Euro law wrongly defines terrorism

By John Brown, Le Monde diplomatique, February 2002

The new European Union arrest warrant is a worrying part of the West's misguided attempt, in the name of anti-terrorism, to criminalise all forms of political, economic and social protest against any established order.

We are told that the world will never be the same after 11 September. This much repeated claim has been used to justify a long series of repressive laws at a national and European level. It has served to make a state of emergency look normal. The draft framework decision on terrorism that the European Commission (EC) has presented to the European Council and parliament is part and parcel of this approach (1). The attempt to establish a minimum definition of terrorism, and the corresponding penalties, common to all members of the European Union is a decisive step in international penal doctrine. To fully understand its importance we need to look back at how international anti-terrorist legislation has evolved.

As if guided by some awful portent, anti-terrorist legislation concentrated, until the 1990s, on aviation, the weak link in worldwide transport of goods and persons (2). Initially, the fight against terrorism remained within the bounds of conventional penal law, seeking to punish and prevent specific acts (hijacking, taking of hostages, bomb attacks). Terrorism as such was not even mentioned.

The word first appeared in international law in two relatively recent texts: the International Convention for the Suppression of Terrorist Bombing (New York, 15 December 1997) and the International Convention for the Suppression of the Financing of Terrorism (ICSFT, New York, 9 December 1999). Neither text provided a definition of terrorism.

Law-makers seem reluctant to define a term that nevertheless appears in the title of these conventions. Indeed, a full-blown judicial doctrine has emerged from the refusal to provide a clear definition of terrorism. As the EC explains in section 2 of its proposal, “The Convention for the Suppression of Financing Terrorism states that it is an offence to provide or collect funds, directly or indirectly, unlawfully and intentionally, with the intent to use them or knowing that they will be used to commit any act included within the scope of the previously mentioned Conventions (apart from the Convention on offences and certain other offences committed on board aircraft, which is not included). This means that, even though in most of those conventions the words ‘terrorism’ or ‘terrorist acts' are not mentioned, they are related to terrorist offences” (3). Are we to suppose that certain international laws, in 1960-80, were anti-terrorist without even realising it?

Perhaps not. The aim of the early texts was to encourage international cooperation to combat certain particularly dangerous or repellent acts of violence. In a democracy, the notion of political crime does not exist. The law punishes acts, never opinions. It was consequently essential to uphold a distinction between political action and terrorism, so that the latter could be covered by conventional law.

According to Article 6 of the ICSFT, “Each State Party shall adopt such measures as may be necessary, including, where appropriate, domestic legislation, to ensure that criminal acts within the scope of this Convention are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature” (4). Legislation focuses on the non-political side of terrorism. By systematically ignoring the political aims of terrorist action—the only feature that distinguishes it from ordinary crime—law-makers have made it impossible to define.

In addition to the activities singled out by international conventions, the ICSFT (Article 2.1.b) condemns “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 organisation to do or to abstain from doing any act” (5).

An illegal form of warfare

This was, in fact, the first attempt at a definition of terrorism, but it juxtaposed two contradictory conceptions of the problem. The first approach emphasised injuries to civilians and was a direct descendant of the principles established by the Nuremberg Tribunal. The second approach focused on attempts to subvert political order, much as the United Kingdom Terrorism Act 2000. It also inspired the EC's recent proposal.

The various laws and conventions categorise terrorism as a form of illegal warfare, because it attacks civilians, who, at least according to traditional rules, are supposed to remain on the sidelines of conflict, which only involves armed forces. Terrorism has consequently been placed in the same category as war crimes, under the definition established by the Nuremberg Tribunal: “Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war, of persons on the Seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity” (6).

This seems the most acceptable definition of terrorism, if one is required. It does not involve political considerations, but sees terrorist acts as causing severe damage to society and individuals. Yet “violations of the laws and customs of war” and attacks on civilians have been an essential part of conflicts since the beginning of the 20th century. Indeed the majority of the victims of war have been civilians. Ever since war was forbidden - by the Briand-Kellogg pact of 1928, which condemned war as a means of solving international conflicts (7)—the enemy has been a criminal and the old “laws or customs” that protected civilians have been disregarded.

To avoid incriminating states, a specific difference that distinguishes terrorism from war crimes is required. The answer is its political end. The second part of the ICSFT recognises that terrorism aims “to intimidate a population, or to compel a Government or an international organisation to do or to abstain from doing any act” (8). This represents a radical change of focus. Gone are the meticulous lists and descriptions of odious crimes that completely ignore underlying political aims. In comes a new category of offence, characterised by its political finality. Characteristically, the inspiration for this revolution did not come from our legislative bodies but from the police.

The notion of political finality is rooted in a police definition of terrorism that appears in the list of duties allocated to the Director of the US Federal Bureau of Investigation (FBI). “Terrorism includes the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives” (9).

Although under conventional penal law attempts to define terrorism run into obstacles rooted in democratic principles, the FBI's definition has provided recent legislation with a way out. This is apparent in both the United Kingdom's Terrorism Act 2000 and the EC's recent proposal.

The UK Terrorism Act 2000 makes some minor stylistic changes but the underlying definition is the same. Terrorism, it states, “means the use or threat of action … designed to influence the government or to intimidate the public or a section of the public … for the purpose of advancing a political, religious or ideological cause” (10). The text refers to the two main aims of terrorism cited in the FBI definition: attempts to influence or exert pressure on government or the public, and the political goals of action, which may also take a religious or ideological form.

The definition used by the EC is scarcely different. It does however restrict the scope of the term to a series of acts which recall existing international legislation - murder, threats, taking of hostages, bomb attacks, etc. - but adds a whole list of other offences closer to civil disobedience or protest by unions or citizen action groups, such as occupying public places and infrastructure facilities, damage to property of symbolic importance, and “attacks through interference with an information system”. It is the underlying political intent that ties all these acts together. An anti-capitalist action, using dubious but in non-violent methods, could thus be considered as terrorism.

Some might claim that it is unreasonable to draw this conclusion, but the text speaks for itself. Although it lists a series of specific acts, it fails to define them clearly. To characterise them as terrorist acts, the text invokes the notion of intention, always a suspect solution in penal law.

No punishment without law

A Latin saying sums up the limits on any legal system that seeks to protect civil liberties: Nullum crimen sine lege; nulla poena sina lege (there can be no punishment of crime without a pre-existing law). This basic principle requires that offences be defined as precisely as possible, leaving the authorities very little margin for interpretation. If a broad interpretation of a law is possible, all sorts of other activities can be treated as crimes simply by analogy. According to a popular adage, if you give an inch, people will take a mile. Much the same principle applies in law to prevent excessive use of analogy.

If, on the contrary, analogy is allowed too much leeway in courts, any act may be seen as an offence simply because there is common ground between the two. This opens the door to all forms of abuse. It is increasingly common for the police to overstep its role as an auxiliary to the legal system and meddle with judiciary or legislative matters (11). The EU is making rapid progress in unifying its police (Europol). In the meantime, little or nothing has been done to harmonise national legislation in member states and set up common judicial bodies to uphold individual rights. The attacks on 11 September supposedly justified an extension of police powers, which otherwise would have been seen as a threat to democracy.

In the proposed European anti-terrorist legislation, terrorist acts are defined by their goals. All terrorists claim to subvert the powers that be. By analogy, anyone “seriously altering or destroying the political, economic, or social structures of a country” (12) and committing any one of a series of poorly defined offences, may count as a terrorist. In keeping with police thinking, the key consideration for pinning a terrorist offence on a suspect is not the act but the intention. In short, the subject comes to be seen as a dangerous individual (13).

Prosecuting terrorism throughout the EU, as the EC intends, may [SIC!] have a negative effect on democracy. This legislation will target individuals or groups with a perfectly legitimate desire to radically change the political, economic and social organisation of one or more countries. They will not be prosecuted for anything they have actually done, but because they may have done it for ideological reasons.

Notes

(1) Proposal for a Council Framework Decision on combating terrorism—Com 2001-521, Official Journal of the European Communities, C 332 E, 27 November 2001

(2) See the summary of existing legal instruments in section 2 of the EC proposal.

(3) Proposal for a Council Framework Decision on combating terrorism, op. cit.

(4) International Convention for the Suppression of the Financing of Terrorism, United Nations, New York, 9 December 1999.

(5) ICSFT, op cit, article 2.1.b).

(6) Principles of International Law Recognised in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, principle VI.b.

(7) Article 1 states: “The high contracting parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.”

(8) ICSFT, op cit.

(9) US Code of Federal Regulations, Title 28, vol 1 (CITE: 28FOR.85).

(10) UK Terrorism Act 2000, Introductory, 1.1.

(11) The new anti-terrorist legislation introduced in France on 12 October 2001 prompted this comment from a trade union representing French judges: “These texts, which concern the most basic liberties, are presented and backed by the Ministry of the Interior. It is not usual for the ministry in charge of the police to draw up penal code, particularly when its purpose is to set limits to police powers.”

(12) Proposal for a Council Framework Decision on combating terrorism, op cit.

(13) Michel Foucault, writing about the origins of prison, confirmed this point: “The purpose of this penalty is not to provide a response to an offence, but to correct an individual's behaviour, attitude and overall outlook, mitigating the potential threat he or she represents … The police have hatched this idea, quite outside any notion of justice.” Dits et icrits 1, Quarto Gallimard, 2001, De la nature humaine, justice contre pouvoir, page 1471.