The tricky problem of defining terrorism

Since September 11, 2001 the term “terrorism” has assumed central importance in legal and political circles. The concept is now contained in a range of national and international legislative regimes - from laws that criminalise “terrorist acts” and give enhanced powers to police, through to immigration, trade, finance and even insurance laws. However, even though the concept is obviously of fundamental importance, there is no consensus on what the term actually means. Lawyers, academics, national legislatures, regional organisations and international bodies, such as the United Nations, have produced a bewildering array of definitions. One 1988 study identified a total of 109 different definitions, and the number would be far higher today.

The meaning attributed in law to terrorism is crucial to establishing (and limiting) the scope of serious criminal sanctions as well as the capacity of the State to infringe upon accepted civil liberties, such as the right to privacy. Due to the legal, political, social, cultural and economic consequences of describing someone as a terrorist, or an action as terrorism, lawyers must seek to describe the concept with as much precision as possible. One danger is that if terrorism is not so defined, the powers of the State will extend very far indeed.

We do not add our own definition to an already long list. Instead, we address some of the practical and political problems that can be encountered. These “problems” are not simply the problems of a lack of consensus or the underlying political differences which give rise to it (perhaps best encapsulated in the well-worn aphorism that “one person’s terrorist is another person’s freedom fighter”). Rather, we look at three quite specific issues associated with legally defining terrorism: First, whether terrorism should be defined in law by reference to general or specific criteria; second, whether legal definitions of terrorism should provide for specific exclusions in favour of civil protest, industrial action, and so forth; and, finally, whether the legislature or the judiciary should play a greater role in the process of legally defining terrorism.

Should terrorism be defined in law by reference to general or specific criteria?

The two main drafting methods used to define terrorism in legal texts are the general and the specific approaches. The specific approach identifies certain activities as terrorism, such as hijacking and taking hostages, without seeking to define a general category of terrorism per se, while the general approach seeks to arrive at an overarching definition of terrorism by reference to certain criteria such as intention, motivation, and so forth. Of course, these approaches can be combined in the one definition.

Most national definitions adopt a general approach. For example, the American definition of “domestic terrorism” contained within the PATRIOT Act of 2001 states that domestic terrorism “involve[s] acts dangerous to human life that are a violation of the criminal laws of the United States or of any State” and that “appear to be intended:

1. To intimidate or coerce a civilian population;
2. to influence the policy of a government by intimidation or coercion; or
3. to affect the conduct of a government by mass destruction, assassination, or kidnapping”.

Historically, a good example of the specific approach has been the attempts in the international legal arena to formulate a generally accepted definition of terrorism. Largely as a result of the failure of this generalist project (brought about by member states’ conflicting positions on the questions of state-sponsored terrorism and the status of liberation movements), international lawyers resorted to using the specific approach. So we see a range of international covenants directed towards particular terrorist modus operandi, such as the International Convention against the Taking of Hostages and the International Convention for the Suppression of Terrorist Bombings.

Finally, definitions such as the Australian definition of terrorism in the Security Legislation Amendment (Terrorism) Act 2002 contain elements of both the above approaches. For example, the definition is based upon a core notion of violence intended to further a “political, religious or ideological cause” through intimidation, though this general provision is supplemented by reference to specific examples, such as tampering with electronic systems.

The general approach makes more sense. If as a political community we believe terrorism to be deserving of special laws and to be subject to more severe criminal sanctions, then we need to make as clear a statement as possible about what terrorism is. Although it is difficult to gather a political consensus, a general approach can produce a stronger moral statement about the indiscriminate use of violence to attain political, religious or ideological ends. On a practical level, having a general definition on the statute books also means that governments will not have to continually revisit the issue of what constitutes terrorism in order to respond to fast-developing instances of bio-terrorism, cyber-terrorism and the like. A specific only approach, as has largely been adopted to date in the international legal arena, results in a piecemeal, ad hoc and reactive means of regulation.

Should legal definitions of terrorism provide for specific exclusions in favour of civil protest, industrial action, and so forth?

Even if we manage to formulate a general definition of terrorism along the lines of political, religious or ideological violence intended to induce fear in, or to coerce, others, the job of defining terrorism does not end there. If left at that level of generality, the definition could extend to (and depending on the purpose of the legislation, potentially criminalise) a range of activities not generally considered to be terrorism. Civil disobedience, public protest and industrial action are among the activities that could fall within the scope of the definition.

The next question we ask then is: whether there should be a specific exception made in favour of these activities? The potential problems with not providing for such an exception are illustrated by the United Kingdom’s current legislative definition. The definition of terrorism contained within the Terrorism Act of 2000 simply requires the purported terrorist to have committed an act in the furtherance of a political, religious or ideological cause. There is no exception made within the definition in favour of the kind of activities mentioned above. Therefore, on the words of the statute alone, activities such as a peaceful student rally against the deregulation of university fees in which some members caused limited property damage could fall within the scope of the definition. So too could a long-running nurse’s industrial dispute in the public hospital sector (given that “creat[ing] a serious risk to the health or safety of the public” qualifies as a form of damage).

Like the United Kingdom’s definition, the United States’ definition (PATRIOT Act of 2001) cited above lacks a specific exception for civic protest and similar activities. While these two definitions of terrorism are able to capture ordinary protest activity, it must be noted that both jurisdictions have protection for certain human rights and civil liberties enshrined in a Bill of Rights (the US has its Bill of Rights and the UK the 1998 Human Rights Act). These documents could well protect the exercise of citizens’ ability to strike or to protest. This is to be contrasted with the Australian experience, where there is no national Bill of Rights.