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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
(Continuation)
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). | 
