- (1st published in Military Police, PB 19-88-3, 1988.)
The MP mission in TC/A should be appropriately defined as countering a level I threat nontransition to war. In peacetime military police are primarily concerned with security of installations and personnel from low-level terrorist threats.
Terrorism and warfare are frequently discussed by students and instructors in the TC/A training, often with the comment, "terrorism is war". At first this is attractive and stimulating, but it is misleading and may reflect a faulty interpretation of the actual threat posed by terrorism. Unfortunately national leaders have a tendency to make statements such as, "The U.S. has declared war on terrorists;" but words cannot substitute for the reality that terrorism is not war.
Officially both DOD and the Federal Bureau of Investigation (FBI) define terrorism as criminal activity, and the national response is based upon this basic legal approach.
Terrorism is a criminal act, and the Department of Justice is lead agency in CONUS (continental US). In CONUS the State Department is the lead agency for terrorism. This should signify that terrorism is not warfare; if it were, DOD would be the appropriate lead agency.
Defining terrorism as warfare implies that terrorism is boundless violence. Warfare may seem to equate to extreme violence; however, warfare is not limitless and unreasoned violence. It has restrictions and limits. The military has the laws of land warfare, the Geneva Conventions, Hague Convention, et al. The military does not target civilian, religious, humanitarian, or diplomatic targets, both military and civilian, with impunity and does not accept the rules of warfare. Warfare, unlike terrorism, is not unbridled violence.
When terrorists are arrested either CONUS or OCONUS, they are not enemy prisoners of war (EPW). They are arrested (not captured) and tried through the legal system of the United States or through the host-nation laws involved. If terrorism were warfare, the rights of EPWs would apply. EPWs are not criminals; terrorists are. EPWs result from legitimate conflict and wartime servic. When a war is over, EPWs are repatriated.
In contrast, where would terrorists be repatroated to? Terrorist organizations want their members to be treated as prisoners of war, which would lend legitimacy to the terrorists. The policy of the free world is to treat them as criminals. Terrorists may often use military tactics, but that does not make their activities legitimate acts of war.
When people become hostages in a terrorist hijacking, are they considered prisoners of war? Chapter 5 of AR 250-30, Code of Conduct, does not clearly define the legal status of service member hostages. Paragraph 5-5 states, "capture by terrorists is generally the least predictable and structured form of peacetime activity." The captor qualifies as an international criminal. The wartime code of conduct does not apply; if it did, AR 350-30 would clearly state this.
This inconcise treatment leads to false conclusions, one of which is that the wartime code should be applied to hostages. If this were true, the regulations would so state. Survival in a terrorist environment could be severely jeopardized by taking a hard-line wartime-code stance. When an individual is taken hostage, briefcase contents and personal items will divulge more than name, rank and SSN. In a combat EPW scenario such incriminating evidence would not be carried.
AR 350-30 also causes confusion because it uses the words "capture by terrorists". Capture is not the correct word; hostages are held, skyjacked, kidnapped, taken, etc; but the use of the word capture lends legitimacy to the terrorists. The persons detained in the Tehran Embassy takeover were hostages; they were not captives or POWs.
When individuals are held by terrorists in peacetime, they must realize that macho and boldness are not in the best interests of survival. Soldiers in wartime are required to atempt escape and evasion; however, in contrast, peacetime hostages may not violate the laws of the country in which they are hostage. If they break the law by employing violence when escaping, they could jeopardize the survival of fellow hostages and could be legally imprisoned--where they had been legally detained previously.
Wars are won or lost, or a peace plan or cease fire is initiated. Terrorism cannot be won or lost--how could winning be guaged? Whom do you deal with to negotiate a cease fire? Terrorism can be eliminated; but that does not mean that it can be defeated--it merely means that a temporary tactical success has been achieved. Historically, terrorists rejuvenate the organization even after continued police successes. There are no historical examples of terrorist groups being defeated by military action alone.
In a wartime scenario combat troops who spotted naked, unarmed enemy soldiers at a shower point can legitimately call an air strike and kill them even though the enemy soldiers were not arrayed for combat. This would be legitimate because a state of belligerency existed prior to engagement. However, MP on guard in peacetime in the Federal Republic of Germany cannot apply deadly force to apprehend a terrorist unless protection of life is involved. Terrorists are criminals and, as such, have rights not afforded to combatants. Legal process must be used to apprehend, and this requires minimum application of force when arresting the suspect.
In areas overseas where U.S. installations are located a terrorist who is apprehended will be dealt with by the host nation. In CONUS a terrorist who is apprehended conducting criminal activity on post will be tried in a civil court; the military cannot perform tis function. If terrorism were warfare, the terrorist, as a POW, would be processed and placed in a POW camp. This is not done because terrorism is criminal activity and not warfare.
The Geneva Convention recognizes the concept of legitimate wars of national liberation that came into vogue after WWII. It is legally proper for a legitimate insurgent to kill a military or government target in a military operation if the following guidelines are met: (1) a military chain of command exists, (2) the rules of land warfare are observed, (3) weapons are carried openly, and (4) identifiable uniforms are worn.
Insurgency can be a form of legitimate undeclared war. Insurgents could be captured and should be afforded the status of POW. The disconnect is that insurgencies normally use terror tactics at their lowest levels of organization, which is not legitimate. It is criminal because the elements of legitimate insurgency are not present, and the rules of land warfare are not observed. These perpetrators are criminals, and if apprehended, are tried in host-nation courts. After the movement transitions to legitimate insurgency status, such movements are wise to abandon terror tactics and thereby gain legitimacy.
Terrorism is not the greatest threat to the U.S. military. A greater threat could be the increasing tendency of the military to believe that civilian authorities understand the problem less than the war fighters do. Applying the war fighter mentality to terrorism oversimplifies a complex concept.
Confusion arises, for example, when we used military reactions against Libya for alleged criminal activity in the Federal Republic of Germany. Simplistic answers are attractive but, under scrutiny, do not usually stand the test of time. For a democracy, legal reason responses normally prove to be the best response.
- Mr Hruska was an instructor in the terrorism Counteraction Branch, Department of Advanced MP Training, U.S. Army Military Police School, Fort McClellan, AL, when this article was written.