Countering Terrorism at the International Level

• Author: Craig Forcese
• Profession: Faculty of Law, Common Law. University of Ottawa
• Pages: 179-254

179

cha Pter 6

COUNTERING

TERRORISM AT THE

INTER NATIONAL LEVEL

Whatever else it may be, an act of terrorism is almost cert ainly a crime.

Indeed, as disc ussed in detail later in this chapter, the common re-

sponse to terrorism has come in the form of international and domestic

crimina l law. Terrorism is, however, an unusual crime. It is overtly

political, and often intended to destabilize t he politica l, soci al and /or

economic status quo. As such, ter rorism is a crime with potential geo-

political repercussions.

Two events, separated by almost a century, underscore this point.

In 1914, Archduke Franz Ferdinand of the Austro-Hungarian Empire

was assassinated by a Serb terrorist in Sarajevo, ultimately precipitat-

ing the First World War. On September 11, 2001, Islamist terrorists

brought down the twin towers of the World Trade Center in New York,

damaged the Pentagon in Washington and hijacked and crashed an-

other f‌light in Pennsylvania, prompting the subsequent invasion of Af-

ghanistan and creating a climate for the Bush administration’s “war on

terror” and its doctrine of “pre-emptive self-defence.” Since that day,

the threat from terrorism has predominated national secur ity policy in

much of the world, and indeed has had signif‌icant impacts on every-

thing from law enforcement to foreign policy.

This chapter begins by brief‌ly describing the n ature of the ter ror-

ist threat. It then examines the response to terrorism from the optic of

international law, specif‌ically, the international law on the use of force

and international cr iminal l aw.

NATIONAL SECUR ITY LAW180

Part i: terrOriSm and natiOnal

Secur ity

The word “terror ism” stems from the French equivalent “terrori sme,”

an expre ssion devised during the French revolution’s tumultuous

“reign of terror.” In colloquial English, “terrorism” is def‌ined as a “pol-

icy intended to strike w ith terror those against whom it is adopted;

the employment of methods of i ntimidation; the fact of terrorizing or

condition of being terrorized.”1

Much hinges on def‌inition. A s th is chapter outli nes, t he diff‌iculty

in devising a precise legal def‌inition of terrorism has sty mied efforts

to criminal ize terrorism per se in international law. For the purposes

of this initial, nonlegal discussion, however, this chapter accepts the

understanding of terrorism employed by the U.S.-based Memorial Insti-

tute for the Prevention of Terrorism (MIPT), an agency that collects the

terrorist stati stics discus sed below. This entity def‌ines terrorism as

violence, or the threat of violence, calculated to create an atmosphere

of fear and alarm. These acts a re designed to coerce others into ac-

tions they would not otherwi se undertake, or refr ain from actions

they de sired to take. All terrorist acts are crimes. Many would al so

be violation of the rules of wa r if a state of war existed. Thi s violence

or threat of violence is generally directed again st civilian tar gets. The

motives of al l terrori sts are political, and ter rori st actions a re gener-

ally carried out in a way that will achieve maximum publicity. Unlike

other criminal acts, terrori sts often claim credit for their acts. Finally,

terrorist acts are intende d to produce effect s beyond the im mediate

physical damage of t he cause, having long-term psychological re-

percussions on a particular target audience. The fear created by ter-

rorists may be intended t o cause people to exaggerate the strengths

of the ter rorist and the i mportance of the cause, to provoke gover n-

mental overreaction, to discourage di ssent, or simply to intimidate

and thereby enforce compliance w ith their demands.2

For reasons discussed at length l ater in th is chapter, terror ism is usu-

ally a term reserved for nonstate actors, although there is a popular

discourse on so-called state terrorism; that is, violence directed at civil-

ians by governments themselves.3

1 Oxford English Dictionary, onli ne.

2 MIPT Terrorism Know ledge Database, online: w ww.tkb.org.

3 As discu ssed below, this form of state mis feasance is captured by i nternational

human right s and humanitaria n law and while the latter doe s include a prohibi-

Countering Terror ism at the International L evel 181

a. PaSt PatternS OF terrOriSm

Terrorism ha s both a lengthy h istorical pedigree and a stubborn per-

sistence in contemporary times. David R apoport has w ritten of sev-

eral modern “waves” of terrorism: the anarchist wave at the end of t he

nineteenth centur y; the a nticolonial wave, beginning in the 1920s but

concentrated i n the post-WWII period; the leftist wave of t he 1970s,

and today’s relig ious wave.4 To this list, other scholars add the fa scist,

paramilitary wave in Europe in the interwar years, and insurgencies

with terrorist trappings (and inspiring terrorist imitators) in postwar

China and post-Soviet invasion Afghanistan.5 Sectarian and insurgency

violence in contemporar y Iraq may fuel yet a nother wave (or augment

the e xisting religious wave) in a manner that will have ripple effects

outside of that country, including in the form of newly radicalized, so-

called home-grown terrori sts.6

Various institutions, including the U.S. State Department, t he

RAND Institute and more recently the MIPT, have tried to monitor the

empirical scope of ter rorist violence. These f‌igures should be treated

with caution, given political disputes over the meaning of terrorism.

The State Department f‌igures in pa rticular have been adjusted (up-

wards) in response to chang ing methodologies.7 Nevertheless, these

numbers are revealing.

The MIPT databa se of terrorist acts between 1968 and Januar y 2007

lists almost 40,000 terrori st incidents, producing 105,000 injuries and

tion on terrori st acts by state armed forces i n armed conf‌lict, the concept of

state terror ism per se is alien to inter national law.

4 David C. Rap oport, “The Four Waves of Modern Terrorism,” in Audrey Cronin

& James Ludes, ed s., Attacking Terrori sm: Elements of a Grand Strategy (Wash-

ington: Georgetow n University Press, 200 4) at 46–73.

5 Mark Sedgw ick, “Inspiration and the O rigins of Global Waves of Terrorism”

(2007) 30 Studies in Con f‌lict and Terrorism 97.

6 See “Declas sif‌ied Key Judgments of the U.S. Nationa l Intelligence Estimate,”

Trends in Global Terrorism: Implicatio ns for the United States (April 2006) (“We

assess t hat the Iraq jihad is shapi ng a new generation of terrorist le aders and

operatives; per ceived jihadist success t here would inspire more f‌ighters to con-

tinue the str uggle elsewhere”), online: http://hosted.a p.org /specials/interac tives/

wdc/documents /terrorism/k eyjudgments_09260 6.pdf. See also discus sion in

James Gordon, “Iraq War Bre eds More Terrorists” The Ottawa Citizen (22 June

2005) A1; Greg Miller, “Spy Agencies Sa y Iraq War Fuels Terror” Los Angeles

Times (24 September 2006).

7 See, for example, the c ritique in Center for Defense In formation, Ter ro r-

ism Statistic s Flawed (Apri l 2006), online: www.cdi.org/progr am/document.

cfm?DocumentID =3391. See also Susan Gla sser, “U.S. Figures Show Sharp

Global Rise in Terror ism” Washington Post (27 April 20 05) A.01.