Essay for MA Criminal Justice and Crime Control
Author: Jesse Downes, 2019/20
There is one particular offence in criminology that is responded to in a way that raises large ethical issues. These are offences that are labelled as being terrorist offences. This is particularly the case in the midst of the 9/11 attacks in the US back in the September of 2001. On the morning of the 11th September, two large passenger aircraft were hijacked and then were purposely directed towards New York, where both Twin Towers were then destroyed by the planes. Thirty minutes later, the same fate was to bestow the Pentagon building in Washington (Borger et al, 2001). A fourth plane crashed into a field, and overall the total number of lives lost as a result of the attack was 2,977. The response to this attack, was different to the usual response for cases of mass murder in other circumstances. What followed was, while still deeply rooted in criminal justice, more often described as being a war, with the ‘War on Terror’ being initiated (History, 2019). This focus on war, rather than dealing with the actions in the usual way of the criminal justice system can be seen to raise several ethical issues. These ethical issues will be explored in this essay as a way to critique the response that the US pursued in the aftermath of the attacks of 11 September 2001. Although this essay may focus on the actions of the US, these are also the same sorts of actions that were adopted by countries around the world, including here in the UK. During the critique, several of the ethical theories cited in the literature will be applied to the response to terrorism. It is therefore important to explain in detail the different ethical perspectives. However, before this can occur, it is essential to dedicate a section of this essay to looking into the definition of terrorism and exploring the concept of it in more detail.
Although the word ‘terrorism’ has been used for hundreds of years, it has only recently, in the aftermath of 9/11 been a regularly used word for criminal offences. Now the word is such a commonly used word, that in the midst of any large-scale attack, it is word that is consistently used on social media when speculating about the nature of an attack. Despite the regular use of this word in everyday conversation, the meaning is surprisingly obscure. As is stated by Wilkinson (2005) the definition of terrorism varies between countries. Indeed, Kapitan (2005) goes even further, and illustrates that even in the same country, and the same government, the definition of terrorism is not agreed. They state that ‘even the various agencies of the US Government are not united’ on a meaning (Kapitan, 2005: 21). Freeman (2005) expresses the opinion that the word terrorism has a very broad meaning, which covers a large selection of motivations as well as actions. Despite their differences though, one thing that seems to unite most of these definitions is the fact that attacks labelled as terrorism are motivated by politics and are ‘a method or means of achieving an objective’ (Banks, 2009: 260). It also appears to be the case that terrorism is always committed by outsiders, by people that come from places other than that which the offence has taken place. Because of these main factors, offences such as these may be labelled as terrorism, and as a result of this are dealt with in a different way to ordinary crimes. As a result of this, many ethical issues are raised in the process of reacting to terrorist offences. These ethical issues will be explored further, however first it is crucial to look at some of the key ethical perspectives in the literature.
There are many different ethical perspectives, however the three main ones will be used in this essay to evaluate the response to terrorism. These are: deontological (absolutist), consequential (utilitarian) and virtue ethics. Firstly, deontological ethics are when individuals are absolute in their views. This means that ‘certain moral principles apply to all people everywhere, and that people can recognise or discover these principles and be guided by them in deciding the nature of their own conduct and in judging the conduct of others’ (Banks, 2009: 10). This means that if an action is wrong, then it must always be wrong, regardless of the circumstances under which the action occurs, and regardless of whom the action is committed by. This means that even if, as a consequence of the action a beneficial event occurs, the action is still considered ethically wrong. On the other hand, for a consequentialist, this would not be the case. Consequentialism, follows the thought of Jeremy Bentham’s utilitarianism. This states that we should ‘act so as to maximise the sum total of welfare among everyone affected by what we do’ (Tännsjö, 2013: 17). This means that rather than looking at the actions committed, we should instead look at the consequences of these actions. Therefore, even if an action on its own may be seen as being morally wrong, if the consequences of this action do more good than the wrong, then this would be considered a morally acceptable action. Finally, virtue ethics, as opposed to suggesting people should act based on the consequences of their actions or moral principles, suggests that people should act based on what would be best for their moral character (Hursthouse, 1999). Therefore, actions should be judged on whether they are considered to build a good moral character or not. Now that these three main ethical perspectives have been outlined, they will be used in order to assess the ethical issues that arise in the state response to terrorism.
As was mentioned in a previous section, when an act is labelled as being a terrorist offence, it is often treated differently from an ‘ordinary’ crime. This is despite the fact that the actual acts that have occurred in a terrorist offence would normally be treated as an ordinary crime. For example, it would make sense to simply prosecute terrorists for crimes such as mass murder, or attempted murder, however states choose to deal with these specific types of offences in a different way. This was certainly the case in the aftermath of 9/11, when the US declared the ‘War on Terror’. This began less than a month after the attacks, on the 7th October 2001, when both the United States and Great Britain initiated air strikes in Afghanistan (History, 2019). Starting a war, as opposed to following the usual criminal justice route means that many ethical issues can be raised.
Firstly, if we consider war from an absolutist perspective, then it is clearly going to be a morally wrong response to terrorism. It is almost universally agreed that the actions of terrorists are wrong, because to kill is fundamentally wrong. Therefore, from an absolutist perspective, it is also not right to kill the terrorist organisation that executed the attack, because according to the deontological perspective, if an action is wrong then it is always wrong (Banks, 2009). This simplicity is not the case when it comes to looking at the situation through the consequential perspective. Firstly, because consequential ethics tells us that we should focus on the consequences of our actions, and the consequences of the ‘War on Terror’ are that members of the terrorist organisation have been killed, it may easily be assumed that such actions are morally acceptable when looking through this perspective. After all, having less terrorists in the world mean that there are less people able to cause a mass loss of life. It may seem as though it is right to take the lives of a few terrorists, if it means saving the lives of thousands of innocent people, from a consequentialists point of view. However, the true consequences of the ‘War on Terror’ may not be quite this simple. Banks (2009) explains how the ‘War on Terror’ was quite different from an orthodox war. In an orthodox war, you are simply fighting another state, with the aim of gaining victory over them. Whereas in the fight against terrorism, it is an ideology you have to defeat, which is much more difficult to achieve. In order to achieve such a feat, it seems you would have to kill every single individual who holds that certain ideology. This is of course, a pretty much impossible task. Instead, what is much more likely to occur as a consequence of the war, is for even more violence to occur, with the terrorist organisation gaining new recruits and seeking vengeance. As the peace-making criminologist Quinney (1991) stated ‘without peace within us and in our actions, there can be no peace in our results. Peace is the way’ (Quinney, 1991: 12). Therefore, fighting violence with more violence is only ever going to lead to even more violence. And this is exactly what has happened in the aftermath of the ‘War on Terror’, with the formation of new terrorist organisations such as ISIS, which have ended up continuing the spiral of violence, and ending yet more lives (Khedery, 2014). Therefore, from a consequential point of view, as well as an absolutist perspective, the response to terrorism can be seen as being ethically problematic. On the other hand, when looking at this through the perspective of virtue ethics, the opposite can be seen to be true. Because virtue ethics works on the principle of a moral character (Hurthouse, 1999), it could be said that the US showed strength when dealing with the problem of terrorism, and therefore a positive moral character. Overall though, it is clear that the use of physical force in response to the problem of terrorism raises ethical issues, when viewed through different ethical perspectives.
Furthermore, Kapitan (2005) states that rather than starting a conversation, labelling something as terrorism encourages the use of violence, as shown in the above section. This is bad, because focusing efforts on waging war on terrorism, means shutting down the debate with those who have committed the offences (Young, 1996). As Banks (2009) states: ‘A discourse that demonises all terrorists, whatever their motivation or strategy, denies an understanding of the terrorist’s point of view and means that government policies that might have contributed to their grievances of those who have adopted terrorism are not scrutinised’ (Banks, 2009: 262). This is a problem, because recognising a terrorist’s grievances and trying to understand why they have committed the offence they have committed, would potentially lead to less blood being shed on both sides. Simply reacting in a violent, reactionary way means that this conversation cannot occur, and therefore the levels of violence are less likely to be reduced in the future, as has been demonstrated above. However, it is important to note that this is not a point exclusive to the idea of the ‘War on Terrorism’, even by following the usual criminal justice procedures such a conversation is unlikely to occur. That is to say that it isn’t specifically the idea of labelling acts as ‘terrorism’, rather than ‘ordinary’ criminal offences that causes this problem. Though it is certainly made worse by the violent nature of the response.
Although so far in this essay, the ‘War on Terrorism’ has been portrayed as being simply a war, this has not been exclusively the case. Banks (2009) explains that although it contained many of the characteristics of a war, it can still be seen as being a metaphorical war, in a similar sense to the US’ ‘War on Drugs’. The idea that the ‘War on Terror’ wasn’t in fact a war leads to several other ethical issues being raised. Mainly this has to do with the Geneva convention, as well as other international human rights laws.
Firstly, rather than treating the response to terrorism as being a war, the US may treat it as following normal criminal justice policy in certain circumstances. For example, when it comes to the imprisonment of individuals associated with terrorist organisations, rather than being sentenced as prisoners of war, they are simply treated the same as any other prisoner (Banks, 2009). Because they choose not to classify the ‘War on Terror’ as being a war, they do not have to follow Conventions 3 and 4 of the Geneva Convention. These two conventions relate to how to deal with individuals imprisoned during war. For example, Geneva Convention 3 ‘establishes the principle that prisoners of war shall be released and repatriated without delay after the cessation of active hostilities’ (ICRC, n.d). This does not apply to prisoners from a terrorist organisation, and therefore the US are able to hold prisoners for as long as they would an ‘ordinary’ prisoner. This is clearly ethically problematic, because to hold individuals against their will for longer than the conflicts are ongoing would be seen as being a large problem when looking through the perspective of absolutist ethics. Again though, an argument can be made for this being ethically the correct thing to do from a consequentialist point of view. This is because, holding a terrorist or suspected terrorist in prison for a longer period of time may mean that the general public are safer, and more protected against violence. However, the same argument can be made as has been made previously: that these steps taken may result in more anger and violence occurring. Therefore, as a result, for a consequentialist, this would be an ethically problematic thing to do.
Moreover, by labelling the ‘War on Terror’ as being more a criminal justice solution, as opposed to a war, means that the US can more easily avoid sanctions for breaking international human rights laws. This is by setting their own national laws at a much higher bar than the international laws. A key example of this when looking at the response to terrorism is in relation to the use of torture. Hooks and Mosher (2005) explain how the US have set their definition of torture much higher than the definition outlined by international human rights law. This means that, although torture is illegal in the United States, certain actions that may be considered torture under international laws, are not considered such under US laws, and may therefore be used against terrorist suspects in order to gain information from them. Again, this would be considered to be hugely problematic through the perspective of absolutist ethics, because they would state that actions, such as those used by US officials to gain information from suspects are wrong, no matter the consequences of the actions, and irrespective of who performed them. On the other hand, from a utilitarian perspective, the information gained from such activities could be valuable in protecting members of the public and reducing the level of harm caused to them. This would therefore make the actions morally acceptable from a utilitarian perspective. This was exactly the justification given by the Justice Department of the CIA, when torture of terrorist subjects was raised publicly in 2004 (Zalman, 2019). However, as has been made clear throughout this essay, the consequentialist perspective on these actions may not be this simple. If information about these actions gets back to uncaptured members of the terrorist organisation, then this could again lead to more anger and indeed more violence and harm being caused as a result of the US’ actions. Therefore, the fact that the US in some circumstances chooses not to define the ‘War on Terror’ as a full-on war raises several serious ethical issues.
Finally, it is important for us to return to the definition of terrorism, because the definition alone can raise certain ethical issues. The definition of terrorism does not include acts that have been committed by states, only organisations (Banks, 2009). This means that despite states conducting similar kinds of attacks, and for arguably many of the same reasons as terrorists, these offences are by definition not classed as terrorism. This clearly raises ethical issues, because Kapitan (2005) goes as far as to say that if state terrorism was such a thing, then the level of terrorism by states would be much more prevalent than that by terrorist organisations. This is obviously a massive ethical issue from an absolutist perspective, because they would state that if it is wrong for one group of individuals to commit such an act, then it should be seen as wrong universally. And the fact that it is not described as such when states commit the same action is ethically problematic.
To conclude, the response of the US, and many other nations, to terrorism-related offences raise many ethical issues. They are also often seen as being the wrong thing to do ethically by the three main ethical perspectives. They are wrong from an absolutist perspective, because waging war and inflicting more harm, is always wrong no matter the circumstances, according to this perspective. They are also wrong when looking at the actions through a consequentialist perspective, because the consequences of this response are often that of more violence and more harm. And from the view of virtue ethics, the actions can also be seen as highly problematic, because the killing and harming of people, and sometimes innocent people goes against what is regularly regarded as being a good moral character. Although it is not the sole reason for these ethical issues, defining the acts of terrorists as being terrorist-related offences does have an impact on the way the offences are responded to. Therefore, it would be better, and raise less ethical issues if the actions of terrorists were simply labelled as the criminal acts they are, such as mass murder. As well as this, a more peaceful and conversational approach would be preferable, not only for removing the presence of these ethical issues, but also for more effectively ending the devastating violence that occurs as a result of such offences.
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