Elusive Dream of Defining 'Terrorism' In International Law

Perhaps, no subject in International Law, is as fascinating and challenging as that of the definition of 'Terrorism'. This subject has drawn serious consideration for the Scholars, academicians, diplomats, International Lawyers, States, especially the United States, the United Nations etc, only to face a blind wall, without any definitive  conclusions, yet the famous phrase 'War on Terror' or the fourth generation war, has become daily conversations in the world. So, why is it so difficult to define 'Terrorism', as the term Terrorism has not been defined even in the Global Criminal Court or the Rome Statue, except the word like Genocide which was coined after the Zero Year or the Second World war. What is the reason for this terrorist act? Is there any viable solution to end Terrorism in our Planet?

Terrorism Time Line:

For hundreds of years 'terrorism' has been used as a pejorative term, usually applied to 'the other side,' or 'what they did to us; and not what we did to them'. This is a word of political descriptor role; its significance as a legal term is more recent. In fact over 150 definitions were found by the University of Southern California. The root word 'terror' (from the Latin 'terrere'-'to frighten') entered Western European languages’ lexicons through French in the fourteenth century and was first used in  English in 1528. 'Terrorism' gained its political connotations from its use during the French Revolution. The French legislature led by Maximilien Robespierre, concerned about the aristocratic threat to the revolutionary government, ordered the public execution of 17,000 people ('regime de la terreur') to educate the citizenry of the necessity of virtue. Robespierre’s sup-porters who turned against him, having supported the use of terror in the  resistance, accused him of using terrorism in an attempt to identify the illegitimate use of terror. Terrorism, initially associated with state-perpetrated violence, shifted to describing non-state actors following its application to the French and Russian anarchists of the 1880s and 1890s.Terrorism following World War II harnessed newly developed technology. Terrorist hijackings of civil aviation aircraft were a feared and relatively common occurrence. The international community responded with a series of treaties which, in tandem with increased airport security, successfully reduced the incidence of harm to aircraft and passengers.

The United Nations’ response to a series of terrorist attacks on diplomats and civilians in the 1970s was similarly reactionary. The International Convention Against the Taking of Hostages (Hostages Convention) followed in 1979, although it did not result in fewer hostage-taking incidents. Of course, law alone is insufficient; it must be buttressed with faithful enforcement and effective prevention strategies. The terrorism that began in the early 1990s differs from that of the 1960s and 1970s (although terrorism motivated by the goal of decolonization still exists, inter alia, in the Middle East and around Kashmir). This modern variety of terrorism comes from a mix of religious affiliation intertwined with political ideology and geo-political goals. It poses a greater threat to society, in part because modern terrorists are harder to deter than the terrorists of the 1960s who were concerned— at least to a greater extent—with the harmful consequences of their actions.

Furthermore, the relationship between the means employed and the terrorists’ ends is more attenuated than in the past. Although the frequency of terrorist attacks has been relatively constant since 1989, the increasing scale of attacks (as September 11, the Bali and Madrid bombings, the siege at Beslan, and the London bombing tragically illustrate) is alarming. September 11, illustrating that terrorism crosses national and ethnic boundaries, changed the prevailing attitude to terrorism and certainly the attitude of the most influential states. The proliferation and greater availability of weapons of mass destruction, modern society’s dependence on computer systems, and the emergence of cyber-terrorism increases the likelihood of a large scale high-impact terrorist attack. The use of civil aviation aircraft to destroy the World Trade Center towers in New York and part of the Pentagon building in Virginia on September 11, is perceived as highlighting deficiencies in international anti-terrorism law and enforcement: the lack of international police and intelligence coordination; the absence of a comprehensive definition of terrorism; and insufficient international criminal law infrastructure. The attacks’ scale and principal victim jolted world opinion. Consequently, the Security Council issued an interventionist resolution, the U.N. General Assembly took up the terrorism debate with increased vigor, and, generally speaking, states and non-state entities reaffirmed the relevance of international law and cooperation in preventing and punishing terrorism. Even the League of Nations attempted to define acts of terrorism in 1937, but the League of Nations Convention for the Prevention and Punishment of Terrorism was ignored when the United Nations Charter was written in 1945. It was only after the terrorist attack at the Munich Olympic Games in 1972, served as a wakeup call to the International community to debate seriously, followed by 9/11, which prompt the UNSC to pass  Resolution 1373 (2001) Adopted by the Security Council at its 4385th meeting, on 28 September 2001, Calling on States to work together urgently to prevent and suppress terrorist acts, including through increased cooperation and full implementation of the relevant international conventions relating to terrorism. This resolutions was again strengthened by Resolution 1566 (2004) Adopted by the Security Council at its 5053rd meeting, on 8 October 2004, Calling upon States to cooperate fully with the Counter-Terrorism Committee (CTC) established pursuant to resolution 1373 (2001), including the recently established Counter-Terrorism Committee Executive Directorate (CTED), the 'Al-Qaida/Taliban Sanctions Committee' established pursuant to resolution 1267 (1999) and its Analytical Support and Sanctions Monitoring Team, and the Committee established pursuant to resolution 1540 (2004), and further calling upon such bodies to enhance cooperation with each other, Reminding States that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law, which exhibits that human rights and human values cannot be sacrificed or modified in the name of waging war against war on terrorism.                                                                         

Thus, the world leaders were grappling with the contentious issue of terrorism since the establishment of the League of Nations after the First World War. In September 2005, 150 World Leaders met in the United Nations to define 'Terrorism', but after two days they agree to disagree on the definition, and no conclusion could be arrived at. As of now there are 14 International conventions with One Amendment and 4 Protocols, as on march 2017,  they are :-

1963 Convention on Offences and Certain Other Acts Committed On Board Aircraft
1970 Convention for the Suppression of Unlawful Seizure of Aircraft
1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation
1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents
1979 International Convention against the Taking of Hostages
1980 Convention on the Physical Protection of Nuclear Material
1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation
1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation
1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf
1991 Convention on the Marking of Plastic Explosives for the Purpose of Detection
1997 International Convention for the Suppression of Terrorist Bombings
1999 International Convention for the Suppression of the Financing of Terrorism
2005 International Convention for the Suppression of Acts of Nuclear Terrorism
2005 Amendment to the Convention on the Physical Protection of Nuclear Material
2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation
2005 Protocol to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf
2010 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation
2010 Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft

2014 Protocol to the Convention on Offences and Certain other Acts Committed on Board Aircraft: 

But it is clear that the International conventions and protocols are not enough to arrive at any final definitive conclusions on the definitions of Terrorism. We can see the following various Definitions of Terrorism and the Controversy in Defining Terrorism:

The difficulty in defining 'terrorism' is in agreeing on a basis for determining when the use of violence (directed at whom, by whom, for what ends) is legitimate; therefore, the modern definition of terrorism is inherently controversial. The use of violence for the achievement of political ends is common to state and non-state groups. The majority of definitions in use has been written by those directly associated with government, and is systematically biased to exclude governments from the definition. The contemporary label of "terrorist" is highly pejorative: it denotes a lack of legitimacy and morality. As a practical matter, so-called acts of 'terrorism' or terrorism are often a tactic committed by the actors as part of a larger military or geo-political agenda. "Terrorism" is difficult to define Because terrorism is a "contested concept" and political, legal, social science and popular notions of it are often diverging; Because the definition question is linked to (de-)legitimization and criminalization; Because there are many types of " terrorism", with different forms and manifestations;  Because the term has undergone changes of meaning in more than 200 years of its existence. Now let us analyzed some of the definitions of 'Terrorism’.

United Nations

The UN General Assembly Resolution 49/60 (adopted on December 9, 1994), titled "Measures to Eliminate International Terrorism," contains a provision describing terrorism: 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, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them. The UN Member States still have no agreed-upon definition of terrorism, and this fact has been a major obstacle to meaningful international countermeasures. Terminology consensus would be necessary for a single comprehensive convention on terrorism, which some countries favor in place of the present 19 piecemeal conventions and protocols. Cynics have often commented that one state's "terrorist" is another state's "freedom fighter". The Arab Convention for theSuppression of Terrorism was adopted by the Council of Arab Ministers of the Interior and the Council of Arab Ministers of Justice in Cairo, Egypt in 1998. Terrorism was defined in the convention as: Any act or threat of violence, whatever its motives or purposes, that occurs in the advancement of an individual or collective criminal agenda and seeking to sow panic among people, causing fear by harming them, or placing their lives, liberty or security in danger, or seeking to cause damage to the environment or to public or private installations or property or to occupying or seizing them, or seeking to jeopardize national resources.

UN Security Council Resolution 1566 (2004) gives a definition: 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.

UN panel, on March 17, 2005, described terrorism as any act "intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing any act.'

United States

The United States has defined terrorism under the Federal Criminal Code. Title 18 of the United States Code defines terrorism and lists the crimes associated with terrorism. In Section 2331 of Chapter 113(B), defines terrorism as: '…activities that involve violent… or life-threatening acts… that are a violation of the criminal laws of the United States or of any State and… appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and…(C) occur primarily within the territorial jurisdiction of the United States…'

FBI definition of terrorism: 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.

U.S. Army Manual definition terrorism is the "calculated use of unlawful violence or threat of unlawful violence to inculcate fear. It is intended to coerce or intimidate governments or societies ... [to attain] political, religious, or ideological goals." U.S. Army Field Manual No. FM 3-0, Chapter 9, 37 (14 June 2001).

Department of Defense Dictionary of Military Terms defines terrorism as: 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.

CIA definition of terrorism: It is premeditated planned in advance, other than an impulsive act of rage. It is political-not criminal, like the violence that groups such as the mafia to use to get money, but designed to change the existing political order, it is aimed at civilians not at military targets or combatant troops. It is carried out by sub national groups-not by the army of a country.

State Department definition of terrorism: Is premeditated, political motivated violence targets by sub national groups or clandestine agents, usually intended to influence an audience.

The difference in the above definitions are:-

UN-Criminal
CIA-Not criminal
DOD-Instills fear
CIA-Premeditated and targets noncombatant
DOD-Motive is political or ideological

But it appears that among the academic community, many scholars would hold that the definitions appear to be clear without any ambiguity in the definitions.

Scholarly definitions:

Alex schood (1992) Terrorism is a peacetime equivalent of a war crime

Bruce Hottrann (2004) Terrorism is historically, political rooted in aims and motives violent or threaten violent.

Dr.Boaz Ganor (2005) Terrorism is the deliberate use of violence aimed against civilians to achieve political ends.

Robert Pape: Killing of innocent people, civilian and off duty police for political consideration with intention to change political policy or to secure change of government.

Philip sands: An act intended to instill fear in the population of civilian by using violence, which is lawful if target is against combatant, but unlawful against civilian.

Dr.Gonar Westberg: The United Nations did not fail to define 'Terrorism', but once a definition is arrived at by one state another State disagree, as a result there was no consensus.

The above definitions are the reasons why Abdullah Hakim Quick, Ph.D, Islamic History Canada, commented that the United Nations did not failed to define 'Terrorism' but they simply refused to define 'Terrorism', as once they define it, many will become perpetrators of terrorism that they define.

State Terrorism

State terrorism has been defined as acts of terrorism conducted by governments or terrorism carried out directly by, or encouraged and funded by, an established government of a state (country) or terrorism practiced by a government against its own people or in support of international terrorism.'State terrorism' is as controversial a concept as that of terrorism itself. Terrorism is often, though not always, defined in terms of four characteristics: (1) the threat or use of violence; (2) a political objective; the desire to change the status quo; (3) the intention to spread fear by committing spectacular public acts; (4) the intentional targeting of civilians. This last element--targeting innocent civilians—is problematic when one tries to distinguish state terrorism from other forms of state violence. Democratic regimes may foster state terrorism of populations outside their borders or perceived as alien; but they do not terrorize their own populations because a regime that is truly based on the violent suppression of most citizens (not simply some) would cease to be democratic. Dictatorships terrorize their own populations; democracies do not; but they can engage in state sponsored terrorism in other countries. Declaring war and sending the military to fight other militaries is not terrorism, nor is the use of violence to punish criminals who have been convicted of violent crimes, but many would argue that democracies are also capable of terrorism.

Israel has for many years been characterized by critics, especially in the Arab world, United Nations Resolutions, and human rights organizations, as perpetrating terrorism against the population of the territories it has occupied since 1967. Critics also accuse the United States of terrorism for backing not only the Israeli occupation, but other repressive regimes willing to terrorize their own citizens to maintain power. Palestinian militants call Israel terrorist, Kurdish militants call Turkey terrorist, and, of course, the nation-states call the militants who oppose their regimes 'terrorists'. Like 'beauty', 'terrorism' is in the eye of the beholder. One man’s freedom fighter is another man’s terrorist. Hence, the difficulty in defining Terrorism. As an example the list of most wanted terrorist kept by the United States at one time were Nelson Mandela and Yasser Arafat, but both of them were subsequently awarded the prestigious Nobel Peace Prize, ironically despite the award, the Nobel laureate Yasser Arafat,  just before his death was again described as a terrorist by the United States.

Secession: Another stumbling block in the definition of terrorism is that of one person’s terrorist is another’s freedom fighter. Consider this, if a rebel group started bombing cruel and injustice dictatorial authorities perpetrating horrendous crime against humanity and genocide against its own people like the Pol Pot regime for instance, amounts to terrorist act or an act of legitimate liberation.

Insurgency and Regional retribution: Problem in the definition also arise in those occupation of foreign territory by foreign military forces, either in the form of insurgency occurring within the occupied territory or acts against the occupying forces but occurring outside the territory. Such insurgency can be linked to Afghanistan and Iraq during the 21st century. For instance the attack on United Nations headquarter in Baghdad on 19 August 2003, claiming the lives of the special representatives of the Secretary General, Sergio Viera de Mello and 21 other men and women. Al Qaeda after Madrid bombing on 11 March 2004, sent the message: 'Stop targeting us, release our prisoners and leave our land, we will stop attacking you. In 974 PLO leader Yassir Arafat Stated before the United Nation: '  He who fights for a just cause, He who fights for the liberation of his Country, He who fights against invasions and exploitation or single mindedly against colonialism, can never be defined as terrorism.

Using drones by civilian in aid of Military? For instance, a civilian in aid of occupying forces piloted a drone thousands of miles away and killed number of civilians while attacking terrorist within a state. Here, is the civilian or the department of Science and Technology of the State concern need to be considered as terrorist?

Killing civilian or head of the State by the Terrorist, or Military assasinating leader of the terrorist, or for instance US President Bill Clinton directing CIA to assassinate Saddam Hussain, before his second term election, typical of the doctrine of preemptive strike having much earlier origins, even in words. Forty years ago Dean Acheson informed the American Society of International Law that legal issues do not arise in the case of a US response to a 'challenge to its power, position, and prestige.' He was referring to Washington’s response to what it regarded as Cuba’s 'successful defiance' of the United States. That included Cuba’s resistance to the Bay of Pigs invasion, but also much more serious crimes. When Kennedy ordered his staff to subject Cubans to the 'terrors of the earth' until Castro is eliminated, his planners advised that 'The very existence of his regime, represents a successful defiance of the US, a negation of our whole hemispheric policy of almost a century and a half,' based on the principle of subordination to US will. The list is endless and defies any conclusion on the definition of Terrorism. Terrorism is subjective matter and objective tools or means cannot fit in with the subjective matter, which will be like a kettle of different sizes to be put and arranged in one big kettle. A war on terror is not conventional war with define army on both sides, rather a war on terror is like a war with a ghost, a war without any conceivable victory that will end the war. Is it worth fighting a war that has no victory or no ends, as the enemy may pop up any time anywhere, when you least expect it. The war on terror is not only a war with a phantom enemy, rather it may turn out to be a war with the ghost of the past, grounded in injustice, violation of human rights and maybe genocide and crime against humanity and deprivation of natural resources etc, or calling the kettle black. In spite of attempting to define 'terrorism' or say 'A Rose by another Name would smell as Sweet' Shakespear’s play Romeo and Juliet: 'What’s in a name? That which we call Rose, By any other name would smell sweet.

As of now the main actor in the field and ground on War On Terror, is the United States of America along with its allies against the phantom enemy. The war on terror is also not the making of Bush administration but reusing that of the Reganian Administration, a man whose bed tea cannot be disturbed, even with  almost the total membership of the United Nations that voted against his foreign policy,  and now Donald Trump, with a new vocabulary like 'He must Disappear, Evaporate' , as if he is not a  human being but a vapor or a morning dew, and to a Nation as: it should not be there, as if a Nation was planted by mistake. The fall of Berlin wall followed by the demise of Communist USSR, there is no more US foreign policy of 'Russians are coming' but a new US policy of 'War On Terror’. There are also schools of thoughts who maintains that all Muslim are not terrorist, but all terrorist are Muslim, which is simply a misleading statements; as there are Arab terrorist, Jews terrorist, Christian terrorist, Catholic terrorist and Hindu terrorist etc. As the United States wage war on terrorism, it should also look back to the past of its own acts like the 1864 Cavalry attacked on the Northern Cheyenne Indians at sand creek in Colarado, 1899 to 1902 conquest against the people of Philippine Islands, 1968 US atrocities in Vietnam, US foreign policy in the Latin America in El Salvador, Guatemala and Hondoraus, Nicaragua etc, and also in the western Hemisphere in Cuba, Haiti, Dominican Republic etc, and in the Middle East. Betrayal of  Arab Leader Sherif Hussain,  and his two sons Abdullah and Faizal, by the allies for Arab Nation, one of the most tragic betrayals of trust after the WWII, through double standard policy. Thus, the only answer to 'War On Terror’ is not the definition of Terrorism or the missiles, Bomb, and Air Strike, but to kill them all with LOVE.

 

N.K.Assumi 
on 24 October 2017
Published in Others
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