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  • 1. TERRORISM, A HISTORY: STAGE ONE * S HARON H ARZENSKI Table of Con tents I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 II. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 A. Definitional Difficulties: Political Action or Crim inal Condu ct . . . . . . . . . . . . . . . . . . . . . 143 III. REVOLUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 A. A Terrorist Tree: Evolution in Action . . . . . . . . . . . . 147 IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 A. Fruits of the Poisonous Tree . . . . . . . . . . . . . . . . . . . . 190 “Our cultures, our histories, grasp us with a thousand invisib le fingers. . . . [E]ach country is inhabited not only by its citizens but also by gh osts from the p ast and by phantasm s from im aginary futures or sain ts 1 from lands outside time.” * In order to write I am obliged to dedicate. Because this piece so often concerns revolutionaries and because revolutionaries are, for many of us, romantic “outlaw” figures, and be cau se w e su ffer for o ur i llus ion s, I ded icate the work to culture heroes. And, because m y husba nd is one o f the culture heroes of our generation , especially to h i m a n d to our communal redemption, I dedicate this work. Whisky Ja ck sh oo k h is h ea d. ‘I ’m a cu ltu re h ero ,’ he s aid . ‘We do t h e sam e shit gods do, we just screw up more and nobody worships u s. They tell stories about us, but they tell the ones that ma ke us look bad al on g w ith th e o ne s w he re we ca m e o ut fa irly o ka y.’ N EIL G AIMAN , A MERICAN G ODS 400 (2001 ). In additio n , I w o u ld lik e to ex pre ss m y appreciation to the Jam es E. Beasley School of Law for their continuing financial support and encourag em ent. 1. R OBERT C ONQUEST , R EFLECTIONS ON A R AVAGED C ENTURY 29 (2000). My youth cut across the 1 960 -197 0 era of Civil Rights, hippies, anti-war protests, with all the accompanying violence asso ciated with these m ovem ents. F rom Rev erend Ma rtin Luthe r King to the Bla ck Panthers; from the death of Freedom Riders to the bombing of churches; from People’s Pa rk to Altamont; from the Peace Movement to Four Dead in Ohio; from anti-wa r ma rches to trial of the Chicago 8; from W e Shall Overcome t o the W e at he rm e n; th is wa s m y cu lt ure , m y history. Its ghos ts w ill alwa ys w hispe r their h opes to m e; its gho uls w ill always wa rn me of the danger of wanting without wisdom . The particular memory that connects those days with this stu dy of te rrorism hap pen ed on e da y in 19 71 w hile sittin g throu gh an interm ina b le s t ra tegy sess ion. It occu rred to m e tha t “Co m e the R evolut ion” m y friend s an d I, em broiled revolutionaries, would be no m ore able tha n our current go vernm ent to love th e p e o p le, generate jus tice o r w alk ha nd -in -h an d in to a b et te r w orld . W e ha d b eco m e the enemy. That ended the revolution for me. But, I never forgot the intense dedication to a cause that burned so brightly. I never forgot what it was like to look into the light. And, because I never forgot, those who str ug gle ag ain st o pp res sio n a re a lw ay s m y b rot he rs a nd sis ter s. The w ay I see it, but fo r a m om ent of h um ility in an otherwise arrogant life, I could have died at Ruby R idge, joi ne d T im ot hy M cV eig h’s Oklah om a horror story or fou nd m yself lending sup port to Os am a 137
  • 2. 138 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 “Epochal mom ents belong rightly to history, and it is history that h olds th e only hope of providing an understanding of the twisted road that has brought 2 us to th is frighten ing pass.” “So long as the past and the present are outside one anoth er, know ledge of the past is not of mu ch use in the present. But suppose the past lives on in the present . . . and [is] at first sight hidden beneath the present’s contra dictory a nd m ore p rom inent 3 features.” I. I NTRODUCTION 4 In a recent New Yorker article, I was exposed to a view of history previously un kno wn to me. The first glance revealed a period of “hum iliation and disgrace” w hich began for many Muslims in 1918 with the defeat of the O ttoman sultan ate by W estern 5 European forces. Shortly thereafter, when Turkish nationalists were able to regain territorial control from the French and British, the sultanate, the Ottoman sovereign, the caliph, head of all Sunni Islam, the last personality to inherit authority through a lineage 6 directly connected the Prophet Muha mm ad, was abolished. Finally, the caliphate itself, a rocky but essentially unbroken tradition, a symbol of Muslim unity and identity for thirteen 7 centuries, was eradicated. Lew is, the author of the New Yorker article, points to resulting shock waves that co ntinu e to be experienced in the Muslim commu nity. I can well understand th e fact of this type of historic shock. I was raised in a tradition where the destruction of a Tem ple not long after the beginning of the Christian era was taught as a bin La de n. I never want to call these people names, dehum anize them, dem onize them, degrade or belittle the m . Th ey a re n ot s o d iffer en t fro m m e. O n th e ot he r ha nd , I do not want to be mu rdered or to have my friends, family, and fellow citizens slaughtered or tormented by those who find themselves trapped in violence. So, it is here, acknow ledging tha t we are capa ble of endangering ourselves and others to ach ieve our projected ends, that I w ant to sta rt my exploration of history. 2. C ALEB C ARR, T HE L ESSONS OF T ERROR: A H ISTORY OF W ARFARE A GAINST C IVILIANS— W HY I T H AS A LWAYS F AILED AND W HY I T W ILL F AIL A GAIN 5 (20 02). 3. J ONATHAN G LOVER , H UMANITY : A M ORAL H ISTORY OF THE T WENTIETH C ENTURY 411 (199 9) (citing R . G. C OLLINGWOOD, A UTOBIOGRAPHY (197 8)). 4. Be rna rd L ew is, The Revolt of Islam , T HE N EW Y ORKER , Nov. 19, 2001, at 50. 5. Id. 6. Id. at 50-51. 7. Id. at 51.
  • 3. Spring, 2003] TERRO RISM 139 trauma from which there was no complete recovery. Having been raised among Rom an Ca tholics, I can im agine the deep disturbance the loss of the Pope, as Father of the Church, would cause. When the Dalai Lama w as forced into exile by the Chin ese, th e shock to that Buddhist com mu nity wa s eviden t. Imagine the ramifications 8 had “foreign imp erialists and dom estic modernists” — the forces Lew is identifies as being held responsible for the loss of the caliphate— been capable of eradicating completely the person and position of this religiou s leader. The secon d glance re vealed a world un ified by religion, not 9 nationality. Wh ile I know this world well from my childhood and from my studies of pre-Reformation Europe, my ignorance of Middle Eastern history had veiled its vitality in the Muslim comm unity. Nation-states and the form of nationalism associated with the m a re 10 relatively new inhabitants of the world commu nity. Tribal and religious collectives, loyalties, and identities are far olde r. The ir strength draws from the deepest possible affiliations known to 11 hum ankind. It would be foolh ardy to look upon a co mmunity united throu gh religion and anticipate an eq uivalent regard for political affiliations. The third revelation exposed a previously unfamiliar view of the United States as a threatening monolithic empire. From the vantage point of a once powerful Islam brought low by “foreign imp erialists and domestic modernity,” a degree of safety was achieved as the tensions between imperialist superpowers kept them off balan ce. The failure of the Soviet system left the United 12 States singular and unrivaled. No compensating patron existed for Islam ic interests. As L ewis puts it, “Middle Easterners found themselves obliged to mobilize their own forces of resistance. Al 13 Qaeda—its leaders, its spo nsors, its fin anciers— is one such force.” There is more to this particular history: the international and unwelcomed imposition of Israel; the support by the United States of tyrannical governm ents; the poverty of many in the M iddle East along with the extravagant wealth of others in the same comm unity; the role of jihad in Islamic tradition; the unbridgeable distinctions 8. Id. 9. Id. 10. Id. 11. Matthew 8:21 (The Oxford Annotated Bible) (“Another of the disciples said to him , ‘Lord, let me first go and bury my father,’ But Jesus said to him, ‘Follow me, and leave the dead to bu ry their o wn dea d.’”); D AVID S. N OSS & J OHN B . N OSS , M AN ’S R ELIGIONS 106-07 (7th ed. 198 4) (repo rting th e often repea ted s tory of P rinc e G a u tam a, the B udd ha, w ho left h is royal fa m ily, wife an d child , renoun cing ho useh old life, to se ek sp iritual re new al). 12. Le wi s, supra note 4, at 51. 13. Id. at 54.
  • 4. 140 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 between strict Islamic and hedonistic Western lifestyles; and the 14 modern history of terrorism. These aspects are not unimportant details, listed to be overlooked in favor of the deep, underlying influences of history. They are , as Collingwood instructed us, the som etimes contradictory 15 and always prominent features familiar to us in the presen t. But they, by them selves, ma y no t be enough to prepare us to make informed decisions in the present ab out how to move tow ard a m ore 16 peaceful, resolved future. Wanting to know how to move tow ard that futu re, I decided to learn from the past by immersing my self in history. Specifically, I 17 wanted to know more about the history of terrorism. I decided to 14. Id. 15. See G LOVER, supra note 3. 16. I think, not until I mourn with the S unni Is lam ic com m unity o ver the loss of th eir caliph, can I begin to comprehend the perspectives that influence belief and underlie action. I think, not until I perceive the overwhelming nature of Un ited Sta tes pow er, can I hope to c o m p rehend the seemingly futile but horribly painful acts of resistance represented by the events of September 11th. 17. The constructed history of terrorism begins with the sicari, an extremist group of Jewish resiste rs activ e during the R o m a n oc cu p a ti on o f P a le s ti ne . I t i s f ro m t hi s g ro u p w e inherited the word “zealot;” a zealous lot they were. They f ou ght as guerrillas against the Romans in the countrys ide, attack ing priests and moneylenders, and torched archives and palaces within Jerusalem. These are the suicidal patriots of Masada and, according to Josephus Flavius, may have contributed to the destruction of the second Temple, circa 70 C.E ., and thus, to the s e e m i n gly e nd les s D ias po ra o f th e J ew ish pe op le. W ALTER L AQUEUR, T HE N EW T ERRORISM 11 (199 9). Next, we a re brought into th e eleventh century with the Order of the A ssas sins (H ash has hin ) , a M uslim sect th at be gan by se izing m ount ain fortresses, graduated to urban activity and specializing in the assassination of p owerful individuals. Yo na h A lex an de r, Terrorism i n th e Twenty-First Century: Threats and Responses , 12 D E P AUL B US. L.J. 59, 65 (1 999 /2000 ). Their goal was the purification of Islam in preparation for the coming of the M adh i or M essia h. Pa tricia A. L on g, In the Name of God: Religious Terro rism in the M illenniu m — An An alysis of Ho ly Terror, Government Resources, and the Co operative E fforts of a Na tion to Res train Its Global Im pact, 24 SUFFOLK T RANSNAT’L L. R EV . 51 , 56 (20 00 ). The Assassins must be con sidere d in con junctio n w ith the ir enemies, the Crusaders, who came from Europe to the Holy Land during the same era. They too sought, throug h violence, to purify the lan d of Jesus ’ birth in what they called a “righteous war against th e infidel.” Id. Europ ean pirates and privateering during sixteenth and eighteenth centu ry are m ention ed a s ad ditional episodes o f ter ror ism . Al exa nd er, supra , at 65 ; see also M arc us Re dik er, Th e S ea m an as Pir at e: Plunder and Socia l Ba nditry at S ea, in B ANDITS AT S EA : A P IRATE’S R EADER 13 9, 1 52 (C . Ri cha rd P en ne ll ed ., 2001) (“The Jolly Roger . . . a ‘black Ensign, in the Middl e of w h ic h is a large w hite Ske leton’ . . . was intend ed to terrify the pirates’ prey.”). Research for my Am erican Legal History class revealed a rich and stimulating supply of sou rces, such as the imp ortation of slaves from A frica to the Am ericas. H ANNAH A RENDT, O N R EVOLUTION 65-66 (1 963) [hereina fter A RENDT, O N R EVOLUTION ]. Additional research yields s upportive inform ation. Slavery in the United States is mentioned as a product, rather tha n a m eth od , of te rro r. C ARR, supra note 2, at 136-37. See A LLEN W . T RELEASE , W HITE T ERROR: T HE K U K LUX K LAN C ONSPIRACY AND S OUTHERN R ECONSTRUCTION (197 1), for an intensive investigation into the terrorist activities of the KKK during Recon struction. Other sources speak about R wanda and South A frica, but these are not always focu sed on ter ror ism . H UMAN R IGHTS W ATCH , S LAUGHTER A MONG N EIGHBORS: T HE P OLITICAL O RIGINS OF C OMMUNAL V IOLENCE (1995 ) (covering Rw anda at 13-32 and S outh
  • 5. Spring, 2003] TERRO RISM 141 investigate the history of terrorism in a formal sense, in the sense that from a date forward there existed an identifiable class of political conduct that was called terrorism. According to the We stern canon, the terrorism I was interested in is first associated 18 with the R eign of Terror in the French Revolution. So, it was to the French Revolution that I turned. Also, the idea of terrorism, its justification, is linked to the violence of an oppressed people seeking 19 liberation from the clutches of subjugation. As a resu lt, it was to Africa at 5 7-7 2). See also P HILIP G OUREVITCH, W E W ISH TO I NFORM Y OU THAT T OMORROW W E W ILL B E K ILLED WITH O UR F AMILIES : S TORIES F ROM R WANDA (1998). The Maa sai-Kikuyu conflict in Ke nya , which brou ght th e term “m au m au” in to as sociat ion w ith terro rism , is mentioned in o ne of m y so urc es. H UMAN R IGHTS W ATCH , supra , at 102-05. S r i L a nka is mentioned in several sou rces but the emphasis is mostly modern and not solely on the terrorist ic nature of the problem . H UMAN R IGHTS W ATCH , supra , at 85-10 0; Bruce K apferer, Remythologizing Discourses: S ta te and Insurrectionary Violence in Sri Lanka, in T HE L EGITIMIZATION OF V IOLENCE 15 9, 1 59 -88 (D av id E . Ap ter ed ., 19 97 ); L AQUEUR, supra , at 100- 01, 191-96. Chinese and Indian secret societies are mentioned briefly as having long histories tha t qu ali fy fo r fu rth er in ves tiga tio n. The Boxer Rebellion of 1900 in China is alluded to as providing som e re lev an t m at eria l. Id. at 12. Finally, from India, the thuggee, f ro m w h ic h w e have derived the term “thug,” who strangled their victims as a service to Kali, are noted as pa rt o f ter ror ist his tor y. Id. 18. Bradley Larschan, L eg al As p ec ts to th e C o nt ro l o f T ra n sn a ti on a l T e rr or is m : A n Overview, 13 O HIO N .U . L. R EV . 117, 1 23 n .32 (19 86) (citing P AUL. W ILKENSON , P OLITICAL T ERRORISM 9 (1974) for the p roposition tha t the first usage of “terrorism ” was in reaction to t h e “system atic po licy of violen ce, intim idatio n an d the use o f the gu illotine b y the J acob in and Thermidorian movements in revolutionary France.”). 17 O XFORD E NGLISH D ICTIONARY 820-21 (2d ed. 1989) (listing as its first definition of “terrorism”: “Governmen t by intimidation as directe d an d carrie d out by th e pa rty in power in France during the Revolution of 1789-94; the system of the ‘terror’ (1793 -4)”; and, as its first definition of “terrorist” it provides: “As a political term: a. Applied to the Jacobins and their agents a nd pa rtisans in the F rench Revolution, espe cially to th ose co nnec ted w ith the Rev olution ary trib una ls during the ‘Reign of Terror.’”). This method ology of looking for and attending to the first use of a particular t erm , a cco rd s w it h F ou ca ult ’s sy st em of s ea r c hing ou t th e ea rlie st u ses of te rm ino log y. See M ICHEL F OUCAULT, E THICS: S UBJECTIVITY AND T RUTH (Paul Rabinow ed., Robert Hurley et al. trans., 1997) (referring especially to chapters covering: The Abnormals, at 51-57 ; Society Must Be Defended, at 59-65; Technologies of Self, at 223-251; and What is Enlightenment, at 303 -319 ); see also C ONQUEST , supra note 1, at 4 (“[I]n Fra nce . . . we first fin d R evolut ion in the sense of the comp lete destruction of the existing orde r, and its replacem ent by ab stract concepts—these latter formu lated by, and dictatorially enforced by, theorists with no expe rience o f real po litics.”). 19. Actually, this issue is pa rt of a definitional debate between those who conclude that politica lly m otivat ed vio lence s hould n o t a utomatically be labeled terrorism and those who believe that th e u nl aw ful use of violence to furthe r political or social objectives and /or to intimida te or coerce governm ents int o ch an gin g p olic ies is e xa ctly wh at ter ror ism is. Com pare a n d contrast de fini tio ns qu ote d b y L ou is R en é B ere s, The Me anin g O f Terrorism— Jurisprudential And Definitional Clarifications, 28 V AND. J. T RANSNAT’L L. 239, 240-41 (199 5) (citing R . Ki dd er, Unm asking Terrorism: The Fear of Fear Itself, in V IOLENCE AND T ERRORISM 14 (Berna rd Schech terma n and Ma rtin W . Slann ed s., 3d ed. 1993 )) which prom ote the idea th at terrorism is “the u nlaw ful use of violen ce to int im idate or coerce in fur t h erance of political agenda s,” with the Third W orld Propo sal definition, which s helters from the label of terrorism the use of violence for self-de term inatio n an d ind epen den ce wh ile a ttaching the label to the use of violence by colonial racist regimes w ho seek to repress a pe op le’s strugg le for freed om ; and S tate a ssista nce off ered to fascist or mercenary groups whose terrorist activities are directed against other sovereign nations. Liam G. B. M urphy,
  • 6. 142 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 A P roposal on Internationa l Legal R espons es to Terrorism , 2 TOURO J. T RANSNAT’L L. 67, 81 n.47 (199 1) (citing Third W orld Proposal, Report of the Ad H oc C om m ittee on International T erro ris m , 2 8 U .N . G A O R supp. (No. 28) at 21, U.N. Doc. A/9028 (1973)). When, in the 1970s, the United Nations undertook to draft “An International Convention Against the Taking of H ost ag es,” the inability of nat ion-sta tes to re ach a n agr eeab le definition of terrorism m oved the com m unity t o ad opt a piecem eal ins tead of a comprehensive approa ch towa rd restraints against t er ro ri sm . El iz a be th R .P . Bo we n, N ote , Jurisdiction over Terrorists Who Take Hostages: Efforts to Stop Terro r-Vio lence Against United States Citizens, 2 A M . U . J. I NT’L L. & P OL’Y 153 , 191 n .202 (1 987 ) (citing Ve d P . N an da , Progress Report on the U n ited Nations’ At tem pt T o D raf t A n “I nte rna tio na l C on ven tio n A ga ins t th e T ak ing of H ost ag es," 6 O HIO N .U . L. R EV . 89, 89 (1979)). More than a decade later, “defining terrorism remained a stumbling block to international agreements. Despite years of effort it was im possible to definit i on a lly dis tin gu ish be tw een ter ror ist act ivit y a nd na tio na l lib era tio n m ove m en ts.” Caleb M . Pil grim , Terrorism in National and International L a w , 8 D ICK. J. I NT’L L. 147, 157- 58 (1990). The condit ion ling ers in t his un set tle d s ta te. See Ro be rta Sm ith , N ote , Am erica Tries To C om e To T erm s W ith Terrorism: The U nited States Anti-Terrorism and E ffective Death Penalty Act of 1996 v. British Anti-Terrorism Law and International Response, 5 C ARDOZO J. I NT’L & C OMP. L. 249, 25 4-5 5 (1 99 7); see also M ich ae l J. G len no n, The Fog o f L a w : Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations C harter, 25 H ARV. J.L. & P UB. P OL’Y 53 9, 5 58 (20 02 ); E m an ue l G ros s, Thwarting Terrorist Acts by Attacking the Perpetrators or Their Commanders as an A ct of Self-Defense: H um an R ights Vers u s the State’s Duty to Protect its Citizens, 15 TEMP. I NT’L & C OMP. L.J. 195, 200-03 (200 1). In its modern manifestations, terror is the totalitarian form of war and politics. It shatters the war conve n t io n and the po litic al c od e. . . . Desp ite this, terrorism has been defen de d. . . . I t is said, for example, that there is no alternative to terrorist activity if oppr e s se d peoples are to be liberated. Those who m ake these argu m ents, I th ink, ha ve lost t heir grip on the his tor ica l pa st. Id. at 233. The issue of definition is so controversial that scholars have questioned the possibility of s olu tio n. N ote , International Terrorism and Islamic Law , 29 C OLUM .J. T RANSNAT’L L. 62 9, 631 n.7 (19 91) (citing J OHN F. M URPHY, P UNISHING I NTERNATIONAL T ERRORISTS 3-5 (1985) and A LEX P. S CHMID & A LBERT J. J ONGMAN , P OLITICAL T ERRORISM 1-10 (198 8)); R.R . Ba xte r, A Skeptical Look at the Concept of Terrorism , 7 A KRON L. R EV . 380, 380 (1974) (“We have cause to regret that a legal concept of ‘terrorism’ was ever inflicted upon us. The term is im precise ; it is ambiguous; and above all, it serves no operative legal purp ose.”). Compiling m ultiple d efinitio ns is a tec hn iqu e of fere d b y so m e. See Be res , supra , at 240-41; Murph y, supra ,at 8 1 -8 3 nn.47-50. Still others define terrorism based on the intent of the perpetrato r. See Je ffre y A lla n M cC red ie, N ote , The R espons ibility of States for P rivate Acts of International Terrorism , 1 TEMP. I NT’L & C OMP. L.J. 69 , 69 n.2 (198 5) (citing T ra n T am , Crimes of Terrorism a n d I n te rn a ti on a l C r im i n al L aw , in A T REATISE ON I NTERNATIONAL L AW 491 (M. B assio uni ed ., 1973 ); see also N ote , International Terrorism and Islamic Law , 29 C OLUM. J. T RANSNAT’L L. 62 9, 631 n.7 (19 91) (citing B UREAU OF D IPLOMATIC S ECURITY, U.S. D EP’T OF S TATE, P UB. N O . 9718, S IGNIFICANT I NCIDENTS OF P OLITICAL V IOLENCE AGAINST A MERICANS: 1988 (198 9), at 2). Traditional terrorism, whether of the separatist or the ideological (left or right) variety, had political and social aims, such as gaining independence, getting rid of foreigners, or establishing a new social order. Such terrorist group s aim ed a t forcing co ncess ions . . . from their antagonists. The new terrorism is different in character, aiming not at clearly defined political demands but at the destruction of society and the elimination of large sections of the population. L AQUEUR, supra note 17, at 81. While subjected to critical a ppra isal, cata loguin g offens es is sometim es posited as our only alternative. L AQUEUR, supra note 17, at 79 (“There has been no ‘terrorism’ per se, o nly diff ere nt t err oris m s.”); but see Intern ation al Te rrorism and Islam ic
  • 7. Spring, 2003] TERRO RISM 143 a trail of Revolu tions em erging from the French experience th at I turned. This article is the resulting documen tation of my research. After a brief introduction by way of background material, it moves to an examination of the events, and delves into the processes, of four Revolutions—French, Russian, Chinese, and Cam bodian—from their inception through their devolution into terror. Each revolution ary section is weighted tow ard historic reporting; each attem pts to capture the movement from a liberating to a terroristic regime. The conclu sion is appropriately brief, proffering a series of hypotheses requiring further investigation. II. B ACKGROUND A. Definitional Difficulties: Political Action or Crim inal Condu ct “It becomes difficult to ignore the heroic side of political violence. Reallocations of w ealth . . . human betterm ent . . . are . . . inseparable from political violence. . . . It takes confrontation outside the law to make the law itself. Few basic changes in the content and scope, logic and practices of liberty and equ ality 20 occur peacefully. Com pare: “[W]e distinguish political violence from violen ce in general. Most violence is random if not crimin al. Political violence disorders explicitly for a designated and reordering purpose: to overthrow a tyrannical regime, to rede fine and realize ju stice an d equity, to achieve independence or territorial auton om y, to 21 impose on e’s religious or doctrinal beliefs.” with: “En gels said th at the first form of revolt of the modern proletariat. . . was criminality. . . [A]t the end Law , supra, at 63 1 n.7 (d efining t errorism bas ed on inten t). 20. D a vi d E . A pter , Political Violence in Analytical Perspective, in T HE L EGITIMIZATION OF V IOLENCE 1, 3 (Da vid E . Apte r ed., 199 7). 21. Id. at 5 (citing Jo hn Lo cke , A Letter Concerning Toleration, in T HE S ECOND T REATISE ON C IVIL G OVERNMENT AND A L ETTER C ONCERNING T OLERATION (John W iedho fft Go ug h e d., 19 48 )).
  • 8. 144 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 of the eighteenth century and at the beginning of the nineteenth century criminality was perceived, by the proletarians them selves, to be a form of social 22 strugg le.” and: “[E]veryone kno ws th at Napoleon III wa s able to seize pow er on ly with the help of a group consisting, at least on its lower levels, of common-law 23 crim ina ls.” Terrorists com mit crimes. No one doubts that. Timothy McVeigh was executed as a murderer for the Oklahoma federal 24 building bombing. In 1995, Shoko Asahara and his Au m Shinri Kyo followers released sarin, a poison gas, in a Tokyo subway station killing a dozen people and injuring more than 5,000. Sheikh Omar Abdul Rahman was charged with the 1994 bombing of the Wo rld Trade C enter. On Septem ber 11, 2001 m any of us w atched in horror the actual destruction of the World Trade Center towers. In addition to their specified terroristic crimes, terrorists often com mit instrumental crimes. Bank robbery was a preferred method for attainin g finan cial support among some modern right wing 25 terrorists in the United States. Irish terrorists in the n ineteenth century were known to forge ban kno tes to keep them selves in 26 funds. “The ‘social banditry’ of Pancho Villas com bined h orse theft 27 with a political agenda.” Ideologists of terrorism like Bakunin, perhaps following Engels’ philosophy, identified crim inals as the 28 true revolutionary class. Stalin, operating under the name Koba 22. M ICHEL F OUCAULT, P OWER /K NOWLEDGE 18-2 0 (C olin G ordon ed., Co lin Go rdon et al. trans ., 1980 ). 23. Id. at 40. See also L AQUEUR, supra note 17, 210-25, where the author provides a mo dern day overview of the links between terrorist groups and organized crime. A n investigation of the connections between terrorism and criminal organization s, particu larly between terrorism and illegal dr ugs, is covere d in part in M ARK B OWDEN , K ILLING P ABLO: T HE H UNT FOR THE W ORLD 'S G REATEST O UTLAW 63-7 0, 188 -200 (200 1) [herein after “B OWDEN , K ILLING P ABLO”]. 24. L OU M ICHEL & D AN H ERBECK, A MERICAN T ERRORIST : T IMOTHY M C V EIGH & T HE O KLAHOMA C ITY B OMBING 46 8-7 1 (2 00 1). 25. K EVIN F LYNN & G ARY G ERHARDT, T HE S ILENT B ROTHERHOOD 39, 152, 153-56, 158, 159, 162, 454, 465 (1989). See also id. at 275 -76, 282, for references to the Brinks Company rob be ries . 26. L AQUEUR, supra note 17 , at 2 10 ; see also F LYNN & G ERHARDT, supra note 25, at 136-41, 266-69 (describing how counterfeiting was one m ethod relied upon as a source of funding for po litic al a ctio n g rou ps ). 27. L AQUEUR, supra note 17, at 210. 28. Id. at 2 11 .
  • 9. Spring, 2003] TERRO RISM 145 in 1907, successfully attacked two Cossack guarded carriages 29 carrying large sums of money. The “outlaw” issues its own 30 sedu ctive appeal. Whether to treat terrorism as a crime or as an act of w ar is one 31 of the debates pervading the literature of definition. The proponents of criminal treatment hold th at war is a condition 32 between States; with the exception of qualified guerillas, it is not 33 available to private parties or non-State collectives. Those who favor criminalization often desire to “de-legitimize terrorists, 34 revealing them to society as the crim ina ls th ey rea lly a re.” Others favor this approach because it could e mpowe r Internation al Court 35 action. Those who view terrorism as a species of war speak of 29. E DVARD R ADZINSKY , S TALIN 56 (H .T. W illetts tra ns., 199 6). 30. B OWDEN , K ILLING P ABLO, supra no te 2 3, a t 14 -15 . Anyone can be a criminal, but to be an outlaw demands a following. The outlaw stands for something. . . . No matter how base the actual m otives of criminals like those in the Columbian hills, or like the American ones imm ortalized by Hollywood— Al Cap one, Bonnie and Clyde, Jesse J am es— large num bers of average people rooted for them and followed t h eir bloody exploits with some measure of delight. Their acts, h o w ever selfish o r sens eless, w ere inv ested with social m ean ing. Th eir crimes and violence w e re b lo w s struck aga inst distant, opp ressive pow er. The ir stealth and cunning . . . were celebrated, these being the time- ho no red tac tics of th e p ow erle ss . Id. 31. C om pare Pil grim , supra note 19, at 147 and La rsc ha n, supra note 18 , at 117 (sugge sting a wa r-bas ed orie ntat ion), with Be res , supra note 19 , at 2 39 ; M urp hy , supra note 19, at 6 7; L . Pa ul B rem er I II, Counterterrorism: Strategies and Tactics, D EP’T S T. B ULL., Jan. 1988, at 47, 47; Jacqueline Ann Ca rberry, N ote , Terrorism: A Global Phenomena Mandating A Unified International Response, 6 IND . J. G LOBAL L EGAL S TUD. 685 (1999) (favoring criminal treatm ent). See also generally C ARR, supra note 2, for an insightful recharacterization of war and terrorism. Noah Feldman, in a recent article, has expanded the range of considerations brought to t his top ic. N oa h F eld m an , C h o ic es o f L a w , C h o i ce s o f W a r , 25 H ARV. J.L. & P UB. P OL’Y 457 (200 2). His willingness to end the binary nature of the discussion is joined by Sean D . M urp hy , Terrorism and the Concept of “Ar m ed A ttack ” in Article 51 of the U.N. Charter, 43 H ARV. I NT ’ L L.J . 41 , 49 -50 (20 02 ); see also United N ations Office on Drugs and Crime, Terrorism , at ww w.undcp .org/odccp/terrorism.htm l (last visited Feb. 13, 2003) (“Terro rism is a u n iq u e f or m o f c ri m e . T e rr or is t a c ts o ft en co n ta in e le m e n ts o f w arfare, politics and propaganda. . . . Their form of psyc hologica l wa rfare is ‘pro pag and a by deed .’”); Beverly Allen, Talking “Terro rism ”: Ideolog ies A nd P arad igm s In A Pos tm odern W orld, 22 S YRACUSE J. I NT’L L. & C OM . 7, 7 (19 96) (“‘Terrorism’ is the m ost linguistic of violent political acts beca use its success dep end s entire ly on whether or not it gets its message across. Such violence does not claim t errit ory or e st ab lis h n ew so ve re ig nt ie s; it w ork s in a la rg ely co m m un ica tiv e m od e, wh ere the langu age is dest ruction , injury, an d m urde r.”). 32. L AQUEUR, supra note 17 , at 8 (“The stra tegy of guerrilla wa rfare is to liberate territory, to e s t a b li s h counter institution and eventually a regular army. . . . The classic case of guerrilla wa rfare is C hin a i n th e 1 930 s a nd 19 40 s. . . .”); see also Er ic J . H OBSBAWM, R EVOLUTIONARIES 195 -211 (197 3). 33. Murph y, supra note 19, at 75 ; see also Maryann Cu sim an o L ove , Globalization, Ethics, and the War on Terrorism , 16 N OTRE D AME J.L. E THICS & P UB P OL’Y 65, 66 (200 2). 34. Br em er, supra note 31, at 47. 35. Ca rbe rry , supra note 31.
  • 10. 146 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 36 37 “campaigns of violence,” “glo bal ba ttlegroun ds,” “low-level armed 38 39 conflict” and “noth ing less than warfare .” Their objective is often prem ised on a “strategic deterrence ” theory— neu tralize terrorists 40 by forcing them to concentra te on defen se an d survival. Alternatively, Caleb C arr promotes “terrorism as war” to emphasize 41 its roots, and the disutility of its unduly extreme m easures. 42 These persistent categorical difficulties were not obstacles I foresaw when initiating the research. Operating without a clear referen t, doing historical research without a defined object of investigation, is daunting. How to search out the history of 43 “something” when there was no “objective correlative” for the 36. La rsc ha n, supra note 18, at 134. 37. Id. 38. Id. at 139. 39. Id. 40. Pil grim , supra note 19, at 155. 41. C ARR, supra note 2, at 12. 42. Consider L AQUEUR, supra note 17, at 43: “Classic terrorism is propaganda by de ed .” “If, according to the nineteenth-century cre ed , terrorism was propaganda by deed, a suicide terrorist mission was a fortiori such pro pagan da.” Id. at 14 0. “F or t he aim of te rro rism . . . was propaganda by deed, and if their actions w ere not pu blicized— or if their actions were ascribed to their political foes— it mus t have see me d pointless o r even coun terproductive to engage in terrorist operations .” Id. at 107. The word [terrorism] works very well, in fact, as a cipher indicating pract ically nothing about the events we think it describes, but a great de al a bo ut t he ide olo gy o f th e p ers on . . . wh o u ses it. T he word “terrorism”. . . like the word “terrorist,” is m o r e t h an an yth ing els e a sh iftin g in dic at or o f th e u ser ’s po int of v iew . Allen, supra note 31 , at 8 (19 96 ); Ile an a M . Po rra s, On Te rro rism : Reflections on Violence and The Ou tlaw , 1 9 94 U TAH L. R EV . 119, 124-125 (“Everyone uses the word ‘terrorism’ to mean a kind o f vi o le n ce of which h e or she do es not ap prove, and a bout w hich he or sh e wan ts som e t h ing to be done. . . . [T]he word ‘terrorism’ came to be understood universally as pejora tive.”). Interestingly, the his tor y of pir acy rev ea ls s im ila r co m ple xiti es. “[T]here is no authoritative definition of international piracy .” A n n e Pé rot in-D um on , The Pirate and the Em peror : Pow er an d the Law on th e Se as, 14 50-1 850 , in B ANDITS AT S EA 25, 31 (C . Richard Pen nell ed. 2001). Pérotin-Dum on goes on to draw this tight analogy between p iracy and ter ror ism : In the 1930s the Nicarauguan patriot Augusto Sandino was a ban dit in the eyes o f th e North Americans, and in the 1940s the German authorities of occupied France viewed as terrorists the resistants loyal to France libre . O n the Malabar coast of India in the sixteenth century, the Ku njalis were the m ain adversaries of the Portuguese, who treated them as cossarios; for the Za m orin pr inces o f Calicu t, the K unja lis we re their naval force and were patriots avant la lettre. Id.; see also J ohn L. A nd ers on , Piracy and W orld History, An Econom ic Perspective on Maritime Predation, in B ANDITS AT S EA 82, 8 2 -8 3 (C . Richard Pennell ed. 2001) (“Piracy is a subset of violent maritime predation in that it is not part of a d eclared or widely recognized war. W ithin the gene ral category of m aritime p redation, a pre cise definition of piracy unive rsally a ccepta ble ov er tim e an d be twe en pla ces ha s elud ed jur ists.”). 43. F RANCIS O TTO M ATTHIESSEN, T HE A CHIEVEMENT OF T.S. E LIOT: A N E SSAY ON THE N ATURE OF P OETRY 58 (2 d ed . 1947 ).
  • 11. Spring, 2003] TERRO RISM 147 44 “something” searched for? I found myself, through my research, in a conu ndrum I had not anticipated. In my attempt to seek understanding, my choice of focus led me into a debate I was not prepared to enter: whether terrorism can emanate from state action. My conclusion is that it can and it does. We cannot understand terrorism without paying careful attention to the 45 terroristic capacity of establishing and established governm ents. III. R EVOLUTIONS A. A Terrorist Tree: Evolution In Action 1. The French Re volution Clears the La nd: Slash & B urn “It was the war upon hypocrisy that transformed 46 Robespierre’s dictatorship in to the Reign of Terror.” “Looked at from w ithout, from the viewpoint of misery and w retchedn ess, it [eighteenth century French society] was characterized by heartlessness; but seen from w ithin, and judged upon its own terms, it was the scene of corruption and hypocrisy. That the wretched life of the poor was confronted by the rotten life of the rich is crucial for an un derstanding of . . . 47 Rou sseau and R obespierre.” “[O]nly naked need and interest [are] without hypocrisy, the ‘malheureux’ changed into the ‘enrages’, for rage is indeed the only form in wh ich 48 misfortune can becom e active.” “[T]he rage of impotence eventually sent the Revolution to its doo m, it is true that su ffering, once 44. Allen, supra note 31, at 7 (“Therefore, the ‘terrorism’ we speak of . . . in some very real sym bolic se nse d oes n ot exist . In linguis tic term s, the sig nifier ha s no s ignified.”). 45. But see Lo ve, supra note 33, at 66 (“[T]errorism . . . the use of violence by nonsta te actors against non comb atants for the purpose of causing fear in order to achieve political goals.”) (em pha sis ad ded ). This definition complies with the general understanding of Saint A ug us tin e’s “Just War Tradition” which operates “to de-legitimize private armies and bands of arm ed crim inals and to centralize the us e of force in the han ds of the sove reign.” Id. at 72. The intended purpose of the “Ju st W ar T rad itio n” w as to p rog res s to wa rd p ea ce. Its theorists hope to attain this end by “legitimizing a m onopoly on the use of organ ized v iolence for pub lic authorities” and by “r e q u ir i ng strict limitations . . . on the circumstances under which war could be u sed an d how it could be w aged.” Id. 46. A RENDT, O N R EVOLUTION , supra note 17, at 95. 47. Id. at 101. 48. Id. at 106.
  • 12. 148 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 it is transformed into rage, can release overwhelming 49 forces.” Hannah Arendt’s thesis is that the French Revolution twisted on its axis, moving away from its original orientation, political freedom, 50 toward an unbounded desire to liberate “man from suffering.” This unleashing of unbounded desire led to terror, not to political liberation. Three elem ents o f Aren dt’s reasonin g are requ ired to understand her point and to consider this point in relationship to terrorism . First are Arendt’s ideas about liberation, freedom, and the political identity of free people. Arendt, like the Greeks she so adm ires, believes in the elevating value of responsible community decision-making: participation in the governing of affairs as civic 51 virtue. Revolution, she believes, is best undertaken to change the 52 structure of the political realm. On e intelligently undertakes to establish a political realm of civil equality. Arendt, who does not believe in e ssential or ‘by nature’ equality, posits that through institutions an a rtificial equ ality, a commu nity of peers participating togeth er, discussing and decidin g the affairs of their 53 commu nity, is desirable and achievable. “[N]o one can be free except am ong . . . peers” is a principle she adopts from the ancient 54 Greeks. A liberated person , a free person, is one who, out from under the oppression of tyran nical, despotic or household obligations, is able to meet w ith her pee rs and participate in pub lic 49. Id. at 107. 50. Id. But see H OBSBAWM, supra note 32, at 201-08, for a critical view of Arendt’s methods an d co ncl us ion s. 51. A RENDT, O N R EVOLUTION , supra note 1 7, a t 2 5 (“ [T ]h e a ct ua l co nt en t o f fre ed om . . . is participation in public affairs, or adm ission to the pub lic realm .”). See also G ORDON S. W OOD, T HE R ADICALISM OF THE A MERICAN R EVOLUTION 104 (199 1): Pub lic virtue was the sacrifice of private desires and interests for the pu bli c in ter est . It w as de vot ion to t he com m on we al. Republicanism thus put an enorm ous burden on individuals. They [are] expected to suppress their private wants and interests and develop disinterestedness- the term eighteenth century most often used as a syn on ym for c ivic virt ue . Id. 52. A RENDT, O N R EVOLUTION , supra note 17, at 17. 53. Id. at 23. [T]his equality w i t h in t h e range of the law . . . was not equality of condition . . . bu t th e eq ua lity of th ose wh o fo rm a b od y of pe ers . . . . Neither equ ality no r freedo m wa s und erstoo d as a qu ality inh erent in human nature, they were . . . conventional and artificial, the products of human effort and qualities of the man-made world. Id. 54. Id. at 23.
  • 13. Spring, 2003] TERRO RISM 149 55 affairs. Creating and maintaining opportunities for shared participation in com munity decisions is a positive and a ttainable goal. Second, Arendt presents a wondrous exploration of the way in which the term ‘revolution ’ was transplanted from its scientific, planetary, cosm ic applications to its political constructions. Where, originally, the term referred to planetary patterns of cycles and 56 return, restoration, through association with the French Revolution the irresistibility element of these same patterns 57 emerged as dominan t. The strength and power of natural forces that keep th e co sm os in pla ce, their la wfulness, when a pplied to human events, became the irrepressible, unstoppable, violence of 58 renew al, a law unto itself. Restoration transmuted into creation, 55. Id. at 23-24. [N]o one can be free except among his peers. . . . [N]either the tyrant nor the despot nor the ma ster of a household—even though . . . fully liberated and . . . not forced by oth ers — wa s fre e. . . . The life of a free man n eeded the presence of oth ers. Freedom itself needed . . . a place where peop le could com e together . . . the political space prop er. Id. 56. Id. at 3 5-3 6. Wh en the w ord [rev olution ] first descended from the skies and was introduced to describe what happened on earth am ong m ortal[s], it appeared clearly as a metaphor, carrying over th e notio n of an eterna l, irresistible, ever-recurring m otion to the ha phaza rd movements, the ups and downs of human destiny. . . . [T]h e or igin al m ea nin g of the wo rd . . . was used for a movement of revolving back to som e pre-established point. [T]he wo rd “ rev olu tio n” m ea nt o rigi na lly r est ora tio n. . . . The revolutions of the seventeenth and eighteenth centuries, which to us appear to show all evidence of a new spirit . . . were intended to be restorations. Id. 57. Id. at 4 0-4 1. The date was the night o f the fourteenth of July 1789, in Paris, when Louis XVI heard from the Duc de La Rochefoucauld-Lia ncourt of the fall of the Ba sti lle. . . . The fam ous dialogue that took place between the kin g a nd his m ess en ger is . . . ver y re vea ling . Th e k ing . . . exclaimed, “C’est une revolte ,” an d L ian cou rt co rre cte d h im : “Non, Sire, c’est une revolution.” Here we hear the word still, and politically for the last time, in the se nse o f the old metap hor which carries its meaning from the skies d o w n to the earth; but here, for the first time . . . the emp h a sis has entirely shifted from the lawfulness of a rotating, cyclical movement to its irre sis tib ility . The m otion is still seen in the image of the movem ents of the stars , b u t w hat is stressed now is th at it is beyond hum an pow er to arres t it, and henc e it is a la w u nto its elf. Id. 58. Id. See, e.g., id. at 42 -43. “In the d ecad es follow ing the Fren ch revo lution, th is association of a mighty undercurrent sweeping men with it . . . was to becom e dom inant.” Id. “Whether these men [referring to the Founding Fathers of US R evolution] were ‘conservative’ or ‘revolutionary’ is . . . impossible to decide . . . [C]onservatism as a political creed and an ideology owes its existence to a reaction to the French revolution and is meaningful only for the history of the n ineteenth a nd tw entieth centu ries.” Id. at 37-38.
  • 14. 150 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 origination, unlea shing violence. W hile Arendt does not refer to nuclear energy as an analogue, it comes to mind as not dissimilar to th e process she describes. Perhaps, even after this transformation, Aren dt would prefer to conceive of revolution as a political event, as the violent establishment of a new body politic, during which or through which liberation from oppression is attained and a new beginning fostering 59 participation in the public realm is initiated. However, she acknowledges that through the French Revolution, so radical was the shift in paradigm, that one of its most far-reaching consequences 60 was the birth of the modern Heg elian concept of history. According to A ren dt, th rou gh Hegel, and later M arx , nece ssity replaced freedom as the chief focus of political and revolutionary 61 thou ght. As A rendt view s it, this replacem ent is m ore than ju st a loss of an ideal; it exemplifies supplanting a sound aspiration with 62 an essentially dangerous idea. Third, according to Arendt, this substitution—the ideological exchange of freedom for necessity—along with the French (rather 63 than the Am erican ) Revolu tion “set the w orld on fire.” Consequently, it is with reference to the events of the Fren ch Revolution and not with reference to the events of the American Revolution that our current use of the term ‘revolution’ receives its 59. Id. at 28. [O]nly where change occurs in the sense of a new beginning , w here violence is used to constitute an altogether different form of governm ent, to bring about the formation of a n ew body politic, where the liberation from oppression aims at least at the constitution of freedom can we speak of revolution. Id; see also Ja cqu es D err ida , Fo rce of L aw : Th e “M yst ica l Fo un da tio n O f A uth orit y,” in D ECONSTRUCTION AND THE P OSSIBILITY OF J USTICE 3, 31-57 (Drucilla Cornell et al. eds., 1992) (discussing founding violence, conserving violence and divine violence in the context of law and justice). 60. A RENDT, O N R EVOLUTION , supra note 17, at 45. 61. Id. at 4 6-4 7. [O]ut of the revolution and coun ter-revo lution, from the fou rteen th of J uly to the eighteenth of Brumaire and the resto ration of the monarchy, was born the dialectical movem ent and counter-move men t of history wh ich bears m en on its irresistible flow, like a powe rful undercurren t, to which they mu st surrend er the very mom ent they attempt to establish freedom on ea rth . Id. at 47-48. 62. Id. at 47 -48 . See also C ONQUEST , supra note 1, at 4 (quoting Alexander Yakovlev, former Politburo member: “The morbid faith in the possibility of forcing through social and historical development, and the idealization of violence, traces b ack to the very sources of the European revolutionary tradition.”). “What remains today of Marxism, once a large and ambitious structure, is little more than this basic dogm a tha t our so ciety (an d all oth ers) is driven by unappeasable strife, in which one contestant must inevitably des troy the other.” Id. at 49. 63. A RENDT, O N R EVOLUTION , supra note 17, at 49.
  • 15. Spring, 2003] TERRO RISM 151 connotations. We conceive of revolution in inversion, not reversion terms; we conceptualize it as representing irresistible forces of change. Despite the fact that it ended in obvious disaster, the 64 French Revolution became the model we follow. Following Are ndt’s theories of revolution, revolution aries w ould forecast, could forecast and should forecast, that revolutions “devour 65 their children.” The maw of the monster, like a shark, contains two rows of teeth. The first row , historic ne cessity, casts a m agic spell, what Arendt calls the “self-imposed compulsion of ideological 66 thinking .” Individua ls find themselves carried along by, but do not direct, and in that sense believe themselves insulated from responsibility for, revolutionary forces. When this tidalic factor of historic necessity combines with the second element, physical nece ssity, the overwhelming biological impulse to survive 67 engendered by acute poverty, terror is unle ashed. The mo deling events, w hich took place withou t preconception 68 during the French Revolution, served as an inspiration, and not as 69 a warning, to future thinkers, planners, actors. Necessity was 64. Id. [T]h e Octobe r revolution, was enacted a ccording to the rules and eve nts that le d fro m t h e fo u rteenth of July to the ninth of Thermidor and the eighteenth of Bruma ire—dates w hich so impressed themselves on the me mo ry of the F rench peop le tha t even toda y they are im m edia tely identified by everybody with the fall of the Bastille, the death of Ro be sp ierr e, a nd the rise of N ap ole on Bo na pa rte . Id. at 4 4; see also G WYNNE D YER, W AR 161 (1985) (“The principle technique which insurgent groups ha ve u sed to a tta ck t he sta te in the pa st h alf cen tur y . . . drew . . . inspiration from the Fren ch revo lution in 178 9.”). 65. A RENDT, O N R EVOLUTION , supra note 17 , at 51. “[T]his association of a m ighty underc u r re n t sweep ing m en with it, first to the surface o f glorious deeds and th en dow n to peril and infam y.” Id. at 42 . Rev olu tion “devouring its own children” is a phase coined by Ve rgn iau d a nd us ed by Ar en dt. Id. 66. Id. at 50-51. 67. Id. at 5 4. Poverty is more than deprivation, it is a state of constant w ant an d acute mise ry whose ignominy consists in its dehumanizing force ; poverty is abject beca use it puts men under the absolute dictate of their bodies, that is, under the absolute dictate of necessity as all . . . know . . . from their m ost int im at e ex pe rien ce a nd ou tsi de all s pe cul at ion s. Id. 68. Id. at 9 6. [E]nt irely absent from the French Revolution . . . was the concept of historical necessity, which . . . did not so much spring from the experiences and thoughts of those who made the Revolution as it arose from th e e ffo rt s o f th os e w ho de sire d to un de rs ta nd an d to co m e to te rm s wi th a cha in o f ev en ts t he y h ad wa tch ed . Id. 69. Id. at 5 4-5 5. It is well known that the French revolution had given rise to an entirely new figure on the politica l scene , the pro fession al revo lutionis t, and his life was spent not in revolutionary a gitation, for which there existed but
  • 16. 152 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 expressed in man-made violence until, eventually, violence became the necessa ry function o r surface phenomenon of an all powerful 70 underlying and overruling necessity. To this formula was added the fact that selflessness, the ability to deny the value of self when confronted with the needs of the m any o r the necessity for action, emerged as a prerequisite both for the revolutionary and for the 71 people she purports to serve. Finally, Arendt says both Rousseau and Rob espierre w ere governed by sentiment and an emotiona lly laden in sensitivity to reality instead of principle or com passio n. Under these influences, driven to solve, more quickly than feasibly, the vast problem of wretchedness and misery experienced and expressed by the malheureux, Rob espierre allow ed force to replace communal pub lic 72 73 action; in this way, the chance for freedom w as sacrificed. The experience of the French became an unfortunate theme. Again and aga in we w ould, we will, observe revolutionary leadership, out of touch with the real experiences of deliberative com munity action, ov erreaching and controlling, acting under a self- imposed compu lsion to ride the wa ve of necessity toward almost instantaneous, and, therefore, impractical solu tions to nea rly intracta ble problems. As a result, over and over again, in the name of freedom, independence, human dignity, we will observe the 74 75 torrent revolu tionnaire, terreur. Not every historian sees the French Revolution a la Arendt. Howev er, its terror is equally, although distinctively, commu nicated few opportunities, but in study and thought, in theory and debate, whose sol e ob ject wa s re vol uti on . Id. a t 2 62 . It is so m ew h a t surprising to m e that A rendt, who I usually coun t on to be m ore sens itive than I am to such issues, does not notice the substitution here of privatized discourse- the dialogues between these newly generated professional revolutionaries- for the participation in pu blic a ffa irs sh e s o re sp ect s. P erh ap s I a m m i s s i ng the point. Perhaps imm ediate comm unity need s and co ncerns m ust be a t the hea rt of thes e “pa rticipat ing in governance” events for them to take on the fellowship of responsib ility that ma kes for equ ality and freed om for Arend t. 70. Id. at 59. “Their need [the poor in France, the malheureux] w as vio len t, an d . . . prep olitical; it seem ed that on ly violence could be s trong and swift enou gh to he lp t he m .” Id. at 86. 71. Id. at 74-76. 72. Id. at 2 47 -50 , 25 9-6 1. See also C ONQUEST , supra note 1, at 64 (“[I]dentification with the masse s was in all these cases more than a mental generalization. It also . . . involved a psych ologic al mechanism—of the sort Kierkegaard refers to when he writes that . . . ‘[T]he plea sure co nsists in losin g one self in ord er to b e vola tilised in to a h igher p otenc y.’”). 73. A RENDT, O N R EVOLUTION , supra note 17, at 55 (“Robespierre, finally, knew w ell enough what had happ ened tho ugh he form ulated it (in his last sp eech) in the form of p roph ecy: ‘W e s h al l p e ri sh b ec a us e , i n t h e h is to ry of m a nk in d , w e miss ed the m om ent to found freedo m .’”). 74. Id. at 42. 75. Id. at 95.
  • 17. Spring, 2003] TERRO RISM 153 76 in alternative accounts. For instance, as another historian, Schama, understands it, “[b]loodshed was not the unfortunate by- 77 product of re volution , it was the sou rce of its en ergy.” The terror, in its particu lar form ulation, followed the fall of the mon archy on Augu st 10, 1792, and the erection of the guillotine “on the place du 78 Carrousel, in fron t of th e Tuileries.” It was not the introduction of a new w ave of experience; it was the continuation of a process begun 79 mu ch earlier. Those wh o held o fficial positions in the French government repeatedly tried to recover for th e state its monopoly on punitive violence; always, they found themselves outmaneuvered by other politicians who organized and endorsed further episodes of 80 public violence. Schama reports the story to u s this w ay: in the period beginning with the fall of the monarch y a series of events took place culminating in the institution we call “The Terror.” The nation was 81 at war, threatened by war. The people were afraid. By late 82 Augu st arrests became “ab surdly in discrim ina te.” Paris was 83 frantic with activity. Danton wa s orchestrating attacks on 84 traitors. The massacres of September began with an attack on the 76. S IMON S CHAMA, C ITIZENS: A C HRONICLE OF THE F RENCH R EVOLUTION (198 9). 77. Id. at 615. 78. Id. at 619. 79. Id. at 615. 80. Id. at 6 23 . See also Lo ve, supra note 33, and its brief coverage of the Just War Tradition through the lens of Ms. Love’s law review article. It may be that t error is likely to result wh en na tion-sta te or em pire b uilding strate gies inclin ed to m on op oliz e v io le nce co m e in c on ta ct w ith int rac ta ble res ist an ce. 81. S CHAMA, supra no te 7 6, a t 61 2. Earlier in the summ er the Prussians had entered the war as allies of the Emperor and during July had advanced with ominous steadiness. The ir decla ration of intent w as issued in the nam e of their com ma nder, the Du ke of B run sw ick . . . . The Bru nsw ick M anifes to in effect told the Parisians . . . that they had already committed acts for which they would be unsparingly punished. . . . All that counted was to keep those who threate n e d th em at home from acts of b etraya l. All calcu lation s ha d com e dow n to th is fina l pr im itiv e d ete rm ina tio n: k ill or be kill ed . Id. 82. Id. at 625. 83. Id. at 627. 84. I d . at 627-628. Schama quotes Danton: “Our enemies prepare to carry out the l a st b lo w s of their fury. . . . Citizens, no nation on earth h as ever ob tained liberty w ithout a struggle. You have traitors in your bosom; well, without them the figh t wo uld have been soon ove r.” Id. at 62 8. For t hose wh ose in d o c tr i nation in revolutionary history does not include these de ta ils, D a n t o n , a long w ith Rob espierre, were J acobin lead ers during th e French revolution, tha t is , both emerged from the m ost radical, ultra democratic party of the time. Danton was eventually executed in 1794. Robespierre followed him several months later. The Girondins were m em bers of a mo re mo derate rep ublican pa rty in the revolutiona ry French As sem bly during the 1791 -1793 period. They w ere excluded from p ower a nd sub jected to exe cut ion du rin g th e T err or.
  • 18. 154 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 85 Abbaye, a prison holding m ostly priests. The slaughter continued 86 at a Carmelite convent used to imprison other priests. At Bicetre, another prison, common criminals and adolescent boys were killed. 87 At LaSalpetriere, the victims were prostitutes. When September 88 ended, half the prisoners in Paris were dead. The “mo ral squalo r” of the re volutionary predicam ent, the depen dence of the Revolution on organized killing to attain political 89 ends, was fully exposed, and still wh at we call “The Reign of Terror” awaited its future. The king was beheaded in January of 90 91 1793. Insurrections began in earnest that spring. In March, the 92 Revolutiona ry Tribunal was established. By April, the Comm ittee 93 of Pub lic Safety, the key organ of the Terror, was initiated. 94 95 Inflation, grocery riots, the collapse of the war effort, disorder in 96 97 the countryside, more insurrections, factionalism, growing 98 distrust and law lessness, all this followed one after another in a mad rush fueled by the enrages, by the sa ns-culotte, by what 99 Schama calls a desire for paternalism. The Repub lic could not 85. I d . at 633 (“A party of twenty-four priests. . . . In an hour and a half, nineteen of the group were hack ed to p ieces.”). 86. Id. at 633-34. Of the one hundred and fifty clerics held in this convent, “by the end of the day one hundred a nd fifteen . . . had been sub ject to the bacbe vengeresse (the axe of vengean ce).” Id. at 634. 87. Id. at 634-35. 88. Id. at 636. 89. Id. at 637-38. 90. Id. at 668-71. 91. Id. at 696-70 5. In this case the insurrections w ere seconda ry rebellions; rebellions on the part of territorial subcomm unities ou tsi de of P ari s lik e V en de e a nd Ly on . Id. at 690-706, 727-29. These insurrections were treated as counter-revolutionary activities by the Re vol uti on ary gov ern m en t an d v icio us ly re pre ss ed . Id. at 7 86 -92 , 77 9-8 7. 92. Id. at 706. The Tribunal was authorized to try suspects accused of counter- rev olu tio na ry a ctiv itie s. Id. 93. Id. at 706. Scham a quotes Dan ton defending the establishment of t he R evolutionary Tribunal and the Comm ittee of Public Safety: “Let us be terrible so that the people will not have to b e.” Id. 94. Id. at 707-08. 95. Id. at 708. 96. Id. at 709-11. 97. Id. at 716-20. “In mid-Ma y, the battle for survival between the Mountain [the Jacobins] and th e Girond e was joined in dea dly earnes t.” Id. at 720. 98. Id. at 7 14 . Sc ha m a q uo tes Pie rre Ve rgn iau d s pe ak ing be fore the trib un e: W hen the law s w ere set as ide ou t of f ea r of i nti m ida tio n, ‘it is a great accom plishm ent for the enem ies of the republic t hus to have perverted reason and set at naught all ideas of morality. . . So, citizens, it must be feared that the revolution, like Saturn, succes sively devouring its children, will engender, finally, only despotism with the calam ities tha t ac com pa ny it. Id. 99. Id. at 713. Schama spoke of “the comm on people”: “They wanted paternalism rather than economic liberalism, the regulation of prices rather than a free ma rket, and abo ve all they wa nted the p ublic punish me nt of exploiters.” Id. See, e.g., id. at 7 13 -14 , 72 0-2 4.
  • 19. Spring, 2003] TERRO RISM 155 survive losses in the field, insurrection in the countryside, and mob violence in the streets. Scham a says of the Jacobins, who rode to power during the late spring of 1793 on the back of this violence, that with them, “Revolution ary dem ocracy would be guillotined in 100 the name of rev olu tion ary government.” 101 Terror became the order of the day. Schama catalogues the 102 process: a revolt in Lyon; the purging of the Girondins in Paris; 103 the assassination of Ma rat; the ceremonies of Champ de 104 105 Reunion; terroristic economic policies; Jacobian manipulation 106 of the “language and the tactics of popular mobilization ;” the 107 institution of national conscription; a massive mobilization of 108 resources to further the war effort; the passage and 109 implementation of the Law of Suspects; a revised ca lendar, along with the estab lishment of public standards of conduct and 110 morality; the fostering of dechristianization policies and 111 practices; the profoundly destructive eradication of centers of rebellion, i.e., “the wholesale destruction of an entire region in 112 France;” the ra pid deployment of prisons to house the increasing 100. Id. at 725. 101. Id. at 7 26 -92 ; id. at 807 (attributing the original phrase “Terror is the order of the day” to a S eptem ber 5 th sp eech b y Da nton ). 102. Id. at 728. 103. Id. at 729-46. Marat, like Danton and Robespierre, was a Jacobin activist. Unlike the others he was not officially executed. Instead, he was assassinated by a young woman. She believed the ousted Girondins and not the victorious Jacobins, were that last best hope for the Re vol uti on . Id. at 729-37. 104. Id. at 746-50. 105. Id. at 753 (“[P]roposals for the economic Terror-extensive price controls, poor relief funded by draconian forced loans and taxes on the rich . . . were em anating from the enrages an d th e C om m un e.”). [A ] great netw ork of inform ation ab out crops a nd ha rvests that . . . implied an u npre ceden ted in trusion int o th e rural economy. . . Even the Terror had inadequate resources for this enormous exercise in snooping, a nd very often it degenerated into the sans-culotte armee s revolutionnaires, sent to enforce the econom ic Terror, ransacking villages. Id. at 7 57 . 106. Id. at 759. 107. Id. at 760-63. 108. Id. at 764 -65 (“[T]he revolution ary state had com mitted itself to an all-out mobilization of resou rces th at w ould n ot be s een a gain in Eu rope u ntil the twe ntieth centu ry.”). 109. Id. a t 76 6-6 7. “[ E] na cte d o n S ep tem be r 17 [17 93 it] . . . ga ve t he Co m m itte e . . . sweeping powers of arrest and p u n i sh m e n t over ex traord inary b road categ ories of p eople defined as harboring co unter-revolutiona ry designs.” Id. at 766. 110. Id. at 7 70 -74 ; Id. at 80 5 (“Pu rity beca m e a p olitical fetis h.”). 111. Id. at 776-79. 112. Id. at 7 87 . See also id. at 791 -92, where S ch am a discusses the death toll of these events, placing the nu m be rs a t a l ow of 4 0,0 00 to a high of 250,000. It may be that in the year spanning spring 1793 to spring 17 94, one third o f the entire population of the Vendee region of France was killed.
  • 20. 156 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 113 num ber of counter-revolutionary suspects awaiting execution; the 114 115 beheading of Marie Antoinette; the death of fam ilies; the 116 “epidemic of suicides among th e fallen revolu tion aries;” the 117 denunciation, trial and execution of Danton; Robespierre’s sch ools 118 119 of virtue; the Festival of the Supreme Being; the bloody violen ce 120 of Floreal, Prarial, Messidor; and, finally, Thermidor, the mo nth 121 in which Robespierre himself was sacrificed to the guillotine. 122 Schama tells us that the violen ce did not end w ith the Terror, and reiterates his theme that the violence of the terror was not an unfortunate side effect of the revolution. Instead, he reminds us, 123 “violence was the motor of the Re volution .” According to Schama, it is the “m orbid preoccupa tion w ith th e just massacre and the hero ic death” that designates the political culture of the F rench 124 Revolution and to which should be attributed mu ch of its horror. 125 This “neoclassical fixation with the patriotic death” dehuma nizes 126 127 victims, brutalizes participants, obsesses revolutionaries and 128 distorts observation. This, then, is the heritage that informs the concept of terrorism. Following Fabre d’Eglantine, the creator of the French Revolutiona ry calen dar, “w e con ceive nothing except by ima ges: even the most abstract analysis or the most metaphysical 129 formulations can only ta ke effect throu gh images.” Our ideas about revolution are rooted in this French experience. And, the images, the imaginative a ssociations, we bring o ut of the French Revolution, especially out of the years after 1792 in sinuate themselves into the attitu des, we could even call them prejudices, that attach themselves to our here and now ability to think about 113. Id. at 793. 114. Id. at 796-98. 115. Id. at 822-27. 116. Id. at 804. 117. Id. at 8 08 -11 , 81 6-2 0. 118. Id. at 827-30. 119. Id. at 831-36. 120. Id. at 837 . Scha m a acco unts for 35 4 exe cution s in F loreal (a m onth in the revolutiona ry calendar)—up from on ly 155 the mo nth before— that nu mb er increases to 509 in Prarial and to 796 in Messidor. In just the first nine days of Thermidor the number of executions was 342. Id. 121. Id. at 839-46. 122. Id. at 852 (“Th e violence did no t stop . . . with the T error.”). Scham a refers to, “waves of the Cou nter-Terror . . . anarchic mu rder gangs .” Id. 123. Id. at 859. 124. Id. 125. Id. at 861. 126. Id. at 860. 127. Id. at 875. 128. Id. at 859, 861. 129. Id. at 770.
  • 21. Spring, 2003] TERRO RISM 157 terrorism. For Westerners, the violent, bloody ima ges w e carry from the last months, from Forea l, Prairial, Messidor, Therm idor, are the 130 ground, the soil, in which the seeds of terrorism are planted. 131 Wha t grows draws its nourishment from this source. 2. The R ussia n Revolution : Seeds, On ce Plan ted, Ripen In Fertile Soil Terror as an institutional device , consciously employed to accelerate the momentum of the revolution, was unknown prior to the Russian 132 Revolution. The eighteenth-century terror was still enacted in good faith. . . . The purges in the Bolshevik party . . . were m otivated chiefly by ideological differences; in this respect the interconnection between terror and 133 ideology was manifest from the very beginning. Ma ss atomization in Soviet society was achieved by 134 the skillful use of repeated purges. [N]ot only political propaganda but the whole of modern mass publicity contains an element of threa t; that terror, on the other hand, can be fully effective without propaganda , so long as it is only a question of conventional political terror of tyranny. Only when terror is intended to coerce not me rely from without 130. C ONQUEST , supra n ot e 1 , a t x iv (c la im i ng th a t w e ha ve ca rr ie d i nt o t he pr es en t: “ [A ] still living past, where we can trace the primitive but still powerful notion that any political or othe r object ive can be a chieve d by m ere force .”). 131. A RENDT, O N R EVOLUTION , supra no te 1 7, a t 10 8, w rot e in 19 63 : [A]ll revolutions, with the exception of the Hungarian Revolution in 1956, have followed the examp le of the French Revolution and used and m isused the mighty forces of misery and destitution in their struggle against tyranny or oppression. And although the whole record of past revolutions demonstrates bey o n d doubt that every attempt to solve the social question with political means leads into terror, and that it is terror which sends revolutions to their doom , it can hardly be d enied tha t to av oid thi s fa ta l m ist ak e is alm ost im po ss ibl e. T h ere is no doubt of the emphasis Arendt accords the ethnocentricity of the Western canon. W riting in 1 963 , she w as a ble to ig nore th e very d ifferent re volutio nary history of Ga ndh i in Ind ia o r N uk rum ah ’s su cce ss in G ha na . 132. Id. at 95. 133. Id. 134. H ANNAH A RENDT, T OTALITARIANISM : P ART T HREE OF THE O RIGINS OF T OTALITARIANISM 21 (1968 ) [hereinafter A RENDT, T OTALITARIANISM ].
  • 22. 158 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 but . . . from within, when the political regime wants 135 more than power, is terror in need of propaganda. What was requ ired for the success of the Russian Revolution was “the manufacturing of Communist man out of the human material 136 of the capitalist a ge.” Revolutiona ry leaders in Russia confronted the task of transforming a structureless mass governed by a 137 despotic and centralized bureaucracy into a paradise of shared abundance. The end of suffering, the procurement of human happiness, goals inherited from the French Revolution, called for 138 drama tic measures. 139 These dramatic measures began early with Lenin’s purges and escalated to th e horrors, the terrors, of Stalin’s regime. The estimates of the carn age stu n the m ind. Acco rding to G lover’s sources, over sixty m illion people m ay h ave been killed between 1917 and 1987. He reports another estimate, for ju st the S talin years, that puts the death toll at twenty million. Yet another estim ate approximates almost ten million killed in the decade between 1930 and 1940. As Glover states it, regardless of our ability to determine exact figures “a very rough idea is enough. 140 Stalinist deliberate killing was on a scale surpassed only by war.” The me thods u sed varied. Many w ere execu ted, sing ly or in 141 masses. Com pulsory displacem ents of populations, w hich 142 effectively translated into mass murder, account for many de aths. Many collective farm efforts amounted to little more than 143 compulsory starvation, deliberately constructed famines. Slave labor took its toll; up to 250,000 died building the Baltic-White Sea 144 Canal. Officials were given quotas of “enemies of the people” and 145 directed to accomplish their extermination. Religiou s practice 135. Id. at 39 n.1. 136. G LOVER, supra note 3, at 25 4, tells us that L enin u nde rlined t his pa rticular p hras e in his copy of Nikolai Bukharin's Econom ics of the Transition Period. 137. A RENDT, T OTALITARIANISM , supra note 134, at 16. 138. See G LOVER, supra note 3, at 255. Walter Duranty’s supporti ve p oem , Red Squa re, published in the New York Tim es in 1932, is quoted by Glover: “Russians may be hungry and short of clothes an d com fort/ But you can ’t make an om elet withou t breaking eggs.” Id. 139. A RENDT, O N R EVOLUTION , supra note 17, at 95-96. 140. G LOVER, supra note 3, at 237. 141. Id. 142. Id. at 238. For example, Glover reports, through Solzhenitsyn as a source, that in 1930, 10 ,00 0 fa m ilie s w ere sen t on a w int er r elo cat ion m ove tha t, in the en d, k ille d th em all. Id. 143. Id. ( r ep orting that four to six million people died in the Ukraine as the result of collectivization policies that im p osed impossible grain quotas, removed hom e-grown food products and block ade d the pop ulatio n so n o sup plies co uld b e brou ght from the ou tside). Radzinsky estimates a five to eight m illion death toll figu re. R ADZINSKY , supra note 29, at 258. 144. G LOVER, supra note 3, at 238-39. 145. Id. at 239.
  • 23. Spring, 2003] TERRO RISM 159 was a criminal offense. Arrest led to torture. Torture led to confessions. Confessions led to la bor ca mps. Labor ca mps led to 146 more torture and, most often, death. As Glover describes the Stalin period: “Resistance was 147 paralyzed [sic].” Informers were everywhere. The terror became 148 its own fuel. Fear governed. Party leaders as w ell as ordina ry people had good reason to trem ble. They too w ere freq uen tly 149 arrested, tortured, tried, convicted and executed; for example, Bukharin, one of the ideolo gical leaders of the Revolution w as, 150 during Stalin’s re gim e, charged, tried, convicted, and executed. According to Glover, “[t]he leaders were trapped by fear of Stalin and even he was trapped by his fear of their desire to be rid of 151 him .” Picking up on a th em e fro m Arendt, G lover says: “What distinguishes the Soviet terror from its predecessors is the role of an 152 ideology, or system of beliefs.” In Glover’s terms ideology 153 supplanted mo ral restra int. According to this ideology, for the Russian Revolution to succeed, the people needed to be led by the 154 Party and the Party needed to be led by an incorruptible source. All this lea dersh ip was necessary, according to Marxist theory, because, for the most part, prior regimes had already corrupted the minds, ideas, and beliefs of those who experienced them. Prevailing morality, for M arxists, is n ot an honorable result of deep human 155 reason but a m ask for obscuring class interests. That m ask mu st be removed for the people to see clearly their real interests and 146. Id. at 238-39. 147. Id. at 242. 148. Id. See also R ADZINSKY , supra note 2 9, at 2 61 (re portin g tha t “[f]ear is stronger than sha m e”). 149. G LOVER, supra note 3, at 243-45. 150. Id. at 245-46. “My ow n fate,” Bukharin said at his trial, “is of no importance. All that ma tters is the So viet Un ion.” Id. at 246. 151. Id. at 250. 152. Id. at 252. Glover quotes Aleksander Solzhenitsyn's The Gu lag Archipelago: “M ac be th ’s self-justifica tions w ere feeb le— and his con scie nce de vou red him . Yes, even Iago was a little lamb too. The imagination and the sp iritu al st reng th of S ha ke sp ea re’s evildoers stopped short at a dozen corpses. Because they had no ideology.” Id. 153. Id. 154. Id. at 2 53 . T otalitarian movem ents are mas s organizations of atomized, isolated ind ivid ua ls. . . . [T]heir m ost con spicu ous e xterna l chara cteristic is their demand for total, unrestricted, un cond itiona l, and u nalte rable loyalty of the individua l mem ber. . . . Such loya lty can be e xpect ed on ly from the completely isolated human being who, without any other social ties to family, friends . . . derives his sense of ha ving a place in the w orld only from his belonging to a m ovem ent. A RENDT, T OTALITARIANISM , supra note 134, at 21-22. 155. G LOVER, supra note 3, at 254.
  • 24. 160 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 options. Stripped of obscuration, they will see what is in their own best interest. The problem is how to make the transition from the defective reasoning of the deluded population to the cleansed reasoning of those who have finally achieved freedom from their chain s. The problem appears solvable at the level of ideas. One need only treat the population to an educational cleansing. Reveal the error of the old. Reveal the strength of the new. People, how ever, are not as plia ble as ideas. Or, m aybe, people are exactly as pliable as ideas. It may be that we are deluded about the ea se with which ideas can be changed. Glover, whose theme is morality, talks about the web of interconnected idea s and concepts that hold a belief 156 system in place. He tells u s any belief, “no m atter h ow absurd,” can be preserved if a person is willing to make enough changes to its 157 supportive web. It seems, as a logical in version , that beliefs can be changed as long a s there is sufficien t willingn ess to make the req uisite changes to th eir supportive network s. The process of bringing change to the network of beliefs that holds one’s moral universe in place is described by Glover throughout his book. For me, it is the process of bringing change, or more accurately of attempting to bring change through terror to populations in revolutionary contexts that drew me to his work. What I am observing a re revolutionary leaders w ho a ttempt to change social results by requiring people to conduct them selves in accordance w ith ordain ed ideas. In Russia, the inspiration for change began at an intellectual level. For many the word “intelligentsia” accurately characterizes the early leaders of the Russian Revolution. The term, Pipes tells us, refers to “intellectuals who want power in order to change the 158 world.” As Pipes describes it, intelligentsia feed on ma terialistic beliefs that facilitate social engineering by conceiving of human beings almost entirely as creatures of changeable environments. As environm ents change, the human s who ex perience them a lso 159 160 change. Perfect environmen ts create perfect huma n beings. Imperfect, defective environments inevitably create imp erfect, 161 defective people. These ideas, conceived during th e 156. Id. at 265-66. 157. Id. at 2 66 ; see a lso C ONQUEST , supra note 1, at 146 (“Even in the true sciences, deep intellectu al inve stm ent in wh at tur ns ou t to be a fallac y is not easily g iven u p.”). 158. R ICHARD P IPES, A C ONCISE H ISTORY OF THE R USSIAN R EVOLUTION 21 (1995). “They were revolutionaries not for the sake of improving the condition of the people but for the sake of gaining dom ination over the people an d rem aking the m in th eir own im age.” Id. at 388. 159. Id. at 21. 160. Id. at 23. 161. Id. at 24.
  • 25. Spring, 2003] TERRO RISM 161 162 En lightenm ent, incuba ted in the p atriotic clubs of France in the 163 164 mid-1700s, quickened by Marx, infiltrated, influenced and, indeed, generated generations of “intelligentsia” as professional revolutionaries. It is to these professional revolutionaries, a class identified by Arendt, and not to the g eneral conditions of early twentieth century Russia, that Pipes attributes the Russian 165 Revolution. Preceding this revolution, a closed caste of professional revolutionaries created the first organiza tion in history dedica ted to political terror. They were capable of ignoring the beliefs of others, capable of calling themselves the “People’s Will” despite their miniscule representation, and capable of assassinating Tsar 166 Alexander II. Their efforts did not succeed in bringing the masses to their side. They did, how ever, give rise to other terrorist 167 organizations. A T sarist governm ent inca pable of responding successfully to its own challenges played into th e ha nds of this 168 developing revolution ary class. Its capitu lations did not stop their 169 violence. Terrorism increased after 1905. Eventually, in 1917, 162. C ONQUEST , supra note 1, a t 4 (“The origin of the modern era’s ideologies lay in John Lo ck e’s derivation of scholastic generalities from traditional English understa n d ings of liberty, thus e xce ss iv ely ra tio na liz in g a nd at t he sa m e tim e limiting, or in a sense desiccating, the m ore com plex re ality.”). 163. P IPES, supra note 158, at 24. 164. Id. at 23-24 . Pipes quo tes Marx: “The whole developm ent of man . . . depends on education and environment. ” I t w o u ld fo ll ow t ha t , “ [I ]f m a n d ra w s all his knowledge . . . from the wo rld of th e se ns es . . . the empirical world must be a rranged so that in it man experiences and gets used to w hat is rea lly hum an. . . . If ma n is sh ape d by his su rroun dings , his surround ings m ust be m ade hu ma n.” Id. at 24-25. 165. Id. at 24 (“Nothing in early twentieth century Russia inexorably pushed the country toward revolution, except the presence of an unusually large and fanatical body of professional revolu tiona ries.”). Pipes defines professional rev olu tio na rie s a s “ a n ov el b reed who se life ’s goal wa s overthrow ing by violence a ll existing institutions.” Id. at 29. 166. Id. at 26. Pipes tells us that the group involved thirty individuals in a nation of one hundred million, and “the ‘ma sses’ neither needed nor desired a revolution; the only group interested in it w as the intelligentsia .” Id. at 390. 167. Id. at 27. Pipes identifies the Socialist-Revolutionary Party as a direct descendent of the People’s W ill. In fact, Pipes tells us , one ma in distinguishing point betw een the S ocialist- Revolutionaries an d th e S ocia l-D em ocr at s, a rival orga nizat ion, wa s their beliefs abou t terror. The SR (as he calls them) favored terror as a means of coming to power. The SDs also believed in the political utility of terror. They, howev er, believed it was best used as a str at egy aft er a ss um ing con tro l of a gov ern m en t. Id. at 29. 168. Id. at 3 6-4 4. Len in vie we d s ke pti cal ly th e w ho le n oti on of ‘p role ta ria n cu ltu re.’ He had a very low opinio n of the cultura l level of th e Ru ssian m asse s an d little faith in their creative poten tial. The task fa cing his govern m e n t , a s he perceived it, was to inculcate in the masses modern scientific and technical habits . . . . The Com mun ist regime under Lenin controlled cultural activities through tw o devices: censorship and strict m onop oly on cul tur al o rga niz at ion s a nd act ivit ies . Id. at 315. 169. Pipes estima tes four thousa nd, five hundre d officials and nine thousa nd peo ple were
  • 26. 162 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 “Ru ssia’s fragile political structure” collapsed under the stress of 170 this “w ar o f attrition.” 171 The February Revolution began as a mutiny of soldiers. With 172 surprising speed, the Russian state deteriorated. The Bolshevik Party that took over in October 1917 was Lenin ’s party, Lenin’s 173 creation. The political idea that guided this Party was Lenin’s radicalism, the radicalism that Pipes says became the heartbeat of Russia. It was not idealistic; instead, its ideation w as roo ted in 174 personal resen tment. On a more intellectual level, Lenin sought 175 to graft M arxism to the ana rchism -terrorism of the Peo ple’s W ill. 176 He thought of politics as warfare. He could not tolerate dissent 177 or criticism; he trusted only physical force; Len in w as absolu tely kill ed in S R a tta cks in 1 90 6 a nd 19 07 . Id. at 49. 170. Id. at 56 . Of cours e, W orld W ar I played a role in this dyn am ic. Pipes does n ot ignore the wa r. See id. at 58-70. But, for the purposes of studying the Revolution, emphasis on the W ar w ould d istract fro m the d evelop m ent of m ateria l. 171. Id. at 81. 172. Id. at 96-97 (“It was as if the greatest empire in the world had been an artificia l construction, w i th o ut or ga n ic un it y. T h e i ns ta n t t h e m o n a rc h w i th d re w , the entire structure coll ap sed in a he ap .”). P ipe s q uo tes V. R oza no v a s s ta tin g, Ru ssia w ilted in two days. . . . Even The N ew Tim es [the newspaper] could not have been shut dow n as quick ly as R ussia shut dow n. It is amazing how s he sud denly fell apart, all of her, dow n to particles, to pieces. . . . There was no Empire, no Church, no army, no working class. And, what remained? Strange to say, literally nothing. The base m asses rem ain ed . Id. at 97. “Lenin ro de to pow er on that a narchy, wh ich he did m uch to prom ote.” Id. at 390. 173. Id. at 1 01 . Th e B ols he vik s, on seizing power in October 1917, prom ptly elimina ted all rival parties to b eco m e R us sia ’s e x c lu sive source of political authority. Comm unist Russia, therefore, was throughout its seventy-four years to an unusual extent the embodiment of the mind and psyche of one man: his biography an d it s h ist ory are un iqu ely fus ed . Id. 174. Id. at 1 03 . [T]errorism had become a kind of philosophy through which to express frustration, resentment, and blind hatred, a kind of political expressionism which used bombs to express oneself, which watched deligh tedly the publicity given to resou ndin g dee ds a nd w as a bsolu tely willing to pay the price of life for having succeeded in forcing the recognition of one’s existence on the normal strata of society. A RENDT, T OTALITARIANISM , supra no te 1 34 , at 3 0. 175. P IPES, supra note 158, at 103. 176. Id. at 1 04 . Pip es c all s L en in: o n e of history ’s great co nqu erors— a dis tinction not vitia ted b y the fa ct that the country he conquered was his own . His innovation, the reason for his success, was militarizing polit ic s. H e was th e first head of sta te to treat p o l it i cs , domestic as well as foreign, as warfare in the literal sense of the word , the objective of which was n ot to com pel the ene my to su bm it b ut t o a nn ihil at e h im . Id. at 392. 177. Id. at 144.
  • 27. Spring, 2003] TERRO RISM 163 convinced of the rightness of his position and totally co mmitted to 178 the revolution. Pipes tells us that Lenin was cruel, a person ab le 179 to condemn thousands of people to death without remorse. The political system he constructed out of these be liefs and personality 180 traits, he m ade up a s he went along. The Party was 181 conceptualized as a spiritual force, leading by example. A facade of dem ocratic in stitution s wa s put in place, while the institutions of 182 the old regim e we re uprooted, smashed, eradicated. Opposition 183 was dealt with ruthlessly. Machine guns became instruments of 184 political persuasion. The Cheka, a new security organ, was 185 licensed to kill. Bolshevik terror began. Events began to take sh ape. Foreign affairs were determined according to a M arxist th eory delineatin g the eventua l dom inance 186 of Communism. Lenin’s regulation of domestic affairs was 178. Id. at 104. Lenin, like the other intelligentsia, “saw ‘revolution’ not as the replacement of one government by a nother but as som ething incomparably m ore ambitious: a total transformation of the human condition for the purpose of creating a new breed of human bein gs.” Id. at 387 . Indeed: “Althou gh couched in scientific terms, [these] . . . views were imm une to contra ry evidence a nd hen ce mo re akin to religious faith.” Id. 179. Id. at 105. 180. Id. at 151. 181. Id. at 15 2. W hate ver else this m ean t, it did not mean an improvem ent in the education s ys te m . Despite the importation of modern ideas into model schools, the fact is that by the mid-1920s Soviet per ca pita allocations for ed ucation w ere lower than they had been in 1913 and on ly 4 5% of e ligib le ch ild ren act ua lly a tte nd ed sch ool . Id. at 3 25 . N or d id it mean that the children of Ru ssia we re otherw ise well cared for. By the mid-1920s seven to nine million besprizornye, orphans or abandoned children, lived without parents, in gangs, and survived by begging, scroung ing , ste ali ng , an d p ros titu tio n. Id. at 326. Moreover, whatever else the idea of spir itual leadership implied, it certainly did not imply support of the Church. “[O]rganized religion . . . had n o place in a C om mu nist society.” Id. at 334. 182. Id. at 151. 183. Id. at 154-165. Pipes quotes a Russian p r o ve r b “H e w ho gra bs the sti ck i s co rpo ral ,” to sup port th e prop osition th at the bolde st, m ost ru thless claim ant w as th e one m ost like ly to succeed to p ow er. Id. at 164. “[M]erciless violence, violence that strove for the destruction of every actual and potential opponent, was for Len in not only th e m ost effect ive bu t the o nly way o f dealing with problem s.” Id. at 394. 184. Id. at 165 (“The un restrained b rutality with w hich they [the B olsheviks] hen ceforth ruled Russia stemmed in large m easure from the know ledge . . . that they could do so with impunity.”). See als o id. at 203 (“[T]he Communists would . . . govern not by consent but by coe rcio n.”) . 185. Id. at 17 3. In 19 22 , the Ch ek a w ou ld b eco m e th e G PU . Id. at 332. In 1934, the GPU wou ld be com e th e N KV D— Pe op le’s C om m iss ari at of In ter na l A ffai rs. R ADZINSKY , supra note 29, at 316. 186. P IPES, supra no te 1 58 , at 1 78 . In L en in’s wo rds : The existence of the Soviet Republic alongside the imperialist states over the long run is unthinkable. In the end, either th e one or the o ther w ill t r iu m p h . A nd until that en d . . . a series of the most te rrible conflicts between the Sov iet R epu blic an d bo urgeo is governments is unavoidab le. This means that t he ru ling clas s, the p roleta riat, if it only w ishes to rule and is to rule, mus t dem onstrate th is [intent] also with its m ilitary org an iza tio n. Id. In Pipes ' words: “[T]he B olsheviks se ized pow er in Rus sia not to change Russia but to use
  • 28. 164 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 governed by h is belief that socialism would be, or could be, 187 instantan eously successful. To assure that success, radical econo mic policies, policies at least the equivalent of the eco no m ic 188 terror of the French Revolution , were put in to effect. These policies introduced the Red Terror of the Russian Revolution. The proletariat declined by one half, industrial output declined by three- quarters, and industrial productivity declined by more than two- 189 thirds. To co mpensate, the worker’s state initiated com pulsory 190 191 labor and collectivized agriculture. Lenin asserted state control over the food supply; he ordered the monopoliza tion of the grain 192 trade, the forced extraction of produce; he instituted intra-group her as a sp ringboard from which to change the world. . . . [T]he Bolsheviks came to regard the interests of Ru ssia as ide ntical with tho se o f w orld com m un ism .” Id. at 28 6-87 . Aga in, in Le nin’s words: “We assert that the interests of socia lism, the interests of world revolution, are sup erior to nationa l interests.” Id. at 286. 187. Id. at 192. Trotsky is reporte d qu oting L enin: “T he triu m ph of s ocialism in R ussia [required] a ce rta in in ter va l of t im e, no less than a few months. . . . I recall very distinctly that in the first period . . . Lenin invariably rep eated t ha t w e sha ll have socialis m in ha lf a y e a r and b ecom e the m ightiest state.” Id. “Th e Bo lshev ik lead ers view ed cu lture in purely instrumental terms: it was the branch of government concerned with molding minds and promoting attitu des fa vorable to the constru ction of a socialist society. Ess entially, its function wa s propa ganda in the broa dest sen se of the w ord.” Id. at 313. 188. See id. at 193-94. These policies, instituted by amateur e conomists, included: expropriation of real estate; nationalization of industry; repudiation of state debts; abolition of in he rita nce ; an d th e ra dic al d eva lua tio n o f m on ey. L en in s aid : T h e socialist org aniza tion of th e econ om y beg ins w ith the liquida tion of the ma rket, a n d t h at means the liquidation of its regulator—the ‘free’ play of the laws of supply and demand. The inevitable result- namely the subordination of production to the needs of society—must be achieved by the unity of the economic plan, which, in principle, covers all the branches of p rod uct ion . Id. at 197. 189. Id. at 199 (“[T]he utopian programs w hich Lenin had approved h ad all but destroyed Russian industry and red uce d b y on e h alf Ru ss ia’s ind us tria l lab or fo rce .”). According to one spokesperson, during this period the Russian econom y suffere d a ca lam ity “un para lleled in the history of m ankind .” Id. at 203. However, the fact that the state ’s policy had reduced productivity to levels that threatened Russia’s survival did not sound an alarm to dedicated revolutionaries. “Bukharin, a leading left communist, boasted that [it] performed a p ositive role in that it thoroughly demolished the legacy of capitalism, clearing the way for com mu nism .” Id. 190. See id. at 201-02. Trotsky comm ented: “One ma y say th a n man is rather a lazy creature. As a general rule, he strives to avoid work. . . . The only way to attract the labor force required for economic tasks is to introduce com pulsory lab or service.” Id. at 2 01 . S ee also Pipes’ com me nt th a t w h e n the Pa rty found tha t workers were less a ttracted to its ideology than intellectuals, Lenin instructed: “[I]n case of necessity . . . resort to every kind of trick, cunning, illegal expedient, concealment, suppression of truth, so as to penetrate the trade unions, to s ta y in the m , to c on du ct in the m , at w ha tev er c ost , Co m m un ist wo rk.” Id. at 297. 191. Id. at 2 03 . 192. Id. at 204. See also C ONQUEST , supra note 1, at 93 (claiming about Lenin’s strategies: “Ideology dema nded that the independent peasan try be destroyed as an econom ic class; power dem and ed th at the prod ucts o f the cou ntrys ide be take n into the h and s of the state .”).
  • 29. Spring, 2003] TERRO RISM 165 193 hostility. These policies were no more successful than the Bolshev ik’s indu strial program ; they led to a 12.5% decline in cultivated acreage and generated a 30% decline in agricultural 194 195 yields. People went hungry. Peasan ts open ly revolted. No amount of military presen ce and no am ount of bloody repression 196 could improve those figures or change these facts. 197 Mean while, the Tsar and his fam ily were murdered; the P arty that was proving itself unable to rule by consent was 198 simultaneously proving itself willing to rule by terror. At a minimum, terror in this con text m ean t su m mary execu tion s, a pervasive atmosphere of lawlessness, and the enforced wrenching 199 powerlessness of ordinary citizens. Later, after an attempt on 200 Lenin ’s life, concentration camps were established and “a kind of 201 mu rderous psychosis seized the B olsheviks.” The death toll 193. P IPES, supra no te 1 58 , at 2 05 . On ly if we su cceed in splitt ing the village in tw o irrecon cilably h ostile c a m p s, i f w e a re ab le to in fla m e th ere th e s am e civil war that had tak en place . . . in the citie s . . . o n ly th e n w i ll w e b e in a po s it io n to s ay th a t w e wi ll do tha t to the villa ge t ha t w e a re a ble to d o fo r th e cit y. Id. at 207 (quoting I. Sverd lov). 194. Id. at 209. 195. Id. 196. Id. at 208- 09. See also C ONQUEST , supra note 1, at 39 (quoting Lenin as stating: “The victory of the w orkers is im poss ible w ithou t sacrifices , witho ut a te m pora ry wo rsenin g of the ir cond ition.”). Further, as Conquest reasons: “Only when envisaged in the abstract, as verbal icons, did the proleta riat or the m asses figure p ositively.” Id. at 41. 197. P IPES, supra note 1 58, at 216 . Trotsk y is quoted: “The execu tion of th e Ts ar’s fam ily was need ed no t only to frighten , horrify, and instill a s ense of hop elessn ess in th e e ne m y but also to shake up our own ranks, to demonstrate that there was no retreating, that ahead lay either total victory or total doo m.” Id. 198. Id. at 217. According to one government official quoted by P ipes, terror became a “heavy, suffocating cloak thrown from above over the country’s entire population, a cloak woven of mistrus t, lurking vigilance, and lust for revenge.” Id. “Lenin attached to propaganda the highest priority, attributing to it (along with the disunity of his op po ne nt s) h is r eg im e’s ability to survive. . . . Its prerequisite w as com plete control of all sources o f information .” Id. at 305. 199. Id. at 217. Law was replaced by “revolutionary con science.” Id. at 219. Political crimes were handled by revolutionary tribu nals m odeled a fter those m ade fam ous du ring the Fren ch Revolution. Id. I n L e ni n’s o w n words, the task of the Com mun ist judiciary was to provide a “justification of terror. . . . The court is not to eliminate terror . . . but to sub stantiate it and legitimize it.” Id. at 2 20 . Ac cor din g to Pip es: The wh ole thru st of lega l theory and pract ice u nder Len in was to elimina te all obstacles that stood in the way of punishing those whom the government for any reaso n f ou nd undesirable. Comm unist legal historians, referring to the practices of th e 1 9 20s , de fin ed la w as ‘a discip lining p rinciple that helps strengthen the Soviet state and develop th e s ocia lis t e cono m y.’ Id. at 355. 200. Id. at 22 3 . “The decree on Red T error of September 5, 1918, explicitly provided for ‘safeguarding of the Soviet Republic from class enemies by isolating them in concentration cam ps.’” Id. at 227. 201. Id. at 2 24 . “W it ho ut m ercy, without sparing, we will kill our enemies by the scores of
  • 30. 166 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 202 moun ted. Mo re would soon perish from associated events; the 203 carnage was exacerb ated by civil war. The civil war was 204 accompanied by pogroms in the Ukraine, the liquidation of the 205 Cossacks in the Don region, and severe casualty losses on both 206 207 sides. Its toll on the civilian population is staggering. The civil 208 war was followed by famine. The famine excused attacks on the 209 Church. h u nd r ed s , l et th e m b e t h ou s an d s, l et th e m d ro w n in t he ir ow n blo od . For th e bloo d of L enin and U rits kii . . . let there be floods of blood of the bourgeoisie—m ore blood, as much as possible .” Id. (quoting the Re d Arm y New spap er). Also, “[w]e mu st execute no t only the guilty. Execution of the innocent w ill impress th e m asses ev en m ore.” Id. 202. Id. at 2 27 . The death toll for this stage of the Red Terror is estimated at betwe en fifty tho us an d a nd on e h un dre d fo rty tho us an d. Id. 203. Id. at 233 -36. “Lenin n ot only expected civil war to break out in his own country and around the globe after he had taken powe r, but he took p ower in ord er to un lea sh su ch a wa r.” Id. at 233. As Trotsky stated: “Soviet authority is orga nized civil war.” Id. An d, “[t]he C ivil War was prim arily a political conflict, a struggle for power and not a conventional w ar.” Id. at 236. 204. Id. at 259. The death toll for this endeavor reached an estimated fifty thousand to one hu nd red tho us an d. Id. at 264. 205. Id. at 25 4 (“A secret d irective from Mo scow dem and ed ‘the co m plete, ra pid , decisive a n n ihilation of Cossa ckdom as a sep arate econ om ic group, the destru ction of its econ om ic foundations, the physical extermination of its officials and officers, and altogether the Co ssack elite.’”). 206. Id. at 27 4 (estim ating 1,125 ,000 c asu alties). 207. Id. Bet wee n one and a ha lf and two m illion citizens fled the country. Infectious diseases are believed to have killed two million people during this period. Malnutrition, exp osu re, s uic ide , acc ou nt f or a no the r siz ab le s ta tis tic. Id. 208. Id. at 33 7. Th e famine an d a ss ocia ted dis ea ses kill ed ove r fiv e m illio n p eop le. Id. at 360. It was n ot a natu ral disaste r in an y ordin ary se nse. It w as th e resu lt of Bo lshev ik agrarian policies. In 1920, The government persevered w ith forcible confiscation of peasant food ‘sur plu s,’ which in many cases was not surplus at all but grain needed for sustena nce and the p lantin g of nex t year ’s crop. Sin ce the w eath er in 1920 wa s unfa vorab le to agriculture, the meager bread reserves dwindled still further and the countryside began [experiencing] . . . famine. Id. at 3 44 . By the sp rin g of 19 21 , con dit ion s h ad rea che d m as s s ta rva tio n p rop ort ion s. [M]illions of wretched human beings abandoned their villages . . . Moscow persisted in denying th at a cata strophe had occurred . . . Visitors to the stricken areas p assed village after village with no sig n o f life . . . . In the cities, corps es littere d the streets . . . . The fam ine was accompanied by epidemics. . . . The Soviet government watched the sp read of the famine in a state of p ara lys is. . . . [It] “confronted a problem which, for the first tim e, it c ou ld n ot s olv e w ith res ort to fo rce .” Id. at 357 (quoting historian Michel Heller). In the summer of 1921, an appeal for help was finally issued. Th e Un ited State s, guided by Herbert Hoover under the auspices of the American Relief Adm inistration ( “A R A ”) , e st ab li sh ed a sy st em o f a ss is ta n ce . B y the summ er of 1922, the AR A wa s feeding eleven million people a day. Deaths from starvation had ceased. Id. at 359-60. 209. Id. at 3 38 -40 . In L en in’s wo rds : It is n ow an d o nly no w, w hen in re gions afflicted b y fam ine th ere is cannibalism and the roads are littered with hundreds if not thousands of corpses, that we can (and there fore must) pursue the acquisition of [church] valuab les with the most ferocious and merciless energy, stopping
  • 31. Spring, 2003] TERRO RISM 167 This was the R ed T error; it was followed by another. Lenin aged 210 211 and died. Stalin assumed pow er. It was Stalin’s theory that “the closer Com mun ism approached final victory, the more intense grew social conflicts—a notion that justified a bloodbath of 212 unprecedented fero city.” Trotsky and others were hounded from 213 the party and executed or assassinated. Un der Stalin’s leadership forcible confiscation of grain resum ed, peasant class antagonisms 214 were reawakened. Inform ing on others became a virtue; the 215 secret police were transformed into heroes. Show trials and the 216 escalation of class warfare were followed by renewed attacks against wha t was left of the Ch urch as Stalin led the cou ntry in to 217 218 renewed revolution. Famine re-emerged. A campaign against “ideolo gical distortions” was undertaken to tame t he 219 intelligentsia. Despite its total subservience to him, between at no thi ng in s up pre ss ing all r esi sta nce . . . . The greater the num ber of the representatives of the reactionary bourgeoisie and reactionary clergy we wi ll m an ag e to exe cut e in thi s a ffai r, th e b ett er. Id. at 338. 210. Id. at 372-81. 211. Id. at 372-73. 212. Id. at 392. 213. Id. at 3 78 -79 ; see also R ADZINSKY , supra note 29 , at 228 (“Le nin had intended to ta m e the rebellious old gua rd: Stalin m ade this im perative. Lenin had adopted a menacing resolu tion on Par ty un ity: Sta lin m ade it an iron law .”). 214. C ONQUEST , supra note 1, at 96 (“We now have full docum enta tion th at the Sta lin lead ership knew exact ly w h a t w a s happening and used famine as a mean s of terror, and of revenge, against the pe as an try .”); see also R ADZINSKY , supra note 29, at 233. Stalin called for “the liquidation of the k ulak as a class.” Id. at 246. Depo rtation, execution, cam p assign me nts for Kulak individuals and Kulak families was mercilessly undertaken. In the end about four hundred thousand peop le w ere up roo ted . Id. at 246-247. Kulaks were characterized as counter-revolutionaries. Id. However, it seems as if they were the most successful of the pe as an t cla ss . Id. at 2 48 . Su rviv ing pe as an ts w ere un ite d in coll ect ive far m s. Id. 215. Id. at 240. 216. Id. at 242 -43. “Those under a rrest c o n fe s se d to e ve ry th in g . . . . O n e th in g un k no w n until the pre sen t w as the ext en t of S ta lin’s inv olv em en t. O nly no w, a f t er r ea ding the new documents, can I say for su re that he p ersonally sta ged the trials.” Id. at 2 49 . “He . . . saw to it that blood w as spilled ab unda ntly. How can you h ave Te rror without b lood?” Id. at 251. 217. Id. at 2 44 -45 . T h e underlying idea of the plan was to squeeze a century of progress into ten years, by revolutionary means. This required industrialization, the collectivization of agriculture, and the creation of a m an i p ulable Pa rty, which wo uld carry out th e leader’s injunctions to the letter instead of wa sting tim e on d iscuss ion an d op positio n. On ly such a Pa rt y co uld fin ally ta m e a country stirred up by revolution and cre at e a un ite d s ocie ty. Id. at 254. “The revolutionary path, through blood and famine, was the one by which the people cou ld be led into th e bright future.” Id. at 298. 218. Id. at 25 6-5 9. T his fam ine con su m ed be tw een five an d e igh t m illio n p eop le. Id. at 258. Sta lin fou gh t it w ith Te rro r. Id. He b ound th e peasa nts to the land, like serfs, while exporting grain. Id. at 259. “Never m ind the hunger, never mind the corp s es : S t al in w ould d rag h is helpless cou ntry along th e road he had a lways e nvisioned for it.” Id. at 272. 219. Id. at 2 6 1 . “S ta lin w as gra du all y el im ina tin g sh am e. F ea r is s tro ng er t ha n s ha m e.”
  • 32. 168 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 220 1935 and 193 8, Stalin destroyed the Leninist Party. More show 221 222 trials ensued. Torture was developed into an art form. Fear 223 became insanity. The daily life of most citizens was lived 224 225 collectively. They, too, were victimized by terror. 226 Industrialization was, however, achieved to some degree. World 227 War II occurred. During the war Stalin’s deliberate terrorizing of Id. “[A]rt’s only duty was to set the age nda for techn ology.” Id. at 265. 220. Id. at 319. 221. Id. at 343-51. In A RENDT, T OTALITARIANISM , supra note 134, at 31, the author points to the “demoralizing fascination in the possibility that gigantic lies and monstrous falsehoods can eve ntu all y b e es ta bli sh ed as un qu est ion ed fac ts . . . that the difference between truth and falsehood may cease to be objective and becom e a mere m atter of power and cleverness, of pre ss ure an d in fini te r ep eti tio n.” 222. R ADZINSKY , supra note 29, at 354-55. Cell torture led to torture by int err oga tor . Id. at 354. Those who survived w ere subjected to “the notorious conveyor belt”—a system of continuou s interroga tio n. Id. at 35 5. C on sol ida tio n, a form of “g ood cop ” fol low ed . Id. Te sti m on y, w he n it wa s a llow ed , wa s re he ars ed . Id. 223. Id. at 368. Radzinsky tells us that “1937 was to be th e m os t te rri bl e y ea r in R us sia ’s his tor y.” Id. at 364. Wreckers, another term for internal counter-revolutionaries, w ere denounced eve ryw he re. Id. at 368. Even B ukharin, the Party’s greatest theoreticia n, was arrested, imprisoned, con vict ed , an d e xec ute d. Id. at 358-61, 374-84. Radzinsky describes the entire process as “[t]he deadly con veyor belt.” Id. at 391. “Sta lin inaugura ted a self-serv ice system of elim inatio n: each victim killed his pre de ces sor , an d w as kill ed by his su cce ss or. . . . Stalin wanted to invo lve as m any peop le as poss ible in the wo rk of destruction.” Id. at 392. Acc ording to Rad zinsky, this series of pu blic trials provided a “ma gnificent ritual o f retribution.” Id. at 386. 224. Id. at 3 87 . Everything was collective. You worked collectively , lived collectiv ely in a comm unal apartm ent, enjoyed your leisure collectively, perhaps on a collective excursion into the countryside. Holidays wer e co llec tive . . . . Every profession had its own holiday, so tha t on that on e day its collectives could d rink a nd frolic to their hearts’ content, and—m ost imp ortant— all together. Id. An d, “[ p]e rso na l res po ns ibi lity die d; th ere wa s on ly co llec tive res po ns ibi lity . . . . This collective conscience ena bled peo ple to enjoy life uncon cernedly w hen the T error was at its mo st cruel. Woe to anyon e troubled b y a conscience o f his own.” Id. at 388. 225. Id. at 4 13 . The families of enemies of the people, their acquaintances, acquaintances of their acquainta nces— endless ch ains of peop le were turn ed into convicts. In the hands of the army, mass terror consigned thousands of phys ically s tro ng pe op le to th e ca m ps. [Stalin] now had at his disposal the army of unpa id laborers of which Trotsky onc e d re a m e d . . . . Before any ma jor project was begun, the NKVD received direct instructions about the num ber of arrests it needed to m ake. Id. 226. Id. at 424 (“In the economy, the private sector had been abolished, capitalism was finis he d.” ). “The victory of the w orkers’ and p easan ts’ state was mo re imp ortant tha n m ere human lives.” Id. at 437. Through terror, Stalin had managed to wrestle Russia into the tw en tie th c en tur y. 227. Id. at 443-89. During WW II the Russian army lost over eight hundred fifty thousand m en an d th e civ ilia n p op ula tio n s uffe red a lo ss of e igh tee n m illio n. Id. at 5 05 .
  • 33. Spring, 2003] TERRO RISM 169 228 his own population abated; following the war, it resumed. On ly 229 Stalin’s death relieved the tension. Arendt speaks about a fury of wretchedness as fueling the rage of destruction that became the Reign of Terror in the French Revolution; in the Russian situation a kind of ma nipulative coldness seemed to ta ke over. T o so m e degree, Arendt draws a connection between the passionate destruction of the French Revolution and the hea rtless destruction wrough t by R ussian revolutionaries by 230 examining a transformation of suspicion. Because the overall theme of my research is an investigation into the terrorism that grows out of this revolutionary tradition, I hoped to draw connections throu gh th e ferve nt w ish for liberation; if I insist on this image, like a bulim ic, we w ould expe rience liberation though the process of purge. And, during and after the Russian Revolution, when we purge, we rid ourselves of more and more of the facts and 231 artifacts of human life. When we finally move through the Chinese Revolution to Pol Pot’s regime in Cambodia, we will find that purging a n en tire city 228. Id. at 500. Over one half million Chechen and Ingush peop le we re eva cuate d from their homelands. Id. at 503. The Crim ea was "cleansed" of over two hun dred thou san d eth nic minorities. Id. Po gro m s a ga ins t S ovi et J ew s re su m ed . Id. at 529 -35. New trials were pla nn ed . Id. at 550-60. 229. Id. at 568-69. Radzinsky reports: “Shortly before he died the Boss [Stalin asked one of his gu ards ]. . . . ‘W ha t d o y ou th ink- will A m erica at ta ck us or n ot ?’. . . . ‘[J]ust remem ber this: they will attack us, [they are] imperialists, and they certainly will attack us. If we let them .’” Id. 230. Co m pa re, A RENDT, O N R EVOLUTION , supra no te 1 7, a t 25 0, Fo r R ob es pi erre’s rule of terror was indeed nothing else but the attempt to o r g anize the wh ole French p eople into a s ingle gigantic party ma chinery . . . through w hich th e Ja cobin club w ould spread a net of party cells all over Fran ce; and their tasks were no longer discussion and exchange of opinions . . . but to spy up on one a nother an d to den ounce members and non-members alike wi th, A RENDT, T OTALITARIANISM , supra no te 1 34 , at 1 20 , The first sta ge [is] . . . ferret in g ou t se cr et en e m ie s an d hu n ti ng d ow n former op po ne nts . . . . T h e e n d of the first stage comes with the liquidation of open and secret re sista nce in any o rgan ized for m . . . . On ly after the extermination of real enemies has been completed and the hunt for ‘objective enemies’ begun does terror become the act ual content of totalitarian regimes. and, “ [ t] o ta litarianism defined its enemies ideologically before it seized power, so that categories of the ‘susp ects’ were not esta blished thro ugh police inform ation.” Id. at 121. 231. P IPES, supra no te 1 58 , at 3 93 . [ T ]h e Bols heviks . . . were guilty of ignoring the cultural realities of Ru ssia and her un prep ared ness for the e conom ic and social order that they trie d to im po se o n h er. The B olsheviks cea sed to be utopians when, once it had become obvious the ideal was unattainable, they persis ted in the att em pt b y re sor tin g to un res tra ine d v iole nce . Id. “Terror . . . the execution of a law of movem ent whose ultimate goal is . . . the fabrication of mankind, eliminates individuals for the sake of the species, sacrifices the ‘parts’ for the sake of the whole.” A RENDT, T OTALITARIANISM , supra note 134, at 163.
  • 34. 170 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 of its population an d purging, that is exterm inating, an entire quarter of a nation’s people is both possible and not enough. Mussolini seemed to capture the spirit motivating Russian Revolutiona ry terror when h e sa id of Le nin : “Lenin is an artist who worked on humans as other artists work on marble or metal. But human beings are ha rder than granite and less malleable than 232 iron.” The qu ote continu es w ith M ussolini saying, “No ma sterwork has emerged. The artist has failed. The task has 233 proven beyond his powers.” I have no doubt that the artist failed; but, the fact that he failed does n ot go to the h eart of the m atter. The problem lies in his, or our, willingness to accept the idea of human beings as mediums of expression ; hum an p erfectibility does 234 not mix w ell with political power. This problem, though, was certain ly not evident to Mao Zedong. It is to Zedong’s work in the context of the People’s Republic of China that we now turn. 3. The People’s Republic of China: Let a Hundred Flowers Bloom The true heirs of Stalin were not the Soviet leaders… For huge Stalinist projects of reshaping society, one has to turn to Mao Zedong in China an d Po l Pot in 235 Cambodia. 236 Political power grows out of the barrel of the gun. Disclosure is better than no disclosure; early disclosure is better than late disclosure; thorough disclosure is better than reserved disclosure. If one sincerely discloses his whole criminal story and 232. P IPES, supra note 158, at 404-05. 233. Id. at 405. 234. C ONQUEST , supra note 1, at 3 (“The huge catastrophes of our era have been inflicted by human beings driven by certain thoughts. . . . The basic characteristic and attraction was and is the archaic idea that utopia can be constructed on earth; the offer of a millenarian solution to all human problems.”). My terrorism research moves me to a profound distrust for th e undertaking. It does not seem tolerably possible for any one of us to imagine herself an “artist” wh ose m edium is peo ple. N ot tha t I dou bt the accura cy of the ima gina tive chara cteriza t i on ; rath er, it is the willingness of the mind to entertain the metaphor that m ove s m e to ob ject . C ONQUEST , supra note 1, at 126, warns against people who admired the ability of the Soviets to enforce their id e a s. F urther on he reports being troubled by “the persistence to this day of an adolescent revolutionary romanticism, as one of the unfortun ate afflictions to which the hum an m ind wa s and is p rone.” Id. at 294-95. 235. G LOVER, supra note 3, at 283. 236. J ONATHAN D . S PENCE, T HE S EARCH FOR M ODERN C HINA 563 (1990). The full quote by Zedong includes the following: “Our principle is that the party commands the gun and the gun sha ll never be allow ed to com ma nd the p arty.” Id.
  • 35. Spring, 2003] TERRO RISM 171 adm its his crimes to the people hum bly, he will be treated leniently and given a way for safe conduct, 237 and his case will not affect his family. Earlier in this article I sa id: “What revo lutiona ry leaders in Ru ssia confronted was the task of transforming a structureless mass governed by a despotic and centralized bureau cracy in to a paradise 238 of shared abun dance.” A not entirely dissimilar situation faced China in the first quarter of the twentieth century. Howev er, where the Russians confronted an essentially centralized system, the Chinese faced extreme fra gm entation. Many years prior to the rise of revolu tion ary com mun ism , China’s imperial order collapsed. Internal disputes and foreign interventions resulted in a prolonged 239 period of political instability. Amon g intellectual, educated Chinese, self-scrutiny, stim ulated by a serious concern that th eir country mig ht perish, led to the exploration of different political 240 theories. Prior to the B olshevik Revolution in R ussia, Chinese 241 scholars had shown little interest in Marxism; following the events of 1917 , man y turned to Ru ssia, rather than France, as a 242 source for revo lution ary in spiration. Adapting the indu strial- 237. Id. at 613 (qu o t in g H ONG-Y UNG L EE , T HE P OLITICS OF THE C HINESE C ULTURAL R EVOLUTION : A C ASE S TUDY 292-93 (1978)). During the Cultural Revolution “’[c]onfession’ to s om e sort of failing was seen as essential to personal redemp tion; stubborn silence or righteous insiste nce on innoce nce cou ld lead to viciou s pu nishm ent a nd s usta ine d group pressure.” S PENCE, supra note 236, at 613. 238. Sup ra note 13 7 and accom panyin g text. 239. S PENCE, supra n o te 2 36 , a t 27 1 . S p e nc e t el ls u s t h at w hen the last Ma nchu em peror abdicated in 1912: [N]ationa l finances we re in disarray, w ith a de pleted treas ury in Peking and little m oney coming in from the provinces. Groups of scholars and burea ucrats had expressed a wide range of dissatisfactions with the defunct [im p eria l] re gim e, a n d this discontent now had to be addressed. The army troops occupying Peking were numerous but hard to control, of doubtful loyalty, and liable to mutiny. . . . Natural disasters had devastated the cou ntrys ide, cau sing ru ine d h a rves ts a nd sta rva tio n. . . . Foreign pre ss ure wa s in ten se, t he po ss ibi lity of in va sio n im m ine nt. . . . [T]here was a strong chance that independent separatist regim es w ould emerge . . . weakening central authority. Id. at 2 75 . Al so, “[t]he so cial, econo m ic, and p olitical dim ensio ns of C hines e life we re all in flux, and th e fragmentation of the country under militarists’ rule made coherent planning almost impossible. The persistent tension between central and local power in China was especially keen .” Id. at 296. 240. Id. at 271. One study grou p, the M arxist Re search Socie ty, set up in 19 18, eve ntua lly at tra cte d m an y in flue nti al s tud en ts, a m on g th em , M ao Ze do ng . Id. at 307. 241. Id. at 3 05. Sun Yat-sen’s socialist ideas were rooted in the British socialist con str uct ion s a ss ocia ted wi th H en ry G eor ge. Id. 242. Id. Spen ce quoting L i Dazh ao: “[W]e h ave only to raise our heads t o w e lc om e t he d aw n of the new civilization of the world, and turn our ears to welco m e the n ew R ussia that is founded upon freedom and humanis m , a n d to a da pt o urs elv es t o th e n ew tid e of the wo rld .” Id. at 3 06 . H o w e v e r , F r a nce w as im po rta nt t o th e C hin ese Co m m un ist Pa rty . Id. at 231.
  • 36. 172 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 proletariat mo del of Marx to an agrarian-peasant based economy proved no more obstructive to the Chinese than it had to the 243 Russians. Initiating a theme that was to continue through the Mao and Pol P ot regime s, the intellectual class was “sent” to the countryside to escape the corruption of urban life and to dignify 244 themselves through honest labor. Visits to the Soviet Union 245 cemen ted associations. What followed were decades of stressful cooperation, strife, and finally open warfare between the Chinese Socialists, those led by Sun Yat-sen (later led by Chiang Kai-shek) and the Chine se Com mu nists, of the Long March fame who would eventually be 246 represented by Mao Z edong. Simultaneously, these same decades contained external strife represented by the grow th of Japanese 247 domination and W WII. When , on O ctober 1, 1949, M ao formally Between 1919 and 1920, over one thousand Chinese students participated in programs that allowed them to w ork and study in France, mostly in or near Pa ris. Id. There they w ere introduced to French lab or o rga niz at ion s a nd soc ial ist do ctri ne s. Id. Deng Xiaoping, one of the Chinese students in France, be cam e a po litic al a ctiv ist . Id. Wh ile in France, he and Zhou En lai join ed the Co m m un ist Pa rty . Id. at 322. 243. C ONQUEST , supra note 1, at 90, speaks generally about this transformation: “In the Jaco bin tradition the task of revolution was now . . . entrusted not to a nebulous ‘class’ but to a professiona l revolutionary elite party acting in tha t class’s nam e.” S PENCE, supra note 236, at 30 7-0 8, s pe ak s m ore sp ecif ica lly t o th e C hin ese form ula tio n. China . . . was at the mercy of foreign imperialist forces that had exploited all the Chinese people in ways similar to those in which capitalists exploited their workers—by owning the means of production and seizing the workers’ surplus value for themselves. . . . “[T]he whole country has grad ually b ee n tra ns fo rm ed into part of the world proletariat. . . . [T]he comm on people [of China] still indirectly suffer from the direct capitalist oppression in a wa y that is even mo re bitter than the d irect capitalist oppression suffered by th e workin g classes of the va rious [capita list] nations. . . . Our China is a rural nation and most of the laboring class is made up of peasants. If they are not liberated, then our whole nation will not be libera ted.” Id. at 308 (paraphrasing and quoting Li D azh ou). 244. Id. at 308-09. “[A]mbivalence toward cities . . . was a fea tur e of Ch ine se c om m un ism .” Id. at 519. 245. Id. at 309-10. Spence, speaking of Qu Qiubai’s experiences in the Soviet Union and the m ea nin g of the se v isit s to the Ch ine se C om m un ist rev olu tio na ry m ove m en t, sa ys: [T]hrough know ledge , the C hines e wo uld com e to se e socia lism as a valid critique of the existing order; through feeling, they would understand socialism as an emotion that made possible the replacement of the current order with a new one; th r o u gh will, they would achieve that transformation by exerting their efforts on the objective world. Id. at 310. 246. Id. at 334-60, 403-74, 484-519. Interestingly, Sun Yat-sen and Chiang benefited from associati o n s wi th w arl ord s. Id. at 334. For Sun Yat-sen the connection was actually with a form idab le ba nd it le ad er, W hit e W olf. Id. at 296 . In Chian g Kai-she k’s case, one wa rlord was a Shanghai ga ng ste r, D u Y ue -sh en g. Id. at 2 98 . Both were linked to the well-known criminal group— Green Ga ng . Id. Thes e c on nections might have slipped by m y attention were it not for t he con clu sio n o f th is re sea rch . See infra section 3. 247. Id. at 456-72, 474-83.
  • 37. Spring, 2003] TERRO RISM 173 announced the founding of the People’s Republic of China, th e human horrors and the terrors of revolutionary violence had already 248 begun. Th ough, for these p eople, in these tim es, it was m ore likely that the struggle with external enemies, the toll of civil strife, and the failure of econ om ic system s create d a fabric of generalized, 249 rather than revolutionary specific, violence. The new ly constructed People’s Republic inherited disastrous inflation. In addition to curbing this inflation, the government was confronted with the need to restore war damaged industry, to 250 establish law a nd orde r, and to improve agricultural production. They had only a small cadre of people and, regardless o f anti- imp erialistic rhetoric, were, as a practical matter, dependent upon 251 foreign assistance. Land reform was initiated and coordinated by 252 “work teams;” violent confrontations between resistant landlords and enth usiastic peasants were en coura ged by revolutionary 253 leaders. Prop aganda was used to build support in the cities; citizens were ordered into study groups to learn the vocabulary and policies of the commu nist governm ent; street-comm ittees were established to produce localized services; anti-vice programs 254 targeting prostitution and opiu m addiction were facilitated. 248. The Ma o-led A utum n H arves t Up rising in Hu nan in 1927 was no great success. Id. at 3 5 9 . In the sa m e ye ar, t he So vie t di rec ted “C an ton com m un e” e ffor t co st m an y liv es. Id. at 359-60. Chiang Kai-shek conducted a reign of terror in the months following his 1927 coup. Id. at 361. The “Red Army,” a renegade force that com bined the military m igh t u nd er M ao ’s lead ership with the trained military of an ex-sold ier of fortu ne, bec am e a fas t-m oving g uerrilla force. Id. at 374. The Long March itself consumed almost 90% of its participants. From the approx ima te eighty thousand people who bega n th e travail, only eight to nine thousand su rviv ed . Id. at 4 09 . 249. Id. at 444-50, 463-66, 468-69, 496 (describing the Ja pa ne se c on qu est ). Id. at 488-89, 492-93, 504-08, 512-13 (describing int ern ali zed str ife). Id. at 429-34, 498, 501-04 (describing gene ral con dition s). 250. Inflation had reached drama tic proportions. Spence reports that a sack of rice that had sold for 6.7 million yuan in June of 1948 sold for sixty three million yu a n i n A u gust of that year. Id. at 5 02 . H e sa ys, “ the re w as litt le h op e of cop ing wi th o rdi na ry c as h tr an sa ctio ns .” Id. And, by the autumn of that year, “[t]he Chinese republic had become, for all practical purposes, a barter econ om y.” Id. at 504. For indu stria l development, see id. at 521-22. For mention of only some of the law and order issues, see id. at 5 08 -09 . Fo r M ao ’s eight point program, see id. at 510. For agricultural reform efforts, see id. at 516-17. 251. Id. at 514-15. 252. Id. at 516 (“ [ A ]b o u t 40 percent of the cultivated land was seized from landlords and redistributed, and that a bout 60 percen t of the popu lation bene fited in som e way .”). W ork t ea m s constituted from three to thirty people. Veteran cadres were joined by stud ents to form these tea m s. Id. Many team m emb ers received only rudimenta ry training. Id. Their task was to identify local landlords and break into the ancient patterns of deference that held these lan dlo rds in a uth orit y. Id. 253. Id. at 517 (“[O]ne landlord family out of six had a member killed in these confrontations . . . as ma ny as one m illion or m ore pe ople . . . died d uring t his ph ase o f the rev olution .”). 254. Id. at 517-18. Spence quot e d Liu Shaoqi to emphasize the early enthusiasm and hopefulness of the revolutionaries. Selfless service, he said, was a goal and an ideal, and “any class background could be transcended by p iercing self-examination and prolonged study of
  • 38. 174 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 Progress toward organizing the country was underway when China decided to invade Tibet and participate as com batants in the Korean 255 Wa r. During the latter, the Chinese suffered ma ssive 256 casu alties; afterward, western foreign influences were increa singly rejected and spies and reactionaries were hunted. The 257 regime hardened. In 1953, the People’s Republic adopted the Soviet “Five-Year Plan” model of eco nomic developm ent. The adoption of an integrated econ om ic policy came with basic shifts in political o r ga n i za t io n . C oord in a t io n a n d p u r g in g t o o k pl a ce 258 simultaneously. China’s atte m pts at ra dica l e co no m ic 259 restructuring initially appeared successful. However, like the Russians, the Chinese were fueling growth by consuming 260 agricultural wealth. By 195 7, these policies no longer achieved Ma rxism-L eninism .” Id. at 520. 255. Id. at 52 5 (d iscu ss ing the inv as ion of T ibe t); Id. at 529-30 (discussing the Chine se entry into th e Ko rean W ar). 256. Id. at 531. Spence says the C hinese suffered “staggering losses of close to one million m en .” Id. H e a ls o s ay s: “T he Ch in es e C om m un i s ts p robably gained in the short run from participating in the Korean W ar,” because a unified United States sponsored Korea w as not in the Co mm unists’ best interest. Id. at 533. “The longer-range tragedy,” he adds, “was that China had lost all hope of the ‘new dem ocracy’ that had seem ed implicit in the rhetoric . . . of 1949 .” Id. 257. Id. at 531-32. Spence says that as a result of the Korean War the Chinese drew closer to t he So vie t U nio n w hile tur nin g a wa y fro m the pe rce ive d e vils of W est ern im pe ria lism . Id. B y 19 50 , he rep ort s, a lm ost all f ore ign ers ha d le ft th e co un try . Id. at 534. In the early 1950s dea dly campaigns were directe d ag ains t dom estic cou nte rre vol uti on ari es. Id. Spen ce reports that durin g this p eriod a ppro xim ately th irt y th ousand people w ere executed, some of them in public specta cles. I d . at 535. A broad based campaign was waged against internal corruption within the party and, “an all-out assault on the bourgeoisie in China, a class w ar” was init iat ed . Id. at 53 5-36 . “[B]us iness leade rs we re forced to undergo group criticism sessions and to confess their past econom ic crimes.” Id. at 537. The fact of massive denunciations (approximately two hundred thousand) followed by intense investigations and “voluntary” confes sions involvin g up t o seve nty th ousa nd b usine ss m en jus t in Sh ang hai, he lp pu t th e ef fort in p ers pe ctiv e. Id. at 5 38 . During 1950 and 1951 tens of thousands of C hinese intellectu als of all ages were given six-to eight-month-long ‘courses’ at ‘revolutionary colleges. . . .’ [T]hey met w ith sm all grou ps . . . for discu ssion and self- crit icis m , a n d p r ep a re d ‘a u to b io g ra p h ie s ’ i n w hich they a nalyz ed th eir o w n pa st fa ilin gs a nd tho se o f th eir p are nts . . . . [I]n general the en tire pro ces s s ub ject ed the int elle ctu als to s eve re m en ta l st res s. Id. at 564. After a brief defrosting of the situat i on — t h e H u n dr ed Fl ow ers p eriod — M ao ’s gov ern m en t re tur ne d to a h ard -lin e a pp roa ch t o in tel lect ua l fre ed om . Id. at 5 72 . 258. Id. at 541-42. 259. I d . at 5 44 (“[T]he First Five-Year Plan achieved a dramatic increase in industrial prod uction .”). 260. Id. (“The C hinese . . . forced the peasantry to sell more than a quarter of their total grain p ro du ct io n to th e s ta te at e xt re m ely low prices. This policy left the peasants at subsisten ce level while it enabled the government to guaran tee food s upp lies in the cities and keep wages down.”). Apparently, the permissibility of private plots allowed the Chinese pe as an ts t o su rviv e th ese oth erw ise fam ine gen era tin g go ver nm en t po licie s. Id. at 5 50 .
  • 39. Spring, 2003] TERRO RISM 175 satisfactory ends. The G reat Leap Fo rward was instigated in an 261 attempt to spontan eously en ergize the nation’s economy. Com mun es were m erged; people were organized alon g military lines; gigan tic irrigation projects were un dertaken with labor from the cities; the allowance for private plots was ended; and farmers were expected to both grow grain and produce h om e m ade steel in 262 makesh ift furnaces. The pooling of household, child-rearing, and cooking arrangem ents had significant and long-term effects on fam ily structure; despite the success of several irrigation projects, the grain yield was profoundly disappointing; and the steel furnaces 263 264 did not work. The result wa s chaos rather than progress. China continued to export grain in order to pay for heavy machinery. Grain production continued to fall. In a replay of horror 265 familiar from Russian history, starvation and famine set in. 261. Id. at 575-77. According to Spence, several factors were at play here. Mao was inspired by So vie t te chn olo gica l de vel op m en t. Id. at 5 75 . Mao was uninspired by China’s agricultural production figu res for 1 95 7. Id. “The roots of Mao’s radical thinking had always lain in the voluntaristic, heroic workings of the human w ill and the power of the m asses.” Id. a t 5 76 . H e was troubled by what he saw as a loss of vitality in the Chinese Revolutionary situation. Id. H e w a s w or ri ed a b ou t th e gr ow th of “individualism, departmentalism, absolute egalitarianism or liberalism.” Id. As a result of these factors, Mao seized on Trotsky’s “permanent revolution” idea: Now we m ust start a technological revolution so that we may overtake Brita in in fifteen or more years. . . . Our revolutions are like batt les. After a victory, we m ust at once put forward a new task . In this way, cadres a nd the m asses w ill forever be filled with revolutionary fervo ur. Id. at 577. 262. Id. at 578-80. 263. Id. at 580. 264. Id. at 581. 265. Id. at 583. Spence says that this famine claimed twenty million lives between 1959 and 1962. Id. Glover says the death toll ought to be placed between twenty and thirty million. G LOVER, supra note 3, at 28 4. According to S pence, it was the unw illingness of cadre w ith accurate information to confront high ranking officials, who desired good news, with the bad n e w s of failing production that facilitated the deepening of the fam ine pro ces s. S PENCE, supra note 236, at 5 83. Accord ing to Glover, “Mao’s policies needed corrective feedback, but most peop le were too frightened to give it.” G LOVER, supra note 3, at 287. Glover tells two stories of importance in this regard. First, he describes how at the height of the fa m i n e M a o went out to t o u r t h e h a rves t ar ea s. Id. at 285-86. So unused was he to being contradicted and so unwilling were officials to upset this pattern that the followin g scene evolved (as related by M ao ’s pe rso na l ph ysi cia n a nd po litic al a dv iso r, D r. L i, w ho acc om pa nie d h im on the trip ): The scene along the railroad tracks was incredible. Harvest time was approa ching, and the crops we re thriving. The fields were crow ded w ith peasa nts at work. . . . “Good new s reporting sta tions” were . . . competing with nearby brigades and com mun es to report—red flags waving, gongs and drums sounding—the highest, most extravagant figures. G LOVER, supra note 3, at 285 (quoting L I Z HISUI, T HE P RIVATE L IFE OF C HAIRMAN M AO : T HE M EMOIRS OF M AO ’S P ERSONAL P HYSICIAN 272-73 (1994)). This scene, as Dr. Li later dis cov ere d, tu rne d o ut t o b e a the at rica l pr od uct ion : In Hu bei the pea sants w ere ordered to remove rice plants from far-away fields and transplant them along M ao’s route to give th e im press ion of a wildly abundan t crop. ‘The rice wa s p l a nted so closely together that
  • 40. 176 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 As if the famine had resulted from the failure of the people to accept com munist ideology, the govern ment redoubled its efforts to 266 introduce basic socialist values into Chinese society. Econom ic 267 recovery was accomplished; however, the political situation was 268 269 not as easily stabilized. The Cultural Revolution comm enced. electric fans had to be set up around the fields to circulate the air in order to p rev en t th e p lan ts fr om rot tin g.’ G LOVER, supra no te 3 , a t 2 8 5 -8 6 (citing and quoting L I Z HISUI, T HE P RIVATE L IFE OF C HAIRMAN M AO : T HE M EMOIRS OF M AO ’S P ERSONAL P HYSICIAN 277 (199 4)). Second, Glover reports that in 1959 the harvest was thirty million tons les s th an in 1 95 8. G LOVER, supra note 3, at 28 5. M ost officials, how ever, found it prud ent to report large increases in ord er to placate M ao . Id. at 28 7. Pen g De hua i, the M inis ter of D efe ns e, w as no t am on g th em . Id. H e spoke up de ta ilin g th e d an ger of s ta rva tio n. Id. He even wrote to Mao to explain the situation. Id. M ao dis m iss ed Pe ng ’s cri ticis m s. Id. Pen g, still determined to break through M ao ’s denial of the truth, accused him of becom ing like S t a l in in his willingness to sacrifice the people to “impossible production targets.” Id. As if to dem onstrate the correctness of the Sta lin analogy, Peng was condemned as an “anti-Party element” and as “a r igh t op po rtu nis t.” Id. He w as put under house a rrest and assigned to write a s elf-crit icis m . During the Cultural Re vol uti on he wa s to rtu red an d k ille d. Id. 266. S PENCE, supra note 236, at 592 (“The collective was to be p laced ahead of the individ ual.”). And, quoting Mao, “Any departure fro m this correct analysis and logical reasoning will inev itably caus e our w ork of s ocialist co nstru ction to lose its direction.” Id. Solzhenitsyn speaks abou t similar reasoning in Soviet Russia: “The primitive r e fu s a l to comprom ise is elevated into a theoretical principle and is regarded as the pinnacle of ort ho do xy.” C ONQUEST , supra no te 1 , at 1 12 . Ac cor din g to Co nq ue st, t his wa y of thinking implies that, “political leadership, and political considerations generally, were on a higher and mo re comprehensive plane than all other elements in society and were empowered to make final decisions in all fields.” Id. Conq uest recites O rwell’s proposition tha t it is comm on for revolutionaries to hate the system m uch more than they pity its victims. . . . [I]deology becomes a sort of mental trap. And when its bearers co m e to power they are . . . stuck with a program that produces far worse suffering . . . than . . . under the original oppressors. Id. at 141-42. 267. S PENCE, supra note 236, at 595-96. 268. Id. at 603. Speaking abou t the forces that would eventually yi e ld u p the Cultural Revolution, Spen ce points to M ao ’s vie w t ha t, ag ain , the Re vol uti on wa s “l osi ng im pe tus ,” this t im e becaus e of party con ser va tis m an d b ure au cra tic le tha rgy . Id. at 603. Glover states that “Ma o believed es pecially in the ene rgy of the youn g,” G LOVER, supra note 3, at 288, and that “Mao encourage d the you ng to tear up the existing society a nd start a gain.” Id. Exp l a in ing the destabilizing factors, Spence points to d isaffected urban youths, the political ambitions of several peo ple in the govern me nt, S PENCE, supra note 236, at 604, Mao’s own loss of esteem and influence, and beliefs among influential party leaders that “the Chinese cultural garden was overgrown with ‘anti-socialist poisono us we eds.” Id. at 603. “[I]f the proletariat does not occupy the p ositions in literature an d art, the bou rgeoisie certainly will.” Id. 269. S PENCE, supra note 236, at 604-06 (describing how events piled up: the 1966 purging of the cu ltural b ureaucra cy was followed by la ter purges of high er echelons of pa rty leadership; the issuing to students of arm bands announcing them as the “‘Red Guards’—the vangua rd of the new revolutionary upheaval”; the mounting of gigantic chanting parades; the closing of schools to facilitate the stagin g of a re volutio nary strugg le; the de m olishin g of old build ings, temples, and art works in the name of revolutionary purification; the comprehensive attack on “old customs, old h abits, old culture, and old thinking.”). The country wa s gripp ed b y “eup horia , fear, excitem ent, an d ten sion . . . violence grew apace. Thousands of i n tellectuals . . . were beaten to death. . . . Thousands more were imprisoned, often in s olit ary con fine m en t, for yea rs. Million s we re reloca ted to purify themselves through
  • 41. Spring, 2003] TERRO RISM 177 270 Hum iliation was its main tool. The Cultural Revolution was ma rked by the creation of an intense climate of fanaticism and 271 fear. At som e point the regular arm y an d the radicals began to 272 clash. Violence escalated. Glover calls the Cultural Revolution 273 one of this century’s “great m an-made ca tastrophes.” He attributes it, and other of Mao’s extravagant errors, to his belief in the total reconstructab ility of hum an life, to “large-scale thinking 274 and lack o f mora l restraints.” 4. Pol Pot’s Cambodia: The Lotus Dies; No Moon C ushion “The Khm er methods do not require a large personnel, there are no heavy charges to bear because everyone is simply thrown out of tow n . . . [T]he Khm ers have adopted the m ethod w hich consists in overturning the basket with all the fruit inside; then , choosing o nly th e articles that satisfy them completely, they put them back in the 275 basket.” labor in the countrys ide.” Id. at 606. Spence informs us that the “combination of incessant i n d o ct r in a tion wi th h ard lab or” be cam e th e n orm in C hin ese villa ges du rin g th is p erio d. Id. at 614 . Accord ing to S pen ce, “[t]he ex tent o f this ou tpou ring of vio lence, and the rage of the young Red Guards against their elders, suggest the real depths of frustration that now lay at the hea rt of Chines e society.” Id. at 6 06 . 270. G LOVER, supra note 3, at 291. Cruelty, he says, was able to solicit unprecedented mass participation. Id. at 292. So intimidating was the general atmosphere that, accord ing to Glover: “Peop le feared stepp ing out of line even in th eir thoughts.” Id. Glover characterizes the Cultural Revolution as an “unprecedentedly intrusive assault on any moral identity other than th e perm itted one.” Id. at 296. 271. Id. at 284. Glover relates the story of a young Red G uard beating a kneeling, bloodstained woman w hile reciting the words of Mao: “Mercy to the enemy is cruelty to the peop le!” Id. at 2 91 ; see also D YER, supra note 64, at 141 (“Fear is not just a state of m ind; it is a ph ysical th ing.”). 272. S PENCE, supra note 23 6, at 611 . Spence tells us th at the numbers killed in these conflicts i s u n kn o w n, “ b ut th e re w er e e ye w it n es s re p or ts o f r iv e rs b lo ck e d w ith bod ies, and many corpses w ashed up on th e shores of H ong K ong.” Id. Lynn Wh ite credits claims as high as one million people, but doubts the accura cy of claims as high as twenty m illion people. L YNN T . W HITE, P OLICIES OF C HAOS: T HE O RGANIZATIONAL C AUSES OF V IOLENCE IN C HINA’S C ULTURAL R EVOLUTION 7 (1989). Jing Lin believes the death toll should be esta blished at app roxim ately five m illio n. J ING L IN , T HE R ED G UARDS’ P ATH TO V IOLENCE: P OLITICAL, E DUCATIONAL, AND P SYCHOLOGICAL F ACTORS 2 (1 99 1). Harry Harding says the events of 1967 took t he lives of half a million Chinese. H arr y H ard ing , The Ch inese Sta te in C risis, 1966-9, in T HE P OLITICS OF C HINA: T HE E RAS OF M AO AND D ENG 148, 24 4 (Rod erick M acF arq uh ar e d., 2d e d. 199 7). 273. G LOVER, supra note 3, at 284. 274. Id. at 297 -98; see also C ONQUEST , supra note 1, at xi (“[H]uma nity has been savaged and tram pled b y rogu e ideo logies.”). 275. G LOVER, supra note 3, at 299 (quoting F RANCOIS P ONCHAUD, C AMBODIA , Y EAR Z ERO 22 (19 78 ) w ho , in t urn is q uo tin g a Kh m er o fficia l, Prachachat, June 10, 19 76).
  • 42. 178 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 “We went to Phnom Pen h to search for enemies hidden th ere, an d drive the people out. . . . We were told to tell the people to leave for three days, and that then they could return. We were told to shoot people 276 who refu sed . Our group shot 2 or 3 fam ilies.” “Everyone, including children, worked very hard, usually twelve-or th irteen-hou r days, plus abou t six nigh ts every month on particular tasks and occasional compulsory evenin g political meetings. . . . [T]he workday in th e fields was sometimes extended by two or three hours of nigh t labor. People were raised or demoted in the h ierarch y according to whether their work w as ‘vigorous, medium or w eak.’ The system’s demands on its subjects were so great as to divide an d redivide th em . . . . Base people suspected of crimes were regularly ‘sent up to higher levels’—which meant death. . . . The b ase people lost 277 faith one hu ndred percent.” Mao and the People’s Republic of China may not present a terror on the same scale as Stalin. And, in shear numbers, the Cambodian death toll pales in comparison to the results in these prior two regimes. But, in its genocidal effects, and in the profundity of human sadness, no one has surpassed the terror of Pol Pot’s 278 governm ent. Without a doubt the United States played a role in the international arena relevant to Chinese politics prior to the 279 inception of the People’s Republic of China. However, tha t role is dram atically overshadow ed by the direct and u nfortunate contributions made by the Un ited States to the situ ation in Cambodia. The Dem ocratic Kam puchea enterprise, the Pol Pot 280 regime, the Khm er Rouge, had two major external enem ies: the 276. B EN K IERNAN , T HE P OL P OT REGIME: R ACE, P OWER AND G ENOCIDE IN C AMBODIA UNDER THE K HMER R OUGE, 1975 -79, 43 (199 6) (quoting Ch hin P hoeu n). 277. Id. at 175-77. 278. Wh en I w rot e th is s en ten ce I ha d n ot y et r ea d th e b ook ab ou t R wa nd a: P HILIP G OUREVITCH, W E W ISH TO I NFORM Y OU THAT T OMORROW W E WILL B E K ILLED WITH O UR F AMILIES: S TORIES FROM R WANDA (1998). It may be that hyperboles about human sadness ma y always be out of place. 279. S PENCE, supra note 236, at 478-80, 484-91. 280. K IERNAN , supra note 2 76, at xi, xiii. DK is an abbreviation for Democratic Kampuchea, the form al na m e for the regim e tha t gover ned Ca m bod ia from 197 6-19 79. D em ocratic Kam puchea is synonymous with Pol Pot’s regime at least insofar as during the existence of Dem ocratic Kampuchea, Pol Pot and his party, the Com mun ist Party of Ka m puch ea (“C PK ”), were in c on tro l of t he na tio n. T he Kh m er R ou ge, or Red Kh mer s, is a broader term. It was
  • 43. Spring, 2003] TERRO RISM 179 281 imp erialistic United States and neighboring Vietnam. The history of this Cambodian-Vietnamese enmity ma y lay rooted in French colonialism. It was the French who introduced the Vietna mese into C am bodian culture w here they, like the Thai and Chinese, exercised an urbanizing influence on the more insular 282 Cambodian society. The history of Cam bodian-United States enm ity is short and horrific. From the early 1960s until the m id 1970s, Un ited Sta tes policies resulted in the political and military 283 destabilization of Cambodia. In this study of terrorism-through- once associated with the Khm er People’s Revolutionary Party—the first viable communist party to emerge on the C am bodian scene— in contrast to other associations of Khmers; Khm er being a general term for identifying Cambodian ethnicity. Later on th e te rm be ca m e as soc iat ed wi th P ol P ot’s tak e-o ver . Id. at 13, 19, 25-26. 281. Id. at 3. 282. Id. at 4-6. Kiernan provides data that suggests Pol Pot’s personal experience might have contributed to the animosity. When Pol Pot, then called Saloth Sar, was twenty, he was given a scholarship t o st ud y in Pa ris. Id. at 10. He and a nother Cam bodian youth traveled together, firs t to Sa igo n, t he la rge st cit y e ith er ha d e ve r see n w he re ac cord ing to S al ot h S ar ’s compan ion they felt like “dark m onkeys from the mo untains .” Id. On the other hand, Kiernan ma kes it clear th at am ong left le anin g Ca m bod ian s t u dents s tudy ing in P aris d uring t his period, nationalistic sentiments ran high enough to experience as offensive Vietnamese possessive claims to Angkor Wat, or suggestions that the visiting Ho Chi Minh was someone w ho sha red the ir in ter est s. Id. at 10-11. Regardless of its relatedness to Cambodian- Vietnamese relations, it is worth noting the influence the French connection played in the education of revolu tiona ries. W hile Ma o him self did not study in Paris, some of his influential colleagues did . See su pra n o t e 242. Pol Pot a nd m any of his cad re did receive a F rench education during which radicalization occurred. K IERNAN , supra note 276, at 26. So strong was thi s in flue nce in C am bo dia tha t K iern an sa ys, “ [o]ver time the mem bership of the top CP K circle becam e increasingly restricted to the Fren ch-educate d Pol P ot group.” Id. 283. Id. at 16-17. Early contributing policies i n cl u de: United S tates’— backing o f French efforts to reestablish colonial dom ination of C am bodia a nd V ietnam ; United S tates’ attem pts to encircle China; United Sta tes’ escalations of hostilities in Vietnam that underm ined Sihanouk’s, Ca m bod ia’s hea d of sta te, attem pts a t neu trality. Id at 16 . In the e arly m id 1960s, the following policies were added: the massive military escalation of the United States involvement in Vietna m; troop co mm itmen ts that ro se from twenty thousand to three hundred thousand; a nd , th e U nite d S ta te s fa cilita tio n o f a dr am at ic in cre as e in Sa igo n’s military force which recruited one hu n d r e d sixty thousa nd soldiers in 1 965 a s com pared to forty five tho us an d th e p rev iou s ye ar. Id. at 17 . The enorm ous dem and for food, rice, promoted by th ese policies dest abilize d the agricu ltural e conom y upo n w hich C am bod ia depended, plunging Sih an ou k’s g ove rnm en t to wa rd b an kru ptc y. Id. The wa r itself had other consequences: Vietnamese communists intruded into Cam bodian territory seeking refuge, w hile U n it ed St at es fo rce s— m o st ly in th e fo rm o f b om b in g a nd st ra fin g— p urs ue d th em ; almost twenty thousand ethnic Ca mb odians residing in Vietnam beg a n f lo o d ing into Ca m bod ia seeking refuge from the hostilities; United States Special Forces teams made “secret reconn aissa nce a nd m ine-layin g in cu rs io n s i nt o C a m b o di an t er ri to ry ”— a l m o st tw o thousand of these casualty rich missions took place by spring of 1970; United States sponsored intelligence opera tions probed deeply into Cambodian territory; but the most serious we re t he bo m bin g m iss ion s. Id. at 17 -8. “ 1 0 0 ,0 0 0 tons of bombs w ere dropped” on Ca m bod ia by United States forces by 19 69 . Id. at 18. During 1970-1973 , these intrusive activities escala ted: the rice crop contin ued to blee d into Viet nam ; refugees contin ued to stream into Cam bodi a ; s o ld iers continued to seek refuge in Cambodia w ith United States forces in p u r s u it; the frontier between Cambodia and Vietnam broke down; the eventual United States invasi o n of Cambodia exacerbated an already disastrous situation; bombing
  • 44. 180 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 revolution it is not in appropriate to report, in this instance, the independent contributions of United States—inflicted terrorism 284 through invasive bombing. United States sources were aware of the devastating affect these actions were having on the people of Cambodia. It is unlikely that informed officials underestimated the 285 fearful carnage; what is more evident is their inability, or unw illingness, to acknowledge the political im plication s of this 286 carnage. patterns increased so that “540,000 tons were dropped in the last six months” of the bombing in 19 73 . Id. at 19. The high-end estimate approximates a death toll of six hundred thousand peop le from the se b om bin gs; t en pe rce nt o f th e C am bo dia n p op ula tio n. G LOVER, s u pra note 3, at 301. A low-end estimate approximates one hundred fifty thousand dead civilians from United St at es b om bin g b etw een 19 69 an d 1 97 3. K IERNAN , supra note 276, a t 24. However m an y p eop le a ctu all y d ied , the res ult s w ere cat as tro ph ic to the Ca m bo dia ns . Id. at 19 . 284. K IERNAN , supra note 276, at 21 . Kiernan quotes a M arch 1973 U PI report: “Refugees swarming into the capital from target areas report dozens of villages . . . have been destroyed and as m uch a s ha lf their popu lation killed or m aim ed in the curren t bom bing raids.” Id. Kiernan quotes another commentator, William Shawcross, as lab eling th e resu lt “wh olesa le car na ge.” Id. Ki ern an als o q uo tes Ch hit Do , a C PK lea de r w ho lat er fl ed the cou ntr y, a s saying [t]he ordinary people . . . sometimes literally sh it in the ir pants when the big bom bs a nd s hells ca m e. . . . Their m inds ju st froze up a nd th ey w ould wander around m ute for three or four days. Terrified and half-crazy, the peop le were ready to believe what they wer e to ld. T hat was what made it so easy for the Khmer Rouge to win the people over. . . . It was because of their dissatisfaction with the bombing that they kept cooperating w ith the Khm er Rouge, joining with the Khm er Rouge, sending their children o ff to go wit h th em . Id. at 23. 285. Id. at 24. Keirnan quotes a report to the United States army in July o f 1 973 stating: “[T]he civilian population fears United States air attacks far more than they do Comm unist rocket attacks or s corched-earth tactics.” Id. Perhaps it is useful to be reminded of the official purpose of these bloody raids. “The decision to bomb was taken by Richard Nixon and Hen ry Kissinger, and w as originally justified on th e ground s that they were targ eting N orth Vietnamese bases s e t u p inside C am bodia.” G LOVER, supra note 3, at 301. Admittedly, the United States did not pla n to terrorize or slaughter whole segments of the Cambodian population. On the other ha nd , the U nit ed St at es w as no t w ith ou t in tel lige nce ap pa rat us . See K IERNAN , supra note 276, at 24. Kiernan cites a United States Department of Defense Intelligence Information Report detailing the extent of one raid’s impact on a civilian village and warning that “the Com mun ists intend to use this incident for propaga nda p urposes .” Id. Kiernan cites another United States in telligence source as re porting, “aerial bom bardm ents against the villagers have caused civilian loss on a large scale” and then warning that peasant survivors “w ere turning to th e CP K for sup port.” Id. at 2 0. 286. K IERNAN , supra note 276, at 24-25. Kiernan quotes Kissinger as pondering, as late as 1974, whether the Cambodian insurgency—the general Khmer Rouge—was regional a nd factionalized with a veneer of centralized control or whether real power now lay with the Pol Pot center. Id. at 25. The irony, or as Kiernan labels it, the tragedy, is that until 1972 regionalization and factionalization did characteriz e Cam bodian comm unist forces; United States policies pursued by Kissinger and Nixon “were largely responsible” fo r the shift of power from thi s d isp ers ion to P ol P ot. Id. For Kiernan, “[t]he popular outrage over the United States bombing, predictably manipulated by the CPK,” lay at the heart of Pol Pot’s ability to sei ze c on tro l of C am bo dia . Id.
  • 45. Spring, 2003] TERRO RISM 181 Regardless of how successfully denial functioned for United 287 States governm ent officials, in Cam bodia an organization that in 1969 had only four thou sand m em bers w as able, by 197 5, to supercede competing forces and seize control of the Cambodian 288 governm ent. The relentless terror inflicted by that government might not be think able had it not been realized. Its terroristic strategies, like those of th e Fren ch, the Ru ssia ns, and the Chinese, arose from seem ingly bene ficial seeds. Arend t identified the seeds in Fra nce 289 with the extreme w retchedness of the people’s condition. The Russians thou ght of their seeds as Marxist, and eventually as Marxist-L enin ist, and, of course, they thoug ht of Marxist-Leninism 290 as serving the best interests of the people. The Chinese, too, 291 understood them selves as rooted in this soil. As early as 1976, Democratic Kampuchea proudly announced itself ahead of “other Asian com munist states, having ‘leaped’ from feudalism to a 292 socialist society straigh t aw ay.” Unthinkably horrific as the Pol Pot regime’s actions might have been, they were born out of the 293 same h ope for a better world as these other revolutions. 287. G LOVER, supra note 3, at 301, reports Roger Morris, a member of Kissinger’s staff, as saying: Though they spoke of terrible hum an suffering reality was sealed off by their tri te , life les s v erna cu la r: ‘ca pa bi lit ies ’, ‘ob jec tiv es ’, ‘ou r ch ip s’, ‘giv ea w ay ’. It was a ma tter too of culture and style. They spoke with the cool, deliberate detachment of men who believe the banishment of feeling renders them wise an d, more im portant, credible to oth er m en . . . . They neither understood the foreign policy they we re dealing w ith, nor were deep ly moved by the bloodshed and suffering they admi n istered to the ir ste reo typ es. Id. Kiernan quotes Kissinger as saying long after the even ts: “W e des tabiliz ed C am bod ia the w a y the B ritish d esta bilized Pola nd in 193 9. . . . It was H ano i— anim ated by an ins a t ia b le drive to dom inate Indo china — that organ ized th e Kh m er R ouge long b efore a ny A m erican bom bs fell on Ca mb odian so il.” K EIRNAN , supra note 276, at 24. 288. G LOVER , supra note 3 , at 30 0-01 . “Altho ugh it w as ind igenou s, Pol P ot’s revolu tion wou ld not have won power without United States economic and military destab ilization of Ca m bod ia . . . [which] pea ked in 19 69-19 73 w ith the c a rp et b om bi ng of C am bo di a’s countryside. . . . This was probably the m ost impor ta nt s ing le fa cto r in Po l Po t’s ri se.” K IERNAN , supra no te 2 76 , at 1 6. 289. See supra note 67. 290. See supra notes 16 0-164 and a ccomp anying text. 291. See supra note 241. 292. K IERNAN , supra note 276, at 25-26. 293. A RENDT, O N R EVOLUTION , supra no te 1 7, a t 11 1. Neces sity and violen ce, violence justified and glorified b ecau se it acts in the cause of necessity, necessity no longer either rebelled against in a supreme effort of liberation or accepted in pious resignation, but, on the contrary, faithfully worsh ipped a s the great a ll-coercing force which . . . in th e w ord s of Ro us sea u, w ill “f orc e m en to b e fre e.” Id. N or m a n C ohn, in la ter ed itions o f The Pursuit of the Millennium , claimed that Co m m un ism an d N az ism ha d b een ins pir ed by arc ha ic fa nta sie s.
  • 46. 182 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 For me, the process of bringing change, or more accurately, of attempting to bring change-through-terror, to popula tions in revolution ary contexts is part of the fascination of this study. What I want to know is how and w hy, in the name of serving the people, so many of the intended beneficiaries are deliberately slaughtered 294 or carelessly subjected to terrifyin g life threatening treatme nts. Why is it that killing and fear became the strategies of choice for achieving social ch ang e? Earlier in the article, obse rving revolu tionary leaders attempting to change societies by requiring people to conduct th em selves in accordance w ith ordained ideas, I said that the problem of dramatic social reconstruction may appear 295 solvable at the level of ideas. At the ideation level of abstraction, it ma y seem that the population needs re-education; it may be A s with the chiliastic movem ents of centuries long past, mo dern revolutionaries have . . . claimed to be ch arged with the unique m ission of bringing history to its preordained consum m ation . . . ‘a rest lessly dyna m ic and utterly ruthless group which, obses sed b y the a poca lyptic phantasy and filled with the conviction of its o w n i n fallibility, set itself infinitely above the rest of hum anity and recognised no claims save that of it s ow n s up po sed m iss ion .’ C ONQUEST , supra no te 1 , at 7 5. The ir guilt ‘is not mitigated by the fact tha t they believed their aim to be a good one; they must be judged ultimately by reference to the cause to w hich they d edica ted th em selves . . . the lie that b etray s him is a lie in the soul; that the causes men dedicate them selves to . . . reveal the kind of p erso n t ha t th ey rea lly ar e.’ Id. at 132 (quoting Jo hn Sp arr ow ). 294. Arendt says “[al]l rulership has its original and its most legitimate source in man’s wish to emancipate himself from life’s necessity, and men achieved such liberation by means of violence, by forcing others to be ar t he bu rde n o f life for t he m . Th is w as the cor e of sla ver y.” A RENDT, O N R EVOLUTION , supra note 17 , at 110. It m akes so me sense for m e to quote th is statement by Arendt here in the preliminary comm ents to an investigation into the Pol Pot re gim e since, in the end, I conclude that what occurred in Cambodia during his government was a particularly terroristic form of enslavement. However, I am not convi n ced of the inevita ble accuracy of this Arendt observation. What I am convinced of is the appropriateness, in this context, of its introduction. Another idea worth pondering during the remainder of the paper is set forth in C ONQUEST , supra note 1, at 23 3, where Conquest qu otes Douglas North, Nobel Prize winner in economics, as saying, “[t]he price you pay for precision is inability to deal with real-world questions.” This idea is appropriately introduced because my (our) desire for accurate responses to the disturbing questions of our times may m ove us to seek precision when what would be more useful is an increased ability t o “dea l with real- world q uestions.” Id. 295. P IPES, supra note 158, at 24-25, claims that these ideas were conceived during the Enlightenm ent, incubated by the “patriotic” clubs of France in the mid 1700s, quickened by Marx, then infused, by generations of “intelligentsia” acting as professional revolutionaries, into po litic al e ven ts i n E uro pe , As ia a nd els ew he re. See also H EGEL: T EXTS AND C OMMENTARY 62 ( W a lt er K aufmann trans. & ed., Univ. of Notre Dam e Press 1977) (1807) [hereinafter H EGEL] (“Regarding historical truths . . . insofar as their purely historical aspect is considered . . . they concern particular existence and the accidental and arbitrary side, the features that are n ot nece ssar y.”).
  • 47. Spring, 2003] TERRO RISM 183 believed that the strength of the new will emerge in and from a 296 process of purification. Revolutiona ry faith posits that beliefs can be changed when the 297 supportive network of institutions and ideas is radically modified; 298 this is an aspiration widely shared by m any social reformers. No one was more committed to the realization of this idealization than 299 Pol Pot and his cadre. The regime initiated the change by 300 emptying, literally emptying, the capital city. Other cities we re 296. See G LOVER, supra no te 3 , at 3 06 on the sit ua tio n in Ca m bo dia : There was a lot of talk of ‘purification,’ with political ‘enemies’ being likene d to ca uses of disea se. On e repo rt, proba bly by Pol Pot, said: ‘[T]here is a sick ness inside the P arty . . . W e can not loca te it pre cisely. The illness must emer ge to be examined . . . we search for the microbes wit hout success. They are buried. As our socialist revolution advances, howe ver, seeping m ore strongly into eve ry corner of th e P art y, th e a rm y an d a m on g th e p eop le, w e ca n lo cat e th e u gly m icro be s.’ 297. See supra no tes 15 6 & 15 7 a nd acc om pa ny ing tex t. 298. P IPES, supra no te 1 58 , at 21 -25 . See supra note 15 8-160 and a ccomp anying text, (stating that the intelligents ia fed on m aterialistic beliefs that conceive of human beings almost entirely as creatures of changeable environmen ts, and und ersta ndin g peo ple in th is way produces social engineering based strategies). Adheren ts reason that as e nvironm ents chan ge, the h um ans wh o exp erience them will als o cha nge; pe rfect env ironm ents w ill create perfect, or close to perfe ct, hum an b eings ; while im perfect , defective enviro nm ents in evitab ly create imperfect , d efect ive pe op le. P IPES, supra note 158, at 21-25. Hence, to them, human mise ry is a corre ctab le cond ition th at can be, ind eed needs to be, addressed at the level of social sys tem s. Id. Create the right social system , populate it, enforce its structu r e s , a nd pe op le w ill b e ex tra cte d fr om wr etc he dn ess . Id. Gl ove r te lls u s a bo ut t he Ca m bo dia ns , A s with the so cial exp erim ents of Sta lin an d M ao, the case fo r all this was a consequentialist one. It was thought acceptable to destroy things people valued, such as family, religion and the traditional culture. It was thought justifiable to kill so m a n y and to put such pressure on those left alive. T he b elief wa s tha t thes e thin gs w ould fu rther th e R e v o lu tion, which in tu rn wou ld produce a state ‘overflowing w ith ha rm on y a nd ha pp ine ss .’ G LOVER, supra note 3, at 305. Such social experimentation had not p reviously been performable: This century ha s in fact been th e first in which th e groups taking over countries had the power to use state machinery to impose doctrin ally produced errors on the whole of society. . . . [I]t finally b ecam e techn ically poss ible to control an en tire society and ev entually to pe rvade it fully with the regime’s propagandas and its terrors. C ONQUEST , supra no te 1 , at 8 1. 299. Pol Pot and his cadre form ed a closed caste of profession al revolutionaries ve ry mu ch akin in spirit to the “People’s Will,” the early Russian organization dedicated to political terror; b ot h g ro up s in th e n am e of the people were capable of ignoring the beliefs or the needs of th e p eop le. See supra no te 1 66 an d a cco m pa ny ing tex t. The Party’s Four-Year Plan said , ‘technolog y is not the decisive factor; the determining factors of a revolution are politics, revolutionary people, and revolutionary methods .’ Pol Pot himself said, ‘Formerly to be a pilot required a high school education- twelve to fourteen years. N ow ad ay s, it ’s clea r th at po litic al c on scio us ne ss is th e d ecis ive fac tor .’ G LOVER, supra note 3, at 304. 300. Re cal l ea rlie r in the pa pe r w he n I s aid : B ecause the overall theme of my research is an investigation into
  • 48. 184 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 301 also evacuated. These evacu ations, while publicized as the terrorism th at grows out of this revolu tionary tradition, I hop ed to draw conn ections throu gh th e ferven t wish for libera tion; if I insis t on th is image, like a bulimic, we would experience liberation through the process of purge. And . . . when w e purge, we rid ourselves of more and more of the facts and artifacts of hum an life. W h e n w e f i na lly move . . . to Pol Po t’s regime in Cam bodia, we will find that pu rging an entire city of its population and purging, that is exterm inatin g, an en tire qu arter o f a na tio n’s p eop le is bo th p oss ibl e a nd no t en ou gh . Sup ra text accom panyin g note 231 . The p urging bega n, as a pub lic event , in Cam bodia w ith the po licy of e va cua tin g th e u rba n a rea s. K IERNAN , supra note 276, at 33-64. Kiernan describes in detail the communications confusions associated with this policy, “[t]ransm ission of the evacu at ion ord er t ook tim e, a nd it re ach ed diff ere nt Z on e u nit s in diff ere nt v ers ion s.” Id. at 33. However, the confusion in military directives only exacerbated the burdens of the confused denizens of Phnom Penh who, for the m ost part, on sh ort notice were crudely ordered to lea ve. Id. at 38. As one observer reports, people were told: “The inhabitants who put up resistance or refuse to take to the road will be liquidated, as enemies of the people.” Id. Kiernan not only describes the confusion at the level of military command, he ably gives eye- witness accounts to reveal the acc om pa ny ing cha os. Id. at 3 9-4 7. To quote a sm all sampling, Pin g Lin g, an ethnic C hinese en gineer, left his . . . home . . . ‘with bullets whooshing past from everywhere.’ A large group of Khm er Rouge stopped him and his companions and began searching their belongings. Then another group approached and yelled, ‘let them move on!’ Ping Ling comm ents: ‘Those surrounding us stared at this second group wit h defiance in their eyes. . . . It seem s there is restraine d violence between these two groups. It seems the second group [was] keen on our leaving the city fas t.’ La ter tha t da y, in the city’s northern suburbs ‘we came across another g ro up of K hm e r R ou ge th is tim e we ari ng kh ak i un ifor m .… W e were told b y them to return back to the city.’ Unsure [of] what to do, L i n g a n d his com panion s waited , ‘trying to catch ou r breath.’ But soon afterwards, ‘out o f n o w here a loud-speaker blared out at us, ordering ev eryo ne to m ov e o n, f oll ow ed by m ac hine gu n fi rin g.’ Id. at 4 2. A no the r ey e-w itn ess de scr ibe s, ‘a lot of confused people on the tops of build ings and in the street, not knowing wh ere to g o.’ Four or fiv e sold iers w ere firing shots, ordering them alo ng , cal ling eve ryo ne ou t in to t he str eet . Enormous crowds filled the roadw ays, swa ying en m asse un der the pressure. At one p oint, Khm er Rouge fired an M-79 grenade int o t h e c ro w d . . . . T h e c ro w d panicked, and people ran in all directions. Id. at 4 4. Y et a no the r ob ser ver rec ou nts : [p]atients driven out of the hospitals we r e pushed in their hospital beds by relatives, who ‘struggled with the beds, like ants with a beetle,’ some ‘with plasm a and drip bum ping alongs ide.’ Limbless L on N ol soldiers [from the prior regime] hobbled and crawled with the crowd. ‘I shall never forget one cripple w ho had neither hands nor feet, writhing along the ground like a severed w orm , or a weeping father carrying his ten- year-old daughter wrapped in a sh eet tied round his neck like a sling, or the m an w ith his foot dangling at the end of a leg to which it was attached by no thi ng bu t sk in.’ Id. Kiernan gives us more information about the immediate follow-up to the evacuation. H e interviewed at least one hund red peop le involved. They w ere able to describe the e xperience of thirty-six different groups of evacuees: “t h e th irty-six groups set out from the city and walked west, south and ea st into the coun tryside for various lengths of time ranging from several days to s ix weeks .” Id. at 48 . Kierna n rep orts th at the dea th toll from this sin gle event, the evacuation of a city of approxima tely 2 million inha bitants, wa s nearly tw enty tho us an d. Id. at 49.
  • 49. Spring, 2003] TERRO RISM 185 302 temporary, were intended as perm ane nt. They were part of an eight-point program. The eight points were: 1) evacuate the people from all towns; 2) abolish all markets; 3) abolish the Lon Nol regime’s currency and withhold replacement currencies; 4) defrock Buddh ist monks and pu t them to work growing rice; 5) execute the Lon Nol leadership; 6) establish cooperatives in the cou ntrysid e with mandated communal eating; 7) expel the Vietnamese; and 8) 303 dispatch troops to the Vietnamese borders. Additionally, the plan was to condense the development of the nation’s industry and agriculture into a ten to fifteen year period and to use this period to create a genuine so cialist society by screening, that is killing, 304 anyone unable to achieve the requisite level of purity. In the first year of the regime, China emerged as the 305 “paramount external power in C am bodia.” Cambodia, previously the refuge for people seeking shelter from the violen ce of Vietnam, 306 began leaking refugees into surrou nding countries. Returnees, mostly intellectuals, were treated to twenty-day political education courses designed to introduce them to the regime’s beliefs about 307 themselves and the outside world. They, however, like so many of their fellow citizens, ended up as indentured agrarian serva nts, 308 and, most likely, the victims of genocidal terror. In accordance 309 with the eight-point program money w as abolished. The idea was 301. K IERNAN , supra note 276, at 39-49. 302. Id. at 53, 58. “The evacuation was . . . a sea change in Cambodia’s political demograp hy, facilitating both ethnic cleansing and the acquisition of totalitarian po we r. . . . [W]ithout towns . . . citizens becam e far more ea sy to control.” Id. at 64. Kiernan quotes a CP K pu blication: “We evacuate d the peo ple from the cities which is ou r class struggle.” Id. 303. K IERNAN , supra note 276, at 55. Wiping out money and markets was designed to wipe out all priva te pro perty , while defrocking the monks was a step toward wiping out religion. Id. at 57. The problem of Vietnam was never solved. In fact, it was Vietnam that even tually fac ilita ted the cou p d ’eta t th at top ple d P ol P ot fr om po we r. Id. at 441-55. 304. Id. at 56. “The Khmer Rouge’s ultimate concern was the purity of the society.” G LOVER, supra note 3, at 303. As announced in its Four- Year P lan, the objective w as, in part, to “[c]ontinue the struggle to abolish, uproot, and disperse the cultura l, literary an d artis tic rem nants of the imperialists, colonialists, and all of the other opp ressor classes .” Id. Glover offers us as a telling slogan the refrain , “[d]ry up the peop le from the enem y.” Id. at 302. 305. K IERNAN , supra note 276, at 134. Pol Pot was in sp ir ed by th e C h in es e R e vo lu tio n. H e is re po rte d b y G lov er a s s ay ing , Comrade Mao[’s] works and the experience of the Chinese revolution played an important role . . . particularly under the guidance of Comrade Mao[’s] works, we h ave found a roa d conform ing with the concrete conditions and social conditions of our cou ntry . . . we h ave cre atively and successfully ap plied M ao[’s] thought. G LOVER, supra note 3, at 30 4. Glover reports that Pol Pot visited China during the Cultural Re vol uti on an d fo llow ing the cap tur e of Ph no m Pe nh . Id. 306. K IERNAN , supra note 2 76, at 142 (describ ing the exod us to T haila nd). 307. Id. at 147-56. 308. Id. at 156. 309. Id. at 147.
  • 50. 186 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 310 for everyon e to transform him self/herse lf into a peasant. Indefinitely indentured to China’s economy, Democratic Kampuchea relied on tu rning its popula tion into an unpaid, underfed, 311 overworked labor force to survive. It resulted in depriving Cambo dian peasants of the three most cherished features of their 312 lifestyle: their land, their families, and their religion. Life in the countryside was marked by extremely demanding daily production targets, barely adequate rations, the establishment of commu nal eating, repeated deportations and massive popu lation movem ents, dwindling medical supplies, the ongoing terror of executions, trends toward increa sing h arshness, and the emergence o f the brutality 313 which was to become the hallmark of the regime. 310. Id. at 149 n.238. Kiernan reports Michael Vickery’s interpretation: “I t w a s . . . a com plete pea san t revolu tion. . . . [N]ation alism , popu lism and pea san tism really won out over co m m un is m . . . . [It was] a victorious peasant revolution, perhaps the first real one in m odern tim es.” Id. at 164. Kiernan further quotes Vickery as claiming that the DK w as “pulled along” by “the p e a s a n t eleme nt.” Id. Echoing Arendt’s explanation of Robespierre's role in the French R e v ol ut io n , a c co rd in g to K ie rn a n , V i ck e ry ’s th e si s i s t h at th e C en t er , t h at is th e C P K, Pol P ot’s politica l party , was itself com prised of middle-class in te lle ct ua ls wit h s uch a ro m an tic, id ea liz ed sy m pathy for the p oor tha t they did not ima gine rapid, radica l restructuring of society in their favour would lead to such intolerable violence. . . . [T]hey did not foresee, let alone plan, the unsav ory developm ents of 1975 -79. They w ere p et ty bo urg eo is ra dica ls ov erco m e b y p ea sa nt is t ro m an ticis m . Id. at 165 . Kiernan d isagrees w ith Vickery. He proposes an altern ative e xplan ation wh erein Pol Pot and his closest associates directed affairs, or rather, misdirected affairs so that in the end, “DK mismanagement had simply been so serious tha t no t ev en pe as an ts c ou ld s urv ive .” Id. at 165 -66. O n the other h and , Kiern an d oes n ot discla im that early on the regime enjoyed widespread peasant su pp ort . Id. at 1 67 . For these supporters, “in 1975-76,” Kiernan reports, “ n ationalism was p ervasive, victory swee t, hope m illennial.” Id. at 213. Wh at he g o e s on to say, howe ver, is that by 1977, “the DK system was so tightly organized and controlled that little spontaneo us pea sant activity w as poss ible.” Id. at 212. 311. Id. at 163. “ E conomically, the country had become one, ‘gigantic workshop’ of indentured agrarian lab or.” Id. at 164. Reflecting Arendt’s work on totalitarianism, Kiernan reports that initially, in the process of turning Cambodians into unpaid indentured workers, each individual in the massive labor gangs was assigned a nd individualized daily production target as th e “CP K atom ized its citizens to ass ure m axim um social control.” Id. at 167. 312. Id. at 1 67 . [E]merging kinship structures were a departure from traditional peasant society, which had ‘no larger organized kin groups beyond the fam ily or ho us eh old .’ The deliberate social classificat ion res em ble d a cen su s, a process characteristic of modernity, not of peasant comm unity. Multilayered, carefully calibrate d , r ig id ly in s ti tu t io n al iz e d, t h e n e w D K caste system ha d as little to do with peasant class politics as the new cen tra lize d la bo r m an ag em en t sy ste m ha d to do wi th p ea sa nt f arm ing . Id. at 18 6; see also id. at 215 (“Along with massacres that threatened peasant life itself, it was the CP K’s att ack on the fam ily t ha t al ien at ed pe as an t su pp ort ers .”). 313. Id. at 173-80; conditions in the Southwest Zone are discussed at 16 8-2 04 . For exam ple, T w o hundred fam ilies walked sixty kilom eters on a ca n of rice (250 g ra m s) per pers on. So m e died on th e trek . The re st arriv ed a t their destination to be told that there were no trucks to take them on, and they wou ld all have to go b ack! M ore died. Back in Bati they found crowds of
  • 51. Spring, 2003] TERRO RISM 187 314 Conditions deteriorated. While in some areas the starvation 315 of 1976 eased, it was replaced by large-scale killings. In other 316 areas, hunger and starvation remained a fact of life. The loss of children was often added to unthinkably burdensome work 317 requ irem ents and obligatory commu nal eating. The CPK new people ‘from all over Region 33.’ There was no f o od for them, and m an y m ore die d w ait ing a w eek in t he rai n. . . . Id. at 179. We w orked incessantly. . . . It all depended on them. There was no rest time. . . . They said they were going to raise the living standards of the poor, so t he y w on . But wh en they took over they collectivized everything: cattle, buffalo, plates, everything . . . they put it all in one place. You could only eat w hat y ou were given. . . . And, anyone suspected of not being happy with them, they killed. Id. at 1 85 . [T]he C P K h ad ‘e xe cu te d m or e p eo p le in 197 5 than in 1976 .’ How ever, ‘death from disease and malnutrition—most likely in combination—was greater in 1976 than in 1975.’ A DK official . . . [later] reported that by August ‘the whole of w estern Cambodia, as well as the southwest region, was sufferin g from fam ine, an d the re wa s wid espre ad s tarva tion in Ka m po t.’ W ors e w as to c om e. Id. at 19 3. Id. at 205-09 (describing con dit ion s in the Ea ste rn Z on e). Id. at 216-20, 224-26, 232- 36 (de scr ibi ng the N ort hw est Zo ne ). Fo r ex am ple , [I]n 19 76 m any peop le in [the] . . . area died of disease, though there was no starvation. . . . How ever, food ran out before the harvest, and famine struck late in the year. Four hundred of the eleven hundred people in the village died in Novem ber and Decem ber 1976. . . . The population of one cooperative in Preah Net Preah district fell from 5,017 to only 2,982 in Nove mb er. . . . O ne rea so n fo r th e 1 97 6 s ta rva tio n w as th e ce nt er’s de m an d fo r ric e fo r its ow n s ta ff an d fo r ex po rt to Ch ina . Id. at 2 35 . “All the intellectuals working with the Region 5 committee were to be killed, San says. ‘Most of us were killed in ea rly 1976 .’” Id. at 232. 314. Id. at 2 37 (“[L ]ife w as tou gh er a nd tigh ter tha n b efo re. W e worke d day a nd night. Rations fell.”). “By the end of 1977, of the Region 5 chalat workforce of fifteen thousand, fewer than seven thousand rema ined. W om en no longe r men struated .” Id. at 239. Kiernan reports, reiterating t he A re nd t t ot alit ar ia n t he m e: “ ‘H ap py’ collective w ork . . . cam e to an end in 1977: individual da ily harvesting targ e ts n ow had to be completed in order to receive food. The practices of collective cooking and reduced collective work were only supe rficially inconsistent. B oth gave th e autho rities greater control over the p opulation.” Id. at 24 3. 315. Id. at 1 88 . Fo r ex am ple , The new s ubdistr ict ch ief . . . h at ed an d s ta rve d th e n ew pe op le. . . . According to Uch, 70 percent of the population o f K o h Touc subd istrict perished. . . . [The] Ko h Tou c subdistri ct became home to one thousand new people in 1975, all of whom perished in Democratic Kampuchea. Id. at 195-96. And, “in 1977-1978, the rate of killings more than doubled .” Id. at 2 04 . “[T]he num ber of killings increased. San reports that the Southwest executed the local cadres, then killed their wives and children; they said th is practice ‘avoids venge ance.’” Id. at 241. Kiernan reports that in the N orthwest, the most seemingly benign of the regime’s regions, “in 1977, the [death] toll probably exceeded one hundred thousand, as massacres escalated to the highest levels eve r.” Id. at 246. 316. Id. at 240 (“B y late 1 977 , a daily c an o f rice wa s sha red a m ong five peop le. Peop le dropped like flies .”). Kiernan cites anoth er eye-witnes s who reports, “in 197 7 food beg an to be taken a way.” Th is appa rently led to “’starvation on a large scale’ in 197 7-78.” Id. at 243. 317. Id. at 18 9. “[I]n early 1977, children aged three and over were taken from their hom es
  • 52. 188 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 318 governm ent, the Center, sought absolu te pow er. Ethnic cleansing 319 was an important attribute of their program. The emphasis on 320 purity became an obsession. The Center began splintering; an to a children’s center. . . . Those aged ten and ove r were sen t to works ites.” Id. at 1 95 . 318. Id. at 245. “[F]rom late 1976 we w ere forbidden to sing,” reports an eye-witness, “[due to] the villagers’ tendency to make subversive readings of the lyrics of CPK songs.” Id. at 247. Ag ain , su pp ort ing Ar en dt’s the m at ic d esc rip tio n o f tot ali ta ria nis m , Ki ern an op ine s: A ng ka r’s o ve rw ee nin g p re se nce se em s to ha ve de nie d s om e peasa nts any experience o f perso nal sp ace or t im e, to wh ich the y could withdraw and con sider their verdict on Democratic Kam puchea. They thus drew no dis tinction betw een th eir ow n priva te an d D em ocratic K am pu ch ea ’s offic ial vie ws . Asked i f t h ey h ad p er so n al ly li ke d th e C P K, s om e pe as an ts h av e re pli ed , “O f cou rse , we ha d to like the m , we had no choice!” . . . A C ham villager describes his e xperience th is w ay : “They could bea t us if they felt like it, even if we ob eyed their law s. There w ere no laws. If they wanted us to w a lk , w e w a lk e d; t o s it , w e sa t ; t o e a t, w e ate. And still they killed us. It was just that if they wanted to kill us, they wo uld take us off and k ill us.” Id. at 250. In C ONQUEST , supra note 1, at 74, the au thor refers to totalitarianism as a system of governance in which, “the state recognize s no lim its to its au thority in an y sph ere, an d in practice extended that authority wherever remotely feasible.” Later on he says: W e see th e s t a te a s a m echa nism for enfor cing th e lega l order. . . . This notion of the state is w holly different from th a t o f t h e tot ali ta ria n. . . . For them the state is the possessor of total power over its subjects, and it is the practical embodiment of the ideological fantasies and intentions of the rulers. Id. at 202. 319. K IERNAN , supra note 276, at 251-309. The racism of the Khmer Rouge is an important thesis in Kiernan’s book. According to his figures, peoples of various non-Khm er ethnicity made up ap proxim ately twenty percent of the Cambodian population at the time the CPK ca m e to po we r. Id. at 251. He estima tes that total population figure to be slightly under eight million pe op le in 19 76 . Id. at 210 . Inferentially, this would yield a n ethnic m inority population of approximately one and one-half million people. Subjected to particularly harsh treatment e ve n b y D K g ov er nm e n t s ta n da rd s , C h am - C am bodian M uslims, Chinese, Vietnam ese, Thais, Laotians, and various tribal minorities experienced death tolls that freq ue ntl y ex cee de d 5 0% . Id. at 2 94 , 30 7. 320. G LOVER, supra note 3, at 306. Glover also compares Cambodian purging to the actions of the F rench , Rus sian , and C hines e revolu tiona ry pred ecess ors. W hile these prior regimes were obsesse d with ferreting out and eliminating traitors, in Cambodia, guilt was presumed. The obsession with purity is apparent in the government’s comparison of people as “rotten fru it:” Frequent em phas is was p laced on th e need for dra stic mea sures to protect the purit y of the Re volution from contam ination by rotte n fruit. O n radio and at meetings the slogans echoed the theme: ‘What is infected must be cut out,’ ‘What is rotten must be remo ved’, and ‘It isn’t enough to cu t d ow n a ba d p la nt , it m us t b e u pr oo te d.’ Id. T uo l S le ng , th e m o st n ot orio us of th e C am b od ia n d ea th ca m ps, w as on e resu lt of this obsession wi th p uri ty a nd pu rific at ion . Id. at 308. Glover says that the ob session w ith enem ies g re w , until it becam e apparent that the struggle against enemies w ould be a permanent fea tur e of life. Id. at 307-308. In Cambodia, he says, this realization was nu rtured and ap pla ud ed . Id. at 308. Camps were established to house the constant flow of enemies; these cam ps w ere pla ces w here th e ene m ies could be tortured, could confess, and could be executed. Id. Glover calls Tuol Sleng, “a place of appalling cruelty,” and we ll ke pt r eco rds . Id. Kiernan also discuss es Tuo l Sleng an d its function w ithi n the Santebal, or Special Branch, calling it the “nerve center o f the purge a ppara tus.” K IERNAN , supra note 276, at 314-16.
  • 53. Spring, 2003] TERRO RISM 189 attempt was made on P ol Po t’s life, thus irritating the already 321 322 insatiate need for control. Arrests increased. Relations with Vietnam and other bordering countries slipped from guarded 323 324 caution, into open aggression. “Gen ocide gathe red spe ed;” in 325 efforts to assert control, whole districts or Zones were evacuated. 321. K IERNAN , supra note 276, at 319-23. “The Part y . . . a d opted ‘a framework of procedures for implementing our revolutionary auth ority’ . . . entitled . . . The A uthority to Smash [people] Inside and Outside the Ranks.” Id. at 320. “The rate of arrests skyrocketed in late 197 6.” Id. at 3 35 . Po l Po t is qu ote d a s s ay ing : “D o n ’t b e a fr a id t o l os e on e or tw o peop le of b ad ba ckg rou nd . . . . Dri vin g ou t th e tr ea che rou s fo rce s w ill b e a gre at vict ory . . . . Everyone m us t be ver ified .” Id. at 336. Kiernan reports that approxima tely sixty five hundred prisoners were “smashed” at Tuol Sleng in 1 97 7, a bo ut f ou r tim es t he 19 76 tot al. Id. at 355-56. B y mid-year 1978 , more than fifty fi v e h u ndre d h ad alr ea dy en ter ed thi s ca m p. Id. at 355 n.121. “[T]roops in the Phn o m P enh area were forbidden to have any contact with the po pu lat ion .” Id. at 353 . At least tw o atte m p ts w ere m ad e to po iso n P ol P ot. See id. at 321, 353. Kiernan reports, as part of his description of massive repre s s io n , a n eye-witness describing the results of a d em onstration: “Th ere were k illings throughout 19 77 . . . . They started arresting and executing peop le, one a fter an other . . . . Peop le were put on trucks and taken a way, night a nd da y. . . . There wa s no prison . People we re just killed.” Id. at 3 42 . 322. Id. at 35 0. 323. Id. at 357-66. “Phnom Penh radio charged that entire ‘generations of Vietnamese’ had ‘devised’ cruel strategies ‘to kill the Cambodian people’ and ‘exterminate’ them. Vietnamese w ere a lte rn at ive ly c al led th e ‘h ist oric e ne m y’ a nd C am bo di a’s ‘he redi ta ry e ne m y.’ Id. at 366. See also id. at 366, 37 3-7 6, 3 86 -92 (de scr ibi ng fur the r re lat ion s w ith Vi etn am ); see id. at 366- 68 (de scr ibi ng rela tio ns wi th T ha ila nd ); see id at 3 68 -69 (de scr ibi ng rela tio ns wi th L ao s). 324. Id. at 353. “[A]s the genocide gathered speed, more and more of the victims, even at the nerve center of the rep res sio n, w ere nonpolitical. . . . Instability persisted even as mistrust spr e a d .” Id. Kiernan reports that purges in the Eastern Zone during 1978 resulted in the massacre of between one hundred and two hun dred fifty thou san d pe ople. “V ickery ca lls [it] ‘by far the m ost violent event o f the entire DK period.’” Id. at 404-405 n.67. 325. Id. at 40 5-16 (discussing con ditions in the E astern Zo ne). Color coded scarves w ere used to identify the dep orte e s , “ n o on e b esid es t he Ea ste rn e va cue es w ore blu e sc arv es. . . . [I]t w a s a ‘sign’ for people to be ‘killed off.’ After a month or two, easterners realized the dea dly significance of the blue sca rves and stopped wearing them .” Id. at 407. “In Sandan district, according to on e account, 19 ,000 out of 2 0,000 d eportees p erished.” Id. a t 4 0 9. “During his eva cuatio n . . . in 1978 , Ngo y Ta ing H eng claims to have witnessed the m urder of mo re than six thousand people, when K hmer R ouge de lib era tel y b lew up thr ee l arg e b oa ts.” Id. at 411. And, “[o]f the seven thousand people on the tra in, t hre e th ou sa nd we re s ele cte d.” Id. F urt he r, “[i]n m id-1 97 8, thr ee t ho us an d P rey Ve ng pe op le ca m e to ou r co op era tive . . . . Two months later they were all executed. . . . [We were informed that] the Eastern Zone peop le were ‘sick’ . . . none could be spared , they would be com pletely ‘cleaned up.’” Id. at 412. Ki ern an als o co ver s tr ea tm en t of t he N ort hw est Zo ne . Id. at 416-23. According to one of the cadre, “the 1 978 killings, th e wo rst he had know n . . . took the lives of ord inary b ase p eople for the first time.” Id. at 419. And, “each evening for a week, these w om en wo uld take twenty to th irt y p ris on ers ou t, k ill th em , and th row their bo dies into pits.” Id. at 418. “Of the ninety thousand peop le in the wh ole of P reah Ne t Prea h dist rict a t th e e n d of 1976, just ove r sixty thousand survived two ye ars later.” Id. at 421. Kiernan covers the treatment of the Southwest Zo ne . Id. at 42 3-3 6 . One villager rep orts, “All Vietna me se and Chine se were rounded up an d wipe d out.” Id. at 4 24 . D K raiding pa rties from the Southw est kidnapped thousa nds of Khm er Krom from their villages inside Vietnam. . . . [c]lassed as ‘depositees’ [they] work[ed ] twelve hou rs per day . The rice they produced was taken away . . . the workers subsisted on gruel . . . starvation wipe d out a hu nd red fam ilie s.
  • 54. 190 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 326 A half million refugees fled the country. Increasingly, the 327 leadership relied on kinship rather than ideological relations. 328 329 Hanoi invaded. Phnom Penh w as again emptied. Retreating 330 DK forces continued to destroy the land and slaughter the 331 population, but the time of this regime had come to an end. The 332 new Peop le’s Repu blic of Kam puche a gradu ally assumed pow er. Ha rold Lasswell once said, “[s]oldiers are the tradesmen of 333 killing, but officers are the managers of violence.” The violence in Cambodia was intense and, in some sense, managed. Yet, for the most part it was neither the violence of war nor the violence of crime 334 mana gem ent. It seems strikingly similar to the violence 335 associated with warlords. IV: C ONCLUSION A. Fruits of the Poisonous Tree “One learns that what one supposed was not what 336 one w as suppose d to suppose .” “Historical study is only fruitful for the fu ture if it follows a powerful life-giving influence, for exam ple Id. at 425-26. “1978 w as the worst year for killings of Cha ms , whom South western ers singled out for execution.” Id. at 42 8. Kier nan quo tes a n eye -witness as saying, “[a]nyone they suspecte d of not being happ y with the m, they k illed.” Id. at 434. 326. Id. at 441-42. Four hundred thousa n d relocated in Vietnam. One hundred thousand relo cat ed in T ha ila nd . Id. at 442. 327. Id. at 437 . “Nearly all pub lic positions are . . . held by the Pol Pot-Ieng Sary group, their wives, or peop le unkno wn to ou tsiders or using aliases.” Id. at 443. 328. Id. at 450. 329. Id. at 451. 330. Id. at 453. 331. Id. at 454. 332. Id. at 455. 333. D YER, supra note 64, at 131. 334. See Fe ldm an , supra note 31, at 484-85 (concluding at least in th e co nt ex t o f te rro ris m , it is not necessary to choose between the war–crime dyad. Instead , he suggests we reexamine and , perha ps, reform ulate the fra m ewo rk w e use for add ressin g intern ation al terro rism .). 335. See Rise of Warlords, T HE C ORNER , at http://www.thecorner.org/hists/china/ w a rlo rd s.h tm # T H E W AR LO RD S (last visited F eb. 15, 200 3) (an online h istory forum ) for a general definition of warlord. “A warlord was a comm ander of a personal army, ruling a territory, an d a ctin g m ore or le ss ind ep en de ntl y. . . . [T]h e w arl ord s ex plo ite d th e p eop le.” Id. In reference to how warlords governed their respective territories: “[F]or the most part they governed with terror. . . . Adm inistration wa s carried out w ith violence and force.” I d . The term ‘wa rlor d’ is ofte n a ss ocia ted wi th C hin a. Id. See also 19 O XFORD E NGLISH D ICTIONARY 913-14 (2d ed . 1989 ) (referring in one of its definitions to the 1916-1928 period of Chinese history ). H o w e v e r, C h in a is not the only referent for the term. The same dictionary begins by quoting an 1856 tract by E me rson “Piracy a nd w ar gave p lace to trade, politics, and letters; the wa r-lord to the law-lord.” Id. at 913. 336. H EGEL, supra note 295, at 96.
  • 55. Spring, 2003] TERRO RISM 191 a new system of culture; only, therefore, if it is guided and domina ted by a higher force, and does not itself 337 guide and dom ina te.” “The sorts of beings we presume ourselves to be define the sorts of orders we may recognize and deem 338 important.” In this project, I took upon m yself an inq uiry into the history of terrorism. During the project, I have learned far more about genocide than I wanted to know. I have learned far more about the current horro rs occurring in the ordinary lives of citizens throughout the w orld than I wanted to know. I have learned more about the stru cture of the m odern political world than I w ante d to know. I have learned far, far more about the role of governm ents in the seemingly endless torture and slaughter of men, women and children than I ever wanted to know. And , I have learned to proceed with ex treme caution when thinking, let alone speaking, about terrorism. I have reached the following conclusions. First, for myself, I have little doubt that the Pol Pot regime attempted to enslave the popu lation. I believe Len in and Stalin also endeavored, in the nam e of Revolution , to enslave the peoples of the Soviet Union. While I doubt that any of the named individuals would hav e un derstood himself as aligned with the awful history of the African slave trade and slave ownership in the Americas, the 339 flavor of those practices infuses the ir conduct. While nothing 337. S TANLEY V . M C D ANIEL , T HE P HILOSOPHY OF N IETZSCHE 224 (196 5). 338. Da vid Ha ll, F ro m : “Modern China and the P ostm odern W est,” in F ROM M ODERNISM TO P OSTMODERNISM 698, 703 (Law rence E . Cah oone ed., 199 6). 339. 15 O XFORD E NGLISH DICTIONARY 6 6 8 (2d ed. 1989) (defining “slavery” as a form of servitude or bondage, as the condition or fact of being entirely subje c te d to or under the domina tion of some power). From the same source, “slave-drive” is defined a s d e m a nding “hard or servile labor.” Id. Also— and this is in part my point— “to dem and an exc essive amount of work from (a perso n).” Id. In the cases of the Russian, Cambodian, and perhaps the Chinese Revolutions, the amount of work d em anded from p eople w as grievous enough to cause the de at h o f sig nifi can t po rtio ns of th e p op ula tio n. See, e.g., supra note 2 24 (r eferring to St ali n’s “ arm y of un pa id la bo rer s”) ; supra notes 259 & 265 and accompanying text referring to the exp loit at ion of th e C hin ese pe as an ts; supra notes 31 1, 313, & 317 (referring to the ‘work to death’ policies of the Pol Pot regime in Cam bodia). Because of the unfortunate history of the United States, my immediate association to slavery is with the concept of the capitalization, in the form of hum an o wn ership , of peop le. This p ers pe ct iv e o bs cu re d fo r m e the fact that this capitalization could appear in various forms. The w i l li n gness to take advantage of people in order to advance a particular social or political theory, when extended to the d egrees noted in these re volutionary settings, connotes an attitude of rightful domination, an attitud e of justifiable e xplo itation in wh ich the hum anity of the e xploite d is sufficien tly discounted by the exp loit er t o ge ne rat e en sla vem en t. I b el ie v e, b e ca u se o f m y o w n coun try ’s history, that I am not only sensitive to the p resence of this cate gory of treatm ent, but profou ndly sad dened by it.
  • 56. 192 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 could hav e been fu rther from my thou ghts w hen I began th is research, what began as a study of terrorism seems to be ending 340 with an em phasis on its relationship to slavery. I understand why that happened. That is, I understand how the strong-armed 341 imposition of ideology y ields reliance on th e tools of enslavement. What I do not yet know well enough to say is whether inspired violence is too closely associated with the compulsion of others to be safely used to liberate rather than to enslave a people. Second, I said that the violence of the regime in Cam bodia seemed similar to the action of warlords. Thus, I find myself raising the wh ole question of the legitimacy of governance techniques, an issue no easier to address then the initial investigation into the use of the term terrorism . In this context, I join C arr in finding m yself unwilling, actua lly un able, to define “state terrorism” out of the equation. Exclusion serves to simplify our concerns. Nevertheless, whatever apparen t me ntal cla rity we a chieve b y reliance on such a simplistic formulation, is illusory. I have become convinced that those who wish to enjoy an honest and informed perspective on terrorism must consider those who hijack airplanes, bomb bu ildings and assassinate leaders along with those who, having gained control of entire popu lations, torture, exploit, enslave and m urder to achieve their ends. We cannot have one rule for those excluded from nation-state arenas and another for those who hold positions of power within these entities and hope to develop sound analysis or 342 wholesome policies for containing terroristic violence. What I was 340. See A RENDT, O N R EVOLUTION , supra note 17, at 110 (identifying as the core of slav ery the desire of som e to liberate them selves by forcing oth ers int o se rvic e). See also P IPES, supra note 158 (stating his belief that the Russian revolutionaries were interested more in gaining domina tion over the peopl e in order to remake them in their own image than in freeing or libera ting th e peo ple to re m ake them selves ). 341. Cass R. S un ste in, Wh y They Ha te Us: The Role of Social Dy nam ics, 25 H ARV. J. L. & P UB. P OL’Y 429, 429 (2002) (“When group polarization is at work, like-minded people, engaged in discussion with one another, move toward extreme positio ns . . . . [P]eop le can m ove in literally d ang erous direction s. . . . They pro duce a cult-lik e atm osph ere.”). 342. Nicholas N . Ki ttri e, A New Look at Political Offenses and Terrorism , in I NTERNATIONAL T ERRORISM IN THE C ONTEMPORARY W ORLD 354, 371 (Marius H. Livingston et al. eds., 19 78). [A]ll concerned s hould see k to overcome the current ideological breach by dealing both with nongo vernmental and governmental violence and ill e ga lity. To bridge the current gap, one will have to dispel the serious concern that while ‘sieges of terror’ are being condemned and re gulated, ‘reigns o f te rro r’ a re le ft fre e o f in te rn at io na l in te rv en tio n. T he ou tco m e must reflect the growing realization that peop le are e ntitled to exp ect all rights enunciated in the Un iversa l Decla ration on H um an R ights a nd in similar documents. Id. See also W . M ich ae l R eis m an , International Legal Responses to Te rro ris m , 22 H OUS. J. I NT’L L. 3, 39 (199 9) (“State-spo nsored terrorism is the m ost noxious an d dan gerous of its species, yet its authors and archite cts eva de a ll deterrence and prospect of punishment if the fiction is that states are not involved and only their agents are deem ed responsible for the
  • 57. Spring, 2003] TERRO RISM 193 taught in law school by Harold Lasswell and Myers MacDougal can be understood in relation to terrorism. Any undertaking not steeped in a deep and abiding respect for human dignity is neither promising nor safe. Th is princip le app lies to the terroristic un dertakin gs o f rev olu tion aries a nd governments alike. Third, for the time bein g I can do no better than to join Malcolm 343 X in the mandate to know history. I think , had I been tau ght to study with care the histories of revolutions, I might not have been so inclined to follow mo dels of such dub ious in tegrity. Instead of romanticizing revolutionary leadership for their successful liberation of oppressed peoples, I might have understood to take heed of th eir failures. Fourth, this abbreviated survey of revolutionaries cum terrorists has left me with an enormous debt to the millions of men, women 344 and children whose lives were sacrificed to ideas. It is a debt imp ossible to settle in ordinary terms. If I have learned nothing else from this study, I have learned the necessity of humility, the dang ers of grandiosity, the sanity of proportionality. I have learned that the wo rld of real politique seems a vain-glorious search for justifica tion in the face of a starved and tormented people. I cannot order anyone to cease and desist from the patterns of condu ct we witnessed in these pages. I can ask every one of us to reach deeper into a sense of sha red existence, shared huma nity, whenever some seemingly irrefutable plan of ours involves terrorism .”). 343. M ALCOLM X, T HE E ND OF W HITE W ORLD S UPREMACY : F OUR S PEECHES BY M ALCOLM X 26 (B en jam in G ood m an ed ., 19 71 ). [O]f all things that . . . [a] man . . . can study, history is the best qualified to reward all research. You have to have a knowledge of history no ma tter w hat you are going to do; anything that you undertake you have to have a know ledge of history in ord er to be succes sful at it. Id. 344. See H en ry J . Ri cha rds on III, Exclud ing Ra ce Strategies From International Legal History: The S elf-Executing T reaty Doctrine And The S outhern A frica Tripartite Ag reem ent, 45 V ILL. L. R EV . 10 91 , 11 32 (20 00 ). D eveloping m ethod ologica l and legal int erpre tive prin ciples to elimina te the scrubbing of information from international legal history about pas t ra cial oppression, oppression done by identifiable decisions and actors to the voiceless, is essential to ‘giving voice to the voiceless’ under inter n a t io n al law. But, in an affirmative sense, the stake of the voiceless i n t h e i nt er na t io n al le g al pr oc es s , g ro w in g ou t of th e ir ow n group histories, must be identified and m ade part of both the jurispruden ce and the interpretation of international law, and thus part of its history, because of the impact that this law has h a d o n them, and be cau se t his im pa ct m ak es t he m pa rt o f th e st ory of it s a uth orit y. Id.
  • 58. 194 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 sacrificing the safety and well-being of so many of our fellow 345 citizens. Finally, because I am a law yer and b ecau se all this study mu st lead us somewhere , we m ust begin to ponder the role of law, the role of the rule of law, in matters terroristic. There is an existing literature suggesting the development of international tribunals as 346 the soundest route; some of this literature suggests support for the international court of criminal ju stice with jurisdiction to h and le 347 charges of terrorism. While not wishing to criticize the suggestion, and with deep respect to Justice Goldstone, my own studies lead me to conclude that we are not yet developed enough as an international 348 com munity to imagine this as a successful endea vor. Recall how earlier in the pa per dispara te definitions of terrorism were 345. See id. at 1133. Each people of color has its own jurisprudence, which has been trampled under the supervening law of a con qu erin g or do m ina tin g gr ou p. . . . This includes their expectations about international or ‘outside’ law as they wou ld . . . understand for it to impact fairly on them and what it would mean in their lives. These legal histories must be incorporated into the acc ep ted sou rce s of int ern at ion al la w. Id. (em pha sis ad ded ). 346. See R ICHARD J. G OLDSTONE , F OR H UMANITY : R EFLECTIONS OF A W AR C RIMES I NVESTIGATOR 12 0-3 8 (2 00 0); see also Ro y S . Le e, An A ssessmen t Of The ICC Statute , 25 F ORDHAM I NT’L L.J . 750 (2 002 ); Ph ilip pe Ki rsc h, The In ternationa l Crim inal Cou rt, 46 M C G ILL L.J. 255 (200 0); but see Le e A . Ca sey , The Case Against The International Criminal Cou rt, 25 FORDHAM I NT’L L.J. 840 (2002) (discussing why the Un ited State s should refuse to end orse a n inte rnatio nal trib una l). 347. See G OLDSTONE, supra no te 3 46 , at 1 34 -35 . The secon d ha lf of the twentieth century has witnessed the proliferation of wars and wa r crimes. Huge areas such as the Great Lakes region of Central Africa have become destabilized, as more than a million peop le have been killed and m any m illions more ha ve been forced to flee their homes with accompanying misery and hardship. In Rwanda there are tens of thousands of homes in w hich the eldest mem ber of the fam ily is a teenager. In Sierra Leone unimaginable atrocities wer e comm itted against innocent women, men, and children whose limbs were am putated with machetes. . . . If this trend is not to continue . . . then the international comm unity will have to ta ke positive step s to arrest it. One effective deterrent w ould be a n internation al crimina l justice s ys te m , sufficien tly empowered to cause would-be war criminals to reconsider their am bit ion s. . . . An overw helm ing num ber of hum an rights protagon ists worldwide . . . believe tha t wh en th e Ro m e Tre aty is ratified by en ough natio ns, a w orka ble and w orthwh ile court will be established. Id. 348. G OUREVITCH , s u p r a note 17 , pas sim , provides disturbing details about the failures of the in te rn at io na l co m m un ity to take effective action in the context of Rwanda. Having detailed the failure of the inte rnatio nal com mu nity to deal effectively with th e problem s it, in part, contributed to, Gourevitch eventually concludes: “The W est m ight later wring its hands over the criminal irresponsibility of its policies, but the nebulosity known as the internationa l comm unity is ultim ately accoun table to nob ody.” Id. at 325.
  • 59. Spring, 2003] TERRO RISM 195 displayed as problem atic with regard to investigating the 349 situation. These same definitional difficulties make law-making 350 among nations imp ractical. Further, recent events regarding 351 352 353 anarchy, genocide, and w arfare mu st be ta ken as warnings against assum ing easy or simple answers to complex international problems. We are not ready yet to a ssum e levels of respon sibility adequa te to the task at hand. Of course, this does not mean we a re excused from action. Incapacity is cause for hu mility, n ot for 349. See su pra notes 19 & 42. 350. See supra no tes 31 & 33 -41 . 351. See generally M ARK B OWDEN , B LACK H AWK D OWN: A S TORY OF M ODERN W AR (200 0). B ow de n’s book details what is called the Battle of the Black Sea, a mission undertaken by American forces to capture two lieutenants of a Somalian w arlord. The Americans ended up pinned down overnight in Mogadishu. The survivors were rescued the next day by a multinational force except for one individual who was held hostage bu t eventually released. That event tha t left eighteen A me ricans dea d and ma ny others w ounde d. It also resulte d in the death of approximately five hundred Somalians, while injuring more than one thousand. A s a result of the battle, an “unprecedented [United Nations] effort to salvage a nation so lost in anarchy and civil wa r that m illions of its people were starv ing ,” w as ab ort ed . Id. at 410. The troops were originally committed to Somalia to end a famine caused not by natural disasters, but b y “cynica l, feu din g w arl ord s d elib era tel y u sin g st arv at ion as a w ea po n.” Id. at 426. Once the famine was under control, efforts at stabilization and nation-build ing were und ertak en w ith lau dab le inten tions. A s Bo wd en rep orts it, “[t]he batt le came at the end of a chain of em inent ly defen sible d ecisions mad e by sensible p eople.” Id. at 427. Bowden reports that the battle of the Black Sea and its resulting pull out of United Nations forces ended “a brief head y period of pos t-Cold W ar innoce n c e , a time wh en Am erica and its allies felt they could sweep venal dictators and vicious tribal violence from the planet . . . Mogadishu has had a profound cautionary influence on U.S. m ilitary policy.” Id. at 410. Bowden says that “[l]ea rn ing w ha t A m erica ’s p o w er can and can’t accom plish is a m ajor challenge,” w ith no ea sy a ns we rs. Id. at 427. 352. G OUREVITCH, supra no te 1 7, a t 95 . Genocide, afte r a ll, is a n e xer cise in c om m un ity b uild ing . A vigorous totalita rian o rder re quire s tha t the p eople be in vested in the lea de r’s scheme, and w hile genocide may be th e most perverse and ambitious means to this end, it is also the m ost com pre he ns ive . . . . The specter of an abs olute m enace tha t requires absolute eradication binds leader and people in herm etic u to pia n e m brace, and th e individual— alway s an an noyan ce to totality— ceases to ex ist. Id. Gourevitch’s development of the idea that the international community is not up to the task of soun dly handling these challenges was alluded to in note 344. Perhaps it is sufficient to add: “[i]f Rwanda’s experience could be said to carry any lessons for the world, it was that endangered people who depen d on the international commun ity for physical protection stand defenseless .” Id. at 3 51 . 353. See G OLDSTONE, supra note 34 6, at 336 . How ever, Justice Goldstone is m ore op tim istic about the future of the international community to bring about positive change. “As the world contracts in consequ ence of m odern techn ology, so the interna tio n al comm unity is able to exert more pressure on rogue g o v e rn m ents to resp ect hum an rights. W hat is requ ired to encourage . . . this . . . trend is the political will of the mo st pow erful nations.” Id. at 135 . “I have no doubt,” he says later on, “that the twenty-first century will witness the growth of an international c ri m in a l j us ti ce s ys te m a n d t h at th e vi ct im s o f w a r c ri m e s w ill no longer be ign ore d.” Id. at 1 38 ; see also Ja ck M . B ea rd, A m erica’s New Wa r On Terror: The Case for Self-Defense Un der International Law, 25 H ARV. J.L. & P UB. P OL’Y 559, 579-82 (2002) (expressing some optimism as regards the ability of the internation al com mu nity to cope w ith the th reat o f terrorism ).
  • 60. 196 J. TRANSNATIONAL LAW & POLICY [Vol. 12:2 neglect. Nevertheless, we cannot expect sound answers to emerge from oversimplified formulas. Perhaps it is my personal inclination as a scholar to study mo re, to know more. Certain ly continuin g to investigate the conditions and episodes of terrorism appeals to me. For now, I am satisfied that turning attention to history rewards with knowledge. That is as sound a place to begin as I kn ow of.