Legal Definition of Terrorism
Introduction:
Nations have argued for generations about a
legal definition for terrorism. Even today, there is no single universal
definition. Yet, if the UN is to draft a comprehensive convention on terrorism
as is planned for the near future and recently proposed by India, a consensus
must be reached. Worse, without a clear definition, the international
community is hard-pressed to combat a problem which it cannot with assurance
identify.
Critical Need:
In November 2000, the Legal Committee found
broad support for producing a comprehensive convention to complement or even
replace the piece-meal crime-specific treaties currently in effect. The support
is based upon an apparent growing need to combat terrorism more effectively.
Globalization itself is allowing
terrorist organization broader and more efficient means of communication and
access to technology (see, for instance, the
1997 SEMMUNA topic on Cyberterrorism).
Terrorism is also closely linked to organized crime and drug trafficking, making
distinctions between these crimes difficult. More, too many countries continue
to offer “safe haven” for terrorist groups either by choice or through their
inability to root them out. One man’s terrorist is another’s freedom fighter.
Worse still, how might a definition impact seeming terrorist acts by a state’s
armed forces?
Divisions Among Nations
and Complications:
At the Legal Committee’s 29th Meeting
in November 2000, several countries responded to the call to define terrorism.
Iran noted that some terrorists work under
disguised names, including those of human rights NGOs to find safe haven in
other nations. Iran also noted that technologies are creating new and
surprising attacks against states unprepared to counter them. Finally, Iran
noted that it was against an offer of immunity to military forces during times
of peace as it was often these very forces which committed the atrocities.
Israel was particularly concerned that some
states believed acts of bombing were not terrorism if done for national
liberation. Without a standard of definition, without unified political will,
terrorism thrives. The fight must be “coordinated, continuous, comprehensive,
and unrelenting.”
GUUAM Group, former Soviet
Republics, warned of connections between terrorism, aggressive separatism, and
religious extremism. Like Israel, GUUAM warned that the objective of terrorism
must be disconnected from the unjustifiable act.
Congo noted that state terrorism has
allowed neighboring countries to pillage its people’s natural resources.
Yemen noted that terrorist attacks now seek to
injure relationships between countries (like the US & Yemen after the bombing of
the USS Cole). Syria joined in the call, and also noted that state terrorism by
Israel had resulted in the deaths of Palestinian women and children. Further,
Syria noted that Israel’s chosen targets were often symbolic rather than
military in nature, placing their actions under the umbrella of terrorism by
some definitions.
Some Proposed
Definitions:
The committee may begin to work with these
definitions or even adopt one if a consensus may be reached. Nevertheless,
close examination will reveal the inadequacies of the definitions which has
previously stalled full consensus.
1)
League of Nations Convention (1937) – “All criminal acts directed
against a State and intended or calculated to create a state of terror in the
minds of particular persons or a group of persons or the general public.”
2)
UN Resolution language, 1999 – “1. Strongly condemns all acts,
methods, and practices or terrorism as criminal and unjustifiable, wherever and
by whomsoever committed; 2. Reiterates that criminal acts intended or calculated
to provoke a state of terror in the general public, a group of persons or
particular persons for political purposes are in any circumstance unjustifiable,
whatever the considerations of a political, philosophical, ideological, racial,
ethnic, religious or other nature that may be invoked to justify them.” (GA Res
51/210, 55/158, and ohers).
3)
Short legal definition proposed by A.P. Schmid to UN Crime Branch
(1992) – Act of Terrorism = Peacetime Equivalent of War Crime. (War crimes
are usually defined as deliberate attacks on civilians, hostage taking, and the
killing of prisoners.)
4)
Academic Consensus Definition (1988) – “Terrorism is an
anxiety-inspiring method of repeated violent action, employed by (semi-)
clandestine individual, group, or state actors, for idiosyncratic, criminal or
political reasons, whereby—in contrast to assassination—the direct targets of
attacks are not the main targets. The immediate human victims of violence are
generally chosen randomly (targets of opportunity) or selectively
(representative or symbolic targets) from a target population, and serve as
message generators. Threat—and violence—based communication processes between
terrorist (organization), (imperiled) victims, and main targets are used to
manipulate the main target (audience(s)), turning it into a target of terror, a
target of demands, or a target of attention, depending on whether intimidation,
coercion, or propaganda is primarily sought” (Schmid).
5)
US Dept. of Defense definition – “The calculated use of violence
or the threat of violence to inculcate fear; intended to coerce or to intimidate
governments or societies in the pursuit of goals that are generally political,
religious, or ideological.”
Existing Conventions against Terrorism
Broad international ratification of
these treaties and others remains difficult to achieve. These treaties further
are limited in their scope and so even collectively miss many or most modern
terrorist actions. They are all available on-line an www.undcp.org.
1)
Convention on Offences and Certain Other Acts Committed On Board Aircraft
(“Tokyo Convention,” 1963).
2)
Convention for the Suppression of Unlawful Seizure of Aircraft (“Hague
Convention,” 1970)
3)
Convention for the Suppression of Unlawful Acts Against the Safety of
Civil Aviation (“Montreal Convention,” 1971)
4)
Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons (1973)
5)
International Convention Against the Taking of Hostages (“Hostages
Convention,” 1979)
6)
Convention on the Physical Protection of Nuclear Material (“Nuclear
Materials Convention,” 1980)
7)
Protocol for the Suppression of Unlawful Acts of Violence at Airports
Serving International Civil Aviation, supplementary to the Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation, (1988)
8)
Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation (1988)
9)
Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed
Platforms Located on the Continental Shelf (1988)
10)
Convention on the Marking of Plastic Explosives for the Purpose of
Detection (1991)
11)
International Convention for the Suppression of Terrorist Bombing (1997
UN General Assembly Resolution)
12)
International Convention for the Suppression of the Financing of
Terrorism (1999)
Committee Mission
As you might suspect, this committee
must attempt to the clear the way for a Comprehensive Terrorism treaty by
building consensus on a definition for terrorism. Aristotle said that all good
definitions should have both “necessary” and “sufficient” terms. In other
words, the committee’s definition must not omit any ideas necessary for the
definition to function for international law. Here are some points to consider:
1)
Act – What does the act of terrorism look like? Violence may be a
necessary term, but it is hardly sufficient to define terrorism on its own.
2)
Actors – Who can be considered a terrorist? Are all political insurgents
terrorists even if they comply with the rules of war?
3)
Target – What targets may be terrorist targets?
4)
Goals – Are these relevant to the Act? Are they necessary to include?
If not, how does one distinguish it from criminal violence?
It may also be that the committee fails in its task or discovers that every
definition has circumstances which may include non-terrorist acts or exclude
terrorist ones. In that case, as a secondary goal, the committee may choose to
build a process for the international classification of terrorism on a
case-by-case basis.
If the committee works in this direction, simply
saying that the International Court of Justice will deal with it will be
insufficient. The committee will have to offer a process, criteria for
definitions, etc. by which the justices or others may render a decision.
Further, such an approach may not satisfy the need for consensus, the very
reason we need a definition. Too many states place reservations on the
decisions of international courts, claiming that they do not recognize the ICJ’s
authority in the matter. Again, the process will be difficult to hammer out.
In any case, the arguments before the committee
should test potential definitions against classic cases and scenarios of
terrorism to see if they fit. For instance:
1)
Lockerbie, Scotland, Pan AM 103 Bombing
2)
World Trade Center Bombing
3)
USS Cole Bombing
4)
Bombing of US Embassies in Kenya and Tanzania
5)
1986 US Bombing of Libya
6)
Oklahoma City federal building bombing by Timothy McVeigh
7)
Cyberterrorism
8)
Israel’s attacks on Palestinians, or Palestinians on Israel
9)
Threats of terrorism
Questions to Consider:
1)
Has your country been a target of terrorists, harbored terrorists, or
been accused of committing terrorism?
2)
How seriously is your country affected by organized crime, drug
trafficking, or insurgencies?
3)
What resources does your country have to fight modern terrorist acts?
4)
What allies does your country have which might be affected by the above
questions?
5)
How important is a definition of terrorism? How important is it to
achieve consensus? What might your country be willing to compromise to achieve
it?
Sources:
US
Department of Defense
United Nations Drug Control Programme,
www.undcp.org
