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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).
Kaiba
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