In an original cross reflection, the lawyer Mireille Delmas-Marty and the historian Henry Laurens summon history to the service of law to better understand this moving phenomenon that is terrorism. They spot the past forms to highlight its contemporary specificities.
The starting situation is provided by the difficulty encountered by the lawyers as soon as they come back to incriminate terrorist acts from a criminal point of view, that is to say to make the share of good and evil in the qualification of the act. Law is indeed one of the major actors in the scene on which terrorism is played out, insofar as international standards have been trying since the end of the Second World War to channel the employment of violence since the end of the Second World War. It is this tendency to supervise the exercise of violence that the terrorist event comes into question. We remember the discussion which had brought together in 2001 Derrida and Habermas around the concept of terrorism understood as an event.
Faced with risks, the reaction of states, as Mireille Delmas-Marty points out, consists in multiplying the derogatory measures which begin the regime of ordinary law. It is therefore on this level that international human rights law is developing today, which endeavors to limit exceptionality schemes while trying to limit possible slippages by the possibility entrusted to the courses international justice to control their application. And sometimes controlling the application through international courts. On the other hand, at the international level, states have still failed to ratify international conventions, failing to have been able to agree on a common definition of terrorism. The policies adopted within the various states to fight against terrorist movements that appeared around September 11, often arranged in the category of “ global terrorism “, Contradict the efforts to standardize law and make the adoption of a short -term agreement even more improbable. The definition of terrorism is therefore not a formal question, but well prejudicial to the development of the law itself. History can contribute ?
A history of terrorism
History is usually little summoned to think about terrorism. Reflections produced in recent years are more of sociology, political science, even theology. In their History of terrorismpublished in 2006, Gérard Chaliand and Arnaud Blin endeavored to highlight the ruptures and historical continuities since Antiquity, but without asking the question of an approach difference. Henry Laurens, specialist in the Middle East, whose terrorism is one of the lines of force, therefore undertakes to bring terrorism back in the field of history.
The strength of history lies in the fact that it can seize terrorism as an object of study without risk of being accused, such as law, of granting it a form of recognition. The historian will therefore wonder about the forms that the notion of revolt has, during the different periods. The frame is set, according to Henry Laurens, at XIXe century, by carbonarism, which becomes under its pen a historical category of which it strives to follow metamorphoses. The return to 1793 allows a first distinction between terror and terrorism. Carbonarism and its blanquist avatar are characterized by the disinterested side of their actors and, even more, by the desire to overthrow the political and social order. The Irish movement, born around the middle of XIXe century is found in several countries.
Towards the end of XIXe A century, terrorism is flowing into the evolution of international relations to draw its new targets from it and perfect its means of intervention. The analysis that Bozarslan, already the author of a History of violence in the Middle Eastdevoted to the phenomenon comitadjilik in the Ottoman Empire at the turn of XXe century takes up this questioning on the revolutionary mode of political action and the redefinition of political forms that the practice of direct violence induces. It is in the extension of the analysis of Henry Laurens, who fixes the first manifestation of a contemporary terrorism in the hostage taking made at the Ottoman Bank of Istanbul, on August 26, 1896. See how the model is reclaimed according to the various minorities or the different national spaces, through the “ contamination From one model to another, since it has been trying from Turkey to the Balkans and Armenia after the massacres of 1894-1896.
The article by Barbara Lambauer, devoted to the struggle of Nazi Germany against the “ terrorism »Resistance fighters in USSRin Serbia and France, returns not only to the plasticity of the term, but also to the links between war and terrorism. It shows how what distinguishes the methods used by the Nazis from experiences “ counter-terrorists Previous holds in the level of violence reached by reprisals, like the violence deployed by the German armies against the populations of the occupied countries, but also in the systematic link established by the occupier with the anti-Jewish policy carried out on these three territories.
Towards an international law of terrorism ?
The return to law, through the analyzes of Mireille Delmas-Marty, emphasizes the heterogeneity of the situations that terrorist acts cover, especially when they aim for a particular country. The difficulty comes from the impossibility of implementing an international law of terrorism. If international criminal law and humanitarian law assert themselves as the two best safeguards against the overflows to which the national responses opposed to terrorism give rise, the dilemma is made more urgent by the relative failure of the attempts of regulation implemented since 2005 , as E. Decaux shows.
However, we see here an exceeding of the nation state in the name of compliance with universal standards, as shown by the contribution of S. manacorda on Europe and, more broadly, that of the American professor Mr. Rosenfeld, specialist Comparative constitutional law, which is based on the principle of proportionality or weighting, implemented for example in the United States, Great Britain or Israel. His analyzes show very clearly how the context of terror in which terrorism plays far exceeds the current framework of law, paradoxically leading to the creation of a new law. The lawyer is made here historian of the contemporary to continue his task and develop, in response to a qualification by the law of increasingly precise terrorist acts, of the terms and procedures themselves increasingly specific intended to supervise the setting cause of terrorists.
The new paradigm, which Mr. Rosenfeld calls for that of “ law of war against terror “, Stopping the unconventional nature of the war against terrorism, requires extraordinary measures adopted on this occasion. The lawyer is obvious here. These can no longer be considered temporary but are required to last. This permanence calls for the implementation by the law of an exceptional weighting, capable of taking into account the right of individuals in periods of crisis which are called upon to constitute our daily lives. Also Mr. Rosenfeld replaces the concept of stressful time at the idea of periods of crisis. Repression measures must be subject to exceptional weighting, more attentive to the rights of individuals, shaped, as he says, more for stress times than for periods of crisis.
This also implies that the reserved territories of politics, judiciary and soldiers are redefined, so as to avoid abandoning the hold on the public sphere. Thus we can think, as Mireille Delmas-Marty suggests in conclusion, that criminal law will finally be adapted when the notion of terrorism has given way, in the proceedings committed, to qualifications both more precise and each time historically singular. The universalization of the standard will no longer be on the side of the crime, but the values that we oppose to it. At the end of these legal developments, we come out convinced that the future of the law in matters of terrorism resides more in the capacity of the judge to make himself historian of his own era than in that of the historian to extend the mirror of the past.