The Law and Politics of International Terrorism

1. The Law and Politics of International Terrorism Lecture II: Definitions of Terrorism Under International Law

2. Why bother ?

3. The terrorism charge weighs heavily Carlos Diaz-Paniagua: �The criminalization of terrorist acts expresses society's repugnance at them, invokes social censure and shame, and stigmatizes those who commit them. Moreover, by creating and reaffirming values, criminalization may serve, in the long run, as a deterrent to terrorism, as those values are internalized.� Detterence works best if condemnation is universal! Why bother ?

4. Terrorism is a global phenomenon Why bother ?

5. Yet different assessments persist. Cf. the various �terrorism blacklists�: EU: Council Common Position 2009/67/CFSP of 26 January 2009 UK Home Office: Proscribed terrorist groups US Department of State: Foreign terrorist organizations Indian Ministry of Home Affairs: List of terrorist organizations UN Security Council Committee 1267 � Consolidated List Why bother ?

6. Case study I: Hezbollah Terrorist organization: United States; Canada; Israel NO terrorist organization: European Union, Russia, India PARTLY terrorist organization: Australia, UK Why bother ?

7. Case study II: People�s Mujahedin of Iran: Removed from terrorists blacklist in the UK and EU after several victories in court (2008/09) Still blacklisted today by US State Department and by Iran Why bother ?

8. Being designated �terrorist� has severe consequences for individuals, groups, and states Examples: Embargos and economic sanctions Travel restrictions Asset freeze Criminal prosecution Why bother ?

9. Case study I: Youssef Nada: Italian businessman ruined after being blacklisted. Later investigations by Italian and Swiss authorities found no evidence against him. EU Special Investigator Dick Marty speaks of �civil death penalty� Why bother? Mujahedin: Islamic Socialism; originally devoted to fight the Shah and Western imperialism; claims to have renounced violence in 2001Mujahedin: Islamic Socialism; originally devoted to fight the Shah and Western imperialism; claims to have renounced violence in 2001

10. Case study II: Nelson Mandela Nobel laureate Former head of the ANC, which was designated a terrorist organization by South Africa, the U.S. and many other (though not all) Western countries Could not enter the U.S. without a waiver until 2008 Why bother ?

11. Fundamental princinple in Criminal Law: �Nulla poena sine lege� praevia certa stricta Why bother ?

12. Conclusion: Three important and interdependent factors warrant a agreed definition: 1. Better detterence 2. Better international cooperation/less conflict 3. Better rule of law Why bother?

13. A brief history of definitional attempts

14. Series of international conferences for the unification of criminal law ? �it is necessary that certain acts should be punished as special offences, apart from any general criminal character which they may have under the laws of the State, whenever such acts create a public danger or a state of terror, of a nature to cause a change in or impediment to the operation of the public authorities or to disturb international relations, more particularly by endangering peace�� (Preamble Copenhagen Draft, 1934) 1930-1935

15. 1926: Romania asks League of Nation to consider drafting a �convention to render terrorism universally punishable� ? not acted upon The League of Nations

16. 1937: League of Nations Convention attempted to define terrorism as an international crime to diffuse polical tensions after the assassination of Alexander I The League of Nations

17. Article 1(2) of the Convention defines acts of terrorism as: �criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public� The League of Nations

18. Article 2 of the Convention lists criminal activities: "1. Any willful act causing death or grievous bodily harm or loss of liberty to: a) Heads of State, persons exercising the prerogatives of the head of the State, their hereditary or designated successors; b) The wives or husbands or the above-mentioned persons; c) Persons charged with public functions or holding public positions when the act is directed against them in their public capacity. 2. Willful destruction of, or damage to, public property or property devoted to a public purpose belonging to or subject to the authority of another High Contracting Party. 3. Any willful act calculated to endanger the lives of members of the public. 4. Any attempt to commit an offence falling within the foregoing provisions of the present article. 5. The manufacture, obtaining, possession, or supplying of arms, ammunition, explosives or harmful substances with the view to the commission in any country whatsoever of an offence falling within the present article." The League of Nations

19. Convention defines terrorism by: aim (state of terror) target (a state) means used No mention of: political motives coercive intent The League of Nations

20. A leap forward? No: definition ambigious and partly tautological inviting abuse extradition provision did not exclude terrorism from the political crimes exemption attacks on people murdered because of their political opinions not defined as terrorism Convention shared the fate of the League of Nations during WW II The League of Nations

21. Several unsuccessful attempts to agree on a comprehensive definition of terrorism Largely sectoral approach: Forgoes a comprehensive definition of terrorism in favour of a more narrowly phrased prohibition of certain conduct usually associated with terrorism Most of the 13 Conventions are expressions of this approach Post 1945: The United Nations

22. Convention for the Supression of Unlawful Seizure of Aicraft (1970) Article 1: Any person who on board an aircraft in flight: (a) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or (b) is an accomplice of a person who performs or attempts any such act commits an offence. LINK TO FULL TEXT United Nations: Sectoral conventions

23. International Convention for the Suppression of Acts of Nuclear Terrorism (2005): Article 2: Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally: (a) Possesses radioactive material or makes or possesses a device:(i) With the intent to cause death or serious bodily injury; or (ii) With the intent to cause substantial damage to property or to the environment; (b) Uses in any way radioactive material or a device, or uses or damages a nuclear facility in a manner which releases or risks the release of radioactive material: (i) With the intent to cause death or serious bodily injury; or (ii) With the intent to cause substantial damage to property or to the environment; or (iii) With the intent to compel a natural or legal person, an international organization or a State to do or refrain from doing an act. LINK TO FULL TEXT United Nations: Sectoral conventions Article 4 exempts the use of nuclear weapons during armed conflictArticle 4 exempts the use of nuclear weapons during armed conflict

24. Kofi Annan (2005): "the moral authority of the United Nations and its strength in condemning terrorism have been hampered by the inability of member states to agree on a comprehensive convention that includes a definition". United Nations: Recent steps towards a comprehensive definition

25. 1996: United Nations Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism contains a definition that has received broad approval but: non-binding United Nations: Recent steps towards a comprehensive definition

26. "1. The States Members of the United Nations solemnly reaffirm their unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed, including those that jeopardize friendly relations among States and peoples and threaten the territorial integrity and security of States; 2. The States Members of the United Nations reaffirm that acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations; they declare that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations; 3. 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� LINK TO FULL TEXT

27. 2004: UN Security Council Resolution 1566 : "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, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature� LINK TO FULL TEXT United Nations: Recent steps towards a comprehensive definition

28. Draft Comprehensive Convention on International Terrorism intends to criminalize all forms of international terrorism and deny terrorists, their financiers and supporters access to funds, arms, and safe havens negotiated in a UN ad-hoc committee since 2000 negotiations are currently not making progress United Nations: Recent steps towards a comprehensive definition

29. Proposed definition of the international crime of terrorism: "1. Any person commits an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally, causes: (a) Death or serious bodily injury to any person; or (b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or the environment; or (c) Damage to property, places, facilities, or systems referred to in paragraph1 (b) of this article, resulting or likely to result in major economic loss, when the purpose of the conduct, 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." United Nations: Recent steps towards a comprehensive definition

30. No substantial disagreement about the definition itself Main points of controversy: Exemption for national liberation movements? Inclusion of �state terrorism� United Nations: Recent steps towards a comprehensive definition

31. The �freedom fighter� problem: States (and scholars) advocate different approaches exemption without specifications exemption and instead application of int. humanitarian law combination of international criminal law and humanitarian law United Nations: Recent steps towards a comprehensive definition

32. Exception supported by Western delegations: "1. Nothing in this Convention shall affect other rights, obligations and responsibilities of States, peoples and individuals under international law, in particular the purposes and principles of the Charter of the United Nations, and international humanitarian law. 2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention. 3. The activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention. 4. Nothing in this article condones or makes lawful otherwise unlawful acts, nor precludes prosecution under other laws." United Nations: Recent steps towards a comprehensive definition

33. Exception supported by Organization of the Islamic Conference (OIC): "2. The activities of the parties during an armed conflict, including in situations of foreign occupation, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention. 3. The activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are in conformity with international law, are not governed by this Convention." United Nations: Recent steps towards a comprehensive definition

34. Kofi Annan (2005): �It is time to set aside debates on so-called 'state terrorism'. The use of force by states is already thoroughly regulated under international law� "And the right to resist occupation must be understood in its true meaning. It cannot include the right to deliberately kill or maim civilians." United Nations: Recent steps towards a comprehensive definition

35. Kofi Annan (2005): "In addition to actions already proscribed by existing conventions, any action constitutes terrorism if it is 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 organisation to do or abstain from doing any act." United Nations: Recent steps towards a comprehensive definition

36. Ben Saul, Attempts to Define �Terrorism� in International Law, Sydney Law School, Legal Studies Research Paper No. 08/115 (2008). Ben Saul, Defining Terrorism in International Law, New York, Oxford (2006). Ben Golder & George Williams, What is Terrorism? Problems of Legal Definition, (2004) 27 UNSW Law Journal 270. Further reading: