Terrorism, counterterrorism and international law.

• Author: Weiss, Peter Ulrich

INTRODUCTION

WHAT DO NELSON MANDELA, Menachem Begin, Gerry Adams and Yasser Arafat have in common? They all made the transition from being regarded as terrorists to being recognized as statesmen and peacemakers. In fact, three of them, Mandela, Begin and Arafat, have been awarded the Nobel Peace Prize and Mandela is viewed today by many as the leading moral authority of his time in the world.

What does this tell us about terrorism? If nothing else, that terrorism, the word on everyone's lips, is easier to talk about than to define. As one commentator, Nissan Horowitz, put it in the mainstream Israeli newspaper Ha 'aretz, "Terrorism -- it's all in the eyes of the beholder. Why is the attack on the Twin Towers called terrorism, while the bombing of a hospital in Kabul is not?" (1) Indeed, international lawyers have struggled to define terrorism for nearly a century, largely without success. In the words of the hoary cliche, "One man's terrorist is another man's freedom fighter." Or, in the context of Israel/Palestine, whom the Israelis call a terrorist the Palestinians call a martyr.

The reasons for this paradox are not mysterious. The terrorist acts out of a sense of injustice perceived by the group to which he belongs, hence he is a hero to the entire group, which may be as small as an anarchist cell or as large as an entire tribe, nation, religion, class or other societal grouping. In the period following the end of World War II, the anti-colonial struggle in Africa and Asia and later the anti-oligarchic struggle in Latin America often relied on tactics condemned as terrorist by those unsympathetic to the aims of the struggle and applauded by those in solidarity with the struggle, whether directly engaged in it or cheering it on from the sidelines. The controversy raging around the film The Battle of Algiers, with its scenes of bombs exploding in crowded cafes, is emblematic of that era.

With the end of colonialism -- albeit not neocolonialism -- and of "wars of liberation" -- albeit without bringing a full measure of freedom to those who waged them -- terrorism has lost much of its luster and now elicits virtually universal condemnation, at least in legal terms. And yet, a comprehensive definition still eludes the world community.

THE SEARCH FOR DEFINITIONS

In his post-September 11 speech to the General Assembly, Sir Jeremy Greenstock, the British Ambassador to the United Nations, said "What looks, smells and kills like terrorism is terrorism." As this is not exactly a legally serviceable definition, diplomats and international lawyers have until recently solved the definitional problem by writing conventions outlawing terrorist acts without ever mentioning the word "terrorism." The official website entitled "UN Conventions on Terrorism" (2) lists eight United Nations conventions and two protocols enacted between 1963 and 1991, dealing with such diverse offences as hijacking, attacks on diplomatic agents and other internationally protected persons, hostage taking, theft of nuclear material and unlawful acts against maritime navigation and fixed platforms located on the continental shelf. It requires no complex process of reasoning to realize that any of these prohibited acts can occur within or without the, context of terrorism. The taking of a hostage for the p urpose of obtaining the liberation of a political prisoner fits the definition of a terrorist act. The same crime committed solely for the payment of ransom does not. The hijacking of the four planes on September 11 was a megaterrorist act. It is questionable, however, whether the hijacking of a plane bound for Florida to enable the hijacker to land in Cuba fits the general view of terrorism.

The last two conventions mentioned on the UN website finally do use the buzzword "terrorism," reflecting the progression from the crime without a name to the crime everyone fears. These are the International Convention for the Suppression of Terrorist Bombings (1997) and the International Convention for the Suppression of the Financing of Terrorism (1999). (3)

The former still has no definition, but the latter indirectly defines terrorism as "any 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 abstain from doing any act."

So there we finally have an attempt at an international definition: Terrorism has two principal characteristics: (1) It is intended to inflict death or seriously bodily harm upon civilians or other persons (presumably military personnel) not taking part in hostilities and (2) its purpose is to intimidate a population or persuade a government or international organization to adopt a certain policy. The second of these two conditions is well stated, but the first is clearly inadequate. A plane can be hijacked or a hostage taken without necessarily intending to kill or seriously injure anyone, as can blacking out an electricity grid or a cybernetwork, yet such acts can be the work of terrorists.

The wording of the first clause also leaves open the question whether terrorism can be committed by states or only by non-state actors. This question, more than any other, has so far prevented the United Nations from agreeing on the text of a comprehensive convention on terrorism, including an agreed definition.

On 17 December 1996 the UN General Assembly adopted without a vote, i.e., without dissent, Resolution 51/210, "Measures to Eliminate International Terrorism." The resolution "strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed" (4) and goes on to reiterate "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 circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them." (5) In other words, no more "good" or "justified" terrorism.

Resolution 51/210 then calls on all States to adopt certain specific measures to combat terrorism, including consultation and investigation to prevent terrorist attacks on public facilities, cooperation in the detection and marking of explosives, finding means to prevent terrorism aimed at electronic or wire communications, investigating the abuse of charitable and social organizations for terrorist purposes, developing legal assistance procedures aimed at preventing terrorist acts and taking steps to counteract the financing of terrorists and terrorist organizations.

In addition, Res. 51/210 establishes an Ad Hoc Committee to elaborate international conventions for the suppression of terrorist bombings and the suppression of nuclear terrorism "and thereafter to address means of further developing a comprehensive legal framework of conventions dealing with international terrorism" (6)

The terrorist bombing convention came into force on May 23, 2001. The nuclear terrorism convention is still under discussion in the Ad Hoc Committee. The mandate to develop a comprehensive legal framework of conventions has taken the form of work on a single draft comprehensive convention on international terrorism. However, at the sixth session of the Committee, held at UN Headquarters January 28 to February 1, 2002, no agreement was reached and the Committee recommended that the Sixth (Legal) Committee of the United Nations "consider establishing a working group, preferably to be convened from 14 to 18 October 2002, to continue, as a matter of urgency, the elaboration of a draft comprehensive convention on international terrorism." (7)

A look at the difficulty experienced by the Ad Hoc Committee in forging a consensus takes us directly to today's headlines. The main sticking point seems to be Article 18 of the draft, dealing with exclusions from the scope of the convention. The text circulated by Richard Rowe of Australia, the Coordinator of the last session, contained the following two paragraphs:

18(2) The activities of armed forces...