Defining Modern Terrorism Defense Institute of International Legal Studies Regional Defense Combating Terrorism Fellowship Program

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion 2 Introduction: Module Objectives Participants will be able to desribe the obstacles to defining terrorism Participants will be able to list the five definitional elements of terrorism Participants will be able to describe the major provisions of the OAU Convention

I.Introduction: Is a definition possible? “Above the gates of hell is the warning that all that enter should abandon hope. Less dire but to the same effect is the warning given to those who try to define terrorism.” – D. Tucker (1997) I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion 3

No definition is needed; ordinary criminal law enough Definition needed only to enhance punishment of ordinary offenses… Definition needed to trigger special powers and offenses, but trigger must be narrow to protect rights Definition needed, but trigger must be broad to cover future manifestations of terrorism I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion 4 I.Four Categories of Arguments

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion “One man's terrorist is another man's freedom fighter.” 5 Luis Posada Carriles I.Introduction

II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Evolution of meaning Political sympathies and sensitivities and the issue of “just cause” Political arguments among States Treatment of State versus non-State actions inconsistent 6 I.Defining Terrorism: Underlying obstacles to definition

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Different agencies use different definitions State’s desire to preserve sovereignty Fear of expanding repression 7 I.Defining Terrorism: Underlying obstacles to definition

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Criminalization; Identification of available investigative tools; Permission for intelligence gathering; Identification and targeting of those who commit or support it; 8 II.Defining Terrorism: Why does defining terrorism matter?

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Authorization of a military response (in certain circumstances); Allocation of resources; Determination of jurisdiction; International and interagency cooperation 9 II.Defining Terrorism: Why does defining terrorism matter?

Ideological Non-state character Targets innocents and civilians Deliberately unpredictable Disregards international norms/law I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion 10 III.Characteristics and Elements of Terrorism

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Religiously motivated Lethality and destructiveness Dispersion and interconnectivity Western targets Expressive violence 11 III.Characteristics and Elements of Terrorism

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Alliance with criminal organizations New technologies/globalization Development of networks 12 III.Characteristics and Elements of Terrorism

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Intent Motivation Means Targets Actors 13 III.Characteristics and Elements: Definitional Elements

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Many terrorism definitions require a so-called “terrorist intent” element, which refers to the requirement that the conduct be undertaken to instill terror, intimidate, coerce, or influence a population, government or group. 14 III.Characteristics and Elements: Intent

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Disrupt political institutions Intimidate civilians Provoke government overreaction Gain legitimacy and influence Inspire others 15 “The purpose of terror is to terrorize.” -- V.I. Lenin III.Characteristics and Elements: Intent

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion “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.” (League of Nations, 1937) 16 III.Characteristics and Elements: Intent

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion “[Terrorism] means activities that … appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination or kidnapping.” (U.S. Criminal Code) 17 III.Characteristics and Elements: Intent

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion In addition to the terrorist intent element, many terrorism definitions require that the terrorist actors possess identifiable political, social, ideological or religious motives. Others have no motivation requirement whatsoever. 18 III.Characteristics and Elements: Motivation

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion “Terrorism is the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” (FBI Definition, 2005) 19 III.Characteristics and Elements: Motivation

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Use or threat of action where the action involves serious violence against a person or serious damage to property…; is designed to influence the government or to intimidate the public …; and is made for the purpose of advancing a political, religious or ideological cause. (UK Terrorism Act 2000) 20 III.Characteristics and Elements: Motivation

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion “…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 circumstance unjustifiable… General Assembly Resolution No. 51/210 (1996) 21 III.Characteristics and Elements: Motivation

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion “…whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious, or other nature that may be invoked to justify them.” General Assembly Resolution No. 51/210 (1996) 22 III.Characteristics and Elements: Motivation

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Terrorism definitions commonly require the use of violence or threats of violence. However, some definitions reflect the conclusion that other forms of criminal conduct (including non-violent forms such as cyberattacks) can pose dangers so serious that they amount to terrorism. 23 III.Characteristics and Elements: Means

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Terrorism is the “use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear.” Prevention of Terrorism (Temporary Measures) Act 1989 (United Kingdom) 24 III.Characteristics and Elements: Means

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion The European Union defines terrorism to include: Attacks on a person’s life or physical integrity; Causing extensive destruction to a government or public facility, transport system, infrastructure facility, public place or private property likely to endanger human life or result in major economic loss; 25 III.Characteristics and Elements: Means

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Interfering with or disrupting water or power supplies or other fundamental resources with the effect of endangering human life; or Threatening to commit any of those acts (and other actions that, given their nature or context, may seriously damage a country or an international organization); European Union Framework Decision on Combating Terrorism (2002) 26 III.Characteristics and Elements: Means

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Egypt defines terrorism as follows: “[A]ny use of force, violence, threat, or intimidation resorted to by a perpetrator in the implementation of an individual or collective criminal enterprise aimed at disrupting public order or… 27 III.Characteristics and Elements: Means

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion …endangering the safety and security of society, injuring or terrorizing persons, endangering their lives, liberties or security, causing damage to the environment or to communications, seizing control of communications, preventing or obstructing the activities of public authorities, places of worship or education, or interfering with the application of the Constitution,law, and statutes.” Egyptian penal code 28 III.Characteristics and Elements: Means

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Terrorism definitions often indicate that terrorist conduct is directed at human beings (either an entire population, a subgroup, or individually). Moreover, human targets are often further limited to civilians or non- combatants… 29 III.Characteristics and Elements: Targets

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion …However, many definitions also include property, infrastructure and other economic and social interests as recognizable targets, particularly when attacks upon them pose serious dangers to human life or economic or social order. 30 III.Characteristics and Elements: Targets

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion The Draft Comprehensive Convention on International Terrorism that has been circulated by an ad hoc committee of the General Assembly defines terrorism in a very comprehensive manner III.Characteristics and Elements: Targets

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Death or serious bodily injury to any person; or 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 the environment; or 32 III.Characteristics and Elements: Targets

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Damage to property, places, facilities, or systems referred to in paragraph 1(b) of this article, resulting or likely to result in major economic loss… UN Draft Comprehensive Convention on International Terrorism 33 III.Characteristics and Elements: Targets

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion The Convention for the Suppression of the Financing of Terrorism (1999): Also prohibits financing activities in connection with “[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… 34 III.Characteristics and Elements: Targets

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion …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 Convention for the Suppression of the Financing of Terrorism (1999) 35 III.Characteristics and Elements: Targets

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Some definitions include language indicating that terrorism may be committed by individuals, sub-state groups, states themselves, or other actors. Others do not define the range of possible terrorist actors. 36 III.Characteristics and Elements: Actors

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion “Terrorism means premeditated, politically motivated violence perpetrated against noncombatant targets by sub-national groups or clandestine agents.” Statutory Definition Relating to U.S. State Department Annual Reports on Terrorism 37 III.Characteristics and Elements: Actors

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion "[Terrorism is] the calculated use of unlawful violence or threat of unlawful violence to inculcate fear, intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious or ideological." United States Department of Defense 38 III.Characteristics and Elements: Actors

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion In December 2004, the U.N. Secretary General’s High- Level Panel on Threats, Challenges and Change issued a report that addressed the challenge of defining terrorism. The report concluded that a consensus definition should include the following: 39 III.Characteristics and Elements: Actors

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion “Recognition … that State use of force against civilians is regulated by the Geneva Conventions and other instruments, and, if of sufficient scale, constitutes a war crime by the persons concerned or a crime against humanity;” 40 III.Characteristics and Elements: Actors

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion “Restatement that acts under the 12 preceding anti-terrorism conventions are terrorism, and a declaration that they are a crime under international law; and restatement that terrorism in time of armed conflict is prohibited by the Geneva Conventions and Protocols;” 41 III.Characteristics and Elements: Actors

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion “reference to the definitions contained in the 1999 International Convention for the Suppression of the Financing of Terrorism and Security Council resolution 1566 (2004);” and 42 III.Characteristics and Elements: Actors

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Description of terrorism as “any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004)… 43 III.Characteristics and Elements: Actors

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion …that is intended to cause death or serious bodily harm to civilians or non-combatants, 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.” U.N. High-Level Panel On Threats, Challenges And Change 44 III.Characteristics and Elements: Actors

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Terrorist acts are “peacetime equivalents of war crimes.” (A.P. Schmid in 1992 proposal to U.N.) 45 III.Characteristics and Elements: War Crimes?

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion The OAU Convention on the Prevention and Combating of Terrorism (1999) defines a terrorist act as: 46 III.Characteristics and Elements: The OAU Convention

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion …any act which is a violation of the criminal laws of a State Party and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or… 47 III.Characteristics and Elements: The OAU Convention

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion …causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to: 48 III.Characteristics and Elements: The OAU Convention

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles; or… 49 III.Characteristics and Elements: The OAU Convention

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or create general insurrection in a State. 50 III.Characteristics and Elements: The OAU Convention

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion The Convention also defines a terrorist act as: …any promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing, or procurement of any person, with the intent To commit any [of the Above three acts.] 51 III.Characteristics and Elements: The OAU Convention

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Prohibited offenses exclude armed struggle for liberation: “Notwithstanding the [offenses listed above], the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, … 52 III.Characteristics and Elements: The OAU Convention

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion …including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts.” (Art. 3) 53 III.Characteristics and Elements: The OAU Convention

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion The Areas of Cooperation includes a catch-all provision: “[The parties shall] take all necessary measures to prevent the establishment of terrorist support networks in any form whatsoever;” (Art. 4) 54 III.Characteristics and Elements: The OAU Convention

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion The agreement provides for the preservation of the confidentiality of information, the requirement to establish jurisdiction over acts prohibited by the convention, comprehensive extradition requirements, and commissions rogatoire (which conduct extra- territorial investigations). (Arts. 5-16) 55 III.Characteristics and Elements: The OAU Convention

I.Introduction II.Defining Terrorism III.Characteristics and Elements IV.Conclusion Different definitions of terrorism are possible and in use around the world Despite obstacles, definition is not a merely academic exercise – definition matters in law Possible to identify common elements addressed by most definitions Movement toward zero tolerance policy 56 IV.Conclusion

Defining Modern Terrorism Defense Institute of International Legal Studies Regional Defense Combating Terrorism Fellowship Program