Beijing Law Review, 2012, 3, 158-169
http://dx.doi.org/10.4236/blr.2012.34022 Published Online December 2012 (http://www.SciRP.org/journal/blr)
The 21st Century Terrorist: Hostis Humani Generis?
Elimma C. Ezeani
Robert Gordon University, Aberdeen, UK.
Received September 7th, 2012; revised October 8th, 2012; accepted October 21st, 2012
ABSTRACT
Some argue that 21st century terrorism is no different from the past. This paper argues otherwise. It considers that our
social response—The revulsion against the frequent violation of the sanctity of human life and the indiscriminate de-
struction of property death—Ought to be the most important factor in any attempt to categorise terror ists under interna-
tional criminal law. Such a prop er categorisation is as common enemies of mankind. Section 1 revisits the ch allenge of
definition and of jurisdiction; Section 2 examines the current approa ches to terro rism—Domestic , bilatera l and intern ational;
and Section 3 concludes the argument whether the 21st century terrorist is a common enemy of mankind. The need for
alternative social responses if the roots of modern terrorism are to be addressed is also examined.
Keywords: 21st Century Terrorist; Common Enemies of Mankind; Definition; Jurisdiction and Punishment; Human
Rights and Extrad ition; Terror
1. The Retained Challenges of Definition and
Jurisdiction
“The idea of systematically defining terrorism as an in-
ternational criminal offence only gathered momentum in
the 1920s and 1930s [1]”.1 The International Law Com-
mission (ILC) 1954 Draft Code of Offences against Peace
and Security of Mankind (Part I) had identified terrorism
as aggression and as a crime under international law,
with individual criminal responsibility.2 Regardless, the
several attempts to reach agreement on an international
“generic definition” whether at the League of Nations,
United Nations, or by the ILC did not come to fruition,
although an “ad-hoc” committee created under a UN Ge-
neral Assembly resolution to consider these matters in
1972 remained.3 In 1996, a final draft Code to the ILC’s
1954 attempt (Part II) included the offence of terrorism,
but as a “war crime”,4 thereby linking terrorism with ar med
conflict. However, the Code was not adopted.
The reasons for this difficulty are not far-fetched. For
states, there was a difficulty (which still persists) with re-
aching an acceptance on what terrorism was, partly for
reasons of disagreement over whether to criminalise what
some considered an ideological l or political movement
[2].5 This difficulty was an extension of the political co n-
undrum seen in States where political opponents were
labelled “terrorists” with the same “terrorists” seen as
freedom fighters more concerned for the welfare of the
people than the ruling government [3].6 Groups like the
African National Congress (ANC), the Palestine Libera-
tion Organisation (PLO), and Hamas who at various times
adopted terror attacks in furtherance of their objectives
would eventually gain legitimacy not least because they
aroused the interests, sympathy, or fear, of the people
around them [4].7
The hesitation by States may also be due to the fact
that States themselves have been accused of terrorist ac-
tivity either on the grounds of state terrorism by tyranni-
cal regimes8 or of state—Sponsored terrorism.9 Allega-
tions of terror are also made against apparently “non-
5See A. Cassesse, The Multifaceted Criminal Notion of Terrorism in
International Law, Journal of International Criminal Justice (2006) 1-
26, 2.
6See B. Saul, “Definition of ‘Terrorism’ in the UN Security Council:
1985-2004,” 4 Chinese Journal of International Law (CJIL) (2005)
doi:10.1093/chinese ji l/ jmi005 accessed July 2, 2012.
7See generally, A. Van Engeland and R. M. Rudolph, From Terrorism
to Politics (Hampshire: A sh ga te, 2008).
8P. Wilkinson, “Can a State Be ‘Terrorist’?” 57 International Affairs 3
(1981) 467-472, at 468; cf K. Duncan, “A Blast from the Past: Les-
sons from a Largely Forgotten Incident of State-Sponsored Terrorism,”
5 Perspectives on Terrorism (2011), 3-21; C. C. Combs, Terrorism in
the Twenty-First Century (Prentice Hall 7th Edition, 2012), Chapter I.
9For a distinction between the two concepts, see M. Cherif Bassioni,
“Legal Control of International Terrorism: A Policy-Oriented Assess-
ment,” 43 Havard International Law Journal 1 (2002), 83-103 at 84-85
5. Cf A. George, Ed., Western State Terrorism (Polity Press,1991); R.
Jackson, E. Murphy, S. Poynting, Eds., Contemporary State Terrorism
Theor
y
and Practice
(
London: Routled
g
e, 2009
)
.
1B. Saul, Attempts to Define “Terrorism” in International Law, Nether-
lands International Law Report (NILR) (2005) 57-83 at 58. See also,B.
Saul, Defining Terrorism in International Law (New York: Oxford Uni-
versity Press, 20 06 )
2See B. Saul, op cit NILR, 66.
3UN G.A. 27/3034, op cit.
4Ibid, 72.

The 21st Century Terrorist: Hostis Humani Generis? 159
tyrannical” regimes such as the concerns with Western
military activity in Iraq, Afghanistan, and specifically,
US unilateral action in Pakistan post 9/11. Self-defence
under Article 51 of the UN Charter has provided the ex-
cuse for such unilateral attacks [5].10 Tam observes that
this has empowered States “to exercise force against at-
tacks by non-state actors—attacks which would have been
difficult to justify under the traditional approach”.11
The morning after 9/11, the UN in Resolution 1368
called on all States in the international community “to
work together urgently to bring to justice the perpetrators,
organizers and sponsors of these terrorist attacks” stres-
sing that “those responsible for aiding, supporting or har-
bouring the perpetrators, organizers and sponsors of these
acts will be held accountable”.12 The Resolution recog-
nised “the inherent right of individual or collective self-
defence in accordance with the Charter”.13 This recogni-
tion of the right to self-defence in the face of terrorist
threats “implied that the attacks triggered the right even
if, at the time of the adoption, the UN Security Council
knew almost nothing about who or what had launched
them [6].” 14
This has provided grounds for the US targeted kill-
ings in Pakistan in its hunt for terrorists, post 9/11.15 It
has had its successes: the US finally killed Osama bin
Laden the leader of Al-Qaeda and instigator of 9/11 on 2
May 2011, in Pakistan. However, such targeted killing
even for the specific purpose of responding to terrorism
threats is not very far from the very violence of the ter-
rorism it presumes to counter.16 It also exacerbates ten-
sion between states: the US operation in killing bin
Laden was condemned by Pakistan as a violation of the
latter’s sovereignty [7].17
In any event, 9/11 did serve to alert the world to the
dangers of globalised terror given that as Bassioni had
noted earlier, “the manifestations of terrorism and the
means to prevent and control them have long been stu-
died but governments have tended to ignore the dan-
gers.”18 Legal commentators have always pointed to the
political aim of terrorism and Hoffman’s definition—that
terrorism is “thus violence—or equally important, the
threat of violence—used and directed in pursuit of, or in
service of, a political aim [8]”19 captures this well. Casse-
sse expanded the commentary, suggesting that interna-
tional terrorism could be construed in three ways: either
as a war crime, or a crime against humanity, or in the al-
ternative, a discrete crime (when the acts do not fall un-
der the category of war crimes or crimes against huma-
nity) [9].20 The United Nations (UN) has also continued
attempts at a composite definition. Based on a first draft
submitted by India as member of the UN Working Group
on Measures to Eliminate International Terrorism,21 in
the current Draft Comprehensive Conven tion on Interna-
tional Terrorism,22 the Organisation has set out the in-
gredients of the offence of terrorism. Article 2(1) pro-
vides that a person with the purpose of intimidating a
population or compelling a Government or international
organisation to do or abstain from an act, commits an
offence under the Convention by unlawfully or inten-
tionally causing death or serious bodily injury (Art 2(1)
a), damage to public or private property resulting or
likely to result in major economic loss (Art 2(1) b - c).
The Draft Convention remains contentious for a vari-
ety of reasons [10].23 These include the exact definition
of the crime of terrorism, the scope of the convention and
its overlap with other conventions regulating the use of
force and other terrorist-related conventions, and whether
the crime is applicable to situations of armed conflict and
its potential impact on a State’s regular armed forces. It
could have defined or excluded groups which ought not
to be caugh t by the Conventio n. It appear s the UN is pre-
10See generally, C. J. Tams, “The Use of Force against Terrorists” Eu-
ropean Journal of Internati ona l L aw 20 (2009), 359-397.
11Ibid, 369.
12Italics for emphasis. See UN SC ResN 1368, U.N.SCOR 56th Session,
12 Sept 2001.
13Ibid.
14N. Rostow, “Before and After: The Changed UN Response to Terro-
rism since Sept 11” 35 Cornell International Law Journal 35 (2001)
475 at 481.
15This significant counterterrorism measure by the US involves moral,
legal and political arguments on either side of the debate. See M.
O’Connell, “The Choice of Law against Terrorism” Journal of Nationa
l
Security Law and Policy 4 (2010), 343-368. Cf K. Anderson: “Tar-
geted Killings in US Counter-Terrorism Strategy and Law” (May 11,
2009). Available online: http://ssrn.com/abstract=1415070 accessed 29
June 2012; G. Blum and P. Heymann, “Law and Policy of Targeted
Killing” Harvard National Security Journal 1 (2010) 145-170.
16See further, J. J. Paust, “Self-Defense Targetings of Non-State Actors
and Permissibility of US Use of Drones in Pakistan,” Journal of Tran-
snational Law & Policy, 19 (2010), 237; A. J. Radsan and R. W. Mur-
p
hy “Due Process and Targeted Killing of Terrorists,” Cardozo Law
R
eview, 31 (2009) 405. See also, G. Blum and P. Heymann, Laws,
Outlaws and Terrorists: Lessons from the War on Terrorism (Massachu
setts: MIT Press 2010).
17See T. Wright, “Pakistan Criticises US raid on bin Laden” Wall Street
J
ournal (May 3 2011). http://online.wsj.com/article/SB100014240
52748703922804576301124180651068.html
18M. Cherif Bassiouni, op cit at 83.
19B. Hoffman, Inside Terrorism (New York: Columbia University Press
1998), 15.
20A. Cassesse, International Law (2nd Edition, New York: Oxford Uni-
versity Press 2005), 450, referring to Para 3,
D
eclaration on Measures
to Eliminate International Terrorism, UNGA resolution 49/60, adopted
on 9 December 1994; See also, the supplementary Declaration on Mea-
sures to Eliminate International Terroris m GA 51/210.
21See “Report of the Working Group”, Measures to Eliminate Interna-
tional Terrorism UN Doc A/C.6/55/L.2 of 19 October 2002 in its An-
nex II.
22See also the UN Draft Comprehensive Convention on Internationa
l
Terrorism (Report of the Ad Hoc Committee Established by the Gene-
ral Assembly Resolution 51/210 17 Dec 1996, UN GAOR, 6th Sess, UN
Doc A/57/37 (2002). The Ad-Hoc Committee was supported with the
General Assembly’s Sixth Committe e (the Working Group)).
23See further M. Hmoud, “Negotiating the Draft Comprehensive Con-
vention on International Terrorism—Major Bones of Contention,”
J
ournal of International Criminal Jus tice 4 (2006) 1031-1043.

The 21st Century Terrorist: Hostis Humani Generis?
160
pared to err on the side of caution and rightly so, on this
aspect of a definition given the contention over the ap-
plication of the term “terrorist” to for example, national
military forces and self-l i beration movements.24 However
adopting the term “any person” su rely leaves th e jurisd ic-
tion of the draft convention wide enough to cover all
manners of persons.
By eschewing any d efences on political, philosoph ical,
ideological, racial, ethnic, religious or any other similar
considerations, the draft Convention attempts to prevent
the stumbling blocks earlier attempts on reaching a con-
sensus on the issue have faced.25 While it incorporates
the aut dedere aut judicare provision, it precludes the
reliance on political exceptions for the “purposes of ex-
tradition or mutual legal assistance”; thus “none of the
offences referred to in article 2 shall be regarded as a
political offence or as an offence connected with a po-
litical offence or as an offence inspired by political mo-
tives.”26
A shortcoming of the Convention in our view is that it
does not incorporate in its definition of terrorism, the
publicity-seeking, unbridled violence, global impact, and
indiscriminate nature of terrorist attacks. The language of
the Convention does not reveal a revulsion against these
common factors of modern terrorism. Also, by restricting
the definition to “international terrorism” it fails to ac-
knowledge that much of the terrorism we later come to
know about originate from, and perpetuate in, the dome-
stic arena. Further still, while a political motive may have
been behind historical terrorist activity, it is not necessa-
rily the case that political domination is the primary mo-
tive of present terrorist activity. Furthermore, contrary to
the idea that there is always a defined agenda for ter-
rorism, an enduring view promoted by the avowed po-
litical leanings of terrorist groups, there may not be a
single definite agenda behind terrorist action; or indeed
the real agenda may be different from public understan-
ding.
What if terrorist action is not taken with the intention
of compelling a government or international organization?
It is probable that terrorist activity may be to further its
own peculiar agenda including one that desires economic
power and that the intimidation of governments or or-
ganization is merely a means to an end and not the end
itself. Terrorist action may be chosen not so much be-
cause there is a deadline or timeframe for an expected
outcome upon which the terrorist activity will cease but
just because it will draw attention to th e perpetrato rs, cre-
ate fear in the public, and panic governments into fearing
for their security. We may be limited in our understan-
ding of what truly motivates terrorists given the variety
of possible factors that drive terrorism today but it is
folly to presume that there is a definable “other” end to
terrorism: the sole objective of terrorism is simply terror.
Nevertheless, while definitions are integral to an ap-
propriate regime for terrorism, it is imperative that the
revulsion against the suffering of victims—revulsion
against the crime itself and not n ecessarily th e motive be -
hind it—should be prioritised. Recalling Cassese’s ar-
guments in view of a concise definition of terrorism, the
“general revulsion against this crime warrants the con-
clusion that any State is legally entitled to bring to trial
the alleged authors of such acts of terrorism who happen
to be on its territory”.27 But what is the “general revul-
sion” against—the motive or the action? Surely the revul-
sion is really to the action—the violation of our common
humanity and disregard for the sanctity of human life—
not necessarily the motive which may not even be known.
Rehman warns that terrorism is an elusive concept and
one that is perhaps not worthwhile to pursue [11],28 how-
ever, “terrorist activity” is a constant feature of news
around the world and the threats continue to spread. Terro-
rists themselves are not as elusive as in the past; in fact
now, they wish to be identified, hence the increased use
of social media to present their views29 and the depen-
dence on the mass media to publicise not just their acti-
vity but their claims of responsibility.
States and other groups with their different positions
on issues of politics, religion and economic power, and
who should determine these questions, are not agreed on
what constitutes an appropriate definition of terrorism in
so far as a motive or ideology is concerned. But there can
be no disagreement of the terrible effects of terrorist ac-
tivity felt all around the world. Indeed it could be arg ued
that a concrete definition of terrorism under international
law may be found in the recent ruling of the Special Tri-
bunal for Lebanon Appeals Chamber in its 2011 inter-
locutory decision where it was stated that there are three
elements in the emerging customary rule of international
law on terrorism:
1) The perpetration of a criminal act (such as murder,
kidnapping, hostage-taking, arson, and so on), or
threatening such an act; 2) the intent to spread fear
among the population (which would generally entail
27A. Cassesse, International Law op cit, 450.
28J. Rehman, International Human Rights Law (2nd Edition England:
Pearson Education Ltd., 2010), 879.
29See J. Qin et al., “Analysing terror campaigns on the internet: Techni-
cal sophistication, content richness and Web interactivity,” Interna-
tional Journal of Human-Computer Studies 65(2007), 71-84. However
the adoption of the media as a tool for terrorist propaganda extends to
more than web sites to include the press, radio, and television media as
well. Cf M. Dubowitz, “Wanted: A War on Terrorist Media,” The
J
ournal of International Security Affairs, 17 (2009) Online at http://
www.securityaffairs.org/issues/2009/17/dubowitz.php accessed July 2
2012.
24See the proposal by Malaysia on behalf of the OIC—See Report o
f
the Working Group, op cit Annex III.
25Article 5 of the Draft Convention.
26Ibid, art 14.

The 21st Century Terrorist: Hostis Humani Generis? 161
the creation of public danger) or directly or indi-
rectly coerce a national or international authority to
take some action, or to refrain from taking it; 3i)
when the act involves a transnational element [12].30
It is still too early to determine the impact of this ru-
ling and to what extent it will change the consensus on
terrorism in the international community. One hopes that
the carefully considered 150 page judgment of the Ap-
peals Chamber particularly in its review of terrorism un-
der international law will have a defining impact for the
future. It will of course attract resistance and criticism.
Nevertheless, controversies over defining terrorism will
not extinguish the need for practical efforts to address
this crime. It is therefore important to evaluate the cur-
rent approaches to jurisdiction and punishment of terro-
rism today.
2. Current Approaches to Terrorism
This can be viewed from three perspectives: domestic; bi-
lateral; and international:
2.1. Domestic Approach
Some countries have enacted anti-terrorism or related se-
curity legislation. These include legislation earlier de-
signed as a response to the violent activity of dissident
political groups or more specifically for anti-terrorism
purposes. More recent and composite na tional definitions
on terrorism has since emerged in responses to terrorist
threats; such legislation were extensively reviewed by the
Special Tribunal for Lebanon Appeals Chamber in its
2011 interlocutory decision.31 Response to terrorism at
domestic level is more reactive than proactive; it is more
likely that a State which has experienced or expects to
experience some form of terrorist activity will respond
with legislation. Some may not. Yet, the greater majority
of terrorist threat is actually domestic, and not transna-
tional [13].32 Young and Findley consider this to be an is-
sue in reaching a composite definition of terrorism since
the findings in this regard “suggests that much of what
we know might apply only to a small portion of overall
terrorism.”33
It is not only the definition that is problematic; terro-
rism is diverse in its causes, motives, targets, weaponry,
sophistication, leadership, organization, mission, agenda,
location, and pursuit of economic power. For States
faced with the challenges of organizing and maintaining
a social system and government, the insecurity of terro-
rist activity is only one of a multitude of concerns. Orga-
nizing a cogent response to terrorist threats requires a
strong effective approach to law enforcement, financial
and human resources, and a robust judicial framework
that can oversee efforts at apprehending terror suspects.
This of course requires that States understand the spill-
over effects of terrorist activity: even though the threat
may be within the geographical space of one State,
funding, arming, training, and increasingly the targets of
perpetrators, are hardly ever limited to that geographical
location alone. This is why bilateral action offers greater
chances of success with States pulling resources togeth er
towards this end but as we see next, even established bi-
lateral mechanisms are not without their own tests.
2.2. Bilateral Action
At bilateral level, the ability of States to appreh end or try
alleged terrorists is a test of the State’s security, po litical,
and judicial capacity. Well trained security forces, under-
standing between governments, and a strong judicial sys-
tem which enshrines the rule of law must be in place.
These requirements have been put to the test in as be-
tween the UK and US, in their counter—terrorism efforts
post 9/11, and bilateral action here is instructive:
Challenges: Extradition and Human
Rights—The UK-US Post 9/11
Extradition and the rights of the individual, has always
been an issue in international law [14].34 Extraditing ter-
ror suspects is no less problematic not least because ter-
ror suspects regardless of the severity of the alleged
crime should still be able to avail themselves of the rights
and liberties they are due under the rule of law.
In the UK, the Human Rights Act (HRA)35 would be-
come a point of contention in extradition requests by the
US, to the UK primarily, the provisions on prohibition of
torture,36 and the right to a fair trial.37 The HRA proved
invaluable for the defence in recent high profile extra-
dition cases including the Natwest 3,38 Abu Hamza &
34See J. Dugard and C. van den Wyngaert, “Reconciling Extradition
with Human Rights” American Journal of International Law 92 (1998),
187-212 at 187.
35Incorporating Articles 2 to 12 and 14 of the ECHR, Articles 1 to 3 o
f
the First Protocol, and Articles 1 and 2 of the Sixth Protocol, read in
conjunction with Articles 16 to 18 of the Convention. See S.1, HRA
1998.
36Article 3 HRA 1998; also Article 3 of the UN Convention agains
t
Torture and other Cruel, Inhuman or Degrading Treatment or Punish-
ment—UN G. A. Res 39/46 10 Dec 1984. Other relevant international
legislation prohibiting inhuman or degrading treatment include Art 5
Universal Declaration of Human Rights (UDHR); Art 7 Internationa
l
Covenant on Civil and Political Rights (ICCPR); common Art 3 of the
4 Geneva Conventions and Arts 50 (I), 51 (II), 130 (III), and 147 (IV).
37Ibid, Article 6; Art 3 ECHR.
38Bermingham v Director of the Serious Fraud Office (2007) 2 W. L. R.
635.
30See STL Appeals Chamber: “Interlocutory Decision on the Applica-
b
le Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative
Charging,” STL-11-01/1, 16 Feb 2011, para 85.
31Ibid, pp. 57-63.
32See generally, J. K. Young and M. G. Findley, “Promise and Pitfalls
of Terrorism Research” International Studies Re vi e w, 13 (Sep 2011),
p
p. 411-439
33Ibid, 417.

The 21st Century Terrorist: Hostis Humani Generis?
162
ors,39 and the Gary Mckinnon case. 40 The antecedents for
this reliance can be traced to the Soering case.41 There,
the European Court of Human Rights (ECrtHR) noted
that the European Convention on Human Rights (ECHR)
“is a search for the fair balance between the demands of
the general interest of the community and the require-
ments of the protection of the individual’s fundamental
rights”.42 Prior to this case, there was “no explicit general
rule saying that extradition should be compatible with
human rights [15]”.43 Wyngaert points out that the argu-
ment has often been that the requested person’s rights
will take place only “after” his extradition, and that it is
within the jurisdiction of the requesting State and not th e
requested State that any potential human rights v iolations
are to occur.44 The practice has been that the anticipation
of potential violations in a requesting State cannot be a
valid argument against extradition: the principle of non-
inquiry [16].45
The UK Extradition Act 2003 under Section 21 re-
garding extrad ition to Category 1 territories, (pursu ant to
Sections 11 and 12)46 set out considerations to be under-
taken prior to extradition. If the judge decides extrad ition
is compatible with Convention rights, the person is to be
remanded in custody or in bail to await extradition to the
category 1 territory where the warrant was issued. If the
judge decides in the negative, the person is to be dis-
charged. For Category II territories i.e. countries not ope-
rating the European Arrest Warrant System, such as the
US, S 87 provides that where the judge decides the ex-
tradition is incompatible with the Convention rights, he
must order the person’s discharge. Where the judge de-
cides in the affirmative, the case is sent to the Secretary
of State for a final decision.
Compliance with the HRA is therefore a preliminary
requirement making it more difficult for an expeditious
extradition process as was probably expected when the
2003 arrangements were made. The UK Extradition Tre-
aty (2003) between the UK and the US,47 “the Treaty”
provides that conduct punishable with the deprivation of
liberty for more than one year or by a more severe pena-
lty under both states is an extraditable offence.48
The case of Abu Hamzar and three others wanted in
the United States on counts of terrorism reflects the chal-
lenges to extraditing terror suspects. Extradition of the
four men in the case had already been approved by a UK
court and the Secretary of State and leave to appeal to the
House of Lords had been declined. At the High Court on
appeal by Hamza, three human rights arguments against
extradition were raised: extradition was contrary to Arti-
cle 3 ECHR because the extradition was founded on evi-
dence obtained b y torture or ill treatment and there was a
“real risk” that the appellant would be subjected to tor-
ture or ill treatment upon extradition; there would be a
“disproportionate interference with his rights under Arti-
cle 8; and given the passage of time since the alleged
offences were committed, it was “unjust and oppressiv e”
to order extradition .49
Concerning Art 3, the appellant pleaded his medical
conditions50 arguing that lengthy incarceration in the “Su-
permax” prisons would amount to ill treatment. In the
opinion of the court, the lengthy incarceration and “like-
lihood” of life sentence “of itself would not constitute a
breach of Article 3”.51 Noting further than there is “a con-
siderable body of unchallenged evidence about the con-
ditions in Supermax prisons generally” the Court declined
this argument as well.52 The suggestion that trial in the
USA would be contrary to Article 6 of the ECHR, was
rejected on the basis of US “history of unswerving com-
pliance” with their diplomatic assurances.53 The argu-
ment that Article 8 of the ECHR would be contravened
by the long incarceration abroad, curtailing the contact
between the appellant and his family, was not accepted.
The court was of the view that “Long periods of incar-
ceration were not only “inevitable” but also “amply justi-
fied” in the circumstances.54
On 8 July 2010 however, the ECrtHR acknowledged
in part, that certain human rights questions needed to be
answered by the UK government before Hamza and the
others could be extradited to the US.55 The Court de-
clared the following issues to be “partially admissible”:
47This treaty is preceded by the United Kingdom of Great Britain an
d
N
orthern Ireland Extradition Treaty 1972 (1972 Treaty), and the Sup-
p
lemental Treaty Concerning the Extradition Treaty Between the Go-
vernment of the United States of America and the Government of the
United Kingdom of Great Britain and Northern Ireland (June 1985)
(Supplementary Treaty). The latter was mainly agreed in order to set
out offences which would not be excluded in an extradition request as
being political in nature. See Art.1 Supplementary Treaty.
48See further Article 2 (4) of the Treaty.
49See the HC decision:
M
ustafa Kamel Mustafa v Government of the
United States of America and Secretary of State for the Home Depart-
ment (2008) EWHC 1357, 20 June 2008, op cit, para 8.
50Type 2 diabetes, poor eye sight, and amputated limbs.
51(2008) EWHC 1357, 20 June 200 8, para 64.
52Ibid, para. 65.
53Ibid, para. 62.
54Ibid para. 72.
55Decision on Admissibility Baba Ahmad and Others v the United King-
dom Application nos 24027/07, 11949/08 and 36742/08 , 8 July 2010.
39See
M
ustafa Kamel Mustafa v Government of the United States o
f
A
merica and Secretary of State for the Home Departmen
t
(2008) EW-
HC 1357.
40McKinnon v Government of the United States of America and Another
[2008] UKHL 59.
41E.C.H.R. Ser A, No 161, 7 Ju ly 1989.
42Ibid, para 89.
43See C. van Den Wyngaert, “Applying the European Convention on
Human Rights to Extradition: Opening Pandora’s Box?” Internationa
l
Comparative Law Quarterly 39 (1990) 757-779 at 758.
44Ibid, 760.
45See M. Cherif Bassiouni,
I
nternational Extradition, United States Law
and Practice (1983) Vol. VII, para. 7-1, cited in Wyngaert, id, 760.
46“Bars to extradition” and “Rule against double jeop ardy”.

The 21st Century Terrorist: Hostis Humani Generis? 163
complaints by all except Abu Hamza under Article 3
(prohibition of inhuman or degrading treatment) about
possible post-trial detention in a United States of Ame-
rica prison with the highest possible of security levels (a
“supermax” prison); and the length of the sentences in
the USA for all four applicants in relation to Article 3.56
The UK Government was therefore asked to provide an-
swers to the following questions vis a vis: whether the
period of incarceration in a supermax prison would
amount to a violation of Article 3 and whether the ap-
plicants have any “real prospect” of being transferred to a
normal prison; whether the Eighth amendment to the US
Constitution on cruel and unusual punishment as inter-
preted by US federal courts cover the protection offered
under Article 3. In addition, it was also asked to ascertain
whether there exists the possibility of a reduction in the
sentences after conviction. In April 2012, the European
Court finally ruled in favour of th e extradition of th e four
men to the US conceding that “supermax” prisons were
not in violation of the accused’s human rights.57 Not-
withstanding this ruling, in September 2012, Abu Hamza
and others again appealed this last decision of the EC-
rtHR in the UK High Court but the appeal was turned
down. The four men were finally extradited to the US on
5 October 2012. The entire process took eight years.
The bilateral approach despite its challenges is evi-
dently successful at least on the basis of the examination
above. It does however require that both states agree on
the double criminality requirement i.e. that the offence is
criminal in the two jurisdictions; that there is extradition
agreement between the two; and that the courts are satis-
fied on the procedure for law enforcement [17].58 How-
ever, the difficulties examined as b etween two highly de-
veloped systems, the US and the UK pale into insignifi-
cance when States with weak legal, social and political
structures, are assessed for their capacity for bilateral or
regional containment of terrorism. Plagued by internal
conflicts, proliferation of and black market trade in, arms
and ammunitions, insecure borders, poverty, a corrupt
public service system, civil unrest and poor human rights
protection, countries with these records which include
many countries in Africa [18]59, and in Asia [19]60, are
not only fertile ground for terrorists but in dividually, may
not be able to offer an effective legal system for ad dress-
ing the threats of terrorist activity.
2.3. International Approach
Terrorism in contemporary times “has recently acquired
a new intensity [20]”.61 Measures to address this have
seen a marked improvement on the situation in 1972
when the UN first attempted to reach an agreement on
the issue.62 Currently, there are about twen ty international
agreements on terrorism: five at the United Nations,63
eight multilateral agreements,64 and seven at regional le-
vel.65 Most of these agreements adopt the view that juris-
diction over terrorist activ ities is in some form universal;
Shaw notes that the agreements “operate on a common
61M. Shaw, International Law (6th Edition Cambridge: Cambridge Uni-
versity Press 2008), 1159.
62See “Measures to Prevent International Terrorism” G. A. Res 27/3034
cited in M. Halberstam, “The Evolution of the United Nations Position
on Terrorism: From Exempting National Liberation Movements to Cri-
minalising Terrorism Wherever and by Whomever Committed” Co-
lumbia Journal of Transnational Law, 41 (2002-2003), 572- 584 at 573.
63Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents 14 Dec
1973 (in force 20 Feb 1977); International Convention against the Tak-
ing of Hostages 17 Dec 1979 (in force 3 June 1983); International
Convention for the Suppression of Terrorist Bombings 15 Dec 1997 (in
force 23 May 2001); International Convention for the Suppression o
f
the Financing of Terrorism 9 Dec 1999 (in force 9 Dec 1999); Interna-
tional Convention for the Suppression of Acts of Nuclear Terrorism 13
April 2005 (in force 7 July 2001).
64Convention on Offences and Certain Other Acts Committed on Board
Aircraft, Tokyo 14 Sep 1963—International Civil Aviation Organisa-
tion (ICAO); Convention for the Suppression of Unlawful Seizure o
f
Aircraft, Hague 16 Dec 1970—Russian Federation UK, USA; Conven-
tion for the Suppression of Unlawful Acts against the Safety of Civil
Aviation Montreal 23 Sep 1971—Russian Federation, UK, USA; Con-
vention on the Physical Protection of Nuclear Material Vienna 3March
1980—International Atomic Energy Agency (IAEA); Protocol on the
Suppression of Unlawful Acts of Violence at Airports Serving Interna-
tional Civil Aviation, Supplementary to the Convention for the Sup-
p
ression of Unlawful Acts against the Safety of Civil Aviation, Mont-
real 24 Feb 1988—Russian Federation, UK, USA, ICAO; Convention
for the Suppression of Unlawful Acts against the Safety of Maritime
N
avigation 10 March 1988—International Maritime Organisation (IMO);
Protocol for the Suppression ofUnlawful Acts against the Safety o
f
Fixed Platforms Located on the Continental Shelf 10 March 1988—
IMO; Convention on the Marking of Plastic Explosives for the Purpose
of Detection 1 March 1991—ICAO.
65Arab Convention on the Suppression of Terrorism, League of Arab
States 22 April 1998; Convention of the Organisation of the Islamic
Conference on Combating International Terrorism OIC, 1 July 1999;
European Convention on the Suppression of Terrorism, Council o
f
Europe, 27 Jan 1977, OAS Convention to Prevent and Punish Acts o
f
Terrorism Taking the Form of Crimes against Persons and Related
Extortion that are of International Significance Organisation of Ameri-
can States 2 Feb 1971; OAU Convention on the Prevention and Com-
bating of Terrorism African Union 14 July 1999; SAARC Regional
Convention on Suppression of Terrorism, South Asian Association for
Regional Cooperation 4 Nov 1987; Treaty on Cooperation among
States Members of the Commonwealth of Independent States in Com-
bating Terrorism CIS, 4 June 1999 .
66Op cit, 1160.
56Ibid.
57See BBC News: “Abu Hamza US Extradition Backed by European
Court,” http://www.bbc. co.uk/ news/uk-17657814; acce ssed 28 June 2012.
See “Abu Hamza makes high court bid to avoid extradition,” The
Guardian (UK) 2 October 2012, at http://www.guardian.co.uk/ uk/2012/
oct/02/abu-hamza-high-c ou rt -e xt ra di ti on ; a cc e sse d 2 O ctober 2012.
58For an American analysis see also, D. S. Kris, “ Law E nf orcement as a
Counterterrorism tool”, Journal of National Security Law and Policy
5 (2011) 1-95.
59See J. Cilliers, “Terrorism and Africa” 12 African Security Review 4
(2003) 91-103.
60Cf B. Vaughan et al., “Terrorism in South East Asia” CSR Report for
(US) Congress, Oct 2009; P. Chalk, et al. The Evolving Terrorist
Threat to South East Asia A Net Assessment (Virginia: RAND Corp
2009).

The 21st Century Terrorist: Hostis Humani Generis?
164
model, establishing the basis of quasi-universal jurisdic-
tion with an interlo cking network of internation al obliga-
tions”66. Halberstam notes that the UN’s position on ter-
rorism has changed from one that at least arguably per-
mitted terro- rism in support of the struggle for
self-determination, to one that unequivocally condemns
terrorism as criminal and unjustifiable wherever and by
whoever committed.67
More recently in 2011, the aforementioned Appeals
Chamber of the Special Tribunal for Lebanon in a pre-
trial ruling extensively investigated the definition of ter-
rorism in international law. The Tribunal’s guidelines
clearly set out that the crime of terrorism was to be inter-
preted in the light of Lebanese law. However, the Ap-
peals Chamber led by Judge Antonio Cassesse inter-
preted Lebanese law on terrorism in the light of available
international consensus from case law, national legisla-
tion, treaties, and state practice, including opinio juris, on
terrorism. To this end, it found that “a customary rule of
international law regarding the international crime of ter-
rorism, at least in time of peace, has indeed emerged”.68
More critically, upon reviewing recent judicial decisions
which considered terrorism, the Appeals Chamber noted
that those decisions are “predicated on the notion that
there exists an international obligation to prosecute and
punish terrorism as a crime based on commonly accepted
legal ingredients”.69
3. The 21st Century Terrorist: Hostis
Humani Generis?
“Surprise, provocation, and publicity are what the terro-
rists are after...” [21].70 A practicable definition of terro-
rism must acknowledge this innate desire for publicity
and the preference for socially disruptive aggression as a
means of arousing this publicity [22].71 The terrorist is
not merely an ideological criminal or even, a pathologi-
cal killer content with the satisfaction of committing a
crime without being caught. Although some in a group
may evince these characteristics, the terrorist is much
more than this. A terrorist considers that only sustained
violence towards others and the wreaking of havoc in the
community, can obtain the recognition of whatever it is
he or she desires [23].72 That recognition requires a pu-
blic stage; it is not that terrorists are insensitive or un-
aware of the harm and pain inflicted on the many inno-
cent victims of their activities; they see their victims as
expendable publicity tools. Aware that no State and the
international community will remain unmoved by the
death of innocent men, women and children, they are
prepared to exploit fear and human empathy in further-
ance of their reign of terror. The attitude of the perpe-
trator even more th an th e id eo log y matters—it is this atti-
tude that to a large extent determines th e scale of the vio-
lence employed in terrorist attacks. The fact is that what
we now call “terrorism” is not terrorism in the way we
have always known it to be; compared with terrorism in
the past there are “important differences”.73
3.1. The 21st Century Terrorist
The perpetrators of modern terrorist attacks are not nece-
ssarily sponsored by states or political groups; they qui-
ckly form subgroups across national bound aries; they are
fostered in communities often feeling the effects of war,
famine, or social dislocation. Their attacks are not li-
mited to their national or immediate territories; the ideo-
logy is as varied as their social, religious, economic or
political beliefs. They do not have any agenda for disen-
gagement or any li mits to their op eration s which makes it
difficult strategically to counter their activities. They court
rather than avoid publicity, and exploit available new
technologies in communication and the social media.
Most importantly, they are not under any illusions that
they are bound by any law, domestic or international.74
Yet, they are org anised, with hierarchical lea dership struc-
tures, financed, and led, just like mini-states. They as-
sert that they are engaged in warfare with their targets
but do not act as if they are bound by the rules on armed
conflict. They are increasingly better co-ordinated and
well trained in high technologies, espionage, money laun-
dering, and appear to have an uncanny ability to recruit
young, idealistic, intelligent and upwardly mobile men
and women along with the poor and disenfranch ised. Un-
prepared to lay down arms and without a care for col-
lateral damage, they strike where and whenever they
can—their targets are not always their victims.
Is the modern terrorist an enemy of mankind? Yes,
because he operates according to his preferred rules and
not within the ambit of domestic law, and as with other
transnational crime, operates across borders. Whether by
the use of social media or support by affiliate groups, or
in pursuit of targ ets, by this global presence, the terrorist
places himself at the mercy of any State; his decision to
operate “globally” raises threats to the in ternational com-
67See M. Halberstam , op c it , at 573.
68STL Appeals Chamber, op cit, para 85. (Italics in original).
69Ibid, para 100.
70I. Duyvesteyn, “How New is the New Terrorism” Studies in Conflic
t
and Terrorism, Vol. 27, No. 5, 2004, pp. 439-454, at 450.
71F.J. Hacker, cit ed in C. H. Simmons and J . R. Mitch, “ Labelling Public
Aggression: When is it Terrorism,” The Journal of Social Psychology
Vol. 125, No. 2, 1985, pp. 245-251, at 245, noted that terrorist acts are
“triadic”; dramatic events meant to involve observers and the mass
media as well.
72See further, T. DeAngelis, “Understanding Terrorism” American Psy-
chological Association, 40 (2009) available online: http://www.apa.
org/monitor/2009/11/terrorism.aspx; accessed June 18 2012.
73J. Cilliers, op cit, 93. Duyvesteyn however questions whether there is
anything fundamentally new in modern terrorism. See generally, Du-
yvesteyn op cit.
74Al-Qaeda insists it is subject only to the law of Allah.

The 21st Century Terrorist: Hostis Humani Generis? 165
munity. The indiscriminate violence unleashed by mo-
dern terrorist activity clearly places the terrorist as an
enemy of all human society. With this threat to interna-
tional peace and security, criminal responsibility there-
fore arises: “crimes against international law are com-
mitted by men, not by abstract entities, and only by pu-
nishing individuals who commit such crimes can the
provision of international law be enforced”.75 The pro-
blem admittedly is with a State’s willingness to exercise
jurisdiction over what is considered an “international
crime” although its impact is largely felt within the do-
mestic environment. Cilliers notes that as a means of
avoiding the complexities o f “sub-state terrorism” and of
different national systems, national legislation following
UN Security Council Resolution 1373 (2001) restrict the
description of terrorist acts to international acts”.76 The
fact that there is then no universal jurisdiction over the
crime obviously limits the ability of States to pursue pu-
nishment.
Categorising terrorists as common enemies of man-
kind demands that all states have an obligation to appre-
hend terrorists, to try them or to hand them over to ano-
ther country that can, to try them. Some states will not be
eager to give up their nationals or those whose activities
suit their own interests in global politics. But if we ac-
knowledge that terrorism is “an act which the interna-
tional community recognise as not only a violation of
ordinary State criminal law but one which is so serious
that it must be regarded as a matter for in ternational con-
cern” it therefore “cannot be left to the State which
would normally have jurisdiction over it [24]”.77
Today, terrorism is not only the tool of Al-Qaeda re-
gardless of the various attempts to attach the Al-Qaeda
tag to any radical extremist behaviour. Other groups hin-
ging their actions on one platform of rights or another in
previously “non-terrorist” locations are also on the rise.
For instance Nigeria’s southern Niger Delta militants
who condemn the exploitation and environmental pollu-
tion of the region by oil companies78 and in the northern
part of the country, the group Boko Haram (who want the
country governed according to Islamic law).79 Individual
imitators of the violence of terr orism are also real threats:
Andres Behring Breivik massacred over 70 innocent per-
sons in coordinated attacks (detonated car bomb explo-
sion in Oslo, and his targ eted murd er of youths in a you th
camp at Utoeya, on 22 July 2011 in his home country,
Norway) as a means of averting attention to what he
called the “islamisation of Europe”.80
Individual cases as in Breivik’s above may, given their
isolated circumstances, be regarded as a domestic crime;
murder on a large scale. But insurgencies such as Boko
haram even though it operates in Nigeria, have an inter-
national impact and must be distinguished from pure
domestic criminal activity. The distinction may be a dif-
ficult one to make but it is crucial. The author of Impe-
rial Hubris attempts such a distinction saying, “terrorists
alone cannot threaten national security; terrorists who are
a complimentary subset of a larger internatio na l … in-
surgency surely can” [25].81 Anything that destabilises and
harms lives and property is a threat to national security
and given its transnational impact—the killing of for-
eigners, destruction of foreign assets, displacement of ci-
tizens, etc., is a threat to the international community.
What is vital is an acute understanding of the scale and
scope of each particular thr eat. Such an under standing f a-
cilitates an appropriate response in countering that threat,
doing so within justifiable limits, and clamping down on
a “globalisation” trend in terrorism. We consider that an
appropriate response is that we recognise the terrorist as
hostis huma nis generis—a common enemy of mankind.
3.2. A Regime for Punishment
A potential risk to the international community triggers
what the International Court of Justice in the Barcelona
Traction case,82 referred to as erga omnes obligations
which States owe to the international community as a
whole.83 One such obligation has been to apprehend and
punish pirates. In Re Piracy Jure Gentium, the UK Privy
Council noted that a pirate “is no longer a national, but
“hostis humani generic” and as such he is justiciable by
any State anywhere”.84 By the peculiar circumstance of
the crime, the pirate had placed himself beyond the pro-
tection or reaches of any state. The dissenting opinion of
Justice Moore in the earlier case of the SS Lotus85 (which
however arose on different grounds) elaborates on the
peculiar nature of pirates as enemies of mankind:
75Formulation of the Nuremberg Principles, ILC Year Book 1950,
Commentary, at 374
76J. Cilliers, op cit, 92.
77C. de Than and E. Shorts,
I
nternational Criminal Law and Human
R
ights (London: Sweet & Maxwell 2003), 13.
78This group claimed responsibility for the explosions in the Federal
Capital Abuja on 1 October 2010 which killed at least eight people. See
J. Percival (and other agencies) “Nigeria capital rocked by bombs on
50th independence anniversary”. Online at http://www.guardian. co. uk/
world/2010/oct/01/nigeria-independence-bombs accessed August 10
2011.
79Boko Haram condemns what it refers to as the sinful Western way o
f
life in Nigeria. A bomb attack by the group on 12 July 2011 killed at
least fifty people in Maiduguri, Borno State. See E. Ibemere et al.,
“Nigeria: Boko Haram strikes again, kills 50 in Maiduguri.” Online at:
http://allafrica.com/stories/201107-131316.html accessed 29 June 2012.
They are also suspected of association with a bomb attack on the UN
building in Abuja on 26 August 2011.
80Breivik’s 1500 page online manifesto, “2083: A European Declaration
of Independence” has been described as “a chilling attack manifesto”.
See BBC News Europe: Online at: http:// www.bbc.co.uk/ news/ world-
europe-14267007 accessed 29 June 2012.
81M. Scheuer, Imperial Hubris: Why the West is Losing the War on Ter-
ror (Washington: Brassey’s Inc 2004) 220.
82Barcelona Traction, Light and Power Company (Second Phase) I. C.
J. 1970.
83Ibid, paras. 33-34.
84(1934) AC 586, at 589.
851927, 2 WCR at 20.

The 21st Century Terrorist: Hostis Humani Generis?
166
…Piracy by law of nations in its jurisdictional as-
pects is sui generis. Though statutes may provide
for its punishment, it is an offence again st the law of
nations; and as the scen e of the pirate's operations is
the high seas, which it is no t the right or duty of any
nation to police, he is denied the protection of the
flag which he may carry, and is treated as an outlaw,
as the enemy of all mankind—hostis humani generis
—whom any nation may in the interest of all cap-
ture and punish.86
The same view could be extended to the modern terro-
rist who bolstered by modern technology, ease of travel,
and communication (on the intangible location of the
internet and via the unpoliced network of social media),
can direct, facilitate or carry out attacks even without be-
ing physically present. It is also instructive that many
such terrorists do not consider themselves subject to any
legal regime, domestic or international.
The characterisation “enemy of all mankind,” when
applied to terrorists, also reflects the scale and gravity of
the crime. The Charter of the Nuremberg Tribunal87 set-
ting out “crimes against humanity” relevant in time of
war or peace, included:
Murder, extermination, enslavement, deportation and
other inhuman acts against any civilian population,
or persecutions on political, racial or religious grounds,
when such acts are done or such persecutions are
carried on in execution of or in connection with any
crime against peace or any war crime.88
Modern terrorism certainly bears the marks of “inhu-
man acts against …civilian population”.89 In the light of
the above, there is or at least there ought to be, a univer-
sal duty to on all states in the in ternational community to
apprehend and prosecute, or to extradite terror suspects.
In a globalised world, domestic threats of terrorism ought
to be a fact for universal concern when the activities of
terror groups are supported or aided financially, techni-
cally, or morally, by external parties. Three leaders asso-
ciated with Boko Haram, the Nigerian terror group have
been officially declared as terrorists by the US govern-
ment meaning any assets associated with them in the
USA would be frozen [26].90 This action is a step to-
wards tackling the weapon of terror but more need s to be
done. Having placed themselves beyond the protection of
any state not only by the geographical reaches of their
activity and their disavowal of their State’s jurisdiction
over their activities, but also by their disregard and wan-
ton violation of peoples’ right to life, to peaceful exis-
tence and to enjoyment of property, terrorists are cer-
tainly enemies of all mankind and should be subject to
universal juris di c t i on.
3.3. Tackling Terror
Beyond establishing a universal regime of punishment,
those factors that stoke an increase in terrorism must not
be ignored: oppressive regimes, unwarranted political in-
tervention in the domestic affairs of weaker states; a ge-
neral rise in social violence, unemployment, poverty, wars
and internal displacement, poor education, poor social
welfare, and indeed a rising disillusioned young popula-
tion. Improved technologies including in financial trans-
actions, [27]91 and a more efficient global communica-
tion network, with widespread use of social media—also
facilitate terrorism [28].92
There are other issues still: Terrorism courts publicity,
at least modern “terrorists” do so. Indeed this is a defi-
ning feature of the 21st century terrorist [29].93 The en-
during impact of the violence displayed at 9/11 is that it
has brought the indiscriminate violence of terrorism into
the very centre of lives. It has also created mimics of this
aggressive behaviour; bombs and suicide bombing pre-
viously known only to the most volatile conflict zones
around the world as a deliberate terrorist strategy, [30]94
are now more commonly employed even in purely do-
mestic crime. The human body has become a significant
weapon of terror even as it remains terrorists’ primary
targets.95 Suicide bombing is appealing to terrorists for a
number of reasons: a suicide bomber cannot be appre-
hended and cannot assist in investigations; the loyalty to
their ideology is enforced by this willingness to die for
their cause; their self-immolation lends to their mystery
attracting future young and ideologically vulnerable rec-
ruits, and the deaths emphasizes their determination to
succeed in their mission. As a weapon of terror, it also
creates fear in the public, retains political attention, and
91The UN International Convention for the Suppression of the Financ-
ing of Terrorism (1999) is supposed to tackle global funding for terro-
rist activities by these means.
92See generally, S. A. Baker, Skating on Stilts: Why we aren’t stoppin
g
tomorrow’s terrorism (California: Hoover Inst Press 2010).
93See generally, European Commission Sixth Work Programme (Trans-
national Terrorism, Security and the Rule of Law), “Terrorism and the
Media” July 23 2008.
94D. K. Gupta and K. Mundra, “Suicide Bombing as a Strategic Wea-
p
on: An Empirical Investigation of Hamas and Islamic Jihad”, Terror-
ism and Political Violence 17 (2005), 573-598.
95See R. J. Brym and B. Araj, “Are Suicide Bombers Suicidal?” Studies
in Conflict and Terrorism, 35 (2012) 432-443; See R. A. Pape,
D
ying to
Win: The Strategic Logic of Suicide Bombing (New York: Random
House 2005). Cf F. Hoveyda (Review): “Dying to Win: The Strategic
Logic of Suicide Bombing” American Foreign Policy Interests 27
(2005) 535-548; A. Moghadam, “Suicide Terrorism, Occupation, and
the Globalisation of Martyrdom,” Studies in Conflict and Terrorism 29
(2006), 707-729.
86Ibid, at 69.
871950.
88Ibid, Principle VI(e); bold for emphasis.
89Ibid.
90See BBC News, “Boko Haram Leaders Are Designated as Terrorists by
US” June 21 2012, online at: http://www.bbc.co.uk/ news/world-afri-
ca-18542030, accessed 28 June 2012.

The 21st Century Terrorist: Hostis Humani Generis? 167
even arouses sympathy.
The delay in properly perceiving terrorists for the com-
mon enemies they are in our globalised world, has
brought huge costs: d eath, destruction of property, social
instability, impact on transportation and tourism, envi-
ronmental destruction including the continued threat of
the use of WMDs, and of course, the constant fear exa-
cerbated by national security warnings and ever-tighte-
ning border control measures, costs of military, legal, and
political efforts in counter-terrorism. Military power may
delay further terrorist activity on the scale of 9/11 but if
the “common enemy” is not willing to end violent attacks,
and indeed continues to inspire new armies—who employ
means of large-scale social destruction even with differ-
ing ideologies—the terror will not en d. In addition to the
search for a legal regime, we must acknowledge the need
for alternative social responses to military counter-ter-
rorism, and respond to the background issues that facili-
tate the emergence of new terrorist units.
Alternative Social Responses
Post 9/11, the war on terror has spawned other wars: Iraq;
Afghanistan, and the huge costs of continued military
action around the world [31].96 It has exacerbated ten-
sions between Muslims and adherents of other religions.
It has garnered increased international criticism for uni-
lateral action with civilian casualties, in particular drone
strikes by the US in Pakistan. As the threats spread far-
ther a field, there is a possibility of society slowly deve-
loping a shock-immunity syndrome to threats of terro-
rism—a perception of acts of terrorism as terrible but just
another common-place event in society; indeed this is a
fact of life in a number of places now including in
Northern Nigeria. While the Boko Haram threat is spiral-
ling out of control, there is no legislation that provides
for their apprehendsion or punishment. The current “law
enforcement” approach is for security forces to shoot to
kill any person they decide is a member of the group
[32].97 The inevitable execution of innocent civilians can-
not be discounted and indeed this was the case in the first
publicised security response to the Boko Haram threat.98
Action such as this by the Nigerian security forces is a
typical response—the belief that fire power will quench
dissidents. It has so far proved unsuccessful and the th-
reat of Boko Haram continues unabated.
Our general revulsion against terrorists’ acts must not
be eroded by slow political action at both the domestic
and international level o r by an insistence on what is cle-
arly a futile effort—attempting to define ideologies and
motives while ignoring the dangers and disasters caused
by wilful acts of violence in the social sphere. The inevi-
table sh ift in politic al inte rests in the 21s t century req uire s a
tactical approach to inclusive dialogue which identifies,
respects, and addresses the views of changing global po-
litical alliances and divergent social, economic and po-
litical understandings. Fostering an awareness of emer-
ging views and perspectives on global rights’ issues is
also crucial: civil liberties, poor social welfare, political
disenfranchisement, religious propaganda, unequal social
systems, corrupt governments weak institutions, unwar-
ranted and sustained intervention into the politics of de-
pendent co untries, easy availability of arms and ammuni-
tion, global access to new technologies—are only some
of the issues which form the basis of a number of terror-
ist attacks today—avoiding a debate on these admittedly
sensitive issues merely disregards addressing differences
and areas of potential conflict.
Military intervention is not the best means of address-
ing the root causes of terrorism. It may be a long process,
but effecting change from within societies and with their
involvement, may be a more lasting solution than exter-
nal military intervention of ten v iewed as an impositio n of
alien ideologies for the benefit of foreign interests. Never-
theless, law, politics, and international relations need to
come to grips with modern realities—the issues that pla-
gued the human society in the last century have given
way to new ones. New responses must be found to this
new century’s issues, a significant one of which is the
emergence of a new common enemy with equal access to
new technologies [33]99 and whose channel of commu-
nicating its ideas is a unique brand of public large-scale
social violence.
4. Conclusions
Psychologists have described terrorism as being distin-
guishable from other aggression “by the motivation of
the terrorist to gain publicity from his or her actions”.100
Aggression is however a concept peculiarly defined in
international law to cov er acts carried out by state entities
against another state. Terrorist activity including action
across borders is therefore out with the scope of aggres-
sion. This paper has argued for a better appreciation of
modern terrorist activities and for a perception that ac-
96See the various reports by the Bureau of Investigative Journalism:
“Covert War on Terror”, online at: http://www.thebureauinvestigates.
com/category/projects/drones, accessed 29 June 2012.
97See Al-Jazeera, “Video shows Nigeria Executions”, online at:
http://www.aljazeera.com/news/africa/2010/02/2010298114949112.htm
l accessed June 28 2012. The video on this web site taken in February
2012 in the aftermath of attacks claimed by the group is horrific. Secu-
rity forces drag out and shoot civilians at point blank rage without any
p
retence at trial.
98Ibid.
99While it may not directly and visibly result in human deaths, the threat
of cyber crime and the huge financial and economic losses this can
bring to businesses, companies, industries, organisations, and govern-
ments cannot be ignored. See BBC News “MI5 Boss Jonathan Evans
Warns over Cyber Threat,” 26 June 2012,
http://www.bbc.co.uk/news/uk-18590209, accessed June 28 2012.
100C. H. Simm ons and J. R. Mitch, op ci t, 245.

The 21st Century Terrorist: Hostis Humani Generis?
168
knowledges the modern terrorist’s determination to de-
liberately, aggressively, publicly, and violently disrupt the
social space for the sake of creating terror.
The successes of domestic and bilateral action are li-
mited to the countries who can afford to undertake these
paths to combating terrorism. For the international com-
munity, the perception of the terrorist regardless of his
modus ope randi, as an enemy of mankind, is vital to an y
international effort at punishing and deterring the vio-
lence of terrorism. This is not to deny that there are out-
standing issues. There is the fact of state terrorism and
state-sponsored terrorism and the political willingness
(and capacity) of the international community to address
these issues. There is also the issue of tyrannical and op-
pressive regimes, to which victims over time have re-
sponded to with violence. The 2011 Appeal Chamber of
the Special Tribunal for Lebanon’s ruling is a step for-
ward in placing terrorism in its proper context—a grave
international crime. Still, the violence of terror magnified
by its increasing sophistication and the indiscriminate
killing of people as a means to satisfying some ques-
tionable motives requires a more determined response to
what is progressively becoming a disregard for, and a
violation of, our shared human ity. International law must
respond to those who do not consider that safeguarding
our common peace and security is an obligation to be
respected. Whatever ideology, motive or purpose that
drives modern terrorist activity, their unbridled violence
and threat to human peace and security in the 21st century,
makes the terrorist a common enemy of mankind.
5. Acknowledgements
The author is indebted to the anonymous reviewers for
their invaluable comments and suggestions.
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