The evolution of terrorism as a legal concept in international law (3)

II. The Definition of Terrorism at International Law

Despite its prior exclusive use as a pejorative political term of stigmatization, “terrorism” is increasingly used as a legal term33 and therefore should be accompanied by a discrete meaning. The definition certainly requires something more than “[w]hat looks, smells and kills like terrorism is terrorism.”34

The seven sections in this Part of the Article examine the development of terrorism as a legal concept at international law. Section A considers the methodological issues with defining terrorism and outlines the importance of an agreed upon definition. Section B tracks the pre-United Nations development of the concept. Section C considers the debate in the U.N. General Assembly and its various resolutions and declarations with respect to terrorism. Section D addresses the role of the Security Council, with particular attention given to Resolutions 1373 of 2001 and 1566 of 2004. Section E examines the international anti-terrorism conventions and analyzes their contribution to establishing a definition of terrorism. Section F distills a definition of terrorism from the existing international anti-terrorism conventions and other sources by identifying the substantive overlap in the quasi-definition al statements and the common themes running through the conventions. Finally, Section G concludes that there is considerable agreement regarding the core meaning of terrorism and briefly notes the current definition al developments and those likely in the near future.

A. It’s a Question of Definition

In 2001, following the September 11 attacks, the United Nations Security Council declared that “acts of international terrorism constitute one of the most serious threats to international peace and security in the twenty-first century,”35 but exactly what constitutes this threat is subject to conjecture. Rather than define and prohibit terrorism in toto, international and domestic instruments frequently prohibit particular acts recognized as falling under the banner of terrorism. Such acts are often proscribed without expressly acknowledging that the acts are considered to be terrorism. Thus, when identifying the content of terrorism as a concept, the inquiry cannot be limited to international instruments that expressly mention terrorism. This Part of the Article, however, limits itself to international law at large (rather than regional international law, such as the law of the European

Union or the Organization of African Unity). Part Three considers domestic law definitions.

1. International Terrorism

Legal measures targeting terrorism operate on both the domestic and international planes. To engage the United Nations, as a political and legal matter, terrorism must have a significant international dimension. 36 Although a significant proportion of terrorism is intrastate, terrorism is frequently international in character: by crossing borders (as in Kashmir), by the nationality of participant and/or victim (as in September 11), or by target despite being geographically intra-state (for example, attacks on foreign visitors in Bali by Indonesia- based terrorists). Acts may also be considered international in character when they attempt to influence foreign governments and when they implicate the interests of more than one state.

2. The Importance of an Accepted Definition

The exclusion of terrorism from the jurisdiction of the International Criminal Court37 is consistent with the international community’s approach of creating a web of overlapping national criminal jurisdictions to outlaw terrorist acts rather than creating a comprehensive international regime. Notwithstanding this approach, a universally accepted definition is crucial, as it harmonizes the operation and interaction of the overlapping domestic criminal jurisdictions (for example, facilitating extradition). An accepted definition would enhance intelligence sharing and international cooperation38 and permit tighter goal definition in the “war against terrorism,” which might facilitate coalition building and strengthen the legitimacy of the “war.” Imposing sanctions and criticizing states that support terrorism would attract broader support once a definition of terrorism is established.

In the United States, criminal prosecution of terrorists is a critical, if not the dominant, method of counter-terrorism.39 The effectiveness and fairness of such an approach turns on whether there is a clear definition of terrorism in the applicable laws.

The mobility of international terrorists allows them to select their place of operation and strike at targets beyond their home state’s borders. Simply prohibiting terrorism in one state is not sufficient to stop terrorist attacks in all states. A common definition is needed to provide a sufficient “least common denominator” jurisdiction worldwide. Even if all acts done by terrorists—for example, murder, property damage, and kidnapping—should be crimes in all domestic jurisdictions notwithstanding the obligations under the various conventions,40 the conventions focus international attention, voice the commitment of states to fight terrorism, and help to ensure consistent criminalization.41

Security Council Resolution 1373 of 2001 imposes significant obligations on states to fight terrorism.42 Nevertheless, without a common understanding of against whom or what states should be fighting, counter- terrorism obligations can be avoided or used to mask human rights abuses. Human rights organizations have reported acts of repression against legitimate political opposition or dissidents under the pretext of fighting terrorism,43 and, although not necessarily corrective, an accepted definition would make it harder to engage in such acts.

This Article contends that there is a core meaning of terrorism that should be accepted as the minimum international definition. This core definition serves as a useful yardstick against which to measure domestic terrorism legislation. The balance of this Part of the Article argues that a definition emerges from the relevant conventions and resolutions. As Emanuel Gross said: “[T]he majority of the definitions have a common basis—terrorism is the use of violence and the imposition of fear to achieve a particular purpose.”44

Similarly, Professor Oscar Schachter remarked that the absence of a comprehensive definition “does not mean that international terrorism is not identifiable. It has a core meaning that all definition s recognizes.” 45 Speaking more broadly than just the legal definition of terrorism, Brian Jenkins said in 1992 that “a rough consensus on the meaning of terrorism is emerging without any international agreement on the precise definition.”46 This Article identifies the parameters of this core definition by examining the overlap of existing prohibitions but, more importantly, by identifying recurrent themes present in statements at international law about terrorism. Although the conventions are more a product of political compromise than derived from principle, the extent of the overlap and common elements indicates a broad conceptual consensus regarding terrorism as a legal concept.

The evolution of terrorism as a legal concept in international law (1)

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

33 Cf. Christian Walter, Defning Terrorism in National and International Law, in Terrorism

as a Challenge for National and International Law: Security Versus Liberty?

23–43 (Cristian Walter et al. eds., 2004).

34 See Sir Jeremy Greenstock, KCMG Permanent Representative of the United Kingdom

of Great Britain and Northern Ireland, General Assembly Debate on Terrorism, 1

October 2001, (2001),

35 S.C. Res. 1377, Annex, U.N. Doc. S/RES/1377 (Nov. 12, 2001).

36 The United Nations’ mandate does not directly authorize addressing intra-state terrorism

although this strict international-domestic distinction seems artifcial given the

pervasive inºuence of human rights. U.N. Charter art. 1. Contra Aaron J. Noteboom, Terrorism:

I Know It When I See It, 81 Or. L. Rev. 553, 559 (2002).

37 See Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S.

90 [hereinafter Rome Statute]. The exclusion of terrorism from the Court’s jurisdiction

largely resulted from an inability to defne the elements of the crime. Richard J. Goldstone

& Janine Simpson, Evaluating the Role of the International Criminal Court as a Legal Response to

Terrorism, 16 Harv. Hum. Rts. J. 13, 14 (2003).

38 See Jacqueline Ann Carberry, Terrorism: A Global Phenomenon Mandating a Unifed International

Response, 6 Ind. J. Global Legal Stud. 685, 711 (1999).

39 See Jacques deLisle, The New Protracted Conºict: The Roles of Law in the Fight Against Terrorism,

46 ORBIS 301, 306 (2002); Abraham Sofaer, Playing Games with Terrorists, 36 New

Eng. L. Rev. 903, 903 (2002). See generally Ronald Sievert, War of Terrorism or Global Law

Enforcement Operation? 78 Notre Dame L. Rev. 307 (2003).

40 See Maurice Flory, International Law: Instruments to Combat Terrorism, in Terrorism

and International Law 31, 31 (Rosalyn Higgins & Maurice Flory eds., 1997).

41 See J.G. Starke, The Convention for the Prevention and Punishment of Terrorism, 19 Brit.

Y.B. Int’l L. 214, 215 (1938). Most terrorist acts (for example, murder) are illegal notwithstanding

terrorism prohibitions. Some commentators thus question the need for specifc

terrorism crimes. See, e.g., Matthew Palmer, Counter-Terrorism Law, 2002 N.Z. L.J. 456.

42 S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001).

43 Russia and Egypt, for example, are alleged to have dismantled domestic political opposition

under the pretext of fghting terrorism. See Human Rights Watch, In the Name of

Counter-Terrorism: Human Rights Abuses Worldwide (2003), available at http://www.

45 Oscar Schachter, The Extraterritorial Use of Force Against Terrorist Bases, 11 Hous. J.

Int’l L. 309, 309 (1989).

46 Schmid, supra note 15, at 18.

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