Toward a Definition of Terrorism

As we discussed in an earlier post, the ICC does not assert jurisdiction over terrorism, in part because drafters believed that the crime was not adequately defined under international law. Since the attacks of 9/11, this may be changing.
Terrorism is a concept with a colloquial meaning that lacks a formal consensus definition under international law. An omnibus treaty definition of the crime of terrorism has eluded the international community to date largely because of the now trite adage: “One man’s terrorist is another man’s freedom fighter.” As a result of this normative ambivalence, codification efforts have yielded a number of treaties that require states to criminalize only specific terrorist acts (such as aircraft hijacking or attacks against internationally protected persons), but no truly omnibus definition.

The League of Nations embarked on the first major attempt in the modern era to prohibit the crime of terrorism after the 1934 assassination by Croatian separatists of King Alexander of Yugoslavia and others. The treaty—the Convention for the Prevention and Punishment of Terrorism (1937)—defined terrorism as follows:

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.

The treaty attracted 24 state signatories; only India ultimately ratified the Convention. The onset of World War II scuttled any further efforts to bring the treaty into effect. After the dissolution of the League of Nations, the treaty was never revived.

From this abortive start, the international community has proceeded in a piecemeal fashion by criminalizing various manifestations of terrorism (such as offenses committed on board aircraft, crimes against internationally protected persons, hostage taking, crimes involving maritime navigation, crimes involving nuclear material, and the financing of terrorism), often in response to particular terrorist incidents.
This proliferation of treaty instruments has led some courts and commentators to conclude that there is no established definition of terrorism under customary international law. Nonetheless, many definitions of terrorism share certain basic elements from which a more general prohibition may be identified:

► The perpetration of violence by enumerated or unenumerated means;
► The targeting of innocent civilians or elements of the civilian infrastructure;
► Conduct is undertaken:

1. With the intent to cause violence or with wanton disregard for the act’s consequences;
2. For the purpose of causing fear or terror, coercing a government, or intimidating an enemy; or
3. To achieve some political, military, ideological, or religious goal.

Many instruments and penal codes thus contain one or more specific intent or motive elements requiring proof of the existence of some mental state over and above the general intent to commit acts of violence. In some cases, this mental element is aimed at the civilian population (the intent to cause terror) or a government (the intent to influence a government). This emphasis on the perpetrator’s motive markedly distinguishes crimes of terrorism from other domestic and international crimes. (The more specific the actus reus of the treaty, however, the less likely that such a surplus of intent is required).

In addition to sharing certain definitional elements, many treaties share structural components that obligate state parties to

► incorporate the relevant prohibitions into their domestic criminal codes,
► treat enumerated acts of terrorism as extraditable offenses,
► grant mutual legal assistance in the investigation and prosecution of the proscribed acts, and
► either extradite or prosecute offenders pursuant to broad principles of extraterritorial jurisdiction.

In this regard, the crimes of terrorism have been largely reponsible for the greater acceptance of passive personality jurisdiction in international law, as states increasingly assert jurisdiction over extraterritorial acts of terrorism committed against their nationals.

Many multilateral instruments also limit their application to terrorism committed by non-state actors, implicitly or explicitly failing to recognize any notion of state terrorism. Other treaties limit their application to acts of “international terrorism,” thus excluding jurisdiction over acts of terrorism committed by sub-state actors operating solely within a single state.

The 1999 International Convention for the Suppression of the Financing of Terrorism in certain respects unifies these various terrorism treaties and comes closest to an omnibus treaty definition of terrorism. Article 2(1) of that treaty incorporates a number of extant treaties in its annex by providing:

Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, 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 [any violation of an annexed treaty].

In addition, the treaty prohibits

[a]ny other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

The Financing Convention is bolstered by a Chapter VII Security Council Resolution (1373) passed in the weeks following the attacks of September 11, 2001, requiring all states to, inter alia, suppress the financing of acts of terrorism and freeze financial assets of persons or entities involved in terrorism.

As noted in an earlier post, terrorism is not at present a crime within the jurisdiction of the International Criminal Court. Nonetheless, given the normative redundancy in international criminal law, the Court could adjudicate certain acts that one might also consider acts of terrorism within its existing subject matter jurisdiction when such acts of terrorism satisfy the elements of other international crimes:

► Violent acts (such as murder, torture, or kidnapping) that specifically target civilians in the context of an armed conflict—whether international or non-international—will likely constitute war crimes.
► Where such acts are committed within the context of a widespread or systematic attack against a civilian population, they may constitute crimes against humanity under Article 7 (whether or not they are committed within the context of an armed conflict). The definition of crimes against humanity in the ICC Statute requires proof that the attack was “pursuant to or in furtherance of a State or organizational policy to commit such attack” (Article 7(2)(a)). Presumably, many terrorist groups could be shown to possess such a policy to attack civilians.
► Terrorist attacks may also implicate the prohibition against genocide, where the acts target a protected group with the intent to destroy that group. Although there are many instances of acts of terrorism being directed against a protected group (such as those committed during “the troubles” in Northern Ireland (right) or even the attacks of September 11, 2001), it may be difficult to prove the specific intent to commit genocide as opposed to the intent to intimidate or coerce a government—the hallmark of terrorism.

It is worth considering what is left for a prohibition against terrorism to address if many violent acts already constitute either war crimes or crimes against humanity under international criminal law.

► For one, isolated or exceptional violent acts, committed in times of peace (or without any nexus to an armed conflict) and absent more systemic repression might not be considered a war crime or a crime against humanity. Prosecuting such acts at the international level or under international law would require the existence of a stand-alone crime of terrorism.

► Secondly, a prohibition against terrorism may aid in the prosecution of acts of violence committed against privileged combatants by unprivileged combatants (such as civilians directly participating in hostilities or peacetime attacks on members of the armed forces (Khobar Towers below)). Such acts do not constitute war crimes. If such acts are to implicate international criminal law, as opposed to the domestic law of either the territorial state or the state of the nationality of the victim (assuming this law applies extraterritorially), the international community will have to achieve consensus on an omnibus definition of terrorism.

In the past, a number of geo-political situations involving occupying, colonial, or racist regimes prevented this consensus from forming. Fortunately, many of these situations (such as South Africa) have been resolved in favor of the principle of self-determination. The situation in Israel and the Occupied Territories, however, remains one of the few obstacles to completing the remaining definitional work on the crime of terrorism. Many members of the international community are unwilling to unequivocally condemn all acts of violence committed by Palestinian and allied forces given the perceived justness of their cause. That said, a consensus is crystallizing around the judgment that acts of violence targeting civilians are never justified, regardless of the justness of the cause in question. By contrast, the legal categorization and consequences of attacks by unprivileged combatants against privileged combatants or military objectives remains an unsettled and highly contentious area of international law.

Resolving the situation in this part of the world would remove this distortion in the normative development of international criminal law—as if we needed another reason to accomplish this critical and elusive end.

(This discussion is drawn from my recent article on the cognizability of a tort of terrorism under the Alien Tort Statute, produced for a conference on civil litigation and terrorism at the University of Texas (Austin). The article appears in The Review of Litigation, a publication devoted to the theory and practice of litigation, and is available here).

Terrorism & The ICC

The international community is preparing for the ICC Statute-mandated Review Conference now scheduled for May 31, 2010-June 11, 2010 in Kampala Uganda. It is anticipated that the main agenda item will be to adopt amendments defining the crime of aggression, which has been the subject of a recent IntLawGrrls series. The Netherlands, however, has also proposed that the Assembly of State Parties also consider adding the crime of terrorism to the treaty.

By way of background, as originally envisioned, the ICC’s constitutive statute was to be primarily procedural in nature, incorporating the “core” international crimes of genocide, crimes against humanity, and war crimes by reference and as defined by customary international law along with certain “treaty crimes” set forth in discrete multilateral treaties already in existence, such as treaties addressing terrorism, drug trafficking (poppies at left below), money laundering, and the like. To that end, nine of the terrorism treaties (for example, those addressing acts of terrorism against aircraft, ships, hostages, and diplomats) were included in an annex to the original ICC Statute.

Early on, delegates expressed concern that customary international law alone would not define the relevant crimes as clearly as would be necessary to provide adequate notice to an accused pursuant to the principle of nullum crimen sine lege. In addition, with respect to treaty crimes, delegates anticipated that it would be necessary to confirm that the treaty was in force with respect to the relevant states (e.g., the territorial and nationality state) for a treaty crime prosecution to proceed. These concerns led states to agree to set out the operative definitions of all the crimes in the Statute (and later adopt Elements of Crimes) rather than to incorporate such crimes by reference to preexisting treaties or customary international law.

As the negotiations proceeded at the 1998 Rome Conference, the treaty crimes eventually either fell out of the Statute, as was the case with terrorism stricto sensu and drug trafficking, or were incorporated into the core crimes, as was the case with respect to crimes against internationally protected persons (which are enumerated as war crimes at Article 8(2)(b)(iii)) and apartheid (which is listed as a crime against humanity at Article 7(1)(j)). With respect to terrorism crimes, drafters articulated several reasons for eventually excluding these crimes from the Statute altogether:

1. terrorism has no universally accepted definition;


2. terrorism was not considered to be one of “the most serious crimes of international concern” as contemplated by Article 1;


3. at the time, terrorism was not clearly recognized as a crime under customary international law;


4. including crimes of terrorism would unnecessarily politicize the ICC; and


5. there are alternative domestic venues for terrorism prosecutions such that establishing international jurisdiction would be unnecessary or duplicative.

In addition, delegates at the Rome Conference were committed to concluding the treaty in five weeks, and the inclusion of terrorism was proving to be a sticking point in the negotiations.

Some drafters remained uneasy with this result and managed to secure the adoption of Resolution E at the Rome Conference, which recommended that a future Review Conference consider the inclusion of the crime of terrorism in the ICC Statute. As the first such Conference approaches, many states and scholars continue to argue that terrorism should eventually be included within the Court’s jurisdiction. In particular, these advocates question the assumption made during the Rome Conference—which occurred in 1998 prior to the attacks of September 11, 2001—that terrorism is not a serious crime of international concern. They argue that terrorism represents a substantial and growing threat, especially given the possibility of attacks with nuclear, chemical, or biological weapons of mass destruction.

To this end, the Netherlands has submitted a proposal that would add terrorism as a standalone crime to the subject matter jurisdiction of the Court. The proposal does not provide potential elements of the crime, but simply adds terrorism to the list of crimes contained in Article 5 and proposes that a Working Group be assembled at the Review Conference to further define the crime. The Assembly of State Parties will consider this proposal at the eighth session of the Assembly of State Parties to be held Nov. 18-26, 2009 in The Hague. Stay tuned!

Teaching Terrorism

As we've discussed, Santa Clara University School of Law recently co-hosted a workshop with the International Committee of the Red Cross for law students interested in international humanitarian law. The various PowerPoint presentations delivered at that workshop have now been posted here.

The workshop culminated in a negotiation exercise involving a Working Group formed to generate a draft statute for a fictitious International Tribunal to Prosecute Acts of [International] Terrorism (ITPAT). Students were assigned to teams of 3-4 to represent the United States, the Philippines, Russia, Israel, Lebanon, the United Kingdom, South Africa, and other states with a particular interest in terrorism. Each team received a packet of materials on their “client” and its historical experience with, and legal approach to, terrorism. Like all diplomatic works-in-progress, the draft statutes itself was riven with brackets (even the title of the body remained contested). Students were charged with obtaining consensus on the open issues in formal and informal negotiations, whether multilateral or bilateral.
The key open issues were in many respects inter-related and reflect ongoing debates within the international law field:

► Students had to resolve whether the ITPAT would have jurisdiction over acts that would also implicate international humanitarian law, or the law of war. Draft language would have divested jurisdiction where the acts in question were committed within the context of an armed conflict, whether international or non-international. Alternative language enabled conduct to be simultaneously charged as war crimes and as acts of terrorism, where appropriate. In addition, this option proposed the creation of new international crimes of war, such as the crime of directly participating in hostilities (DPH). At the moment, the DPH doctrine is a feature of the principle of distinction and provides that individuals forfeit their protected civilian status when they directly participate in hostilities without the privilege of doing so. Such participation may render individuals subject to being targeted with military force, but it is not a war crime per se under contemporary IHL unless, e.g.,

• it also constitutes perfidy
• civilian objects are targeted or
• disproportionate force is employed.

Teams that opted to include war crimes within the ITPAT’s subject matter jurisdiction had to decide whether to require some sort of nexus to terrorism crimes or allow for the prosecution of stand-alone war crimes, risking overlap with the jurisdiction of the International Criminal Court.

► Students next had to grapple with how to define prosecutable crimes of terrorism. As I note in a recent article, the international community has defined terrorism in a piecemeal fashion; a consensus omnibus definition has remained elusive. Nonetheless, crimes of terrorism contain similar structural elements, and the 1999 International Convention for the Suppression of the Financing of Terrorism comes close to a global definition:

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. Students had the option of incorporating only existing terrorism treaties, or trying to craft their own omnibus definition.

► As the debate over the tribunal’s name reveals, students had to decide whether to assert jurisdiction only over acts of international, as opposed to purely domestic, terrorism. If a purely international definition was preferred, the students had to formulate an internationalizing element that would distinguish international from domestic terrorism.

► It was necessary to decide whether the Tribunal would exercise jurisdiction over non-state actors only or whether it would have jurisdiction over state actors.


In addition to these questions of subject matter jurisdiction, teams were invited to weigh in on trigger mechanisms, preconditions for the exercise of jurisdiction, the role of the Security Council in initiated or blocking prosecutions, and whether the ITPAT would be governed by principles of complementarity or primacy vis-à-vis domestic courts that may also have jurisdiction over the acts in question. These draft provisions were modeled roughly on the International Criminal Court Statute and draft iterations thereof.

Interestingly, students this year took an entirely different tack from last year. Last year, students almost unanimously agreed that the treaty should cover only acts of terrorism that occurred outside of a state of armed conflict. Under this approach, where the crimes had some nexus to an armed conflict, the ITPAT would have no jurisdiction. Last year's students also hesitated to assert international jurisdiction over acts of domestic terrorism.


By contrast, this year, students contemplated a tribunal with jurisdiction over war crimes in the traditional sense so long as they were connected with crimes of terrorism in terms of the purpose behind the attacks, the nature of the victims targeted, the pattern of the attacks (modus operandi), or the identity of the perpetrators. Participants favored language that would give a comprehensive tool set to the prosecution and fill holes in the existing international criminal law regime without creating redundancies or excessive overlap with the ICC, which does not assert jurisdiction over crimes of terrorism stricto sensu. Participants were also concerned that any ITPAT would necessarily adjudicate IHL in any case, as the Tribunal would have to decide whether the level of violence triggered the application of IHL. At the same time, while war crimes committed against so-called protected persons (like civilians or POWs) were easy to include in the proposed tribunal's subject matter jurisdiction, students grappled with how to precisely define crimes committed against combatants—both privileged and non-privileged. This group also favored the inclusion of both domestic and international terrorism, on the ground that the line between the two would be too difficult to draw in light of transnational terrorism networks and weapons markets.


In terms of the proposed Tribunal’s jurisdictional structure, students recommended adopting an express provision for self-referrals on the argument that there might be valid grounds for states to externalize the prosecution of crimes of terrorism — even purely domestic terrorism — committed in their midst. Where a state could in essence consent to jurisdiction, issues of complementarity less would be less pressing. They also suggested that the Security Council alone should be able to trigger cases involving state terrorism, on the idea that allowing state referrals for state terrorism would become too politicized.


At the moment, there is no movement toward an international tribunal for terrorism, although the Special Tribunal for Lebanon will assert jurisdiction over terrorism crimes as defined by Lebanese domestic law and the Rwanda and Sierra Leone Tribunals assert jurisdiction over the war crime of terrorizing civilians. The United Nations continues to work on a Comprehensive Convention against Terrorism. More on the United Nations’ efforts to combat terrorism can be found here.

The workshop is held annually and law students interested in international law and relations are encouraged to apply.