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The Law Of War
Terrorism: An International Crime?1
by Michael Lawless
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The 21st Century has witnessed a marked increase in the prevalence of failed and failing states, and an equally significant increase in acts of domestic and international terrorism. The challenge at present is for the international community of nations to adopt a common approach to the treatment of terrorism as an international crime. This article will argue that terrorism is an international crime, and, as such, it requires the international community to act in the prevention of terrorism and the sanction of individuals perpetrating acts of terrorism. In this respect, the events of 11 September 2001 have presented an opportunity for internationalist forces to come to the forefront of the global political agenda. With an international war on terrorism seemingly being sanctioned by the United Nations (UN), it is time for the crime of terrorism, as the act of a non-governmental organization, to become a part of the universal responsibility of nations, with that responsibility further delegated to an international institution, such as the International Criminal Court, for prosecution and subsequent sanction.
This article will discuss the current status of terrorism as an international crime. In this respect, a review of the existing treaties and conventions dealing with discrete elements of terrorism will be presented, followed by the identification of the definitional problem of what exactly constitutes terrorism. Thereafter, the article will conclude with a review of the current state of international criminal law, and it will argue that the lack of a precise agreed-upon definition of terrorism in the international community does not detract from the criminality of the act, but, rather, it simply provides an excuse for states to not meet their obligations under the law.
It is generally accepted that ‘international crimes’ are crimes that are considered so heinous that any member of the ‘community’ of nations may prosecute the offender. An early example of a crime deemed to be universal, and for which any nation may claim jurisdiction, is piracy. Other international crimes of universal jurisdiction, and for which international conventions have been aimed, include slavery, war crimes, hijacking and sabotage in civil aircraft, and genocide. Much as piracy developed into an international crime obligating each state to take positive steps to prevent piratical acts, states are equally charged in the modern world circumstance to take positive steps to prevent terrorism and to effect sanction upon convicted terrorists. This obligation extends to the requirement for states either to bring purported terrorists within the sphere of domestic criminal law or to turn over those accused of terrorism to the international community of nations for trial and sanction (upon conviction) before the International Criminal Court (ICC) or similar judicial institution.
Although there may be numerous legitimate critiques of how and under what circumstances individuals will be subject to international legal institutions, it is clear that the international community has continued to apply international criminal law to individuals. Further, it is clear that the international community has effectively established both ad hoc and permanent judicial institutions for the trial and sanction of individuals found to have breached international criminal law. What remains outstanding at the present time is the requirement to assess the current international position on terrorism as a crime under international law, and the effect of any such determination of criminality.
UN Photo/Yutaka Nagata 69124
The Current State of International Law Prohibiting Terrorism
At the present time, there exist 13 international conventions or protocols which prohibit specific acts of terrorism. These agreements have been developed and are maintained under the auspices of the UN, and they stand as the expressed will of the world community.
The first of the modern conventions to address the problem of terrorism, the Tokyo Convention of 1963, sought to address behaviour onboard aircraft that could affect in-flight safety. It was followed in 1970 by the Hague Convention, which specifically made it an offence for any person onboard an aircraft to attempt to seize or exercise control of the aircraft, whether by threat, force, or intimidation. The 1970 Hague Convention was developed in direct response to the 1968 en route hijacking of an El Al Boeing 707 flying from Rome to Tel Aviv, the event is generally considered to have been the “...principal initiator of the deadly continuum of international terrorist attacks” that have continued into the present.2 The terrorist nature of this hijacking is apparent from the target – the airline was the Israeli national airline, and, as such, a symbol of the Israeli state. Its hijacking required the state to deal directly with the terrorists who were seeking to trade the passengers for the release of Palestinian terrorists imprisoned in Israel with the media being close at hand – a “bold political statement.”3
Thus, the international community, when faced with the developing threat of terrorism within the confines of international airspace, has acted to make it a criminal offence for any person or group to interfere with aircraft. In fact, this prohibition is not merely applicable in international airspace but it extends to and is effective within national airspace, given the determination of the international community that any such act, whether committed within national boundaries or not, is of such a nature as to require a consistent international response. Other international conventions address specific acts committed against air travellers whether onboard aircraft or at airports, acts against shipping, and a specific prohibition on hostage taking.
Each of these conventions imposes a duty upon a state party to either extradite or prosecute an individual or organization alleged to have contravened a convention. The duty to prosecute or extradite in these conventions is generally stated as follows:
The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution.4
In effect, the conventions adopted by the United Nations with respect to terrorism provide an obligation upon each party to the conventions to ensure that individuals alleged to have committed acts of terrorism are brought to account for that conduct before a court of law. Arguably, the obligation to prosecute or extradite is binding upon all states, not just those that have become state parties to the convention, given the general acceptance by the international community of the provisions of these conventions. Further, international law imposes a positive duty on all states to obey international law.5 In the case of terrorism, that duty to obey requires and compels states to either prosecute or extradite, and it precludes states from taking no action against an individual or group alleged to have breached international law. However, in the absence of an international judicial institution that could prosecute alleged terrorists, individual states have lacked the impetus in many cases to try accused terrorists nationally, or to extradite them to another nation state.
The obligation to prosecute imposed upon states has not been entirely ineffective. Following the initial declarations of the UN against terrorism in the 1960s and 1970s, some nations began to pursue the prosecution of suspected terrorists with greater vigour. However, in the absence of an international consensus on how to bring terrorists to justice, the impetus for such efforts quickly dwindled.
Between January 1972 and January 1974, European police forces apprehended fifty suspected Arab terrorists. Of those fifty, only seven saw the inside of a prison. Thirty-six were released without trial, including the surviving members of the Palestinian terror squad that murdered the Israeli Olympic team at Munich in 1972.6
In such circumstances, it is no wonder that there was little if any deterrent effect registered upon terrorists. If anything, the failure to adequately cause alleged terrorists to be subjected to judicial sanction weakened efforts at the national and international level for a coherent international judicial institution within which to deal with terrorists. The message sent to the terrorists was clear – carry on with your activity as there is little risk of sanction to cause you to consider other means of achieving your political objectives. Ultimately, the incidence of terrorism increased throughout the 1970s and into the present time, with terrorists becoming increasingly sophisticated and capable of committing larger and more devastating acts of violence.
In specific response to the increased prevalence of terrorism across the globe, the United Nations General Assembly, in 1997, enacted a convention declaring universal jurisdiction over the unlawful and intentional use of explosives in public places. Known as the International Convention for the Suppression of Terrorist Bombings, this convention was followed in 1999 by the International Convention for the Suppression of the Financing of Terrorism, which requires nations to prevent and counteract the financing of terrorists, and to prosecute individuals and organizations that provide any such financing. Through this Convention, the UN has declared the crime of financing terrorism, as well as the crime of terrorism itself, to be international in nature, and, thus, the subject of universal jurisdiction.
In declaring terrorism to be the subject of universal jurisdiction, the United Nations has made a statement to all non-state actors that resort to violence as a means of securing political change (terrorists) that no more would the terrorist solely be subject to sanction when caught within the territorial jurisdiction of the state where they committed the offensive act. Rather, the perpetrator of a terrorist act would be liable to criminal sanction wherever and whenever captured by a lawful national authority. In general, universal jurisdiction is granted to any nation that obtains control over the perpetrator of certain offences considered especially harmful to humanity generally.7 Thus, under the Terrorist Bombing Convention, a nation can assert jurisdiction, even though there has been no effect upon the territory, security, or sovereignty of the asserting state, and it allows any state to obtain jurisdiction over any person who has been responsible for the bombing of a public place anywhere in the world.
In addition to the 13 noted international conventions that address specific acts of terrorism, following the 11 September 2001 attacks, the United Nations General Assembly and the United Nations Security Council have each adopted resolutions that speak directly to the criminality of terrorism. In particular, Security Council Resolution 1373 (2001) of 28 September 2001:
...Declares that acts of international terrorism constitute one of the most serious threats to international peace and security in the twenty- first century,
Further declares that acts of international terrorism constitute a challenge to all States and to all of humanity,
Reaffirms its unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed...8
Thus, in the immediate aftermath of the World Trade Center attack, the UN again acted in response to the manifest threat of terrorism, and once again defined terrorism to be criminal in nature. This Declaration of the United Nations was not without precedent. Rather, the contrary is the case, and the UN has, since its inception, consistently declared terrorism to be criminal and has sought to have individual perpetrators of terrorist acts brought to justice. The United Nations General Assembly, in 1995, imposed a positive obligation on state parties to the Charter of the United Nations as follows:
5. States must also fulfill their obligations under the Charter of the United Nations and other provisions of international law with respect to combating international terrorism and are urged to take effective and resolute measures in accordance with the relevant provisions of international law and international standards of human rights for the speedy and final elimination of international terrorism, in particular:
b) To ensure the apprehension and prosecution or extradition of perpetrators of terrorist acts, in accordance with the relevant provisions of their national law;9
In this regard, it is clear that terrorism has been the subject of significant debate in both the General Assembly and the Security Council of the United Nations. The result of these debates has been the promulgation of various anti-terrorism declarations that have consistently found terrorism to be criminal, and that obligate states to bring terrorists to justice. A clear example of this can be seen in a 1997 Declaration of the United Nations General Assembly, which reaffirmed an earlier Declaration from 1994 and stated again the obligation for states to ensure that terrorists are either prosecuted by national institutions or extradited to an appropriate state where such a trial can take place. Specifically, this Declaration states in its Article 5:
The States Members of the United Nations reaffirm the importance of ensuring effective cooperation between Member States so that those who have participated in terrorist acts, including their financing, planning or incitement, are brought to justice; they stress their commitment, in conformity with the relevant provisions of international law, including international standards of human rights, to work together to prevent, combat and eliminate terrorism and to take all appropriate steps under their domestic laws either to extradite terrorists or to submit the cases to their competent authorities for the purpose of prosecution;10
Most recently, the United Nations Security Council has once again declared: “...[that] terrorism in all its forms and manifestations constitutes one of the most serious threats to peace and security,” and further, “...[that] any acts of terrorism are criminal and unjustifiable, regardless of their motivation, whenever and by whomsoever committed and are to be unequivocally condemned, especially when they indiscriminately target or injure civilians.”11 Thus, it is simply not possible to assert that terrorism is not prohibited by the international community, or that terrorism is not an international crime. On the contrary, it is abundantly clear that the UN has deliberated over the course of many years on the topic of terrorism, and the ultimate result of those deliberations has been the creation of a comprehensive prohibition on terrorism as a means of effecting political change, irrespective of any laudatory purpose or change sought by the terrorist.
UN photo/Jenny Rockett 185103
Unfortunately, it is accurate to say that prior to the attack on the World Trade Center, and the clear demonstration of the devastating effect a single coordinated terrorist attack could produce, there was little impetus for the international community to do more than declare terrorism to be an offence against international law. However, following the 9/11 attacks, it became abundantly clear that it was necessary to do more than simply declare terrorism to be contrary to law. It became necessary to deal with the issue on a global basis. International law is clear – terrorism is a crime. The importance of this determination of terrorism as a crime is:
...[that it]tends to diminish the stature of the terrorist to that of common criminal, building a wall of illegitimacy between the act and its perpetrator and the broad psychological push toward political objectives that the terrorist seeks. Effective attribution and prosecution furthers the isolation of terrorists, enhances the full set of retribution efforts, and also enhances confidence (while further dispelling the element of fear) in the target population.12
Consequently, the failure of the international community to effectively create a legal regime with the requisite judicial organs to address terrorism necessarily contributes, albeit passively, to the increasing prevalence of terrorism across the globe. Clearly, “...whether they are brought to justice by the international community or by the course and tribunals of individual countries may matter less than the fact that perpetrators know that at some point in the future their actions will have consequences and that they will not be able to act with impunity.”13 In failing to treat the terrorist as a criminal, and so to subject the terrorist to the same legal consequences as the common criminal, the international community continues to reinforce the political purpose of the terrorist by drawing a clear distinction between the criminal who is prosecuted and incarcerated and the terrorist, who knows no international consequence.
Terrorism – the Problem of Definition
One of the fundamental problems faced by the international community in addressing terrorism is the difficulty in coming to an agreed-upon definition of terrorism. “Hundreds of definitions of terrorism are offered in the literature. Some focus on the perpetrators, others on their purposes, and still others on their techniques.”14 Consequently, while there are a number of specific treaties that prohibit acts that are of a type that would generally be considered terrorist, there is no specific definition from which it would be possible to draft an independent “anti-terrorist” treaty or convention. In essence, the international community had focused its efforts on the prohibition of specific acts of terrorism. However, with the attack upon the World Trade Center, this community was rudely and dramatically reminded that terrorism is a significant global problem that must be dealt with in such a way as to deter future attacks. In fact, the extent of the world response to 11 September 2001 can be seen in part through “...the evident willingness of certain state sponsors of terrorism [Libya, Syria, and others] to distance themselves from extremist groups that they had supported in the past or from international terrorism generally.”15
Similarly, other nations responded within the domestic sphere. In the immediate aftermath of the World Trade Center attack, various nations imposed legislation to counter terrorism or threats of terrorism. By way of examples, the United States passed the Patriot Act, Canada passed the Anti-Terrorism Act, and the United Kingdom passed the Terrorism Act. In each case, the nation defined terrorism or terrorist act in a different manner, further demonstrating the variety of interpretations available. Additionally, there has been a significant increase in the impetus for nations to ratify existing international anti-terrorism conventions. In fact, following the 9/11 attacks, the Convention for the Suppression of Terrorist Bombing saw ratifications increase from 28 states to 115 states. Similarly, the Convention for the Suppression of the Financing of Terrorism saw ratifications increase from six states to 117 states.
In the specific case of Canada, there has been a significant response, both domestically and in terms of Canada’s ratification of international conventions dealing with terrorism. Internationally, Canada has ratified both the Convention for the Suppression of Terrorist Bombing, and the Convention for the Suppression of the Financing of Terrorism.16 Domestically, the Anti-Terrorism Act represents a “...massive and permanent change to Canadian criminal law with respect to terrorism,” as it criminalizes not only acts of terrorism, whether executed or merely planned, but also criminalizes many forms of financing or facilitation of terrorism.17 However, while it is massive, this change is not unduly reactionary. Rather, it is an appropriate response to the clear demonstration of the massive scale upon which terrorists may now act. In this respect, Canada’s response to the events of 11 September 2001 can be seen as “...deliberate, thorough, and balanced.”18
The passage of this type of national legislation is clear evidence of the ability of disparate groups of legislators to come to an agreement on an acceptable definition of terrorism. That the UN has been unable to do so is due more to a lack of will than to any true impediment to determining an appropriate definition of terrorism. In accepting the lack of an effective definition of terrorism, it may be argued that the lack of a comprehensive international legal regime to address terrorism is a result of the existence of “...great uncertainty and controversy among jurists and other specialists on the role and effectiveness of law and legal systems in combating terrorists.”19 In effect, the international community has abdicated its responsibility to the promotion and creation of international peace and security on the basis of a lack of agreement on the effectiveness of an international judicial institution capable of sanctioning terrorists.
However, this argument fails to recognize the fact that there has never been a comprehensive international anti-terrorism structure that has failed – in fact, there has never been one at all. Further, in looking to national level structures, it is fair to say that it is not truly possible to assess the effectiveness of any domestic anti-terrorism regime as it is not possible to determine the number of terrorist incidents that have been either prevented or not attempted, given the existence of that regime. Ultimately, the existence of a comprehensive international anti-terrorism regime, including judicial institutions, can only assist in the fight against terrorism, and it cannot be said to be either harmful or an impediment to that cause. As such, the creation of such a structure ought to be at the forefront of the international community’s agenda to address global terrorism.
In seeking to develop an international judicial structure to do so, clearly a definition of terrorism must first be adopted and thereafter applied by the new institution. However, to date, the international community has been unable to agree upon such a definition. Notwithstanding the various definitions of terrorism seen in national legislation around the globe, there are certain common themes that can be used to distil a rudimentary definition of terrorism, and from which the international community could effectively act against the problem itself. It seems clear that terrorists variously seek change to the status quo through the application of violence against states and individuals. As such, any effective definition of terrorism must recognize the inherently political purpose of it. Further, the definition must acknowledge that the terrorist specifically acts against civilian populations or targets, as opposed to the presumably more legitimate target of state institutions or military forces that can allow the actor to claim status as a lawful combatant.
The most basic definition is one that has three distinct elements, namely, violence, a non-state actor, and a political purpose. Accepting these three constituent elements, the definition of terrorism becomes, ‘...[the] unlawful threat or act of violence committed for a political purpose by a non-state actor.’ With this definition in place, it would be possible for an international judicial institution (most appropriately the ICC) to assume jurisdiction over the offence of terrorism, and, on behalf of the world community, to dispense justice upon those found to have committed the international crime of terrorism. The value of a simple definition is that it permits a wide range of actors, whether they are individuals or groups, to be subject to the definition and therefore liable to sanction. Similarly, the intention of the accused is a necessary characteristic of the definition, for the act of violence against a non-combatant without political purpose is simply assault, or perhaps murder, but, in either case, it is not terrorism. Such an act may be a crime, but it is a crime under domestic law and not the international crime of terrorism, for it does not seek a political goal or outcome.
That this definition does not focus upon the target of the attack does not impair the effectiveness of the definition, as it is the characteristic of the actor, as either state or non-state, that leads to the application of either the law of armed conflict (state actor) or international criminal law (non-state actor). Thereafter, the establishment of a political purpose will lead to the third part of the definition, that being the threat or use of violence in order to effect that political purpose. Only when all three elements are present, and only when no valid defence is raised, can the individual or group be found to lie within the ambit of the proposed definition and thus be liable to judicial sanction. In essence, where the accused ‘terrorist’ can show that he/she has acted as a lawful combatant, the impugned actions may be found to have been committed lawfully, and thus, not be criminal.
An effective definition of terrorism must recognize the distinction between legitimate, non- conventional actors (variously described as revolutionaries, freedom fighters, and the like) and illegitimate non- conventional actors (the terrorist). A fundamental difference between these two distinct groups is their choice of target. For the terrorist, the indiscriminate targeting of the civilian population is preferred, whereas the revolutionary specifically targets the institutions and personnel of the state authority with whom they are in conflict, and not the general civilian population.
‘Guerrilla,’ for example, in its most widely accepted usage, is taken to refer to a numerically larger group of armed individuals, who operate as a military unit, attack military forces, and seize and hold territory ... while also exercising some form of sovereignty or control over a defined geographical area and its population. Terrorists, however, do not function in the open as armed units, generally do not attempt to seize or hold territory, deliberately avoid engaging enemy military forces in combat and rarely exercise any direct control or sovereignty either over territory or population.20
UN photo/Evan Schneider 141544
On the importance of the choice of target in defining the conduct as terrorist, the distinguished Israeli Benjamin Netanyahu notes:
What distinguishes terrorism is the wilful and calculated choice of innocents as targets. When terrorists machine-gun a passenger waiting area or set off bombs in a crowded shopping centre, their victims are not accidents of war but the very objects of the terrorists’ assault.21
Similarly, in the debate with respect to the distinction between the terrorist and the ‘freedom fighter,’ it is clear that there exists a relatively clear difference between the circumstance under which an individual or group can be considered a ‘freedom fighter’ rather than a terrorist. Therefore, on the basis of this argument,
...it is legitimate for non-state actors to use force when the sovereign has either dissolved (Somalia) or been unjustly overrun by a foreign power (wartime France). In the former case, there is no authority with the jurisdiction to raise public war. As a result, the authority to wage war may be devolved to people who are able to command the loyalty of significant parts of the community. In the latter case, an individual’s inherent right to self-defence extends to the formation of resistance movements.22
Fundamentally, the complaint that ‘one person’s terrorist is another’s freedom fighter’ does not create a valid argument against defining terrorism and for placing the crime of terrorism alongside the other crimes that are within the jurisdiction of the International Criminal Court. The freedom fighter may have a claim to legitimacy in his or her conduct by solely targeting the institutions of the state, rather than the civilian population, in order to secure political change. More importantly, by choosing a state rather than a civilian target, the freedom fighters, whether an individual or a group, secure the ability to claim status as a freedom fighter, rather than categorization as a terrorist. Should such a claim be accepted by any international judicial institution, the criminal offence of terrorism would simply not be proven, and the accused would be acquitted. However, it is certainly possible to define terrorism in such a way as to restrict the application of international criminal law to attacks that are directed against a civilian population for the purpose of effecting political change.
In effect, an accused terrorist would have a defence to the charge of terrorism through the demonstration of how his or her conduct has complied with the requirements of the law of armed conflict, rather than international criminal law. In other words, as long as the individual or group acts as lawful combatants and does so in compliance with the law of armed conflict, they will not be subject to international criminal law. In this respect, it is important to recall that Article 51(2) of Additional Protocol I to the 1949 Geneva Conventions provides that individual civilians and the general civilian population are not combatants and, therefore, not legitimate targets during an armed conflict. This prohibition is generalized into a blanket prohibition on any attack upon the general civilian population for any reason. This proposition is further confirmed by the International Criminal Tribunal for the former Yugoslavia (ICTY), which held:
The Trial Chamber recalled that Article 51(2) confirms the customary rule that civilians must enjoy general protection against the danger arising from hostilities and pointed out that the prohibition against attacking civilians stems from a fundamental principle of international humanitarian law: the principle of distinction. This principle is set out, among other places, in Article 48 of Additional Protocol I which states that the warring parties must “at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”23
Further, Additional Protocol I of the Geneva Convention accepts that, in certain circumstances, it may not be possible for individual actors in an armed conflict to exhibit each of the characteristics of a lawful combatant. Specifically, Article 44.3 provides the following:
Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:
- During each military engagement, and
- During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
Thus, it is clear that international law specifically contemplates a degree of flexibility in determining the status of an individual as a lawful combatant. However, in cases where the individual or group is unable to demonstrate adherence to the law of armed conflict, and so ensure the granting of lawful combatant status, then the individual or group will be found to be subject to the proposed definition of terrorism and to sanction under international criminal law. In effect, the person or group is required to satisfy a court of competent jurisdiction that they should be afforded status as lawful combatants on the basis that they have met the criteria for such status. In such a case, the person or group will not be found to have committed acts of terrorism and so be subject to international legal sanction – although they may still face domestic sanction from the state within which they acted. In this respect, the international community’s reluctance to move forward with a definition of terrorism is no longer viable, as the argument against such a definition as it relates to the “freedom fighter exception” cannot be substantiated on juristic grounds.
UN photo/Yutaka Nagata 84980
A Requirement to Act
It is clear that terrorists act outside the boundaries of the law (whether national or international) through their application of indiscriminate violence against civilian populations. However, the present state of international law is such that the absence of a clear definition of terrorism precludes any international legal institution from taking effective action to combat terrorism. This, in turn, leads to the complete inability of the international community to deter terrorists and other like-minded individuals (and groups). Although domestic law invariably prohibits terrorism, and it may criminally sanction terrorists, the lack of a coherent international legal regime creates an environment in which the terrorist can act with seeming impunity. That the international community to date has failed to create an appropriate judicial institution is a product of a lack of will, and not the result of any lack of capacity to do so.
In domestic legal systems, punishments are imposed upon those who do not follow the rules after a procedure that determines that the rules have been violated. The international realm is different because it lacks a clearly defined central authority to determine violations and impose sanctions. Yet the lack of a central authority does not mean sanctions are not possible.24
Since the end of the Second World War, the international community has seen fit to create a number of international legal institutions through which individuals alleged to have breached international law have been tried and sanctioned criminally. Further, with the creation of the ICC, the world community has created a permanent legal institution with the capacity to subject individuals to trial and sanction for the commission of criminal acts.
That there exists a broad spectrum of international agreements and treaties prohibiting specific acts of terrorism is simply insufficient in the current context where terrorists have the capacity to inflict large-scale harm and mass casualties in a single attack. The lack of an accepted common definition of terrorism that could become the basis upon which to create a comprehensive international legal regime to combat terrorism is more excuse than legitimate impediment. At present, it appears at the international level, “...[that] terrorism’s criminal law policy implications are sometimes overlooked and high level pronouncements are favoured over a focus on concrete achievable results.”25
Ironically, the pursuit of broad declarations of criminality and prohibitions on terrorism by the United Nations, the primary vehicle through which the UN has addressed the problem of terrorism, is not in keeping with the stated intention of the United Nations itself. Of note, Kurt Waldheim, when Secretary General of the United Nations, declared, “...[that] the UN should not remain a ‘mute spectator’ to the acts of terrorist violence then occurring throughout the world but should take practical steps that might prevent further bloodshed.”26 Unfortunately, the UN has not followed through with this call for action, and it has defaulted into simply issuing periodic declarations of both the criminality of terrorists and the need for the international community to address terrorism. While these declarations have had the effect of criminalizing terrorism under international law, they fail to prevent or deter terrorists or other like-minded individuals from committing terrorist acts. In this respect, the lack of an effective and accepted definition of terrorism is a barrier to effective deterrence, for it precludes the development of appropriate international judicial institutions through which terrorists can be brought to justice.
UN photo/Saw Lwin 177525
It is apparent that “...one of the fundamental raisons d’être of international terrorism is a refusal to be bound by such rules of warfare and codes of conduct.”27 As such, the conduct of the terrorist is clearly and manifestly criminal because it fails to respect the rule of law, and must be dealt with swiftly and severely through appropriate judicial institutions. When the international community fails to adequately address terrorism through judicial institutions, and instead relies upon the ad hoc treatment of terrorists by national level actors, it is clear that the deterrent effect of judicial sanction will be missing, and, with it, one of the tools available to the world community to prevent terrorism globally. It is further clear that in order to be successful in countering and deterring terrorism, certain basic principles form the foundation of an effective policy against terrorism. These include:
- firm, unwavering opposition to terrorists;
- maintenance of the rule of law;
- no surrender to demands;
- no deals or concessions;
- bring terrorists to justice; and
- never allow terrorists to hijack the moral or political agenda.28
These principles appear at first glance to be self- evident, but their acceptance and their translation into effective international law enforcement has been lacking. The greatest area of failure has, of course, been the complete absence of effort at the international level to ensure suspected terrorists are brought to justice, and, thus, made subject to the rule of law. Although an argument may be made as to the presence or absence of Iraq’s weapons of mass destruction, no argument can be made that the failure of the international community to act in response to Iraq’s continued defiance of international law contributed to the continuation of Iraq’s non-compliance with the requirements of international law.
In retrospect it is clear that the international community made a grave error in ignoring Iraq’s acts of chemical terrorism. Saddam continued his weapons programs relatively unimpeded. Lack of reprisal for his early transgressions seems to have contributed to his impression that future violations would also be ignored.29
Clearly, the value of deterrence cannot be overstated. Where there exists no effective mechanism through which an individual or group may be sanctioned for a breach of international (or domestic) law, those individuals and other like-minded individuals are more likely to continue to act in defiance of the law. On the other hand, where an effective institution exists to impose sanction for such a breach, the likelihood of a breach of the law is reduced. Therefore, the international community must create and implement an institutional mechanism through which to provide both specific and general deterrence to terrorists and to support the rule of law.
While it is necessary for nations to maintain their own independent domestic anti-terrorism regimes, those regimes must be complemented by the existence of an international judicial institution that can address terrorists as criminals who act contrary to the established and accepted rules of conduct, and so become hostis humani generis, or an enemy of mankind. In this respect, “...success in the struggle against terrorism will to a large extent depend also on the continued, and continually strengthened, international cooperation” which cooperation is obligatory under international law.30 Where states fail to comply with their international obligations, terrorists are, if not empowered to act, certainly not deterred from continuing to breach international law themselves.
As such, it is imperative that the international community do more than make abstract pronouncements condemning terrorism as an international crime. Instead, the international community must finally address the need for a simple but encompassing definition of terrorism and grant the necessary jurisdiction to the International Criminal Court to try those alleged to have committed acts of terrorism. It is only by the international community of states acting as they are obliged to under international law, coupled with the creation of a legitimate judicial institution to address world-wide terrorism, that there is any prospect of deterring others from pursuing terrorism to secure some political purpose. Again, it must be emphasized that international law imparts a positive obligation on all states both to adhere to and to enforce international law. Thus, the existing prohibition on acts of terrorism embodied in international law compels states to act against individuals and groups alleged to have committed acts of terrorism. However, in the absence of an international judicial institution to which alleged terrorists can be surrendered, states have been generally unwilling or unable to act, and have used the absence of a definition of terrorism as a means of avoiding their lawful obligations under international law. The introduction of a simple, but encompassing, definition of terrorism will ensure that the current pronouncements of criminality are matched with the requisite empowerment of international judicial institutions to bring terrorists to justice.
UN photo/John Isaac 511
International law has long accepted that individuals and groups are liable to sanction as a result of any breach of that law. The classic example of piracy demonstrates the application of international criminal law to individuals and groups who have failed to act within the boundaries of the law and so became liable to sanction for breaching that law. In the present time, with the increased prevalence of non-state actors that have the capacity to act on the international stage, the application and enforcement of international law, including international criminal law, on non-state actors has become even more important. Based on the current state of international law, it is clear that a wide range of acts are terrorist and so criminally prohibited. However, the absence of an international judicial institution simply precludes international criminal law from being effective to deter and sanction terrorists. The solution to this problem is simple and compelling. The international community must adopt a simple definition of terrorism if it is to begin to address the burgeoning problem of international terrorism. The failure to adopt such a definition will simply ensure that the terrorist is able to plan and carry out attacks against the civilian population of the world without concern or regard for the possibility of international criminal sanction. With the acceptance of an effective definition of terrorism, it will then be necessary to grant jurisdiction over the offence of terrorism to the ICC (or another suitable judicial body) to try individuals and groups alleged to have committed terrorist acts contrary to international criminal law.
The definition of terrorism proposed in this article will allow the international community to act effectively against terrorists, while ensuring that adequate protections are afforded to lawful combatants to avoid being found to be terrorists (although only to the extent that they continue to act as lawful combatants and comply with the requirements of the law of armed conflict). The proposed definition of terrorism as ‘...the unlawful threat or act of violence committed for a political purpose by a non-state actor,’ will ensure that all non-state actors that resort to violence for an unlawful purpose will be properly subject to international law. That a more refined definition of terrorism may be useful or arrived at in the future is simply insufficient reason for failing to act in the present to develop an effective definition with which an international judicial institution could act to sanction individuals found to have committed the international crime of terrorism. Until and unless such a definition of terrorism is accepted and jurisdiction granted to an international judicial institution, it is clear that there will remain no effective deterrent effect upon terrorists, and, therefore, the world community will fail in the fight to combat terrorism. The penalty for this failure is the price to be paid through continued terrorist attacks, and the cost in terms of both the loss of life and the harm to our global society as a whole.
Michael Lawless, a lawyer in private practice in Victoria, British Columbia, holds undergraduate degrees in Arts, Science, and Law, as well as a Masters of Public Administration from the University of Victoria, and an MA in War Studies from the Royal Military College of Canada. He is currently a doctoral candidate in War Studies (RMC) and a lieutenant-commander in the Naval Reserve, serving with HMCS Malahat in Victoria.
- This article is based upon the author’s presentation at the 7th Annual Canadian Conference on Ethical Leadership, delivered on 29 November 2006 at the Royal Military College of Canada.
- CSIS, Perspectives – Trends in Terrorism, Report 2000/01 (Ottawa: Queens Printer, 1999), p. 1.
- Bruce Hoffman, Inside Terrorism, (New York: Columbia University Press, 1998), p. 67.
- Craig Goodes, “No Safe Haven. War Criminals are not Welcome Here: The Immigration Policy and Practice of the Canadian Government,” in Richard D. Wiggers & Ann L. Griffiths (eds.), Canada and International Humanitarian Law: Peacekeeping and War Crimes in the Modern Era (Halifax: Dalhousie University Press, 2002), p. 175.
- For a discussion of this obligation see Mattias Kumm, “The Legitimacy of International Law: A Constitutionalist Framework of Analysis,” in The European Journal of International Law, Vol. 15, No. 5, (2005), pp. 907-931.
- David Frum & Richard Perle, An End to Evil: How to Win the War on Terror (New York: Random House, 2003), p. 54.
- Hugh M. Kindred (ed.) et al., International Law: Chiefly as Interpreted and Applied in Canada (London: Routledge, 1993), p. 434.
- United Nations Security Council, Declaration on the Global Effort to Combat Terrorism, S/RES/1377 (2001).
- United Nations General Assembly, Declaration on Measures to Eliminate International Terrorism A/RES/49/60 (17 February 1995), Article 5.
- United Nations General Assembly, Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, A/RES/51/210 (16 January 1997), Article 5.
- United Nations Security Council, Declaration on the Issue of Combating Terrorism, Resolution 1456 (2003), S/RES/1456 (2003).
- James M. Smith, “A Strategic Response to Terrorism,” in David A. Charters & Graham F. Walker (eds.) After 9/11: Terrorism and Crime in a Globalised World (Halifax: Dalhousie University Press, 2004), p. 269.
- Goodes, p. 187.
- Jessica Stern, The Ultimate Terrorists, (Cambridge: Harvard University Press, 1999), p. 11.
- Raphael Perl, Terrorism, the Future, and U.S. Foreign Policy (Washington: Congressional Research Service, 2003), p. 3.
- David A. Charters, “‘Defence against Help’: Canadian-American Cooperation in the War on Terrorism,” in David A. Charters & Graham F. Walker (eds.) After 9/11: Terrorism and Crime in a Globalised World (Halifax: Dalhousie University Press, 2004), p. 289.
- Kent Roach, September 11: Consequences for Canada (Montreal & Kingston: McGill-Queens University Press, 2003), p. 21.
- G. Davidson Smith, “Democratic Approaches to Countering Terrorism: Fundamental Principles and Best Practices” in David A. Charters & Graham F. Walker (eds.) After 9/11: Terrorism and Crime in a Globalised World, (Halifax: Dalhousie University Press, 2004), p. 233.
- Paul Wilkinson, Terrorism versus Democracy: The Liberal State Response, (London: Frank Cass, 2001), p. 113.
- Bruce Hoffman, Inside Terrorism, (New York: Columbia University Press, 1998), p. 41.
- Benjamin Netanyahu, “Defining Terrorism,” in Benjamin Netanyahu (ed.), Terrorism: How the West Can Win (New York: Avon Printing, 1987), p. 9.
- Alex J. Bellamy, “Is the War on Terror Just?”, in International Relations, Vol. 19 (3), (2005), p. 284.
- The Prosecutor v. Stanislav Galic – Case No. IT-98-29-T, 5 December 2003 (ICTY).
- Anthony Lang, Jr., Nicholas Rengger and William Walker, “The Role(s) of Rules: Some Conceptual Clarifications,” in International Relations, Vol. 20 (3), (2006), p. 286.
- Kate Bryden, “The Response of International Organizations to Terrorism: Progress and Challenges for Effective Action”, in David A. Charters & Graham F. Walker (eds.) After 9/11: Terrorism and Crime in a Globalised World, (Halifax: Dalhousie University Press, 2004), p. 376.
- Hoffman, p. 31.
- Ibid., p. 35.
- CSIS, “Terrorism and the Rule of Law: Dangerous Compromise in Columbia,” Commentary No. 13 (Ottawa: Queen’s Printer, 1991).
- Stern, p. 108.
- Hoffman, p. 211.