Academic journal article IUP Journal of International Relations

The Thorny Nature of a Terrorism Definition in International Law

Academic journal article IUP Journal of International Relations

The Thorny Nature of a Terrorism Definition in International Law

Article excerpt

Introduction

The expression 'terrorism', today, evokes an image of one or more private individuals committing an assault on persons or property in order to induce fear in the population at large and to destabilize the internal order of a state or the rules of its government.1

The crime of terrorism is a serious and pervasive phenomenon currently facing the global community and the reprehensible character of these acts of violence is virtually indisputable. As one academic assiduously puts it, 'Following 9/11 it became abundantly clear that it was necessary to do more than simply declare terrorism to be contrary to law, it became necessary to deal with the issue on a global basis',2 and the United Nations Security Council (UNSC) has characterized international terrorism as a threat to international peace and security.3

Notwithstanding the significance of the concept, terrorism is not codified in the Rome Statute of the International Criminal Court or any other binding international criminal law instrument, because governments of the states concerned with the issue were not able to concur on a simple definition.4 It is, by now, almost a cliché to begin considerations of legal treatments of terrorism with acknowledgment that the international legal system has found itself incapable of coming to a binding, general international legal definition of terrorism in treaty law.5 This vacuum is not a new phenomenon: already in 1972 the global community tried to work on an allencompassing definition of terrorism and that did not prove very fruitful.6

In recent years, again the debate in legal academia centers on the question whether terrorism should be qualified as an international crime. However, terrorism remains a diffuse concept, which is addressed worldwide through different ways, with different means and distinctive purposes, especially since terrorist conduct sits at the crossroads between political expression and crime. Not coincidentally, terrorism par excellence is the topic in international law, on which there is an unprecedented amount of disagreement.

Recent Attempts to Define 'Terrorism'

In the wake of the 9/11 incidents, various states imposed legislation to address terrorist threats, but each nation defined 'terrorism' or 'terrorist act' in a different way.7 The international community has, since the 1920s, on numerous occasions unsuccessfully attempted to arrive at generic definitions of terrorism, for the purposes of prohibition and/or criminalization, suggesting that it attaches considerable importance to definition.8 Unfortunately, to date, also despite the most recent tenyear attempt to establish a Draft Comprehensive Convention on International Terrorism, state delegations have found themselves to be incapable of coming to an agreement on a binding, general international legal definition of the offense of 'terrorism' in treaty law. States have grappled for a long time with this issue. To illustrate, the United Nations has adopted a series of 13 international conventions related to particular forms of terrorism, such as hostage-taking, hijacking of airplanes, nuclear acts of terrorism, or terrorist bombings, and the so-called sectoral treaties, which express the will of the world community on the matter.9 These specific conventions and protocols require state parties to ensure to criminalize these acts in question in their own national legal system.10 But the proscribed activities are not strictly speaking international crimes, but crimes within the domestic legal order whose contents are to some degree dictated by international instruments: they straddle the international and domestic legal areas.

There also exist several regional and domestic binding legal documents on terrorism. An example is the 2002 Inter-American Convention Against Terrorism of the Organization of American states, deemed 'one of the first anti-terrorism treaties adopted after 9/11',11 or the European Union framework decision on combating terrorism. …

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