The Wisdom of Reforming Terrorist Designations

This op-ed by Nathan Stock was published in Foreign Policy.

In 2008 — 18 years after New York City threw him a ticker tape parade for helping to end apartheid — it took an act of Congress to ensure that Nelson Mandela did not need a special waiver to enter the United States, finally removing his terrorist designation. In November 2011, Hezbollah leader Imad Mughniyah was removed from the "Individuals and Entities Designated by the State Department Under E.O. 13224" terrorist list. He had been dead for three and a half years.

The "German Taliban," Eric Breininger, was dead for more than a week when he was added to the list. Although these may seem like bureaucratic oversights, they are indicative of wider problems in terrorist listing systems. While attempting to punish terrorist groups and restrict their activities, these systems have reduced the space for diplomacy, particularly in the Middle East and North Africa (MENA). These disparate examples also highlight the continuing lack of agreement on who is a "terrorist."

In the U.S., these instruments are multifaceted. The State Department maintains two systems for tracking and sanctioning terrorist groups and individuals. As of May 30, 2012, 51 groups were on its "Foreign Terrorist Organizations" (FTO) list and there were 108 entries on the "Individuals and Entities Designated by the State Department Under E.O. 13224," many of which overlap with the FTO list. Nearly half of State Department FTOs are MENA-based, despite the fact that only six percent of the world’s population lives in that region. Though not solely a counter-terrorism tool, the Treasury Department’s Office of Foreign Asset Control maintains a 529-page list of "Specially Designated Nationals and Blocked Persons." Even the Supreme Court has played a role. The court’s June 1, 2010 Humanitarian Law Project (HLP) decision effectively held that it is constitutional for Congress to prohibit expert advice and technical assistance to terrorists, including peacebuilding and mediation work with listed groups, which is designed to reduce violence. And, this is not exclusively a U.S. phenomenon. The EU has 25 individuals and 29 organizations on its primary terrorist list, and even the U.N. has designated over 250 individuals and 69 "groups, undertakings and other entities associated with Al-Qaida."

There are at least four problems with these systems. First, these lists restrict opportunities for mediating conflict and engaging proscribed groups in dialogue on how to achieve their stated aim of reducing terrorism. Terrorist designation systems, and related legislation, sometimes explicitly prohibit states and multilateral organizations from having contact with designated organizations and individuals (see for example the Palestinian Anti-Terrorism Act of 2006, Section 10). In cases where contact is not illegal, it is often politically impossible. And, after the HLP ruling, even U.S. NGOs, which traditionally had more space to open doors through track II diplomacy, have seen their activities curtailed.

Second, these lists are broad enough that they now target a significant portion of the non-state armed groups (NSAGs) involved in armed conflicts around the world today. Writing in the Journal of Peace Research, Lotta Themnér and Peter Wallensteen list all the NSAGs involved in armed conflicts, from "minor" clashes to wars in 2010, where the number killed was clearly established. Sixteen of the 35 groups on their list, 45 percent, appear in at least one of the above terrorist lists.

Third, many of the organizations designated, including the PKK in Turkey, Islamic Jihad in Palestine, and Al-Qaeda in the Arabian Peninsula in Yemen, are significant political and/or military actors in their conflict contexts. While it may be feasible to cut off contact with smaller terrorist groups, restricting engagement with larger organizations involved in long-running, protracted conflicts reduces prospects for finding negotiated solutions.

Fourth, there is no internationally agreed definition of "terrorism," much less a broader consensus on legitimate uses of violence (British authorities in Mandate-era Palestine regarded Menachem Begin as a terrorist, while Jewish Israelis remember the former prime minster as a nationalist leader). Thus, decisions about who to list may appear inconsistent, if not politically motivated, depriving the listing system of clear moral authority.

These lists are an important global mechanism for reducing the flow of resources to terrorist organizations and for prohibiting and prosecuting acts of terrorism. But, while many of the terrorist groups listed have no interest in moving from violence to politics, the listing systems are ill-suited to incentivizing such shifts when they are possible. Delisting through "martyrdom" (a la Imad Mughniyah) does not exactly encourage nonviolent political change. If the goal of these systems is to reduce violence, then these regulations need to be flexible enough to incentivize political participation.

Here then are a few common sense recommendations to make these laws more effective:

(1) Do not proscribe contact. Communicating with designated terrorist organizations does not mean that one is providing "assistance." Nor is it tantamount to agreeing with the goals or tactics of the terrorist organization in question. Instead, maintaining some level of contact can help the two sides understand one another. These contacts can help build trust and help states be alert to shifts in a terrorist group’s thinking, including openings for moving groups away from violence. One facile argument against contact is that communication can confer "legitimacy." To take the State Department’s FTO list as an example, many of the organizations therein are Al-Qaeda affiliates. These groups question the legitimacy of the Westphalian inter-state system. If anything, they view their listing as a badge of honor. They would not view contacts with the U.S. government as conferring legitimacy. To take an alternate example, while Hamas leaders have repeatedly told us that they are open to talks with the U.S. government, this does not mean that they feel the need for the U.S. to somehow legitimize them. Their credibility with their constituents is derived from decades of grassroots organizing and having won a democratic election in 2006.

(2) Differentiate between political parties and armed groups. Where possible, governments and multilateral organizations should strive to focus terrorist designations on those specific organizations directly responsible for violence. The Al-Aqsa Martyrs Brigade is on the State Department’s FTO list. The Brigade is the armed-wing of the Palestinian political party Fatah, and it was responsible for attacks against Israeli civilians. Fatah itself is not listed. A similar distinction is not, however, made for Hamas. Hamas as whole is listed, while its armed wing, the Ezzedeen Al-Qassam Brigades is not. Listing the military arm, and not the political party, would facilitate political engagement to reduce violence.

(3) Differentiate based on size, base of political support, and goals. While many would agree that the groups on the State Department’s FTO list all have committed acts of terrorism, some have few other similarities. For example, the list includes both the Abu Nidal Organization (ANO) and Hezbollah. ANO was responsible for several high profile terrorist attacks in 1980s and early 1990s. But, the organization has not carried out a major attack in decades, and its leader (Abu Nidal) was killed in 2002. On the other hand, Hezbollah is one of two leading Shia political parties in Lebanon. It is by far the most powerful actor in the Lebanese government. In addition to a network of social service organizations and even a television station, it controls a highly sophisticated armed wing and an enormous rocket arsenal. Most recently, it fought a devastating war with Israel in 2006. While it is possible, and perhaps advisable, to cut off all contact with marginal groups like ANO, this is unwise for larger, more complex groups which represent real constituencies. While attempting to prohibit acts of terrorism, anti-terrorist regulations should be responsive to the radically different nature of some of the groups in question.

(4) Use contact to open pathways for political participation, where possible, incentivizing groups to end violence. In a study of 648 terrorist groups from 1968 to 2006, the RAND Corporation found that 43 percent of terrorist groups end by adopting nonviolent tactics and joining political processes. This is not to suggest that negotiation is possible in all cases. Even if they were willing, dialogue with some of the groups in question — particularly the Al-Qaeda affiliates — is unlikely to lead to conflict resolution. Rather, terrorist-listing regimes should allow the flexibility necessary for states to explore negotiations, including political participation. Especially in the wake of the Arab spring, as Western governments are finding ways to engage Muslim Brotherhood-backed parties around the MENA, it is important that avenues for dialogue also be found with Islamist political movements which have not renounced violence. The Carter Center’s experience with Hamas has demonstrated that the prospect of having a legitimate role in governance can provide a powerful incentive for reducing violence and moderating a group’s goals. At the same time, when avenues to political participation are blocked, as was the case with the international community’s effective rejection of Hamas’ 2006 victory in Palestinian parliamentary elections, it can be difficult for these groups to maintain more moderate political positions.

This analysis is not meant to ignore the political context surrounding matters of terrorism. Particularly in the U.S., domestic realities make politicians very hesitant to do anything that could be framed as "soft on terror" — especially in the MENA. Nevertheless, as we reach the two-year anniversary of the HLP decision, it is vitally important that the international community ensures paths to political engagement — even with terrorist groups who have committed attacks against civilians. Simply punishing listed groups is insufficient and ineffective if the ultimate goal is the reduction of human conflict.

Nathan Stock is assistant director for Conflict Resolution at The Carter Center in Atlanta, GA.