"Umbrellas" or "Building Blocks"? Defining International Terrorism and Transnational Organized Crime in International Law [Phi]

Article excerpt

  I. INTRODUCTION
 II. DEFINITIONS OF INTERNATIONAL TERRORISM
     AND TRANSNATIONAL ORGANIZED CRIME
     A. The Draft Comprehensive Convention on
        International Terrorism (the Draft Convention)
     B. UN Convention Against Transnational Organized
        Crime (2000) (the Palermo Convention)
III. DOMESTIC DEFINITIONS OF TERRORISM AND
     ORGANIZED CRIME
     A. U.S. Domestic Definitions of Terrorism
     B. Russian Domestic Definitions of Organized Crime
 IV. POST 9/11 MERGER OF TERRORISM AND
     ORGANIZED CRIME
  V. CONCLUSION

I. INTRODUCTION

This article considers the definition of "international terrorism" and "transnational organized crime" in international law. Our intent is not to offer our own suggestions as to what these definitions should be. Rather, the purpose (a more utilitarian one) is to discuss the difficulties encountered in recent efforts to arrive at comprehensive legal definitions of these phenomena, and, more generally, to highlight an alternative approach to the definitional exercise.

It is often claimed, and not without cause, that international terrorism and transnational organized crime constitute two of the most serious challenges currently facing the international community. (1) The United Nations (U.N.) Security Council regards international terrorism as "one of the most serious threats to international peace and security in the twenty-first century." (2) Acts of terrorism pose a challenge confronting the entire global community, and "endanger innocent lives and the dignity and security of human beings everywhere, threaten the social and economic development of all States and undermine global stability and prosperity." (3) Similarly, the U.N. General Assembly (UNGA) has expressed its deep concern with "the impact of transnational organized crime on the political, social and economic stability and development of societies." (4)

Why, though, is it important to define these phenomena in international law? Surely we know terrorism and organized crime when we see them, even if we cannot define them precisely. (5) While seemingly an exercise in semantics, the definitional task is critical from the standpoint of the legal regulation of the phenomena and of lawful responses to them. Without precise definition, ambiguities are created that allow terrorists and organized crime members to "slip through the cracks" in the law. States, too, can take advantage of legal uncertainties to expand their room for maneuver, both in terms of the targets confronted in the fight against terrorism and organized crime and the methods used against these targets. States can also exploit these ambiguities to harness the "wars" on terrorism and organized crime for the pursuit of other unrelated--and, often, less creditable--ends.

Thus, there is a continuing need to elaborate the definitions of these phenomena in international law. But how should this be done? In general, two approaches have been tried. The first is to develop all-inclusive legal definitions of terrorism and organized crime within the context of comprehensive international antiterrorism and anti-organized crime conventions, in effect, to set out overarching umbrellas for the legal regimes under which the international community combats terrorism and organized crime. The second is to focus on narrow operational legal definitions of specific terrorist and organized criminal conduct within the context of sectoral international conventions, using them as building blocks in the incremental construction of comprehensive legal frameworks to deal with terrorism and organized crime.

In this article, we examine recent international efforts taken under the umbrella approach to arrive upon all-inclusive legal definitions of international terrorism and transnational organized crime. In Part I, we consider the definitions of terrorism and organized crime found in two comprehensive international instruments--the Draft Comprehensive Convention on Terrorism (the Draft Convention) (6) and the U. …

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