Defining Modern Terrorism

1. Defining Modern Terrorism Defense Institute of International Legal Studies Regional Defense Combating Terrorism Fellowship Program

2. Introduction: Module Objectives • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • Participants will be able to desribe the obstacles to defining terrorism • Participants will be able to list the five definitional elements of terrorism • Participants will be able to describe the major provisions of the OAU Convention 2

3. I. Introduction: Is a definition possible? • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion “Above the gates of hell is the warning that all that enter should abandon hope. Less dire but to the same effect is the warning given to those who try to define terrorism.” – D. Tucker (1997) 3

4. I. Four Categories of Arguments • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • No definition is needed; ordinary criminal law enough • Definition needed only to enhance punishment of ordinary offenses… • Definition needed to trigger special powers and offenses, but trigger must be narrow to protect rights • Definition needed, but • trigger must be broad • to cover future • manifestations of terrorism 4

5. I. Introduction • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion “One man's terrorist is another man's freedom fighter.” Luis Posada Carriles 5

6. I. Defining Terrorism:Underlying obstacles to definition • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • Evolution of meaning • Political sympathies and sensitivities and the issue of “just cause” • Political arguments among States • Treatment of State • versus non-State • actions inconsistent 6

7. I. Defining Terrorism:Underlying obstacles to definition • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • Different agencies use different definitions • State’s desire to preserve sovereignty • Fear of expanding repression 7

8. II. Defining Terrorism: Why does defining terrorism matter? • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • Criminalization; • Identification of available investigative tools; • Permission for intelligence gathering; • Identification and • targeting of those who commit or support it; 8

9. II. Defining Terrorism: Why does defining terrorism matter? • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • Authorization of a military response (in certain circumstances); • Allocation of resources; • Determination of jurisdiction; • International and • interagency • cooperation 9

10. III. Characteristics and Elements of Terrorism • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • Ideological • Non-state character • Targets innocents and civilians • Deliberately unpredictable • Disregards international norms/law 10

11. III. Characteristics and Elements of Terrorism • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • Religiously motivated • Lethality and destructiveness • Dispersion and interconnectivity • Western targets • Expressive violence 11

12. III. Characteristics and Elements of Terrorism • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • Alliance with criminal organizations • New technologies/globalization • Development of networks 12

13. III. Characteristics and Elements: Definitional Elements • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • Intent • Motivation • Means • Targets • Actors 13

14. III. Characteristics and Elements: Intent • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion Many terrorism definitions require a so-called “terrorist intent” element, which refers to the requirement that the conduct be undertaken to instill terror, intimidate, coerce, or influence a population, government or group. 14

15. III. Characteristics and Elements: Intent • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • Disrupt political institutions • Intimidate civilians • Provoke government overreaction • Gain legitimacy and • influence • Inspire others “The purpose of terror is to terrorize.” -- V.I. Lenin 15

16. III. Characteristics and Elements: Intent • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion “All 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.” (League of Nations, 1937) 16

17. III. Characteristics and Elements: Intent • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion “[Terrorism] means activities that … appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination or kidnapping.” (U.S. Criminal Code) 17

18. Characteristics and Elements: Motivation • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion In addition to the terrorist intent element, many terrorism definitions require that the terrorist actors possess identifiable political, social, ideological or religious motives. Others have no motivation requirement whatsoever. 18

19. Characteristics and Elements: Motivation • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion “Terrorism is 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.” (FBI Definition, 2005) 19

20. Characteristics and Elements: Motivation • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion Use or threat of action where theaction involves serious violence against a person or serious damage to property…;is designed to influence the government or to intimidate the public …; andis made for the purpose of advancing a political, religious or ideological cause. (UK Terrorism Act 2000) 20

21. Characteristics and Elements: Motivation • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion “…Reiterates that 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… General Assembly Resolution No. 51/210 (1996) 21

22. Characteristics and Elements: Motivation • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion “…whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious, or other nature that may be invoked to justify them.” General Assembly Resolution No. 51/210 (1996) 22

23. Characteristics and Elements: Means • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • Terrorism definitions commonly require the use of violence or threats of violence. • However, some definitions reflect the conclusion that other forms of criminal conduct (including non-violent forms such as cyberattacks) can pose dangers so serious that they amount • to terrorism. 23

24. Characteristics and Elements: Means • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion Terrorism is the “use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear.” Prevention of Terrorism (Temporary Measures) Act 1989 (United Kingdom) 24

25. Characteristics and Elements: Means • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • The European Union defines terrorism to include: • Attacks on a person’s life or physical integrity; • Causing extensive destruction to a government or public facility, transport system, infrastructure facility, public place or private property likely to endanger human • life or result in major economic loss; 25

26. Characteristics and Elements: Means • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • Interfering with or disrupting water or power supplies or other fundamental resources with the effect of endangering human life; or • Threatening to commit any of those acts (and other actions that, given their nature or context, may seriously damage a country or an international • organization); • European Union Framework Decision • on Combating Terrorism (2002) 26

27. Characteristics and Elements: Means • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion Egypt defines terrorism as follows: “[A]ny use of force, violence, threat, or intimidation resorted to by a perpetrator in the implementation of an individual or collective criminal enterprise aimed at disrupting public order or… 27

28. Characteristics and Elements: Means • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion …endangering the safety and security of society, injuring or terrorizing persons, endangering their lives, liberties or security, causing damage to the environment or to communications, seizing control of communications, preventing or obstructing the activities of public authorities, places of worship or education, or interfering with the application of the Constitution,law, and statutes.” Egyptian penal code 28

29. Characteristics and Elements: Targets • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion Terrorism definitions often indicate that terrorist conduct is directed at human beings (either an entire population, a subgroup, or individually). Moreover, human targets are often further limited to civilians or non-combatants… 29

30. Characteristics and Elements: Targets • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion …However, many definitions also include property, infrastructure and other economic and social interests as recognizable targets, particularly when attacks upon them pose serious dangers to human life or economic or social order. 30

31. Characteristics and Elements: Targets • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion The Draft Comprehensive Convention on International Terrorism that has been circulated by an ad hoc committee of the General Assembly defines terrorism in a very comprehensive manner... 31

32. Characteristics and Elements: Targets • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion Death or serious bodily injury to any person; or 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 32

33. Characteristics and Elements: Targets • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion Damage to property, places, facilities, or systems referred to in paragraph 1(b) of this article, resulting or likely to result in major economic loss… UN Draft Comprehensive Convention on International Terrorism 33

34. Characteristics and Elements: Targets • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion The Convention for the Suppression of the Financing of Terrorism (1999): Also prohibits financing activities in connection with “[a]ny other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict… 34

35. Characteristics and Elements: Targets • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion …when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.” The Convention for the Suppression of the Financing of Terrorism (1999) 35

36. Characteristics and Elements: Actors • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion Some definitions include language indicating that terrorism may be committed by individuals, sub-state groups, states themselves, or other actors. Others do not define the range of possible terrorist actors. 36

37. Characteristics and Elements: Actors • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion “Terrorism means premeditated, politically motivated violence perpetrated against noncombatant targets by sub-national groups or clandestine agents.” Statutory Definition Relating to U.S. State Department Annual Reports on Terrorism 37

38. Characteristics and Elements: Actors • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion "[Terrorism is] 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." United States Department of Defense 38

39. Characteristics and Elements: Actors • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion In December 2004, the U.N. Secretary General’s High-Level Panel on Threats, Challenges and Change issued a report that addressed the challenge of defining terrorism. The report concluded that a consensus definition should include the following: 39

40. Characteristics and Elements: Actors • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion “Recognition … that State use of force against civilians is regulated by the Geneva Conventions and other instruments, and, if of sufficient scale, constitutes a war crime by the persons concerned or a crime against humanity;” 40

41. Characteristics and Elements: Actors • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion “Restatement that acts under the 12 preceding anti-terrorism conventions are terrorism, and a declaration that they are a crime under international law; and restatement that terrorism in time of armed conflict is prohibited by the Geneva Conventions and Protocols;” 41

42. Characteristics and Elements: Actors • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion “reference to the definitions contained in the 1999 International Convention for the Suppression of the Financing of Terrorism and Security Council resolution 1566 (2004);” and 42

43. Characteristics and Elements: Actors • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion Description of terrorism as “any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004)… 43

44. Characteristics and Elements: Actors • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion …that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.” U.N. High-Level Panel On Threats, Challenges And Change 44

45. Characteristics and Elements: War Crimes? • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion Terrorist acts are “peacetime equivalents of war crimes.” (A.P. Schmid in 1992 proposal to U.N.) 45

46. Characteristics and Elements: The OAU Convention • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion The OAU Convention on the Prevention and Combating of Terrorism (1999) defines a terrorist act as: 46

47. Characteristics and Elements: The OAU Convention • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion …any act which is a violation of the criminal laws of a State Party and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or… 47

48. Characteristics and Elements: The OAU Convention • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion …causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to: 48

49. Characteristics and Elements: The OAU Convention • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles; or… 49

50. Characteristics and Elements: The OAU Convention • I. Introduction • II. Defining Terrorism • Characteristics and • Elements • IV. Conclusion • disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or • create general insurrection in a State. 50