International Criminal JusticeTerrorism in International Law:The struggle to define terrorism is just as hard as the struggle against terrorism…but is a definition really needed?

Defining terrorism in international law

•No agreed definition of terrorism in international law.

•International law oblige states to prevent and repress terrorism but it fails authoritatively to define the concept of terrorism itself.

The duty to prevent and repress terrorism• This duty is found in a patchwork of 15 subject-specific

multilateral conventions or protocols, seven regional treaties, and a range of UN Security Council and General Assembly resolutions.

• These proscribe specific acts of terrorism and impose duties on states to criminalize and investigate those acts, to prosecute or extradite suspected perpetrators, and to freeze the assets of suspected terrorists.

• States implementing these obligations must do so in full compliance with international humanitarian law (IHL), where it applies, international human rights law (IHRL), and international refugee law (IRL).

• However, none of the multilateral or regional instruments has yielded a single, universally accepted definition of terrorism.

Difficulties in finding a universal definition of terrorism• Negotiations for a Draft Comprehensive Convention on

Terrorism had reached a dead end.• Three lasting points of disagreement can be summarized

as follows:- whether the Draft Convention should adopt an armed

conflict or law enforcement approach to counter-terrorism;- whether a definition of terrorism should include or

exclude ‘state terrorism’, and whether it should include or exclude the acts of state armed forces; and

- whether armed resistance to an occupying regime or to colonial or alien domination should be included or excluded from the Draft Convention’s definition of terrorism.

Approaches to a definition of terrorism• Geoffrey Levitt dates ‘the first organized international

legal attempt to grapple with the problem of defining terrorism’ to the International Conferences for the Unification of Penal Law in the 1920’s and 1930’s.

• In 1988, Alex Schmid and Albert Jongman, conducted a study (Political Terrorism) and identified 109 different definitions of terrorism.

• Despite efforts and greater focus following 9/11, attempts to develop a universally accepted definition have failed.

• Levitt likened the search for a legal definition of terrorism to ‘the search for the holy grail’

(Ben Golder and George Williams, What is Terrorism? Problems of Legal Definition)

Approaches continued…• 1937 – League of Nations’ Convention for the

Prevention and Punishment of Terrorism. Didn’t get enough support to be put into practice.

• Post 1963 – many decisions and conventions accepted with the UN. BUT none of these contain a definition on terrorism.

• European Convention on the Suppression of terrorism 1977 and International Convention for the Suppression for the Financing of Terrorism 1999 both failed to define terrorism.

Regional Treaties• In Ben Saul’s book, ‘Defining Terrorism in International

Law’, there is reference to regional treaties and some of them provide general definitions on terrorism. He claims that some of these are so wide as to be indistinguishable from other forms of political violence. (p.190)

• The International Court of Justice also refers to this distinctness. In the Colombian-Peruvian Asylum Case (ICJ Reports, 1950), it was stated that ‘these treaties reflect so much uncertainty and contradiction, so much constant and uniform usage, accepted as law’.

• In another ICJ case, this time concerning fisheries (Anglo-Norwegian Fisheries case, ICJ Reports, 1951), the Court observed on the same subject ‘too much importance needs to be attached to a few uncertainties or contradictions.’

Security Council Resolution 1373•The UN General Assembly produced

resolutions concerning international terrorism, the most important being Resolution 1373, which established the Counter-Terrorism Committee. Resolution 1373 permits every member state to publish the concept of terrorism under its marital system. Eris Rosand believes that this situation cannot end the definition problem because every state will express terrorism divergently in its legal order.

(Eric Rosand: Security council resolution 1373, the counter-terrorism committee, and the fight against terrorism).

Resolution 1566• A definition is supplied:

“Recalls that criminal acts including against civilians, committed with the intent to cause death or seriously bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group persons or particular persons, intimidate a population or compel a government or an international organisation to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism , are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, and calls upon all States to prevent such acts and, if not prevented, to ensure that such acts are punished by penalties consistent with their grave nature.”

However…•According to Schmid, Resolution 1566 is

non-binding, lacking legal authority in international law.

•Saul in p.247 of his book claims that the Council adopted this resolution in which the definition of terrorism has been generically given, but not expressly framed as a definition.

Reasons for elusiveness on terrorism

(1) the concept of “terrorism”According to some scholars the inability to define terrorism in international law can be acceptable because as Schmid points out ‘terrorism is a ‘contested concept’ and political, legal, social science and popular notions of it are often diverging’Begorre-Bret notes, over the years: ‘the member states did not manage to reach any consensus concerning the definition of terrorism’ because every state has different backgrounds and regimes. However, if one state defines terrorism broadly and the other has a narrow one, a constant consensual policy will be a difficult goal.

Begorre-Bret also points out the subjective concept of terrorism; that it is not feasible to define terrorism since it is impossible to discern objectively between legitimate force and illegitimate violence, between “ the hero” and “the barbarian”, and between “the warrior” and “the murderer”. There is no objective explanation of terrorism but only several partial and ideological characterisations of the violence of the foe. The defining of terrorism is embedded in a persons or nation’s philosophy. Therefore, it should be accepted the determination to what constitutes terrorism is subjective.

Reasons for elusiveness on terrorism cont…(2) interest of statesWhen the states define terrorism they focus on their own priorities in reference to their national interest; therefore, the definition should be disinterested. As Ganor remarks: ‘if all the enlightened countries do not change their priorities, and do not disenable their political and economic interest, it will not be feasible to wage an effective war against terrorism’. In this regard, Begorre-Bret makes an important point, that the states and criminal organisations themselves create the disputes and confusion about definition because they do not wish to limit their reasons to the use of force.

(4) reluctance to define terrorismInternational organisations are aware of the definition issue, yet they hesitate to create universally accepted definition. They condemn terrorism but they do not define. As Walter (2004; cited in Golder and Williams 2004, p.271) accepts, it is clearly required to create a consistent legal definition of terrorism.

(5) CULTURAL RELATIVISM!!!!Because of this, the definition of terrorism shows differences from community to community. It has also been defined differently by politicians, security experts and journalists.Begorre-Bret remarks: ‘Failure is in their interest because it strengthens ethical and juridical relativism’Moreover, as Ganor claims, in the absence of an objective and authoritative description, which is acknowledged by all nations, fighting against terrorism will suffer from cultural relativism. The problem arises from the fact that we are seeking a firm definition of untenable terms. As Ganor claims, there is a tendency to believe that an objective and universally recognized definition of terrorism can never be achieved because this term is a variable. For instance, ‘one man’s terrorist is another man’s freedom fighter’

Is One Man’s Terrorist Another Man’s Freedom Fighter? (Boaz Ganor, ICT Executive Director)

•Terrorism or Revolutionary Violence?•Terrorism or National Liberation?•Targeting “the innocent”?•Guerrilla Warfare vs. Terrorism

No definition, no effect• Without a definition of terrorism, it is impossible to formulate or enforce

international agreements against terrorism. A conspicuous example of the need to define terrorism concerns the extradition of terrorists. Although many countries have signed bilateral and multilateral agreements concerning a variety of crimes, extradition for political offenses is often explicitly excluded, and the background of terrorism is always political. This loophole allows many countries to shirk their obligation to extradite individuals wanted for terrorist activities. It isn’t only countries like Italy and France that have refrained from extraditing terrorists, adducing political motives. In the U.S. too, in June 1988, a Brooklyn judge rejected the plea of a federal prosecutor requesting the extradition of Abed El Atta (an American citizen suspected of participating in an attack against a bus in the West Bank in April 1986, in which four people were killed). The judge stated that this attack was a “political act,” part of the uprising in the occupied territories, and instrumental in the attainment of the PLO’s “political aims.” “In the West Bank, today’s rebels could be tomorrow’s rulers.” According to the judge, this is a “political charge,” excluded from the category of crimes included in the extradition treaty between Israel and the United States.

Is the threat of execution an effective strategy in preventing terrorist attacks? • This view is purely a myth.• The prospect of execution is unlikely to act as a deterrent to people

prepared to kill and injure for the sake of a political or other ideology.• Some officials responsible for counter-terrorism have repeatedly

pointed out that those who are executed can be perceived as martyrs whose memory becomes a rallying point for their ideology or organizations.

• Armed opposition groups have also pointed to the use of the death penalty as a justification for reprisals, thereby continuing the cycle of violence.

• If this is the case then would an agreed international agreement on a definition for terrorism make any difference? It would make international agreements easier to enforce but I don’t think it will prevent terrorist attacks.

• Counter-terrorism – is it effective or does International Human Rights and Humanitarian law need to be violated to combat terrorism? Would this not lead to further reprisals?

Summary of definition• Based on the international community’s identification of the underlying

wrongfulness of international terrorism, terrorism can be deductively defined as:

(1) any serious, violent, criminal act intended to cause death or serious bodily injury, or to endanger life, including acts against property;

(2) where committed outside of an armed conflict;(3) for political, ideological, religious, or ethnic purpose; and(4) where intended to create extreme fear in a person, group, or the general

public, and: (a) seriously intimidate a population or part of a population, or (b) unduly compel a government or an international organization to do or to abstain from doing any act. (5) Advocacy, protest, dissent or industrial action which is not intended to cause death, seriously bodily harm, or serious risk to public health or safety does not constitute a terrorist act. (Elizabeth Bates - Terrorism and International Law: Accountability, Remedies, and Reform)

Conclusion•Defining terrorism is sometimes just as difficult

as combating terrorism. •A universally accepted definition is needed for

more effective international operation.•BUT the effect can only be so much…•Then again, at least the international

community are doing something and the sooner a definition can be brought in the better.

•A definition is needed otherwise we don’t know what exactly we are fighting against.