Problem of Defining Terrorism under International Law: Definition by the Appeal Chamber of Special Tribunal for Lebanon as a Solution to the Problem ()
1. Introduction
Terrorism is one of the most contested concepts in international law. Politicians, legal scholars, and human right activists often have diverging ideas as to what constitute terrorism and who terrorists are (OHCHR Factsheet No. 32). It is more than just an act of terror; rather it is an ideology driven act which is highly subjective by its nature (Githens-Mazer & Lambert, 2010; Schuurman and Taylor, 2018). In this regard, it has been noticed that, states develop their own definitions of terrorism influenced by their national interest. As a result, defining terrorism, comprehensively, under international law has been a very difficult task. However, there has been an attempt to define terrorism by scholars. Hence, Alex Schmid proposed a generic definition based upon responses to a questionnaire he circulated in 1985 (Schmid & Jongman, 1988). But, this definition is not a legal one and does not have much significance to international law. For this reason, it is very important to develop a coherent international legal definition. That is mainly because, a comprehensive definition would provide us with the required certainty, precision, and objectivity.
Therefore, this article explores the quest for the legal definition of terrorism under international law. And, after discussing the attempt under treaty laws and the lacuna thereof, the article argues that the definition provided by the Appeals Chamber of the Special Tribunal for Lebanon (STL) should be taken as a universally agreeable one, since the Chamber convincingly draw a workable definition from among customary international law (CIL).
2. Defining Terrorism
2.1. Problem of Defining Terrorism
There is no universally agreeable and comprehensive definition of the term Terrorism (Stubbins, 2011). As Geoffrey Levitt noted,
“The search for a legal definition of terrorism in some ways resembles the quest for the Holy Grail: Periodically, eager souls set out, full of purpose, energy and self-confidence, to succeed where so many others before have tried and failed. Some, daunted by the difficulties and dangers along the way, give up, often declaring the quest meaningless. Others return claiming victory, proudly bearing an object they insist is the real thing but which to everyone else looks more like the same old used cup, perhaps redecorated in a slightly original way” (Levitt, 1986).
The definition of terrorism is something that states are trying very vigorously to craft, but on which they have failed to reach to an agreeable conclusion. There are, however, different reasons for the difficulty of defining terrorism comprehensively. The first is the existence of contradiction on the perception of terrorism. It is true that terrorism is one of the most contested concept in international law (Ganor, 2002). Accordingly, politicians, legal scholars and human right activists often have diverging ideas as to what constitute terrorism and who terrorists are. In this regard, the phrase “one man’s terrorist is another man’s freedom fighter” (Ganor, 2002) describes the contestation very well. For example, the Palestinian Liberation Organization (PLO) and the former leader Yasser Arafat, considered by some countries as terrorists and at the same time many believed they are freedom fighters which lead Mr. Arafat to win the highly rated peace award (the Nobel Peace Prize).
The second, perhaps the most important, reason is the fact that terrorism is and always has been more than an act of terror. Rather, it is an ideology derived by certain motives (Rothenberger & Müller, 2015; Martin, 2012). The motives of different “terrorist organizations” are different which makes their target, means and method poles apart. Even if most terrorist groups are the same in so many aspects like the use of violence, “they are often motivated by fundamentally different ideologies and work to accomplish various goals,some of which are diametrically opposed to those of other terrorists” (Wright, 2013). For instance, religiously inspired terrorists might possibly have different motives than ethnically exhilarated national separation movements. Even though both employs violence as a means of achieving their objectives, but they differ in their desired outcome. So, because of the presence of contradiction and overlap among the fundamental motives of the organizations, understanding terrorism is complex. Moreover, without understanding the fundamental motives of a terrorist organization one will be forced to include all aspects of terrorism in the definition, which will lead to broader definition. The problem with broader definition is, as stated herein above, the inclusion of wide ranges of activities as terrorist activities which lead to violation of international human right law and humanitarian law.
Thirdly, the high subjectivity of the term is also reason for the adversity in defining terrorism. As Walter Laqueur clearly stated, “terrorism had appeared in so many different forms and under numerous circumstances that a comprehensive definition was impossible” (Laqueur, 1977). In this regard, countries have different problems of terrorism for which the solution is also different. Consequently, states develop their own definitions of terrorism influenced by their national interest. Thus, considering the existence of unwavering disparity on politics and national interest among states, the development of definitions of terrorism are also varied; which entails ambiguity and contradiction on the subject matter. In this respect, some countries define terrorism broadly to include most kinds of violent activities whereas some others define it narrowly to protect due process of law. The best example of the broad definition of terrorism is the definition in The Arab Convention for the Suppression of Terrorism, which define terrorism as:
“any act or threat of violence, whatever its motives or purposes, that occurs in the advancement of an individual or collective criminal agenda and seeking to sow panic among people, causing fear by harming them, or placing their lives, liberty or security in danger, or seeking to cause damage to the environment or to public or private installations or property or to occupying or seizing them, or seeking to jeopardize national resources” (League of Arab, 1998).
Similarly broad definitions have been implemented by some countries too. For example, the Ethiopian anti-terrorism proclamation (Proclamation No. 652/ 2009, Article 3) is considered by many as a tool to stifle the decenters, embraced an overly broad and vague definition of terrorism which gave the police and security services unprecedented new powers and shifted the burden of proof to the accused (Gordon et al., 2015). The problem with this broad definition is that it can be subjected to wide interpretation and systematic abuse of the accused, which ultimately lead to violation of international human rights standards.
Because of the reasons herein above, defining terrorism in a universally agreed manner is difficult under international law. And if there is no consensus on the definition of terrorism, then there is a problem in the application of the various laws (i.e. the law of armed conflict) since the definition would answer very important questions, such as: who are terrorists? What constitute terrorism? If they are not, who are they? Should we consider a person who is directly participating in hostilities a terrorist? In addition, what kinds of laws are going to apply on the so-called terrorist...etc.? Thus, because of the absence of universally agreeable definition of terrorism, those questions will remain unanswered and controversial.
2.2. Definitions Proposed by Scholars
In the absence of an established definition of terrorism in international law, various scholars have offered alternative definitions. Some of the definitions are politically oriented while some others are socially or morally inspired. The most prominent and widely acceptable definition is proposed by Yonah Alexander. Accordingly to him, terrorism is “the use of violence against random civilian targets in order to intimidate or to create generalized pervasive fear for the purpose of achieving political goals” (Alexander, 1976). The problems of this definition are two: Firstly, the definition is too precise which needs a bit of an elaboration to answer mysteries caused by the nature of terrorism itself. Secondly, perhaps related to the first one, the definition fails to explain the international aspects of terrorism. In this regard, it is widely believed that most terror acts have been committed by the support of networks of terrorist groups (Arquilla et al., 1999).
A more elaborated and academically accepted definition has been proposed by Alex Schmid based upon responses to a questionnaire he circulated in 1985 (Weinberg et al., 2004). Accordingly,
“terrorism is an anxiety-inspiring method of repeated violent action, employed by (semi-) clandestine individual, group, or state actors, for idiosyncratic, criminal, or political reasons, whereby—in contrast to assassination— the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (tar-gets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators. Threat—and violence—based communication processes between terrorist (organization), (imperiled) victims, and main target (audiences(s)), turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion, or propaganda is primarily sought” (Schmid & Jongman, 1988).
Despite the detail of the phenomenon of terrorism raised in this definition, its orientation still remains more focused on targets and objectives than its basic nature. In addition, this definition does not recognize violence and coercion by state agencies against its citizen as a terrorist act. An interesting definition of terrorism, perhaps it can rectify the void left by Schimid, is proposed by Walter Laqueur. In his view “terrorism is the use or the threat of the use of violence,a method of combat,or a strategy to achieve certain targets… [I]t aims to induce a state of fear in the victim that is ruthless and does not conform to humanitarian rules… Publicity is an essential factor in the terrorist strategy” (Laqueur, 1987). Furthermore, Laquer considers acts of violence and repression carried out by the government agencies against their own people as terrorism (Laqueur, 1987).
From the lens they see terrorism, the above mentioned scholars are correct except they missed out on one or two elements which appears to be very important. However, since terrorism touches on bits and pieces of everything, looking at it in totality would be advisable to come up with an exhaustively framed definition of terrorism. In this regard, the following elements can be taken as most agreeable:
· Terrorism is an intentional use of violence to create fear on the society;
· Aimed at noncombatant targets (i.e., civilians or iconic symbols), civilian objects or systems (cyber-attacks);
· With the objectives of achieving the greatest attainable publicity for a group, cause (political, religious, ideological), or individual needs (Webber et al., 2018);
· By government, organization or individual.
However, the proposed definitions are theoretical than legal in nature, which poses the following problems: First and for most, a theoretical definition cannot have binding effect. Second, while legal definitions of terrorism are confronted with reality, theoretical definitions do not. This is due to the fact theoretical definitions are driven by the scholars’ own ideologies while legal definitions are driven by socio-political interests of states. As a result, finding a workable comprehensive legal definition of terrorism is essential if not mandatory.
3. The Quest for Legal Definition
3.1. General
An important question to ask in this part is whether terrorism could be used as a legal concept? Some scholars suggested that using terrorism as a legal concept is unfeasible with no legal purpose. Rosalyn Higgins is the prominent one in this regard. According to Rosalyn, “terrorism is a term without legal significance. It is merely a convenient way of alluding to activities,whether of states or of individuals,widely disapproved of and in which either the methods used are unlawful,or the targets protected,or both” (Higgins, 1997). Louise Richardson, on the other hand, has stated that terrorism “has become so widely used in many contexts as to become almost meaningless” (Richardson, 1999). Richard Baxter is another scholar who opted to skeptically look into terrorism as a legal concept. He stated that “We have cause to regret that a legal concept of “terrorism” was ever inflicted upon us. The term is imprecise; it is ambiguous; and above all,it serves no operative legal purpose.” (Baxter, 1974).
In spite of this, it is very important to develop a coherent international legal definition (Saul, 2008). This is mainly because, a comprehensive definition would provide us with the required certainty, precision, and objectivity. As Ben Saul explained, “…terrorism currently lacks the precision, objectivity, and certainty demanded by legal discourse” (Saul, 2006). Precision, objectivity, and certainty means elimination of bias and arbitrary action by the states. Hence, “legal definition could plausibly retrieve terrorism from the remainder of the elastic, political concept” (Saul, 2006). In addition, having specific legal definition will provide us with international legal standard to fight against international terrorism.
Having this in mind, international legal definition of terrorism can possibly be inferred from various treaties, CIL, general principles of law and judicial decisions. However, since terrorism is highly politicized and has different conception in different countries, deducting agreeable definition from general principles of law is a very difficult task (Setty, 2011). As a result, relying on the general principles of law to find definitions of terrorism would be impractical. Therefore, the other sources of international law stated under article 38 of the ICJ Statute would be the best possible place to find the definition of terrorism (ICJ Statute, 1946).
3.2. Defining Terrorism under the UN and Treaty Laws
There have been definitions of terrorism suggested in specific treaties for specific purposes. The first attempt to establish a general definition of terrorism in international law was in 1937 by the Convention for the Prevention and Punishment of Terrorism (The League of Nations Convention, 1937). According to article 1 of the Convention, terrorism is “criminal acts directed against a State or intended to create a state of terror in the minds of particular persons, or a group of persons or the general public”. Nevertheless, the treaty has never entered into force, affecting its weight as a source under international law (Gasser, 2002). The Convention did not enter into force because states did not agree on the definition of terrorism as a result of diverging national interests.
Under the UN system, various resolutions, both by the General Assembly and Security Council, have dealt about terrorism. In this regard, one which is worth to mention is UN General Assembly Resolution 49/60 (measures to eliminate international terrorism). The Resolution provided definition for activities which are “terrorist” in nature. Accordingly, terrorist acts are “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” (UN General Assembly, 1995 para. 3). This Resolution also recognized the need for the progressive development and codification of anti-terrorism norms (UN General Assembly, 1995 para. 12). However, even though adopted by consensus, the absence of binding force seriously undermined the achievement of the Resolution’s objectives.
The other resolution which tried to provide definition of terrorism is the UN Security Council Resolution 1566 (2004) on Threats to international peace and security caused by terrorist acts. The Resolution considered terrorism as criminal acts committed against civilians with the intent to cause death, serious bodily injury or taking of hostages. According to the Resolution, the purpose of a terrorist act is 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. Furthermore, the Security Council rejecting any acts of terrorism, stated that it is unacceptable under no circumstances and unjustifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar natures. Finally, the Resolution calls upon all States to prevent such acts and, if not prevented, to ensure that such acts are punished by penalties consistent with their grave nature. Unlike the resolution by the General Assembly, this resolution has a legally binding force, since it was adopted under Chapter VII of the UN Charter.
A more recent attempt of defining terrorism under international law was by the Terrorism Financing Convention. According to the instrument, terrorism is:”…an 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,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.” (UN General Assembly, 1999). But, this definition has its own problems. First, rather than to address all kinds of terrorism in general, its aim is to facilitate the prosecution of persons accused of involvement in the financing of terrorist activities which is specific by its nature (Klein, 2009). In addition, it fails to include important elements of terrorism noticed in recent years including the existence of political or religious motive, the involvement of several person acting collectively and the intent to cause terror among a population. Because of these, the definition given by the Convention is not comprehensive enough to deal with the problem of modern terrorism.
Sadly, the various attempts by treaty laws and resolutions of the UN failed to bring a comprehensive and universally agreeable definition of terrorism under international law. The main reason, as mentioned in above, is they only deal about specific aspects of terrorism which makes any effort to deduct a comprehensive definition of terrorism very difficult (Golder & Williamsn, 2004). Consequently, our pursuit of the international legal definition of terrorism should focus on CIL, judicial decisions and international law academics which will be discussed herein under.
4. Customary Definition of Terrorism by the Appeal Chamber of Special Tribunal for Lebanon (STL): A Solution to the Problems?
Defining terrorism under CIL has also been highly controversial. This is due to the state practice on the issue of terrorism is different. Accordingly, the few areas where there is consensus on the matter of terrorism is only on condemnation and support on the prohibition of terrorism (Saul, 2006: p. 191). As a result, the definition provided under international law is imprecise. Hence, as Saul concluded, “arguments that terrorism is a customary international crime are premature” (Saul, 2006: p. 270).
Nevertheless, recently there has been some debate regarding the possible existence of definition of terrorism under CIL. In this regard, scholars like Antonio Cassese believed that a definition of terrorism does exist and this phenomenon also amounts to a customary international law crime (Cassese & Yasmin, 2004). Cassese’s argument in favor of the existence of the definition of terrorism under customary international law has three bases: the fact that the disagreement on the definition of terrorism is only on the exception rather than the general remark, the existence of international law and national laws on terrorism and court decisions by different states (Cassese & Yasmin, 2004). Accordingly, the main disagreement between states on the definition of terrorism is only on whether to consider freedom fighters as a terrorist or not, which is opposed by developing countries (Cassese & Yasmin, 2004). In addition, various international treaties and national laws outlawed terrorism, which is a clear indication of having consensus on the general notion of terrorism (Cassese & Yasmin, 2004).
Be that as it may, the strongest arguments, on the existence of definition of terrorism under CIL has emerged following the judgment of the STL (a hybrid international tribunal with a mandate of holding trials for the people accused of carrying out the attack of 14 February 2005 on the former prime minister of Lebanon, Rafik Hariri) (UN Security Council Letter, 2007). Presided by Cassese, the tribunal has concluded that since at least 2005, a definition of “transnational terrorism” has existed within customary international law:
“As we shall see, a number of treaties, UN resolutions, and the legislative and judicial practice of States evince the formation of a general opinio juris in the international community, accompanied by a practice consistent with such opinio, to the effect that a customary rule of international law regarding the international crime of terrorism, at least in time of peace, has indeed emerged. This customary rule requires the following three key elements: (i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element.” (Interlocutory Decision on the Applicable Law, 2011 para. 85).
Even though the argument is relatively new and its effect on the development of comprehensive definition has yet to be seen, this definition should be considered as an international legal definition of terrorism. Four reasons can be provided to support this conclusion: Firstly, the definition is given based upon comprehensive examination of treaties, UN resolutions, and states national legislations (Interlocutory Decision on the Applicable Law, 2011: pp. 44-45). In this regard, even if there are some divergence in state practice, the decision is based on finding common elements of terrorism deducted from various precedents of International Court of Justice (ICJ), International Criminal Tribunal for the former Yugoslavia (ICTY) and other international courts (Ragni, 2013). Secondly, the elements of the definition are found in the academic consensus definition. In this regard, the STL stated that the necessary substantive elements for two other classes of terrorist criminal conducts also existed within international law: war crimes and crimes against humanity (Ambos, 2011). Thirdly, the Appeals Chamber referred cases from other international tribunals to support its customary international law argument. In this regard, Cassese stated that “while the customary rule of an international crime of terrorism that has evolved so far only extends to terrorist acts in times of peace,a broader norm that would outlaw terrorist acts during times of armed conflict may also be emerging” (Interlocutory Decision on the Applicable Law, 2011: p. 69). The armed conflict referred herein above could be both international and non-international. International in the sense that the Appeals Chamber of the STL, in its judgment, refers the decision of the ICTY in the Gallic case. In the case, a conclusion has been drawn based on article 51(2) of Additional Protocol I (AP I) which regulates the situation of international armed conflicts (Prosecutor v. Stanilav Galic, 2003). However, it is also applicable to non-international armed conflicts. Because, first, the STL has also based its decision on the judgment of the Special Court for Sierra Leone’s (SCSL) (SCSL-Prosecutor vs. Alex et al., 2007). The SCSL is a hybrid court established for the trial of persons who bear responsibility for violations of international humanitarian law in Sierra Leonean civil war (Statute of the Special Court for Sierra Leone, 2002). The Court concludes that an act of terror has been committed and it is a violation of Common Article 3 to the Geneva Conventions (GC) and Additional Protocol II (AP II) (SCSL-Prosecutor vs. Alex et al., 2007). Finally, national courts adopted the decision of STL in their adjudication of domestic cases of terrorism. A case in point is the court of Appeal of England which adopted the STL decision by stating the following: “There is,we think,no doubt that international law has developed so that the crime of terrorism is recognized in situations where there is no armed conflict. However,the law has not developed so that it could be said there is sufficient certainty that such a crime could be defined as applicable during a state of armed conflict” (Regina v. Gul, 2012; Robert & Jean-Pierre, 2016).
Therefore, due to the reasons mentioned herein above, the definition of terrorism given by STL can be considered as a solution to the problem of defining terrorism under international law.
5. Conclusion
Due to its contentious nature and highly ideological orientation, defining terrorism comprehensively under international law has been challenging. Also, treaty laws have failed to bring agreeable definition because of their emphasis on certain aspects of terrorism only. However, as Cassese clearly explained, there is an agreement under international law on the general aspect of terrorism. To that effect, the STL proposed a workable emerging legal definition of terrorism. This is marked as the first ever authoritative decision of an international tribunal by accepting general definition of terrorism under international law. And the decision of the tribunal will definitely assist the ongoing quest for agreeable definition of terrorism under international law. As a result, it would be wise if international actors follow the definition of terrorism by STL, in dealing with the crime of terrorism.