Thursday, 4 November 2010

Changing Facets of the Definition of International Terrorism

Violence is an integral part of human society. The annals of violence are records of assault and destruction of human life and property sometimes authorized and for justifiable reasons; often for mindless causes and goals. Recognising the tendency of mankind to not only indulge in individual violence but also perpetrate violence against other social structure as in the case of wars, international law recognised the need to lay down the codes for the conduct of such activities by nations.
Hugo Grotius, who is recognised as the father of international law lived during the Eighty Years War between Spain and the Netherlands and the Thirty Years War between Catholic and Protestant European nations. Grotius was intensely affected by the conflicts and wrote
Fully convinced ...that there is a common law among nations, which is valid alike for war and in war, I have had many and weighty reasons for undertaking to write upon the subject. Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes

Grotius published in 1625, three volumes De Jure Belli Ac Pacis Libri Tres (On the Law of War and Peace: Three Books) in which he set forth a system of principles of natural law which should be binding on all people and nations regardless of local customs . Book I contained his concepts of war and of natural justice, in which he set out that there are some circumstances in which war is justifiable. Book II identified three 'just causes' for war: self-defense, reparation of injury, and as punishment ; and his final Book III dealt with the rules which should govern the conduct of war once it has begun. Irrespective of whether their cause was just or not, Grotius argued that all parties to war are bound by such rules. The three books have had vast influence in the growth of international law concerning the conduct of nations in wars. However, it was not until much later that international community had to grapple with the concept of international terrorism and violence by non state actors who abhorred to abide by any rules, against persons beyond geographical limitations and causes that were not the direct concern of the victims and those.
The earliest indication of the acts of terrorism is from the Roman term terror cimbricus used to indicate panic and state of emergency during the raid by warriors in 105 B.C. The Jewish Sicarii used violence against their Roman masters in 70 A.D. and the Muslim Assassins used violence from the 8th to the 14th centuries yet terrorism did not evolve into a major concern for the world community until much later. In recent history the Russian, Nechayev who founded the Russian terrorist group People’s Retribution in 1869, used the term terrorist to describe him and invested the term with its modern connotation. During the early years of the growth of the phenomenon, most countries preferred to distinguish common criminal activities from terrorism and most acts that were identified as terrorism were revolutionary acts or acts of sedition.
The 19th century erupted into a period of intense terrorist activity. Most of these were conceived as revolutionary movements and they purported to address issues that concerned the local population and were often violent reactions to the regimes that were conceived as repressive. The imperialistic ambitions of the Western world and the avariciousness of these countries destroyed the economy, social and formal structures existing in the countries which they governed and led to the rise of several resistance movements. It was during such times that the adage one man’s terrorist, another man’s freedom fighter gained popularity. Initially, the attacks by such groups variously identified as revolutionaries, anarchists or resistance groups targeted the persons who were symbols of the repressive regimes they sought to destroy, replace or overthrow.
In 1894 an Italian anarchist assassinated French President Sadi Carnot. In 1897, anarchists fatally stabbed Empress Elizabeth of Austria and also killed Antonio Canovas the Spanish Prime Minister. In 1900, Umbreto I, the Italian king was the victim of another anarchist attack and in 1901 an American anarchist killed William McKinley, President of United States. Anti colonial movements gained momentum during the 19th century in the Asian and African countries and the freedom fighting movements were called terrorists by the ruling colonial powers and their governments. In the West, inspired by the writings of several reformist thinkers the ideas of equality and basic civil rights for all human beings, several organisations driven by leftist ideologies emerged. They saw themselves as champions of the underprivileged and the suppressed people. The Red Brigade in Italy, the Red Army faction and later the Baader Meinhoff in Germany , the Japanese Red Army, the Action Directe in France, all espoused violence as the only means to obtain their goal. Most of the members of these early leftist organisations that operated in the West were university students and youth dissatisfied with the political systems they lived under and when the leaders of the movements were killed or arrested the movements, too, died. By the 1970s the intellectual and heroic images that were superimposed on these movements finally dissipated.
Several other groups were founded on the concept of self determination for a group of people they considered to be deprived of their homeland and their right to exist as free people viz. the PLO in Palestine, the ETA in Spain, the IRA in UK, the Khalistan Movement in India and the LTTE in Sri Lanka are well known. The shared aims of these groups was political change and relocation of power ; however, with changing political scenes few of them lost their relevance and some of them disappeared when the countries they operated in chose to ruthlessly wipe them out. The organisations that fought for free homeland continued to do so as the countries from which they sought to secede did not accept their demands. Besides, the fundamental issues of their rights were not addressed by the regimes and the organisations often re invented themselves as newer organisations which were more ruthless than the previous ones.
The definitions of terrorism during the early years of international terrorism varied in each country; yet, the distinctive element present in each definition was that terrorism included all acts of violence or threatened violence that sought to sow panic in society with the intention of weakening or even overthrowing the incumbents and to bring about political change. However, it was not clear as to who could be designated a terrorist and who could be lauded as a true hero of a cause and this led to countries often supporting violent and armed organisations in another’s territory.
An early definition was by H.Arendt was that terrorism was
……… a form of exercising power by systematically provoking fear and alarm
Although the definition used the terms fear and alarm to describe the dread generated by acts of terrorism, it is clear that several facets of terrorism were not enunciated by the definition. This lacuna became more apparent when such a definition proved insufficient for the increased violence and the new forms of violence that technological sophistication spawned in the later years.
The historian Walter Laqueur observed
There is no such thing as pure, unalloyed, unchanging terrorism…. there are many forms of terrorism He further stated that although these many forms defy categorization it was possible to develop a working concept embracing common characteristics which would be acceptable to most nation.
William Casey states :
In confronting international l terrorism, the first step is to call things by their proper names, to see clearly and plainly who the terrorists are, what goals they seek, and which governments support them
With the increase of terrorist activity and the tendency of the terrorist organisations to employ more violent and ruthless methods there grew a need to expand the definition of terrorism. Therefore , one observes that the simplistic definitions of the early observers of the phenomenon of terrorism was replaced by definitions that sought not only to clarify what constituted a terrorists activity but also to expand the ambit if the definition to include several activities and accommodate the innovations that these actors of violence subscribed to.
Therefore, the US Department of Defense used this initial definition for terrorism
the unlawful use or threatened use of force or violence by a revolutionary organisation against individuals or property with the intention of coercing or intimidating governments or societies, often for political or ideological purposes ….
But it was expanded by the definition of the US Federal Bureau of Investigation as
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.
The State Department of the US defines terrorism as an premeditated act and added the term non combatants to mark the differentiation further
Premeditated politically motivated violence, perpetrated against non combatant targets by sub national groups or clandestine state agents, usually intended to influence the audience
The noticeable variation is the insertion of the element of state supported terrorism. Several countries funded and aided terrorist organisations in their activities with the intention of creating instability in nations hostile to them. Terrorist organisations thus became tools of proxy war between states , some states offering logistic support , training and provoding safe havens for the terrorists
In his book Preventing Nuclear Terrorism Yonah Alexander provides a more lengthy and comprehensive definition of terrorism as he seeks to include as many elements as he could into one single definition

Terrorism is the deliberate employment of violence or the threat of the use of violence by sub national groups and sovereign governments to attain strategic and political objectives. Terrorists seek to create overwhelming fear in a target population larger than the civilian or military victims attacked or threatened. Acts of individual and collective terrorism committed in modern times have introduced a new brand of extra legal “warfare” in terms of threats, technology, targets and impact
The international community quickly realised it would have to deal with international terrorism with three tools: international co operation, police forces and domestic legal systems. The assassination of King Alexander of Yugoslavia and Barthou led to France’s initiative with the League of Nations for the setting up of an international
criminal court to try those committing international crimes and for a convention aimed at a global anti-terrorist action. The committee of League of Nations drew up the Convention for the Prevention of Terrorism but only 24 nations ratified it.
Article 1 of the Convention defined terrorism as “criminal acts directed against a State intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public”.
Article 2 enumerated the acts among which were death, grievous harm or loss of liberty to Heads of States, their spouses, and persons holding public offices or positions; wilful destruction or damage to public property belonging to the State; wilful act calculated to endanger the lives of the public and the manufacture, possession, or supply of arms, ammunitions, explosives with a view to commit such acts or any attempt to commit these acts. This Convention never came into effect because of the outbreak of World War II and the dissolution of the League of Nations. Although in 1976, the United Nations desired to draw a comprehensive convention to deal with international terrorism division and differences among nations with the definition of terrorism and the scope of the convention forced it to be satisfied with several conventions that tackled the different aspects of terrorism such as hijacking, hostage-taking, kidnapping of internationally protected persons such as diplomats etc. In response to the increase in terrorist activities , the international community responded by various conventions which underlined the fact that most of the nations were not only victims of international terrorism but were willing to co operate with each other to stymie the scourge that was sweeping across the globe. These conventions were instruments of understanding that emphasised the need for nations to come together so that terrorist activity could be curtailed.
The various Conventions that came into force contain definitions of what are envisaged under those conventions as acts of terrorism. The conventions are the concerted acts of the international community after every major act of terrorism and therefore contain in their clauses as what is under that particular convention are designated as an act of terrorism.
1. 1963 Convention on Offences and Certain Other Acts Committed On Board Aircraft (Aircraft Convention) - This Convention also known as the Tokyo Convention applies to acts affecting in-flight safety.
2. 1970 Convention for the Suppression of Unlawful Seizure of Aircraft (Unlawful Seizure) Convention- This Convention also known as the Hague Convention requires parties to the convention to make hijackings punishable by severe penalties and requires parties that have custody of offenders to either extradite the offender or submit the case for prosecution
3. 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Civil Aviation Convention) – This Convention also known as the Montreal Convention requires parties to the convention to make offences punishable by severe penalties and requires parties that have custody of offenders to either extradite the offender or submit the case for prosecution.
4. 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (Diplomatic Agents Convention) – This
Convention defines an "internationally protected person" as a Head of State, Minister for Foreign Affairs, representative or official of a State or international organization who is entitled to special protection in a foreign State and requires parties to the convention to criminalize and make punishable intentional murder, kidnapping or other attacks upon the person or liberty of an internationally protected person or upon the official premises, private accommodations, or transport of such person.
5. 1979 International Convention against the Taking of Hostages (Hostages Convention) This Convention provides that any person who seizes or detains and threatens to kill, or to injure persons in order to compel a third party, namely, a State, an international intergovernmental organization or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostage
6. 1980 Convention on the Physical Protection of Nuclear Material (Nuclear Materials Convention) -This Convention also known as the Vienna Convention criminalizes the unlawful possession, use, transfer or theft of nuclear material and threats to use nuclear material to cause death, serious injury or substantial property damage.
Amendments to the Convention on the Physical Protection of Nuclear Material make it legally binding for Parties to protect nuclear facilities and material in peaceful domestic use and for expanded cooperation between States regarding rapid
measures to locate and recover stolen or smuggled nuclear material and mitigate any radiological consequences or sabotage.
7. 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Maritime Convention) This Convention establishes a legal regime applicable to acts against international maritime navigation that is similar to the regimes established for international aviation; and makes it an offence to seize or exercise control over a ship by force, threat, or intimidation or to perform any act which is likely to endanger the safety of ships.
A 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Extends and supplements the Montreal Convention on Air Safety) (Airport Protocol) extends the provisions of the Montreal Convention (see No. 3 above) to encompass terrorist acts at airports serving international civil aviation.
8. 1988 Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf (Fixed Platform Protocol) – This Convention establishes a legal regime applicable to acts against fixed platforms on the continental shelf that is similar to the regimes established against international aviation.
9. 1991 Convention on the Marking of Plastic Explosives for the Purpose of Detection (Plastic Explosives Convention) – This Convention also known as the Montreal Convention was designed to control and limit the use of unmarked and
undetectable plastic explosives. It was negotiated in the aftermath of the 1988 Pan Am flight 103 bombing. Parties to the convention were to take necessary and effective measures to prohibit and prevent the manufacture of unmarked plastic explosives; control the movement of unmarked plastic explosives into or out of its territory and exercise strict and effective control over possession and transfer of unmarked explosives.
10. 1997 International Convention for the Suppression of Terrorist Bombings (Terrorist Bombing Convention) – This Convention creates a regime of universal jurisdiction over the unlawful and intentional use of explosives and other lethal devices in, into, or against various defined public places with intent to kill or cause serious bodily injury, or with intent to cause extensive destruction of the public place.
11. 1999 International Convention for the Suppression of the Financing of Terrorism (Terrorist Financing Convention) –This Convention requires parties to take steps to prevent and counteract the financing of terrorists, whether direct or indirect, through groups claiming to have charitable, social or cultural goals and provides for the identification, freezing and seizure of funds allocated for terrorist activities. It is important to note that Bank secrecy is no longer adequate justification for refusing to cooperate.
12. 2005 International Convention for the Suppression of Acts of Nuclear Terrorism (Nuclear Terrorism Convention) – This Convention covers a broad range of acts and possible targets, including nuclear power plants and nuclear reactors and States should cooperate in preventing terrorist attacks by sharing information and assisting each other in connection with criminal investigations and extradition proceedings. This Convention came into force on July 2007 after the ratification by Bangladesh, the 22nd state to do so.
A 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation - criminalizes the use of a ship as a device to further an act of terrorism and criminalizes the transport on board a ship persons or various materials knowing that they are intended to be used to further an act of terrorism and introduces procedures for governing the boarding of a ship believed to have committed an offence under the Convention.

In the contemporary context there is a bewildering multiplicity of terrorist and potentially terrorist group and sects. In the early 1900s the terrorists as mentioned earlier were nationalists, anarchists and extremists with right or left leanings. A new age of terrorism was ushered in bringing with it new inspiration for the users of violence .Terrorists’ motivations, their strategy and weapons underwent changes. The anarchists and the left-wing groups like the Red Army and their counterparts that operated in Germany, Italy and Japan in the 1970s vanished; international and domestic terrorist can no longer be identified as left or right as it is replaced by the ethnic separatist. The terrorists with ethnic separatist goals have developed power
from public supporters and are more powerful than the ideologically motivated groups that had existed earlier. They claim to be the guardians of the aspirations of those people for whose freedom they are fighting e.g. the Muslim Brotherhood, the Palestinian Hamas, The Irish Republican Army(IRA) ,the Kurdish extremists in Turkey and Iraq, the Tamil Tigers (LTTE) of Sri Lanka , the Basque Homeland and Liberty (ETA) movement in Spain.
With the emergence of ethnic separatist groups another significant ethos has developed .All these groups have political as well as terrorist wings from their inception. The political arm provides social services and education, runs legitimate business and even contests elections; the “military wing” on the other hand, is engaged in extortion, kidnappings, bombings and assassinations. The division of labour of the wings was done to enable the political leadership to publicly disassociate themselves when the violent terrorist activity is carried out by its military wing. This also enables the political wing to condemn the particularly outrageous acts that do not have public support and distance itself when something goes terribly wrong by claiming lack of control. Sometimes the armed wings do indeed become more independent and the men and women with guns and bombs often lose sight of the movement’s wider aim.
In the process of evolution of terrorism another important transformation has taken place: the terrorist organisations have moved up the scale of damage to ensure more deaths and horror: indiscriminate bombings in public places have greater impact than kidnapping or killing prominent individuals. The bombs in malls, markets, trains and subways which result in the death of innocent civilians evoke more reactions than the assassination of prominent men and women. Besides the developments in information dissemination has ensured them of greater media coverage. The ruthlessness of the terrorist organisations has grown in proportion to the media exposure their activities have received. The heightened activity raised alarm in the international community and the need to come together to deal with the menace was strongly felt by the members of the international community.
Following the horrific attack on the World Trade Centre, New York on Sept 11, 2001 the United States hitherto immune to international terrorism altered its approach and worked with greater impetus to achieve global consensus to counter terrorism. The United States after the 9/11 attacks , passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law Pub.L. 107-56) known as the Patriot Act and a host of other legislations and executive orders to deal with terrorism. Title VIII of the Patriot Act altered the definitions of terrorism, and re-defined the rules with which to deal with terrorism. The term "domestic terrorism” included mass destruction along with assassinations or kidnappings as terrorist activity. The definition also included activities that are "dangerous to human life that are a violation of the criminal laws of the United States or of any State" and acts that were intended to "intimidate or coerce a civilian population," "influence the policy of a government by intimidation or coercion," or undertaken "to affect the conduct of a government by mass destruction, assassination, or kidnapping”. Racketeering and cyber-terrorism were also redefined in the Act. The law enforcement agencies were given more powers under the Act to search telephone, e-mail communications, medical, financial, and other records. Section 505 of the Patriot Act expanded the use of the National Security Letter ( an administrative subpoena) allowing it to be used in scrutiny of US residents, visitors, or US citizens who are not suspects in any criminal investigation. It also granted the privilege to other federal agencies, presumably to allow the department of Homeland Security the same ability to use NSLs.
The United States Department of Homeland Security was set up to co ordinate anti terrorism activities.The US also initiated several multi lateral initiatives like the Container Security Initiative (CSI) in 2002 to use intelligence to identify and target containers that may contain materials that pose the risk of terrorism and the Proliferation Security Initiative (PSI) in 2003 to prevent the transfer of banned weapons and weapons technology. The PSI is primarily focused on combating proliferation of nuclear, chemical, and biological weapons and materials and to curb the movement of arms and other forms of weapons to terrorist organisations.
In the UK, The Anti-terrorism, Crime and Security Act 2001 was formally introduced into the Parliament in November 2001 two months after the September 11, 2001 attacks in America. It received royal assent and went into force in December 2001. The Terrorism Act 2006 was drafted in the aftermath of the 7th July 2005 London bombings and created new offences related to terrorism, and amended existing ones. In India, The Terrorist and Disruptive Activities (Prevention) Act, commonly known as TADA, was an Indian law active between 1985 and 1995 (modified in 1987) for the
prevention of terrorist activities in Punjab. It was renewed in 1989, 1991 and 1993 before being allowed to lapse in 1995 due to increasing unpopularity due to widespread allegations of abuse.
The Act defines terrorism as:
"Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act."
The Prevention of Terrorist Activities Act (POTA) was enacted by the Parliament of India in 2002 replacing the Prevention of Terrorism Ordinance (POTO) of 2001 and the Terrorist and Disruptive Activities (Prevention) Act (1985-95. The Act was later repealed in 2004. The Act provided the legal framework to strengthen administrative rights to fight terrorism within the country of India and was to be applied against any persons and acts covered by the provisions within the act. It was not meant as a substitute for action under ordinary criminal laws. The Act also defined what is a terrorist act and who is a terrorist.
The dilemma in democratic nations upholding civil liberties regarding an act of terrorism within such a state is caused by the predicament whether to maintain its civil liberties and thus risk being perceived as ineffective in dealing with the problem or to restrict its civil liberties and thus undermine the fundamental freedoms of its citizens. In some way this could also fulfill the aim of the terrorists by confirming their allegations regarding the legitimacy of the state activities.
In his book "Inside Terrorism" Bruce Hoffman wrote in the first chapter about defining terrorism
"On one point, at least, everyone agrees: 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 one disagrees and would otherwise prefer to ignore. 'What is called terrorism,'
Brian Jenkins has written, `'thus seems to depend on one's point of view. Use of the term implies a moral judgment; and if one party can successfully attach the label terrorist to its opponent, then it has indirectly persuaded others to adopt its moral viewpoint.' Hence the decision to call someone or label some organization `terrorist' becomes almost unavoidably subjective, depending largely on 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 identifies with the perpetrator, the violent act is regarded in a more sympathetic, if not positive (or, at the worst, an ambivalent) light; and it is not terrorism

It is apparent therefore, the more one clarifies and expands the definition of terrorism the more one gets into the quagmire but it needs to be stressed that although it is indeed difficult to find a comprehensive and all encompassing definition for terrorism the working definitions that have been adopted by the states within their domestic legislations and the international community in the various conventions and multi lateral agreements and initiatives are indeed sufficient to identify and deal with the ugly phenomenon.

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