Defining Modern Terrorism Defense Institute of International Legal Studies Regional Defense Combating Terrorism Fellowship Program

Defining Modern Terrorism

Defense Institute of International Legal Studies

Regional Defense Combating Terrorism Fellowship Program

I. Introduction

II. Defining Terrorism

III. Characteristics and Elements

IV. Conclusion

2

Introduction:Module Objectives

• Participants will be able to desribe the obstacles to defining terrorism

• Participants will be able to list the five definitional elements of terrorism

• Participants will be able to describe the major provisions of the OAU Convention

I. Introduction: Is a definition possible?

“Above the gates of hell is the warning that all that enter should abandon hope. Less dire but to the same effect is the warning given to those who try to define terrorism.”

– D. Tucker (1997)

I. Introduction



IV. Conclusion

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• No definition is needed; ordinary criminal law enough

• Definition needed only to enhance punishment of ordinary offenses…

• Definition needed to trigger special powers and offenses, but trigger must be narrow to protect rights

• Definition needed, but trigger must be broad to cover future manifestations of terrorism

I. Introduction



IV. Conclusion

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I. Four Categories of Arguments

I. Introduction



IV. Conclusion

“One man's terrorist is another man's freedom fighter.”

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Luis Posada Carriles

I. Introduction

I. Introduction



IV. Conclusion

• Evolution of meaning

• Political sympathies and sensitivities and the issue of “just cause”

• Political arguments among States

• Treatment of State versus non-State actions inconsistent

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I. Defining Terrorism:Underlying obstacles to definition

I. Introduction



IV. Conclusion

• Different agencies use different definitions

• State’s desire to preserve sovereignty

• Fear of expanding repression

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I. Defining Terrorism:Underlying obstacles to definition

I. Introduction



IV. Conclusion

• Criminalization;

• Identification of available investigative tools;

• Permission for intelligence gathering;

• Identification and targeting of those who commit or support it;

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II. Defining Terrorism: Why does defining terrorism matter?

I. Introduction



IV. Conclusion

• Authorization of a military response (in certain circumstances);

• Allocation of resources;

• Determination of jurisdiction;

• International and interagency cooperation

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II. Defining Terrorism: Why does defining terrorism matter?

•Ideological

•Non-state character

•Targets innocents and civilians

•Deliberately unpredictable

•Disregards international norms/law

I. Introduction



IV. Conclusion

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III. Characteristics and Elements of Terrorism

I. Introduction



IV. Conclusion

• Religiously motivated

• Lethality and destructiveness

• Dispersion and interconnectivity

• Western targets

• Expressive violence

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I. Introduction



IV. Conclusion

• Alliance with criminal organizations

• New technologies/globalization

• Development of networks

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I. Introduction



IV. Conclusion

• Intent

• Motivation

• Means

• Targets

• Actors

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III. Characteristics and Elements: Definitional Elements

I. Introduction



IV. Conclusion

Many terrorism definitions require a so-called “terrorist intent” element, which refers to the requirement that the conduct be undertaken to instill terror, intimidate, coerce, or influence a population, government or group.

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III. Characteristics and Elements: Intent

I. Introduction



IV. Conclusion

• Disrupt political institutions

• Intimidate civilians

• Provoke government overreaction

• Gain legitimacy andinfluence

• Inspire others

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“The purpose of terror is to terrorize.”

-- V.I. Lenin


I. Introduction



IV. Conclusion

“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.”

(League of Nations, 1937)

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I. Introduction



IV. Conclusion

“[Terrorism] means activities that … appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination or kidnapping.”

(U.S. Criminal Code)17


I. Introduction



IV. Conclusion

In addition to the terrorist intent element, many terrorism definitions require that the terrorist actors possess identifiable political, social, ideological or religious motives. Others have no motivation requirement whatsoever.

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III. Characteristics and Elements: Motivation

I. Introduction



IV. Conclusion

“Terrorism is the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”

(FBI Definition, 2005)

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I. Introduction



IV. Conclusion

Use or threat of action where the action involves serious violence against a person or serious damage to property…; is designed to influence the government or to intimidate the public …; and is made for the purpose of advancing a political, religious or ideological cause.

(UK Terrorism Act 2000)

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I. Introduction



IV. Conclusion

“…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…

General Assembly Resolution No. 51/210 (1996)21


I. Introduction



IV. Conclusion

“…whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious, or other nature that may be invoked to justify them.”

General Assembly Resolution No. 51/210 (1996)

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I. Introduction



IV. Conclusion

• Terrorism definitions commonly require the use of violence or threats of violence.

• However, some definitions reflect the conclusion that other forms of criminal conduct (including non-violent forms such as cyberattacks) can pose dangers so serious that they amount

• to terrorism.23

III. Characteristics and Elements: Means

I. Introduction



IV. Conclusion

Terrorism is the “use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear.”

Prevention of Terrorism (Temporary Measures) Act 1989 (United Kingdom)

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I. Introduction



IV. Conclusion

The European Union defines terrorism to include:

•Attacks on a person’s life or physical integrity;

•Causing extensive destruction to a government or public facility, transport system, infrastructure facility, public place or private property likely to endanger human

life or result in major economic loss; 25


I. Introduction



IV. Conclusion

• Interfering with or disrupting water or power supplies or other fundamental resources with the effect of endangering human life; or

• Threatening to commit any of those acts (and other actions that, given their nature or context, may seriously damage a country or an international

• organization);

European Union Framework Decisionon Combating Terrorism (2002)

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I. Introduction



IV. Conclusion

Egypt defines terrorism as follows:

“[A]ny use of force, violence, threat, or intimidation resorted to by a perpetrator in the implementation of an individual or collective criminal enterprise aimed at disrupting public order or…

27


I. Introduction



IV. Conclusion

…endangering the safety and security of society, injuring or terrorizing persons, endangering their lives, liberties or security, causing damage to the environment or to communications, seizing control of communications, preventing or obstructing the activities of public authorities, places of worship or education, or interfering with the application of the Constitution,law, and statutes.” Egyptian penal code

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I. Introduction



IV. Conclusion

Terrorism definitions often indicate that terrorist conduct is directed at human beings (either an entire population, a subgroup, or individually). Moreover, human targets are often further limited to civilians or non-combatants…

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III. Characteristics and Elements: Targets

I. Introduction



IV. Conclusion

…However, many definitions also include property, infrastructure and other economic and social interests as recognizable targets, particularly when attacks upon them pose serious dangers to human life or economic or social order.

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I. Introduction



IV. Conclusion

The Draft Comprehensive Convention on International Terrorism that has been circulated by an ad hoc committee of the General Assembly defines terrorism in a very comprehensive manner...

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I. Introduction



IV. Conclusion

Death or serious bodily injury to any person; or

Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or the environment; or

32


I. Introduction



IV. Conclusion

Damage to property, places, facilities, or systems referred to in paragraph 1(b) of this article, resulting or likely to result in major economic loss…

UN Draft Comprehensive Convention on International Terrorism

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I. Introduction



IV. Conclusion

The Convention for the Suppression of the Financing of Terrorism (1999):

Also prohibits financing activities in connection with “[a]ny other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict…

34


I. Introduction



IV. Conclusion

…when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.”

The Convention for the Suppression of the Financing of Terrorism(1999)

35


I. Introduction



IV. Conclusion

Some definitions include language indicating that terrorism may be committed by individuals, sub-state groups, states themselves, or other actors. Others do not define the range of possible terrorist actors.

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III. Characteristics and Elements: Actors

I. Introduction



IV. Conclusion

“Terrorism means premeditated, politically motivated violence perpetrated against noncombatant targets by sub-national groups or clandestine agents.”

Statutory Definition Relating to U.S. State DepartmentAnnual Reports on Terrorism

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I. Introduction



IV. Conclusion

"[Terrorism is] the calculated use of unlawful violence or threat of unlawful 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."

United States Department of Defense

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I. Introduction



IV. Conclusion

In December 2004, the U.N. Secretary General’s High-Level Panel on Threats, Challenges and Change issued a report that addressed the challenge of defining terrorism. The report concluded that a consensus definition should include the following:

39


I. Introduction



IV. Conclusion

“Recognition … that State use of force against civilians is regulated by the Geneva Conventions and other instruments, and, if of sufficient scale, constitutes a war crime by the persons concerned or a crime against humanity;”

40


I. Introduction



IV. Conclusion

“Restatement that acts under the 12 preceding anti-terrorism conventions are terrorism, and a declaration that they are a crime under international law; and restatement that terrorism in time of armed conflict is prohibited by the Geneva Conventions and Protocols;”

41


I. Introduction



IV. Conclusion

“reference to the definitions contained in the 1999 International Convention for the Suppression of the Financing of Terrorism and Security Council resolution 1566 (2004);” and

42


I. Introduction



IV. Conclusion

Description of terrorism as “any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004)…

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I. Introduction



IV. Conclusion

…that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.”

U.N. High-Level Panel On Threats, Challenges And Change44


I. Introduction



IV. Conclusion

Terrorist acts are “peacetime equivalents of war crimes.”

(A.P. Schmid in 1992 proposal to U.N.)

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III. Characteristics and Elements: War Crimes?

I. Introduction



IV. Conclusion

The OAU Convention on the Prevention and Combating of Terrorism (1999) defines a terrorist act as:

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III. Characteristics and Elements: The OAU Convention

I. Introduction



IV. Conclusion

…any act which is a violation of the criminal laws of a State Party and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or…

47


I. Introduction



IV. Conclusion

…causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to:

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I. Introduction



IV. Conclusion

intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles; or…

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I. Introduction



IV. Conclusion

• disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or

• create general insurrection in a State.

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I. Introduction



IV. Conclusion

The Convention also defines a terrorist act as:

…any promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing, or procurement of any person, with the intent To commit any [of theAbove three acts.]

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I. Introduction



IV. Conclusion

Prohibited offenses exclude armed struggle for liberation:

“Notwithstanding the [offenses listed above], the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, …

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I. Introduction



IV. Conclusion

…including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts.”

(Art. 3)

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I. Introduction



IV. Conclusion

The Areas of Cooperation includes a catch-all provision:

“[The parties shall] take all necessary measures to prevent the establishment of terrorist support networks in any form whatsoever;”

(Art. 4)

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I. Introduction



IV. Conclusion

The agreement provides for the preservation of the confidentiality of information, the requirement to establish jurisdiction over acts prohibited by the convention, comprehensive extradition requirements, and commissions rogatoire (which conduct extra-territorial investigations).

(Arts. 5-16)

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I. Introduction



IV. Conclusion

• Different definitions of terrorism are possible and in use around the world

• Despite obstacles, definition is not a merely academic exercise – definition matters in law

• Possible to identify common elements addressed by most definitions

• Movement toward zerotolerance policy

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IV.Conclusion

Defining Modern Terrorism

Defense Institute of International Legal Studies

Regional Defense Combating Terrorism Fellowship Program

Documents

Defining Modern Terrorism Defense Institute of International Legal Studies Regional Defense Combating Terrorism Fellowship Program