By Ignacio F. Ibáñez Ferrándiz
“The central values of civilization are in danger. (…) The position of the individual and the voluntary group are progressively undermined by extensions of arbitrary power. Even the most precious possession of Western Man, freedom of thought and expression, is threatened by the spread of creeds which, claiming the privilege of tolerance when in the position of a minority, seek only to establish a position of power in which they can suppress and obliterate all views but their own. (…) these developments have been fostered by the growth of a view of history which denies all absolute moral standards and by the growth of theories which question the desirability of the rule of law.”
This quote, an analysis of the fundamental threats to our open societies—the arbitrary use of power by the state, moral relativism, intolerance, constant questioning of the rule of law—can be applied to many time periods. This could even be an accurate diagnose of the current state of world affairs, but it was actually written in 1947 as part of the foundational Statement of Aims of Friedrich Hayek’s Mont Pelerin Society. Its central point remains, though.
Back in 1947, or in 1776, or in 1933, or in 2001, or today, the threat is the same regardless of the enemy: a threat against our freedom and our tolerant and peaceful way of living. Although these are concepts born in Western societies through a historical process with deep Greek, Roman and Judeo-Christian roots, these concepts have become universal values and principles—legally recognized by all 194 Member States of the United Nations.
Following this line of thought, we can clearly identify terrorism as the most obvious threat to the world and particularly to our civilization, as terrorists look to exploit the weaknesses of post-modern societies in order to violently achieve their political goals. Terrorists look for disunity, they play with our own values and principles—freedom, democracy, equality, rule of law—and use them against us. Terrorists ask our societies uncomfortable questions—“Should all creeds be respected? Should we prioritize national security over human rights considerations? Should we confront the threat abroad or at home?”—as they know many have forgotten or purposely ignore the values and principles that would help us give straight answers. Thus, social disunity. Thus, the wreckage of liberal democracies.
Contrario sensu, as we have experienced, for instance, in Spain and Colombia, under the administrations of President Aznar and President Uribe respectively, only when an overwhelming majority of society—government, political parties, civil society, citizens—is united over a certain set of ideas of which liberty is the driving force, victory against terrorism is within reach. Who can forget the turning point that the killing of Miguel Ángel Blanco represented in the fight against ETA? Who can forget February 4, 2008, when Colombia’s civil society showed its strength against FARC by gathering more than 13 million people in different rallies throughout the world?
Therefore, in order to defeat this threat, as other ideological threats to liberal democracy were historically defeated—absolutism, totalitarianism—the main battlefield ought to be the battle of ideas. For only if an overwhelming majority of individuals in our societies recognize the paramount importance that our foundational liberal principles and values have to address modern crossroads, only if they truly value the lessons that history has brought, only if it is clearly understood that our moral roots are the key to our survival, only then liberty and peace will prevail over terror and death.
The moral and intellectual heritage I have been referring to, and which we need to bring back to our strategic thinking and public discourse to foster unity and defeat terrorism, is shared by Europe and the Americas. Latin America and the Caribbean are part of the Western world, by history, culture, language, law, and religion among many other factors, and have contributed significantly to its development. For example, even if it is not acknowledged by most of the so-called “indigenous movements”, it is thanks to democratic-liberal principles of tolerance and equality before the law, that pre-Columbian traditions, languages and cultures are respected and protected throughout the Hemisphere today.
Latin-American countries have been suffering terrorist attacks since the second half of the XX century, as these acts were often employed by revolutionary guerrillas as a means to destabilize the state—e.g. Montoneros, Sendero Luminoso, Revolutionary Armed Forces of Colombia (FARC by its initials in Spanish), etc. Additionally, the scope of these acts was broadened in the 1990s by terrorist plots with international ramifications—e.g. the 1992 and 1994 bombings in Argentina, which include a key Middle-Eastern connection. However, Latin American countries have often been plagued by the same illnesses as their European and American siblings when confronting terrorism. In one case after another, the ultimate problem lies in the incapacity of certain sectors of society to link this threat to a direct attack against their fundamental rights, and the values and principles that comprise them.
Those who have not been willing to see these connections have often been the same ones questioning the desirability or applicability of the rule of law. By confronting security versus fundamental rights, many have unknowingly or purposely forgotten that since Hobbes and Locke, the social pact between the individual and the state implies that the latter’s first and foremost obligation is to defend the life of the former. In addition, the state must respect and protect two other inalienable rights, liberty and property, with the entire social contract situated within an agreed upon legal framework, the rule of law.
Therefore, securing the life and integrity of individuals cannot be separated from liberty and the rule of law, since, by its very nature, a constitutional framework enacts the social pact and protects the liberties of the individual while restricting the powers of the government.
Now, one may think that this all very well, but can a government actually fight against terrorism in an effective way while fully respecting fundamental rights and liberties? I would like to propose two preliminary conditions that would eventually lead us to a positive answer: establishing or strengthening a comprehensive legal regime against terrorism, and fully cooperating internationally. Both conditions are specific products of liberal and democratic principles, products of our Western tradition—rule of law and the “spontaneous order” idea, respectively.
A comprehensive legal regime against terrorism
The first step to preventing and fighting terrorism is to have appropriate legislation in place. How did the international community react to this increasing need to have strong laws against terrorism? From the 1960s onwards the international community or rather, the “international society”, has been drafting international conventions and protocols that seek to harmonize a universal response to terrorism. As of today, these 18 universal treaties against terrorism are topic-driven treaties, each one of them focusing on specific sets of offenses related to: aviation and maritime security, internationally protected persons, means of attack (bombs, weapons of mass destruction, nuclear terrorism) and preparatory acts (terrorism financing). By ratifying and implementing these treaties into national legislation, countries have been, with uneven results, strengthening their counter-terrorism legislations.
Additionally, since 1999 the UN Security Council has also been “legislating” by issuing binding Security Council resolutions—i.e. adopted under chapter VII of the UN Charter, which deals with threats to international peace and security. Of special importance in regard to counter-terrorism efforts is UNSCR 1373 (September 28, 2001), which directly establishes obligations with regard to the need to legislate against terrorism and its financing, to set up the appropriate institutional and regulatory frameworks to deal with this threat, and to cooperate internationally to effectively prevent and fight against terrorism. The UN General Assembly has also contributed to these efforts by drafting a “Global Counter-Terrorism Strategy” (2006, reviewed in 2008 and again last September).
Regionally, the Member States of the Organization of American States (OAS) have also taken steps in this direction, especially by drafting the Inter-American Convention against Terrorism (2002), and by creating the Inter-American Committee against Terrorism (1999) and its Secretariat (2002).
Finally, it should be pointed out that an international, agreed upon definition of terrorism does not currently exist. The reason behind it is that this is a contentious topic within the international society: what about “freedom fighters”? How can we reconcile international law principles such as self-determination or sovereignty with an over-arching definition of terrorism?
The truth of the matter is that from a legal standpoint a definition of terrorism is not necessary. The 18 international legal instruments against terrorism criminalize more than 50 specific offenses that cover all but a few—e.g. cyber-terrorism—terrorist conducts. Of course this does not mean that an international agreed upon definition of terrorism is not desirable from a political point of view—a sound consensus at the international level would indeed be a strong sign against terrorism. It simply means that all countries can effectively work in partnership with what already is in place, and that inaction based on a lack of a universal definition of terrorism is not acceptable.
To sum up, it seems as though enough legal and institutional tools have been made available by the international society for countries to escape from the dichotomy of security vs. rule of law by appropriately legislating against terrorism.
However, legislating per se is obviously not an automatic answer to the problem. National laws against terrorism can and should find good guidance in the existing international obligations and standards, but they also ought to be tailored to the specific needs of each country. In some cases, the constitution of a country will require amendments to allow the design and implementation of a truly effective framework against terrorism. Limits to these changes are established by the core principles, values and moral beliefs of our liberal democracies, which ensure the respect and protection of our liberties and rights within the rule of law. Only if these ideas are well understood by all will the necessary legal changes be by and large supported and truly effective, as individuals will understand that security and liberty are not opposites but two sides of the same coin.
We therefore need to be “creative” in drafting counter-terrorism laws. While honoring our principles, we need to adapt to the new threats. Creative, efficient, and flexible—but respectful of our liberties—is precisely what countries such as Italy and Colombia have been, for example, with regard to their laws on the extinction of property rights over assets proceeding from criminal or terrorist activities (“ley de extinción de dominio”). Or how Spain, France or the United States have addressed legal concepts such as “the use of circumstantial evidences” (prueba indiciaria), “apologie du terrorisme” and “material support”, respectively. Or how Peru has developed “due process” provisions for terrorism cases.
This brings us to the second possible answer to the question of how we can fight terrorism in an effective way while fully respecting our principles and values: international cooperation. If the legal tools and the obligation to implement them into national legislation are there, as we have seen, why isn’t the system running like clockwork?
A straight response would be that in most countries there is no political will to really do what needs to be done—legislate appropriately and cooperate internationally, as starting points—to effectively fight terrorism. This inaction exists because most societies—thus, their political leaders—have not realized how serious a threat terrorism is for our civilization, for our peaceful coexistence. They have not unveiled the plot and seen how terrorists are using the cracks in the wall of our liberal democracies to dynamite the building. They seldom see how terrorists play with our disunity, how terrorists have correctly concluded that the key to our defeat is our own ignoring or attacking of our moral roots, history, and the liberal and democratic principles and values that are the pillars of our open societies. That is why terrorists have been able to build a somehow successful violent and subtle strategy to defeat us. To defeat freedom, equality, and the rule of law. On the contrary, societies that stand firmly by their foundational liberal and democratic principles are more united and therefore resilient to terrorism.
In many parts of the world, we have clear examples of the unwillingness of certain governments to see the obvious. We are looking at a Magritte painting, the image of a smoking pipe with the text “this is not a pipe” (“ceci n’est pas une pipe”) underneath it. It seems like some politicians try to convince the world that what everybody is seeing is actually not what they are seeing. Otherwise, how can we explain what is happening in regard to terrorist cells and associates (that may even hold public offices) and training camps in certain countries? How can there be shared borders in which everything happens and yet nothing happens at the same time? How can one not publicly state that the present situation in some countries is no longer an organized crime-drug-related problem, but a terrorist conundrum threatening to defeat the state by killing local authorities and massacring innocent civilians?
In other countries the will to defeat terrorism exists. For instance, based on the increased concern that certain countries have in regard to bulk cash smuggling as a means to finance terrorist activities, international cooperation has lately been strengthened to address this issue. In 2009, a joint operation undertaken by several agencies from Colombia, Mexico and the United States resulted in the seizure of more than 41 million US dollars in cash at the ports of Buenaventura and Manzanillo.
If the political will exists international cooperation against crime and terrorism allows for a great deal of creativity and flexibility, which in turn may bring efficiency. A good example of this created efficiency is the third pillar of the European Union, particularly with regard to the European Arrest Warrant, EUROJUST, EUROPOL, joint investigative teams, etc.
In Latin America and the Caribbean there are also interesting initiatives in this arena, such as the CARICOM Arrest Warrant—which is not yet in force—some multi-national border control commissions—such as COMBIFRON, a commission with officials from Colombia and Ecuador, or the initiative announced earlier this year involving Brazil, Colombia and Peru—, intelligence information sharing between certain countries, the use of regional networks of contacts and of secure electronic communication systems, etc.
However, in addition to the existence of political will, the key to success for any of these initiatives hinges on how much states trust each other. If Europe’s modern mechanisms have proven to be a great asset, it is mainly because Member States rely on each other and know that all fundamental rights are respected in the Union. They trust each other and are willing to work together. This amount of trust and will is rarely mirrored in other regions, which brings me back to the underlying issue at stake: principles and values need to be shared—and publicly acknowledged—in order to foster trust and unity of action. Only if states trust each other by recognizing their common ground, only if we are united at the national, regional and international levels, we will defeat terrorism.
When Magritte painted his pipe while denying its own existence, he intended to call us to reflect on images and reality, what is perceived by our senses, what things are really made of, and what they symbolize—an ongoing idea that started with Plato and took a new dimension with Einstein.
If we aspire to strengthen laws and international cooperation against terrorism, to ensure that our way of living is respected and endures, and to defeat these fanatics and all they represent, we need to start by winning the battle of ideas. By strengthening our societies both morally and intellectually we can solidify the pillars of tolerance upon which they were built. By reminding our societies that the ideas of liberty and democracy are at the core of our being, we will ensure unity—the only proven recipe to defeat terrorism. Each one of us, in Europe and in the Americas, has a role in this endeavor.
This article first appeared at GEES and is reprinted with permission: http://www.gees.org/articulos/this_is_not_a_text_terrorism-_unity_and_surrealism_in_the_americas_and_europe_8257
Ignacio F. Ibáñez Ferrándiz currently works at the Organization of the American States (OAS) in Washington, DC. Prior to this position, he worked for the United Nations Office against Drugs and Crime (UNODC) in Vienna, Austria. He has a Bachelor’s Degree in Law and a Master’s Degree in International Relations, specializing in Terrorism and International Law. He has studied at the Universidad Complutense and the Universidad San Pablo-CEU (Madrid, Spain), Sorbonne University (Paris, France) and Cambridge University (Cambridge, United Kingdom). He has published a variety of works and articles about law, terrorism, and political science. The opinions expressed in this article are those of the author.
 Hartwell, R.M.: “A History of the Mont Pelerin Society”, The Freeman, Foundation for Economic Education, July 1996.
 See Carlos Rangel’s “Del buen salvaje al buen revolucionario: mitos y realidades de Latinoamérica” (ed. Gota a Gota, 2008); English version: “Latin Americans: their Love-Hate Relationship with the United States” (ed. Transaction Publishers, 1987) .
 Reference to Hayek’s concept of spontaneous social collaboration to achieve a certain profitable goal (also, Carl Menger and Ludwig Von Mises). I apply it here, mutatis mutandis, to states and their relationships in the international arena as they look for efficient allocation of resources to satisfy needs without a third party dictating a global design.
 All of these legal tools are available at http://www.un.org/terrorism/instruments.shtml. In September 2010, two new treaties—related to aviation security—have been adopted, the Beijing Convention and Protocol (see http://www.state.gov/r/pa/prs/ps/2010/09/147110.htm).
 In regard to the implementation of these treaties, one has to take into consideration the different legal traditions—i.e. monists and dualists—that condition it. As we are dealing with criminal law, penalties and thus legislative action become necessary—nulle poena sine lege.
 Full text: http://www.un.org/terrorism/securitycouncil.shtml
 Full text: http://www.un.org/terrorism/strategy-counter-terrorism.shtml
 Full text: http://www.oas.org/xxxiiga/english/docs_en/docs_items/AGres1840_02.htm
 An Ad Hoc Committee mandated by the United Nations General Assembly has been negotiating a draft Comprehensive Convention on International Terrorism since 2000, based on a proposal by India. The Convention is supposed to include a definition on terrorism and its scope of application. However, these issues are still under discussion, as well as the Convention’s relationship with the international legal instruments against terrorism; the applicability of the Convention to armed forces and national liberation movements; and a paragraph on the preamble on the right to self-determination. The main disagreement is related to article 18 of the draft Convention in regard to the activities of armed forces—should they be exempted from the scope of application of the Convention?—and the activities of military forces of a State during peace time—should there be any circumstances in which these activities could be considered as acts of terrorism? There is, quite obviously, no agreement in sight.
 Colombian Congress – Nueva ley de extinción de dominio para bienes ilícitos (Ley 793 de 27 de diciembre de 2002). Available at: http://www.presidencia.gov.co/prensa_new/leyes/2003/enero/extindomi.htm
 See the references to Spain and Colombia in the introduction of this analysis. As a comparative analysis, it is interesting—or better, sad—to see the differences between the treatment of similar cases by the Aznar and Zapatero administrations, respectively: Miguel Angel Blanco case vs. Spaniards kidnapped in Mauritania case; social unity vs. social disunion; foundational principles and values respected vs. foundational principles and values undermined.
 More information: http://www.jornada.unam.mx/2009/09/29/index.php?section=politica&article=012n2pol
 September 15, 2010, El Tiempo: http://www.eltiempo.com/mundo/latinoamerica/peru-instalara-base-antinarcoticos-en-frontera-con-colombia_7904127-1