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Terrorism: Towards a Legal Definition
By Atty. Soliman M. Santos, Jr.
SEPTEMBER 11 has brought to the fore the issue of international
terrorism and with it the question of its very definition. Malaysian
journalist Bunn Nagara of The Star, writing on the Special Session of
the Organization of the Islamic Conference (OIC) on 1-3 April 2002 in
Kuala Lumpur which failed to reach a consensus on the definition of
terrorism, said: "For the international community to do anything
resolutely against terrorism, policymakers have to move on. And the best
step forward is to begin by defining terrorism. This is a logical first
step, much as a physician has to diagnose a patient before prescribing
the appropriate treatment."
Similarly, the International Progress Organization (IPO), in The Baku
Declaration on Global Dialogue and Peaceful Co-Existence Among Nations
and the Threats Posed by International Terrorism of 9 November 2001,
said: "The United Nations Organization should urgently convene an
international conference with the aim of establishing a precise and
legally sound definition of terrorism. Unless this effort at
codification is undertaken, the term 'terrorism' will continue to serve
only as a tool to justify brute power politics and obfuscate the
superpower policy of double standards."
A Comprehensive Convention on International Terrorism, including a
definition of terrorism, has so far been elusive in the UN, as shown
most recently in the November 2001 sessions of the General Assembly's
Sixth Committee (Legal Affairs) and Ad Hoc Committee tasked to elaborate
an international convention for the suppression of terrorist bombings.
This has been attributed, among others, to "diverging political
interests and contradicting normative perceptions" especially between
Islamic states and Western states. This notwithstanding the fact that
the UN has 12 existing multilateral conventions on terrorism.
But none of these 12 conventions has a generally accepted single
inclusive definition of terrorism. International Law Commission (ILC)
member Raul I. Goco of the Philippines points out that each of these
conventions, which relates to various aspects of the problem, describes
only the particular or specific acts or subject-matter covered by it.
These are aircraft hijacking and sabotage, crimes against
internationally protected persons including diplomatic agents,
hostage-taking, physical protection of nuclear material, airport
violence, acts against maritime navigation safety, acts against the
safety of fixed platforms on the continental shelf, terrorist bombings,
and terrorist financing - so far.
American professors Anthony Clark Arend and Robert J. Beck, in their
book International Law and the Use of Force: Beyond the UN Charter
Paradigm (1993), note that a 1983 study by Dutch political scientist
Alex Schmid found that 109 definitions of terrorism have been advanced
between 1936 and 1981. More have appeared since then, including at least
six from the U.S. government. Thus, one Professor Levitt said that the
search for an authoritative definition "in some ways resembles the Quest
for the Holy Grail." Given the confusion, some legal scholars have
advocated simply dropping the use of the term.
This is why some human rights groups like Amnesty International do not
use the term "terrorism.". They say that in practice it is used to
describe quite different conduct. States describe acts or political
motivations that they oppose as "terrorist," while rejecting the use of
the term when it relates to activities or causes they support.
"Unfortunately," say Arend and Beck, "the problematic term 'terrorism'
like the complicated phenomenon it seeks to describe, will almost
certainly persist." Not to engage in a struggle of definition, however,
is to lose by default to the hegemony of definition by the vested powers
behind the current "global war against terrorism."
Fortunately, some insightful thoughts in recent years might help shorten
this "Quest for the Holy Grail." Arend and Beck themselves proposed "a
working definition, one which characterizes both the terrorist act and
the terrorist actor" rather than terrorism. They said a terrorist act is
distinguished by at least three specific qualities:
a. violence, whether actual or threatened;
b. a 'political' objective, however conceived; and
c. an intended audience, typically though not exclusively a wide one.
Hence, Arend and Beck define an "act of terrorism" as "the threat or use
of violence with the intent of causing fear in a target group, in order
to achieve political objectives." A more sophisticated version of this
definition is "the threat or actual use of violence to create extreme
fear or anxiety in a target group in order to coerce it to meet certain
political or quasi-political objectives."
As for terrorist actors, whether individuals or groups, Arend and Beck
categorized them by the strength of their association to states:
a. those without state toleration, support or sponsorship;
b. those with state toleration, but without state support or
sponsorship;
c. those with state support, but without immediate state sponsorship;
d. those with state sponsorship.
To this we might add "those which are states." As has been noted, states
are just as capable of committing terrorist acts as are non-state armed
groups.
But Nicholas Howen, the new Regional Director for Asia-Pacific of the
Office of the UN High Commissioner on Human Rights, in a paper for the
International Council on Human Rights Policy in January 2002, says that
"The problem in the UN is that states focus too much on who could be
labelled a terrorist rather than what a terrorist act looks like… States
could perhaps agree on a definition of terrorism if they limited it to
attacks, aimed at civilians, that spread terror. This would in effect
apply to peacetime the existing prohibitions in international
humanitarian law of attacks on civilians during armed conflicts." The
elements of targetting civilians as well as spreading terror are what
are missing in the Arend and Beck definition of terrorism.
The idea that international humanitarian law (IHL) "can provide guidance
to the legal approach to terrorism in peacetime" was first broached by
the long-time editor of the International Review of the Red Cross
Hans-Peter Gasser as early as 1985 in a paper entitled "Prohibition of
terrorist acts in international humanitarian law." And then Schmid in
his 1992 report to the UN Crime Prevention Office suggested to consider
an act of terrorism as "peacetime equivalent of a war crime."
And so, UN Secretary-General Kofi Annan, in his addresses to the General
Assembly on 1 October 2001 and to the Security Council on 12 November
2001, while acknowledging the definition of terrorism as one of the most
difficult issues before the UN, nevertheless referred to IHL according
to which "even in situations of armed conflict, the targetting of
innocent civilians is illegal.." Austrian Professor Hans Koechler, in
his Fourteenth Centenary Lecture at the Philippine Supreme Court on 12
March 2002, refers to this allusion to IHL as "a useful hint as to how
to bridge the gap between the opposing schools of thought concerning the
definition of terrorism as a crime."
Koechler then proposes what he calls a comprehensive or unified
approach: In a universal and at the same time unified system of norms -
ideally to be created as an extension of existing legal instruments -,
there should be corresponding sets of rules (a) penalizing deliberate
attacks on civilians or civilian infrastructure in wartime (as covered
by the Geneva Conventions), and (b) penalizing deliberate attacks on
civilians in peacetime (covered by the 12 so far anti-terrorist
conventions). He says "Such a harmonization of the basic legal rules
related to politically motivated violent acts against civilians would
make it legally consistent also to include the term 'state terrorism' in
the general definition of terrorism."
PART II
Terrorism: towards a legal definition
By Atty. Soliman M. Santos, Jr.
As regards
the dilemma between terrorism and national liberation movements (which
have the international legal right to use force in the exercise of their
people's right of self-determination against colonial domination, alien
occupation or racist regimes), Koechler further explains: "Through such
a comprehensive codification effort it could be made clear that
resistance or national liberation movements must in no way resort to
terrorist tactics and that a (politically eventually legitimate) aim
does not necessarily justify the means (or any means for that matter).
In the general framework of a unified system of international
humanitarian law, terrorist methods will be punishable irrespective of
the specific political purpose and irrespective of whether those acts
are committed by liberation movements or regular armies."
In other words, as a rule, no national liberation movement or rebel
group should be a priori exempted or condemned of culpability for
terrorism by mere reason of its status as national liberation movement
or rebel group. Each and every act in question of the organization must
be examined on a case to case basis whether it qualifies as a terrorist
act. As an exception, only if there is a clear and consistent pattern,
plan or policy (in short, something systematic) of terrorist acts or
methods by the organization would it be justified to designate it as a
"terrorist organization." One terrorist act does not necessarily make a
terrorist organization, unless the act is based on a policy of employing
terrorist acts (for example, a policy of suicide-bombing targetting
innocent civilians, or a policy of reprisal aerial bombing or
artillery/tank shelling targetting the civilian mass base of the enemy).
IHL itself uses the term "terrorism," "acts of terrorism," "measures…of
terrorism," and "terror." So there should not be any shying away from
these terms. Rather, IHL may yet help establish a precise and legally
sound definition of terrorism to obviate its being used as a political
weapon by vested powers. The Fourth Geneva Convention Relative to the
Protection of Civilian Persons in Time of War of August 12, 1949,
Article 33 makes reference to "measures…of terrorism." The 1977
Additional Protocol II Relating to the Protection of Victims of
Non-International Armed Conflicts, Article 4, paragraph 2(d) makes
reference to "acts of terrorism."
But it is the 1977 Additional Protocol I Relating to the Protection of
Victims of International Armed Conflicts, Article 51, paragraph 2 and
the identical Article 13, paragraph 2 of Protocol II which may be said
to elaborate on the term "terrorism" and thus provide a core legal
framework for a definition of terrorism. The said identical provisions
for both international and non-international armed conflicts read as
follows:
"The civilian population as such, as well as individual civilians, shall
not be the object of attack. Acts or threats of violence the primary
purpose of which is to spread terror among the civilian population are
prohibited."
From this provision for situations of armed conflict, one can draw some
elements for a legal definition of terrorism in peacetime:
a. making civilians the object of attack (deliberately targetting
civilians)
b. acts or
threats of violence or use of weapons
c. primary
purpose of spreading terror or extreme fear among the civilian
population
Of course, we should add two elements from the Arend and Beck concept of
terrorist act:
d. political
or even quasi-political objective (to distinguish it from criminal
madness)
e. intended
audience (not necessarily the target civilians).
But the most
important element is still the civilian target. Malaysia's definition of
terrorism at the OIC Special Session shifts the defining element to the
target rather than the source of the violence. Stated otherwise, it is
seeing terror from the victim's point of view. Of course, aside from the
deliberate targetting of the civilian population and individual
civilians, there can also be deliberate targetting of civilian objects
or infrastructure to spread terror among the civilian population.
The element of spreading terror is also important as a distinguishing
feature, if not the very essence, of terrorism. Thus, the ILC's 1991
Draft Code of Crimes against the Peace and Security of Mankind defines
international terrorism as "undertaking, organizing, assisting,
financing, encouraging or tolerating acts [by an agent of a State]
against another State directed at persons or property and of such a
nature as to create a state of terror in the minds of public figures,
groups of persons or the general public…" (italics supplied)
Understandably, this definition, from the viewpoint of states, does not
limit itself to civilian targets.
Some writers emphasize coercion to force the granting of political
demands. But this is not always the case. In many cases, the act of
terrorism is just a political statement without any demands. SEPTEMBER
11 was certainly in that mold. One aspect of intended audience is the
accompanying publicity, considered an essential factor in terrorist
strategy.
Putting everything together now, one might come up with this core legal
definition of terrorism: the systematic employment by states, groups or
individuals of acts or threats of violence or use of weapons
deliberately targetting the civilian population, individuals or
infrastructure for the primary purpose of spreading terror or extreme
fear among the civilian population in relation to some political or
quasi-political objective and undertaken with an intended audience.
We hope this attempt at a single inclusive definition of terrorism helps
"the Quest for the Holy Grail." The sooner we achieve a precise and
legally sound definition of terrorism, the better for the international
community to act on the issue of terrorism. Only with adherence to the
international rule of law can we hope for no more SEPTEMBER 11s and
other acts of terrorism. Let's roll with the rule of law, not the role
of force.
End
Atty. SOLIMAN M. SANTOS, JR.
18 Mariposa St., Cubao, QC
Tel. 7252153, Fax c/o 4125366
(0920) 290 3602
gavroche@info.com.ph
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