The evolution of terrorism as a legal concept in international law (2)

Part 1

Part 2:

A. Brief History of Terrorism through Time

Generally speaking, for hundreds of years “terrorism” has been used as a pejorative term, usually applied to “the other side.” This is the word’s political descriptor role; its significance as a legal term is more recent. [14]

The root word “terror” (from the Latin “terrere”—“to frighten”) entered Western European languages’ lexicons through French in the fourteenth century and was first used in English in 1528. [15] “Terrorism” gained its political connotations from its use during the French Revolution. The French legislature led by Maximilien Robespierre, concerned about the aristocratic threat to the revolutionary government, ordered the public execution of 17,000 people (“regime de la terreur”) to educate the citizenry of the necessity of virtue. [16] Robespierre’s supporters who turned against him, having supported the use of terror in the first instance, accused him of using terrorism in an attempt to identify the illegitimate use of terror. [17] Terrorism, initially associated with state-perpetrated violence, shifted to describing non-state actors following its application to the French and Russian anarchists of the 1880s and 1890s. [18]

Terrorism following World War II harnessed newly developed technology. Terrorist hijackings of civil aviation aircraft were a feared and relatively common occurrence. [19] The international community responded with a series of treaties which, in tandem with increased airport security, successfully reduced the incidence of harm to aircraft and passengers. The United Nations’ response to a series of terrorist attacks on diplomats and civilians in the 1970s was similarly reactionary. [20] The International Convention Against the Taking of Hostages (Hostages Convention) followed in 1979, although it did not result in fewer hostage-taking incidents. [21] Of course, law alone is insufficient; it must be buttressed with faithful enforcement and effective prevention strategies. [22]

The terrorism that began in the early 1990s differs from that of the 1960s and 1970s [23] (although terrorism motivated by the goal of de- colonization still exists, inter alia, in the Middle East and around Kashmir). [24] This modern variety of terrorism comes from a mix of religious affiliation intertwined with political ideology and geo-political goals. [25] It poses a greater threat to society, in part because modern terrorists are harder to deter than the terrorists of the 1960s who were concerned— at least to a greater extent—with the harmful consequences of their actions. [26] Furthermore, the relationship between the means employed and the terrorists’ ends is more attenuated than in the past. Although the frequency of terrorist attacks has been relatively constant since 1989, [27] the increasing scale of attacks (as September 11, the Bali and Madrid bombings, the siege at Beslan, and the London bombing tragically illustrate)[28] is alarming. September 11, illustrating that terrorism crosses national and ethnic boundaries, [29] changed the prevailing attitude to terrorism and certainly the attitude of the most influential states. The proliferation and greater availability of weapons of mass de- struction, [30] modern society’s dependence on computer systems, and the emergence of cyber-terrorism [31] increases the likelihood of a large- scale high-impact terrorist attack. The use of civil aviation aircraft to destroy the World Trade Center towers in New York and part of the Pentagon building in Virginia on September 11 is perceived as highlighting deficiencies in international anti-terrorism law and enforcement: the lack of international police and intelligence coordination; the absence of a comprehensive definition of terrorism; and insufficient international criminal law infrastructure. [32] The attacks’ scale and principal victim jolted world opinion. Consequently, the Security Council issued an inter ventionist resolution, the U.N. General Assembly took up the terrorism debate with increased vigor, and, generally speaking, states and non-state entities reaffirmed the relevance of international law and cooperation in preventing and punishing terrorism.

14 See infra Part II(B).

15 Alex P. Schmid, The Problems of Defining Terrorism, in Encyclopedia of World Terrorism 12, 12 (Martha Crenshaw & John Pimlott eds., 1997).

16 Id. at 12–13; see also Peter J. van Krieken, Terrorism and the International Le- gal Order with Special Reference to the UN, the EU and Cross-Border Aspects 13 (2002) (describing other instances of government-sponsored terrorism used to engender fear in the citizenry).

17 Schmid, supra note 15, at 13.

18 These groups sought to affect political change through violence against symbolic targets that would, they hoped, arouse the masses. See id. at 13–14. See generally Joseph Conrad, The Secret Agent (1907).

19 See Alona E. Evans, Aircraft Hijacking: Its Cause and Cure, 63 Am. J. Int’l L. 695, 697–

98 (1969).

20 See Caleb Pilgrim, Terrorism in National and International Law, 8 Dick. J. Int’l L. 147,

151 (1990).

21 Bassiouni, Multilateral Conventions, supra note 6, at 48.

22 See, e.g., Alberto R. Coll, Comment, The Legal and Moral Adequacy of Military Responses to Terrorism, 81 Am. Soc’y Int’l L. Proc. 297, 304 (1987) (noting that Egyptian President Mubarak sent the hijackers responsible for the murder of a U.S. citizen during the seizure of the Achille Lauro away from Egypt to avoid having to exercise Egypt’s extradition juris- diction under foreign pressure).

23 See Michael Whine, Antisemitism Worldwide 2000/1: The New Terrorism, (last visited Oct. 21, 2005).

24 Ownership of provinces of Kashmir and Jammu is disputed by India and Pakistan.

25 See Bassiouni, Multilateral Conventions, supra note 6, at 46, 47, 52.

26 Id. at 52–53.

27 See U.S. Dep’t of State, Patterns of Global Terrorism, supra note 6, app. H.

28 On September 11, 2001, hijacked aircraft were ºown into the two World Trade Center Towers in New York City and into the Pentagon Building in Virginia. Approximately

3000 people were killed. On October 12, 2002, 202 people were killed in a bombing of a nightclub district in Bali, Indonesia. On March 11, 2004, bombs exploded on commuter trains in Madrid, Spain killing approximately 200 people. On September 3, 2004, at least

339 people were killed in an attack on a school in Beslan, Russia. See Steven Lee Myers, In Russia, Dissent Grows over Moves to Curb Regional Autonomy, N.Y. Times, Oct. 4, 2004, at A8. On July 7, 2005, four explosions on London’s public transport system killed fifty-two people.

29 Nicholas Rostow, Before and After: The Changed U.N. Response to Terrorism Since September

11th, 35 Cornell Int’l L.J. 475, 476 (2002).

30 See Non Proliferation of Weapons of Mass Destruction - A G8 Declaration ¶ 1 (2003), available at documents/non_proliferation_of_weapons_of_mass_destruction_-_a_g8_declaration.html.

31 See generally Susan W. Brenner & Marc D. Goodman, In Defense of Cyberterrorism: An

Argument for Anticipating Cyber-Attacks, 2002 U. Ill. J.L. Tech. & Pol’y 1, 12–24, 27.

32 See Asli Bâli, Stretching the Limits of International Law: The Challenge of Terrorism, 8 ILSA J. Int’l & Comp. L. 403, 408 (2002).