Terrorism and international law

AS I had p r e - dicted, the first petitions against the newly enacted and approved Anti-Terrorism Law have been filed. Others will follow. And the paradox that is not lost to me is that the objection so far raised against the law is that it poses a dire threat to human rights if not their outright violation by the very provisions of the law.

I have thought it useful to look into how international law has dealt with terrorism, which, after all, is not a domestic problem but one that straddles many national borders. Furthermore, I subscribe to the precept of international minimum legal standards.

One of the first problems to be handled has to do with the very concept of terrorism. Fact Sheet No. 32 of the Office of the United Nations High Commissioner for Human Rights on “Human Rights, Terrorism and Counter-Terrorism” assumes what it takes to be a commonly accepted definition. “Terrorism is commonly understood to refer to acts of violence that target civilians in the pursuit of political or ideological aims. In legal terms, although the international community has yet to adopt a comprehensive definition of terrorism, existing declarations, resolutions and universal ‘sectoral’ treaties relating to specific aspects of it define certain acts and core elements. In 1994, the General Assembly’s Declaration on Measures to Eliminate International Terrorism, set out in Resoltuion 49/60 stated that terrorism includes ‘criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes,’ and such acts are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.”

Security Council Resolution 1556 ( 2004) took terrorism to refer to “criminal acts, including against civilians, committed with intent to cause death or serious bodily injury, or taking of hostages with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population to compel a government or an international organization to do or to abstain from doing any act.”

Zdzislaw Galicki of the University of Warsaw calls attention to the fact that the first internationally adopted comprehensive definition of acts of terrorism was elaborated within the framework of the Geneva Convention of 1937. The acts it characterized as terrorist were “acts directed against a State or intended to create a state of terror in the minds of particular persons or a group of persons or the general public.” The elements included willfully causing death or grievous body harm or loss to liberty to public officials in general, as well as any willful act calculated to endanger the lives of members of the public, as well as “willful destruction or damage to public property.” This seemed to be comprehensive enough — and therein lay the misgivings of States who were reticent about giving their assent to it: Its sweep was so vast, its breadth, dangerously indeterminate.

There lies the paradox of any attempted definition of terrorism because those who we characterize as terrorists have varying purposes, diverse intents and equally a confounding array of strategies and schemes. But some common elements do stand out clearly from the instruments of international law: first, the objective fact of destruction whether of human life or of property; second, the intent to cause a state of terror or panic — which to me is best evidenced by the terror or the panic itself experienced by the public; the link to some ideology, belief, persuasion that the perpetrators would like to prevail.

When Canada drew up and amended its own anti-terrorism legislation, it adopted a definition that “includes an act or commission undertaken, inside Canada, for a political, religious or ideological purposes that is intended to intimidate the public with respect to its security, including its economic security, to compel a person, government or organization (whether inside or outside Canada) from doing or refraining from doing any act, and that intentionally causes one of a number of specified forms of serious harm.”

There must be a demonstrable link — not merely conjectured or assumed — between the destructive acts and an ideological purpose to compel government action or desistance. Once more we see that combination that occurs so frequently in law: a combination of objective and subjective elements, and no combination is fraught with more challenges and pitfalls. The law, obviously, is no stranger to such a combination. In fact, a principal pillar of international law — customary law — required the conjunction of twin elements: the objective element of State practice and the subjective element of

That terrorism endangers human rights is beyond cavil; it is a threat to human life and security. It is a threat to freedom of belief and political persuasion. It attacks pluralism and society and the salutary space of divergence. It jeopardizes the economy and the stability of people’s lives. So, really, a providently crafted anti-terror law is a defense of human rights, not an assault on its guarantees.

Concerns have legitimately been raised about the rights of self-determination, demands for regimechange in circumstances when regimes are oppressive, organized protests against government action or inaction. Rather than maintaining taxonomy of exempt acts, I think that the confines within which legitimate mass activities should keep themselves must come from the elements that commonly stand out from international law’s treatment of terrorism. There should be no destruction of life or property nor terror and fear made to hold entire communities hostage. But the legitimacy of the ideology or its coherence with society’s values will always be pivotal in the characterization of action is “terrorist” or safely within the confines of “free expression.”