The Manila Times



Saturday, October 5, 2002


Terrorism: Toward a legal definition

By Soliman M. Santos Jr.

SEPT. 11 has brought to the fore the issue of international terrorism and with it the question of its very definition.  The International Progress Organization (IPO), in The Baku Declaration on Global Dialogue and Peaceful Co-Existence Among Nations and the Threats Posed by International Terrorism of Nov. 9, 2001, said:  “The United Nations Organization should urgently convene an international conference with the aim of establishing a precise and legally sound definition of terrorism.  Unless this effort at codification is undertaken, the term ‘terrorism’ will continue to serve only as a tool to justify brute power politics and obfuscate the superpower policy of double standards.”

A Comprehensive Convention on International Terrorism, including a definition of terrorism, has so far been elusive in the UN.  This has been attributed, among others, to “diverging political interests and contradicting normative perceptions” especially between Islamic states and Western states.  This despite the fact that the UN has 12 existing multilateral conventions on terrorism.

But none of these 12 conventions has a generally accepted single inclusive definition of terrorism.  International Law Commission (ILC) member Raul I. Goco of the Philippines points out that each of these conventions, which relates to various aspects of the problem, describes only the particular or specific acts or subject-matter covered by it. These are aircraft hijacking and sabotage, crimes against internationally protected persons including diplomatic agents, hostage-taking, physical protection of nuclear material, airport violence, acts against maritime navigation safety, acts against the safety of fixed platforms on the continental shelf, terrorist bombings, and terrorist financing — so far.

American professors Anthony Clark Arend and Robert J. Beck, in their book International Law and the Use of Force:  Beyond the UN Charter Paradigm (1993), note that a 1983 study by Dutch political scientist Alex Schmid found that 109 definitions of terrorism have been advanced between 1936 and 1981.  More have appeared since then, including at least six from the US government.  Thus, one Professor Levitt said that the search for an authoritative definition “in some ways resembles the Quest for the Holy Grail.”  Given the confusion, some legal scholars have advocated simply dropping the use of the term.

This is why some human rights groups like Amnesty International do not use the term “terrorism.” They say that in practice it is used to describe quite different conduct.  States describe acts or political motivations that they oppose as “terrorist,” while rejecting the use of the term when it relates to activities or causes they support.

“Unfortunately,” say Arend and Beck, “the problematic term ‘terrorism’ like the complicated phenomenon it seeks to describe, will almost certainly persist.”  Not to engage in a struggle of definition, however, is to lose by default to the hegemony of definition by the vested powers behind the current “global war against terrorism.”

Fortunately, some insightful thoughts in recent years might help shorten this quest. Arend and Beck themselves proposed “a working definition, one which characterizes both the terrorist act and the terrorist actor” rather than terrorism. They said a terrorist act is distinguished by at least three specific qualities:

a. violence, whether actual or threatened;

b. a “political” objective, however conceived; and

c. an intended audience, typically though not exclusively  a wide one.

Hence, Arend and Beck define an “act of terrorism” as “the threat or use of violence with the intent of causing fear in a target group, in order to achieve political objectives.”  A more sophisticated version of this definition is “the threat or actual use of violence to create extreme fear or anxiety in a target group in order to coerce it to meet certain political or quasi-political objectives.”

As for terrorist actors, whether individuals or groups, Arend and Beck categorized them by the strength of their association to states:

a. those without state toleration, support or sponsorship;

b. those with state toleration, but without state support or sponsorship;

c. those with state support, but without immediate state sponsorship;

d. those with state sponsorship.

To this we might add “those which are states.”  As has been noted, states are just as capable of committing terrorist acts as are non-state armed groups.

But Nicholas Howen, the new Regional Director for Asia-Pacific of the Office of the UN High Commissioner on Human Rights, in a paper for the International Council on Human Rights Policy in January 2002, says “The problem in the UN is that states focus too much on who could be labeled a terrorist rather than what a terrorist act looks like … States could perhaps agree on a definition of terrorism if they limited it to attacks, aimed at civilians, that spread terror.  This would in effect apply to peacetime the existing prohibitions in international humanitarian law of attacks on civilians during armed conflicts.”  The elements of targeting civilians as well as spreading terror are what are missing in the Arend and Beck definition of terrorism.

The idea that international humanitarian law (IHL) “can provide guidance to the legal approach to terrorism in peacetime” was first broached by the long-time editor of the International Review of the Red Cross Hans-Peter Gasser as early as 1985 in a paper entitled “Prohibition of terrorist acts in international humanitarian law.”  And then Schmid in his 1992 report to the UN Crime Prevention Office suggested considering an act of terrorism as “peacetime equivalent of a war crime.”

And so, UN Secretary-General Kofi Annan, in his addresses to the General Assembly on Oct. 1, 2001 and to the Security Council on Nov. 12, 2001, while acknowledging the definition of terrorism as one of the most difficult issues before the UN, nevertheless referred to IHL according to which “even in situations of armed conflict, the targeting of innocent civilians is illegal.”  Austrian Professor Hans Koechler, in his Fourteenth Centenary Lecture at the Philippine Supreme Court on March 12, 2002, refers to this allusion to IHL as “a useful hint as to how to bridge the gap between the opposing schools of thought concerning the definition of terrorism as a crime.”

Koechler then proposes what he calls a comprehensive or unified approach:  In a universal and at the same time unified system of norms — ideally to be created as an extension of existing legal instru­ments, there should be corres­ponding sets of rules (a) penalizing deliberate attacks on civilians or civilian infrastructure in wartime (as covered by the Geneva Conven­tions), and (b) penalizing deliberate attacks on civilians in peacetime (covered by the 12 so far anti-terrorist conventions).  He says “Such a harmonization of the basic legal rules related to politically motivated violent acts against civilians would make it legally consistent also to include the term ‘state terrorism’ in the general definition of terrorism.”

-- Kaiba News and Features


The author is a Bicolano lawyer, pea­ce advocate and legal scholar.  He is the author of two recent books, The Moro Islamic Challenge: Constitu­tional Rethinking for the Mindanao Peace Process (University of the Philippines Press, 2001) and Peace Advocate: 50 Selected Writings, 1986-1997 (De La Salle University Press, 2002).