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Defining Terrorism: Perfection as Enemy of the Possible

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by Wayne McCormack and Jeffrey Breinholt
Published on January 17th, 2007
ARTICLES

"Politics is the art of the possible." Otto von Bismarck

For the past couple of decades, the world has been striving for a single, all-encompassing definition of terrorism. The current venue for these efforts is the United Nations General Assembly, embroiled in a prolonged unsuccessful attempt to negotiate a Comprehensive Convention on Terrorism, originally proposed by India in 1996. The committee assigned to crafting final language for this treaty adjourned in late November 2006, and is next scheduled to meet in February 2007.

The competing sides in this controversy are each seeking the perfect definition for their respective purposes and making no progress, while there may be a possible definition on which they could compromise. This article reviews the various attempts to define terrorism, and offers one that we believe should be adopted across a number of contexts, thus offering a solution for what currently plagues the delegates attempting to arrive at an acceptable definition in the United Nations.

1. The Conceptual Problem

A comprehensive definition of terrorism is inherently difficult because it is such a highly politicized issue. The difficulty in getting a single definition is driven in part by the goal, which is to label some action beyond the pale of what is permitted by civilization. We sometimes say, infelicitously, that the definition depends on the purpose for which we are using the word. Where the label conclusively defines the prohibition, battles over the definition are bound to be pitched. In truth, most labels do not (or at least should not) carry a conclusion about legality. War can be either legal or illegal, as can homicide or sexual intercourse. Murder is a label attached to a subset of homicide that is illegal, just as rape is a subset of sexual intercourse that is illegal.

Terrorism could be viewed as a subset of homicide and related violence directed against civilians. This label differs from murder, however, because the behavior (violence against civilians) is illegal already under some regime of law and the label is needed only for the purpose of triggering application of other legal regimes. Moreover, once labeled as terrorism, it is difficult to fathom something that would qualify as "justifiable terrorism."

But debating the idea of "justifiable terrorism" is exactly what is happening in midtown Manhattan. The debates at the U.N. over the Comprehensive Convention on Terrorism are now dividing Western countries versus states affiliated with the Organization of the Islamic Conference (OIC). The latter are looking to carve out of the definition of terrorism activities of armed resistance groups involved in "struggles against colonial domination and foreign occupation." Meanwhile, they urge that the activities of regular armed forces which, it should be noted, are already covered by international humanitarian law (IHL) and the law of war (LOAC) should be included in the definition. Neither of these is a position that Western countries are willing to tolerate.

2. The American Definitions

The difficulty in defining terrorism has led the United States to focus its law enforcement efforts at the problem through a legal regime that takes the question of "who is a terrorist" out of the equation for prosecutors. The closest thing that we have to a crime of "being a terrorist" is the offense of "providing material support" to a designated terrorist organization, 18 U.S.C. § 2339B, which, after 9/11, is the American terrorism prosecutor’s best friend. This crime was created in 1996, and is based on an ingenious notion: that the government, as part of its established embargo authority, can announce who it considers to be terrorists, and then prohibit transactions with those people and entities. An individual charged with violating the prohibition cannot argue that the party she is accused of providing with something of value should not be labeled as such, nor that the financial transaction was intended to further the humanitarian (rather than violent) aim of the terrorist group.

Prior to 1996, American prosecutors rarely had to venture into the question of what qualifies as terrorism. Federal law defined a number of prohibited acts that we know from experience are committed by terrorists - like hostage taking, bombing buildings, assassination, and air piracy. People who committed these acts were prosecutable without regard to whether they otherwise met the definition of a terrorist. Even though these crimes include attempt and conspiracy provisions, they are of limited use in redressing terrorist planning before the harm occurs. To get there, American policymakers had to find a way to redress the precursor conduct to terrorism.

How important is the § 2339B offense to our criminal justice system? It reaches deeper into the terrorists’ division of labor, while taking the question of whether a particular organization or activity constitutes terroristic, with its attendant proof problems, out of the vagaries of the adjudicatory system. The standardization of results with regard to violent activity has been deemed worth the imposition on political values inherent in designating an embargoed organization.

In order for the American "material support" crime to pass constitutional muster, there must be some criteria for labeling entities as terrorists, a procedure for those so labeled to challenge their designation, and assurance that the designation does not intrude unduly into political values. Clearly, those so designated have lost something of value - the right to engage in financial transactions on matters related to political objectives with anyone subject to American law. The U.S. terrorist designation process relies on a definition of terrorism that has been enacted by the U.S. Congress. This definition is contained in the Immigration and Nationality Act (Title 8 of the U.S. Code), for it is the same definition used to determine whether an alien within the U.S. should be deported as a terrorist. This definition differs from a variety of terrorism definitions that exist in international treaties, as well as from definitions that have been offered by terrorism and insurgency experts. Even more tellingly, this definition differs from how terrorist is defined is other part of the United States Code.

Let’s start with the definition that is significant for § 2339B prosecution. The U.S. Department of State is mandated by federal law[1] to designate "foreign terrorist organizations" based on three criteria:

o that it is a foreign organization,

o that it engages in terrorist activity,

o and that its terrorist activity threatens the safety of U.S. nationals or the national security of the U.S.

As noted, the definitions relied on to make this decision are contained in Title 8 of the United States Code, which the Immigration and Nationality Act (INA). "Terrorist activity" in turn is defined[2] with four elements (italicized here): "premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents, usually intended to influence an audience." The elements in this definition can be summarized most succinctly as:

1. violence

2. civilian targets

3. subnational or clandestine perpetrator

4. political motivation

The consequences of designation include blocking of the organization’s financial assets in the U.S.[3], prohibiting members of the organization from entering the U.S.[4], and criminalizing provision of material support to the organization.[5] Entities designated under this process are entitled to challenge their label in court[6], and the entire process has been challenged by criminal defendants charged under § 2339B.[7]

Despite the fact that this definition has criminal consequences, there is another definition of terrorism within the U.S. Criminal Code. Section 2331 of Title 18 provides:

(1) the term "international terrorism" means activities that

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;

(B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or(iii) to affect the conduct of a government by mass destruction, assassination or kidnapping; and

(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.

Among the several interesting facets of this statute is the fact that it has virtually no operative significance. Every statute in the chapter to which it refers carries its own definition of terrorism when one is necessary. As the statute itself makes clear, the terrorist act is already a crime by the nature of the act (section 1(A)) without regard to the motivation (section 1(B)).

Yet another, almost equally disconnected, definition[8] is used to modify otherwise applicable statutes of limitations[9] and to enhance punishments under the Federal Sentencing Guidelines when the accused has been convicted of something that is a crime by virtue of another statute.[10]

3. Scholarly Definitions

Christopher Harmon, a faculty member at the Marine Corps Command and Staff College, defines terrorism as "the deliberate and systematic murder, maiming, and menacing of the innocent to inspire fear for political ends."[11] Caleb Carr, writing as a military historian, provides a perspective that shifts the focus to the language and usages of war: "terrorism . . . is simply the contemporary name given to, and the modern permutation of, warfare deliberately waged against civilians with the purpose of destroying their will to support either leaders or policies that the agents of such violence find objectionable."[12]

Harmon and Carr agree that political motivation is an essential factor in defining a terrorist, although it is interesting to think about what happens if the terrorist achieves his or her political objectives. Harmon claims that "when organizations dominated by terror rise to power, they remain antithetical to popular self-government."[13] Carr asserts that "the nation or faction that resorts to warfare against civilians most quickly, most often, and most viciously is the nation or faction that stands the greatest chance of seeing its interests frustrated and, in many cases, its existence terminated."[14] As we will see, there are some groups which, upon approaching their original goals, will escalate the goals to continue the justification for their way of life.

Phillip Heymann employs the more traditional elements of a definition by describing terrorism as "violence conducted as a political strategy by a subnational group or secret agents of a foreign state."[15] This definition reflects most of the elements in the State Department definition and is similar to that found in other U.S. statutes.

Bruce Hoffman offers a useful strategy by contrasting terrorist groups with guerillas and insurgents.[16] Although the distinctions are fuzzy and overlapping[17], they provide a loose guide to the various patterns of organized violence outside of the classic military setting. Guerilla movements may be large-scale quasi-military operations in pursuit of control of territory, while insurgencies are smaller, but still somewhat organized, and have doubtful ability to control territory. Both, however, assert claims to legitimacy in the international arena by hoping to exercise sovereignty at some point. The terrorist typically does not claim to be pursuing sovereignty over particular territory, although the claim to legitimacy may consist of denying the rightful sovereignty of an existing government. Hoffman also distinguishes the terrorist from the ordinary criminal and the lone assassin.[18]

Hoffman’s analysis results in the following elements of a comprehensive definition of terrorism:

o political

o violent

o "designed to have far-reaching psychological repercussions beyond the immediate target"

o conducted by either an organization or loose network

o subnational

4. International Treaties

There are 12 separate U.N. Conventions that deal with terrorism.[19] The principal headings are aircraft crimes, protection of nuclear materials, hostage taking, and the most recent on financing of terrorism. No convention prior to the "Financing of Terrorism" in 1999 attempted to define terrorism. Instead, the conventions described "offenses" and committed signatory nations to criminalize those offenses. In many instances, there were exceptions to the description of offenses such as that the offense of placing an explosive on an aircraft did not apply to military or police aircraft.[20] Another notable exception was that exploding a device in a public place did not constitute an offense under the convention if the perpetrator and victims were nationals of the same nation in which the acts occurred.[21] It was only in these backhanded fashions that the international community addressed the phenomenon known as "terrorism" by excluding from international sanctions some actions that would be criminal under domestic law but not of concern to other nations.[22]

In the Convention for the Suppression of Financing of Terrorism, it finally became necessary to define what the international community conceived to be terrorism.[23] The Financing Convention uses three elements in its definition: violence, civilians, and motivation ("death or serious bodily injury to a civilian, . . when the purpose of such act, . . is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act"). The definition applies, therefore, to acts committed by uniformed government agents, many of which would also be subject to international humanitarian law. The Convention exempts violence against persons engaged in a "situation of armed conflict" to place those persons under the various rules and conventions governing warfare. This is not to say that any person engaged in armed conflict can kill or be killed with impunity but that the rules are to be found elsewhere.

The Draft Comprehensive Convention on Terrorism circulated by India in 1996, and hotly contested ever since, contains this definition:

Article 2

1. Any person commits an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally, does an act intended to cause:

(a) Death or serious bodily injury to any person; or

(b) Serious damage to a State or government facility, a public transportation system, communication system or infrastructure facility with the intent to cause extensive destruction of such a place, facility or system, or where such destruction results or is likely to result in major economic loss;

when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act.

In some versions of the draft, the last clause is printed at the end of, as if part of, subsection (b). If placed there, then (a) would stand alone without a requirement of political motivation and thus cover virtually any act of violence. The purpose requirement (to intimidate a population or coerce a government) contains a host of interesting questions. For example, is the mens rea requirement the best way to delineate the interest of the international community in acts of violence? What is a population? What does it mean to measure an act "by its nature or context?"

5. Blanket Domestic Coverage: The True Value of Multilateral Treaties

When we consider that the Comprehensive Convention on Terrorism, now in its second decade of negotiation, is still bogged down in disputes over the definition of terrorism, we might wonder whether the world is aiming too high. Does there really need to be a universally-accepted definition or terrorism? After all, if all states has the ability to redress unjustifiable murders, would we need to define, for example, politically-inspired murder or actions that result in the death of innocent civilians? Perhaps the inability to arrive at an acceptable definition of terrorism in the U.N. Comprehensive Convention on Terrorism is, in addition to an example of soft thinking about terrorism by certain states with dirty hands, an example of the perfect being the enemy of the good. This conclusion is driven by an understanding of the purpose of multilateral law enforcement treaties.

Most U.N. crime conventions that involve law enforcement are described as "extradite or prosecute" instruments. State parties agree to create domestic laws that allow them to either extradite or prosecute people engaged in certain types of mischief defined in the treaty. The thorny negotiation hurdles arise from, on the one hand, a group of states that want other states to bolster their domestic laws to effectively deal with a type of mischief, versus a group of states that either lack the political will or have a constitutional/legal tradition that makes such a domestic regime difficult to implement.

For example, assume that a group of states have a problem with aliens entering their territories and working illegally. Meanwhile, another group of states do not mind that their citizens are engaging in that behavior because it allows them to keep wages low within their own territories while increasing their net welfare through remittances sent home by their nationals who are gainfully (and illegally) employed in other states. Let’s refer to the groups as "receiving states" and "sending states." They fundamentally disagree on whether illegal immigration is a social problem, but find themselves together negotiating a multilateral treaty on immigration. This can be described as a disparity in political will.

The receiving states want the sending states (and all other states, for that matter) to enact criminal laws that prohibit efforts by all states’ nationals to enter illegally and work in the territories of other states. The sending states, meanwhile, do not want a system that results in the elimination of illegal immigration. Moreover, the sending states may have legitimate constitutional protections that prohibit them from restricting emigration of their nationals.

Faced with this situation, the receiving states should be happy with a treaty that makes the receiving states obligated to be tougher on illegal emigration than they would be without the treaty. The sending states may weigh the prospect of international opprobrium against the costs of doing what they are capable of doing within their constitutional tradition, and opt for a treaty that requires them to be tougher than they would otherwise be without the treaty. "Tougher" in this context could mean a system of education, financial incentives, and even sharing of intelligence data to address the issues without achieving perfect results for either group.

To the receiving states, this treaty is better than no treaty at all; the benefit they get – a bolstered, worldwide standard of emigration standards – will help alleviate some of the problems they experience with illegal immigration. If the receiving states hold out for a treaty that gives them everything they want, they may come away from the process empty-handed. In other words, the perfect ideal has been frustrated by a failure to recognize the possible – what is practically achievable through multilateral negotiation.

Surely, a comprehensive international definition of terrorism would be a good thing. It would be one step towards making terrorism a universal crime that can be prosecuted by an international body. However, is this really necessary? It could be that the achievable goal of a Comprehensive Convention on Terrorism would be sufficient coverage of terrorism-type mischief that would be redressable through the domestic legal regimes of the various state parties, assuming a sufficient number of signatories. If the treaty is an "extradite or prosecute instrument," state parties that chose not to prosecute people who engage in the defined activity would have an obligation to extradite them to countries that would. What if the price of this bargain is treaty language that does not define terrorism as precisely as some of the hard-line (receiving) states would like? While a precise definition may be necessary to adequately limit what states can do, the goal is really to expand what states are required to do as a matter of domestic law enforcement.

A patchwork of sufficiently-bolstered state domestic law enforcement systems driven by multilateral obligations may achieve the goal for international crimes: creating cooperative efforts to deal with the transborder aspects of large criminal organizations without promoting intrusion into the internal affairs of any one nation. It would also make unnecessary the determination of what aspects of terrorism should be subject to international authority, and may not require distinguishing those that could be left to domestic criminal processes.

What if a multilateral treaty obligated all states to have an acceptable criminal justice system to deal with terrorism (or to at least extradite terrorist they catch in their territories to countries with an adequate system and a willingness to prosecute)? Why couldn't the collective states' criminal justice system then be adequate, in lieu of an international criminal enforcement system?

6. Separating Multilateral Obligations from Ordinary Crimes

The adequacy of a collection of strong domestic law regimes to deal with international terrorism, of course, depends on the ability to distinguish between terrorism and "ordinary" violent crime. Most definitions of terrorism rely on the intent of the perpetrator. Is this the proper focus?

The early American experience with terrorism – the post-Civil War phenomenon of the Ku Klux Klan – indicates that the most salient defining characteristic of terrorism is not the purpose of the terrorist but the threat level represented by the terrorist. It is the level of threat, and the organized nature of the perpetrators, rather than their political motive, that should drive the distinction between terrorism and more common violence.

It is not hard to see why the political motive has been embraced as the definitional attribute of terrorism. If a drug dealer shoots an informer on the streets of Los Angeles, that is criminal behavior which would not ordinarily trigger thoughts of any connection to international terrorism. But if the drug dealer lets it be known that his "troops" will conduct drive-by shootings in any neighborhood in which a snitch or informer might be living, this would be more akin to what we think of as terrorism. The violent act is designed to intimidate a population.

The frightening aspect of terrorism, however, is its organizational nature. Such organization requires funding, and the link between drug trafficking and terrorism has been widely reported over the past several decades. If drug money is being used to promote violence and fear within another country, then it seems a perfectly appropriate subject of international cooperation or intervention. The drug lord may exercise violence precisely for the purpose of intimidating and controlling a population. The ultimate goal may be wealth rather than political power, but the results, the tactics and the strategy are virtually identical.[24]

Even if we credit Harmon’s view that terrorism "is always political," we run the risk of ignoring an important international problem if we define terrorism to require it. The terrorist may be motivated by political events and perceived wrongs from the past without having any identifiable political objective for the future. Destroying the means of government or expelling foreign infidels may be motivated by the group’s interest in its own perpetuation, rather than an identifiable political objective. If the results are the same, why does the motive matter? After all, there is no reason to think that political motivation is a fair proxy for dangerousness. By limiting the definition to acts that are inspired by true political (as opposed to avaricious) motives, the robustness of any coverage resulting from multilateral obligations is limited.

Meanwhile, multilateral obligations should not extend to purely local matters. In the early post-Civil War experience of the U.S., Congress acted to quell racial violence by first attempting to legislate directly by creating statutes prohibiting racist actions. Concerned about its constitutional power to do so, it promulgated the Fourteenth Amendment with its familiar Due Process, Equal Protection, and Privileges and Immunities Clauses. The result, like a motivation-limited definition of terrorism, was limited, because the Fourteenth Amendment only acted against the States. It seemed to give Congress no authority over the behavior of nonstate actors. In response, Congress and federal prosecutors developed two theories for dealing with patterned racial violence. One was that violence with transborder implications could be outlawed by federal legislation because it affects interstate commerce. The other was that nonstate actors who take on the appearance of the state could be punished as if they were the state. Both theories recognize that other states have a stake in patterned violence occurring within and unchecked by another state.

Similarly, in the early days of international law, nations believed that their only authority was to act against each other, that they had no authority over the behavior of nonstate actors. Just as the U.S. ultimately came to grips with the debilitating effects of private racial violence, the international community is coming to deal with crimes against humanity and other elements of international humanitarian law. This development is based on the concept that every nation has a stake in patterned violence or mistreatment of identifiable groups, even if this violence occurs entirely within the borders of another state.

The international community shares a concern for the autonomy and viability of their constituent units. This justifies multilateral efforts to require countries to redress conduct that threatens this viability. Organized violence, whether motivated by political or more self-serving goals, threatens this viability. It destabilizes the state. Destabilizing one state may cause the citizens of another state to question the legitimacy of their own government. The failed state creates conditions that foster increased levels of violence within the state, and it promotes exporting of violence to other states.[25]

Closely related to the suprastate interest in state action is the interest in denial of rights. Once a suprastate institution has defined something to be a basic fundamental right of human existence, then that institution should have some interest in protecting that right from encroachment. Any violence that threatens significant injury or death could be construed as a violation of that right because the victim would not be able to exercise that right in the future. After all, the international community has defined basic rights of personhood to be protected interests.[26] The right to personal physical integrity theoretically would be violated by even the most minor instance of assault, but surely not every schoolyard fight is going to become the subject of an international criminal tribunal, nor of domestic laws driven by multilateral obligations.

This is the nub of the suprastate interest in violence – how to define a crime that does not swallow all violence, including the purely local.[27] For the U.S. federal interest, the line has been drawn at actions that occur during or because of the exercise of a federally protected right.[28] Perhaps the international analog is the right to be free from organized, terroristic-type violence, irrespective of its motivation. How do we get there?

6. A Proposed Definition

The similarities between U.S. federalism concerns and global sovereignty concerns reflect a common interest in addressing certain types violence through supra-state law. The reason for supra-state intervention into the affairs of a nation-state is akin to the reason for supra-state intervention by the U.S. federal government into the affairs of a particular U.S. state: the presence of an organization (whether recognized as the state or not) with sufficient resources to carry out violent actions against a civilian population without the state’s being willing or able to control it. An organization acting within the U.S. becomes the concern of the federal government when either (a) it operates across state borders or has interstate connections that make it difficult for a single state to control it, or (b) it is able to create the appearance that the state condones its action. A organization becomes the concern of international organizations when either (a) it operates across national boundaries or has international connections that make it difficult for a single nation to control it, or (b) it is able to create the appearance that a nation condones its action.

The next step is to identify the factors that go into this interest so as to create a test for international terrorism from such precedents as the "widespread and systematic" test of international law and U.S. law's "color of state law: and "class-based animus" tests. Here are the key factors:

o links or connections to official state actors

U.S. law applies to one who acts "under color of state law," of which the best definition may be that the defendant created the "appearance" of acting for the state. The ICT Appeals Chamber rejected this test but noted that many persons who meet the "widespread and systematic" test will have some link to state actors.

o widespread and systematic

This jurisdictional nexus for "crimes against humanity" is found in the statutes of all three tribunals, ICTY, ICTR, and ICC. Something of the sort could be a sensible jurisdictional nexus for genocide as well because of the need to distinguish "serious violations of international humanitarian law" from sporadic incidents of hate crime. The corollary in U.S. law is the conspiracy statute (§ 242). Each of these tests focuses on the scope of the action rather than the intent of the actor. Intent of the actor, however, comes into the crime of genocide in the question of whether the action is taken to "destroy, in whole or in part," a group.

o class-based animus

This test under the U.S. conspiracy statutes is closer to the "persecution" standard and the genocide crime than it is to the "widespread and systematic" test. The difference with genocide is that the U.S. conspiracy law may apply without an intent to "destroy," just an intent to "deprive of rights."

o extent of power to act

A very important consideration could be the degree of harm available to the actor. U.S. law uses "two or more" as a bright-line test to identify those persons who are likely to create harm.

Staying as close as possible to the definition in article 2 of the Draft Comprehensive Convention, but adding the threshold requirements identified above, produces the following definition of a crime of terrorism:

5. A person commits an offense within this Convention when he or she commits an act of "terrorism."

6. "Terrorism" means an intentional act or conspiracy to commit an act, under the circumstances in paragraph 3, intended to cause:

a. Death or serious bodily injury to any person; or

b. Serious damage to a facility important to the health or safety of the public, such as a public transportation system, communication system or infrastructure facility.

7. The acts identified in paragraph 2 are a violation of this Convention if they are done

a. in a manner that could lead a potential target of violence to believe that the actor had apparent authority of a State, regardless of whether that State is a party to the Convention,

b. as part of a systematic campaign to intimidate a particular segment of the population, or

c. in conjunction with others as part of a network or affiliation of persons capable of facilitating acts of violence in more than one State.

Three questions worth further discussion are presented by this definition. One is whether it makes an international crime out of insurgency against an existing government, sometimes referred to as the "freedom fighter" problem. The answer to this one lies in interpretation of the exception in article 18 for the "activities of armed forces during an armed conflict, as those terms are understood under international law, which are governed by that law." On its face, this provision appears to incorporate customary international law, which provides combat immunity for belligerents in a civil war who themselves follow the laws and customs of warfare. The Draft, however, introduces an element of confusion by defining "military forces of a State" to mean only the official military of the State.[29]

The second is whether it makes an international crime out of sporadic localized racial, ethnic, or religious violence. The answer to that question is that it certainly could. That does not mean, however, that external states are likely to take an interest if the state in which the behavior is occurring acts to control it. In the Draft Convention, activity that takes place entirely within a state and is not subject to the interests of another state, is exempted from coverage.

A third question is whether this definition should be limited to subnational actors. Obviously, governmental actors may employ terror as a tool. True enough, but there are existing mechanisms for dealing with governmental abuse of power through enforcement of war crimes, crimes against humanity, and genocide. Not all uses of terror need to be part of the definition of the crime of terrorism. Just as homicide includes a variety of killings other than murder, some of which are also unlawful, terror encompasses a variety of actions other than the crime of terrorism. If the existing mechanisms for dealing with state actors are deemed adequate, then the term terrorism should be reserved for actions of subnational groups that meet the threshold elements suggested here.

7. Conclusion

Multilateral obligations, like those sought to be created by the Comprehensive Convention on Terrorism, are important for another reason: they force countries that want to be compliant with customary international obligations to adopt legal regimes that they might otherwise lack the political will to establish otherwise. It is important that they be reserved for those problems that truly warrant concerted international cooperation.

Limiting the definition of terrorism to political-inspired acts of violence stops short reaching conduct that has true international connotations. Moreover, they result in prolonged debates about who should be considered a terrorist.

The foregoing discussion supports the proposed international definition that reaches the appropriate breadth of coverage while capturing non-local violence, particularly where the true value of multilateral obligations is properly understood. Defining terrorism - a term that is sufficiently loaded that real consequences flow from it - should not seek to be an exercise in perfection. We are, after all, looking to maximize the effectiveness of a system that looks to individual states to act in accordance with their own unique legal traditions. Instead, the policymakers of the world should be guided by legal principles that have been established in analogous settings, and not let the perfect be the enemy of the good.

Wayne McCormack (J.D., University of Texas, 1969; B.A., Stanford, 1966 ) is Professor of Law at the University of Utah St. Quinney College of Law. Professor McCormack joined the Utah faculty in 1978, served as associate dean for academic affairs (1978-82), (1984-87), and (1993-94), and coordinated the University of Utah's involvement with the 2002 Olympic Winter Games (1997-2002). He is the author of numerous articles and books, including Federal Courts (Matthew Bender 1984), Constitutional Law: Principles and Policies (Michie, 1992, 1996; Lexis/Nexis 2002) (with Barron, Dienes, and Redish), and Legal Responses to Terrorism (Lexis/Nexis 2005).

Jeff Breinholt (J.D., UCLA, 1988; B.A., Yale, 1985) is a member of the State Bar of California, and currently serves as the Deputy Chief, Counterterrorism Section United States Department of Justice, where he heads a team of financial prosecutors dedicated to redressing terrorist financing through criminal prosecutions. A white-collar fraud specialist, he joined the Justice Department in 1990. In 2003, he was honored with the Attorney General’s Award for Excellence in Furthering the Interests of U.S. National Security, for his work in crafting creative legal theories that resulted in the initiation of several important prosecutions in the aftermath of 9/11. He is a frequent lecturer on law enforcement and intelligence topics and the author of two books, Counterterrorism Enforcement: A Lawyer’s Guide (DOJ Office of Legal Education 2004), and Taxing Terrorism, From Al Capone to Al Qaida: Fighting Violence Through Financial Regulation (forthcoming 2006). His other recent publications include "How About a Little Perspective? The USA PATRIOT Act and the Uses and Abuses of History," 9 Texas Review of Law & Politics 226 (Fall 2004), "Seeking Synchronicity: Thoughts on the Role of Domestic Law Enforcement in Counterterrorism," 21 American University International Law Review (forthcoming December 2005) and "Getting Real About Privacy: Eccentric Notions of Privacy in the Post-9/11 World," University of Illinois Journal of Law, Technology and Policy (forthcoming Winter 2006). He is a Research and Practice Associate at the Syracuse University Institute for National Security and Counterterrorism (INSC), and he is a part-time lecturer at George Washington University Law School.


[1] 8 U.S.C § 1189

[2] 22 U.S.C. § 2656f

[3] 18 U.S.C. §2339B(a)(2)

[4] 8 U.S.C. §§ 1182 (a)

[5] 18 U.S.C. § 2339B.

[6] National Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C. Cir. 2001); People’s Mojahedin Org. of Iran v. United States Dep’t of State [MEK], 182 F.3d 17 (D.C. Cir. 1999).

[7] United States v. Rahmani, 209 F. Supp. 2d 1045 (CD Cal. 2002).

[8] 18 U.S.C. § 2332(b)(g)(5)(B): "‘Federal crime of terrorism’ means an offense that (A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and (B) is a violation of [one of a list of 39 other criminal statutes]."

[9] 18 U.S.C. § 3286.

[10] 18 U.S.C. App. § 3A1.4 (2003).

[11] Harmon at 1.

[12] Caleb Carr, The Lessons of Terror 6 (2003).

[13] Harmon at 187.

[14] Carr at 16 - 17.

[15] Heymann at 6.

[16] Bruce Hoffman, Inside Terrorism 35-40 (2d ed. 2006).

[17] Id. at 36.

[18] Id. at 36-38.

[19] http://www.unodc.org/unodc/en/terrorism.html. The Security Council has created its own Counter-Terrorism Committee. The UNODC describes the two entities this way: "In carrying out its activities, UNODC works closely with the CTC and in so doing a complementary and synergistic relationship between the two has developed. While the CTC analyses the reports received from Member States and facilitates the provision of technical assistance to requesting States, UNODC, with its substantive expertise, delivers such assistance."

[20] Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Article 4(1).

[21] Convention for the Suppression of Terrorist Bombings, Article 3.

[22] One of the oddest provisions in all these Conventions is the one that raises the "freedom fighter" issue in the Convention Against the Taking of Hostages, Article 12, which excepts actions "in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self- determination." This provision is ambiguous. It might simply leave incidents that occur in an "armed conflict" to the appropriate Geneva Convention and accompanying laws of war, or it might be read to exclude hostage-taking from any sanctions if done in pursuit of resistance to colonialism or oppression.

[23]

Article 2

1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:

(a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or

(b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.

[24] There are indication that this concept is gaining traction. American law enforcement officials, for example, are starting to classify Mara Salvatrucha (MS-13), the gang was born of refugee El Salvadoran death squad members in the early 1980s with a purported presence in 34 U.S. states, as a terrorist organization, even though it had the hallmarks of a Latin street gang. This trend was due to MS-13's transnational scope and its organized plots to kill U.S. border officials. See Sara A. Carter, "MS-13 gang called terrorist threat," The Inland Valley Daily Bulletin (Ontario, CA), January 12, 2007.

[25] Daniel Thürer, The "Failed State" and International Law, International Review of the Red Cross No. 836, p. 731 (Dec. 1999) (available online at: http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList314/438B7C44BDEAC7A3C1256B66005DCAAB).

[26] Universal Declaration of Human Rights, GA 217A (1948) (UDHR); International Covenant on Civil and Political Rights, 999 U.N.T.S. 14668 (1966) (ICCPR).

[27] In striking down the Gun-Free School Zones Act, the Court commented that "if we were to accept the Government’s arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate." United States v. Lopez, 514 U.S. 549, 564 (1994).

[28] In United States v. Guest, 383 U.S. 745, 757 (1966), the Court held that the "constitutional right to travel from one State to another, and necessarily to use the highways and other instrumentalities of interstate commerce in doing so, occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized." Congress has several headings of power in addition to its ability to enforce constitutionally protected rights. With respect to those, the scope of federal power must be construed from the nature of the constitutional grant of power.

As we observed in Lopez, modern Commerce Clause jurisprudence has "identified three broad categories of activity that Congress may regulate under its commerce power." "First, Congress may regulate the use of the channels of interstate commerce." "Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." "Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce."

United States v. Morrison, 529 U.S. 598, 608-609 (2000).

[29] Article 1: "Military forces of a State" means the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security, and persons acting in support of those armed forces who are under their formal command, control and responsibility.

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