There is a need for a discussion of how to handle terrorism and terrorists. Before that discussion can be useful, though, we need to understand the relationship among terrorism, crime, and war. This is a beginning of that discussion.
We currently have two categories of conflict participants which I’ll term—my layman’s terms, understand, not any legal or legalistic ones—criminal and soldier or combatant. The one is a domestic (usually) question involving the violation of a nation’s domestic criminal laws. The other is an international question involving a nation’s soldiers or combat arms engaging in more or less declared war and during the conduct of which the nation and its soldiers are subject, together and individually, to national laws and generally agreed international laws of war (for instance, the Geneva Conventions).
As we have seen at least since the turn of the century, though, there is a third category of conflict, and those who perpetrate this third kind—both the polity and its individuals—need a different form of response when encountered on the battlefield or after capture. It’s important to understand, too, that the battlefield in this third category isn’t limited to classic set-piece force on force encounter on a field or over a beach, nor is it the hit and run battlefield of a guerrilla effort. This new battlefield includes those, certainly, but it also includes our theaters, concert venues, shopping malls, subways, airports, airplanes—anywhere groups of people are gathered.
This third category already exists in the public’s mind, but it needs a third category of legal handling. This third category is terrorism and its participants are terrorists. Examples of these include polities like al Qaeda and the Daesh and gangs like Boko Haram and their individual members.
These are entities and individuals who are intent on killing innocents, not soldiers, and they’re intent on the killing for its own end. The resulting terror is their goal and their tool for destroying the body politic of their target.
Mere criminal laws are inadequate for handling such mass murderers, whose killing does not rise from insanity, but from a desire for creating the terror that is their tool for larger ends. Nor can these entities and individuals be handled adequately with laws of war governing how soldiers are to be encountered and killed or treated after capture; their behavior, their targets, place them outside such laws.
For the individual terrorists of a polity or a gang, we need new laws, laws of terror war, both domestic and international, with which to govern our encounters with them in battle and our handling of them should any be captured. Simply putting them on trial and locking them up on conviction is useless; they’ll just return to their battles upon release (nor are they worth the effort, expense, or resources of maintaining in confinement). Dealing with them on the battlefield under existing laws of (ordinary) war is unsuitable, too: in far too many cases, to take just one example, their shields are not building walls or bunkers, but innocent, helpless women and children.
Similarly, we need a new Convention with which to deal with a terrorist polity or gang. Simply crushing these in a series of battles is insufficient. Their existence as non-nation-state entities, as network entities, makes any battle victory, any war-level victory a chimera. Their goal of wanton destruction for the terror to be caused make any defeat, or appearance of one, an empty gesture. Sterner, more permanent measures and the rules governing those measures are needed.