Suppose that, in 1938, the Prague government of President Edvard Benes, foreseeing the inevitable dismemberment of Czechoslovakia after the Munich Pact, had infiltrated a trained death squad of German Jewish exiles across the German border, in civilian clothing, to assassinate Adolf Hitler. Suppose they had succeeded and had then fled to Holland.
How should international law govern this hypothetical event? Should it require Holland either to try the assassins for murder or to return them to Germany for trial? Or should it exculpate, even commend, the assassins for a job well done? Or should the law remain silent? Would the answer be the same if the assassins had also killed some German civilian bystanders?
The hypothetical, we admit, is fragile in posturing such an exceptionally excellent justification for state terrorism. It is even more fragile in imagining that what international law said about the problem would make any real difference. Yet the hypothetical raises important questions which, if we are to talk about terrorism and law at all, we must address. The current spate of terrorist activity has engendered a flurry of counteractivity, exhortations and efforts to do something about it--among other things, to forge more effective international legal weapons against the scourge. At the annual meeting of the American Bar Association in 1985, for example, President Reagan charged the lawyers, "I want you to accept a challenge--to become part of the solution to the problem of terrorism."
In taking up this challenge, the lawyers must do more than devise a law. If we are to effectively implement a norm, then the international community must widely perceive the formula devised as legitimate.
Thomas M. Franck and Scott C. Senecal,
Porfiry's Proposition: Legitimacy and Terrorism,
20 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol20/iss2/1