We are delighted to welcome this guest post by Anna Marie Brennan. Anna Marie is a PhD Candidate and Tutor at University College Cork. Her doctoral thesis examines how and to what extent transnational armed groups can be held accountable under International Law for armed attacks. She will be a Visiting Scholar at the Lauterpacht Centre for International Law from October to December 2011 and will be a legal intern with the Radovan Karadzic Defence Team at the International Criminal Tribunal for the Former Yugoslavia from April 2012.
The idea that transnational armed groups are a danger to democracy and legitimately constituted governments appears to set attacks by transnational armed groups apart from other behaviour that seriously violates human rights. A transnational armed group can be described as an armed actor which operates beyond the territorial borders of a single state and carries out serious and violent acts intended to cause fear, death, serious bodily injury and property damage to a person, group or general population in order to force a government or international organisation to perform or refrain from performing a particular act. Al-Qaeda is one example of a transnational armed group which has proven itself to be global in outlook having conducted armed attacks in London, New York, Bali and Madrid.
Violent attacks by entities such as transnational armed groups expose the reluctance of such groups to subject their views to the scrutiny of a fair political process. Therefore, attacks by transnational armed groups upon the civilian population replace politics with violence and dialogue with insecurity. It can thus be argued that such attacks should be specially criminalised because they undermine the constitutional structure underlying public institutions which make the existence of human rights possible. However, this view is one-dimensional. It ignores the fact that many transnational armed groups despite their violent methods do have local government support. Indeed, many of these groups would not be able to operate without the support of these so-called democratic institutions. Therefore, the idea that transnational armed groups undermine democratic governance and the political process can be questioned.
In addition, it is contended that there is no inherent legal right of democratic governance under International Law. Saul notes that international rights of participation in public affairs and voting do not establish a right to a democratic system unless a narrow prescribed notion of democracy is accepted. In addition, the customary criteria as reflected in the 1933 Montevideo Convention do not consider democracy as a prerequisite of statehood. Therefore, attacks by transnational armed groups upon the civilian population cannot be recognised as an international crime against democratic values when democracy is not an accepted right under International Law. In contrast, in political and economic unions such as the E.U., member states are free to affirm that violent attacks by transnational armed groups breach established community values and indeed, democracy has emerged as a prerequisite of European Union membership. However, there is considerable disparity between E.U. member states in their different forms of democracy and in conclusion, it is unclear what it means to speak of attacks by transnational armed groups upon the civilian population as a crime against ‘democracy’ as a uniform phenomenon. Clearly, it is imperative to note that perceptions of democracy are disputed in both theory and practice.
In addition, if attacks by transnational armed groups are classified as a crime against democracy it raises the question of whether attacks by transnational armed groups aimed at weakening undemocratic regimes or against regimes that violate human rights are permissible. It is important to note that the terms of some U.N. Resolutions refer to violent acts committed by groups such as transnational armed groups as “destabilising legitimately constituted Governments” indicating that attacks by transnational armed groups against illegitimate governments are not abhorrent. However, there are difficulties concerning what constitutes an illegitimate regime. In 1979, for example, the United Nations General Assembly considered the Khmer Rouge to be the legitimate government of Democratic Kampuchea (what is now Cambodia) despite the fact that the party had been removed from power for a considerable period of time. In any event, relevant U.N. Resolutions have dispelled the complexity surrounding this issue by accepting that “all acts, methods and practices of terrorism in all its forms and manifestations, wherever and by whomever committed” are both criminal and indefensible. In view of this, a distinction can therefore be made between attacks by armed opposition groups against illegitimate regimes such as the armed conflict situation in Libya which are viewed as legitimate and a sporadic act of violence by a transnational armed group against the same regime where there is no armed conflict situation which is regarded as criminal and indefensible. In conclusion, attacks by transnational armed groups against dictatorial and illegitimate regimes or against those who commit human rights violations are abhorrent.
As a result, it is difficult to contend that attacks by transnational armed groups upon the civilian population should be criminalised as a crime against democratic politics given that it must also be considered as criminal against even autocratic regimes. Conversely, there is not as much support for the more explicit concept of violent attacks by transnational armed groups as a threat to democracy, reflecting the range of political systems in the international community. Therefore, it is concluded that holding transnational armed groups accountable under international law on the grounds that they are a threat to democracy is not convincing.