Concept of Terrorism

The historical introduction has shown that terrorism appears in various forms. This section of the chapter seeks to elaborate on definitions of terrorism: international law instruments on terrorism created by the United Nations (in section 5.2.1.1), by the Council of Europe (in 5.2.1.2), and by the European Union (in 5.2.1.3) are analysed in order to find the common characteristics of terrorist crimes. Section 5.2.2 is dedicated to the remaining definitional problems concerning terrorism.

The international law on terrorism

United Nations anti-terrorism law

The United Nations concluded a number of conventions on specific aspects of terrorism in a ‘sectoral’ approach.[1] The earliest conventions deal with crimes committed on board aircraft: the Tokyo Convention (1963) on Offences and Certain Other Acts Committed on Board Aircraft and the Hague Convention (1970) for the Suppression of Unlawful Seizure of Aircrafts do not explicitly address terrorism but lay a duty on the member states to establish jurisdiction for crimes committed on board aircraft.19 The

1979 Convention against the Taking of Hostages is the first convention that mentions the phenomenon ‘terrorism’.[2] [3] [4] [5] The preamble states a necessity to prosecute the taking of hostages as ‘manifestations of international terrorism’, although the description of the offence contains no explicit reference to terrorism. Nevertheless, the characteristic feature of terrorist crimes, namely the perpetrator’s aim ‘to compel ... a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act’ forms part of the description of the offence in Article 1 of the Convention.

The 1997 Terrorist Bombing Convention explicitly addresses terrorism,” though a specific ‘terrorist’ feature is not included in the description of the offence in Article 2 of the Convention. An offence under Article 2 is committed if the perpetrator delivers, places, discharges, or detonates an explosive with the intent to cause death, serious bodily injury, or extensive destruction. Article 5 stipulates that member states are obliged to penalize such crimes in their domestic laws,

... in particular where [the crime] is intended or calculated to provoke a state of terror in the general public or in a group of persons or particular persons.

The 1999 Convention for the Suppression of the Financing of Terrorism requires member states to punish the financing of crimes that are listed in existing international treaties (amongst them the UN Conventions on Terrorist Bombings and Aircraft Hijacking).22 Moreover, the Convention contains a first notion of terrorist crimes in general: according to Article 2(1)(b), the Convention also encompasses the financing of

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.

This attempt at definition already addresses the characteristic elements of terrorism: terrorist crimes are understood as acts that are intended to bring about a given immediate result—the death or serious bodily injury of another person. In stating that the intended victim should be a civilian, the Convention excludes attacks against combatants in armed conflict from the ambit of terrorist crimes” Furthermore, a specific mens rea is required for terrorist crimes: terrorist acts must be aimed at the intimidation of a population or the putting of pressure on a government or an international organisation.

The 2005 Convention for the Suppression of Acts of Nuclear Terrorism follows the same path:” it requires member states to penalize the possession or use of radioactive material with intent to cause serious bodily injury or death, or substantial damage to property or to the environment. Article 2(1)(b)(iii) extends the Convention’s ambit to the use of radioactive material with the intent to compel a natural or legal person, an international organisation or a state to do or refrain from doing any act—thereby adopting the approach of the 1999 Convention for the Suppression of the Financing of Terrorism.[6] [7] [8] [9]

Apart from these UN conventions, the UN Security Council adopted a number of resolutions in respect of terrorist crimes. In the wake of the shocking terrorist attacks on the World Trade Center and the Pentagon on 11 September 2001, UN Security Council Resolution No. 1368 (2001) of 12 September 2001 was the first international reaction and contained a general commitment to bring terrorists to justice. The subsequent UN Security Council Resolution No. 1373 (2001) of 28 September 2001 was aimed in particular at combating the financing of terrorist activities and obliged member states to prevent and suppress the preparation and financing of terrorist acts by the freezing of assets and other measures^6 The same is true of the more recent Security Council Resolutions No. 2161 (2014) of 17 June 2014 and No. 2178 (2014) of 24 September 2014: Resolution No. 2161 imposes manifold obligations on UN member states concerning members and supporters of Al-Qaeda (e.g. asset-freezing or travel bans). Resolution No. 2178 (2014) relates to terrorism in general and requires member states to criminalize the (attempt to) travel abroad for the purpose of the perpetration, planning, preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training. The support of another’s travel as well as the funding of such acts must also be penalized, under paragraph 6(a)-(c). Although these Security Council Resolutions impose immediate legislative duties on the member states” they do not contain an explicit definition of the terrorist acts that must be prevented by the required measures”

In concentrating on certain manifestations of terrorist activity, the UN managed to agree on numerous conventions that require the member states to criminalize certain kinds of terrorist crime. This sectoral approach allowed the UN to work their way around a comprehensive definition of terrorism. Still, efforts have been undertaken in order to reach a general definition of terrorism on the UN level: in 1996, the UN General Assembly established an Ad Hoc Committee to elaborate an international convention concerning international terrorism.[10] In the year 2010, the Committee arrived at a Draft Comprehensive Terrorism Convention containing the following definition of terrorism:

  • 1. Any person commits an offence within the meaning of the present Convention if that person, by any means, unlawfully and intentionally, causes:
    • (a) death or serious bodily injury to any person; or
    • (b) serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or to the environment; or
    • (c) damage to property, places, facilities or systems referred to in paragraph 1(b) of the present article resulting or likely to result in major economic loss,

when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act. ...[11]

The threatening of as well as attempts and participation in such acts are also covered. In brief: the actus reus required is an act of violence with serious consequences to the physical integrity of (a) person(s) or to important private or public property. The mens rea required is twofold: apart from the ordinary intent to commit the criminal act, a dolus specialis requirement entails the specific terrorist impetus of the crime: the act must aim at intimidating a population or at compelling a government or an international organisation to do or to abstain from doing any act.

The elements of this definition reflect some of the regulations in the UN Conventions mentioned earlier in this section. It has to be borne in mind, though, that complete congruence between the existing conventions and a future umbrella convention on terrorism in general need not be achieved. The goal of a comprehensive terrorism convention consists of the creation of a generally acceptable description of terrorism as such. This does not preclude that certain manifestations of terrorist crimes are specified in sectoral conventions. But a comprehensive terrorism convention would finally establish the so-far-missing foundation for the manifold conventions on single aspects of terrorist crimes.

Although it can be assumed that the elements of the Ad Hoc Committee’s definition are agreeable, the work on a comprehensive convention seems to be stuck in a gridlock—the last meeting of the UN Ad Hoc Committee took place in 2013—and it has already been announced that the Committee will not meet in 2016 either.[12] [13] It seems that the delicate matter of defining terrorism on the UN level has been put on the farthest-back burner. The main reason for this standoff lies in the unresolved question whether excessive use of force exerted by a state can amount to terrorism” This controversy on the definition of state terror is complemented by a second unresolved question, regarding the demand for an explicit exclusion of liberation movements from any definition of terrorism.[14] [15] [16] [17] The debate on these questions is still going on. Still, a solution is not likely to be forthcoming any time soon. In line with this presumption is the fact that the most recent UN Security Council Resolution mentioned above, No. 2178 (2014) regarding terrorist ‘travellers’ does not contain a single word about what exactly is meant by the term terrorism^4

  • [1] See Samuel Witten, ‘The International Convention for the Suppression of Terrorist Bombings’, inSaul, Research Handbook, cited in note 17 above, pp. 136-62, at p. 154. ‘9 Tokyo Convention: UNTS Vol. 704, 220ff. Hague Convention: UNTS Vol. 860, 106ff. This also holdstrue for the most recent (2010) Convention on the Suppression of Unlawful Acts Relating to InternationalCivil Aviation, ICAO Doc. 9960. However, the convention is not yet in force.
  • [2] UNTS Vol. 1316, 206ff.
  • [3] International Convention for the Suppression of Terrorist Bombings, UNTS Vol. 2149, 256ff.
  • [4] UNTS Vol. 2178, 197ff. 23 See section 5.2.1.4 of this chapter.
  • [5] 24 UNTS Vol. 2445, 89ff.
  • [6] Another interesting feature of this Convention is the regulation in Art. 4(2), excluding actions in anarmed conflict from the ambit of the convention. The law of armed conflict shall be governed exclusivelyby international humanitarian law (see section 5.2.2.1 of this chapter and note 60 below). Furthermore,the Convention does not apply to the use or threat to use nuclear weapons by states: Art 4(4).
  • [7] For details see Ben Saul, ‘Criminality and terrorism’, in Ana Maria Salinas de Frias, Katja L. H.Samuel, and Nigel D. White (eds), Counter Terrorism, Oxford, OUP, 2012, pp. 133-70, at pp. 144-7.
  • [8] 27 The resolutions were enacted as measures under Chapter VII of the Charter of the United Nations,since stipulating immediate legislative duties for the member states. Their consequently binding character led to criticism in the international debate, as some scholars took the view that the SecurityCouncil did not have a right to impose such duties on the member states. For details about this debatesee Matthew Happold, ‘Security Council Resolution 1373 and the Constitution of the United Nations’,(2003) 16 Leiden Journal of International Law, 593-610; Stefan Talmon, ‘The Security Council as worldlegislature’, (2005) 99 American Journal of International Law, 175-93.
  • [9] This also holds true of numerous further UN documents that address terrorism: compare UN SCRes. No. 1540 (2004) of 28 April 2004; UN SC Res. No. 1624 (2005) of 14 September 2005; UN SC Res. No.2133 (2014) of 27 January 2014; UN GA Res. No. 60/288 of 8 September 2006; UN GA Res. No. 66/105 of9 December 2011; UN GA Res. No. 66/282 of 29 June 2012; UN GA Res. No. 68/178 of 18 December 2013.
  • [10] UN GA Res. No. 51/210 of 17 December 1996.
  • [11] з° UN GA, A/C.6/65/L.10 of 3 November 2010, p. 6.
  • [12] See http://legal.un.org/committees/terrorism/, accessed 29 February 2016.
  • [13] See the comments of delegations to the draft Comprehensive Terrorism Convention, UN GA, A/C.6/65/L.10 of 3 November 2010, No. 8, p. 22.
  • [14] Ibid, No. 11, p. 22. Compare also Kai Ambos and Anina Timmermann, ‘Terrorism and customaryinternational law’, in Saul, Research Handbook, cited in note 17 above, pp. 20-38, at p. 33.
  • [15] UN Resolution 2178, adopted on 24 September 2014. The Resolution requires the member states topenalize the facilitation of another person’s travel to a foreign country for terrorist purposes. Such purpose can be confined to merely preparation of terrorist acts or even receiving terrorist training: S/RES/2178 (2014), p. 5, para. 6(c).
  • [16] ETS No. 196, of 16 May 2005.
  • [17] Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, OJ, 22/6/2002,L 164/3. The Framework Decision was amended by Council Framework Decision 2008/919/JHA of 28November 2008, OJ, 9/12/2008, L 330/21. The amendments require the member states to criminalizepublic provocation to commit a terrorist offence, recruitment for terrorism, training for terrorism, andseveral modes of participation (aiding, abetting, inciting, attempting). The amendments do not influencethe overall definition of terrorism as provided by the Framework Decision of 2002. For a recent report onthe implementation of the 2008 requirements in the member states see Com. (2014) 554 final of 5/9/2014.
 
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