The Multifaceted Criminal Notion of Terrorism in International Law
* Professor of international law, University of Florence; member of the Board of Editors. [ firstname.lastname@example.org]
Contrary to what many believe, a generally accepted definitionof terrorism as an international crime in time of peace doesexist. This definition has evolved in the international communityat the level of customary law. However, there is still disagreementover whether the definition may also be applied in time of armedconflict, the issue in dispute being in particular whether actsperformed by ‘freedom fighters’ in wars of nationalliberation may (or should) constitute an exception to the definition.As a consequence of disagreement on terrorism in armed conflict,states have so far been unable to lay down a general definitionof the whole phenomenon of terrorism in a general treaty. Thefact, however, remains that under current customary internationalrules terrorism occurring in a time of peace and which is internationalin nature (i.e. not limited to the territory of a state andshowing transnational connections) may, depending on the circumstances,constitute a discrete international crime, or a crime againsthumanity. In time of armed conflict, terrorism (i.e. attackson persons not taking an active part in armed hostilities, witha view to spreading terror among the civilian population) currentlyamounts to a specific war crime (crime of terror). In time ofarmed conflict, terrorist acts may also amount to crimes againsthumanity (if part of a widespread or systematic attack on thecivilian population). The objective and subjective elementsof each of these three classes of criminal conduct are set outin the article on the basis of existing international law. Whilein the view of the author, the current legal regulation of terrorismis thus sufficiently clear, the fact remains that states arepolitically and ideologically divided on whether the actionsof ‘freedoms fighters’ involving attacks on civiliansshould be defined as terrorist or instead lawful. In this contentiousarea three divergent political trends are emerging in the worldcommunity: (i) to sic et simpliciter exempt freedom fighters’actions from the category of terrorism, without however specifyingwhat law would regulate their actions or whether such actionsare in any case always lawful; (ii) to exclude attacks againstcivilians in armed conflict from the legal regulation of theinternational rules on terrorism and thus assign such legalregulation to international humanitarian law solely; (iii) tocombine the application of both international norms on terrorismand international humanitarian law to actions in armed conflict,classifying as terrorist (not as war crimes) attacks on civilianscarried out in the course of such conflicts with a view to spreadingfear.
1. Introduction: the Problem
The need for a generally accepted definition of internationalterrorism is self-evident. Each state, in passing legislationon the matter, may and does of course define terrorism as itpleases. However, terrorism is a phenomenon that very oftenaffects multiple states, which are all compelled to cooperateto repress it. Hence, however imperfect and incomplete, a commonworking definition is necessary so that all states concernedmay agree on the target of their repressive action: how canstates work together for the arrest, detention or extraditionof alleged terrorists, if they do not move from the same notion?In particular, if some states assert that certain categoriesof persons who engage in conduct that normally would fall underthe definition of terrorism must nevertheless not be classifiedas terrorists on some ideological or political grounds, howcan cooperation be smoothly carried out between these statesand others taking a different legal view?
The legally binding Framework Decision on the European ArrestWarrant that the Council of the European Union (EU) passed on13 June 2002 (and which entered into force on 1 January 2004)is a telling instance of this need for cooperation. The Decisionprovides that terrorism is one of the offences for which arrestwarrants can be issued in one of the Member States of the EUand expeditiously executed in another Member State (see Article2(2)). Clearly, as far as terrorism is concerned, the Decisioncan be easily implemented as among Member States of the EU onlybecause on the very same day the EU Council also adopted a legallybinding Framework Decision on Combating Terrorism,1 which inArticle 1 contained a detailed definition of terrorist offences.2
It is common knowledge that interminable polemical argumentswere exchanged between states in the 1970s through the 1990sover what should be meant by terrorism. The bone of contentionwas two-fold: could ‘freedom fighters’ engaged innational liberation movements be classified as terrorists? Shouldthe working out of international rules on terrorism be madecontingent upon delving into the root causes of this phenomenon?3Many states asserted that as long as no agreement was reachedon these two contentious issues, no consent could evolve onthe very notion of terrorism either.
As a consequence, treaty rules laying down a comprehensive definitionhave not yet been agreed upon. However, over the years, underthe strong pressure of public opinion and also in order to cometo grips with the spreading of terrorism everywhere, in factwidespread consensus on a generally acceptable definition ofterrorism has evolved in the world community, so much so thatthe contention can be made — based on the arguments Ishall set forth subsequently — that indeed a customaryrule on the objective and subjective elements of the crime ofinternational terrorism in time of peace has evolved. The requisitepractice (usus) lies in, or results from, the converging adoptionof national laws, the handing down of judgments by nationalcourts, the passing of UN General Assembly resolutions, as wellas the ratification of international conventions by a greatnumber of states (such ratifications showing the attitude ofstates on the matter). In contrast, disagreement continues toexist on a possible exception to such definition: whether toexempt in time of armed conflict from the scope of the definitionacts that, although objectively and subjectively falling withinits purview, according to a number of states are neverthelesslegitimized in law by their being performed by ‘freedomfighters’ engaged in liberation wars.
It would appear that generally speaking the question of investigatingthe historical, social and economic causes of terrorism hasinstead been put on the backburner, although very recently theUN Secretary-General has again drawn attention to the need to‘address conditions conducive to exploitation by terrorists’.4
2. The Current International Legal Framework
A. Factors Pointing to a Generally Agreed Definition of International (or Transnational) Terrorism in Time of Peace As emphasized above, many factors point to the formation ofsubstantial consensus on a definition of terrorism in time ofpeace. First, the Conventions on terrorism adopted by the ArabLeague, the Organization of African Union (OAU) and the Conferenceof Islamic States, while providing in terms for the aforementionedexception, nevertheless lay down a definition that is to a largeextent in line with that enshrined in other international instruments.5Secondly, both the 1999 UN Convention for the Suppression ofthe Financing of Terrorism6 and various UN General Assemblyresolutions contain a similar notion,7 which is also sharedin the Draft Comprehensive Convention on Terrorism that is stillbeing negotiated.8 Thirdly, most national laws,9 as well asnational case law, take the same approach.10
What are the elements of this definition on which there is generalconsent? They are as follows: broadly speaking, terrorism consistsof (i) acts normally criminalized under any national penal system,or assistance in the commission of such acts whenever they areperformed in time of peace; those acts must be (ii) intendedto provoke a state of terror in the population or to coercea state or an international organization to take some sort ofaction, and finally (iii) are politically or ideologically motivated,i.e. are not based on the pursuit of private ends.
These are the rough elements of a generally accepted definition.Let us consider how they can be translated into a rigorous articulationwithin international law. Thereafter, it will be appropriatebriefly to look at the contentious exception.
B. The Ingredients of International Terrorism as a Discrete International Crime in Time of Peace
1. The Objective Element A first element of international terrorism (as distinguishedfrom, i.e. not necessarily coinciding with terrorism under nationallegislation) relates to conduct. The terrorist act must liein conduct that is already criminalized under any national bodyof criminal law: murder, mass killing, serious bodily harm,kidnapping, bombing, hijacking and so on. This conduct may,however, be in some exceptional instances, lawful per se: forinstance, financing of an organization. It becomes criminalif the conduct has the requisite connection to terrorism, forexample, if the organization to which money is provided or channelled,or on whose behalf it is collected, is terrorist in nature.In that case, the character of the organization makes the otherwiselawful action tainted with criminality.
Furthermore, the conduct must be transnational in nature, thatis, not limited to the territory of one state with no foreignelements or links whatsoever (in which case it would exclusivelyfall under the domestic criminal system of that state). Thetransnational nature of international terrorism is pithily caughtin Article 3 of the Convention for the Suppression of the Financingof Terrorism (‘This Convention shall not apply where theoffence is committed within a single State, the alleged offenderis a national of that State and is present in the territoryof that State and no other State has a basis ... to exercisejurisdiction ...’).
As for the victims of criminal conduct, they may embrace bothprivate individuals or the civilian population at large andalso state officials including members of state enforcementagencies.
2. The Subjective Element
A second element characterizing terrorism concerns the purposeof the act. A number of international instruments and nationallaws provide that the objective pursued by terrorists may beeither to spread terror among the population or to compel agovernment or an international organization to perform or abstainfrom performing an act.11 Other instruments also envisage athird possible objective: to destabilize or destroy the structureof a country.12
One can understand that, both for descriptive purposes and alsoin order to cover the whole range of possible criminal actions,these treaties, laws or other legal instruments enumerate awide set of terrorist aims. In addition, expressly contemplatingvarious alternative purposes pursued by terrorists may proveuseful to prosecutors and other enforcement agencies when thedemands of terrorist groups are not clear or are not made withregard to a specific terrorist attack; in these cases, in orderto classify the conduct as terrorist, it may suffice to determinethat at least the immediate aim of terrorists was to spreadpanic among the population. This, indeed, may greatly facilitatethe action of prosecutors in applying national laws againstterrorism. However, close scrutiny and legal logic demonstratethat, in fact, the primary goal of terrorists is always thatof coercing a public (or private) institution to take a certaincourse of action. The spreading of deep fear or anxiety is onlya means for compelling a government or another institution todo (or not to do) something; it is never an end in itself. Alsothe destabilization of the political structure of a state isa means of making the incumbent government take a certain courseof action. To be sure, in some instances the terrorists’goal is not set forth in so many words either before or afterthe terrorist action. For instance, the 11 September attackon the Twin Towers and the Pentagon was not accompanied by demandsof the terrorist organization that had planned the attack. Yet,even in these cases, the murder, bombing or kidnapping are notmade for their own sake; it is instrumental in inducing a publicor private authority to do or refrain from doing something.In the 11 September case, the attack was clearly intended toprompt the US government to change its overall policy in theMiddle East, in particular, by pulling out its military forcesthere and reversing its policy vis-à-vis Israel.
Hence, it can be said that ultimately terrorism always pursuesone primary and essential purpose, that of coercing a publicauthority (a government or an international organization) ora transnational private organization (for instance, a multinationalcorporation) to take (or refrain from taking) a specific actionor a certain policy. This is the hallmark of any terrorist action.
The purpose in question can be attained through two possiblemodalities. First, by spreading fear or anxiety among civilians(for instance, by blowing up a theatre, kidnapping civiliansor planting a bomb in a train, in a bus or in a public placesuch as a school, a museum or a bank). Clearly, the aim of terroristsis to induce the scared population to put pressure on the governmentauthorities. Secondly, the purpose may be achieved by engagingin criminal conduct against a public institution (e.g. blowingup, or threatening to blow up, the premises of Parliament, theMinistry of Defence or a foreign embassy) or else against aleading personality of a public or private authority (for instance,the head of government, a foreign ambassador, the presidentof a multinational corporation and so on).
Another element unique to terrorism regards motive. The criminalconduct must not be taken for a personal end (for instance,gain, revenge or personal hatred). It must be based on political,ideological or religious motivations. Motive is important becauseit serves to differentiate terrorism as a manifestation of collectivecriminality from criminal offences (murder, kidnapping and soon) that are instead indicative of individual criminality. Terroristacts are normally performed by groups or organizations, or byindividuals acting on their behalf or somehow linked to them.A terrorist act, for instance the blowing up of a disco, maysurely be performed by a single individual not belonging toany group or organization. However, that act is terrorist ifthe agent was moved by a collective set of ideas or tenets (apolitical platform, an ideology or a body of religious principles),thereby subjectively identifying himself with a group or organizationintent on taking similar actions. It is this factor that transformsthe murderous action of an individual into a terrorist act.
Let us now translate the above into rigorous legal language.It can be said that for terrorism to materialize two subjectiveelements (mens rea) are required. First, the subjective element(intent) proper to any underlying criminal offence: the requisitepsychological element of murder, wounding, kidnapping, hijackingand so on (dolus generalis). Second, the specific intent ofcompelling a public or a prominent private authority to take,or refrain from taking, an action (dolus specialis).
Motive in criminal law is normally immaterial (‘an actor'sultimate reason for acting may not bear on his liability’13),although it sometimes is taken into account under some specificconditions in a few national legal systems.14 Motive exceptionallybecomes relevant here: as noted earlier, criminal conduct mustbe inspired by non-personal inducements. Hence, if it is provedthat a criminal action (for instance, blowing up a building)has been motivated by non-ideological or non-political or non-religiousconsiderations, the act can no longer be defined as internationalterrorism, although it may of course fall under a broader notionof terrorism upheld in the state where the act has been accomplished.This, for instance, holds true for cases similar to an Americancriminal act that lacks, however, the transnational elementproper to international terrorism: Timothy McVeigh's blowingup in 1995 of a public building in Oklahoma City, with the consequentdeath of 168 persons. Reportedly that action was carried outin revenge for the killing, by the FBI, of members of a religioussect at Waco, Texas. Similarly, if bandits break into a bank,kill some clients and take others hostage for the purpose ofescaping unharmed with the loot, this action cannot be classifiedas terrorism, although the killing and hostage-taking are alsointended to spark terror among civilians and compel the authoritiesto do or not to do something. Here the essential element ofideological or political motive is lacking. Consequently, theoffence is one of armed robbery aggravated by murder and hostage-taking,not terrorism. Let us take another example, namely the episodeat the Los Angeles International airport (where on 4 July 2002an Egyptian fired at and killed some tourists who were aboutto take a plane bound for Israel, and was eventually shot downby enforcement officers). To determine whether this was a terroristact or simply murder, one ought to inquire into the possiblemotives of the killer; in that case, these motives could havebeen inferred from his life, his possible statements, his criminalrecord, any links he might have had with terrorist groups andso on.
Let me add that of course, motive by itself may not sufficefor the classification of a criminal act as terrorist. To clarifythis point I shall give an example (although it again relatesto terrorist groups that were not involved in transnationalterrorism, it may nevertheless be useful for illustration purposes).In the 1970s, some terrorist groups in Italy and Germany (respectivelythe Red Brigades and the Rote Armee Fraktion) carried out armedrobberies against banks to replenish the organization's funds.Here the motive of the criminal act was not personal (to acquirea private gain), but collective (to boost the organization'scash). Yet, the action was not terrorist in nature, but an ordinarycriminal offence, because another crucial element proper toterrorism was lacking (the purpose of compelling through criminalconduct an authority to take a certain stand). This conclusiondoes not exclude however that individual national criminal systemsmay consider that, since the aforementioned acts were performedto support a terrorist organization, the crimes involved mustbe characterized as terrorist at least for such purposes asjurisdiction, the use of special investigative methods and soon.
The legal relevance of motive for determining whether one isfaced with a terrorist offence does undoubtedly pose seriousproblems for any prosecutorial agency or criminal court. Itmay admittedly prove hard to find the reasons that inspiredthe agent, and to disentangle the specific basis for his actionfrom the intricacies of his possible motivations. In particular,it may be laborious to establish whether he acted out of political,ideological or religious motivations. In addition to this factualdifficulty, it may also be difficult to decide in a particularinstance whether a set of ideas or aspirations make up a politicalcredo, an ideology or a religion. One easy way out could consistof ascertaining whether the agent only acted out of strictlypersonal reasons, in which case one could rule out that hisacts be termed terrorist. Admittedly, the question is complicatedand may give rise to much controversy. The fact remains, however,that the nature of motive is taken into account by internationalrules as one of the discriminating factors in this matter.
C. Specific Sub-categories of International Terrorism as a Discrete International Crime
It is common knowledge that at the time when ideological clashesmired the international discussion on terrorism, preventingthe achievement of general consensus on the matter, in orderto break the deadlock states opted for the passing of internationalconventions on specific categories of conduct. They thus agreedupon a string of conventions through which they imposed on contractingparties the obligation to make punishable and to prosecute intheir domestic legal orders certain classes of actions. Theseactions were defined in each convention by indicating the principaloutward elements of the offence. The conventions refrained fromterming the conduct terrorist and did not point to the purposeof the conduct or motive of the perpetrators either. Instead,they confined themselves to setting out the objective elementsof prohibited conduct.
This applies to (i) acts that, whether or not they are offencesunder national law, may or do jeopardize the safety of aircraft,or of persons or property therein or which jeopardize good orderand discipline aboard;15 (ii) unlawful taking control, by forceor threat thereof or by any other form of intimidation, of anaircraft in flight;16 (iii) acts of violence against personson board an aircraft in flight or against the aircraft;17 (iv)murder and other violent acts against internationally protectedpersons or their official premises, private accommodation ormeans of transport;18 (v) unlawful possession, use, transferor theft of nuclear material as well as threat to use it;19(vi) taking control of a ship by force or threat thereof orany other form of intimidation or acts of violence against personsaboard or against the ship;20 (vii) taking control over a fixedplatform by force or threat thereof or any other form of intimidation,or acts of violence against persons on board or against theplatform;21 (viii) acts of violence against persons at an airportserving international civil aviation or against the facilitiesof the airport;22 (ix) the manufacture, or the movement intoor out of a territory, of unmarked plastic explosives;23 (x)the delivery, placing, discharging or detonation of explosiveor other lethal device in a place of public use, a state orgovernment facility, a public transportation system or an infrastructurefacility.24
Other Conventions, instead, besides setting out the objectiveelements of criminal conduct, also place emphasis on the purposepursued by the perpetrators. This holds true for the 1979 MontrealConvention against the Taking of Hostages, as well as the 1999Convention for the Suppression of the Financing of Terrorism.Both Conventions characterize the terrorist actions they dealwith as intended to compel a state or an international organizationto do or to abstain from doing any act; in addition the latterConvention contemplates the purpose of intimidating a population.25
It is warranted to contend that for the whole range of aforementionedconduct the hallmarks of international terrorism as a discretecrime in time of peace, outlined above, were considered implicitin the banning of such conduct. Indeed, the primary purposeof those conventions was to put a stop to terrorist conductbelonging to each category of action banned by the conventionsand increasingly ubiquitous when the conventions were drafted.
Nevertheless, as the classes of actions prohibited by the aforementionedfirst 10 conventions are very broad, one cannot exclude fromthe scope of such conventions conduct that, although clearlybanned by them, does not fall under the category of terrorismfor lack of the requisite elements. For instance, the hijackingof a plane by a robber that aims at obtaining a huge sum ofmoney as a ransom or the release of some fellow criminals inexchange for saving the passengers, plainly falls under the1970 Hague Convention, without however constituting an act ofinternational terrorism proper.
D. International Terrorism in Armed Conflict: a Sub-category of War Crimes
At present, both international humanitarian law and internationalcriminal law already cover acts of terrorism performed duringan international or internal armed conflict.
One question with which we should deal at the outset is thatof so-called state terrorism. It is claimed that in time ofwar attacks carried out by a belligerent against the enemy civilianpopulation may amount to state terrorism. This is primarilya political or ideological catchword without legal value (exceptwhen referring to possible instances of state responsibilityfor serious violations of international law, as we shall soonsee). In legal terms those attacks, if they are deliberate andonly target civilians, amount to a grave breach of internationalhumanitarian law; if they target instead the enemy combatantbut cause incidental damage to civilians, they may be regardedas unlawful if the damage to civilians is disproportionate.26As we shall soon see, terrorist acts performed by states intime of war can only occur when a belligerent engages in unlawfulattacks on civilians intended to spread terror; their plannersor perpetrators may consequently be punished for war crimesof terrorism.
Let us now move to the crucial question of terrorist acts performedby combatants (be they members of the armed forces of a state,or rebels or guerrillas, or members of the armed forces of anon-state entity).
International rules indisputably ban terrorism in time of armedconflict. Article 33(1) of the Fourth Geneva Convention of 1949prohibits ‘all measures ... of terrorism’ againstcivilians. Although the provision was primarily calculated toforestall terrorism by Occupying Powers or, more generally,by belligerents,27 terrorist acts are also prohibited if perpetratedby civilians or organized groups in occupied territories orin the territory of a party to the conflict. Thus Article 33(1)is a provision of general purport, applicable in any situation(whether terrorism is resorted to in the territory of one ofthe belligerents, in the combat area or in an occupied territory).
A similar provision is contained in the Second Additional Protocolof 1977. Article 4(2)(d) prohibits ‘acts of terrorism’against ‘all persons who do not take a direct part orhave ceased to take part in hostilities, whether or not theirliberty has been restricted’ [Article 4(1)].
The two Protocols also spell out the general prohibition ofterrorism. Article 51(2) of the First Protocol prohibits ‘actsor threats of violence the primary purpose of which is to spreadterror among the civilian population’. Article 13(2) ofthe Second Protocol repeats word for word this prohibition.It can be safely contended that all these provisions reflect,or at least have turned into customary law.28
Thus, international humanitarian law proscribes terrorism bothin international and internal armed conflicts. The question,however, arises of whether, in addition to addressing its prohibitionto states, international customary and treaty law also criminalizeterrorism in armed conflict. An International Criminal Tribunalfor the former Yugoslavia (ICTY) Trial Chamber convincinglyproved in 2003 in Gali that already in 1992 (when the factsat issue in that case occurred) a serious violation of the prohibitionagainst terrorizing the civilian population entailed, at leastunder treaty law, the individual criminal responsibility ofthe person breaching the rule.29
Contrary to this holding, one could object that the Statuteof the International Criminal Court (ICC), which carefully andextensively lists in Article 8 the various classes of war crimes,fails to mention resort to terror against civilians. This argumentwould not, however, be compelling. Indeed, the various provisionsof the ICC Statute are not intended to codify existing customaryrules; this is borne out by Article 10 of the Statute (‘Nothingin this Part shall be interpreted as limiting or prejudicingin any way existing or developing rules of international lawfor purposes other than this Statute’), as well as bythe fact that some specific provisions of the Statute concerningthe crimes over which the Court has jurisdiction go beyond customaryor previous treaty rules, whereas others only partially takeaccount of customary law.30
Support for the criminalization of terrorist acts in the courseof armed conflict can be found in various normative developments.The relevant provisions of the Statutes of the ICTR and theSpecial Court for Sierra Leone, in granting these two criminaltribunals jurisdiction over violations of international rulesof humanitarian law, include ‘acts of terrorism’.31This proves that the drafters of those Statutes considered thatsuch acts may amount to war crimes. Also the 1996 ILC DraftCode of Crimes against Peace and Security of Mankind takes theview that ‘acts of terrorism’ committed in internalconflicts constitute war crimes. Furthermore, it seems significantthat Article 2(1)(b) of the 1999 Convention of the Financingof Terrorism explicitly refers to ‘a situation of armedconflict’, thus implying that terrorist acts can be committedin such a ‘situation’. Of course the Conventionis only binding on the contracting parties. Nevertheless, sofar the Convention has been ratified or acceded to by 153 states(only three of which have entered reservation to the relevanttreaty stipulation);32 the provision at issue is, therefore,indicative of the generally held view that terrorism is alsocriminalized in time of armed conflict.
In sum, attacks on civilians and other ‘protected persons’in the course of an armed conflict, aiming at spreading terror,may amount to war crimes (although not to grave breaches ofthe Geneva Conventions,33 with the consequence that the Genevaprovisions on mandatory universal jurisdiction over such crimesdo not apply, such universal jurisdiction being simply authorizedby the Geneva Conventions34).
What are the constitutive elements of terrorism as a war crime?
It would seem that in humanitarian law terrorism as a war crimehas a narrower scope than the notion contemplated by the wholebody of general international law of peace. First of all, theprohibited conduct arguably consists of any violent action orthreat of such action against civilians or other persons nottaking a direct part in armed hostilities (wounded, shipwrecked,prisoners of war). It can be inferred both from the whole spiritand purpose of international humanitarian law and also fromthe wording of Articles 4(1) and (2)(d) of the Second AdditionalProtocol (a rule that, it is submitted, codifies a general principleapplicable to any armed conflict)35 that attacks on combatantsnot being actively engaged in armed hostilities can also amountto terrorism: for instance, attacks (or threats of attack) onofficers attending a mass or praying in a mosque, a church ora synagogue, or military personnel taking their children tothe movie. This proposition is borne out by the aforementionedArticle 2(1)(b) of the Convention for the Suppression of theFinancing of Terrorism, which includes among the possible victimsof terrorist acts in time of armed conflict ‘any otherpersons [than civilians] not taking an active part in the hostilities’.
The violent action or threat thereof can also be directed againsta civilian object, even if it is empty (for instance, a square,a private building as a theatre), as long as the goal pursuedin taking such an action is that of terrorizing the population.As rightly noted by the 2004 British Manual of the Law of ArmedConflict, the rule prohibiting terror attacks ‘would apply,for instance, to car bombs installed in busy shopping streets,even if no civilians are killed or injured by them, their objectbeing to create panic among the population’.36 As forthreats, again the British Manual rightly pointed out that ‘threatsof violence would include, for example, threat to annihilatethe enemy's civilian population’.37 In contrast, the prohibitionon terror does not cover terror caused as a by-product of attackson military objectives ‘or as a result of genuine warningof impending attacks on such objectives’.38
We can thus move to the subjective element of the action orthreat of action. Articles 51(2) of the First Protocol and 13(2)of the Second Protocol, which, as I stated earlier, can be takento spell out in many respects the terse content of other provisionson humanitarian law on terrorism, make it clear that terroristacts in armed conflict are acts calculated to ‘spreadterror’ among the civilian population or other protectedpersons. Here, then, the purpose of coercing a public (or private)authority to take a certain course of action disappears or,at least, wanes. The only conspicuous purpose appears to bethat of terrorizing the enemy. In other words, in internationalhumanitarian law, terrorist acts are acts performed within theframework of the general goal of defeating the enemy. Theirultimate purpose is to contribute to the war effort. Insteadof simply attacking civilians, a belligerent carries out actions(for instance, random killing of persons passing through a bridge,or haphazard blowing up of civilian installations, or systematicshelling of an empty place in a populated area) designed tobeget profound insecurity and anxiety in the population (andconsequently in the enemy belligerent).
It is thus clear that also in time of armed conflict internationalcriminal law requires intent, with the consequence that, asrightly emphasized in Gali, simple dolus eventualisor recklessnessmust be ruled out.39
In addition, motive becomes immaterial in terrorist acts aswar crimes. In time of armed conflict, actions designed to spreadterror in the enemy are always ‘public’ in natureand any personal motives (for instance, desire for revenge,racial or ethnic hatred, anger and so on) of the officer orthe leader of an armed group ordering such acts does not acquireany legal relevance.
In sum, during an armed conflict, belligerent acts of terrorism,being prohibited and criminalized, are covered both by internationalhumanitarian law and international criminal law. They may alsobe covered by rules on terrorism as a discrete crime to theextent that a state fighting terrorism is bound by an internationalconvention on terrorism that addresses terrorism both in timeof peace and in time of war. In this event, there would be atwo-fold legal characterization of the same conduct or the combinedsimultaneous application of two different bodies of law to thesame conduct. A case in point is the Convention on the Financingof Terrorism. If a state is party to such convention, it mayapply its provisions to the financing of terrorist acts performedor planned in a foreign country where an armed conflict is underway.It would consequently punish the financing of violent acts abroaddirected against persons not taking an active part in armedhostilities, whereas, it would not consider unlawful the financingof groups solely aimed at attacking enemy armed forces in theforeign country concerned.
E. International Terrorism as a Sub-category of Crimes against Humanity
Can terrorist acts amount to crimes against humanity? Yes, subjectto a number of conditions.
First of all, it can be inferred from the relevant internationalrules and case law on crimes against humanity that terroristacts may fall under this category of crimes, whether they areperpetrated in time of war or peace. Furthermore, they mustcause (or consist of) the following conduct: (i) murder, or(ii) great suffering, or (iii) serious injury to body or tomental or physical health, or else take the form of (iv) torture,(v) rape or even (vi) enforced disappearance of persons (namely,‘arrest, detention or abduction of persons by, or withthe authorization, support or acquiescence of, a state or apolitical organization, followed by a refusal to acknowledgethat deprivation of freedom or to give information on the fateor whereabouts of those persons, with the intention of removingthem from the protection of the law for a prolonged period oftime’40).
Terrorist acts must also meet the basic requirements of thecategory of crimes under discussion. Consequently (i) terroristaction must be part of a widespread or systematic attack againsta civilian population; (ii) the perpetrator, in addition tomens rea required for the underlying offence (murder, torture,etc.) must also have knowledge that his action is part of awidespread or systematic attack.
It would seem that, as in the case of terrorism as a discretecrime, also when terrorist acts are such as to amount to crimesagainst humanity, the victims may embrace both civilians andstate officials including members of armed forces. Admittedly,the Statutes of international criminal tribunals, in grantingjurisdiction to these tribunals over crimes against humanity,stipulate that the victims of such crimes must be civilian.However, this limitation cannot be found in customary internationallaw, which to my mind provides instead that crimes against humanitymay also be perpetrated against military personnel and membersof other enforcement agencies.41 Generally speaking, it wouldbe contrary to the whole spirit and logic of modern internationalhuman rights law and humanitarian law to limit to civilians(especially in time of peace) the international protection ofindividuals against horrendous and large-scale atrocities. This,I believe, also holds true for terrorism as a crime againsthumanity. For instance, it would not make sense to suggest thatthe 11 September 2001 attacks against the Twin Towers in NewYork, housing almost exclusively civilians, amounted to a crimeagainst humanity, whereas the crashing of a civilian aircraftinto the Pentagon in Washington D.C. constituted a differentcategory of crime because the victims were not civilians butprimarily state officials (mostly even military personnel) atwork.
In the case of terrorist acts, what matters from the point ofview of law is not so much the sheltering of civilians frombecoming the target of grave crimes. What is crucial is to avoid(and punish) criminal action, whomever its victims, taken tocompel a public or private entity to do or not to do something.In a way, the victims play almost a secondary role in the criminalizationof conduct. What clearly emerges from current internationallaw is that the widespread or systematic attack required asthe necessary context of a crime against humanity must be onethat targets the civilian population. This is only logical,for a widespread or systematic attack against members of armedforces in time of peace would simply constitute part and parcelof an armed conflict (internal if the attackers are within theterritory, international if they come from outside); in timeof war, depending upon the circumstances that attack could,or could not, amount to a string of large-scale breaches ofhumanitarian law. If, instead, a widespread or systematic attackis undertaken against the civilian population, for such atrocitiesto amount to a crime against humanity, one set of atrocities(for instance, torture, rape or other inhumane acts of similargravity) may also be directed against military personnel.
Let me give some examples. If in time of peace a group of terrorists,in addition to conducting attacks on civilians, engages in atrocitiesagainst military or police personnel such as bombing barracks,blowing up police stations, destroying a major building of thedefence ministry, or else kidnaps servicemen and subjects themto torture or rape, these acts (murder, imprisonment, torture,rape and so on) should be classified as crimes against humanity.Similarly, if in time of armed conflict an armed group or organization(or even a state), besides indiscriminately and violently attackingon a large scale civilians and other persons not taking an activepart in hostilities, captures, rapes or tortures enemy combatantsfor the purpose of spreading terror among the enemy belligerentor to obtain from him the release of imprisoned members of thegroup, organization (or state), these acts, which normally wouldbe classified as war crimes, may acquire the magnitude of acrime against humanity.
It is clear from what I have just pointed out that, in additionto the aforementioned objective elements, it is also necessaryfor the author of terrorist acts to entertain the specific intentrequired for terrorism as a discrete crime, namely, the purposeof compelling a public or private authority to take, or refrainfrom taking, a certain course of action, a purpose that maybe achieved by either generating fear and anxiety among thepublic or by other criminal actions (see above).
In sum, terrorism as a crime against humanity substantiallyconstitutes an aggravated form of terrorism as a discrete crime.
3. The Current Controversy over Acts of Freedom Fighters in Armed Conflict