Defining Terrorism: Why and How

• Author: Cathleen Powell
• Pages: 128-164

Def‌ining Terrorism: Why and How

Cathleen Powell1

A. INTRODUCTION

There was an underlying conf‌lict between two main approaches at the

2006 Ottawa Colloquium on the Human Rights of Anti-terrorism. On

the one hand, some participants wanted to redress the abuses of the

anti-terrorism regime by denying it the status of a separate legal regime

and forcing governments to comply with the “normal” legal procedures

in the range of anti-terrorism areas under discussion. On the other hand,

some participants wanted to codify and constrain current government

practice against terrorism, recognizing the existing anti-terrorism pro-

grams of governments and incorporating them into a legal regime that

sets human rights-based limits on the measures that a government can

take in defence of security. The goals of these two approaches are not

mutually exclusive and it was often possible to f‌ind common ground.

1 Part of this article is an adaptation of part of an earlier article: C.H. Powell & Garth

Abraham, “Terrorism and International Humanitarian Law” (2006) 1 African Year-

book on International Humanitarian Law 118–47. I am grateful to Garth Abraham,

and to the editors of the African Yearbook, for permission to reprint part of this

article. Thank you, too, to Grant Tungay and Simon van Dugteren for their research

support, and Salim Nakhjavani and Jewel Amoah for their comments on earlier

drafts.

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def‌ining terrorism: why and how 129

However, some fundamentally different premises underlie the two ap-

proaches, and several of the colloquium discussions brought these dif-

ferences into sharp relief.

One extremely controversial issue was that of def‌inition. Some par-

ticipants vehemently rejected def‌ining terrorism at all. In their view, the

existing criminal law dealt adequately with any crimes that might form

part of terrorist acts, and anti-terrorism regimes created by governments

were at best redundant and at worst a shield for the misuse of power

to abuse individual rights. A def‌inition of terrorism would validate this

abuse by forming the basis of a separate legal regime and acknowledging

the qualitative difference between terrorism and other crimes.

In this chapter, I will argue that a def‌inition of terrorism is neces-

sary, both in the international sphere and within domestic legal systems.

In doing so, I proceed from three main premises: f‌irst, that terrorism

is a phenomenon that may require special rules and special processes,

particularly as it is one of the crimes for which the emphasis must be

on prevention rather than prosecution; second, that there is already in

existence a substantial anti-terrorism program at both the international

and the domestic levels; and, third, that this program is heavily domin-

ated by the executive branch of government. From these premises, I will

argue that the rule of law requires that the anti-terrorism program needs

to be brought into a legal framework and subjected to legal control. For

this to be done effectively, terrorism must be def‌ined and the anti-ter-

rorism program placed on a secure and determinate legal foundation.

The main body of the paper is devoted to the problem of def‌inition at

an international level. Section B describes the current international re-

gime against terrorism and analyzes the existing attempts at def‌inition.

It reveals that the current practice of states is either not to def‌ine ter-

rorism or to def‌ine it in an indeterminate manner. This section focuses

on the problems that have dogged def‌inition and sug gests an approach

which has the capacity both to ensure reliable cooperation against ter-

rorism and to create an effective constraint on state, and executive,

power.

Section C will examine the extent to which the theoretical frame-

work suggested for international law can be transposed to the domestic

level, identifying the factors that make it necessary to adapt the def-

inition in a domestic context. Although the def‌inition should take a

slightly different form at the domestic level, it is still needed as a means

cathleen powell130

to facilitate a working system against terrorism, to constrain the anti-

terrorism regime already existing in most states, and to bring anti-ter-

rorism under the rule of law.

B. THE INTERNATIONAL ANTI-TERRORISM REGIME

1) The Existing Anti-terrorism Regime

This regime is grounded in a wide-ranging United Nations Security

Council (Security Council) program and a number of international treat-

ies. Over the past decade, the Security Council has taken both legisla-

tive2 and executive measures against terrorism in the course of more

than forty resolutions (Security Council Resolutions), and it has built up

an extensive bureaucracy to monitor and administer state compliance

with the obligations that the resolutions impose.

Some of the general, substantive obligations have been imposed on

states through Chapter VII of the Charter of the United Nations,3 which

renders them binding.4 These obligations include the following: not to

provide any kind of support to terrorist groups, to prevent terrorist acts

2 In “The Security Council Starts Legislating” (2002) 96 A.J.I.L. 901, Paul Szasz

analyzes the f‌irst of these “legislative” measures against terrorism, namely, Secur-

ity Council Resolution 1373: SC Res. 1373, UN SCOR, 2001, S/RES/1373 [Resolution

1373], and explains why Resolution 1373 constitutes a fundamental shift towards

a new legislative function by the Security Council. For discussion of the legisla-

tive power of the UN Security Council, see Szasz, “The Security Council Starts

Legislating,” ibid. at 901–2; S. Talmon, “The Security Council as World Legislature”

(2005) 99 A.J.I.L. 175; R. Lavalle, “A Novel, If Awkward, Exercise in International

Law-making: Security Council Resolution 1540 (2004)” (2004) 51 Nethl. Int’l L.

Rev. 411; A. Marschik, “The Security Council as World Legislator? Theory, Practice

and Consequences of an Expanding World Power,” IILJ Working Paper 2005/18,

online: www.iilj.org/publications/documents/2005.18Marschik.pdf; E. Rosand, “The

Security Council as ‘Global Legislator’: Ultra Vires or Ultra Innovative?” (2005) 28

Fordham Int’l L.J. 542; and C.H. Powell, “The Legislative Authority of the United

Nations Security Council” in Benjamin Goold & Liora Lazarus, eds., Security and

Human Rights (Oxford: Hart, 2007).

3 Charter of the United Nations, 26 June 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153

(entered into force 24 October 1945) [UN Charter].

4 Under Chapter VII of the UN Charter, the Security Council has the power to

issue binding measures, which all states bear a legal obligation to implement. See

Articles 25, 39, 42, and 103 of the UN Charter, ibid.