Terrorists and Combatants: Worth Distinguishing?

The Court of Appeal of Milan recently decided that suicide attacks on Marines are not terrorism.

This sounds pretty inflammatory. But before getting upset, try first to understand what this is all about.

From the procedural point of view, the decision will be the object of an appeal to the Cassation Court. The final act has still to come.

Apparently, the appeal will concern the interpretation of the following sentence: "only acts exclusively directed against the civilian population."

The question is whether italian law defines terrorist acts in the above mentioned way or it is possible to extend it also to acts against the military officers. The argument is simple: nowhere italian law talks about exclusivity.

A lot of the discussion, however, goes far beyond italian law. The decision in the first instance drew a distinction between terrorists and combatants. This is something we have to reflect upon.

Imagine, hypothetically, that the Iranian Army invades the US. Imagine also that Italian private people are trained in German camps to fight against the invaders. Italian kamikazes suicide themselves against the Iranian Soldiers. Now, international law and US law condems terrorism. Would you consider Italian Kamikazes as terrrorists or combatants?


Think about it!

The Minister of Justice, Mr Castelli, publicly disagreed with the decision. Not much, however, can be deduced from that. The minister belongs to the Northern League, a party which is overtly against Islam.

Here's a comment on the case on Opinio Juris.

And Here's a summary of the decision as reported in the Corriere della Sera:

“The recruitment of volunteers for Iraq to fight against American soldiers cannot in any way be considered a terrorist activity”. This is true even when, as in this case, “it is evident that suicide bombers are being recruited”.T he statement of grounds for the appeal verdict does more than merely confirm judge Clementina Forleo’s controversial 24 January 2005 ruling, which acquitted three Muslim fundamentalists of charges of international terrorism while accepting as proven the fact that they were recruiting mujahidin for the war in Iraq. The appeal ruling goes further.

The defendant who has gained most notoriety, Moroccan-born Mohammed Daki, is actually the only one of the three to be acquitted of all charges. According to the appeal court judges, “he agreed with the reasons why a Muslim should go to fight in Iraq” and tapped telephone conversations show his “willingness to assist a would-be fighter from Somalia” who asked him to “lend him his passport”. In the event, Mr Daki did not do so, partly because he realised the police were about to arrest him, so “he was only involved by chance”. According to the court of appeal, in the case of the other two defendants, Tunisians Ali Toumi and Maher Bouyahia, it has been “shown that they collaborated from February to March 2004 with the Egyptian Merai and the mullah, Fouad” (the two former imams of Milan and Parma arrested as cell leaders), “aiding volunteers to travel from Europe to Iraq to fight against the Americans, and providing them with false identity documents”. But not even this is terrorism.

The verdict of the court of first instance had cast doubts on the key telephone interception concerning the recruitment of suicide bombers.The court of appeal ruling, drafted by judge Rosario Caiazzo, considers the interception to be genuine – it names three suicide bombers:Habib Waddani, Morchidi Kamal and Habib Sekseka – but immaterial to the charges. “An act may be termed terrorist, in peace time, even when it occasions only indirect danger to the civilian population. But in a situation of armed conflict” this risk “obtains with great frequency”, for example “during bombardments”, for which reason “only acts exclusively directed against the civilian population” count as terrorism.“The prosecution view cannot therefore be shared”. In other words, the ruling rejects the position of public prosecutor Armando Spataro that “suicide bombings as such constitute a danger to the civilian population”.

The ruling makes no mention of the murder of Italian troops in November 2003 at Nassiriya but it does indicate two watershed dates that perhaps deliberately leave the judgement uncertain.The appeal court judge considers it “public knowledge” that “before August 2003, there were no terrorist attacks” because it was only after that date that “suicide actions” struck “civilians as well as military troops”. However, halfway through the ruling, the judge emphasises that “the period of military occupation”, equivalent to the “state of war” that is claimed to justify the suicide bombers, “ended formally only on 30 June 2004 with the first provisional Iraqi government”.

Judge Caiazzo also considers it proven that “the volunteers from Europe were sent to military training camps run by Al Ansar Al Islam”, which was “a full-scale Islamic combat organisation” with “fringes favourable to terrorism”. This, however, “is insufficient” to prove the charge “individually for each one” of the “recruiters”.

Mr Toumi and Mr Bouyahia therefore merit only three years’ imprisonment for the false passports and sending illegal migrants to Iraq, while Mr Daki should be freed with the court’s apologies.