Is there an internationally accepted definition of terrorism?

International agreement on most key elements?

Introduction

Definitions can determine or affect the scope or purpose of a related norm or norms intended to be accepted internationally. Ideally, definitions avoid ambiguity in interpretation. In the rules-based international order, being essentially the UN-centred system (Bisley 2018), definitions of words and terms concerning a subject-matter are commonly found in international treaties for the purposes of that matter. However, broad definitions concerning a matter may also be found in customary international law. A normative definition, such as for the concept of ‘terrorism’, can be influential in determining whether or not a state or international organization could exercise certain powers or carry out certain functions in particular situations or cases.

On the one hand, an internationally accepted definition of ‘terrorism’ could warrant the application of a rule (or rules) to a particular situation or case in, or in relation to, a state affected by certain acts by certain persons, namely terrorist acts by terrorists (both of which are terms that also require definitions or interpretation). The definition then acts as a premise from which to support a decision (Macagno 2010). On the other hand, the same definition of ‘terrorism’ could be used to challenge whether the application of a rule actually applies to the situation or case. Expert advice may be used for this purpose (Macagno 2010).

As well, the consequences of applying or not applying the definition to a situation or case will usually be considered, which requires looking at the elements of the definition and their relevance, and also evaluating their probative force in the circumstances. Internationally, to date, only some (but most) of the required elements for a definition of terrorism can be considered as settled. Some of the reasons for non-acceptance of an entire definition for terrorism are explained in this short essay.

Perception of not being even-handed

Core elements are necessary for a working definition of terrorism and they should be coherently integrated into the definition. However, a definition becomes problematic if an element is perceived as loaded in favour of or against certain values espoused by states, and this may be the case even if it is universally accepted by states that it is immoral to kill innocent civilians (i.e. non-combatants), which is not uncommon in terrorists acts. It is also problematic if an element appears to lack supporting practical reasons (Rigstad 2008, p. 80) for its inclusion in a definition of terrorism.

Accordingly, a definition of terrorism may turn out not to be even-handed (Rigstad 2008, p. 75) in its application by states. This may be especially so when considered in the context of use of force involving violence that affects civilians, in an asymmetric conflict, by an ethnic, national or other political community that seeks self-determination against an occupying state (such as in the Palestine-Israel conflict) or to separate from an established state (such as Kosovo from Serbia). Such acts by the resisting/liberating group could fall under terrorism. Conversely a state’s response (using violence), which may also affect civilians on the other side, might not be regarded as ‘state terrorism’, yet resistance to ‘state terrorism’ will be branded as terrorism in return. This can be seen as uneven.

It comes to the forefront, in that respect for the principle of self-determination of peoples is a core tenet of the Charter of the United Nations (1945) as mentioned in Articles 1(2) and 55. Accordingly, there is a valid concern if a definition of terrorism for international purposes would contravene this principle. The risk is that the actions of genuine resistance movements or liberation movements involved in a freedom struggle for self-determination could be labelled as terrorism (Schmid 2011, p. 52). For historical precedents as to what is ‘genuine’, as a start, one can refer to several anti-colonial struggles that have taken place since from around the time of the formation of the United Nations (UN) and the number of new/liberated countries subsequently admitted as member states of the UN on the success of those struggles. Should such risk materialize, a definition of terrorism or its interpretation (whether literal or purposive) could deny public legitimacy to such causes (Schmid 2011, p. 52).

Undoubtedly, the term ‘terrorism’ has political connotations in such situations and implications, that essentially revolve around whether organized groups for causes such as the above can or should be classified as liberation movements or terrorist groups (Deen 2005). In the UN system divergences among states in political understandings on such matters have, so far, tended to prevail (HRC 2020, p. 3) over attaining, and have thwarted, consensus on a legal definition of terrorism for the purposes of a comprehensive multilateral treaty, namely the proposed UN Comprehensive Convention on International Terrorism (CCIT) (UNGA 1996, p. 6) first proposed in 1996 (Singh 2017, pp. 2-3).

Nuances and motive in a definition

Arguably there is a weakness if a definition of terrorism is not nuanced enough in considering the modes and degrees of violence used (Rigstad 2008, p. 75), which should be targeted at serious offences and not inadvertently catch minor incidents of violence even in politically-charged conflict situations (including protests). However, Kalliopi Koufa (2003), a former UN Special Rapporteur on terrorism and human rights, has pointed out that devising “analytical and more sophisticated subdivisions and distinctions” (Koufa 2003), to try to attain precision by some kind of classification system regarding the phenomena of terrorism, will (when it comes to norm development) likely result in serving the needs (and thus values) of one state or group of states as against another or other states. Such diversity in understanding may be useful for sociological purposes (Boyns & Ballard 2004), but adds complications in identifying exactly what constitutes terrorism for the purposes of international norm setting. Koufa (2003) does not see as helpful classification criteria such as organizational structure of a group, its size, identities and characteristics of participants, or its group-state relationships, in determining whether a violent act by such a group amounts to terrorism. Nor for that matter are social, cultural and political motivations Koufa (2003) or psychological motives seen as helpful.

In relation to motivations and motives, it can however be asserted (as studies have shown) that most terrorists are not irrational actors (Bjørgo 2005, p. 14), and this also applies to suicide terrorists. Most appear to be relatively normal individuals (Bjørgo 2005, p. 14). In this regard, terrorists tend to “follow their own rationalities” (Bjørgo 2005, p. 257) based on their political or religious views or other ideologies and on forms of “terrorist logics” (Bjørgo 2005, p. 257) found in their circles. On this basis their motivations and motives could be considered highly relevant to a definition of terrorism.

So, despite claims to the contrary (Dumitriu 2004, pp. 596-597), motive can arguably be considered relevant for a definition of terrorism – not only relevant but a distinguishing element. Indeed, political, religious or ideological motivation can readily explain, rather than obscure, what really persuaded (Bjørgo 2005, p. 4) an act of violence against citizens and why. It also means that a definition of terrorism does not remain “incomprehensible or mysterious” (Horgan 2005, p. 44) by naively assuming that grievances of terrorists (Horgan 2005, p. 45) can be removed from the equation. Rather, such grievances (and the motivations or motives that go with them) create and sustain violent acts against citizens for the purpose of influencing political processes.

Nevertheless, there is no international agreement on including a mental or subjective element regarding motive in a definition of terrorism. However, at the domestic level countries have done so. For example, in Australia, while terrorism is not itself defined in legislation, the term “terrorist act” is defined and includes an element regarding motive. The definition in subsection 100.1(1) of the Criminal Code in the Criminal Code Act 1995 (Commonwealth) specifically includes “the intention of advancing a political, religious or ideological cause”. While cast in terms of “intention”, which is typically required for proving a criminal offence, for a terrorist act the intention would have to arise out of motivation to advance a particular cause.

Therefore, motive of a political, religious or ideological nature is at least a secondary element in the Australian definition of ‘terrorist act’. A similar approach is adopted in subsection 5(2) of New Zealand’s Terrorism Suppression Act 2002. The United Kingdom’s Terrorist Act 2000, which actually defines “terrorism” in subsection 1(1), also states that terrorism involves an action that is for “the purpose of advancing a political, religious, racial or ideological cause”. Prevention of violence under the umbrella of such causes seems sensible in times of peace, and the definitions are intended for application in times of peace.

In contrast, the European Union (EU) does not incorporate political, religious, racial or ideological motive into its definition of a terrorist offence. As per Article 3(1) of Directive 2017/541 (EU 2017) on combating terrorism, the EU firstly characterizes a terrorist offence based on the objective element of serious damage to a country or international organization. This considers the nature or context and effective or potential consequences of an act. Generally, these may be acts against persons, property, infrastructure, facilities, means of transport or various systems, or by means of weapons, explosives or dangerous substances, or by causing fires or floods. Secondly, the EU characterizes a terrorist offence based on the single subjective element of having an aim (i.e. intention), as per Article 3(2) of the Directive (EU 2017), to seriously intimidate a population, or unduly compel a government or an international organization to perform or abstain from an act, or seriously destabilise or destroy the fundamental structures (political, constitutional, economic or social) of a country or an international organisation. Nowhere is the motive to advance a cause mentioned. This definition can clearly apply to movements for self-determination.

The EU approach is consistent with draft wording in the proposed UN CCIT which also refers to serious consequences of an act in regard to persons or property (private or public, including places, facilities, transportation systems, infrastructure or the environment), as well as major economic loss in respect of property. The UN CCIT also refers to the purpose (intention) of the act being to intimidate a population or compel a government or an international organization. None of this is controversial and is sensible in times of peace. Nonetheless, problems persist in relation to the proposed UN CCIT because it invokes opposing views on whether the proposal would be applicable to self-determination movements and the so-called ‘state terrorism’ of armed forces of a state.

International agreement on most key elements

However, despite lack of a binding international convention to define terrorism itself, it cannot be said that there are no internationally agreed elements for a definition of terrorism at all. There clearly are, which is evidenced by the adoption of twelve international conventions dealing with specific aspects of the terrorism phenomenon, such as acts in relation to aircraft, maritime safety, use of explosives, bombings, hostage taking, financing and other matters . This shows international agreement exists on which activities are taken to be terrorist offences. Similar elements such as an act causing serious harm or damage, intimidation or coercion, and an aim to compel a result in favour of the user of violence or their group, can be found in these conventions in relation to the terrorist offences set out therein. These are also common in domestic legislation.

As well they are displayed in a recent development in customary international law which also indicates the broad elements of what can constitute transnational terrorism. This arose in the Special Tribunal for Lebanon (the first international court with jurisdiction over the crime of terrorism) which unanimously stated, in February 2011, that a customary rule of international law has evolved in relation to terrorism in time of peace. The three elements of that rule comprise: perpetration of a criminal act or threat of such act; intent to spread fear among the population or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; and involvement of a transnational element (Cassesse 2011). The second element regarding use of fear or coercion mirrors similar elements in the proposed UN CCIT and in domestic legislation of many states. Accordingly, the fundamentals are largely agreed on internationally. The sticking point, in essence, is a result of the principle of self-determination espoused in the Charter of the United Nations itself.

Conclusion

The substantive content of what is terrorism for the purpose of cooperatively dealing with terrorist phenomena internationally are largely agreed upon, except that there is disagreement on characterization of acts that potentially further an aim, or suppress an aim, that could be to do with self-determination of peoples which is mentioned in the Charter of the United Nations. However, in order to arrive at an internationally accepted complete definition of terrorism it appears that such a definition needs to be one that applies for the purposes of preserving the peace and in times of peace. The legitimacy of actions involving violence by non-state actor groups fighting for self-determination, and in turn violent responses by the state, has to be left to the field of international humanitarian law, if the scenario even falls within that framework in the first place. If not, then the usual criminal sanctions for non-state or state actors for illegal actions should apply.

This has to be seen through. Initial developments in customary international law also go against the use of fear tactics over a population or coercion of governmental authorities in a time of peace. In this regard, democratic opportunities are the means by which grievances should be taken up and resolved in times of relative peace. If an internationally accepted definition of terrorism is not founded on this basis, then the matter will remain unresolved.

References

Bisley, N 2018, Australia’s Rules-Based International Order, Australian Institute of International Affairs, viewed 17 December 2021, <https://www.internationalaffairs.org.au/australianoutlook/australias-rules-based-international-order/>.

Bjørgo, T 2005, ‘Introduction’ and ‘Conclusions’, in T Bjørgo (ed.), Root Causes of Terrorism: Myths, reality and ways forward, Routledge, pp. 1-15 and pp. 256-264, viewed 17 December 2021, <https://opev.org/wp-content/uploads/2019/10/BJØRGO-Tore.-Root-Causes-of-Terrorism-.pdf>.

Boyns, D & Ballard, JD 2004, ‘Developing a Sociological Theory for the Empirical Understanding of Terrorism’, The American Sociologist, vol. 35, no. 2, pp. 5-25, viewed 17 December 2021, <http://www.jstor.org/stable/27700382>.

Cassesse, A 2011, speech, viewed 17 December 2021, <www.stl-tsl.org/en/media/press-releases/summary-of-president-cassese-s-speech>.

Criminal Code Act 1995 (Commonwealth), viewed 17 December 2021, <https://www.legislation.gov.au/Details/C2021C00568>.

Deen, T 2005, POLITICS: U.N. Member States Struggle to Define Terrorism, IPS, viewed 17 December 2021, <https://web.archive.org/web/20110611053853/http://ipsnews.net/news.asp?idnews=29633>.

Dumitriu, E 2004, ‘The E.U.’s Definition of Terrorism: The Council Framework Decision on Combating Terrorism’, German Law Journal, vol. 5, no. 5, pp. 585-602, viewed 17 December 2021, <https://doi.org/10.1017/S2071832200012700>.

EU 2017, ‘Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA’, OJ L, vol. 88, 31.3.2017, pp. 6–21, viewed 17 December 2021, <https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32017L0541>.

Horgan, J 2005, ‘The social and psychological characteristics of terrorism and terrorists’, in T Bjørgo (ed.), Root Causes of Terrorism: Myths, reality and ways forward, Routledge, pp. 44-53, viewed 17 December 2021, <https://opev.org/wp-content/uploads/2019/10/BJØRGO-Tore.-Root-Causes-of-Terrorism-.pdf>.

HRC 2020, Agenda item 3 (d), Negative effects of terrorism on the enjoyment of human rights, Study of the Human Rights Council Advisory Committee, United Nations General Assembly: Human Rights Council Advisory Committee, 24th session, 17-21 February 2020, U.N. Doc A/HRC/AC/24/CRP.1, viewed 17 December 2021, <https://www.ohchr.org/Documents/HRBodies/HRCouncil/AdvisoryCom/Session24/A_HRC_AC_24_CRP1.docx>.

Koufa, KK 2003, Specific Human Rights Issues: New Priorities, in Particular Terrorism, United Nations General Assembly: Sub-Commission on the Promotion and the Protection of Human Rights, U.N. Doc E/CN.4/Sub.2/2003/WP.1 13, viewed 17 December 2021, <https://www2.ohchr.org/english/issues/terrorism/docs/WP1.pdf>.

Macagno, F 2010, ‘Definitions in Law’, Bulletin Suisse de Linguistique Appliquee, no. 2, pp. 199-217, viewed 17 December 2021, <https://www.researchgate.net/profile/Fabrizio-Macagno/publication/256008191_Definitions_in_Law/links/5448ab740cf2f14fb8142c95/Definitions-in-Law.pdf>.

Rigstad, M 2008, The Senses of Terrorism, in Torture, Terrorism, and the Use of Violence (also available as Review Journal of Political Philosophy, vol. 6, no. 1), JJ Wisnewski (ed.), Cambridge Scholars Publishing, pp. 75-102, viewed 17 December 2021, <https://www.academia.edu/176822/_The_Senses_of_Terrorism_>.

Singh, N 2017, ‘The United Nations’ Efforts at Combatting International Terrorism’, FICHL Policy Brief Series, no. 81, viewed 17 December 2021, <https://www.toaep.org/pbs-pdf/81-singh>.

Terrorism Act 2000 (United Kingdom), viewed 17 December 2021, <https://www.legislation.gov.uk/ukpga/2000/11/data.pdf>.

Terrorism Suppression Act 2002 (New Zealand), viewed 17 December 2021, <https://www.legislation.govt.nz/act/public/2002/0034/latest/DLM152702.html>.

UNGA 1996, ‘Draft Comprehensive Convention’, in Annexes to the Report of the Ad Hoc Committee Established by General Assembly Resolution 51/210 of 17 December 1996, Sixth session (28 January-1 February 2002), UN GAOR, 57th session, Supp no. 37, UN Doc A/57/37 (2002), viewed 17 December 2021, <https://documents-dds-ny.un.org/doc/UNDOC/GEN/N02/248/17/PDF/N0224817.pdf?OpenElement>.