From:
Journal of International Criminal Justice Advance Access originally published online on December 15, 2006
Journal of International Criminal Justice 2006 4(5):933-958; doi:10.1093/jicj/mql074
The Multifaceted Criminal Notion of Terrorism in International Law
Antonio Cassese*
*Professor of international law, University of Florence; member of the Board of Editors. [
/ AbstractContrary to what many believe, a generally accepted definitionof terrorism as an international crime in time of peace doesexist. This definition has evolved in the international communityat the level of customary law. However, there is still disagreementover whether the definition may also be applied in time of armedconflict, the issue in dispute being in particular whether actsperformed by ‘freedom fighters’ in wars of nationalliberation may (or should) constitute an exception to the definition.As a consequence of disagreement on terrorism in armed conflict,states have so far been unable to lay down a general definitionof the whole phenomenon of terrorism in a general treaty. Thefact, however, remains that under current customary internationalrules terrorism occurring in a time of peace and which is internationalin nature (i.e. not limited to the territory of a state andshowing transnational connections) may, depending on the circumstances,constitute a discrete international crime, or a crime againsthumanity. In time of armed conflict, terrorism (i.e. attackson persons not taking an active part in armed hostilities, witha view to spreading terror among the civilian population) currentlyamounts to a specific war crime (crime of terror). In time ofarmed conflict, terrorist acts may also amount to crimes againsthumanity (if part of a widespread or systematic attack on thecivilian population). The objective and subjective elementsof each of these three classes of criminal conduct are set outin the article on the basis of existing international law. Whilein the view of the author, the current legal regulation of terrorismis thus sufficiently clear, the fact remains that states arepolitically and ideologically divided on whether the actionsof ‘freedoms fighters’ involving attacks on civiliansshould be defined as terrorist or instead lawful. In this contentiousarea three divergent political trends are emerging in the worldcommunity: (i) to sic et simpliciter exempt freedom fighters’actions from the category of terrorism, without however specifyingwhat law would regulate their actions or whether such actionsare in any case always lawful; (ii) to exclude attacks againstcivilians in armed conflict from the legal regulation of theinternational rules on terrorism and thus assign such legalregulation to international humanitarian law solely; (iii) tocombine the application of both international norms on terrorismand international humanitarian law to actions in armed conflict,classifying as terrorist (not as war crimes) attacks on civilianscarried out in the course of such conflicts with a view to spreadingfear.
/ 1. Introduction: the ProblemThe need for a generally accepted definition of internationalterrorism is self-evident. Each state, in passing legislationon the matter, may and does of course define terrorism as itpleases. However, terrorism is a phenomenon that very oftenaffects multiple states, which are all compelled to cooperateto repress it. Hence, however imperfect and incomplete, a commonworking definition is necessary so that all states concernedmay agree on the target of their repressive action: how canstates work together for the arrest, detention or extraditionof alleged terrorists, if they do not move from the same notion?In particular, if some states assert that certain categoriesof persons who engage in conduct that normally would fall underthe definition of terrorism must nevertheless not be classifiedas terrorists on some ideological or political grounds, howcan cooperation be smoothly carried out between these statesand others taking a different legal view?
The legally binding Framework Decision on the European ArrestWarrant that the Council of the European Union (EU) passed on13 June 2002 (and which entered into force on 1 January 2004)is a telling instance of this need for cooperation. The Decisionprovides that terrorism is one of the offences for which arrestwarrants can be issued in one of the Member States of the EUand expeditiously executed in another Member State (see Article2(2)). Clearly, as far as terrorism is concerned, the Decisioncan be easily implemented as among Member States of the EU onlybecause on the very same day the EU Council also adopted a legallybinding Framework Decision on Combating Terrorism,1 which inArticle 1 contained a detailed definition of terrorist offences.2
It is common knowledge that interminable polemical argumentswere exchanged between states in the 1970s through the 1990sover what should be meant by terrorism. The bone of contentionwas two-fold: could ‘freedom fighters’ engaged innational liberation movements be classified as terrorists? Shouldthe working out of international rules on terrorism be madecontingent upon delving into the root causes of this phenomenon?3Many states asserted that as long as no agreement was reachedon these two contentious issues, no consent could evolve onthe very notion of terrorism either.
As a consequence, treaty rules laying down a comprehensive definitionhave not yet been agreed upon. However, over the years, underthe strong pressure of public opinion and also in order to cometo grips with the spreading of terrorism everywhere, in factwidespread consensus on a generally acceptable definition ofterrorism has evolved in the world community, so much so thatthe contention can be made — based on the arguments Ishall set forth subsequently — that indeed a customaryrule on the objective and subjective elements of the crime ofinternational terrorism in time of peace has evolved. The requisitepractice (usus) lies in, or results from, the converging adoptionof national laws, the handing down of judgments by nationalcourts, the passing of UN General Assembly resolutions, as wellas the ratification of international conventions by a greatnumber of states (such ratifications showing the attitude ofstates on the matter). In contrast, disagreement continues toexist on a possible exception to such definition: whether toexempt in time of armed conflict from the scope of the definitionacts that, although objectively and subjectively falling withinits purview, according to a number of states are neverthelesslegitimized in law by their being performed by ‘freedomfighters’ engaged in liberation wars.
It would appear that generally speaking the question of investigatingthe historical, social and economic causes of terrorism hasinstead been put on the backburner, although very recently theUN Secretary-General has again drawn attention to the need to‘address conditions conducive to exploitation by terrorists’.4
/ 2. The Current International Legal FrameworkA. Factors Pointing to a Generally Agreed Definition of International (or Transnational) Terrorism in Time of Peace
As emphasized above, many factors point to the formation ofsubstantial consensus on a definition of terrorism in time ofpeace. First, the Conventions on terrorism adopted by the ArabLeague, the Organization of African Union (OAU) and the Conferenceof Islamic States, while providing in terms for the aforementionedexception, nevertheless lay down a definition that is to a largeextent in line with that enshrined in other international instruments.5Secondly, both the 1999 UN Convention for the Suppression ofthe Financing of Terrorism6 and various UN General Assemblyresolutions contain a similar notion,7 which is also sharedin the Draft Comprehensive Convention on Terrorism that is stillbeing negotiated.8 Thirdly, most national laws,9 as well asnational case law, take the same approach.10
What are the elements of this definition on which there is generalconsent? They are as follows: broadly speaking, terrorism consistsof (i) acts normally criminalized under any national penal system,or assistance in the commission of such acts whenever they areperformed in time of peace; those acts must be (ii) intendedto provoke a state of terror in the population or to coercea state or an international organization to take some sort ofaction, and finally (iii) are politically or ideologically motivated,i.e. are not based on the pursuit of private ends.
These are the rough elements of a generally accepted definition.Let us consider how they can be translated into a rigorous articulationwithin international law. Thereafter, it will be appropriatebriefly to look at the contentious exception.
B. The Ingredients of International Terrorism as a Discrete International Crime in Time of Peace
1. The Objective Element
A first element of international terrorism (as distinguishedfrom, i.e. not necessarily coinciding with terrorism under nationallegislation) relates to conduct. The terrorist act must liein conduct that is already criminalized under any national bodyof criminal law: murder, mass killing, serious bodily harm,kidnapping, bombing, hijacking and so on. This conduct may,however, be in some exceptional instances, lawful per se: forinstance, financing of an organization. It becomes criminalif the conduct has the requisite connection to terrorism, forexample, if the organization to which money is provided or channelled,or on whose behalf it is collected, is terrorist in nature.In that case, the character of the organization makes the otherwiselawful action tainted with criminality.
Furthermore, the conduct must be transnational in nature, thatis, not limited to the territory of one state with no foreignelements or links whatsoever (in which case it would exclusivelyfall under the domestic criminal system of that state). Thetransnational nature of international terrorism is pithily caughtin Article 3 of the Convention for the Suppression of the Financingof Terrorism (‘This Convention shall not apply where theoffence is committed within a single State, the alleged offenderis a national of that State and is present in the territoryof that State and no other State has a basis ... to exercisejurisdiction ...’).
As for the victims of criminal conduct, they may embrace bothprivate individuals or the civilian population at large andalso state officials including members of state enforcementagencies.
2. The Subjective Element
A second element characterizing terrorism concerns the purposeof the act. A number of international instruments and nationallaws provide that the objective pursued by terrorists may beeither to spread terror among the population or to compel agovernment or an international organization to perform or abstainfrom performing an act.11 Other instruments also envisage athird possible objective: to destabilize or destroy the structureof a country.12
One can understand that, both for descriptive purposes and alsoin order to cover the whole range of possible criminal actions,these treaties, laws or other legal instruments enumerate awide set of terrorist aims. In addition, expressly contemplatingvarious alternative purposes pursued by terrorists may proveuseful to prosecutors and other enforcement agencies when thedemands of terrorist groups are not clear or are not made withregard to a specific terrorist attack; in these cases, in orderto classify the conduct as terrorist, it may suffice to determinethat at least the immediate aim of terrorists was to spreadpanic among the population. This, indeed, may greatly facilitatethe action of prosecutors in applying national laws againstterrorism. However, close scrutiny and legal logic demonstratethat, in fact, the primary goal of terrorists is always thatof coercing a public (or private) institution to take a certaincourse of action. The spreading of deep fear or anxiety is onlya means for compelling a government or another institution todo (or not to do) something; it is never an end in itself. Alsothe destabilization of the political structure of a state isa means of making the incumbent government take a certain courseof action. To be sure, in some instances the terrorists’goal is not set forth in so many words either before or afterthe terrorist action. For instance, the 11 September attackon the Twin Towers and the Pentagon was not accompanied by demandsof the terrorist organization that had planned the attack. Yet,even in these cases, the murder, bombing or kidnapping are notmade for their own sake; it is instrumental in inducing a publicor private authority to do or refrain from doing something.In the 11 September case, the attack was clearly intended toprompt the US government to change its overall policy in theMiddle East, in particular, by pulling out its military forcesthere and reversing its policy vis-à-vis Israel.
Hence, it can be said that ultimately terrorism always pursuesone primary and essential purpose, that of coercing a publicauthority (a government or an international organization) ora transnational private organization (for instance, a multinationalcorporation) to take (or refrain from taking) a specific actionor a certain policy. This is the hallmark of any terrorist action.
The purpose in question can be attained through two possiblemodalities. First, by spreading fear or anxiety among civilians(for instance, by blowing up a theatre, kidnapping civiliansor planting a bomb in a train, in a bus or in a public placesuch as a school, a museum or a bank). Clearly, the aim of terroristsis to induce the scared population to put pressure on the governmentauthorities. Secondly, the purpose may be achieved by engagingin criminal conduct against a public institution (e.g. blowingup, or threatening to blow up, the premises of Parliament, theMinistry of Defence or a foreign embassy) or else against aleading personality of a public or private authority (for instance,the head of government, a foreign ambassador, the presidentof a multinational corporation and so on).
Another element unique to terrorism regards motive. The criminalconduct must not be taken for a personal end (for instance,gain, revenge or personal hatred). It must be based on political,ideological or religious motivations. Motive is important becauseit serves to differentiate terrorism as a manifestation of collectivecriminality from criminal offences (murder, kidnapping and soon) that are instead indicative of individual criminality. Terroristacts are normally performed by groups or organizations, or byindividuals acting on their behalf or somehow linked to them.A terrorist act, for instance the blowing up of a disco, maysurely be performed by a single individual not belonging toany group or organization. However, that act is terrorist ifthe agent was moved by a collective set of ideas or tenets (apolitical platform, an ideology or a body of religious principles),thereby subjectively identifying himself with a group or organizationintent on taking similar actions. It is this factor that transformsthe murderous action of an individual into a terrorist act.
Let us now translate the above into rigorous legal language.It can be said that for terrorism to materialize two subjectiveelements (mens rea) are required. First, the subjective element(intent) proper to any underlying criminal offence: the requisitepsychological element of murder, wounding, kidnapping, hijackingand so on (dolus generalis). Second, the specific intent ofcompelling a public or a prominent private authority to take,or refrain from taking, an action (dolus specialis).
Motive in criminal law is normally immaterial (‘an actor'sultimate reason for acting may not bear on his liability’13),although it sometimes is taken into account under some specificconditions in a few national legal systems.14 Motive exceptionallybecomes relevant here: as noted earlier, criminal conduct mustbe inspired by non-personal inducements. Hence, if it is provedthat a criminal action (for instance, blowing up a building)has been motivated by non-ideological or non-political or non-religiousconsiderations, the act can no longer be defined as internationalterrorism, although it may of course fall under a broader notionof terrorism upheld in the state where the act has been accomplished.This, for instance, holds true for cases similar to an Americancriminal act that lacks, however, the transnational elementproper to international terrorism: Timothy McVeigh's blowingup in 1995 of a public building in Oklahoma City, with the consequentdeath of 168 persons. Reportedly that action was carried outin revenge for the killing, by the FBI, of members of a religioussect at Waco, Texas. Similarly, if bandits break into a bank,kill some clients and take others hostage for the purpose ofescaping unharmed with the loot, this action cannot be classifiedas terrorism, although the killing and hostage-taking are alsointended to spark terror among civilians and compel the authoritiesto do or not to do something. Here the essential element ofideological or political motive is lacking. Consequently, theoffence is one of armed robbery aggravated by murder and hostage-taking,not terrorism. Let us take another example, namely the episodeat the Los Angeles International airport (where on 4 July 2002an Egyptian fired at and killed some tourists who were aboutto take a plane bound for Israel, and was eventually shot downby enforcement officers). To determine whether this was a terroristact or simply murder, one ought to inquire into the possiblemotives of the killer; in that case, these motives could havebeen inferred from his life, his possible statements, his criminalrecord, any links he might have had with terrorist groups andso on.
Let me add that of course, motive by itself may not sufficefor the classification of a criminal act as terrorist. To clarifythis point I shall give an example (although it again relatesto terrorist groups that were not involved in transnationalterrorism, it may nevertheless be useful for illustration purposes).In the 1970s, some terrorist groups in Italy and Germany (respectivelythe Red Brigades and the Rote Armee Fraktion) carried out armedrobberies against banks to replenish the organization's funds.Here the motive of the criminal act was not personal (to acquirea private gain), but collective (to boost the organization'scash). Yet, the action was not terrorist in nature, but an ordinarycriminal offence, because another crucial element proper toterrorism was lacking (the purpose of compelling through criminalconduct an authority to take a certain stand). This conclusiondoes not exclude however that individual national criminal systemsmay consider that, since the aforementioned acts were performedto support a terrorist organization, the crimes involved mustbe characterized as terrorist at least for such purposes asjurisdiction, the use of special investigative methods and soon.
The legal relevance of motive for determining whether one isfaced with a terrorist offence does undoubtedly pose seriousproblems for any prosecutorial agency or criminal court. Itmay admittedly prove hard to find the reasons that inspiredthe agent, and to disentangle the specific basis for his actionfrom the intricacies of his possible motivations. In particular,it may be laborious to establish whether he acted out of political,ideological or religious motivations. In addition to this factualdifficulty, it may also be difficult to decide in a particularinstance whether a set of ideas or aspirations make up a politicalcredo, an ideology or a religion. One easy way out could consistof ascertaining whether the agent only acted out of strictlypersonal reasons, in which case one could rule out that hisacts be termed terrorist. Admittedly, the question is complicatedand may give rise to much controversy. The fact remains, however,that the nature of motive is taken into account by internationalrules as one of the discriminating factors in this matter.