A Civil Solution

A Civil Solution

Mini Teaser: Civil suits hold corporations accountable. Why not terrorists?

by Author(s): Jason McCue

We are at war against a new form of terror. 9/11 was significant, not least because it launched Al-Qaeda as a household name but also because it signaled the arrival of neo-terrorism: traditional terrorism packaged for the 21st century, alert and adapted to the circumstances and challenges of the new millennium. Until we take the war to these new battlegrounds, to address terrorism's newfound effectiveness, we will not win the War on Terror.

Technologically, the terrorists have responded inventively to our conventional state-led security responses to the threat they pose.Governments have continued to upgrade their security measures, as well as to concentrate on disrupting terrorist financing (particularly narco-terrorism) and the rogue states and individuals that sponsor them. But conventional state counter-terrorism methods, however necessary, tend to palliate rather than provide a remedy to the disease. We need to consider counter-measures that are neither conventional nor government run.

And prevention can be better than cure. Neo-terrorists such as Al-Qaeda have effectively created an ideological brand that they can franchise to those who are the subject of poverty, ignorance and injustice throughout the world. The neo-terrorist uses the media not just for self-publicity but also as a means of instilling fear (into every TV home), as a recruiting device and as a channel to justify its actions to the public. We have no choice but to wage a public-relations war against the culture that sustains terrorism. That means inverting many of the images that the terrorist seeks to propagate and from which they gain benefit.

A terrorist group's cause is dependent on its being the underdog or the victim--and on its enemies being large oppressive forces: Asymetrical warfare is natural to terrorism. Central to such self-serving justification is the painting of governments--whether British, American, Israeli or Serbian--as enemies of humanity while simultaneously de-humanizing their victims. Terrorist propaganda tends to justify the damage its campaign causes based on the morality of its cause. How often have we heard the terrorists describe their murders as simply "casualties of war"?

Let us consider the possibility that victims, their families and their community of supporters might be a better counter-terrorism delivery mechanism than governments. But how could ordinary citizens take the fight to the terrorists? How could they take the fight to the new public-relations and financial battlegrounds?

The families of the victims of the Omagh bombing in Northern Ireland have found a way. The Real IRA (RIRA) murdered 31 people in cold blood on August 15, 1998. The police ascertained from intelligence who was responsible but they lacked admissible evidence for the criminal law to stop the culprits from continuing to live in the community they had all but destroyed. But the bereaved and injured families, as well as the community in which the terrorists lived, were not content to sit back and do nothing. They commenced a unique civil law suit in 2001, which will come to trial this year. They are suing five individuals and the RIRA as an organization. They seek to rely on the inherent advantages in civil law that enables hearsay evidence to be presented before the civil court, which generally has a burden of proof more favorable to the plaintiff.

Their legal action is, in effect, a vehicle for a wider public-relations and media campaign that has targeted the IRA, their domestic and American supporters, and terrorist ideology itself. Plainly, such individuals would have preferred to be simple members of the public with no personal investment in this war against terror. Nevertheless, as one victim of terrorism who was asked why he was participating said, "I didn't find the IRA, they found me."

The campaign went into battle against the highly successful IRA propaganda machine. It sought to explain real victimhood and ensure that victims were not just seen as numbers on another terrorist news item that could be forgotten. They decided to humanize their plight while de-humanizing the IRA. Yet, the neo-terrorists--in this case, the RIRA--were unable to portray their victims as large oppressive forces hostile to humanity (or even civil liberties for that matter).

Their campaign gathered support from former President Bill Clinton and President George W. Bush. Influential figures such as Peter Mandelson and Sir Bob Geldof saw the merit of the families' community stand against terrorism and spearheaded their legal campaign. Recently, even the British government acknowledged the families' work in the battle against terror, changing the law to allow special interest government funding for such class actions against terrorism.

Why is their campaign so important? A community stance is a new, powerful and unconventional weapon against terrorism. The state is disadvantaged in its war because of the inherent power inequality vis-à-vis terrorists. The latter's propaganda machine will always portray itself as a weak David facing an oppressive, imperialistic Goliath. This often turns conventional counter-terrorism measures into propaganda victories that further the terrorists' support base and cause. A civil action, however, juxtaposes a cold-blooded murderer with a mother who lost her son. It provides a humane and emotional media campaign that even the most adept terrorist spin doctor cannot win.

The Omagh case has not yet come to trial, but the wider campaign has already notched up important victories along the way. The families' campaign has frustrated the RIRA's and its sympathizers' fundraising events by orchestrating peaceful demonstrations outside the venues in the glare of TV cameras. It has publicly shamed supporters in the press, which has led to them being ostracized in their community. Endless lobbying has led to the RIRA being designated as a Foreign Terrorist Organization in the United States, which means that funds can now be frozen. RIRA terrorists have been observed moving their assets in anticipation of the litigation. Apart from the inconvenience of this to the terrorist group, such actions have enabled the authorities to highlight and track the assets they move. If the families win, large damages could be enforced against the perpetrators (some of whom have amassed great wealth), the RIRA (which has sizable assets around the world) and supporters of their terror campaign.

Another goal of a civil action is compensation. The fear of losing the family home and fortune can become burdensome to a terrorist. The effectiveness of this deterrent does depend on the terrorist group in question. Many shahids are recorded in their martyrdom videos as claiming that becoming a homicide bomber will increase the pride and position of their families. The deterrent of death and the criminal law is not enough to stop them, but perhaps the ostracization and financial ruin of their families might be. If the Omagh precedent made an Irish terrorist think twice before committing another terrorist act, or the mother of a shahid to make a compassionate plea to her son, the effort involved in such campaigns would be worthwhile.

Civil actions also threaten a terror group's financial base. The globalization of terrorism facilitates funding from other terror groups, organized crime syndicates and state or private sponsors of terrorism. The RIRA is estimated to receive £5 million a year while the running costs of their campaign are less than £500,000 per year. Civil suits can find rich pickings. By targeting the sponsors personally, a disincentive to fund or profit from terrorism will be formed.

Along with conventional security successes, these families, in the eyes of security experts, have been responsible for curtailing the growth of the RIRA. In short, the families-led campaign has cut off the fuel of terrorism (positive publicity) and dried up the oil that greases the cogs of the terrorism mechanism (support and recruitment). The RIRA is no longer the threat it was prior to the Omagh Writ being issued.

Some have argued against this new form of unconventional warfare against terrorism. Concerns have been expressed that such actions would interfere with the traditional mechanisms of state security, enforcement and criminal justice. Such arguments raise legitimate points, but fall by the wayside when one considers the fundamental compatibility of the new, civil law-focused efforts with the conventional law enforcement ones: The new effort is not a competing form of interloping justice, but rather an auxiliary. For instance, many in communities where terrorists are harbored are reluctant to cooperate with the police or other state institutions. Yet those same potential witnesses have less compunction against involving themselves in a civil action which is viewed as helping their own (think of a widow who lost a husband in a mindless attack).

Others who object to the new efforts fear that civil actions might prejudice a criminal investigation or prosecution. As terrorist cases are run in "Diplock" courts--judges without juries--it is quite impossible for a fair trial to be prejudiced by tandem civil litigation, for it is a fundamental tenet of law that a judge cannot be prejudiced by other litigation or media coverage. But the Omagh civil action demonstrates that it can coincide with an ongoing criminal investigation without causing any detriment. Since the Writ was served in the civil action, every named defendant either has been convicted, charged or taken into police custody on other terrorist charges. This in itself highlights another important merit of the civil action campaign: that it has kept up pressure on politicians and the police to bring the perpetrators to justice.

Essay Types: Essay