Accommodating terrorism an offence against the law of nations
In Part III, the article turns to assess the coterie of United Nations conventions adopted since the 1960s.
By criminalising specific terrorist activities including hijacking, hostage-taking, bombing, and terrorist financing, these conventions have avoided difficult questions as to the quintessence of terrorism, and instead have sought to suppress particular types of terrorist violence.
However, while it seems essential to refer to a motivation to intimidate or terrorise a population or government to distinguish terrorist activities from ordinary criminal activities, this in turn raises the problem of ‘catch[ing] all acts intended to terrorize any government, anywhere, without exception – thereby setting the stage for some states to insist on including specific exceptions for national liberation movements’. The Convention for the Prevention and Punishment of Terrorism (‘1937 Convention’), drafted under the auspices of the League of Nations following the assassination of King Alexander I of Yugoslavia in Marseilles, represents the first attempt to elaborate a treaty-based definition of terrorism.
The 1937 Convention sought to proscribe acts of terrorism that had an ‘international character’, and was mainly directed at protecting senior government officials. Article 1(2) of the 1937 Convention defined terrorist acts as those ‘criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public’. Only India ratified the instrument, and many states refrained from supporting the Convention because of the wide definition adopted in art 1.
Moreover, the potential for terrorist organisations to deploy weapons of mass destruction cannot be ignored. However, despite widespread awareness and acceptance of the necessity for developing a comprehensive response to terrorism in international criminal law, attempts to realise this objective have been beset by a greater degree of controversy than virtually all other areas of international law-making.
In particular, there remains ongoing disagreement over a general definition of terrorism that could form the basis of a comprehensive counter-terrorism convention.
Against this background, Parts IV and V offer some reflections on the extent to which the UN Security Council and the International Criminal Court may be utilised to overcome such limitations and thereby enhance the effectiveness of international counter-terrorism law.
As explained by Devika Hovell in her contribution to this thematic issue, international legal principles relating to the use of armed force have been relied upon by states in limited circumstances to justify military action in response to terrorist attacks. However, such responses remain highly exceptional and of questionable long-term effectiveness. Instead, a variety of alternative non-military strategies constitute the chief methods for suppressing terrorism.
These include (a) economic sanctions against terrorists or states which support or condone their activities; (b) civil litigation; (c) covert action; and (d) criminal law enforcement. It is this last strategy, and specifically the efforts to develop international legal mechanisms to enhance the criminalisation of terrorism and the apprehension, prosecution, and punishment of terrorists, that is the focus of this article.
The obvious difficulty with the notion of terrorism as expressed in this way is that it is very broad and leaves much unsaid.
It can embrace a very wide variety of discrepant activities, including behaviour that would otherwise be regarded as ordinary criminal activity. Beyond the proposition that civilians should under no circumstances be the targets of violence, no international consensus has yet been reached that all acts of politically-motivated violence generative of fear and anxiety should be characterised as acts of terrorism.