Terrorism and the Law

Abraham D. Sofaer

From Foreign Affairs, Summer 1986

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Summary:  Terrorism poses important political and diplomatic challenges. It is designed to call attention, through the use of violence, to the causes espoused by terrorists, and to bring about changes in policy favorable to those causes. The United States and its allies?and all other affected nations?must deal with this threat to civilized order with all appropriate measures, ranging from diplomatic to military.

Abraham D. Sofaer is Legal Adviser to the Department of State. Previously, he was a federal district judge in New York. This article is based on the Sulzbacher Lecture delivered at the Columbia University School of Law, April 5, 1986. Legal citations have not been included to facilitate ease of reading; they are available from the Office of the Legal Adviser, U.S. Department of State, Washington, D.C. 20520.

Terrorism poses important political and diplomatic challenges. It is designed to call attention, through the use of violence, to the causes espoused by terrorists, and to bring about changes in policy favorable to those causes. The United States and its allies—and all other affected nations—must deal with this threat to civilized order with all appropriate measures, ranging from diplomatic to military.

One potential means for dealing with terrorism is law. Americans are particularly attracted to the law as a means for repressing violence, and are committed domestically and internationally to using law to control criminal conduct and to resolve disputes. They invoke the law almost instinctively, and repeatedly, assuming that it regulates international conduct and, in particular, provides a system for bringing terrorists to justice.

Recent terrorist incidents have led to many efforts to use the law, virtually all of which have failed. The law has a poor record in dealing with international terrorism. Some terrorists are killed or captured during the course of their crimes, but few of those who evade these consequences are afterward found and arrested. The terrorist who is prosecuted is likely to be released far earlier than his sentence should require, often in exchange for hostages taken in a subsequent terrorist episode.

The time has come to ask, frankly and honestly, why international terrorism is so loudly condemned, and yet so prevalent. What good is the law in fighting international terrorism? Why has it failed?

II

One reason for the law’s ineffectiveness is that terrorism, in essence, is criminal activity. In applying law domestically, governments seek to punish and deter crime as effectively as possible. But they recognize that law cannot eliminate crime. They can expect even less of the law in dealing with international terrorism. The world has no international police force or judicial system.

The stock response to complaints about the law’s failure to deal effectively with terrorism is that more laws are needed. That is a misleading answer. Important gaps do exist in the legal structure that governs terrorist acts, and the Reagan Administration is working with Congress and with other nations to close them. For example, the U.S. government lacks a domestic legal basis to prosecute the terrorists who killed an American citizen, Leon Klinghoffer, during the October 1985 Achille Lauro cruise ship hijacking, or the terrorists who killed four American civilians on a hijacked Trans-World Airlines flight earlier that year. The Senate has passed a statute establishing jurisdiction for terrorist murders of Americans, and its adoption by the House would be welcome. Americans must not deceive themselves, however, that new laws, closing gaps, will overcome the problems that render law ineffective. Recent events have demonstrated that, even when laws clearly govern particular conduct, they are often disregarded or otherwise fail to achieve their purpose.

The reasons for the law’s failure tolerably to control terrorism go much deeper than the absence of law enforcement authority or mechanisms. International law and cooperation in less controversial areas have often proved reasonably effective. ...

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