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A Definition of Terrorism in the Making: Balancing State Interests with Cosmopolitan Ideals
Abstract
Having thus shown how State-centric and cosmopolitan concerns have influenced the process of criminalising (or creating a framework for criminalisation of) terrorism, this chapter will focus on the definitional process and principally, on how concerns that relate either to State interests or cosmopolitan purposes should shape the formulation of an international definition for terrorism. The analysis will start with the International Convention for the Suppression of the Financing of Terrorism, as it contains the first example of a treaty law definition that can be tracked down at an international level after the establishment of the UN. Secondly, the UN Draft Comprehensive Convention on Terrorism and the Appeals Interlocutory Decision of the Special Tribunal of Lebanon, as well as some regional instruments and domestic anti-terrorist law, will be compared and contrasted, with the purpose of tracing which definitional elements are the least debated and which ones remain contentious. The comparative analysis of these instruments will reveal some common ground that already exists (and can be used as a safe basis to build upon an international definition) as well as the two major contested elements of defining terrorism: (i) the inclusion of a political/ideological motive requirement and (ii) the exemption of activities carried out by particular groups or individuals from the definition. Subsequently, both these groups of elements will be put under the light of the ‘State sovereignty versus cosmopolitanism’ debate, highlighting their aspects that pertain to this debate and demonstrating how these aspects should be addressed in the context of finally formulating an international definition for terrorism.
The study examines the development of international terrorism and the problem of its definition. Consequently, the objective of the study was to generate a systemic view of international terrorism and to identify current trends in its development. A structural and functional analysis of international terrorism as a political phenomenon was used. Based on the analytical model provided, the development of international terrorism was divided into periods based on political and geographical zoning. Three consistent principles determine the key characteristics of international terrorism as a rational strategy of unconventional political struggle: the transition to asymmetrical actions, attacks on symbolic objects, and influencing public opinion as the main objective. This triality of characteristics linked to a model of the political process defines the existence of international terrorism as a phenomenon and provides a key to understanding its dynamics. It is concluded that there are four periods in the development of international terrorism, divided into two cycles with breaking points, ascending, and descending phases. The proposed periodization of the development of international terrorism is based on the identification of the centers as political-geographical areas, where contradictions are configured and the political struggle that is part of the logic of the terrorist strategy.
Terrorism has become an especially pressing security problem, both domestically and internationally, over recent decades. States have considered terrorism also as a national security threat that requires military action. Although the rules on the use of armed force were traditionally for inter-state relations, it does not mean that states may not use armed force in the conflict with terrorist non-state actors. Indeed, it would be absurd to claim that states may not exercise self-defence or employ collective security system merely because the adversary is a non-state actor. This demands a more innovative interpretation and use of existing international legal system, while not jeopardising its foundations in the process.
On 16 February 2011, the Appeals Chamber of the Special Tribunal for Lebanon (STL) issued an interlocutory decision regarding the legal definition of terrorism.This decision was in response to a Pre-Trial Chamber (PTC) list of questions requesting,' inter alia', an elaboration of the elements of this crime.In exploring this matter, the Appeals Chamber defined the subjective ('mens rea') and objective elements ('actus reus') of terrorism by referring to domestic Lebanese law and international law. It thereby set out the applicable law for the court. The consequence of this decision however is not limited to the law of STL but may be seen as having far-reaching consequences for the conception of terrorism under both international law and International Criminal Law (ICL). Given the significance of the Appeals Chamber judgment, this paper will scrutinise three areas of concern regarding its propriety:
The dynamics by which norms emerge and spread in international society have been the subject of strikingly little study. This article focuses on norms that prohibit, both in international law and in the domestic criminal laws of states, the involvement of state and nonstate actors in activities such as piracy, slavery, counterfeiting, drug trafficking, the hijacking of aircraft, and the killing of endangered animal species. It analyzes the manner in which these norms have evolved into and been institutionalized by global prohibition regimes and argues that there are two principal inducements to the formation and promotion of such regimes. The first is the inadequacy of unilateral and bilateral law enforcement measures in the face of criminal activities that transcend national borders. The second is the role of moral and emotional factors related to neither political nor economic advantage but instead involving religious beliefs, humanitarian sentiments, fears, prejudices, paternalism, faith in universalism, the individual conscience, and the compulsion to proselytize. The ultimate success or failure of an international regime in effectively suppressing a particular activity depends, however, not only on the degree of commitment to its norms or the extent of resources devoted to carrying out its goals but also on the vulnerability of the activity to its enforcement measures.
Notwithstanding the emphasis placed on the need for concerted international action to confront the problem of terrorism, positive international law is far from treating the issue of defining the criminal notion of terrorism coherently; the discussion of such a notion is being made hostage [sic!] to the abuse of the term ‘terrorism’ in the course of the debate and to the confusion between an empirical description of a phenomenon and its treatment under criminal law. Proposing a core-definition approach, this article elaborates a notion based upon the basic rights of civilians and on the unacceptability of their violation by terrorist methods carried out by private organized groups. The definition proposed here, which does not recognize in the perpetrator’s motivations any material relevance because of the overwhelming importance of the value infringed, is able to minimize the relevance of some abused arguments (such as state terrorism or the treatment of ‘freedom fighters’), could quickly gain customary status and would prove useful in interpretation and in drafting exercises, both at international and national level. As for the inclusion of terrorism in the category of international crimes, it is submitted that two interpretive options are open: to consider the category of crimes against humanity as already able to embrace core terrorism; or to place the strong rationale underlying the stigmatization of terrorist crimes in the perspective of the gradual emerging of a discrete international crime of terrorism. National case law seems to point to the latter option, but the question does not appear settled: for this reason, the discussion regarding the prospect of an amendment to the ICC Statute expressly to include terrorist crimes continues to be of interest. An express inclusion could be useful to avoid doubts or discrepancies at national level and to solve some outstanding issues of the international community's criminal policy.
International criminal law is currently subdivided into international criminal law stricto sensu — the so-called core crimes — and crimes of international concern — the so-called treaty crimes. This article suggests that the latter category can be appropriately relabelled transnational criminal law to find a doctrinal match for the criminological term transnational crime. The article argues that such a relabelling is justified because of the need to focus attention on this relatively neglected system, because of concerns about the process of criminalization of transnational conduct, legitimacy in the development of the system, doctrinal weaknesses, human rights considerations, legitimacy in the control of the system, and enforcement issues. The article argues that the distinction between international criminal law and transnational criminal law is sustainable on four grounds: the direct as opposed to indirect nature of the two systems, the application of absolute universality as opposed to more limited forms of extraterritorial jurisdiction, the protection of international interests and values as opposed to more limited transnational values and interests, and the differently constituted international societies that project these penal norms. Finally, the article argues that the term transnational criminal law is apposite because it is functional and because it points to a legal order that attenuates the distinction between national and international.
This chapter illustrates that a key challenge in contemporary discourses on this subject lies in identifying the limits between terrorism and war. It makes clear that there appears to be considerable confusion between the concept of terrorism and the concept of war in the post 9/11 era, especially in the context of military action in Iraq and Afghanistan. The link between terrorism and war is analysed from three distinct but interrelated perspectives. Firstly, terrorist practices are also performed by the armed forces and organised groups of resistance in wartime. However, it is argued that, as a phenomenon, terrorism should not be confused with war or warfare guerrilla. Secondly, it is explored whether the threat of contemporary international terrorism is a manifestation of some sort of criminality, or, by contrast, represents a new form of warfare. The chapter considers the consequences of taking into account one or the other approach, as each would lead to the application of two opposite legal models.
Despite numerous efforts since the 1920s, the international community has failed to define or criminalize 'terrorism' in international law. This book first explores the policy reasons for defining and criminalizing terrorism, before proposing the basic elements of an international definition. Terrorism should be defined and criminalized because it seriously undermines fundamental human rights, jeopardizes the state and peaceful politics, and may threaten international peace and security. Definition would also help to distinguish political from private violence, eliminating the overreach of the many 'sectoral' anti-terrorism treaties. A definition may also help to confine the scope of UN Security Council resolutions since 11 September 2001, which have encouraged states to pursue unilateral and excessive counter-terrorism measures. Defining terrorism as a discrete international crime normatively recognizes and protects vital international community values and interests, symbolically expresses community condemnation, and stigmatizes offenders. Any definition of terrorism must also accommodate reasonable claims to political violence, particularly against repressive governments, and this book examines the range of exceptions, justifications, excuses, defences, and amnesties potentially available to terrorists, as well as purported exceptions such as self-determination struggles, 'state terrorism', and armed conflicts. While this book seeks to minimize recourse to violence, it recognizes that international law should not become complicit in oppression by criminalizing legitimate forms of political resistance. In the absence of an international definition, the remainder of the book explores how the international community has responded to terrorism in international and 'regional' treaties, the United Nations system, and in customary law. The final part of the book explores the distinctive prohibitions and crime of 'terrorism' in armed conflict under international humanitarian law.
Aggression, Crime and International Security examines the concept of aggression in international relations and how it has been dealt with by international law and collective security organisations. This book analyses the evolution of the concept of aggression in international relations from World War I to the post-Rome Statute era. It charts the emergence of two competing visions of this notion: on the one hand, as a triggering mechanism for collective security enforcement among states, and, on the other, as an international crime giving rise to individual responsibility. The author argues that despite certain contemporary international trends suggesting a shift away from traditional, state-centric power structures towards a more cosmopolitan, globalized polity, the history of the concept of aggression demonstrates just how far away this is in reality. By examining aggression in theory and practice at the League of Nations, the Nuremberg and Tokyo Trials, the United Nations, the conference establishing the Rome Statute, and beyond, the book reveals the recurring moral, political and legal challenges this concept poses - challenges which continue to be at the forefront of thinking about international relations today. This book will be of great interest to students of International Law, War Crimes, International Relations and Security Studies.
State sponsored or supported terrorism has long been a feature of modern international relations, but responsibility for such activities is rarely invoked or established successfully. One reason for this is the international community’s heavy reliance on a security paradigm in response to state involvement in terrorism over recent decades. The aim of this article is to examine an alternative response to State terrorism based on judicially determined legal responsibility rather than (to date unsuccessful) reliance on Article 51 of the UN Charter. This article will examine the possible bases of the ICJ’s jurisdiction in cases of state terrorism and argue that the series of terrorism suppression conventions—adopted by the international community with a view to ensuring the criminal responsibility of individual terrorist actors—could also be the vehicle for securing determinations of state responsibility for terrorism before the International Court of Justice.
The first part of this chapter assesses whether there is now an accepted definition of terrorism in general international law, in the wake of a decision by the UN Special Tribunal for Lebanon in 2011, which declared the existence of an international crime of transnational terrorism. This chapter concludes that there is insufficient evidence of a customary international law definition of terrorism, largely because there is too much inconsistency and divergence in the material sources of law such as international and regional treaties, national laws and judicial decisions, and United Nations resolutions. There are nonetheless good international public policy reasons for defining terrorism, to protect important community values and interests. Those policy reasons can illuminate the proper approach to the technical problem of defining the elements of terrorism, particularly in ways which do not interfere with other important global values, such as human rights and humanitarian law. In this context, the chapter explores the advantages and costs of defining terrorism in certain ways.
Negotiating a Comprehensive Convention on International Terrorism has been a long and intense process. The legal regime to
be created by this instrument has significant legal and political consequences. The main issues, which would frame such consequences,
are how to define the crime and decide the scope of application of such a Convention. These have proven to be problematic,
as negotiators have revisited issues that have been a source of debate for years, even centuries. Who has the right to participate
in an armed conflict without being described as a terrorist by the Convention? To what extent do we allow the overlap between
international humanitarian law and the Convention's law, if any? Do military forces have the right to be outside the scope
of the Convention even in peace time? These are the main questions that the negotiators have been trying to answer in order
to reach a compromise that will satisfy all parties. If genuine political will exists to conclude the Comprehensive Convention,
there is no absence of legal answers that can guarantee an effective law enforcement instrument against international terrorism,
without infringing on legal rights and positions under international law.
The year 2001 was marked by the terrorist attacks in America and the ensuing war in Afghanistan to destroy the terrorist networks suspected of organising the attacks. The terrorist attacks in New York and Washington, D.C., on 11 September had a significant impact on the UN and especially the activities of the 56th session of the General Assembly. The security of the most powerful nation on the face of the earth had been breached and the city which hosted the UN had come under direct attack of the terrorists. Immediately after the attacks the Security Council of the UN came into swift action by adopting resolutions designed to curb international terrorism.
In this article the authors review a number of recent legislative efforts to define 'terrorism' in common law jurisdictions and, on the basis of that review, make several recommendations as to the way in which that concept should be defined. These are, broadly: that a general and not a specific approach be adopted; that specific exceptions be made in favour of advocacy and civil protest; and, finally, that legislation should remain the primary means of defining terrorism.
In 2011, the Appeals Chamber of the UN Special Tribunal for Lebanon purported to identify a customary international crime of transnational terrorism and applied it in interpreting domestic terrorism offences under Lebanese law. This article argues that the Tribunal's decision was incorrect because all the sources of custom relied upon by the Appeals Chamber – national legislation, judicial decisions, regional and international treaties, and UN resolutions – were misinterpreted, exaggerated, or erroneously applied. The Tribunal's laissez-faire attitude towards custom formation jeopardizes the freedom from retrospective criminal punishment, subjugating the human rights of potential defendants to the Tribunal's own moralizing conception of what the law ought to be. The decision is not good for international law or public confidence in its institutions and processes.
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