In his birthday speech Velupillai Prabhakaran made a strong bid to classify himself as a 'freedom fighter' by challenging the international definitions of terrorism. He is demanding that the West should re-define terrorism to distinguish between 'freedom fighters' and 'blind terrorist acts based on fanaticism'. H. L. D. Mahindapala examines his text to ascertain what chances he has of convincing the international community that his violence is morally superior to that of other terrorists.

Velupillai Prabhakaran’s birthday speech hit a high note when he tried to make a distinction between "the two dimensions of political violence" - the violence of "freedom fighters" and the violence of terrorists. In doing so he was making a bid to categorize LTTE violence as a morally superior brand to that of the "blind terrorist(s)". To convince the West that his violence is better than others he even goes further and demands punishment for what he calls the "real terrorists". He says: "We fully understand the anger, apprehensions, and compulsions of the Western powers engaged in a war against international terrorism. We welcome the counter-terrorist campaign of the international community to identify and punish the real terrorists."

The thrust of his speech was angled to challenge the definition of terrorism accepted by the international community. He says categorically: "The use of violence in all modes of struggles to attain specific political goals is defined as terrorism by international governments. This narrow definition has erased the distinctions between genuine struggles for political independence and terrorist violence. This conception of terrorism has posed a challenge to the moral foundation of armed struggles waged by liberation movements for basic political rights and for the right to self-determination. This development is regrettable. As a consequence our liberation organisation is also being discredited in the international arena.....In this context it is crucial that the Western democratic nations should provide a clear and comprehensive definition of the concept of terrorism that would distinguish between freedom struggles based on the right to self-determination and blind terrorist acts based on fanaticism."

This political reaction is understandable because Prabhakaran is feeling the heat of the international pressure to ban political violence of non-state actors, irrespective of their causes or ideologies. The banning of the LTTE based on the Western definitions severely restricts his freedom to use violence according to the needs of his political objectives and fancies. Hence his attempt to argue a case to persuade the international community that he must be placed above the other "blind terrorists" driven by "fanaticism" because he is aiming at the political goal of self-determination which is accepted by the UN.

In demanding that the international community should change the definition to exclude him and his organization from their definition of terrorism he has joined the band of critics - including some civil libertarians - who are concerned about the expanding width and the threshold of the new definitions that are coming into force on a global scale.

Of course, there is marked difference between the human rights activists who are concerned about the encroachment of the state into the rights of the individuals and Prabhakaran’s attempt to elevate himself and his organization as an entity that is above the law, particularly humanitarian law. The point made by Prabhakaran, however, is a familiar one which claims that one man’s terrorist is another man’s freedom fighter. Western countries went along with this theory slyly until September 11. That event changed the international definition of terrorism.

Britain, for instance, which argued that it had no domestic law to deal with international terrorists using its territory as a base for financing and exporting terrorism suddenly rushed to re-define terrorism which now has legal provisions to clap anyone suspected of terrorism in jail for ten years. Fearing that external sources like the European Court of Human Rights would undermine Britain’s legal powers to combat terrorism it is now seeking to exempt itself from the jurisdiction of the European Convention on Human Rights. In other words, they had stopped just short of the war-time measure of incarcerating indefinitely innocent Japanese and German citizens of Western countries in secluded camps that stigmatized them as enemies of the state.

When the two hijacked planes speared through the Twin Towers on September 11 it shocked the Western super powers because it exposed their vulnerability to the new phase of terrorism. It became the defining moment that foreshadowed the rise of non-state actors as a force more threatening to their way of life than all the states headed by the old Cold War warriors. Terrorism was no longer a scourge of the developing countries. When terrorism hit home, crippling their economy, the West reacted instantly by arming themselves with new legal definitions to combat the latest threat to their societies.

But in trying to define terrorism the West was faced with the critical issue of balancing the interests of the individuals against the wider interests of society. Invariably, when a society is threatened by internal or external forces the wider interests of the society prevail. The individual either gives his/her consent voluntarily or is forced to comply in order to protect the common interests as any detrimental deviation is inimical to the greater good.

This either/or issue confronts the individuals in free societies from time to time. Individual liberties have survived the stresses and strains of external threats by sacrificing some of their personal requirements for the protection of their society which, in the long-term, underwrites the freedoms of the individuals. The surrender to authoritarian rule in non-democratic societies need not enter this argument because the individual’s right to be an individual has been denied unequivocally by the powers that demand unquestioning obedience. The will of the dictator is imposed unilaterally with severe consequences for dissenters. But democratic societies, under siege from internal or external forces, are forced to re-define their fundamental principles to protect the freedom of both the individual and the collective.

At all times the adjustments needed to stabilize society with new powers will throw democratic societies into an invidious position. Some issues surrounding the personal sacrifices made in exchange for the long guarantee of freedoms will be controversial. The state and civil society are bound to clash on the issue of guarantees against abuses. There are also other related questions: can the interests of individual override the greater interests of the community when the individual’s rights are derived from the democratic foundations of the society? And as the individual’s rights lose its validity outside the democratic society isn’t it in the interests of the individual, considering the threat to his own and that of the society in which he lives, to compromise and accept a curtailment of private rights for public good?

The danger, however, is in the expansion of the threshold of definitions of terrorism that would invade the individual’s rights. Definitions must tread warily between restricting the freedoms of the individual with legal provisions required to guard against the contingencies and imperatives confronting the state and the primary necessity to protect the democratic processes without excessive intrusion in to the private domain of the individuals. Maintaining the democratic process, which is the ultimate guarantor of individual liberties and human rights, must be uppermost in any definition of terrorism.

Of course, a simplistic definition would give a carte blanche approach to the mavericks of the state to target anyone suspected of coming within their self-imposed meaning. If the definition is phrased loosely, with no clear boundaries, the minions of the law are free to abuse it. The definition must be loose enough to cast the net wide and also tightly knit to close any loopholes that could lead to abuses. Legal minds are grappling with this issue on an extensive and intensive scale. There is no consensus on the definition of terrorism but a few noteworthy examples can throw some light on the complexities of the problem.

The FBI definition is one such example. It says: "Terrorism is the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives."

The Australian approach is more precise in addressing the central issue of radical change demanded by terrorists regardless of its consequences to others in the community. Political violence, whether it is based on revolutionary dogma or on any other ideology of religion, race, or socio-economic causes, is always in an indecent hurry to by-pass the intricate and convoluted historical processes to achieve instant changes - changes that would normally take years under the evolutionary process in a democracy. Does this mean that political violence should be accepted as the legitimate engine of change?

This aspect is addressed in Article 50 of the Northern Territory of Australia Criminal Code Act:

"act of terrorism" means the use or threatened use of violence -

(a) to procure or attempt to procure -

(i) the alteration of;

(ii) the cessation of; or

(iii) the doing of,

any matter or thing established by a law of, or within the competence or power of, a legally constituted government or other political body (whether or not legally constituted) in the Territory, the Commonwealth or any other place;

(b) for the purpose of putting the public or a section of the public in fear; or

(c) for the purpose of preventing or dissuading the public or a section of the public from carrying out, either generally or at a particular place, an activity it is entitled to carry out;

"violence" means violence of a kind that causes, or is likely to cause, the death of, or grievous harm to, a person."

Liberty is an organization that went into battle against the new UK legislation against terrorism. It examined various definitions of terrorism. Liberty examined the American definition and commented: "Section 2331 of Title 18 of the US Criminal Code, defines ‘’international terrorism’’ as meaning activities which

a) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;

b) appear to be intended -

i) to intimidate or coerce a civilian population;

ii) to influence the policy of a government by intimidation or coercion; or

iii) to affect the conduct of a government by assassination or kidnapping; and

c) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum."

Citing the Australian and the American example Liberty in UK argues: "Although not straightforward, it seems possible to construct a workable definition of terrorism which fulfils the (UK) government’s aim of covering action which attempts to undermine democratic processes by the use of violence. The following definitions are accordingly proposed.

(1) In this act ‘terrorism’ means the use or threat of serious violence to procure or attempt to procure the alteration, cessation or doing of any matter or thing established by a law of, or within the competence or power of, a legally constituted government or other political body (whether or not legally constituted) in the United Kingdom or any other place; either

(a) for the purpose of putting the public or a section of the public in fear; or

(b) for the purpose of preventing or dissuading the public or a section of the public from carrying out, either generally or at a particular place, an activity it is entitled to carry out.

"violence" means violence of a kind that endangers the life of any person, or creates a serious risk to the safety of the public or a section of the public."

"This definition," says Liberty, "is based on the Australian Criminal Code discussed above. It is covers the destruction of property where this is carried out with the aim of bringing down the democratic process. It would protect the type of people which the government has indicated should be covered by the definition and would enable the prosecuting authorities to bring appropriately serious charges against those who disrupt, for example, the activities of pressure groups or smaller political parties who are lawfully and peaceably demonstrating. It further has the advantage of dealing with international terrorism in a principled fashion by putting the burden on the prosecution to firmly establish that the activity being carried out had the effect of putting the public in fear."

Even with many variations, the definitional trend is to classify any violence that "creates a serious risk to the safety of the public or a section of the public" as terrorism. The UN is moving decisively to reject any political violence, leaving hardly any room for those who seek exemption as "freedom fighters." In this climate, what chance has Velupillai Prabhakaran to escape the international tidal wave and swim to the shore of political respectability?
(To be continued)