A Research Article written by Robert. J. Fraser.
According to the United Nations:
“Any person commits an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally, causes:
(a) Death or serious bodily injury to any person; or
(b) 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
(c) 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, when the purpose of the conduct, 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.”
Draft definition of the definition of Terrorism by the United Nations General Assembly (2002) – yet to be ratified.
The events of September 11, 2001, perhaps more than any other, brought home to the world what terrorism looks like in relation to loss of life and destruction. But for the general public, what does terrorism really mean? How long has it been around and what do we really know or understand about it? To try and understand the development of the definition, we need to explore some history around it.
Terrorism expert Walter Laqueur (1977 at p. 6) states that there are over 100 definitions for the term ‘terrorism’ and that the ‘only general characteristics generally agreed upon is that terrorism involves violence and the threat of violence’. Hoffman (1998 at p. 32) supports the theory that there is a general malaise within the international community to agree upon an internationally accept definition for the term ‘terrorism’ due to ‘difficulties that arise from the fact that the term ‘terrorism’ is politically and emotionally charged’.
But these difficulties to establish an agreed upon international definition for terrorism go much further back. In fact, the arguments commenced as far back as the 1899 Hague Convention when the ‘Laws of War’ were first developed or codified. According to Ticehurst (1997), the ‘Martens Clause’ was introduced at this convention ‘as a compromise wording for the dispute between the Great Powers who considered “francs-tireurs” (‘snipers’ or ‘free-shooters’) to be unlawful combatants subject to execution on capture, and smaller States who maintained that they should be considered lawful combatants’.
The Martens Clause is still being ‘un-packed’ today by the various International Tribunals who remain dedicated to unravelling its mysteries and what it actually means. It is interesting to note however that the Martens Clause was taken from the 1899 Hague Convention Pre-amble and included in the revised 1977 Protocol’s of the 1949 Geneva Conventions ‘ensuring its continuing vitality’. (Ticehurst, 1997).
It appears that the importance of the Martens Clause cannot be over-stated. Ticehurst (1997) was heavily involved in successfully maintaining the continuity of the Martens Clause at the 1977 Geneva Conference. When discussing the term ‘laws of humanity’ which were included in the original version by Professor Martens, Ticehurst (1997) states ‘The principles of humanity are interpreted as prohibiting means and methods of war which are not necessary for the attainment of a definite military advantage.”
It is clear here that the maintained inclusion of the Martens Clause within the Geneva Conventions and its further interpretation by others supports the notion that acts of war, or indeed terrorism, that are ‘not necessary for the attainment of a definite military advantage’ are clearly prohibited.
In reviewing the 1949 Geneva Conventions Articles relating to the Protection of Victims of International Armed Conflicts, we see it includes a passage which provides protection to legitimate combatants and which states ‘in which peoples are fighting against colonial domination and alien occupation and against racist regimes’. Gardam (1993 at p. 91) observes that this statement now ‘contains many ambiguities that cloud the issue of who is or is not a legitimate combatant’.
Prior to this in 1937 the International community also had an attempt at defining terrorism. Article 1.1 of the League of Nations’ Convention for the Prevention and Punishment of Terrorism, was developed as a result of two assassinations in France and Yugoslavia by ethnic separatists in the 1930’s. Saul (2006 at pp. 78-102) describes the attempt by the League of Nations’ at a definition for Terrorism as being ‘highly resilient’ and having apparently stood the test of time. The wording developed then is still used today and it ‘has influenced subsequent legal efforts to define terrorism’ according to Saul (2006). However the League of Nations’ Treaty didn’t come into force as it (the League) was disbanded soon after.
But this early work hasn’t been wasted. Since 1963, according to the website of the United Nations under ‘UN Action to Counter-Terrorism’, the International Community has enacted 13 terrorism specific legal instruments as well as addition amendments to those instruments.
In 1994 the United Nations General Assembly developed a definition of terrorism as ‘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 consideration of a political, philosophical, ideological, racial, ethnic, religion or any other nature that may be invoked to justify them’.
However there still seems to be a general disharmony among the International Community with any current definition. Hoffman (1998 at p. 33) notes ‘terrorism is a pejorative term. It is a word with intrinsically negative connotations that is generally applied to one’s enemies and opponents, or to those with whom ones disagrees and would otherwise prefer to ignore’. It seems that the international representatives formed a similar view point.
Hoffman (1998 at p. 33) continues in saying ‘Hence the decision to call someone or label some organisation ‘terrorist’ becomes almost unavoidably subjective, depending largely upon whether one sympathizes with or opposes the person/group/cause concerned. If one identifies with the victim of the violence, for example, then the act is terrorism. If, however, one identified with the perpetrator, the violent act is regarded in a more sympathetic, if not positive, light; and it is not terrorism’.
In 2006 Hoffman explains this further (at pp. 28-30) ‘For this and for political reasons, many news sources, such as Reuters, avoid using the term, opting instead for less accusatory words like “bombers”, “militants”, etc’.
Perhaps a clearer understanding of the current definitional problems is explained by Saul (2008 at p.11) where ‘Terrorism currently lacks the precision, objectivity and certainty demanded by legal discourse. If the law is to admit the term, advance definition is essential on grounds of fairness, and it is not sufficient to leave the definition to the unilateral interpretations of States.’
Supporting this position is Carlos Diaz-Paniagua (2008 at p.41), who was involved in the United Nations Development Convention on International terrorism. Diaz-Paniagua agrees with the need to provide a definitive, lawful and acceptable definition to the term ‘terrorism’, in particular the need to categorise terrorism as a criminal offence subject to criminal law and prosecution in member States.
We can see from these readings that the term ‘terrorism’ itself causes problems to particular member States within the United Nations when seeking an agreed position on the definition of it. While most of the populations would disagree, there are obvious political trappings which exist whereby member States do not want to corner themselves into a position or legal definition that may become difficult to justify at some point in the future.
Burke (2004), an expert in radical Islamist activity, takes an interesting approach to this. He goes on to say ‘There are multiple ways of defining terrorism, and all are subjective. Most define terrorism as “the use or threat of serious violence” to advance some kind of “cause”. Some state clearly the kinds of groups (“sub-national”, “non-state”) or the cause (political, ideological, and religious) to which they refer’.
Burke continues ‘The term “war on terrorism” is thus effectively nonsensical. As there is no space here to explore this involved and difficult debate, my preference is, on the whole, for the less loaded term “Militancy”. This is not an attempt to condone such actions, merely to analyse them in a clearer way’.
Interestingly, Saul (2006 at p. 3) tends to agree. He says ‘Despite the shifting and contested meaning of “terrorism” over time, the peculiar semantic power of the term, beyond its literal signification, is its capacity to stigmatise, delegitimize, denigrate and dehumanise those at whom it is directed, including political opponents. The term is ideologically and politically loaded; pejorative; implies moral, social and value judgement; and is “slippery and much abused’. It is difficult to believe at this juncture that there is such difficulty with a definition such as terrorism.
The position offered by Saul and Burke, both of whom are internationally recognised scholars and advocates in their field must be read objectively. Perhaps it makes sense to take a fresh look at the term ‘terrorism’ and, for the sake of expediency and subsequent International agreement, seek to use another word such as ‘Militancy’ as Burke suggested.
Laqueur (2001 at p. xiii) also agrees that the term ‘terrorism’ needs to be replaced. He states, in the new 2001 introduction to his original 1997 work, ‘The term terrorism has come to encompass such wide varieties of violent acts that it should be replaced by another term. If this has not happened yet (as at 2001), the only reason is that no one so far has provided a better term, or terms, to replace it’.
Gardam (1993) was quite right in her assessment that it can become problematic and needs further clarification including perhaps a definitive answer on what terrorism is.
In an Australian context, Martyn (2002) when developing a position paper for the Australian Parliament in response to the attacks of September 11th, 2001, stated that ‘The international community has never succeeded in developing an accepted comprehensive definition of terrorism. During the 1970s and 1980s, the United Nations attempts to define the term floundered mainly due to differences of opinion between various members about the use of violence in the context of conflicts over national liberation and self-determination’.
Albeit slowly, the United Nations General Assembly has, since 2000, been working on a definitive description of the word ‘terrorism’ for agreement and use by its Member States. This definition has been under negotiation since 2002 and is yet to be ratified some 8 years later.
There are strong concerns however amongst some Member States as to whether the definition would become inclusive of the States Armed Forces and, further, what then is the difference between a ‘terrorist organization’ and a ‘liberation’?
Within the United States of America, each agency has developed their own definition of what terrorism is, according to a former U.S. Chief of Mission in Iraq, Edward Peck (2006).
In an interview made for the website, Democracy Now, Peck discussed the problems encountered by the U.S. Government when trying to design a definition. He stated, ‘In 1985, when I was the Deputy Director of the Reagan White House Task Force on Terrorism, they asked us—this is a Cabinet Task Force on Terrorism; I was the Deputy Director of the working group—they asked us to come up with a definition of terrorism that could be used throughout the government. We produced about six, and each and every case, they were rejected, because careful reading would indicate that our own country had been involved in some of those activities’.
He continues, ‘After the task force concluded its work, Congress got into it, and you can Google into U.S. Code Title 18, Section 2331, and read the U.S. definition of terrorism. And one of them in here says—one of the terms, “international terrorism,” means “activities that,” I quote, “appear to be intended to affect the conduct of a government by mass destruction, assassination or kidnapping.” Yes, well, certainly, you can think of a number of countries that have been involved in such activities. Ours is one of them. Israel is another. And so, the terrorist, of course, is in the eye of the beholder’.
Hoffman (2006 at p. 34) provides an excellent overview of the frustrations of scholars and experts on the solution to an agreement for the definition. He discusses the work of Alex Schmid stating, ‘In the first edition of his magisterial survey, “Political terrorism: A Research Guide,” Alex Schmid devoted more than a hundred pages to examining more than a hundred different definitions of terrorism in a effort to discover a broadly acceptable, reasonably comprehensive explication of the word. Four years and a second edition later, Schimd was no closer to the goal of his quest, conceding in the first sentence of the revised volume that the “search for an adequate definition is still on”. Walter Laqueur despaired of defining terrorism in both editions of his monumental work on the subject, maintaining that it is neither possible to do so nor worthwhile to make the attempt’.
Horgan (2005 at p.20) quotes Schmid who proposes that the term ‘terrorism’ be redefined to a ‘peacetime equivalent of war crimes’. Schmind, according to Horgan, goes further explaining that ‘a narrower definition may help us more than that of a bolder one’ and recommends ‘that we should seek to always define terrorism in terms of the methods used, allowing no room for rhetoric as a measure of legitimacy’.
We can see therefore that the agreement to an international definition of ‘terrorism’ is a slow, deliberate process, but with good reason. Care needs to be taken to ensure any definition captures the evil intent of terrorists while at the same time not condemning the uprising against dictatorships. The consequences of ‘getting it wrong’ are significant – politically and socially.
Having researched and read a great many of the suggested definitions, sometimes many times over, I believe in fact that we are close to defining the term ‘terrorism’. I believe that we, as an International community, have to understand that there will ultimately be dissenters on the definition and we need to accept that. The sectoral approach appears to be working in lieu of a decision on definition, but I feel this is only a temporary measure. Without an overarching, governance type definition of the word by the United Nations General Assembly and the Member States, including the European Union, we are fragmenting the term and losing the essence of what it means. Each country, in developing their own definition, is slightly eroding the thrust of the word itself and its real impact to the general community at large.
It would be presumptuious of me to attempt a definition when so many great men and women have tried before. That said, I have seen such similarities in these terms that, as I stated previously, I believe we are close to a resolution (notwithstanding the processes of a required agreement). So, perhaps we can say that terrorism is, according to my own definition (I see no problem in adding yet another one to the hundred or so already developed):
‘Any act, or intended act, of threat or actual violence, whether physical or psychological, committed on any persons or class of persons being innocent non-combatants, or on any place or thing, which is intended to cause harm, either real or imagined, and conducted by the offender or offenders under the auspices of any political, religious, economic, racial or ideological cause, shall be deemed an act of terrorism, unless other International laws apply’.
At the time of writing, we still await a decisive agreement on a definition by our international panels.
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