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Sunday, October 6, 2002

 

Terrorism: towards a legal definition (II)

By Soliman M. Santos Jr.

AS REGARDS the dilemma between terrorism and national liberation movements (which have the international legal right to use force in the exercise of their people’s right of self-determination against colonial domination, alien occupation or racist regimes), Koechler explains:  “Through such a comprehensive codification effort it could be made clear that resistance or national liberation movements must in no way resort to terrorist tactics and that a (politically eventually legitimate) aim does not necessarily justify the means (or any means for that matter).  In the general framework of a unified system of international humanitarian law, terrorist methods will be punishable irrespective of the specific political purpose and irrespective of whether those acts are committed by liberation movements or regular armies.”

In other words, as a rule, no national liberation movement or rebel group should be a priori exempted or condemned of culpability for terrorism by mere reason of its status as national liberation movement or rebel group.  Each and every act in question of the organization must be examined on a case-to-case basis whether it qualifies as a terrorist act.  As an exception, only if there is a clear and consistent pattern, plan or policy (in short, something systematic) of terrorist acts or methods by the organization would it be justified to designate it as a “terrorist organization.”  One terrorist act does not necessarily make a terrorist organization, unless the act is based on a policy of employing terrorist acts (for example, a policy of suicide-bombing targeting innocent civilians, or a policy of reprisal aerial bombing or artillery/tank shelling targeting the civilian mass base of the enemy).

IHL itself uses the term “terrorism,” “acts of terrorism,” “measures … of terrorism,” and “terror.”  So there should not be any shying away from these terms.  Rather, IHL may yet help establish a precise and legally sound definition of terrorism to obviate its being used as a political weapon by vested powers.  The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of Aug. 12, 1949, Article 33 makes reference to “measures … of terrorism.”  The 1977 Additional Protocol II Relating to the Protection of Victims of Non-International Armed Conflicts, Article 4, paragraph 2(d) makes reference to “acts of terrorism.”

But it is the 1977 Additional Protocol I Relating to the Protection of Victims of International Armed Conflicts, Article 51, paragraph 2 and the identical Article 13, paragraph 2 of Protocol II which may be said to elaborate on the term “terrorism” and thus provide a core legal framework for a definition of terrorism.  The said identical provisions for both international and non-international armed conflicts read as follows:

“The civilian population as such, as well as individual civilians, shall not be the object of attack.  Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”

From this provision for situations of armed conflict, one can draw some elements for a legal definition of terrorism in peacetime:

a. making civilians the object of attack (deliberately targeting civilians)

b. acts or threats of violence or use of weapons

c. primary purpose of spreading terror or extreme fear among the civilian population

Of course, we should add two elements from the Arend and Beck concept of terrorist act:

d. political or even quasi-political objective (to distinguish it from criminal madness)

e. intended audience (not necessarily the target civilians).

But the most important element is still the civilian target.  Malaysia’s definition of terrorism at the OIC Special Session shifts the defining element to the target rather than the source of the violence.  Stated otherwise, it is seeing terror from the victim’s point of view.  Of course, aside from the deliberate targeting of the civilian population and individual civilians, there can also be deliberate targeting of civilian objects or infrastructure to spread terror among the civilian population.

The element of spreading terror is also important as a distinguishing feature, if not the very essence, of terrorism.  Thus, the ILC’s 1991 Draft Code of Crimes against the Peace and Security of Mankind defines international terrorism as “undertaking, organizing, assisting, financing, encouraging or tolerating acts [by an agent of a State] against another State directed at persons or property and of such a nature as to create a state of terror in the minds of public figures, groups of persons or the general public … ” (italics supplied)  Understandably, this definition, from the viewpoint of states, does not limit itself to civilian targets.

Some writers emphasize coercion to force the granting of political demands.  But this is not always the case.  In many cases, the act of terrorism is just a political statement without any demands.  Sept. 11 was certainly in that mold.  One aspect of intended audience is the accompanying publicity, considered an essential factor in terrorist strategy. 

Putting everything together now, one might come up with this core legal definition of terrorism:  the systematic employment by states, groups or individuals of acts or threats of violence or use of weapons deliberately targeting the civilian population, individuals or infrastructure for the primary purpose of spreading terror or extreme fear among the civilian population in relation to some political or quasi-political objective and undertaken with an intended audience.

The sooner we achieve a precise and legally sound definition of terrorism, the better for the international community to act on the issue of terrorism.  Only with adherence to the international rule of law can we hope for no more Sept. 11s and other acts of terrorism.  Let’s roll with the rule of law, not the role of force.


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).

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