‘Terrorism is an international modern scourge’ commented the Lord Chief Justice of England and Wales. No one would disagree. The long list of terrorist actions across the world has led to indiscriminate slaughter, misery and fear. No one doubts that there will be more. It is one of the main responsibilities of government to protect its citizens and preventing, investigating and prosecuting terrorism is at or close to the top of a government’s agenda. Everyone agrees – so why can’t we agree on a definition of terrorism?
There are many international agreements about terrorism, some fourteen UN or Council of Europe Counter Terrorist Conventions, but there is no internationally agreed definition of terrorism. Each state must, and does, create its own definition.
The first difficulty is calibrating a definition with such precision that it criminalises the ‘bad guys’ but not the ‘good guys’. The problem is that the ‘good guys’ and the ‘bad guys’ are often doing the same thing. The old saying that ‘one man’s freedom fighter is another man’s terrorist’ applies is particularly apt here. History is filled with those who used arms against monarchs or governments, who fought colonial oppression or enslavement by invading forces, were once described as terrorists but are now honoured as “freedom fighters”, heroes or martyrs. The current list of international statesman includes people once considered ‘terrorist’. The United States Declaration of Independence (1776) says, “Whenever any Form of Government becomes destructive of these ends, it is the Right of People to alter or to abolish it, and institute new Government”. The preamble to the Universal Declaration of Human Rights 1948 acknowledges citizens may take recourse “as a last resort to rebellion against tyranny and oppression”. Are these documents ‘terrorist’? In a modern setting, one has only to look at the Arab Spring and events in Egypt, Libya and Syria to see how difficult it is to have a precise definition that covers fast-moving, uncertain geopolitical conflicts.
The second problem is whether terrorism should be limited to actions against civilians or whether it extends to governmental forces, particularly the military. There is little dispute that indiscriminate attacks on civilians as a means of influencing the people or the government is abhorrent. The purpose is clearly to inspire terror. The position is less clear when the attacks are against the representatives of the state such as armed forces or external armed forces (such as the coalition forces in Iraq or Afghanistan). Many international agreements do not cover such attacks. Some countries definitions of terrorism specifically exclude attacks on military targets.
The UK Supreme Court considered these issues. The UK definition of terrorism is very wide: it covers not only serious violence but serious damage to property and the creation of a serious risk of health and safety or serious disruption to an electronic system. It becomes terrorist if designed to influence the government or a section of the public for the purpose of advancing a political, religious, racial or ideological cause. The terrorist legislation covers actions committed abroad. There is no need for the relevant government to democratic; it just needs to be the government. It is irrelevant if the UK public support those taking action against the government. The UK Supreme Court considered whether the UK Parliament wanted a definition as wide. The answer was it did. There had been different formulations of the test for definition; it was not possible to find one that was perfect. A safeguard from oppressive prosecution is the requirement for either the Attorney General or Director of Public Prosecutions (the head of the public prosecution service) to consent to prosecutions. In passing, the Supreme Court noted a potential contradiction: ‘As a matter of ordinary language, the definition would seem to cover any violence or damage to property if it is carried out with a view to influencing a government or IGO (international government organization) in order to advance a very wide range of causes. Thus, it would appear to extend to military or quasi-military activity aimed at bringing down a foreign government, even where that activity is approved (officially or unofficially) by the UK government.’
As part of our arguments before the Supreme Court we researched whether other states considered attacks on military targets as terrorist when there was armed conflict. Forty-two states do not exclude situations of armed conflict, four specifically include it and seven specifically exclude it. A clear example of not being able to reach agreement.
Does any of this matter? The trouble is the uncertainty for groups who take action against governments. If a person asks me whether their support of action to overthrow an oppressive tyrant would be considered ‘terrorist’, my answer is likely to be ‘yes’ if the actions involve serious violence, serious damage or any of the other criteria identified above. Although such a client is unlikely to be prosecuted (particularly if their view is widespread or shared by the public), they fall within the range of UK counter terrorist investigatory powers. For example, the movement of their monies may be considered terrorist money laundering attracting the attention of financial institutions.
It may be a problem that cannot be solved. One author, David Tucker, commented: ‘above the gates of hell is the warning that all that enter should abandon hope. Less dire but to the same effect is the warning given to those who try to define terrorism.’ That is why we can’t agree on a definition.
Sean Larkin QC
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