The struggle to find a definition for “international terrorism”

Table of contents

List of references

Textbooks, Monographers and Journal Articles

Internetsites

Cases

Summary

1 Introduction

2 Part I:
2.1 Starting point
2.2 Definition of the term “terrorism” and delimitation of “terror”
2.2.1 Historical attempts to find a definition
2.2.2 Attempts of the United Nations to find a definition
2.2.3 Comprehensive Convention on International Terrorism
2.2.4 International Convention for the Suppression of the Financing of Terrorism
2.2.5 Other selected definitions
2.2.5.1 Definitions with certain exceptions
2.2.5.2 Definitions with no exceptions
2.2.5.3 The UN Charter’s principles as the sole permissible exceptions
2.2.5.4 Definition as “Peacetime equivalent of War Crimes”
2.3 Evaluation of this passage
2.4 Difficulties for the definition of the term International Terrorism
2.5 Possible Security Council reactions
2.5.1 Terrorist acts as threat to peace or attacks in terms of Art 39 UN Charter
2.5.2 Active support by a state
2.5.3 Passive behaviour of a state
2.5.4 Private individuals as subjects of accountability
2.5.5 Result of chapter 2.5

3 Part II: What could happen after the establishment of a definition?
3.1 Indirect enforcement
3.2 Direct enforcement

4 Part III: Possible ways to react to terrorism before the establishment of a coherent definition
4.1 Right to self-defence in terms of Art 51 UN Charter
4.2 The Security Council as international (surrogate-) legislator
4.3 The International Criminal Court (ICC)
4.5 Possible reactions in the future
4.6 Report of the Counter Terrorism Committee
4.7 Reconsideration and summary of the last paragraphs

5 Conclusion

List of references

Textbooks, Monographers and Journal Articles:

illustration not visible in this excerpt

Internetsites

http://www.un.org/law/terrorism/index.html^[1]

http://www.nti.org/e_research/official_docs/inventory/pdfs/intlterr.pdf

http://www.un.org/geninfo/faq/factsheets/FS8.HTM

http://www.mayolawclinic.com/documents/WarCrimes-DOD.pdf

http://www.nti.org/e_research/official_docs/inventory/pdfs/intlterr.pdf#search=%22Comprehensive%20Convention%20on%20International%20Terrorism%20definition%20%22armed%20forces%22%22

http://voelkerstrafrecht.org/aktuelles/supreme_court_29062006

http://www.merriam-webster.com/

http://www.npr.org/news/specials/mideast/transcripts/index.html

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/obscenity.htm

http://blog.zmag.org/node/2502

http://www.mpg.de/-snm-0135020272-1120309833-0000008411-0000015697-1120486862-enm-bilderBerichteDokumente/dokumentation/pressemitteilungen/2003/pressemitteilung200307041/index.html

www.opsi.gov.uk/acts/acts2006/ukpga_20060011_en.pdf

http://www.italian-american.com/machi2.htm

http://www.wcl.american.edu/hrbrief/fall98/ias.html

http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf

http://www.asil.org/insights/insigh77.htm

http://www.un.org/News/Press/docs/2005/gal3276.doc.htm

http://www.law.cornell.edu/uscode/html/uscode22/usc_sup_01_22_10_38.html

http://wps.prenhall.com/chet_langan_preparing_1/0,9681,1613226-content,00.html

http://www.tamilnation.org/selfdetermination/instruments/2625GAdeclarationofprinciplesofinternationallaw.htm

http://www.un.org/News/facts/iccfact.htm

Cases

Nicaragua v United States of America 1 ICJ reports 1986 (June 27th 1986).

DRC v Belgium (ICJ) 41 International Legal Material 536 (2002).

Juan Carlos Abella v Argentina 11.137, Inter-Am. C.H.R., 5/97,OEA/Ser.L/V/II.98, doc. 6 rev. (April 13th 1998).

United States v Fawaz Yunis 924 F.2d 1086 (1991).

Ahmed v Wigen 726 F. Supp. 389 et seq (E.D.N.Y. 1989), aff’d, 910 F. 2d 1063 (2nd Cir. 1990).

Summary

This thesis provides an overview of some of the different domestic and international definitions for the crime of terrorism. Also some historical approaches are included in order to present the widest possible range of approaches regarding this topic. The argumentation is aimed at highlighting the strengthes as well as the weaknessess of different approaches taken so far. For example, definitions with exceptions for certain groups like “freedom figters” are analyzed. Also, the advantages of a definition without exceptions are shown. A critical evaluation of both arguments in favour and against certain definitorial approaches subsequently takes place.

After all, it becomes explicit that it is very difficult to create a coherently recognized definition. It is furtheron searched why this is so.

Because of the present lack of a coherent definition, the United Nations’s possible ways to react to terrorist attacks are adressed right after this. An examination of the present means of the United Nations takes place in order to find out if they are sufficient to encounter the terrorist threat efficiently. Only measures where the United Nations can actively influence the events are relevant in this passage.

Finally, the consequences of the present lack of a definition are described and the improvements one can expect from a defininition are named. Some recommendations are made regarding which way to approach the definition is the most promising.

The standard view now is that defining “terrorism” is a profound problem, to be dealt with in international conferences, academic studies, etc. And it is true that it is a very hard problem to define “terrorism” so that it singles out what they do to us and our clients, but excludes what we and our clients do to them – a problem so far not solved and very profound, no doubt…

-- Noam Chomsky, ZNet, 2006^[2]

1 Introduction

If experts on topics of international law, no matter of which nationality, are asked about their view on the 9/11 attacks, there is a widespread consent about the classification as crimes which require a reaction with domestic and international measures of police- and criminal law, as human rights despising actions; as well as – because of the quantitative and qualitative dimensions of the attacks – as Crimes against Humanity according to the Rome Statute of the International Criminal Court (ICC)^[3]. The same counts for the hypothesis that they represent a breach of peace in terms of Art 39 of the UN Charter as was also stressed by Security Council Resolutions 1368^[4] and 1378^[5]. But the expression of a “War against Terrorism” as a reaction to the “War against America” as the Americans regarded the 9/11 attacks, does not find support. The Americans are criticized^[6] because they as the victim state of the attacks strike back without taking into account basic principles of international law and ignoring the remedies that jus gentium offers. By doing this they undermine jus gentium.

But what is terrorism after all? Certainly it is older than the word itself which finds its roots in the “Reign of Terror” during the French Revolution (the Latin word “terrere” means “fear producing” or “tremble”)^[7]. The practice of threatening, injuring or killing people for political, religious or other ideological reasons can be traced back to at least Biblical times: Zeal (Greek for ”jealous”) is the basis of zealot – the name given to a Jewish sect that led a bloody uprising against Roman occupation 2000 years ago^[8]. And thug (Hindu for “thief” based on Sanskrit “sthagati” for “concealed person”) originally referred to a member of a band of killers in India who waylaid and strangled travellers as a part of a religious ritual^[9]. Would zealots and thugs be considered terrorists today? Or would they rather be classified as militants? This word is based on the Latin term for soldier (milit) and is nowadays applied to all sorts of people, from members of political parties to environmentalists or religious fundamentalists. It serves as a relatively objective way to describe combative behaviour^[10]. Or maybe the term guerrillas could turn out to be the right one? This Spanish expression entered the English language during the conflicts in Europe 200 years ago, and literally means “small war” (little guerra). Partisans have –when assessed linguistically-historically– similar roots. In the 16th and 17th centuries, they were commandos assigned to secret missions^[11]. In our times, the term is used for supporters of a specific person, party or cause which use words not weapons.

And returning again to current legal-political issues: Could the experts with their estimations about the single-handed operations of the United States and their illegality be wrong? Were the actions necessary because of a lack of other possibilities and the standstill and inability of the United Nations to act?

The aim of this thesis is the discussion of exactly this problem that has been given new impact by the events on and around 9/11. Is there a standard after all that is able to classify what terrorism is and which ties a clear legal consequence to these elements of crime? And if not – what are the possible ways in which the United Nations can deal with terrorism? Current events like the 2006 Israel-Lebanon conflict in the Near East^[12] have shown once again that there is a strong tendency of the states towards a significant disregard of United Nations measures like Security Council Resolutions^[13]. The prohibition of the use of force by a UN Resolution has obviously lost its power. Might the United Nations in general lose influence and the global future becomes unilateral instead of multilateral?

There will be an attempt in this paper to focus on the struggle for a coherent definition of the term “terrorism” in the first passage. The possible ways in which a definition once introduced can then be enforced will be dealt with in the second part. In the third part the present means of the United Nations to cope with terrorism will be focussed on. Finally, there will be an attempt to examine which improvements can be expected from a definition on which the states agree and which difficulties will remain and what new problems arise even if a definition will be established.

2 Part I:

“It might be impossible to intelligibly define obscenity… I know it when I see it”

-- US Supreme Court Justice Potter Stewart, 1964^[14]

Does the same count for terrorism?

2.1 Starting point

The United Nations are

determined to combat by all means threats to international peace and security caused by terrorist acts^[15].

With this expression of its political will, the UN Security Council introduced Resolution 1368 which was passed on September 12th 2001. This was exactly one day after the far-reaching events in New York and Washington which abruptly brought the problem of international terrorism back to the attention all over the world.

2.2 Definition of the term “terrorism” and delimitation of “terror”

The United Nations Charter does not refer to terrorism explicitly. That is why the definition is unclear and a lot of different opinions exist.

There is a wide range of opinions. Pat Buchanan in his article for www.antiwar.com asks the question if “terrorism, […] like beauty, [is] in the eye of the beholder^[16] ”. There are often used phrases like “One man’s terrorist is another man’s freedom fighter^[17] ”, “Terrorism, like beauty, lies in the eyes of the beholder”^[18] or “What is terrorism to some is heroism to others”^[19]. In order to avoid misunderstandings, offences and the reproach of partiality or a lack of neutrality, a lot of media agencies^[20] in the meantime have followed the example of Reuters. This media agency decided shortly after 9/11 to avoid the terms “terrorist” and “freedom fighter” completely and to leave out all kinds of value judgements suggested by a term which has already been ”tainted” by frequent use in the mass media^[21]. Other media and publishers’ firms, like CNN, recommended a “consistent[ly] and repeated[ly]” use of the words so as not to play down what had happened^[22]. The BBC, Globe and Mail, and Wall Street Journal, have set up guidelines for the use of the terms^[23]. The Canadian publishing company Globe and Mail advised its staff:

Use this term to describe groups or individuals who use violence against the innocent public, or the threat with it, to achieve political ends.

Globe and Mail’s 1998 Style Book cites several examples of terrorist groups and individuals, including the IRA and Japanese Red Army, while the official United States list of terrorists does not include them^[24].

These examples show the uncertainty in the media. But this uncertainty roots deeper: If there was a clear definition available, all examples of a further idiomatic use of the term would vanish because there would be clarity about the legal term and colloquial language, at least after some time, would need to adapt. But till then the word is so subjective as to be devoid of all meaning but, at the same time, extremely dangerous because people tend to believe that it does have meaning and consequently use and abuse the term by associating it with whatever they hate as a way of avoiding rational thought and discussion and excusing their own outrageous behaviour. Robert V. Keeley summarizes the problem with the term “terrorism” when cynically noting that “the best way to win the ‘war on terrorism’ would be through an international treaty banning the use of the word”^[25].

But when taking a closer look at treaties on terrorism, it becomes clear that it is truly difficult to find a definition. Seventeen specialized international treaties^[26] (some draw a narrower circle around twelve, some around thirteen treaties^[27]) which were drafted during the 1960s and 1970s when there was a high incidence of aircraft hijackings do not even try to set up a coherent definition of the term “terrorism” but refer to specific crimes like hijacking^[28] (the Convention condemning hijacking was ratified by 174 member states as of September 17th 2001^[29] and thus can be regarded as internationally recognized), specific forms of terrorism (e.g. against civil aviation or security on the sea)^[30] or the harming of certain groups of people^[31]. All conventions consist of recurring similar elements^[32]: The states are obliged to fight the specific terrorist acts with their own domestic law and, in addition, they have to sanction complicity, incitement and assistance to and the criminal liability of the attempt of such acts. Furthermore, no justifications or defences because of political, ideological, religious or similar reasons are allowed. Another core element is the aut dedere aut judicare principle according to which the contracting states either have to prosecute or extradite the perpetrators they find within their territory. Finally, all conventions include the duty of inter-state cooperation and the guarantee of mutual assistance.

Although there is a widespread agreement about the danger going out from international terrorism, a coherent definition is still not in sight, it seems. The developments of recent years show tendencies towards certain elements which could become constitutive of a definition when taking in view Conventions^[33] and Resolutions^[34]:

(a) A (severe) criminal act under national law^[35] (which is directed against persons);
(b) that aims at spreading terror (fear / intimidation), aimed at the state, public or a particular group;
(c) with a political, ideological or similar interest (not the mere pursuit of private interests);
(d) without nexus to an armed conflict.^[36]

Feature (c) here is a historically coined one (as the origins of terrorism, referred to in the introduction, show). It seems possible to define terrorism without a mental element. But what was commonly understood as terrorism has always included a certain mental element which also serves to keep the difference clear between an “ordinary” severe crime and terrorism.

Still, the debate about possible exceptions to the definition continues.

What is stated as feature (a) is sometimes also divided in two separate points: For instance Susan Tiefenbrun^[37] counts overall five basic elements when she divides the first requirement into the perpetration of violence on the one hand and the targeting of innocent civilians^[38] on the other hand. She also leaves out the element mentioned under (d) and instead includes the requirement of the “intent to cause violence or with wanton disregard for its consequences” and thus divides the mental element into intent and purpose. But this is more a technicality than a relevant difference from most of the other definitions and their basic elements.

Although those core requirements re-appear in nearly every publication, the present state of “terminological no-man’s-land” has to be eliminated in order to improve the effectiveness of the fight against terrorism on international level. The interpretation of the elements of “terrorism” should therefore not be left to single states^[39].

2.2.1 Historical attempts to find a definition

The international community of states has addressed the phenomenon of terrorism for the first time after the assassination attempt on the French Secretary of State Barthou and on King Alexander of Yugoslavia in 1934. From November 1st to 16th 1937, the “Geneva Draft Convention for the Prevention and Punishment of Terrorism”^[40] was worked out by the League of Nations. In Dugard’s opinion the “most relevant anti-terrorism precedent”^[41], this Convention This convention was signed by 24 states^[42] but ratified only by India and thus naver came into force^[43]. One reason for this is that the definitions for terrorism were too wide and did not gain acceptance from the community of states^[44].

2.2.2 Attempts of the United Nations to find a definition

Also the United Nations, after their foundation, addressed the problem of finding of a definition for “terrorism”. But their organs, due to the Cold War and the confrontation of the two super powers (USA and the Soviets), were unable to act^[45]. The General Assembly was dominated by the Developing Countries while the Security Council was divided in two blocks. Because of that, it was not possible to reach a decision about how the problem was to be solved.

The states of the “Western World” on the one hand considered certain crimes as generally inadmissible and therefore as terrorism acts. The Eastern Bloc on the other hand and also the Developing Countries preferred a case-by-case weighing and balancing of all relevant circumstances by including also the motivation of the deed^[46]. The reason for this attitude is that many of the Developing Countries as former colonies achieved their independence only by a hard struggle against the colonial rulers and so historically welcome self-determination and national liberation struggles to achieve and secure their rights. They did not want to condemn such acts as terrorism.

This contrast and its connection to the inability to find a definition for terrorism becomes very plain when considering the 1972 request of the General Secretary of the United Nations: He wanted to put a topic on the General Assembly’s agenda which was the expression of the following difficulty:

Measures to prevent international terrorism which endangers or takes innocent human lives or jeopardizes fundamental freedoms, and the study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes.^[47]

A report following this Resolution introduced the foundation of an ad hoc Committee with the task to find a definition for terrorism^[48]. But the work of the committee was not crowned by success as it failed to produce a definition.

This exchange of ideas and thoughts was mainly about the question whether the term “terrorism” should also include the acts not only of individuals or private groups but of states. This assignment requires a taking into account of the semantic differences between different languages had an influence especially when the question was asked whether the inclusion of “state terrorism” would raise difficulties. The Russian language defines “terror” as the intimidation of an opponent by the use of physical force as far as killing and “terrorism” (терроризм) as the exercising of terror (террор)^[49].

Also in the German usage, there is a difference between “terrorism” and “terror”. “Terrorism” means a certain kind of attack against a state and the state system, while “terrorism” includes all kinds of reign of terror perpetrated by states^[50].

In the Anglo-Saxon terminology, it has become custom to speak of state terrorism (better: “state sponsored terrorism”) on the one hand and of rebellious or individual terrorism (“individual terrorism”; also “sub-state-terrorism”^[51] or “domestic terrorism”^[52]) on the other hand^[53]. On the other hand for Anglo-Saxon scholars the term “terror” is primarily associated with the socio-psychological effects of general fear and panic^[54].

Until the phrase “War on Terror” became popular, the word “terror” tended to be used to designate violent acts carried out by a nation-state. Examples are “Stalinist terror” and the use of the phrase “terror-bombing”^[55], particularly before and during World War II, to describe the aerial bombardment of civilians by state forces.

But because of the several overlaps nowadays, it is often difficult to distinguish between “terror” and “terrorism”^[56].

As the different member states of the United Nations in some points take in quite opposite positions, the efforts to find a coherent definition for “terrorism” has not so far met with success.

The latest example was the report of the Secretary-General’s High-level Panel on Threats, Challenges and Change^[57] which suggested using existing conventions on terrorism to ascertain trigger-offences. Terrorism according to this would be

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^[58]), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature and context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act^[59].

But this definition is not sufficient to determine what conduct is truly “terrorist” in nature. The way the link to existing conventions was expressed by the High-level Panel is not fully satisfactory because the High-level Panel’s formulation of “any action, in addition to actions already specified by the existing conventions on aspects of terrorism” is problematic, since not all acts mentioned by these conventions (the Tokyo Convention^[60] being a prime example) are truly of a terrorist nature^[61].

The Security Council Resolution 1566 definition from 2004 received a lot of applause after it was drafted. It condemns

criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism^[62].

But the trouble of the Secretary-General’s High-level Panel on Threats, Challenges and Change, mentioned above, and is not eliminated. The reference to existing treaties is not sufficient and thus the definition not fully satisfactory.

2.2.3 Comprehensive Convention on International Terrorism

Since its establishment, the ad hoc Committee has entered into negotiations on several texts with the result of the final adoption of three treaties. By the end of 2000, the drafting process had begun on a “Comprehensive Convention on International Terrorism”. On January 30th 2002, a broad agreement on 27 articles had been reached, while articles dealing with the definition of terrorism, its relation to liberation movements and the possible exemptions to the scope of the treaty, in particular the activities of armed forces are yet to be cleared^[63].

In 2003 in the General Assembly’s Sixth Committee’s seventh session from March 31st to April 2nd, and in the eighth session in 2004, the chief negotiators succeeded in defining the elements of terrorism in Art 2 Paragraph 1 of the Convention. According to this, a person counts as a terrorist, if he or she commits

1. […] an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally, does an Act intended to cause;
2. Death or serious bodily injury to any person; or
3. Serious damage to a State or government facility, a public transportation system, communication system or infrastructure facility with the intent to cause extensive destruction of such a place, facility or system, or where such destruction results in or is likely to result in major economic loss.^[64]

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 abstain from doing any act^[65].

Although there was an attempt to avoid the problem around a definition of terrorism by formulating the elements of crime of a “terrorist act”, the basic problem was not solved^[66]. There was only a shift of the problem away from the definition of terrorism and terrorist acts and towards the problem of what an exception to the elements of crime should include. Malaysia, on behalf of the 56-member Organization of the Islamic Conference (OIC), proposed the addition of an exception for so-called “freedom fighters”^[67]. About the elements of crime itself, consent was reached, but the question of the legitimacy of freedom fighters is still so heavily argued about that the latest report of the Committee did not include the version of Art 18 in which the exception was planned to be included^[68]. Rather, it is still discussed in two working papers^[69]. Delegates disagreed on which version of Art 18 they preferred. Some favoured the text prepared by the coordinator following the October 2001 session of the working group, which in its second paragraph stated that “the activities of the armed forces during an armed conflict”^[70] that are governed by international law would not be governed by the Convention. Others supported an alternative text (proposed during a prior session) by the Member States of the Organization of the Islamic Conference, which did not refer to the “armed forces” but instead stated that “the activities of the parties during an armed conflict, including in situations of foreign occupation”^[71] that are governed by international law would not be governed by the Convention. Regarding the former text, some noted that the reference to “armed forces” was unnecessarily narrow in scope; to the contrary, others contended that the latter’s reference to activities of “the parties” was too broad and might actually serve to sanction only some forms of terrorism^[72]. That is why the Convention which was to ninety percent ready and only lacked of coherent definition of terrorism never came into force^[73]. A solution could – once more – not be found during the General Assembly’s 57th session, respectively its sixth committee. Thus it is unlikely that a definition will be found in the near future.

2.2.4 International Convention for the Suppression of the Financing of Terrorism

The International Convention for the Suppression of the Financing of Terrorism^[74] is the latest counter-terrorism convention. It is based on a General Assembly’s draft. While working on this convention, a comprehensive description of terrorism was acquired^[75]. It took a position that was indifferent towards the motive and also the potential perpetrator. That is why it includes terrorist acts of freedom fighters; and acts of states, which can be qualified as “terror”. This definition is included in the final Draft Convention. After the 9/11 attacks it was again used by the sixth sub-committee of the General Assembly. It was included in the International Convention for the Suppression of the Financing of Terrorism. According to it, terrorist acts are

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 [and they] are in any circumstances unjustifiable, whatever the consideration of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.^[76]

The future will show if the Resolution which includes this far-reaching definition will be adopted by the General Assembly and if terrorism will manage to leave the “terminological no-man’s-land”^[77]. Defining what is to be regarded as terrorism will make the fight against terrorism internationally more effective.

A definition could consequently serve to oppose the thread to global peace which is inherent to terrorist acts, methods and practices.

2.2.5 Other selected definitions

Although the United Nations has so far been unable to reach a consensus, many individual states have developed their own official definitions.

But not only states come up with a lot of new definitions these days. The different Unites States’ official facilities each introduces and applies its own definition. Accordingly, there’s not even necessarily agreement within a state. The United States’ Deputy of Defence calls terrorist acts

the calculated use of violence or the threat of 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^[78].

The FBI definition on the other hand lacks of the mental element and limits the purpose to the achievement of “political or social objectives” only and does neither exclude nor include state-sponsored terrorism when it defines terrorism as

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^[79].

And in the U.S. Army manual^[80] terrorism is defined as

the calculated use of violence or threat of violence to attain goals that are political, religious or ideological in nature. This is done through intimidation, coercion, or instilling fear.

As result of these words, the American linguist Noam Chomsky, well known for his sarcastic critiques of the United States’ foreign policy, argues that the United States itself actively supported international terrorism in places like Nicaragua and El Salvador^[81].

No current definition manages not to produce unwanted results by “accidentally” leaving out phenomena one wishes to include and including people one does not think deserve the term “terrorist”^[82].

A good example of criticism of present counter-terrorism legislation is the criticism of the “Scotland against Criminalizing Communities association”^[83] which is aimed against the present United Kingdom’s definition in its Terrorism Act of 2000. The Act was renewed and amended in 2006. The definition reads

Terrorism means the use of action where the action falls within subsection (2) (i.e. violence, serious damage, endangering life, etc) and

(b) the use or threat is designed to influence the government or to intimidate the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.^[84]

The breadth of the definition could conflict with the legality principle which prescribes the possibility for a reader to recognize clearly the legal consequences of an offence.

The definition’s omission of the element of intent are criticized for targeting Muslims by tolerating a side-effect which places Muslims in a different situation to non-Muslims in relation to the law and law-enforcement agencies, and also to the rest of society^[85]. Additionally, it is criticized for conflicting with the United Nations Charter^[86] which has widely been interpreted as implying that people have a right to resist tyranny and a right to struggle for self-determination^[87]. Those are quite heavy reproaches.

[...]

---

^[1] last visited: December 10th 2006.

^[2] http://blog.zmag.org/node/2502.

^[3] ICC Statute Part 2 Art 5 Paragraph 1(b).

^[4] SC Resolution 1368, September 12th 2001.

^[5] SC Resolution 1378, November 12th 2001.

^[6] „Kurzbericht zum Arbeitsgespräch“, Deutsches Institut für Menschenrechte, Menschenrechtliche Erfordernisse bei der Bekämpfung des Terrorismus – Bericht und Beiträge zu einem Arbeitsgespräch am 19. April 2002 im Französischen Dom/Berlin-Mitte, http://files.institut-fuer-menschenrechte.de/488/d18_v1_file_40c44f95bc75a_DIMR_2002.pdf 7.

^[7] Tuman Communicating Terror 2.

^[8] Shewchunk Terrorists and Freedom Fighters 9.

^[9] Shewchunk Terrorists and Freedom Fighters 9.

^[10] Shewchunk Terrorists and Freedom Fighters 2.

^[11] Shewchunk Terrorists and Freedom Fighters 2.

^[12] http://www.npr.org/news/specials/mideast/transcripts/index.html: The 2006 Israel-Lebanon conflict was a military conflict in Lebanon and northern Israel, primarily between Hezbollah paramilitary forces and Israel. It started on July 12th 2006 and ended when a United Nations-brokered ceasefire went into effect on August 14th 2006.

^[13] SC Resolution 1559 from September 2nd 2004.

^[14] http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/obscenity.htm.

^[15] SC Resolution 1368 from September 12th 2001, 2nd clause of the preamble.

^[16] Buchanan Terrorists – And Freedom Fighters 3.

^[17] Goredema Initiatives against Terrorism 1; Shewchuk, Terrorists and Freedom Fighters 8; Keeley, Middle East Policy 33; Buchanan Terrorists 4. The quote is said to find its origins in a saying of Ronald Reagan.

^[18] Keeley Middle East Policy 33.

^[19] Bassiouni Case Western 306.

^[20] e.g. CBC News.

^[21] Reuters’ public clarification of October 2nd 2001.

^[22] Shewchunk Terrorists and Freedom Fighters 8.

^[23] Shewchunk Terrorists and Freedom Fighters 8.

^[24] Shewchunk Terrorists and Freedom Fighters 7.

^[25] Keely Middle East Policy 34.

^[26] The UN Conventions on Terrorism, and one Draft Convention on the Suppression of Acts of Nuclear Terrorism are as follows:

Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312;

United Nations Convention on Law of the Sea, Dec. 10, 1982, 21 I.L.M. l261;

Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Mar. 10, 1988, 27 I.L.M. 668;

Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, IMO. Doc. Sua/Con/l6/ Rev.1; 27 I.L.M. 685 (l0 Mar. l988);

Convention on Offences and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 2 I.L.M. l042;

Convention for the Suppression of Unlawful Seizure of Aircrafts (Hijacking Convention), Dec. 16, 1970, l8 I.L.M. 1419;

Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC Convention], Jan. 13, 1993, 32 I.L.M. 800;

Convention for the Suppression of the Financing of Terrorism [Terrorism Financing

Convention]; U.N. Doc. a/54/l09 (9 Dec. l999) l33 (l6 Dec. l970);

Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Jan. 26, 1973, l0 I.L.M. 1151;

Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving Civil Aviation [Montreal Protocol], Jan. 12, 1988, 27 I.L.M. 627;

Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents [Diplomats Convention], Dec. 14, 1973, 13 I.L.M. 41;

Convention Against the Taking of Hostages [Hostage-Taking Convention], Dec. 17, 1979, l8 I.L.M. 1456;

Convention on the Safety of United Nations and Associated Personnel [U.N. Personnel Convention], available at http://www.un.org/law/cod/safety.htm;

Convention on the Marking of Plastic Explosives for the Purpose of Detection, Mar. 1, 1991, 30 I.L.M. 721;

Convention for the Suppression of Terrorist Bombings [Terrorist Bombing Convention], U.N. Doc. A/Res/52/164 (9 Jan. 1998);

Convention on the Prohibition of the Development, Production and Stockpiling of

Bacteriological (Biological) and Toxin Weapons and on Their Destruction [BWC

Convention], Apr. 10, 1972, 11 I.L.M. 309;

Convention on the Physical Protection of Nuclear Material, IAEA Doc. C/225;1456

U.N.T.S. 101; l8 I.L.M. 1419 (3 Mar. l980) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC Convention], U.N. Doc. A/Res/47/39;

l974 U.N.T.S. 3; 32 I.L.M. 800 (l3 Jan. l993) Draft Convention on the Suppression of Acts of Nuclear Terrorism [Nuclear Terrorism Convention], U.N. Doc. A/AC.252/L.3 (28 Jan. l997).

^[27] From this point on this paper will adopt the thirteen treaties-solution.

^[28] Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention), Art 1, The Hague, December 16th 1970.

^[29] http://www.un.org/geninfo/faq/factsheets/FS8.HTM.

^[30] Krajewski Antworten 2.

^[31] Convention on the prevention and punishment of crimes against internationally protected persons, including diplomatic functionaries of the General Assembly of the United Nations, Art 2, New York, December 14th 1973.

^[32] Wandscher “Terrorismus und Vereinte Nationen“ 9.

^[33] International Convention for the Suppression of the Financing of Terrorism adopted by the General Assembly in Resolution 54/109, December 9th 1999.

^[34] GA Resolution 51/210, December 17th 1996.

^[35] Cherif Bassiouni in his textbook International Terrorism; Multilateral Conventions (1937-2001), Transnational Publishers, Ardsley 2001, at xxvi. also speaks in favour of an inclusion of international crimes committed by states like Genocide, Crimes against Humanity, War Crimes and Torture as part of the category of crimes which can constitute the first of the basic elements.

^[36] Krajewski Antworten 2.

^[37] Tiefenbrun “A semiotic approach to a legal definition of Terrorism, Project to enforce the Geneva Conventions” 362.

^[38] The question if only civilians should be protected by a definition or also military or state targets in general will be discussed when Boaz Ganor’s opinion infra 2.2.5.1 is presented.

^[39] Olberg Internationaler Terrorismus 2.

^[40] League of Nations, Convention for the Prevention and Punishment of Terrorism, O.J. 19 at 23 (1938), League of Nations Doc. C. 546 (I). M.383 (I),1937,V(1938).

^[41] Dugard International Terrorism 68.

^[42] Albania, Argentina, Belgium, Bulgaria, Cuba, Czechoslowakia, the Dominican Republic, Egypt, Ecuador, Estonia, France, Greece, Haiti, India, Monaco, the Netherlands, Norway, Peru, Romania, Spain, Turkey, USSR, Venezuela, Yugoslavia.

^[43] Warbrick „The European Convention on Human Rights and the Prevention of Terrorism“ 82.

^[44] Dugard International Terrorism 68.

^[45] Olberg Internationaler Terrorismus 2.

^[46] Lambert Terrorism and Hostages 30.

^[47] General Assembly A/RES/3034 (XXVII), December 18th 1972.

^[48] General Assembly A/RES/3034 (XXVII), December 18th 1972, para 11.

^[49] see outcomes when using the online dictionary on http://www.freedict.com/onldict/onldict.php.

^[50] Waldmann Weltweite Gefahr 15.

^[51] Koufa UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights 53rd session, Special Rapporteur’s progress report, Item 6 of the provisional agenda, E/CN.4/Sub.2/2001/31 12, Paragraph 41.

^[52] Mickolus Trends in Transnational Terrorism, International Terrorism in the contemporary World 45.

^[53] Olberg Internationaler Terrorismus 4.

^[54] Waldmann Provokation 15.

^[55] SACC-Paper, 2.

^[56] E law: Defining International Terrorism no. 12 on: http://www.murdoch.edu.au/elaw/issues/v6n1/obote-odora61_text.html#unt.

^[57] UN Document: A More Secure World: Our Shared Responsibility, A/59/565 (2004).

^[58] drafted after the attacks on a school in Beslan, Ossetia, Russia.

^[59] UN Document: A More Secure World: Our Shared Responsibility, A/59/565 (2004), Paragraph 164 (d).

^[60] full name: Convention on Offences and Certain Other Acts Committed on Board Aircraft 1963.

^[61] Scheinin Report Paragraphs 35, 36.

^[62] SC Resolution 1566 October 7th 2004, Paragraph 3.

^[63] http://www.nti.org/e_research/official_docs/inventory/pdfs/intlterr.pdf#search=%22Comprehensive%20 Convention%20on%20International%20Terrorism%20definition%20%22armed%20forces%22%22.

^[64] http://www.nti.org/e_research/official_docs/inventory/pdfs/intlterr.pdf.

^[65] Report of the ad hoc Committee, established by GA Resolution 51/210 of December 17th 1996, Sixth session, A/57/37, Annex II, Art 2 Paragraph 1.

^[66] Olberg Internationaler Terrorismus 5.

^[67] Subedi International Law 163.

^[68] Art 2 contained the definition of terrorist offences.

^[69] Report of the ad hoc Committee, established by GA Resolution 51/210 of September 17th 1996, Sixth session, A 57/37, Annex IV.

^[70] http://www.mpg.de/-snm-0135020272-1120309833-0000008411-0000015697-1120486862-enm-bilderBerichteDokumente/dokumentation/pressemitteilungen/2003/pressemitteilung200307041/index.html.

^[71] Ibid.

^[72] http://www.nti.org/e_research/official_docs/inventory/pdfs/intlterr.pdf.

^[73] Zumach Kurzbericht 8.

^[74] UN GA Resolution 54/109, December 9th 1999.

^[75] UN General Assembly, Sixth Committee, 4th Meeting (AM), document GA/L/3276, available on http://www.un.org/News/Press/docs/2005/gal3276.doc.htm.

^[76] UN GA Resolution 54/109, December 9th 1999.

^[77] Schmalenbach Definitionsversuch NZWehrR 2000 16.

^[78] Payne World Conflict Quarterly 1.

^[79] Payne World Conflict Quarterly 1.

^[80] US Army Operational Concept for Terrorism Counteraction (TRADOC Pampflet No. 525-537, 1984).

^[81] Chomsky Necessary Illusions. The nature of the two conflicts and the American position in both cases is described infra 2.2.5.1.

^[82] Kinsley Column.

^[83] Submission by Scotland against Criminalizing Communities to Lord Carlile’s Independent Review of the Definition of Terrorism in UK Law, May 2006, www.sacc.org.uk/sacc/docs/sacc_carlile_submission.pdf.

^[84] www.opsi.gov.uk/acts/acts2006/ukpga_20060011_en.pdf.

^[85] Threat analyses used to make the case for “terrorism” legislation assume that the current situation in the Middle East provides an important stimulus for terrorism, and that some Muslims living elsewhere in the world are likely to engage in terrorism in consequence of this.

^[86] Since the founding of the United Nations, the UN Charter has been widely interpreted as implying that people have a right to resist tyranny and a right to struggle for selfdetermination. A number of UN resolutions make these rights more explicit. Anyone exercising these rights is almost certain to find themselves classified as a terrorist under the UK’s current legislation.

^[87] SACC-Paper, 4.