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ANALYSIS

International Law Today
Seen As Aid To Terrorism

VICTOR M. BIENSTOCK

Special to The Jewish News

ar from providing a
weapon against ter-
rorism, international law
today is the terrorist's most ef-
fective shield. Instead of con-
demning terrorist crimes, inter-
national law permits them to be
disguised as political actions
and this serves to legitimize ter-
rorism and protect its perpet-
rators from punishment.
International law, as pre-
sently formulated, says Judge
Abraham D. Sofaer, legal ad-
viser to the Department of
State, "cannot reasonably be ex-
pected effectively to repress in-
ternational terrorism. Interna-
tional terrorism is still sup-
ported by many nations as a
legitimate means of struggle
against regimes deemed by
them to be colonial, alien or ra-
cist.
At the behest of these states
and by the acquiescence of
others, international law has
been automatically and inten-
tionally fashioned to give special
treatment to, or leave unregu-
lated, those activities that cause
and are the source of most acts
of international terror."
In all the years since the
Nuremberg trials — the sole in-
ternational action to punish
crimes against humanity — no
body of law has been established
that makes political terrorism
an international crime and no
international machinery has
ever been set up to punish such
crimes.
In the area of terrorism, de-
clares Sofaer, "the law has
failed to punish and deter those
who use violence to advance
their political goals."
Judge Sofaer has been de-
scribed as one of the most un-
usual and capable figures in
American public life. The 47-
year-old jurist, born in Bombay
in a family stemming from Iraq,
once described himself as "a Jew
who is unambivalently proud of
his Arab heritage." He immig-
rated to the United States at the
age of 14 and later served in the
U.S. Air Force. He was a law
professor at Columbia when
President Carter named him to
the federal bench in 1979.
As a judge, Sofaer presided
over Ariel Sharon's libel suit
against Time. He has visited Is-
rael on a mission connected with
the Pollard spy case and, cur-
rently, he is trying to mediate
differences between Israel and
Egypt over the terms of the
Taba arbitration. At State,
where he has a staff of 168, he
is described as a key adviser to
Secretary Shultz, and as one
who plays a more activist role
than his predecessors in
policy-making and particularly
in the fight against terrorism.

F

Sofaer's views on terrorism
and international= law appear as
the leading article in the Sum-
mer issue of Foreign Affairs, the
authoritative quarterly pub-
lished by the Council on Foreign

Judge Abraham Sofaer

Relations. The article is based
on the Sulzberger Lecture Judge
Sofaer delivered at the Colum-
bia University School of Law
earlier this year.
"Civilized nations," he points
out, "have tried to control inter-
national terrorism by condemn-
ing it, by treating it as piracy,
by prosecuting terrorists under
the laws of affected states, by
creating international norms es-
tablishing as criminal certain
acts wherever committed, and
by cooperating through extradi-
tion and other devices in aiding
nations attacked by terrorists."
But, says the famed jurist, "an
appraisal of these efforts leads
to a painful conclusion: the law
applicable to terrorism is not
merely flawed, it is perverse.
The rules and declarations
seemingly designed to curb ter-
rorism have. regularly included
provisions that demonstrate the
absence of international agree-
ment - on the propriety of reg-
ulating terrorist activity. On
some issues, the law leaves
political violence unregulated.
On other issues the law is am-
bivalent, providing a basis for
conflicting arguments as to its
purpose.
At its worse," he charges,
"the law has in important ways
actually served to legitimize in-
ternational terror and to protect
terrorists from punishment as
criminals." -
These deficiencies, he stresses,
are not the product of negli-
gence or mistake but are inten-
tional. Acceptance of terror, he
says, is widespread and "many
nations regard terrorism as a
legitimate means of warfare."
This perversion of interna,.
tional - law, Sofaer declares,
began in September 1972 in the
aftermath of the murder of the
11 members of the -Israeli
Olympic team at Munich. Secre-
tary General Kurt Waldheim
asked the United Nations Gen-
eral Assembly to include an
item on the agenda entitled
"Measures to prevent terrorism
and other forms of violence
which endanger or take inno-
cent lives or jeopardize funda-
mental freedoms."
When his proposal met with
angry protests, he quickly

yielded and amended it by qual-
ifying that it was no good con-
sidering terrorism "without at
the same time considering the
underlying situations which
give rise to terrorism and vio-
lence in many parts of the
world." He stressed that he did
not intend to affect principles
regarding "colonial and depen-
dent peoples seeking indepen-
dence and liberation."
These alterations were most
significant, stresses Sofaer, since
"attributing acts of terrorism to
injustice and frustration obvi-
ously tends to excuse, if not jus-
tify, those acts. - This is espe-
cially so when the causes are all
assumed to be sympathetic. The
language concerning- efforts to
seek 'independence' and 'libera-
tion' also implie'd justification
for terrorist acts."
Acceptance of the premise
that terrorist acts in pursuit of
lawful goals are legitimate,
Sofaer affirms, is a "clear signal
to all that those groups deemed
by the majority to be oppressed
will be legally free to use force,
and therefore cannot fairly be
called terrorists. In other words,
acts of terrorism by such groups
are not wrong, and the law has
no proper role in punishing or
deterring such acts."
The jurist traces in detail how
laws that should be applicable
to terrorism have been sub-
verted in international forums
to exclude crimes attributed to a
political motive. The piracy law,
for example; Sofaer points out,
was amended in the Geneva
high seas convention to cover
only crimes committed "for pri-
vate ends" and to exclude "all
wrongful acts committed for a
political purpose."
Further legal protection for
terrorism was provided by ex-
tending the law of international
armed conflicts to grant revolu-
tionary groups protection as
combatants, covering activities
of the Palestine Liberation
Organization and other groups.
Concluding, Sofaer notes that
"the failure of international law
to control international ter-
rorism is a matter of great
strategic concern" and warns
that "ineffective methods for
dealing with terrorists through
the law will inevitably lead to
antiterrorist actions more primi-
tive and dangerous than cooper-
ation among sovereign states,
including conventional military
actions in self-defense will pro-
vide. These dangers are espe-
cially heightened. with terrorism
that is state-supported."
He insists, therefore, that
"civilized nations and peoples
cannot give up on law, however
frustrated they may feel by its
shortcomings. In fact, the point
of this essay" he explains, "is
that law is not presently being
used to counter terrorism; it has
been placed very much at the
service of those who embrace
political violence. Our challenge
is to create a broader under-
standing among peoples and
governments to bring about a
shift in the objects that interna-
tional law is designed to serve."

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