Ben Saul1
International Terrorism as a
European Crime: The Policy
Rationale for Criminalization
Following the 11 September 2001 terrorist attacks on the United States, military responses
have become entrenched as the international community's preferred response to terrorist
activity. Law enforcement and criminal justice responses have taken a back seat in the
global 'war on terror', beginning with the pursuit of Al-Qaeda and the ousting of the Taliban
in Afghanistan in 2002, through to targeted assassinations of suspected terrorists in Yemen in
November 2002 and the invasion of Iraq in March 2003. States such as China, Israel and Russia
have taken advantage of this shift by characterizing various forms of domestic political
opposition as terroristic and reacting with military force.
One consequence of the proliferation of military responses has been a failure by the
international community to fix an appropriate and durable boundary between military and
criminal justice responses to terrorist activity. It may well be legally difficult to determine
when a terrorist act crosses the threshold of an armed attack, thereby authorizing the use of
force in self-defence. Under the law of armed conflict, such a determination will depend on the
nature and scale of the attack and whether self-defence is a necessary and proportionate
response. Attribution of terrorist acts to a State may also be problematic, and the use of
force in self-defence against non-State actors which are not controlled by a State is legally
uncertain. While the boundary between law enforcement and the use of military force will
always be ill-defined and shifting, the boundary is still essential in minimizing recourse to
violence in international relations.
After 11 September, the Security Council resolved that 'any' act of international terrorism
constitutes a threat to international peace and security.2 The designation of any international
terrorist act as a threat is significant because previously the Council had only found that such
acts 'may' or 'could' threaten peace and security,3 thus reserving to itself the discretion to
characterize some terrorist acts as international threats and others as not so serious. The
hardening of the Council's attitude reflects the general international shift towards
militarized responses to terrorism, although
1.BA(Hons) LLB(Hons) (Syd), DPhil Candidate and Tutor in International Law, University of Oxford.
2.UNSC Res. 1368 (2001), para. 1.
3.See, for example, UNSC Res. 1269 (1999), para. 1.
the Council did not expressly authorize the use of force against terrorism even after 11
September.
Of the non-military international responses to terrorism after 11 September, the most
prominent are the various financial restrictions imposed on terrorist organizations, including
the freezing and confiscation of assets. These controls are the primary mandate of the
Security Council's Counter-Terrorism Committee, established in Resolution 1373.4 Yet that
resolution also required States to establish terrorist acts as serious criminal offences in domestic
law, and to ensure that punishment duly reflects the seriousness of such acts.5 The resolution
did not, however, contain any definition of terrorism, with the consequence that it conferred a
wide discretion on States to unilaterally define the nature and scope of terrorist offences. The
resolution also reflects an arrogation of general legislative power by the Security Council,
compelling States to adopt criminal laws of general effect and not connected to any
particular threat to international peace or security.
As State reports to the Committee show, some States have since availed themselves of
this broad legislative license to unilaterally define terrorism, establishing special terrorist
offences in their criminal laws. Until recently, few domestic legal systems punished
specifically 'terrorist offences'. Terrorist activities were typically dealt with by resort to
ordinary offences such as murder or assault, supplemented by sector-specific offences
incorporated from the twelve international anti-terrorism conventions.
Commonly, where States did have existing anti-terrorism laws, such laws did not create
criminal law offences but were administrative constructs for jurisdictional, budgetary or
administrative purposes.6 Any definitions of terrorism in such laws did not usually 'serve as a
legal term of art upon which liberty depends'.7 Such laws provide for a variety of procedural
measures, including 'special means and methods of investigations, different standards of proof,
and increased penalties', as well as for the 'forfeiture of property or funds, seizure of assets, the
supervision of personal movement and other measures of personal control, evidentiary rules, and
investigative and pros-ecutorial techniques'.8
Reference to terrorism in national law may also trigger emergency laws, permitting the
derogation or suspension of rights arising under human rights law, constitutional law or national
criminal procedure.9 In immigration law, definitions of terrorism may permit non-citizens
suspected of terrorist activities to be indefinitely detained in circumstances where deportation
is not possible.10 There has also been a drift towards the automatic exclusion of terrorists from
refugee status, even though terrorist offences
4.UNSC Res. 1373 (2001), para. l(a)-(d).
5.UNSC Res. 1373 (2001), para. 2(e).
6.C. Walker, Blackstone's Guide to the Anti-Terrorism Legislation (Oxford 2002) p. 21.
7.C. Walker, op. cit.
8.M.C. Bassiouni, 'Effective National and International Action against Organized Crime and Terrorist
Criminal Activities', 4 Emory International Law Review (1990) p. 9 at p. 26.
9.M.C. Bassiouni, loc. cit., p. 27.
10.Anti-Terrorism, Crime and Security Act 2001 (UK), ss. 21-33; A v. Secretary of State for the Home
Department [2002] EWCA Civ 1502, (2002) 99(46) LSG 33, (2002) 146 SJLB 246. For instance, as
a result of the international prohibition on returning a person to a place of torture.
have not been defined and may not always amount to serious crimes within the meaning of
refugee law.11
Because of the focus on military and financial responses to terrorism, recent criminal law
initiatives have passed with relatively little public or critical attention. There have been
well-known disputes about the treatment and human rights entitlements of terrorist suspects
detained by the US in Guantanamo Bay, Cuba, particularly in relation to the right to a fair trial
and proper criminal procedure before proposed military commissions. There have also been
questions raised about precisely which charges, other than existing ordinary criminal
offences, could be brought against 'terrorists'.
Nevertheless, the long-running and historically intractable debate about the international
legal definition of 'terrorist' offences has receded into the background, at least in mainstream
political debate. This is somewhat surprising, given that two multilateral efforts to define
terrorism have made significant normative progress in defining terrorism in recent years. It is
also of concern, because in the absence of a definition, States may rhetorically designate
their opponents as terrorists in order to delegitimize them or their causes - when such persons
really do not fall within the parameters of the most commonly shared conceptions of
terrorism.
At the international level, since 2000 the UN General Assembly's Sixth Legal Committee
has continued to negotiate a draft comprehensive anti-terrorism convention, which proposes a
generic definition of terrorist offences beyond existing, sector-specific anti-terrorism treaties.
By February 2002, substantive agreement had been reached on most of its provisions.12 The
key disputes remaining are whether the convention should exclude the activities of the
'parties' - as opposed to 'armed forces' - during an armed conflict; whether the treaty should
apply to situations of 'foreign occupation' in addition to 'armed conflict'; and whether military
forces exercising their official duties are excluded from the convention if they are merely
'governed' by international law or required to be 'in conformity' with it. The relationship
between the Convention and the existing specific anti-terrorism treaties is also undecided.
At the regional level, the most startling development has been the Council of the European
Union's Framework Decision on Combating Terrorism, adopted on 13 June
11.See European Council on Refugees and Exiles (ECRE), 'Comments on the Commission Working
Document on the relationship between safeguarding internal security and complying with interna
tional protection obligations and instruments' (London 2002); UNHCR, (Department of International
Protection). 'Preliminary Observations: European Commission Proposal for a Council Framework
Decision on Combating Terrorism' (Geneva 2001), para. 2.
12.The most recent draft definitions of terrorist offences appear as informal texts prepared by the Co
ordinator of the Sixth Committee Working Group ('Draft UN Comprehensive Convention'): UNGA,
Reports of the Ad Hoc Committee established by UNGA Res. 51/210 (17 December 1996): 4th Session
(2000), UN Doc. Supp. No. 37 (A/55/37); 5th Session (2001) UN Doc. Supp. No. 37 (A/56/37); 6th
Session (2002), UN Doc. Supp. 37 (A/57/37); UNGA (Sixth Committee), Report of the Working Group
on Measures to Eliminate International Terrorism, 16 October 2002, UN Doc. A/C.6/57/L.9. See
also UNGA (56th Session) Sixth Committee, Report of the Working Group on Measures to Eliminate
International Terrorism (29 Oct. 2001), UN Doc A/C.6/56/L.9, Annex I, p. 16.
2002 and entering into force on 22 June 2002 ('Framework Decision').13 The Framework
Decision defines 'terrorist offences' to facilitate the creation of a common European warrant for
arrest and extradition and to enable the mutual recognition of legal decisions and verdicts
among Member States.14 It requires the approximation of the domestic criminal laws of
Member States in relation to the establishment of terrorist offences by 31 December 2002.15 The
Framework Decision is startling because it framed a generic criminal definition of terrorist
offences in Europe within a period of around three months, whereas since the attempt by the
League of Nations to define terrorism in 1937, the international and European communities
had been unable to achieve consensus on a definition.
The definition of terrorism in the EU Framework Decision has been considered
elsewhere.16 Indeed much of the international legal debate on terrorism in the past has
focused on the question of definition, rather than on the underlying policy question of why or
whether terrorism should be criminalized. Since most terrorist acts are already punishable as
ordinary criminal offences in most national legal systems, it is vital to understand and articulate
why certain acts should be treated or classified as terrorist offences rather than as ordinary
criminal acts such as murder, assault or arson.
Consequently, this article focuses on the policy rationales put forward for the EU
Framework Decision and the Draft UN Comprehensive Convention. Both the EU Decision
and the Draft UN Comprehensive Convention signal an intention to supplement existing
international legal controls with the new alternative of criminal prosecution of terrorist acts as
terrorism per se. Treating terrorism as a separate category of unlawful activity expresses a
deliberate desire by the international and European communities to morally condemn terrorism
as an especially egregious form of criminal conduct, beyond its ordinary criminal
characteristics.
This article proposes that the basis of international criminalization is that terrorism severely
undermines (1) individual human rights, (2) the State and the political process, and (3) the
stability of international relations. Criminalization expresses the international community's
outrage at and condemnation of acts of international terrorism, morally stigmatizing terrorist
offenders and hopefully deterring potential offenders.
13.EU Council, Framework Decision on Combating Terrorism (2002/475/JHA), 13 June 2002, Official
Journal LI64/3, 22 June 2002. The Framework Decision was based on a Proposal issued by the
Commission of the European Communities on 19 September 2001 ('Commission Proposal'): European
Commission, Proposal for a Council Framework Decision on Combating Terrorism, Brussels, 19
September 2001, COM(2001) 521 Final, 2001/0217 (CNS), 17-18. The Council adopted the
Commission Proposal as a draft on 27 November 2001: Decision of the EU Council, Proposal for a
Framework Decision on Combating Terrorism (2001/C 332 E/17), 27 November 2001, Official Journal
C332 E/300. The Council consulted with the European Parliament as required under Art. 39 of the
EU Treaty ('Parliament Draft'): Art. 39(1) of the EU Treaty requires the Council to consult Parliament
before adopting any framework decisions for the approximation of domestic laws under Art. 34(2)(b).
The Framework Decision was adopted pursuant to the Treaty of the European Union ('EU Treaty')
(as amended by the Treaty of Amsterdam 1997 and the Treaty of Nice 2001), Arts. 29, 31(e) and
34(2)(b).
14.EU Council, Framework Decision on the European Arrest Warrant and the Surrender Procedures
between Member States (2002/584/JHA), 13 June 2002, Official Journal, L 190/1, 18 June 2002.
15.Framework Decision, loc. cit., Art. 11(1).
16.S. Peers, 'EU Responses to Terrorism', 52 ICLQ (2003) p. 227.
Definition and criminalization of terrorism also aim to approximate national laws; improve
transnational law enforcement by confining the political offence exception to extradition;
deny asylum and refugee status to terrorists; and further the implementation of existing
international anti-terrorism treaties. Some of these rationales are more persuasive than
others and each is examined in turn.
1.
TERRORISM AS A SPECIAL MORAL CRIME
The Explanatory Memorandum to the Commission Proposal presents a number of interrelated justifications for the designation and criminalization of certain conduct or activities
as 'terrorist' offences. Foremost is the view that terrorist acts affect different legal rights and
interests from common criminal offences.17 According to the Commission, terrorist offences
aim to intimidate countries, their institutions or people and seriously alter or destroy their
political, economic, or social structures.18 Consequently 'the motivation of the offender is
different, even though terrorist offences can usually be equated in terms of their practical effect
with ordinary criminal offences and, consequently, other legal rights are also affected'.
Furthermore, terrorist acts usually damage the physical or psychological integrity of
individuals or groups, their property or their freedom, in the same way that ordinary offences
do, but terrorist offences go further in undermining the structures previously mentioned.19
Further, terrorism is believed to constitute 'one of the most serious threats to democracy,
to the free exercise of human rights and to economic and social development', 20 particularly in
the 'terrible aftermath of the unprecedented, tragic and murderous terrorist attacks against the
people of the United States of America on 11 September 2001'.21 Arguably, as the ICTY stated
in Tadic, concerning crimes against humanity, terrorism is likewise a crime 'of a special nature
to which a greater degree of moral turpitude attaches than to an ordinary crime'.22
Criminalizing terrorism is accordingly considered necessary in order to protect human
rights, fundamental freedoms and human dignity within the EU, in particular 'the right to life,
the right to physical integrity, the right to liberty and security and the right to freedom of
thought, of expression and information' as guaranteed by the Charter of Fundamental Rights of
the EU (2000).23 The Commission focuses on the suffering caused by terrorism to its victims,
whether through murder, bodily harm, threats, kidnappings or property destruction. In the
Commission's view, terrorism 'destroys their personal hopes and expectations and the material
basis of their livelihood, injuring them, inflicting psychological torture and causing death'.24
17.Commission Proposal, loc. cit., p. 7.
18.Commission Proposal, loc. cit., p. 7.
19.Commission Proposal, loc. cit., p. 7.
20.Commission Proposal, loc. cit., p. 7.
21.Commission Proposal, loc. cit., p. 7.
22.Tadic (Appeal) IT-94-1-A (15 July 1999), para. 271.
23.Commission Proposal, loc. cit., p. 2 (citing Arts. 2, 3, 6, 10 and 11 of the EU Charter of Fundamental
Rights (Nice, 7 December 2000)).
24.Commission Proposal, loc. cit., pp. 2-3.
Because different legal interests are affected by terrorist acts, the Commission believes it
is appropriate to have 'different and specific constituent elements and penalties for such
particularly serious offences'.25 The motivation behind, rather than the effects of, certain
conduct is fundamental to the Commission's characterization of such conduct in terrorist
offences. Terrorist acts are 'ordinary offences which become terrorist because of the
motivations of the offender. If the motivation is to alter seriously or to destroy the
fundamental principles and pillars of the State, intimidating people, there is a terrorist
offence'.26 The distinguishing feature of terrorism as a crime is thus that it is principally a
crime of motive. In contrast, motive is ordinarily irrelevant to criminal responsibility in most
legal systems.27
The Commission accordingly understands motive as the specific purpose behind
committing prohibited acts - altering or destroying the State, or intimidating people - rather
than as referring to the particular ideological or political motive or program of the offender.
It is, therefore, unnecessary to prove that an offender acted in pursuit of certain extremist
religious beliefs, fanatical political policies, racist objectives, or simple anarchy, as long as the
offender's actions are motivated by the desire to alter or destroy the State or to intimidate the
people. In other words, the particular reasons behind this conception of motive are irrelevant as
an element of a terrorist criminal offence, although it may be relevant as evidence of the
likelihood that an accused committed such an offence.
This method of defining terrorism avoids the difficulty of having to identify ambiguous
or uncertain political programs or objectives. In the context of extradition law, historically
some courts have experienced this difficulty. In the English case of In Re Meunier (1894), the
High Court held that anarchic violence cannot be considered politically motivated for
extradition purposes, since it is not directed against a particular government.28 Anarchic,
nihilistic or messianic violence might have no explicit political objective, aiming instead at
simple destruction of life or property. On the Framework Decision's approach, this difficulty
is avoided by understanding motive as the purpose, end or objective of a prohibited act, rather
than as the personal belief or conviction animating the offender.29 It also avoids the obvious
factual and evidentiary difficulties associated with discerning an individual's psychological
reasons for action, including where mixed motives are present.
The Draft UN Comprehensive Convention shares the approach to motive adopted by the
EU. Indeed it goes further by stating that even terrorist acts in pursuit of just causes are
unjustifiable. Draft Article 5 requires States to adopt the necessary measures, including domestic
legislation where appropriate, 'to ensure that criminal acts within the scope of this
Convention are under no circumstances justifiable by considerations of a political,
philosophical, ideological, racial, ethnic, religious or other similar
25.Commission Proposal, loc. cit., p. 8.
26.Commission Proposal, loc. cit., p. 6.
27.K. Kittichaisaree, International Criminal Law (Oxford 2001) p. 92; J. Smith, Smith & Hogan: Criminal
Law (10th ed., London 2002) p. 96; W. Schabas, Genocide in International Law (Cambridge 2002),
p. 245.
28.In Re Meunier (1894) 2 QB 415.
29.Such a distinction between these two concepts of motive was drawn in the English case ofHyam v.
DPP [1975] AC 55 at 73.
nature'. Motives in this sense are irrelevant to criminal responsibility, although this provision
does not exclude the possibility of criminal law defences, such as self-defence or necessity,
which may still be argued to absolve criminal responsibility.
The preamble to the Draft UN Comprehensive Convention similarly suggests that terrorism is
a special form of prohibited conduct deserving specific criminalization.30 Invoking earlier
General Assembly resolutions,3' the preamble provides public safety, human rights and
democratic rationales for criminalization. The 'worldwide escalation' of terrorism is said to
'endanger or take innocent lives, jeopardize fundamental freedoms and seriously impair the
dignity of human beings'.32 Terrorism further aims 'at the undermining of human rights,
fundamental freedoms and the democratic basis of society'.33 As Cassese observes,
international criminal law often prohibits conduct which infringes values protected by
international human rights law, without proclaiming those values directly.34
The Draft UN Comprehensive Convention taps into an enduring human rights discourse
which developed out of UN consideration of terrorism in the past. Numerous General Assembly
resolutions since the early 1970s, and resolutions of the UN Commission on Human Rights in
the 1990s, have indicated that the international community views terrorism as a threat to
human rights. Resolutions have expressed concern that acts of international terrorism
'endanger or take innocent human lives'3 and 'jeopardize fundamental freedoms'.36 Other
resolutions have deplored the 'loss of innocent human lives',37 including those of 'women,
children and the elderly, killed, massacred and maimed by terrorists in indiscriminate and
random acts of violence and terror'.38 Some resolutions have expressed serious concern 'at the
gross
30.UNGA, Reports of the Ad Hoc Committee established by UNGA Res. 51/210(17 December 1996),
6th Session (2002), UN Doc Supp 37 (A/57/37), Annex I: Discussion Paper Prepared by the Bureau.
31.UNGA Res. 49/60 (1994) and the annexed Declaration on Measures to Eliminate International Terrorism
annexed; UNGA Res. 51/210 (1996) and the annexed Declaration supplementing the 1994 Declaration
on Measures to Eliminate International Terrorism.
32.Draft UN Comprehensive Convention, he. cit., preamble.
33.Draft UN Comprehensive Convention, loc. cit., preamble.
34.A. Cassese, International Criminal Law (Oxford 2003) p. 23.
35.UNGA Res. 3034(XXVII) (1972), para. 1; UNGA Res. 32/147 (1977), para. 1; UNGA Res. 34/145
(1979), para. 3; UNGA Res. 44/29 (1989), preamble; UNGA Res. 46/51 (1991), preamble; UNGA Res.
49/60 (1994), preamble; Declaration to Supplement the 1994 Declaration on Measures to Eliminate
International Terrorism, annexed to UNGA Res. 51/210 (1996), preamble; UNGA Res. 40/61 (1985),
preamble.
36.UNGA Res. 3034(XXVII) (1972), para. 1; UNGA Res. 32/147 (1977), para. 1; UNGA Res. 34/145
(1979), para. 3; UNGA Res. 40/61 (1985), preamble.
37.UNGA Res. 38/130 (1983), para. 1; UNGA Res. 40/61 (1985), paras. 2-3; UNGA Res. 42/159
(1987), paras. 2-3; UNGA Res. 44/29 (1989), para. 2; UNGA Res. 46/51 (1991), para. 2; see also
UNGA Res. 42/159 (1987), preamble.
38.UNGA Res. 48/122 (1993), preamble; UNGA Res. 49/185 (1994), preamble; UNGA Res. 50/186
(1995), preamble; UNGA Res. 52/133 (1997), preamble; UNGA Res. 54/164 (2000), preamble; UN
Commission on Human Rights ('UNCHR'), Res. 1995/34, preamble; UNCHR Res. 1996/47, preamble;
see also UNCHR Res. 1997/42, preamble; UNCHR Res. 1998/47, preamble; UNCHR Res. 1999/27,
preamble; UNCHR Res. 2000/30, preamble; UNCHR Res. 2001/31, preamble; UNCHR Res. 2002/35,
preamble.
violations of human rights perpetrated by terrorist groups'39 and condemned terrorist 'violations
of the right to live free from fear and of the right to life, liberty and security'.40 Terrorism has
been further described as creating 'an environment that destroys the freedom from fear of
people'41 and threatening 'the most essential and basic human right [...] the right to life'.42
Indeed, a Special Rapporteur appointed by the UN Commission on Human Rights, to report on
terrorism and human rights, has observed that 'there is probably not a single human right
exempt from the impact of terrorism'.43
However, the notion of terrorism as a particularly serious human rights violation does not,
by itself, constitute a compelling reason for its criminalization. Many serious domestic crimes
equally endanger life and undermine human rights, so this justification does not present a
persuasive, exceptional reason for treating terrorist activity differently. Not all human rights
violations are characterized as crimes, and often the remedy for a rights violation is enforcement
of the right rather than criminal punishment of a violator.44 It is true that some terrorist acts
may be particularly serious violations of human rights because of their scale or effects, but
not all terrorist acts are of such a degree of intensity. There is also no internationally
recognized human right to be free from fear or terror, although such protection may be
inferred from recognized rights to liberty and security, and this appears to be the approach
of the UN Commission on Human Rights. Moreover, human rights are not absolute; some
terrorists claim that group rights (such as self-determination) necessarily trump individual
rights (including the right to life).
2.
TERRORISM AS A CRIME AGAINST DEMOCRACY
One possible exceptional explanation is that terrorist acts are a particularly egregious violation
of civil and political rights, in that they target freedom of speech, opinion or expression and
undermine the philosophical principles underlying democratic
39.UNGA Res. 49/185 (1994), preamble; UNGA Res. 52/133 (1997), preamble; UNGA Res. 54/164
(2000), preamble; UNCHR Res. 1995/34, preamble; UNCHR Res. 1996/47, preamble; UNCHR Res.
1997/42, preamble; UNCHR Res. 1998/47, preamble; UNCHR Res. 1999/27, preamble; UNCHR
Res. 2000/30, preamble; UNCHR Res. 2001/31, preamble; UNCHR Res. 2002/35, preamble.
40.UNGA Res. 52/133 (1997), para. 2; UNGA Res. 54/164 (2000), para. 2; UNCHR Res. 1998/37,
para. 2; UNCHR Res. 1999/27, para. 2; UNCHR Res. 2000/30, para. 2; UNCHR Res. 2001/37, para.
2; see also UNCHR Res. 2002/35, para. 1.
41.UNGA Res. 50/186 (1995), preamble; UNGA Res. 52/133 (1997), preamble; UNCHR Res. 1996/47,
preamble; UNCHR Res. 1997/42, preamble; UNCHR Res. 1998/47, preamble; UNCHR Res. 1999/27,
preamble; UNCHR Res. 2000/30, preamble; UNCHR Res. 2001/31, preamble.
42.UNGA Res. 50/186 (1995), preamble; UNCHR Res. 1996/47, preamble; UNCHR Res. 1997/42,
preamble; UNCHR Res. 1998/47, preamble; UNCHR Res. 1999/27, preamble; UNCHR Res. 2000/30,
preamble; UNCHR Res. 2001/31, preamble; UNCHR Res. 2002/35, preamble.
43.UNCHR (53rd Session), Terrorism and Human Rights: Progress Report Prepared by Special Rapporteur
K Koufa, 27 June 2001, UN Doc E/CN.4/Sub.2/2001/31, 28.
44.Freedom from torture (International Covenant on Civil and Political Rights, Art. 7) is one of the
few international human rights which is also internationally criminalized (Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (1465 UNTS 85, adopted 10
December 1984, entered into force 26 June 1987), Arts. 4-5).
political institutions. In the 1990s, the General Assembly and the UN Commission on
Human Rights frequently described terrorism as aimed 'at the destruction of human rights,
fundamental freedoms and democracy'45or at the 'democratic bases of society'.46 The preamble to
the Draft UN Comprehensive Convention similarly suggests that acts of terrorism 'endanger
or take innocent lives, jeopardize fundamental freedoms and seriously impair the dignity of
human beings',47 and aim 'at the undermining of human rights, fundamental freedoms and the
democratic basis of society'.48
Moreover, many resolutions have deplored terrorism for 'destabilizing legitimately
constituted Governments, [and] undermining pluralistic civil society'.49 Some resolutions state
that 'terrorism in many cases poses a severe challenge to democracy, civil society and the rule
of law'.50 Another resolution stressed the negative effects of terrorism on the enjoyment of
'human rights and fundamental freedoms and on the establishment of the rule of law and
democratic freedoms'.51 The EU Framework Decision 2002 is also based on the view that
terrorism is 'one of the most serious threats to democracy, to the free exercise of human rights
and to economic and social development' ,52
This further conception of terrorism as a threat to 'democracy' or 'legitimately constituted
governments' seems to set terrorist acts apart from other conduct that seriously violates
human rights. One plausible basis for criminalizing terrorism is that terrorism directly
undermines democratic values and institutions, especially the human rights underlying
democracy such as freedom of speech, opinion, expression and association. Terrorism
replaces politics with violence and dialogue with terror. On this view, terrorism should be
specially criminalized because it strikes at the constitutional framework of deliberative
public institutions which make the existence of all other human rights possible. Doing so
would also concretize and protect the 'emerging right to democratic governance' which some
believe is progressively coalescing around the relevant provisions of international human
rights treaties.53
45.UNGA Res. 48/122 (1993), para. 1; UNGA Res. 49/185 (1994), para. 1; UNGA Res. 50/186 (1995),
para. 2; UNGA Res. 52/133 (1997), para. 3; UNGA Res. 54/164 (2000), para. 2; UNGA Res. 49/185
(1994), para. 1; UNGA Res. 50/186 (1995), para. 2; UNGA Res. 52/133 (1997), para. 3; UNGA
Res. 54/164 (2000), para. 3; UNCHR Res. 1995/43, para. 1; UNCHR Res. 1996/47, para. 1; UNCHR
Res. 1997/42, para. 1; UNCHR Res. 1998/47, para. 3; UNCHR Res. 1999/27, para. 1; UNCHR Res.
2000/30, para. 1; UNCHR Res. 2001/37, para. 1; UNCHR Res. 2002/35, para. 1.
46.UNGA Res. 49/60 (1994), para. 2.
47.Discussion paper prepared by the Bureau, toe. cit., p. 3.
48.Discussion paper prepared by the Bureau, loc. cit., p. 4.
49.UNGA Res. 48/122 (1993), para. 1; UNGA Res. 49/185 (1994), para. 1; UNGA Res. 50/186 (1995),
para. 2; UNGA Res. 52/133 (1997), para. 3; UNGA Res. 54/164 (2000), para. 2; UNGA Res. 49/185
(1994), para. 1; UNGA Res. 50/186 (1995), para. 2; UNGA Res. 52/133 (1997), para. 3; UNGA
Res. 54/164 (2000), para. 3.
50.UNCHR Res. 1998/47, preamble; UNCHR Res. 1999/27, preamble; UNCHR Res. 2000/30, preamble;
UNCHR Res. 2001/31, preamble; UNCHR Res. 2002/35, preamble.
51.UNCHR Res. 2002/35, preamble.
52.Commission Proposal (Explanatory Memorandum), toe. cit., p. 7.
53.T. Franck, The Emerging Right of Democratic Governance', 86 American Journal of International
Law (1992) p. 46; G. Fox 'The Right to Political Participation in International Law', 17 Yale Journal
of International Law (1992) p. 539; G. Fox and B. Roth (eds), Democratic Governance in International
Law (Cambridge 2000).
Yet this explanation for criminalizing terrorism gives rise to two key difficulties. Firstly,
there is no legally entrenched right of democratic governance in international law. At best,
such a right is emerging or 'inchoate'.54 The existing right of self-determination permits
peoples to choose their form of government, but it does not specify that government must be
democratic. Further, the customary law criteria of statehood, reflected in the Montevideo
Convention 1933,55 do not require democracy as a precondition of statehood. Rather, effective
territorial government is sufficient and international law tolerates most varieties of governance
(excepting, for instance, those predicated on apartheid or genocide). As a result, it is difficult
to recognize terrorism as a crime against democratic values when democracy is not an accepted
right under international law. In contrast, within a more homogenous regional community such
as the EU, Member States are freer to declare that terrorism violates established community
values and indeed, democracy has emerged as a precondition of European Community
membership, although it is not a legal precondition of Statehood.56
A greater difficulty is that if terrorism is characterized as a crime against democracy, it begs
the historically intractable question of whether terrorist acts directed to subverting nondemocratic regimes, or against those which trample human rights, remain permissible. As
noted above, UN resolutions have criticized terrorism for destabilizing 'legitimately'
constituted governments, not necessarily all governments. During the drafting of the EU
Framework Decision in December 2001, at one stage the EU Council issued a Draft
Statement claiming that the Decision cannot be construed so as to argue that the conduct of
those who have acted in the interest of preserving or restoring these democratic values [on
which the EU is founded], as was notably the case in some Member States during the
Second World War, could now be considered as 'terrorist' acts.57
The Council wrestled with the omnipotent (if frequently rhetorical) problem of the
'freedom fighter', conceding that those who act in pursuit of a just democratic cause should be
excluded from criminal responsibility for terrorism. It seeks to create an exception from
terrorist criminal liability for those fighting clandestinely in occupied territories - after the
experience of Nazi occupied Europe - apparently even if such fighters violate the laws and
customs of war. On this view, terrorism cannot be regarded as a crime against non-democratic
regimes analogous to Nazi occupied Europe, notwithstanding the limits imposed on resistance
or liberation fighters by Protocol I of 1977 to the Geneva Conventions.
Ultimately, the EU Council's Draft Statement was not incorporated into the text of the
Framework Decision, nor was it formally issued alongside it as an interpretive instrument. As a
result, the EU Framework Decision criminalizes terrorism against all States, however
politically constituted; the scope of application is not limited to
54.S. Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford
2002) p. 89.
55.Montevideo Convention on the Rights and Duties of States (adopted 26 December 1933, entered
into force 26 December 1934).
56.EC Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, 16
December 1991, British Yearbook of International Law (1991) p. 559.
57.EU Council, Outcome of Proceedings of 6 December 2001, Brussels, 7 December 2001, 14845/1/01
REV 1, Statement No. 2, 15.
the protection of democratic EU Member States. Recent UN resolutions also discount this
possibility that terrorism is justified against non-democratic regimes. Over time the
international community has agreed that 'all acts, methods and practices of terrorism in all its
forms and manifestations, wherever and by whomever committed' are both criminal and
unjustifiable.58 Thus even just causes, pursued against violent or tyrannical regimes, may not
employ terrorist means. Indeed as the Commission on Human Rights has resolved, 'terrorism
[...] can never be justified as a means to promote and protect human rights'.59 This position
is more consistent with the evolution of international humanitarian law.
Consequently, based on current world opinion expressed through UN organs, it cannot be
argued that terrorism is a crime specifically against democratic politics, since it must also be
regarded as criminal and unjustifiable against even tyrannical regimes. As a result, the
minimum shared conception of terrorism in the international community appears to encompass
violent conduct directed against politics and the State, regardless of their democratic character.
This conception of terrorist offences shields all States from terrorist violence, irrespective of
their degree of democratic governance.
3.
THREAT TO INTERNATIONAL RELATIONS
One compelling rationale for criminalizing terrorism is the threat that it presents to
international relations. The preamble to the Draft UN Comprehensive Convention states that
terrorism may 'jeopardize friendly relations among States and peoples and threaten the territorial
integrity and security of States'.60 Moreover, terrorism constitutes 'a grave violation of the
purposes and principles of the United Nations, which may pose a threat to international peace
and security, jeopardize friendly relations among States, [and] hinder international
cooperation'.61 The suppression of international terrorism is regarded as 'an essential element
in the maintenance of international peace and security and the sovereignty and territorial
integrity of States'.62
This rationale does not require that States be democratic, since the suppression of terrorism
against any State, as a threat to peace and security, is regarded as a higher value than the right
to oppose unjust States using any available means. The rationale postulates terrorism as a
special category of threat to international peace and security, State sovereignty and territorial
integrity. It highlights that the primary targets of terrorism are States, whose institutions
terrorists seek to undermine. It assumes that special rules are required in order to protect
States from the terrorist threat. The implication is that the range of existing international
legal responses - primarily
58.UNGA Res. 44/29 (1989), para. 1; UNGA Res. 46/51 (1991), preamble; UNGA Res. 50/53 (1995),
para. 1; UNGA Res. 51/210 (1996), para. 1; UNGA Res. 52/165 (1997), para. 1; UNGA Res. 54/110
(2000), para. 1; UNGA Res. 55/158 (2001), para. 1.
59.UNCHR Res. 1996/47, preamble; see also UNCHR Res. 1997/42, preamble; UNCHR Res. 1998/47,
preamble; UNCHR Res. 1999/27, preamble; UNCHR Res. 2000/30, preamble; UNCHR Res. 2001/31,
preamble; UNCHR Res. 2002/35, preamble.
60.Draft UN Comprehensive Convention, loc. cit., preamble.
61.Draft UN Comprehensive Convention, loc. cit., preamble.
62.Draft UN Comprehensive Convention, loc. cit., preamble.
designed to deal with force used unlawfully by States against each other - is inadequate to
deal with the special threat posed by non-State terrorist actors. This is partly due to the
decentralized, transboundary activities of terrorist groups, and their access to devastating
modern weaponry.
The view that terrorism is a serious threat to international relations crystallized in the UN's
consideration of terrorism since the 1970s. General Assembly resolutions have stated that
international terrorism may threaten international peace and security.63 More commonly,
resolutions have stated that terrorism may jeopardize friendly relations among States64 or State
security or territorial integrity.65 Other resolutions have stated that terrorism has a 'deleterious
effect' on international relations66 or jeopardizes its 'normal functioning',67 or have condemned
terrorism as 'destabilizing legitimately constituted Governments, [and] undermining pluralistic
civil society'.68 Some resolutions have noted that terrorism has 'adverse consequences on the
economic and social development of States',69 while others have deplored the 'pernicious
impact' of terrorism on international cooperation for development.70 Resolutions have also
held
63.UNGA Res. 42/159 (1987), preamble; UNGA Res. 49/60 (1994), para. 2; UNGA Res. 49/60 (1994),
preamble; UNGA Res. 50/53 (1995), para. 7.
64.UNGA Res. 49/60 (1994), para. 2; UNGA Res. 44/29 (1989), para. 1; UNGA Res. 46/51 (1991),
para. 1; UNGA Res. 38/130 (1983), para. 1; UNGA Res. 40/61 (1985), paras. 2-3; UNGA Res.
42/159 (1987), paras. 2-3; UNGA Res. 44/29 (1989), para. 2; UNGA Res. 46/51 (1991), para. 2; UNGA
Res. 40/61 (1985), preamble; UNGA Res. 42/159 (1987), preamble.
65.UNGA Res. 44/29 (1989), para. 1; UNGA Res. 46/51 (1991), para. 1; UNGA Res. 49/60 (1994),
para. 1; Declaration to Supplement the 1994 Declaration on Measures to Eliminate International
Terrorism, annexed to UNGA Res. 51/210 (1996), para. 1; International Convention for the Suppression
of the Financing of Terrorism, preamble; UNGA Res. 44/29 (1989), preamble; UNGA Res. 46/51
(1991), preamble; UNGA Res. 49/60 (1994), preamble; Declaration to Supplement the 1994 Declaration
on Measures to Eliminate International Terrorism, annexed to UNGA Res. 51/210 (1996), preamble;
UNGA Res. 48/122 (1993), para. 1; UNGA Res. 49/185 (1994), para. 1; UNGA Res. 50/186 (1995),
para. 2; UNGA Res. 52/133 (1997), para. 3; UNGA Res. 54/164 (2000), para. 2; UNGA Res. 49/185
(1994), para. 1; UNGA Res. 50/186 (1995), para. 2; UNGA Res. 52/133 (1997), para. 3; UNGA
Res. 54/164 (2000), para. 3; UNCHR Res. 1998/47, para. 3; UNCHR Res. 1999/27, para. 1; UNCHR
Res. 2000/30, para. 1; UNCHR Res. 2001/37, para. 1; UNCHR Res. 2002/35, para. I.
66.UNGA Res. 44/29 (1989), preamble; UNGA Res. 46/51 (1991), preamble; UNGA Res. 49/60 (1994),
preamble; Declaration to Supplement the 1994 Declaration on Measures to Eliminate International
Terrorism, annexed to UNGA Res. 51/210 (1996), preamble; UNGA Res. 40/61 (1985), preamble.
67.UNGA Res. 42/159 (1987), preamble.
68.UNGA Res. 48/122 (1993), para. 1; UNGA Res. 49/185 (1994), para. 1; UNGA Res. 50/186 (1995),
para. 2; UNGA Res. 52/133 (1997), para. 3; UNGA Res. 54/164 (2000), para. 2; UNGA Res. 49/185
(1994), para. 1; UNGA Res. 50/186 (1995), para. 2; UNGA Res. 52/133 (1997), para. 3; UNGA
Res. 54/164 (2000), para. 3; UNCHR Res. 1998/47, para. 3; UNCHR Res. 1999/27, para. 1; UNCHR
Res. 2000/30, para. 1; UNCHR Res. 2001/37, para. 1; UNCHR Res. 2002/35, para. 1.
69.UNGA Res. 48/122 (1993), para. 1; UNGA Res. 49/185 (1994), para. 1; UNGA Res. 50/186 (1995),
para. 2; UNGA Res. 52/133 (1997), para. 3; UNGA Res. 54/164 (2000), para. 2; UNGA Res. 49/185
(1994), para. 1; UNGA Res. 50/186 (1995), para. 2; UNGA Res. 52/133 (1997), para. 3; UNGA
Res. 54/164 (2000), para. 3; UNCHR Res. 1998/47, para. 3; UNCHR Res. 1999/27, para. 1; UNCHR
Res. 2000/30, para. 1; UNCHR Res. 2001/37, para. 1; UNCHR Res. 2002/35, para. 1.
70.UNGA Res. 38/130 (1983), para. 1; UNGA Res. 40/61 (1985), paras. 2-3; UNGA Res. 42/159
(1987), paras. 2-3; UNGA Res. 44/29 (1989), para. 2; UNGA Res. 46/51 (1991), para. 2.
that acts of terrorism are 'contrary to' or constitute 'a grave violation of the purposes and
principles of the United Nations.71
Significantly, the General Assembly has also recalled 'the role of the Security Council in
combating international terrorism whenever it poses a threat to international peace and
security'.72 Since the early 1990s the Security Council has increasingly acknowledged in
general or specific terms that acts of international terrorism may or do constitute threats to
international peace and security.73 The Council has decided that international terrorism
activates its mandate under the Charter, although unlike in the General Assembly, its
resolutions have never defined what the Council understands as terrorism. The Council has,
however, been more willing to condemn specific terrorist incidents as threats to peace and
security, so an ad hoc conception of terrorism can partially be deduced from the character of
those incidents.74
Following the terrorist attacks of 11 September 2001, there was an important shift in the
language used by the Security Council to describe terrorist acts. Whereas resolutions prior to
11 September often stated in general terms that acts of international terrorism 'may' or 'could'
threaten international peace and security, after those attacks the Council resolved that 'any' act
of international terrorism threatens international peace and security.75 At first glance it seems
obvious that, by definition, 'international' terrorism must have some negative impact on
international relations.
Yet such consequences cannot be assumed. Before 11 September, the Council reserved
the right to assess whether particular acts of international terrorism, in their circumstances, were
serious enough to amount to threats to international peace and security. That measured and
calibrated approach appears to have been abandoned in the Council's rush to condemn any
act as a threat, even though on the facts a particular incident may not rise to the grave level
of a threat to international peace and security. In the absence of advance definition of
international terrorism, the Council has condemned a category of activity of prospectively
unknown - and relatively unknowable - scope.
In Europe, the EU Commission Proposal has also argued that the threat posed by terrorism to
international relations justifies its criminalization. The Explanatory Memorandum describes
modern terrorism as 'particularly dangerous' because 'unlike terrorist acts in the past, the
actual or potential impact of armed attacks is increasingly devastating and lethal'.76 The
Commission attributes the causes of increased danger to a number of factors: 'the growing
sophistication and ruthless ambition of
71.Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism,
annexed to UNGA Res. 51/210 (1996), para. 2; UNGA Res. 49/60 (1994), para. 2.
72.UNGA Res. 50/53 (1995), para. 7.
73.UNSC Res. 731 (1992), preamble; UNSC Res. 748 (1992), preamble; UNSC Res. 1044 (1996),
preamble; UNSC Res. 1189 (1998), preamble; UNSC Res. 1267 (1999), preamble; UNSC Res. 1269
(1999), para. 1; UNSC Res. 1333 (1999), preamble; UNSC Res. 1363 (2001), preamble; UNSC Res.
1390 (2002), preamble; UNSC Res. 1455 (2003), preamble.
74.Most recently, see for example UNSC Res. 1368 (2001) (11 September attacks); 1438 (2002) (Bali
bombings); 1440 (2002) (Moscow siege); 1450 (2002) (Kenya missile attacks); 1465 (2003) (Colombia
bombings); 1511 (2003) (Iraqi incidents); 1516 (2003) (Turkey bombings).
75.UNSC Res. 1368 (2001), para. 1.
76.Commission Proposal, loc. cit., p. 3.
the terrorists themselves'; 'technological developments (and easy access to information about
these developments), whether in the traditional arms and explosives areas or in the even more
terrifying fields of chemical, biological and nuclear weapons'; and 'attacks against
information systems'.77
In the Commission's view, these 'profound changes [...] highlight the inadequacy of
traditional forms of judicial and police cooperation in combating it', especially given the
internationalization of terrorist groups, the potential for terrorists to 'exploit legal loopholes
arising from the geographical limits of investigations', and the unrestricted freedom of
movement of people within the EU due to the openness of internal national borders.78 Further,
the distinct criminalization of participation in terrorist groups is considered necessary to
combat the emergence of sophisticated, well-resourced and internationally organized terrorist
organizations.79
There is, however, an important difference between the approaches of the EU and the UN
to terrorism in this regard. The Draft UN Comprehensive Convention stipulates that the
convention only applies to acts of international terrorism. Draft Article 3 prevents the
convention from applying 'where the offence is committed within a single State, the alleged
offender and the victims are nationals of that State, the alleged offender is found in the
territory of that State and no other State has a basis' under the convention to exercise
jurisdiction.
In contrast, while the EU refers to the internationalization of terrorist threats, purely
domestic manifestations of terrorism also fall within the scope of the Framework Decision. There
is no comparable provision in the Decision limiting its application to international terrorist
offences. International and domestic terrorist acts are to be treated equally by the criminal law
of EU member states, as long as the motive requirements of altering or destroying a State, or
intimidating a people, are satisfied.
The EU position in this respect is more logical. If it is accepted that terrorism is a special
crime against human rights, politics, the state and individual rights, detrimentally affecting these
special interests beyond the effect of ordinary crimes, then it should not matter whether a terrorist
act is domestic or international. An international element to an offence appears to activate the
application of international law, which otherwise does not intrude on the reserved domain of
domestic jurisdiction in respect of criminal offences.
However, many other international crimes do not require an international element.
Genocide, war crimes, crimes against humanity and torture may all be committed in entirely
domestic situations. It is not the existence of an international element which attracts
international jurisdiction; rather it is the egregious nature of the interests affectedwhich demands
international attention and criminalization, irrespective of its domesticcharacter.
International attempts to define terrorism have been historically reluctant to address domestic
terrorism in the same way as international terrorism, mainly because States have been keen to
preserve their domestic discretion to deal with terrorism as they see fit, including by
defining terrorism more broadly than would be internationally
77.Commission Proposal, he. cit., p. 3.
78.Commission Proposal, loc. cit., p. 3.
79.Commission Proposal, loc. cit., pp. 3, 8.
acceptable. Yet a coherent international definition of terrorism, regardless of its domestic or
international character, would put pressure on those States which abuse the concept of
terrorism through overly-broad definitions to confine those definitions to generally accepted
categories of prohibited conduct. In this way it would be possible to exclude legitimate selfdetermination units, who comply with the laws of armed conflict, from being unfairly treated
and stigmatized as terrorists.
4.
APPROXIMATION OF DOMESTIC LAWS
Having concluded that terrorism deserves punishment as a special and distinct form of crime,
the EU Commission Proposal then argues that it is necessary to establish minimum rules
relating to the elements of terrorist offences and the penalties reflecting the seriousness of such
offences. Without the approximation of laws,80 the Commission argues that terrorists might take
advantage of 'differences in legal treatment' between Member States.81 The Explanatory
Memorandum notes that Member States currently take disparate approaches to terrorism in
their criminal laws:
Some [Member States] have no specific regulations on terrorism. In these States, terrorist
actions are punished as common offences. In other Member States there are specific laws
or legal instruments concerning terrorism where the words 'terrorism' or 'terrorist' are
expressly mentioned and where some terrorist offences are expressly typified.82
Most Member States punish terrorist acts as ordinary criminal offences. Six States (Germany,
Italy, France, Spain, Portugal and the UK) have specific anti-terrorism legislation,83 and
'[ajlthough the wording is different, they are essentially synonymous' in that they all capture the
idea of terrorist crimes as ordinary offences transformed by a specific motivation.84
For example, France criminalizes as terrorist acts which can alter seriously public order
through threat or terror; Portugal prohibits acts which prejudice national interests, alter or
disturb the State's institutions, force public authorities to do or not to do something, or
threaten individuals or groups; Spain prohibits acts subverting the constitutional order and
seriously altering public peace; and Italy similarly prohibits subversion of the democratic order
as a terrorist offence. In the UK, certain acts are terrorist offences where their 'use or threat is
designed to influence the government or to intimidate the public or a section of the public'
and 'is made for the purpose of advancing a political, religious or ideological cause'.85
Problematically, the Commission's analysis does not distinguish terrorist offences in
national criminal laws from existing national legislation addressing public order
80.In accordance with EU Treaty, Art. 34(2)(b).
81.Commission Proposal, loc. cit., p. 3.
82.Commission Proposal, loc. cit., p. 6.
83.Commission Proposal, loc. cit., p. 1.
84.Commission Proposal, loc. cit., p. 6.
85.Terrorism Act 2000 (UK), s. 1.
and national security offences. Indeed, the Explanatory Memorandum states that terrorist
offences 'could include, for instance, urban violence', signalling an intention to extend the
definition of 'terrorism' to cover some public order situations. There may be considerable
conceptual overlap between such offences, which have long existed in the criminal law of many
States, and more recent definitions of terrorist offences. Offences against public order or
national security are often framed in very broad terms, permitting State authorities latitude in
dealing with activities which could also be characterized as terrorist in nature. Judiciaries
have often deferred to the executive in determinations of threats to national security, permitting
a wide margin of appreciation.
In such circumstances, narrower definitions of terrorism may prove redundant in practice,
since terrorist conduct may also fall within the broader ambit of national security offences.
Dealing with terrorist conduct in this way may be encouraged by the procedural advantages,
for prosecuting authorities, which typically accompany national security offences, such as
speedier trials, lower burdens of proof, different evidentiary standards, or closed courts. On the
other hand, where certain activities have been excluded from the scope of public order or
national security offences by national jurisprudence over time, the definition of terrorist
offences may alternatively serve as a device to circumvent existing judicial controls. While the
Draft UN Comprehensive Convention does not expressly pose approximation of national laws
as an objective, that may be the effect of an international treaty and the same considerations
will apply at the international level.
5.
IMPROVING TRANSNATIONAL ENFORCEMENT
Defining and criminalizing terrorism in a regional or international instrument is also designed
to remedy the limitations of existing regional legal arrangements. The Council of Europe's
Convention on the Suppression of Terrorism 1977 ('European Convention 1977') was designed
to facilitate the extradition between States of persons suspected of certain terrorist offences.86
Article 1 requires States to exclude enumerated offences from consideration as political offences
for extradition purposes. The offences listed include offences in three international antiterrorism treaties;87 an 'offence involving the use of a bomb, grenade, rocket, automatic
firearm or letter or parcel bomb if this use endangers persons';88 and attempt or participation as
an accomplice in any of the listed offences.89 Article 2(1) states that States may also decide
not to regard as a
86.Convention on the Suppression of Terrorism 1977 (European Treaty Series No. 90, adopted 27 January
1977, entered into force on 4 August 1978). Thirty-seven of the Council of Europe's 43 members
had ratified or acceded to the Convention by March 2002.
87.Convention for the Suppression of Unlawful Seizure of Aircraft (860 UNTS 105, signed 16 December
1970); Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (974
UNTS 177, signed 23 September 1971); Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, including Diplomatic Agents (1035 UNTS 167, adopted
14 December 1973).
88.European Convention 1977, loc. cit., Art. ](d).
89.European Convention 1977, loc. cit., Art. l(e).
political offence 'a serious offence involving an act of violence [...] against the life,
physical integrity or liberty of a person', while Article 2(2) applies the same principle to 'a
serious offence involving an act against property [...] if the act created a collective danger
for persons'.
Significantly, the European Convention 1977 expanded offences beyond those in the then
existing international treaties to include acts involving certain kinds of weapons ('bomb,
grenade, rocket, automatic firearm or letter or parcel bomb'), on the basis that such weapons
are often the preferred weapons of terrorists. It also expanded protection beyond aircraft treaty
offences and treaty-based offences against protected persons to exclude from the political
offence exception persons suspected of endangering ordinary people, in any situation, by using
the specified weapons. Further, it leaves the option open to member States of extending
protection even further to enable extradition for any act of violence against the life, physical
integrity or liberty of a person, and for serious offences against property which collectively
endanger persons.
However, the European Convention 1977 does not use or define the term terrorism, despite
referring to 'acts of terrorism' in its preamble. The Convention contains no reference to generic
elements of terrorism in its substantive offences, such as an intention to instill terror or
intimidate a target group, or to the political motives of offenders. Nor does the Convention
require domestic criminalization of the enumerated offences. It simply establishes a list of
prohibited acts, often committed by terrorists (but not exclusively), for the purposes of
facilitating the extradition of perpetrators of such serious criminal offences.
The shortcomings of the Convention are well-known.90 Many States91 have availed themselves
of the right, under Article 13, to make a reservation declaring that the requested State may
consider offences in Article 1 as political and non-extraditable, as long as it considers 'any
serious aspects of the offence', including specified factors.92 Further, offences in Article 2 may
be considered by States as terrorist offences for extradition purposes but there is no
obligation to do so, thus enabling extradition to be refused where political motives are
involved.93 Some commentators argue that the discrimination clause94 - at least potentially - is a
shortcoming rather than a legitimate protection against persecution.95 The Convention itself is
not the formal source
90.M. Baker, 'The Western European Legal Response to Terrorism', 13 Brookings Journal of International
Law (1987) p. 1 at p. 6; R. Friedlander, Documents of International and Local Control (1981) p. 3.
91.C. Van den Wyngaert, 'The Political Offence Exception to Extradition: How to Plug the Terrorist's
Loophole', Israel Yearbook on Human Rights (1989) p. 297.
92.Including that it created a collective danger to the life, physical integrity, or liberty or persons; it
affected persons foreign to the motives behind it; or cruel or vicious means have been used in the
commission of the offence.
93.Council of Europe (Standing Committee of the Parliamentary Assembly), Recommendation 1170
(25 November 1991), point 5(ii).
94.The Convention permits States to refuse a discriminatory extradition request, where a request 'has been
made for the purposes of punishing a person on account of that person's race, religion, nationality,
ethnic origin or political opinion or that compliance with the request would prejudice that person's
position for any of these reasons': European Convention 1977, loc. cit., Art. 5.
95.M. Baker, loc. cit., pp. 6-7.
of extradition arrangements between signatories, rather ordinary extradition treaties or
national laws remain the basis of extradition.96
While acknowledging the contribution of the Council of Europe's Convention of 1977, the
EU Council believed it necessary to improve European legal mechanisms for combating
terrorism at its Tampere meeting in October 1999.97 At that meeting the Council concluded
that formal extradition procedures should be abolished among the Member States for persons
fleeing from justice after final sentencing, and extradition procedures should be sped up for
persons suspected of offences. A simple surrender procedure was envisaged to replace
extradition, based on mutual recognition of judicial decisions. The European Parliament
supported the idea, although one subsequent minority opinion believed that the scope for
improving existing extradition treaties should first be assessed,98 while a second minority
opinion argued that the proposal did not contain 'an adequate analysis of the supposed
need to amend the extradition rules or a satisfactory explanation of the underlying
principles and consequences of the proposal'.99
The Council Framework Decision on the European Arrest Warrant and the Surrender
Procedures between Member States was adopted on 13 June 2002. lo° Article 1 describes the
European arrest warrant as a judicial decision issued by a Member State with a view to the
arrest and surrender by another Member State of a requested person, for the purposes of
criminal prosecution or executing a custodial sentence or detention order.101 Member States are
required to execute any European arrest warrant on the basis of mutual recognition.10"
Article 2 sets out the offences for which a European arrest warrant may be issued. These
include acts punishable by the law of the issuing Member State by a custodial sentence or a
detention order for a maximum period of at least 12 months or, where a sentence has been
passed or a detention order has been made, for sentences of at least four months.103
Additionally, a warrant may be issued for enumerated offences punishable in an issuing
Member State by a custodial sentence or a detention order for a maximum period of at least
three years, as defined by the law of the issuing Member State. In the latter case, Member
States must surrender suspects under the European warrant without verification of the double
criminality of the act.
The lengthy list of enumerated offences includes, among others, terrorism, kidnapping and
hostage taking. The political nature of an offence is not a ground for mandatory (Article 3) or
optional (Article 4) non-execution of the European arrest warrant. In conjunction with the
definition of terrorist offences in the Framework Decision on Combating Terrorism, it is
hoped that the arrest warrant procedure will overcome the obstacles of the double criminality
requirement.104 The democratic
96.European Convention 1977, he. cit., Explanatory Report Note 2.
97.Commission Proposal, loc. cit., p. 5.
98.Minority Opinion on the Arrest Warrant Proposal, in Parliament Draft, loc. cit., pp. 54-55.
99.Minority Opinion on the Arrest Warrant Proposal, in Parliament Draft, loc. cit., pp. 54-55.
100.Framework Decision on the European Arrest Warrant, loc. cit.
101.Framework Decision on the European Arrest Warrant, loc. cit., Art. 1(1).
102.Framework Decision on the European Arrest Warrant, loc. cit., Art. 1(2).
103.Framework Decision on the European Arrest Warrant, loc. cit., Art. 2(1).
104.Commission Proposal, loc. cit., p. 7.
character of EU Member States was a crucial factor in the decision to abolish the political
offence exception to extradition.
Improving transnational enforcement procedures is also an expressed objective of the Draft
UN Comprehensive Convention, although nothing as radical as the EU's abolition of
extradition and the political offence exception is proposed at the international level. The
prevention of impunity is advanced in support of the convention. The preamble reaffirms
the 'unequivocal condemnation of all acts, methods and practices of terrorism as criminal and
unjustifiable, wherever and by whomever committed'.105 The Draft UN Comprehensive
Convention aims to 'prevent acts of terrorism and to ensure that perpetrators of terrorist acts do
not escape prosecution and punishment by providing for their extradition or prosecution'.106 The
preamble also regards it as the 'duty of the States Parties to bring to justice those who have
participated in such terrorist acts', including those who finance, plan or incite terrorism.
This rationale suggests that by defining common international terrorist offences, offenders
would be less able to take advantage of differences in treatment between jurisdictions.
Assuming widespread ratification (though this is far from guaranteed), the convention would
help to confine the political offence exception to extradition requests in respect of terrorism,
although this depends entirely on the construction of the extradition provisions of the treaty.
The League of Nations terrorism convention of 1937 similarly aimed to confine the political
offence exception, but its extradition provisions were drafted with so many qualifications
that, had it ever entered into force, little confinement of the exception would have occurred.10'
Draft Article 14 of the Draft UN Comprehensive Convention currently excludes a terrorist
offence from being regarded as 'a political offence or as an offence connected with a
political offence or as an offence inspired by political motives'. The one major qualification
is draft Article 15, which permits a requested State to refuse extradition where there are
substantial grounds for believing that the request 'has been made for the purpose of
prosecuting or punishing a person on account of that person's race, religion, nationality,
ethnic origin or political opinion or that compliance with the request would cause prejudice to
that person's position for any of these reasons'.
While this is a necessary protection against discriminatory prosecutions, in the highly charged
field of politically-inspired terrorism, some States may take the subjective view that a legitimate
extradition request is designed to punish the political or other views of a suspect, thus denying
extradition. This exception may restore the political offence exception by another name, in the
absence of any centrali/ed, objective mechanism for determining discriminatory requests.
105.Draft UN Comprehensive Convention, loc. cit., preamble.
106.Draft UN Comprehensive Convention, loc. cit., preamble.
107.See B. Saul, 'The Legal Response of the League of Nations to Terrorism' (forthcoming 2003)
Journal of International Criminal Justice.
6.
DENIAL OF ASYLUM AND REFUGEE STATUS
An EU Commission Working Document of December 2001l08 foreshadows a linkage between
the definition of terrorism in the EU Framework Decision and the application and
interpretation of the exclusion from asylum clauses in the Refugee Convention 1951.109 The
Working Document is based on the premise that 'there should be no avenue for those supporting
or committing terrorist acts to secure access to the territory of the [EU] Member States'."0 It
analyses existing legal mechanisms for excluding suspected terrorists from international
protection and considers the adequacy of internal security provisions in EC legislation and
Commission Proposals for Directives on asylum and immigration."1 The Commission supports
the view of UNHCR that existing legal exceptions to refugee protection should be properly
applied rather than making major changes to the refugee protection regime.
Although the Working Document is not itself a source of law making, it summarizes and
consolidates the various proposals for EU law reform. The exclusion of suspected terrorists
from asylum may be addressed by further EU legal proposals under consideration."2 In
particular, the Communication on the Common Asylum Policy"3 requires States to identify
principles and techniques for improving the identification of individuals, covered by the
exclusion provisions, who do not deserve international protection,"4 and evaluate the use of
cessation and exclusion clauses."5 One policy aim is to ensure that if a terrorist is not granted an
international protection status in one Member State, or if the status is withdrawn or cancelled,
the same treatment should apply in all other Member States. The Commission argues that the
exclusion principles should also apply to subsidiary protection."6
While the Commission notes that terrorists are more likely to pursue illegal migration
channels rather than using asylum procedures, it nonetheless argues for a more rigorous
application of the exclusion clauses to asylum determinations. Crucially,
108.EC Commission, Working Document: The relationship between safeguarding internal security and
complying with international protection obligations and instruments, Brussels, 5 December 2001,
COM(2001) 743 final. The Working Document was issued in response to Conclusion 29 of the
Extraordinary Justice and Home Affairs Council Meeting of 20 September 2001, a meeting fol
lowing the 11 September 2001 terrorist attacks on the US. In that Conclusion the Council asked
the Commission 'to examine urgently the relationship between safeguarding internal security and
complying with international protection obligations and instruments'.
109.Convention relating to the Status of Refugees (189 UNTS 137, adopted 28 July 1951, entered into
force 22 April 1954), Arts. l(F)(a)-(c).
110.Working Document, loc. cit., p. 7.
111.Working Document, loc. cit., p. 6.
112.EC Commission, 'Communication: Towards a common asylum procedure and a uniform status,
valid throughout the Union for persons granted asylum'; EC Commission, 'Communication on the
common asylum policy, introducing an open co-ordination method - First Report by the Commission
on the application of Communication COM (2000) 755 final of 22 November 2000'.
113.EC Commission, Communication on the Common Asylum Policy, Introducing an Open Coordination
Method, Brussels, 16 October 2001, COM (2001) 567 final.
114.EC Commission, Communication on the Common Asylum Policy, loc. cit., para. G.
115.EC Commission, Communication on the Common Asylum Policy, loc. cit., para. J.
116.EC Commission, Communication on the Common Asylum Policy, loc. cit., 1.7.
the Working Document notes that a common EU definition of terrorist offences 'may be a
basis for relying on Article l(F)(b)' as well as being 'a helpful way of illuminating UN
standards of ... "terrorist acts", and hence serve as an interpretative aid to application of
Article l(F)(a) or l(F)(c)'.117 The standard of proof in exclusion procedures is lower than in
criminal proceedings, since a State need only show that there are 'serious reasons for
considering' that a person has committed terrorist crimes."8
Article l(F)(a) of the Refugee Convention states that refugee status cannot be granted to a
person where there are 'serious reasons' for considering that 'he has committed a crime
against peace, a war crime, or a crime against humanity'. The Commission notes in this
regard that terrorist acts may constitute 'war crimes' if committed in a war context.119 Article
l(F)(b) further provides that refugee status cannot be granted to a person where there are
'serious reasons' for considering that 'he has committed a serious non-political crime outside
the country of refuge prior to his admission to that country as a refugee'. Here the Commission
notes that particularly cruel actions, even if committed with a political objective, can be
classed as serious non-political crimes amenable to extradition.120
Moreover, Article l(F)(c) states that refugee status cannot be granted to a person where
there are 'serious reasons' for considering that 'he has been guilty of acts contrary to the purposes
and principles of the United Nations'. In this respect, the Commission invokes UN General
Assembly Resolutions which declare that 'acts, methods and practices of terrorism are contrary
to the purposes and principles of the United Nations' and that 'knowingly financing, planning
and inciting terrorist acts are also contrary to the purposes and principles of the United
Nations'.121
The linkage of terrorist offences to the grounds for exclusion under the Refugee
Convention may also affect the re-examination and cancellation of refugee status after it
has been granted.122 It may also permit the use of accelerated asylum assessment regimes with
fewer procedural rights, allowing for the dismissal of asylum claims as 'manifestly unfounded'
without the examination of the 'inclusion' clauses.123 This is despite the insistence by the
European Parliament that the inclusion clauses of the Refugee Convention should be considered
before any exclusion clauses.124 The linkage may have implications for the treatment of
suspected terrorists, who may subsequently be detained, prosecuted or extradited.125
Further, where a refugee has committed a terrorist act which amounts to a serious crime on
the territory of the country of refuge, the protection against refoulement
117.Commission Working Document, loc. cit., para. 1.1.2.
118.Commission Working Document, loc. cit., para. 1.4.4.
119.Commission Working Document, loc. cit., para. 1.1.1.
120.Commission Working Document, loc. cit., para. 1.1.1.
121.Commission Working Document, loc. cit., para. 1.1.1.
122.Commission Working Document, loc. cit., paras. 1.2, 1.2.1.
123.Commission Working Document, loc. cit., para.. 1.4.3.2.
124.European Parliament, Session Document, Report of the Committee on Citizens' Freedoms and Rights,
Justice and Home Affairs on Asylum: Common Procedure and Internal Security (2002/2053(COS)),
22 July 2002, FINAL A5-0257/2002, para. 9.
125.Commission Working Document, loc. cit., paras. 1.6, 2.1, 15 2.4.
may be withdrawn.126 Article 32(1) of the Refugee Convention permits States to lawfully expel
refugees from their territory on grounds of national security or public order. Further, Article 33
(2) provides that the benefit of non-refoulement 'may not, however, be claimed by a refugee for
whom there are reasonable grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a final judgement of a particularly serious
crime, constitutes a danger to the community of that country'.
The Working Paper acknowledges that certain protections against refoulement are absolute
and permit no derogation even during a public emergency threatening the life of the nation,
such as those under the Torture Convention, the International Covenant on Civil and
Political Rights (ICCPR) and the European Convention on Human Rights (ECHR).127 Yet the
Commission states that after 11 September 2001, 'the European Court of Human Rights may
in the future again have to rule on questions relating to the interpretation of Article 3, in
particular on the question in how far there can be a "balancing act" between the protection
needs of the individual, set off against the security interests of a state'.128 This may be
particularly relevant to the 'unresolved' legal position of persons excluded from protection but
who are not removable,129 especially since the question of indefinite detention remains
controversial.
Responding to the Working Document, the European Council on Refugees and Exiles (ECRE)
argues that 'in a climate of numerous challenges to asylum, the exclusion clauses of the
Refugee Convention should not become another avenue by which deserving cases are denied
access to international protection'.130 Article IF of the Refugee Convention is 'a limitation on
a human rights provision' and accordingly 'needs to be interpreted restrictively and after
extreme caution has been exercised'.131 UNHCR similarly concluded that 'the exclusion clauses
are of an exceptional nature and should be applied scrupulously and restrictively because of the
potentially serious consequences of exclusion from refugee status for the individual
concerned'.132 Moreover, ECRE states that the framework of EU legislation and procedures
concerning the exclusion clauses proposed in the Working Document 'might not be fully in
line with international principles of refugee protection'.133 ECRE has particular concerns about
the application of the exclusion clause, the handling of asylum requests, and the legal
consequences of exclusion.
In the absence of an international definition of 'terrorism', ECRE views the debate on the
application of the refugee exclusion clauses 'with grave concern', particularly since 'terrorism'
is not listed as a ground of exclusion in Article IF of the Refugee
126.Commission Working Document, loc. cit., para. 1.3.
127.Commission Working Document, loc. cit., para. 2.3.1.
128.Commission Working Document, loc. cit., para. 2.3.1.
129.Commission Working Document, loc. cit., para. 2.4.
130.ECRE, loc. cit.
131.ECRE, loc. cit.
132.UNHCR, Lisbon Expert Roundtable (3-4 May 2001): Global Consultations on International Protection,
Summary Conclusions - Exclusion from Refugee Status, EC/GC/01/2Track/l, 30 May 2001.
133.ECRE, loc. cit.
Convention.134 ECRE argues for a strict application of the exclusion clauses and believes that EU
Member States must 'examine on a case by case basis whether the offences committed by
asylum seekers accused of "terrorism" amount to one of the excludable crimes enlisted in
Article IF'. ECRE stresses 'that an EU common definition of terrorism will not replace the
need for an international agreement on the definition of terrorism and on which terrorist acts
fall automatically within [...] Article 1F'.13S
In its preliminary observations on the EU Framework Decision, UNHCR stated that
'internationally agreed criteria defining terrorist acts are relevant' to the interpretation of the
exclusion provisions.136 Yet UNHCR was critical of the initial breadth of the definition of
terrorism in the Commission Proposal, believing that many of the acts criminalized as
terrorist 'may not always be of the level of gravity required to activate the operation of the
exclusion clauses'.137 These included the offences of extortion, theft or robbery, and unlawful
seizure of or damage to public facilities, which were significantly altered in the final
Framework Decision.
UNHCR also had concerns about the offence of threat and the terrorist group offences,
which 'may potentially be interpreted to refer in fact not to crimes at all, but rather to
activities that could be viewed as the legitimate exercise of recognized human rights'.138
UNHCR argued that 'the vague and broad-brush approach' of the proposal 'may risk to widen
unjustifiably the applicability of the Convention's exclusion clauses through the interpretive
"back door'".139 In particular, UNCHR warned that common criminals whose activities do 'not
rise to the level of an excludable act in accordance with the standards developed over the
years of interpretation' should not be regarded as terrorists excludable from refugee
protection.14C
In relation to the terrorist group offences, UNHCR and ECRE shared serious concerns.
UNHCR notes that the exclusion clauses 'require either personal participation or personal
knowledge and responsibility in the sense of contributing to the impugned acts, or failing to
stop them'.141 According to UNHCR, the offences of directing, promoting, supporting or
participating in a terrorist group risk excluding individuals 'who may merely participate in
legitimate expressions of political or other opinion, without any knowledge or responsibility for
the encouragement of or support to crimes' .142 This would be contrary to State practice and
international jurisprudence.143
While the term 'terrorist group' was subsequently defined in the Framework Decision,
limiting the range of activities falling within such offences, UNHCR's central concern remains
valid. ECRE similarly emphasizes that it is the 'underlying offences committed by the group
the applicant is a member of, rather than the fact that it is a
134.ECRE, he. cit.
135.ECRE, he. cit.
136.UNHCR, 'Preliminary Observations', he. cit., paras. 1-2.
137.UNHCR, 'Preliminary Observations', he. cit., para. 2.
138.UNHCR, 'Preliminary Observations', he. cit., para. 2.
139.UNHCR, 'Preliminary Observations', he. cit., para. 3.
140.UNHCR, 'Preliminary Observations', he. cit., para. 4.
141.UNHCR, 'Preliminary Observations', loc. cit., para. 5.
142.UNHCR, 'Preliminary Observations', loc. cit., para. 5.
143.UNHCR, 'Preliminary Observations', he. cit., para. 5.
"terrorist" group that should be the focus'.144 Mere membership of the group is not sufficient;
rather the assessment should focus on the individual's circumstances, personal and knowing
participation, or degree of responsibility or association. As such, ECRE believes the idea of a
terrorist group 'could not be used meaningfully' with regard to the exclusion clauses.145
One asylum measure already taken by the EU taken is a much-criticized146 Common Position
on Combating Terrorism (Common Position 2001/930) of late December 2001, which
implements UN Security Council Resolution 1373 of 28 September 2001l47 with some
modifications.148 While primarily requiring the freezing of terrorist funds,149 Common Position
2001/930 also requires States to deny safe haven and the use of EU territory to terrorists150
and prevent the movement of terrorists.151 Further, Article 16 requires States to take appropriate
measures before granting refugee status to ensure that an asylum seeker has not 'planned,
facilitated or participated in the commission of terrorist acts'. Article 17 requires States to
'ensure that refugee status is not abused by the perpetrators, organizers or facilitators of
terrorist acts and that claims of political motivation are not recognized as grounds for refusing
requests for the extradition of alleged terrorists'.
Although such measures must be taken in accordance with national and international law
(including human rights law), Common Position 2001/930 does not itself contain a definition
of terrorism to be applied for the purposes of asylum determination or refugee exclusion. This
absence is curious because another Common Position adopted on the same day152 explicitly
stated that the definition of terrorist offences in the EU Framework Decision applies for the
purpose of identifying proscribed terrorist persons,
144.ECRE, loc. cit.
145.ECRE, loc. cit.
144.The European Parliament passed a resolution criticizing the Council's decision to adopt Common
Positions 2001/930 and 2001/931 and an implementing Regulation and Decision: European Parliament,
Resolution on the Council's decision of 27 December 2001 on Measures to Combat Terrorism,
P5_TA(2002)0055, 7 February 2002, Official Journal C284 E/313 (21 November 2002); Council
Regulation (EC) No. 2580/2001 of 27 December 2001 on specific restrictive measures directed against
certain persons and entities with a view to combating terrorism; Council Decision 2001/927/EC of
27 December 2001 establishing the list provided for in Art. 2(3) of Council Regulation (EC) No
2580/2001.
145.EU Council, Common Position on Combating Terrorism (2001/930/CFSP), 27 December 2001,
Official Journal L344/90 (28 December 2001).
146.Statewatch, 'EU announces first lists of terrorists', 8 January 2002: <http://www.statewatch.org/
news/2002/Jan./02euter.htm>. Arts. 1 to 15 of Common Position 2001/930 correspond to points
1 (b) to (d), 2(a) to (g) and 3(a) to (e) of the UNSC Resolution.
146.Council Common Position 2001/930, loc. cit., Arts. 2 and 3.
147.Council Common Position 2001/930, loc. cit., Arts. 6 and 7.
148.Council Common Position 2001/930, loc. cit., Art. 10.
147.The Common Position on the Application of Specific Measures to Combat Terrorism implements
UNSC Resolution 1373(2001) by requiring the freezing of the funds and assets or economic resources
of persons, groups and entities involved in terrorist acts listed in an Annex: EU Council, Common
Position on the Application of Specific Measures to Combat Terrorism (2001/931/CFSP), 27 December
2001, Official Journal L344/93 (28 December 2001), implemented by Regulation 2580/2001, Official
Journal 2001 L344/70 and Decision 2001/927, Official Journal 2001 L344/83.
groups and entities whose assets are to be frozen.153 Presumably, the definition of terrorism in
the EU Framework Decision would be the operative definition of terrorism applicable to the
asylum measures adopted in Common Position 2001/930. If so, the danger of automatic
exclusion of terrorists as described above would be applicable to the implementation of
Common Position 2001/930.l54 If not, great unfairness may result from applying punitive
measures against 'terrorists' when that term remains undefined for the purposes of Common
Position 2001/930.
7. IMPLEMENTING INTERNATIONAL TREATIES
The Explanatory Memorandum briefly discusses existing international anti-terrorism
conventions, most of which have been signed and ratified by EU Member States, and
asserts that the Proposal 'will facilitate the implementation of those conventions as far as they
concern penal law since they refer to the same issue: terrorist offences'.155 It refers in particular to
two recent conventions: the UN Convention for the Suppression of Terrorist Bombings 1997 and
the UN Convention for the Suppression of Financing Terrorism 1999.
This assertion is, however, overly-simplistic. The Proposal may facilitate the
implementation of international conventions to the extent that the definitions of terrorist
offences contained in those treaties are consonant with the offences in the Commission
Proposal. However, no international convention currently defines terrorist offences generically
by reference to motive in the manner in which the Commission Proposal suggests. Indeed, by
departing from the offences agreed to in international forums, the EU risks subverting rather than facilitating - the implementation of those conventions. Alternatively, it may
encourage the development of a generic international definition, as regional law influences
the development of international law. Much will depend on subsequent state practice.
The Framework Decision avoids the question of what happens if there is a conflict between
the provisions of a specific international anti-terrorism convention and the generic definition in
the Decision itself. Terrorist conduct will often fall within the scope of offences adopted
under the twelve existing anti-terrorism conventions and the generic offence adopted by
States pursuant to the Framework Decision. In such cases, prosecutors will have a choice of
charges and the Decision gives no guidance about which charges are to be preferred.
In contrast, the Draft UN Comprehensive Convention is still grappling with the
formulation of a provision on this issue. Draft Article 2 bis states that where the convention
and a treaty dealing with a specific category of terrorist offence would apply to the same act, as
between States that are parties to both treaties, the provisions of
the specific treaty shall prevail.156 While this provision received wide support following intensive
consultations by the Working Group in October 2001, during the October 2002 consultations
several delegations sought to reopen discussion.137 Many delegations wanted 'a clear and
unambiguous expression of the relationship between the comprehensive convention and the
sectoral conventions included in the text of the comprehensive convention'.158 Other
delegations had preferred no provision on the relationship between the conventions, but were
willing to consider proposals. The final wording of the provision may depend on the
resolution of other disagreements.15'
8.
CONCLUSION
Historically, technical disputes about the intricacies of drafting an acceptable definition of
terrorism have obscured more fundamental questions about the policy rationale for defining
and criminalizing terrorism in the first place. The need for definition and criminalization
cannot be simply assumed; it is incumbent on those advocating definition and criminalization to
produce persuasive reasons for action. In recent years, the EU and UN have fashioned common
justifications, regarding terrorism as a special moral crime against human rights, politics, and
international relations. Recent efforts also hope that definition will achieve the harmonization
of domestic laws; improve transnational law enforcement by confining the political offence
exception to extradition; assist in the denial of asylum and refugee status to terrorists; and
aid the further implementation of existing international anti-terrorism treaties.
The success of definition will be extremely difficult to measure and criminalization has a
number of possible implications for criminological policy. Bassiouni notes that incapacitation
through imprisonment is 'the most logical and credible theory' of punishment in relation to
terrorists, since it neutralizes the threat of the offender repeating his or her conduct. Yet
incapacitation is already served by treating terrorist acts as ordinary criminal offences. This
rationale does not, therefore, provide a justification for criminalizing terrorism, since the same
result is already achieved by prosecuting such acts as ordinary domestic crimes.
The only argument that can be made on this front is that specifically terrorist offences may
provide for enhanced penalties, in recognition that terrorist offences are more serious than
ordinary crimes. As Cassese notes, international criminal law has historically prohibited
certain conduct without agreeing on a scale of penalties, 'due to widely differing views about
the gravity of the various crimes, the seriousness of guilt for each criminal offence, and the
consequent harshness of punishment'.160 An international convention could, however, specify
particular penalties attaching to terrorist offences.
156.UNGA, Report of the Ad Hoc Committee (2002), loc. cit., p. 7.
156.UNGA (Sixth Committee), Report of the Working Group on Measures to Eliminate International
Terrorism, 16 October 2002, UN Doc. A/C.6/57/L.9, Annex II, p. 8.
157.UNGA (Sixth Committee), Report of the Working Group (2002), loc. cit., Annex II, p. 8.
158.Particularly Draft UN Comprehensive Convention, loc. cit., Art. 18.
159.A. Cassese, loc. cit., p. 157.
Retribution or punishment is the dominant justification for criminalizing terrorism as a
distinct crime. Stigmatizing and condemning terrorist offenders as terrorists serves a powerful
social function and provides a sense of justice to victims of terrorist crimes.161
Criminalization aims to promote general and specific deterrence of terrorism, both through the
availability of imprisonment and by morally stigmatizing offenders as terrorists rather than
as ordinary criminals.
It is open to doubt whether terrorists themselves are likely to be deterred by either
imprisonment or condemnation by legal systems whose very legitimacy they may well
reject. The publicity gained by detention may even be beneficial to the offender's cause or have
a martyr effect.162 Those prepared to sacrifice themselves in suicide attacks are particularly
unlikely to be concerned about apprehension and criminal penalties. It is also for these reasons
that rehabilitation is 'particularly inapplicable to the ideologically-motivated offender', who is
'opposed in whole or in part to the social system into which he is to be resocialized'.163
Nonetheless, for international or regional communities, criminalization remains a useful
symbolic mechanism for delineating politically and morally unacceptable behaviour. It may
well be too much to expect that the criminal law will have any real effect in suppressing
terrorist violence. Such expectation may indeed be an exercise of deception, irrationality or quasireligious hope.164 Yet turning even an irrational hope against terrorist violence is not a bad thing,
nor is it a mere expression of impotence. Criminalization is worthwhile if all it does is help us to
recognize and condemn violence for what it is - even if we know that it is likely to continue
for a long time to come. If criminalization gives even one would-be terrorist pause for thought,
that is a bonus.
161.M.C. Bassiouni, 'A Policy-Oriented Inquiry into the Different Forms and Manifestations of
"International Terrorism"', in M.C. Bassiouni (ed.), Legal Responses to International Terrorism:
US Procedural Aspects (Dordrecht 1988) p. xv at p. xlii.
162.M.C. Bassiouni, 'A Policy-Oriented Inquiry', op. cit.
163.M.C. Bassiouni, 'A Policy-Oriented Inquiry', op. cit., pp. xli-xlii.
164.I. Tallgren, 'The Sensibility and Sense of International Criminal Law', 13 European Journal of
International Law (2002) p. 561.