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Defining Terrorism: A Principled Approach Can Terrorism Be Defined In A Principled Legal Fashion? To solve a problem it must be defined. We will examine various legal definitions of terrorism, apply them to varying facts, and try to create our own. Agenda I: Establish a common vocabulary II: A brief history of "terrorism" III: Law in wartime: Is it applicable? IV: Examine current legal definitions V: Why facts matter VI: Create a definition I: Establishing a Vocabulary War Armed Conflict War Crime Belligerent Prisoner of War Terrorism A Definition of War Measures Short of War Severance of diplomatic relations Nonintercourse Embargo Reprisals Display of force Pacific blockade Armed intervention without war International organizational sanctions A Definition of Armed Conflict War Crime Defined Some Examples of War Crimes Grave Breaches of Geneva Conventions Poisoned weapons Treacherous requests for quarter Misuse of Red Cross emblem Pillage Improper use of privileged buildings Violation of surrender terms Some Other Relevant Crimes A Definition of Belligerency Prisoner of War Defined Any belligerent person is entitled to treatment of as a POW, excluding 1) members of militias and volunteers not part of the armed forces who fail to meet the four part test; 2) other individuals who commit hostile acts; and 3) other individuals who commit war crimes. Spies are a special case. Defining Terrorism: Some Factors to Consider Use of violence Identity of the target Political motivation Emphasis on instilling terror Threats against targets Systemic approach Methods of attack Identity of the perpetrator Acts constituting war crimes Terrorism: A General Definition War crimes directed against civilians for political purposes by persons other than the regular armed forces of a lawful belligerent power. II: A Brief History of Terrorism Pre International Law Piracy Anarchists The IRA Palestine Soviet Bloc 1960s Revolutionaries North Korea Cuba, Nicaragua India Afghanistan III: Law Of War: Is it Applicable? If, the nature of wars is inherently chaotic, and their conduct essentially criminal, what can be the purposes and uses of a legal regime? We can posit several. Law of War Provides Rational Analysis It is axiomatic that a subject which can not be articulated cannot be analyzed or regulated. Rational analysis of existing practices must precede any attempt to limit their impact. Legal norms lend themselves to such analysis. Law of War Provides Structure While criminal sanctions in any regime may not deter certain willing violators, they do provide guidance and structure for participants concerned with community opinion. On a global stage that concern and those opinions may be national or individual, but they have, in either case, often impacted behavior in wartime. Law of War Promotes Basic Rights There is a legitimate concern with limiting suffering, and in safeguarding fundamental human rights, among both combatants and noncombatants on all sides in any potential conflict. Short of government by anarchy, most nation states have an inherent interest in at least the basic welfare of their population. Law of War Often Effectively Bans Weapons The use or possession of certain weapons or engagement in certain practices may be so disproportionably destructive that they are generally banned by all potential contestants. Such bans have been surprisingly effective among combatants in even the fiercest hostilities. Law of War Gives Predictability to Enemy Occupation A regime establishing legal rights and duties of the possessor and inhabitants of enemy occupied territory has the same virtues as any other system of government. While it may not be popular or democratic, it at least provides that temporary framework of stability so necessary to civil life. Law of War Promotes Peacemaking During and following active hostilities constraints on warfare facilitate contacts between enemies and peacemaking activities. It is simply easier to negotiate with an opponent which is perceived as an adherent of international law. IV: Current Legal Definitions of Terrorism International Definitions State Definitions Academic Definition Treaty Definitions of Terrorism League of Nations Convention U.N. General Assembly Res. 51/210 Convention for Suppression of Terrorist Bombings Convention for Suppression of Financing of Terrorism European Union Council Framework Decision League of Nations Convention 1937 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. G.A. Resolution 51/210 1999 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 circumstances unjustified, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them. Convention for Suppression of Terrorist Bombings 1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility: (a) With the intent to cause death or serious bodily injury; or (b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss. Article 2 Convention for Suppression of the Financing of Terrorism 1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out: (a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the Annex; or (b) Any 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, 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. Article 2 European Union Council Framework Decision Each Member State shall take the necessary measures to ensure that the following offenses, defined according to its national law, which are intentionally committed by an individual or a group against one or more countries, their institutions or people with the aim of intimidating them or seriously altering or destroying the political, economic or social structures of a country, will be punishable as terrorist offenses: murder; bodily injuries; kidnapping or hostage taking; extortion; theft or robbery, unlawful seizure or or damage to [property]; fabrication [obtaining or supplying] weapons or explosives; releasing contaminating substances…; interfering with the supply of water, [or] power…; attacks through interference with an information system… State Definitions of Terrorism Examples of National Definitions United States Canada United Kingdom United States The term "international terrorism" means activities that-- (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; (B) appear to be intended-- (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum 18 U.S.C.A. § 2331 Canada Terrorist Activity: An action that takes place within or outside Canada that: -Is an offense under one of the ten U.N. anti-terrorism conventions and protocols; or -Is taken or threatened for political, religious or ideological purposes and threatens the public or national security by killing, seriously harming or endangering a person, causing substantial property damage that is likely to seriously harm people or by interfering with or disrupting an essential service, facility or system. United Kingdom Terrorism means the use or threat of action where-… (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) Action falls within this subsection if it- (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person's life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. An Academic Definition Terrorism is an anxiety inspiring method of repeated violent action, employed by clandestine individual, group or state actors for idiosyncratic, criminal or political reasons, where by-in contrast to assassination-the direct targets are not the main targets. The immediate human victims…are generally chosen randomly or selectively from a target population and serve as message generators. Threat communication processes between terrorist victims and main targets are used to manipulate the main target. Schmid & Jongman, Political Terrorism (1988) V: Why Facts Matter Status must be determined on a case by case basis Distinctions include: Terrorist vs. Soldier Prisoner of War vs. Enemy Combatant State vs. Terrorist Organization War criminal vs. legitimate fighter Courts are uniquely qualified to determine disputed facts VI: Creating A Definition What factors have we identified? What makes a definition workable? An exercise in legislative drafting Some Factors Of Terrorism Use of violence Identity of the target Political motivation Emphasis on instilling terror Threats against targets Systemic approach Methods of attack Identity of the perpetrator Acts constituting war crimes What Makes It Workable? Efficiency Speed Fairness Limits on Abuse Constitutional Requirements Treaty Requirements Imminence and Potential of the Threat Other Factors? Legislative Drafting Exercise How do we balance all the interests which have been identified in this session? The Nicaragua/US Example Drafting A Statute Applying the draft law to the facts Summary I: Established a common vocabulary II: Discussed history of "terrorism" III: Discussed law in wartime applicable IV: Discussed current legal definitions V: Discussed why facts matter VI: Created a definition What Have We Learned?
Where to Get More Information Books Schmid & Jongman, Political Terrorism (1988) Bassiouni, International Terrorism Multilateral Conventions (2001) |