Terrorism: Towards a Legal Definition
By Soliman M. Santos, Jr.
Editor’s Note: Santos is a lawyer, peace advocate and legal scholar. He is the author of two recent books, The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (University of the Philippines Press, 2001) and Peace Advocate: 50 Selected Writings, 1986-1997 (De La Salle University Press, 2002).
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:
violence, whether actual or threatened;
a ‘political’ objective, however conceived; and
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:
those without state toleration, support or sponsorship;
those with state toleration, but without state support or sponsorship;
those with state support, but without immediate state sponsorship;
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.”
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:
making civilians the object of attack (deliberately targetting civilians)
acts or threats of violence or use of weapons
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:
political or even quasi-political objective (to distinguish it from criminal madness)
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.
Atty. SOLIMAN M. SANTOS, JR.
18 Mariposa St., Cubao, QC
Tel. 7252153, Fax c/o 4125366
(0920) 290 3602
29 September 2002
The date posted here is due to our website rebuild, it does not reflect the original date this article was posted. This article was originally posted in Yonip in 2002