Chapter 10. Forgiving Terrorism: Trading Justice for Peace, or Imperiling the Peace?

Despite the unflinching public policy of some states never to negotiate with terrorists, realpolitik sometimes forces states to adopt a less strenuous path. Negotiating with terrorists is sometimes thought necessary to peacefully or humanely end particular terrorist incidents. One example is the Achille Lauro cruise ship hijacking in 1986, where Egypt and Italy attempted to negotiate an end to the crisis (and save the lives of the hostages), while the United States (US) used military force and declared itself ‘completely averse to … any form of negotiation’.^[1] In contrast, in 1986, US President Reagan secretly agreed to sell arms to Iran in return for promises to seek the release of US hostages.^[2] It is a perennial humanitarian dilemma of governments whether to pay ransom to save hostages,^[3] in light of fears that negotiation may encourage others to resort to political violence to secure a seat at the bargaining table. Since 11 September 2001 (9/11), there have been frequent abductions of journalists, humanitarian workers, employees of international reconstruction efforts, and military personnel by terrorist organisations in Afghanistan, Pakistan, Iraq and Palestine, often accompanied by political demands on the hostages’ national governments — for example, to withdraw from occupied territories or Muslim lands.

Negotiating with terrorists is also sometimes judged necessary by governments to resolve longstanding terrorist campaigns, beyond specific negotiations to end particular terrorist acts. Three iconic figures — Yasser Arafat (of the Palestine Liberation Organisation), Gerry Adams (of the Irish Republican Army (IRA)) and Nelson Mandela (of the African National Congress) — were at some point arguably responsible for or complicit in ‘terrorism’ by their organisations. Although there is still no internationally accepted definition of terrorism,^[54 the deliberate, instrumental killing of civilians by at least some of the groups represented by these leaders as a means of political struggle counts as terrorism on even the narrowest definitions of the term. While the degree of responsibility of each of these figures differs (particularly in organisations with ostensibly separate political and military wings), it is startling how persons once regarded as terrorists were later embraced as legitimate representatives of political movements, entitled to a share of state power, entry into the world of international diplomacy, and even Nobel Prizes (Arafat in 1994, and Mandela in 1993). All were absolved of, or immunised from criminal responsibility for terrorism, as a necessary condition of full participation in political settlements.

In Northern Ireland, under the 1998 Good Friday Agreement, over 500 political prisoners were released by Britain and Ireland by July 2001,^[5] while amnesties were conferred for the decommissioning of armaments. Ahead of the IRA’s renunciation of armed struggle in July 2005, Britain released the convicted ‘Shankill Road bomber’, Sean Kelly, although the broader question of amnesties remains controversial,^[6] as it does in Spain following a unilateral ceasefire by the Basque separatist group Euskadi Ta Askatasuna in March 2006.^[7] In contrast, the leader of the Liberation Tigers of Tamil Eelam (LTTE), Velupillai Prabhakaran, was sentenced to 200 years in prison, in absentia, while simultaneously negotiating a Norwegian-brokered peace settlement with the Sri Lankan government.^[8] Some foreign governments continue to treat the LTTE as a terrorist organisation,^[9] despite its position as a party to a non-international armed conflict under international humanitarian law. Even so, the ceasefire agreement between Sri Lanka and the LTTE suspends search operations and arrests under the Prevention of Terrorism Act,^[10] in a pragmatic recognition that concessions of this kind may be necessary. In another mixed example, on the thirtieth anniversary in 2007 of the ‘German Autumn’, some convicted members of the Red Army Faction (or Baader-Meinhof Gang) received pardons from the German President for serious terrorist acts committed in the 1970s, while others have been refused clemency.^[11]

As these brief examples indicate, there has been considerable ambivalence in the response of the international community and different national governments towards the problem of how to respond to individual terrorist acts and sustained campaigns of terrorist violence. Responses vacillate between a desire to punish and deter terrorists through the strict application of the criminal law, and counter impulses to temper or even suspend the application of the law to mitigate the potential harm from exceptional threats of extreme violence. This chapter first outlines how international law has responded to the question of amnesties for serious international crimes, before extracting and elaborating some basic guidelines for their use. It then specifically examines whether terrorist acts raise similar or different considerations in relation to amnesties than other serious international crimes, before focusing on the impacts of terrorism amnesties on international security and justice issues.