Defining Terrorism: The Need for a Restrained Definition

• Author: Kent Roach
• Pages: 97-127

Def‌ining Terrorism:

The Need for a Restrained Def‌inition

Kent Roach

A. INTRODUCTION

One of the more diff‌icult issues discussed in the meetings leading to

the Ottawa Principles on Anti-terrorism and Human Rights1 was whether

they should address or endorse any def‌inition of terrorism. The fact

that the group that met in Ottawa spent considerable time on this issue

and had diff‌iculty reaching agreement on it should not be surprising.

It is well known that a general def‌inition of terrorism has so far eluded

international agreement. Instead, the existing conventions on terrorism

focus on specif‌ic forms of terrorism such as hijackings, bombings, and

most recently nuclear terrorism.

However diff‌icult the task of def‌ining terrorism may be, it is neverthe-

less an urgent necessity to agree on a restrained def‌inition of terrorism

that is based on basic criminal law principles. New anti-terrorism laws

are being enacted throughout the world2 and many of these laws contain

unnecessarily broad def‌initions of terrorism with terms and mandates

1 See the Ottawa Principles on Anti-terrorism and Human Rights at Part One in this

book [Ottawa Principles].

2 See, generally, the country reports submitted to the UN Security Council, Counter-

Terrorism Committee, Reports Submitted by Member States Pursuant to Resolution

1373 (2001), online: www.un.org/sc/ctc/countryreports.shtml. See also Victor

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that are better suited to the collection of security intelligence than the

enforcement of the criminal law. A restrained and precise def‌inition of ter-

rorism that focuses on intentional acts of violence could respond to many,

albeit not all, legitimate concerns that anti-terrorism efforts will infringe

human rights. A precise def‌inition of terrorism that concentrates on the

murder and maiming of civilians could become a unifying point that focus-

es on the worst forms of terrorism, while also providing maximal protec-

tion for dissent and protest. It should also provide the most f‌irm and broad

foundation for denouncing and condemning the type of terrorism seen on

September 11 and afterwards in Bali, Madrid, London, and elsewhere.

Failure to agree on a def‌inition of terrorism is a luxury that can no

longer be afforded in the present context of increased anti-terrorism laws

and activities. Over one half of all states now have a general def‌inition of

terrorism in their domestic laws and these def‌initions suffer from a lack

of international guidance on the meaning of terrorism.3 The absence of a

precise and restrained def‌inition of terrorism has allowed many states to

def‌ine the term in an overly broad manner that raises concerns that some

forms of protest and civil disobedience will be caught within the def‌in-

ition of terrorism and be subject to the special powers, procedures, and

penalties that many states reserve for crimes of terrorism. The United Na-

tions Security Council is particularly complicit in this endeavour because

Ramraj, Michael Hor, & Kent Roach, eds., Global Anti-Terrorism Law and Policy

(Cambridge: Cambridge University Press, 2005).

3 As Ben Saul argues, a legal def‌inition of terrorism could help provide a restrained

alternative to the use of war and extra legal measures.

Set against the vain hope of pounding terrorists into oblivion through war, the

criminal law offers the promise of restraint: individual rather than collective re-

sponsibility; a presumption of innocence; no detention without charge; proof of

guilt beyond a reasonable doubt; due process; the right to prepare and present

an adequate defence; independent adjudication; and rational and proportionate

punishment . . . . In the absence of any “law of terrorism” in public international

law, it is not suff‌icient to leave the def‌inition of terrorism to individual gov-

ernments, as the Security Council has done. Def‌inition . . . could normatively

express and articulate the wrongfulness of terrorism . . . and restrain excessive

national counter-terrorism responses . . . . In the absence of def‌inition, a lingering

“conceptual chaos” . . . privileges those in the hegemonic position to def‌ine and

interpret “terrorism” and to erratically brand it upon their enemies.

Ben Saul, Def‌ining Terrorism in International Law (Oxford: Oxford University Press,

2006) at 316–17 and 320.