against non-governmental entities within states (the PLO; Hezbollah) as well as states who harboured them (Lebanon; in the early days Jordan) and it could also be pre-emptive rather than reactive, even if what it was said to be pre-empting was far distant in the future. Conveniently, neither the validity of this reliance on Article 51, nor the legality of the force used under its cover could be the subject of scrutiny in any judicial fora. Freed from scrutiny, Israel could kill thousands in Lebanon (supposedly under the protection of Article 51) because an attempt had been made on the life of their ambassador in London. This is not an ‘eye for an eye’, it is tens of thousands of eyes for one partial blinding, massacres disguised as counter-terrorism.
And so to today, when literally a people is being wiped out in front of us and with our practical support, all in the name of counter-terrorism. One chapter of Homeland Insecurity is devoted to ‘liberal pushback’, ways in which the traditional concerns of liberalism (for human rights and the rule of law) have pushed back against counter-terrorist excess. At the time I wrote the book I was largely optimistic about this development. In particular and like many others I have viewed the International Criminal Court (ICC) as a good thing, as a way of challenging the viciousness of state responses to terrorism where it can be seen to involve ‘war crimes’ or ‘crimes against humanity’. Of course Israel did not subscribe to this framework of accountability but then a jurisdictional ruling of the ICC – pre 7 October – found that their conduct in Palestine could be caught by it. There followed the decision of the ICC’s chief prosecutor Karim Khan to seek arrest warrants against Benjamin Netanyahu and Defence Minister Yoav Gallant, and then – most dramatically of all – the stark rulings about genocide issued by the International Court of Justice.
I am less optimistic now. What has been the effect on Israel, and its primary backers the US, of these rulings? How have Israel’s secondary supporters among the former colonial powers in Europe reacted? For someone who wants to believe in law, the answer is depressingly clear: the effect has been zero, the platitudes about peace are as empty as ever, while the delivery of weaponry, material and logistical support remain as real as they always been, with tens of thousands dead, maimed, orphaned as a result. No one is safe, not the UN, not the Lebanese, not journalists, not university professors, not aid or health workers. The monster that is Israeli-terror destroys them all.
As for Israel, it no longer even bothers seriously to defend its mass killing along even spuriously lawful lines. The days are largely gone when Israel pretended to be investigating its own atrocities or claimed its latest attack on a school or a hospital or the UN was really the work of Hamas. It just kills away. Meanwhile its supporters in the US and Europe mobilise the law against those determined to oppose the realisation in real time of the genocidal plan against which the ICJ has warned. University departments are coerced or naively fooled into debating the evils of anti-Semitism, a term that the supporters of Zionism have successfully distorted to embrace any criticism of Israel, even it would seem a genocidal Israel.
I don’t remember any concern for the sensibilities of the expatriate Hutu communities during the genocide of the Tutsis in Rwanda in 1994. Their saviour then was not the UN or the Western powers both of which sat back and did nothing. Rather it was an invading military force led by the Rwandan Paul Kagame that brought peace and stability to the country. Nowadays of course the West are critical of Kagame’s grip on power and of his abuse of ‘human rights’. I feel like saying ‘How dare they!’ The days of US/European judgment of post colonial states for their human rights compliance are well and truly over. One of the tragedies of the Palestinian people is that they have no Kagame, only endless dead and a handful of old men and autocrats in the pockets of the Americans and the Israelis. For all its good intentions the ICJ are just men and women in robes not an enforcing body. And what good could such a body do, at a time when the Security Council’s very own force in Lebanon, UNIFIL, is being threatened and openly attacked by Israel.
If someone were to write it, any new volume on Anti-Terrorism and Genocide would no doubt have chapters on anti anti-terrorism laws, anti-genocide laws for sure: new trade sanctions, new controls on investment, the further realisation in law of boycott strategies and the like. This is all to be applauded, my home country Ireland pre-eminent among the drivers for this kind of accountability: Ireland is that rarity a global North country that having been colonised knows what its effects are. But where will the Palestinian people be by the time such a book gets written? Where will liberalism be? Where will international law be?
Conor Gearty
LSE
24 October 2024