By Alan Dershowitz
Although state-sponsored global terrorism is a relatively new phenomenon, and is in some ways quite different from other evils previously confronted, it is still subject to the basic rules of human nature and experience that teach us how to reduce the frequency and severity of harmful conduct. This chapter sets out some fundamental rules of deterring crime in general and then shows how these rules relate to terrorism in particular. The next chapter shows how the international community, and especially the United Nations and our European allies, have refused to follow these obvious rules since at least 1968, and in fact have deliberately violated them, thereby encouraging increased resort to terrorism, both in frequency and in severity.
How to Stop Harmful Conduct
For thousands of years, human societies have sought to reduce the frequency and severity of such harms as murder, robbery, and rape. Various techniques for dealing with such crimes have evolved over time.
The first technique is to ensure that the potential criminal understands that he has far more to lose than to gain from committing the crime. This serves to disincentivise the act, or deter the actor, by sending a clear and unequivocal message: not only will you not benefit from the act, but if you are caught doing it you will be severely disadvantaged. (A disincentive seeks to eliminate the benefit seen as an incentive by the offenders. A deterrent seeks to impose a negative cost on them and their cause.) A useful example of this mechanism is the treble or punitive damage remedy, which disgorges all gains from the person who secured them improperly and imposes a punitive fine.
The second technique is to incapacitate those who would carry out the actions by imprisoning them, killing them, keeping them away from the places they wish to target, or otherwise making it impossible for them to be in a position to undertake the undesirable actions. A useful metaphor for incapacitation is the zoo, where wild animals are kept behind bars.
A third technique is to persuade the actor not to undertake the action, by rehabilitating, re-educating, or shaming him, convincing him that the action is wrong.
Another traditional technique is pro-active prevention. The word "prevention" carries broad implications, including eliminating or reducing the causes of crime, such as poverty. I am using "prevention" in the more specific sense of gathering intelligence about plans or impending crimes. Secret service agencies throughout the world plant spies in terrorist organisations to gather such information. They also bribe or extort actual members of these organisations to serve as double agents. Sometimes they engage in scams or stings calculated to get the criminals to commit the crimes under controlled situations.
There are clearly overlaps among these methods. The age-old rule disallowing a murderer to inherit money from his victim disincentivises killing for those who would do it in order to inherit more quickly. Imprisonment incapacitates (at least during the period of confinement, and at least against those on the other side of the bars) while also deterring both the offender and others. Sometimes these mechanisms conflict with one another. Although imprisonment incapacitates during the period of confinement, it may increase the likelihood of recidivism among some inmates by exposing them to a criminal culture, even as it decreases that likelihood among others by demonstrating the horrors of prison.
The goal of removing all positive incentives (disincentivising) while also imposing negative consequences (deterring) is to send the following powerful message to any person or group contemplating the commission of a harmful act: you, your group, your family, and everything you hold dear will be considerably worse off if you commit the prohibited act than if you forbear from committing it.
That was the intent of the following statement made by President Bush on April 4, 2002:
"I call on the Palestinian people, the Palestinian Authority and our friends in the Arab world to join us in delivering a clear message to terrorists. Blowing yourself up does not help the Palestinian cause. To the contrary, suicide bombing missions could well blow up the best and only hope for a Palestinian state."
Anything that mutes this message, or undercuts it, diminishes the impact of this age-old technique for reducing the frequency and severity of harmful conduct. For example, if a bank robbers family (or the cause he was robbing for) were allowed to keep the proceeds of the robbery, the deterrent message would be decidedly mixed, even if the robber himself is caught and imprisoned.
The major difference between the disincentive-deterrent approach, on the one hand, and the incapacitation approach on the other is that deterrence relies on a rational calculus-a cost-benefit analysis-by those contemplating the harmful act. Incapacitation relies exclusively on the physical impossibility of certain acts being carried out by people who are confined, exiled, or killed.
Can Terrorism Be Deterred?
The theory of deterrence-reducing the frequency of an undesirable action by threatening and inflicting pain on those contemplating the action-operates along a continuum. At one end of the continuum is the calculating state. The conventional theory of nuclear deterrence, for example, hypothesises a state, whose actions are rationally determined by self-interest, acting so as to maximise this self-interest and to minimise negative consequences. The theory depends largely upon actors making calculations and counter-calculations based on each others contemplated actions and reactions. Near the other end of the continuum are largely futile attempts to deter impulsive actions by irrational actors. These actions may be caused by such factors as passion, impulse, and mental illness. For the most part even the most passionate, impulsive, and mentally ill actors are capable of being deterred from taking some actions, under some circumstances, at some points in time, but the impact of long-delayed punishment is likely to be minimal. At a point even farther along this continuum are suicidal actors.
Between the extremes of this continuum lies a wide range of actors and actions that are more or less subject to deterrence, based on a wide variety of factors. In the context of the kind of terrorism I am focusing on in this book, there is also a long continuum whose terminal points parallel those on the more conventional continuum. Some terrorists are exquisite calculators and will engage in terrorism only if the benefits (as defined by them) outweigh the costs (also as defined by them). As George Habash, the leader of the Popular Front for the Liberation of Palestine, told a reporter:
The main point is to select targets where success is 100% assured. To harass, to upset, to work on the nerves through unexpected small damages. . .
This is a thinking mans game. Especially when one is as poor as the Popular Front is. It would be silly for us to even think of waging a regular war; imperialism is too powerful and Israel is too strong. The only way to destroy them is to give a little blow here, a little blow there; to advance step by step, inch by inch, for years, for decades, with determination, doggedness, patience. And we will continue our present strategy. Its a smart one, you see.
To the extent that terrorism is "an entirely rational choice" and "a calculated move in a political game"-as some have concluded-it should be subject to the usual rules of deterrence theory. As I will show later, however, not all terrorism is the same, and some may be subject to somewhat different calculations. The benefits contemplated by some terrorists may vary, both in kind and in degree, from those contemplated by the more conventional criminal or by other terrorists. Moreover, the costs may also be defined and calibrated differently. The 1972 terrorist attacks against the Israeli Olympic team in Munich, for example, might be considered an absolute failure according to conventional standards of success. The demands of the terrorists were rejected, and nearly all of the terrorists were killed, either on the spot or thereafter. In the short term, world opinion quickly turned against the terrorists and those who sponsored them. But in the intermediate and long term, the worlds reaction to the Munich massacre served the interests of the terrorists to such an extraordinary degree that it encouraged many future acts of terrorism, both by Palestinians and by other aggrieved groups incentivised by the success of this apparent "failure."
Terrorism Is Different-But Not That Different
The kind of terrorism we are talking about is different in many respects from other crimes such as murder, rape, and robbery. The difference is that terrorism is generally more calculated, more premeditated, and more goal-oriented than impulsive crimes or crimes of passion. Criminal justice expert Philip Heymann has observed:
As a crime, terrorism is different. Most crimes are the product of greed, anger, jealousy, or the desire for domination, respect, or position in a group, and not of any desire to "improve" the state of the world or of a particular nation. Most crimes do not involve-as part of the plan for accomplishing their objectives-trying to change the occupants of government positions, their actions, or the basic structures and ideology of a nation .
Terrorism-at least of the kind described by Heymann-is thus more, not less, subject to disincentive and deterrence techniques than most ordinary crimes. To be sure, some acts of terrorism are revenge-driven and impulsive, but most are carefully calculated to achieve a goal. Sometimes the goal will be specific and immediate, while other times it may be more general, long term, and apocalyptic. But whatever the object, if it becomes clear that it will be disserved by terrorism-that the cause will be worse off-then it will be only a matter of time until co-supporters of the cause turn against those who resort to terrorism. Without widespread support from within the cause they are seeking to promote, terrorists cannot long thrive.
When we look at terrorism simply as a technique whose frequency and ferocity we seek to diminish-without necessarily making any moral judgments about particular terrorists or causes-certain conclusions seem beyond dispute. The first is that those who employ terrorism should always be worse off-by their own criteria-for having employed it than if they had not employed it. President Bushs rhetoric, that terrorist crimes "only hurt their cause," must become reality.
Not only must terrorism never be rewarded, the cause of those who employ it must be made-and must be seen to be made-worse off as a result of the terrorism than it would have been without it. The way calculating terrorists define and calibrate the cost and benefits may be different from the way common criminals decide whether to rob, cheat, or bully, but societys response must be based on similar considerations. Those who employ terrorism have their own criteria for evaluating success and failure, and in implementing the immutable principle that those who employ terrorism must be worse off for having resorted to this tactic, we must make them worse off by their own criteria. It will not always be possible to do this. If the terrorists criteria for success is massive publicity, for example, it will be difficult for a democracy to control the amount of publicity a terrorist act generates. But publicity is generally not an end in itself. It is a means toward furthering the terrorists cause. The end of achieving these ultimate goals can be controlled, at least to some degree, by those determined to disincentivise or deter terrorism.
The Root Causes of Terrorism
The current mantra of those opposed to a military response to terrorism is a plea to try to understand and eliminate the root causes of terrorism. There are several reasons why this is exactly the wrong approach.
The reason terrorism works-and will persist unless there are significant changes in the responses to it-is precisely because its perpetrators believe that by murdering innocent civilians they will succeed in attracting the attention of the world to their perceived grievances and their demand that the world "understand them" and "eliminate their root causes." To submit to this demand is to send the following counterproductive message to those with perceived grievances: if you resort to terrorism, we will try harder to understand your grievances and respond to them than we would have if you employed less violent methods. This is precisely the criterion for success established by the terrorist themselves. Listen to the words of Zehdi Labib Terzi, the Palestine Liberation Organisations chief observer at the United Nations: "The first several hijackings aroused the consciousness of the world and awakened the media and the world opinion much more-and more effectively-than twenty years of pleading at the United Nations." If this is true-and the Palestinians surely believe it is-then it should come as no surprise that hijackings and other forms of terrorism increased dramatically after the Palestinians were rewarded for their initial terrorism by increased world attention to its "root causes"-attention that quickly resulted in their leader being welcomed by the UN General Assembly, their organisation being granted observer status at the United Nations, and their "government" being recognized by dozens of nations.
We must take precisely the opposite approach to terrorism. We must commit ourselves never to try to understand or eliminate its alleged root causes, but rather to place it beyond the pale of dialogue and negotiation. Our message must be this: even if you have legitimate grievances, if you resort to terrorism as a means toward eliminating them we will simply not listen to you, we will not try to understand you, and we will certainly never change any of our policies toward you. Instead, we will hunt you down and destroy your capacity to engage in terror.
Nor is there any single substantive root cause of all, or even most, terrorism. If there were-if poverty, for example, were the root cause of all terrorism-then by fixing that problem we could address the root cause of specific terrorist groups without encouraging others. But the reality is that the "root causes" of terrorism are as varied as human nature. Every single "root cause" associated with terrorism has existed for centuries, and the vast majority of groups with equivalent or more compelling causes-and with far greater poverty and disadvantage-have never resorted to terrorism. There has never even been a direct correlation-to say nothing of causation-between the degrees of injustice experienced by a given group and the willingness of that group to resort to terrorism. The search for "root causes" smacks more of after-the-fact political justification than inductive scientific inquiry. The variables that distinguish aggrieved groups willing to target innocent civilians from equally situated groups unwilling to murder children have far less to do with the legitimacy of their causes or the suffering of their people than with religious, cultural, political, and ethical differences. To focus on such factors as poverty, illiteracy, disenfranchisement, and others all too common around our imperfect world is to fail to explain why so many groups with far greater grievances and disabilities have never resorted to terrorism.
Instead, the focus must be on the reality that using an act of terrorism as the occasion for addressing the root causes of that act only encourages other groups to resort to terrorism in order to have their root causes advanced on the international agenda. Put another way, the "root cause" of terrorism that must be eliminated is its success.
It may well be true that desperation contributes to the willingness of individuals to become suicide bombers, but it is the success of this tactic that incentivises those who recruit and send the suicide bombers on their lethal missions. It is crucial to distinguish between the motivations of the bombers themselves and those of the leaders who decide to employ the technique of terrorism to achieve political and diplomatic goals. It would seem to follow from this reality that an act of terrorism should never be the occasion for addressing the substantive root causes of terrorism. Just as we dont address the root causes of a bad marriage that may have led a man to murder his wife-we hunt down the murderer and punish him-so too we shouldnt consider the root causes that may have motivated the violence of the terrorists. We must hunt them down and punish and incapacitate them, without regard for the possible substantive justice of their cause. That is the only way to send the message that no cause-no end-justifies resort to the unacceptable means of terrorism.
This tough approach toward terrorism does not mean that root causes should never be addressed. If the cause is just, it should be considered-in the order of its justness compared with that of other causes, discounted by the penalty that must be imposed for resorting to terrorism. Again an analogy to ordinary crimes: we recognize that poverty and unemployment may contribute to the causes of street violence-that they are among its root causes. But we dont use the occasion of a drug-related murder to address these root causes. Instead, we punish the murderer and redouble our efforts to deter and interdict future murders. At the same time, we continue to try to address poverty and unemployment, because that is the right thing to do. There are many just causes throughout the world. Those who advocate or resort to terrorism should be moved backward-not forward-on the list of just causes warranting consideration by the international community.
The message must be that nothing will be gained by terrorism, and much will be lost. The cause will be set back, not furthered, by resort to terrorism. Here an analogy to child rearing is useful. Suppose you have two children, each of whom has an equally legitimate grievance. One of them discusses it rationally with you, while the other one hits you over the head with a stick. The latter will surely get your attention, but only a terrible parent would give preference to the grievance of the violent child over that of the peaceful one. To do that would be encouraging further violence by both children.
This would seem an obvious and simple first principle in dealing with terrorism (as it is in dealing with other crimes). But, as we shall see in the next chapter, the international community has responded in precisely the opposite manner. Terrorism has generally moved its cause forward rather than backward. And it continues to do so-even after September 11. The more horrible the nature of the terrorism, the greater has been the forward movement.
Terrorists-especially terrorist leaders-have been honoured rather than punished. Indeed, at least three terrorist leaders have been awarded the Nobel Peace Prize. Some have been embraced by religious leaders. The message has been clear: if you believe your cause is sufficiently just to resort to terrorism, you must be right. The very decision to resort to terrorism is seen as a confirmation of the justness of the cause. The more horrible the nature of your terrorism, the more just your cause must be. Terrorism leapfrogs its cause over other equally or more just causes whose advocates have not resorted to terrorism. Its no wonder, therefore, that some aggrieved groups employ it as a first, rather than a last, resort.
There is also another reason why terrorism advances its cause. Terrorism frightens us into seeking quick solutions. If we give in to the demands of the terrorists, maybe they will stop using terrorism.
The combination of these reasons - some moral, others pragmatic - understandably inclines decent and thoughtful people to opt for an approach that advances the cause of terrorists, by giving in to their demands and advancing consideration of their root causes over the root causes of other groups. The long-term effects of this approach have been to legitimate terrorism as a means of achieving certain ends and to encourage other groups to resort to it. This paradox-that by addressing the root causes of one group of terrorists we encourage others to resort to terrorism-should become an important foundation for any policy designed to reduce the frequency and severity of terrorism.
One major difference between ordinary crime and terrorism-and therefore in a societys approach to preventing or reducing the incidences of either-is that religiously motivated terrorists are often willing, sometimes even eager, to give up their lives in the interests of their holy cause. In this situation, the usual deterrent strategy of threatening death to the perpetrator will not work. Indeed, for those who desire a martyrs death, the threat may provide something of an incentive, especially if it is coupled with the promise of reward for the martyrs family or cause.
But a desire for martyrdom need not eliminate all possibilities of deterring the act by threatening severe punishment. It merely requires that the severe punishment be directed against someone, or something, other than the potential martyr himself-such as his cause, or those who harbour him. In theory, the punishment could also be directed against his family, but such a strategy would raise daunting questions of morality and fairness.
There are entirely moral ways of deterring suicide actors as well. These tactics require that we think beyond the individual suicide terrorist, who probably cannot be effectively deterred by means acceptable to a moral society, and that we understand that the vast majority of individual suicide terrorists do not act on their own. They are part of complex organisational structures. They are sent to engage in their suicide terrorism by the organisations that have recruited them, persuaded them to become martyrs, promised them and their families rewards (in this world or the next), and selected the target, time, and place for the terrorist act. Often, their terrorism has widespread support within the cause, manifested through financial contributions, logistical assistance, and harbouring. Few, if any, suicide bombers act on their own as a result of uncontrollable rage. They may volunteer to act because of rage, but the decision to send them is almost always calculated by others. The question therefore is not whether the individual suicide terrorist can be deterred from suicide terrorism. The questions that must be asked are whether the organisation can be deterred from sending him on a suicide mission, and whether the supporters can be deterred from rendering needed assistance. The answer is generally going to be yes-if we can figure out effective threats and carry them out with sufficient public demonstration that terrorism does not benefit, and indeed harms, the organisations that opt for it, and the causes they represent.
The Impact of September 11
Before September 11, terrorism worked because those who sponsored it too often benefited from the terrorist acts. The sponsors were rewarded because the dramatic nature of the acts got our attention and brought their perceived grievances to the forefront of public consciousness.
This attention caused many decent people-religious leaders, academics, politicians, ordinary citizens-to seek to gain a better understanding of terrorists grievances and to address the root causes of the terrorism. The very brutality and desperation of the acts led many in the international community to believe that the terrorists represented "a cause that could no longer justifiably be denied." Because their grievances and causes were addressed in response to terrorism, other groups with perceived grievances saw the benefits of terrorism and were more likely to resort to it, rather than to opt for other less visible and hence less successful mechanisms of change. Success begets repetition and imitation. We will also see, in Chapter 2, that terrorism works because the short-term self-interest of some countries inclines them to make self-serving deals with terrorists that set back what should be a universal and coordinated attack on terrorism especially, it seems from experience, France, Germany, and Italy.
This, then, is the first paradox of dealing with terrorism: Terrorism does, of course, have substantive root causes. Every act of violence, criminality, and evil has root causes. By addressing and fixing the root causes of a particular terrorist group, we may sometimes though not always, as we shall see reduce or eliminate the specific terrorist threat of that group. But in doing so, we encourage other potential terrorists to resort to this unacceptable means of having their root causes addressed and fixed.
There is, however, another paradox of dealing with terrorism, which may point in the opposite direction. The more brutal and repressive we are toward the terrorists, the more we make them martyrs to be emulated by other potential terrorists. Punishing rather than honouring terrorists and moving their claims backward rather than forward may contribute to the breeding of new terrorists willing to sacrifice their lives to the cause. If both of these paradoxes are equally true, then it would seem to follow that neither of the obvious approaches to dealing with terrorism will work.
Actually, this conclusion is false, as we shall see, because paradox I is far more powerful than paradox II. Paradox I is far more powerful because it influences the conduct of leaders of the cause and it affects the ultimate goals of the cause. Paradox II, on the other hand, influences only the followers and may make them more susceptible to the calls of the leaders for martyrdom volunteers. In this kind of "organised terrorism," leaders are far more important than followers, because such terrorism is more authoritarian than democratic. Individual martyrs in search of a leader can be dangerous, but far less so than charismatic leaders capable of persuading followers to risk or forfeit their lives.
Alan Dershowitz is a professor of law at Harvard Law School, and Americas most-renowned criminal defence and civil liberties attorney. He is the best-selling author of Supreme Injustice, Chutzpah, Reversal of Fortune, Reasonable Doubts, and many other books. Excerpted from the book Why Terrorism Works: Understanding the Threat, Responding to the Challenge. Copyright (c) 2002 by Alan Dershowitz. Published by Yale University Press. Reprinted with permission of the author and publisher. This excerpt first appeared in Jewsweek magazine.
© AIJAC 2002