Journal of International Criminal Justice

Journal of International Criminal Justice Advance Access originally published online on November 30, 2006
Journal of International Criminal Justice 2006 4(5):912-932; doi:10.1093/jicj/mql063

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I. Responding to Terrorism: The Quest for a Legal Definition

The Universal Terrorist

The International Community Grappling with a Definition

Thomas Weigend^*

* Professor of Criminal Law, University of Cologne, Germany. The author wishes to thank Ms Swetlana Niekisch for her research support. [ Thomas.Weigend{at}uni-koeln.de]

	Abstract

Top Abstract 1. Terrorism as an... 2. Individual Terrorism and... 3. The Problem of... 4. The Problem of... 5. Conclusion Notes

 
Steps have been taken on the international level towards determining a widely acceptable definition of terrorism as a basis for international conventions. One basic distinction in this context is between state-sponsored ‘official’ terrorism and individual terrorism directed against those in power. With respect to ‘individual’ terrorism, a widely accepted definition refers to acts or threats of violence committed with the intention to intimidate a population in furtherance of some non-economic goal. The old problem of distinguishing terrorists from legitimate freedom fighters has been alleviated but not yet totally resolved. Another issue concerns the question of whether to exempt actions of and/or directed against armed forces from the definition of terrorism. Overbreadth rather than vagueness is a problem of many current definitions of terrorism: since they include as ‘base offences’ less serious violations of individual or communal interests and even the mere intention or threat to commit them, they fail to reserve the stigma of terrorism to those offences that truly threaten the social fabric.

	1. Terrorism as an International Concern

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Terrorism has become a main concern of the international community. This is not the occasion to speculate about the political causes and implications of the present preoccupation with terrorism, nor about the question of who may benefit from the declaration of a ‘war on terrorism’. My topic here is the spillover from the political determination to ‘fight’ terrorism into the area of criminal legislation.

The recent outpour of national and international legal instruments purporting to streamline the definition of ‘criminal’ terrorism may seem like a curious phenomenon since terrorism, however defined, consists of conduct that has already been criminalized (e.g. murder, assault, bombing and destruction of property). Why then should it be so important to reach a worldwide agreement on what exactly ‘terrorism’ in a legal sense is to signify? What is the ‘extra’ added by labelling criminal conduct terroristic? Looking at both the national and the international levels, there are three areas where this label may make a difference: (i) the fact that an act is characterized as ‘terroristic’ can lead to increased penalties; (ii) the suspicion of terrorism can trigger or permit special means of investigation (e.g. surveillance of private conversations and other undercover operations) and restrictions of defence activities (e.g. limiting contacts between a suspect and his lawyer);¹ (iii) mutual international legal cooperation can be intensified.

The last of these three items has to do with the indisputable fact that at least some terrorism transcends national borders and is, thus, easier to combat through international cooperation. It was, indeed, an issue of international legal assistance in criminal matters that started the movement towards a uniform definition of terrorism, i.e. the obstacle of the ‘political offence’ exception in extradition law² in cases of terrorism. Overcoming this obstacle on a broad international scale³ required consent on the distinction between (possibly illegal but) arguably legitimate political opposition and terrorism as a crime against civilized society — a distinction that still has not been resolved, as will be seen subsequently.⁴

A similar problem has impeded efforts to implement the principle aut dedere aut iudicare (either extradite or try) for acts of terrorism. There has long been general agreement that terrorists should not be provided safe haven, but should be either adjudicated in the country where they were found or extradited to a country willing to exercise its jurisdiction; however, that principle was to apply only to terrorists, not to persons who might be legitimate asylum-seekers persecuted in their country of origin for acts of political opposition. Agreeing upon a definition of terrorism was, hence, imperative if international cooperation was to flourish.

A more ambitious project has been to define terrorism as an international crime with a view towards establishing international jurisdiction, by an international tribunal or by national courts on the basis of the universality principle. If that goal were achieved, most loopholes for terrorists could be closed and their crimes, wherever committed, would be appropriately sanctioned. But again, international jurisdiction over terrorism can be instituted only when there is broad consensus as to what turns a ‘regular’ offence into a terroristic crime. It is a disputed question whether such consensus has already developed to a sufficient degree or whether an international crime of terrorism is still in its embryonic stage. As eminent a scholar as Antonio Cassese has concluded that ‘there exists an acceptable and sufficiently clear definition of this crime, and in addition the crime is envisaged and banned by customary law, that is, it is no longer simply a treaty law crime’;⁵ others, however, are more restrained.⁶ In this context, it is not without significance that the International Criminal Court (ICC) does not have jurisdiction over terrorism.⁷ Article 4 of the Statute of the International Criminal Tribunal for Rwanda (ICTRSt.) extends the jurisdiction of that Tribunal to ‘acts of terrorism’ as referred to in Additional Protocol II to the Geneva Conventions;⁸ but ‘terrorism’ in that instrument means the act of intimidating a civilian population in the context of an armed conflict and, therefore, does not cover the typical forms of ‘private’ terrorism directed against a government.⁹

On the level of the United Nations (UN), the most recent achievement has been the entering into force of the International Convention for the Suppression of the Financing of Terrorism.¹⁰ This Convention contains a generic definition of terrorism¹¹ but in its substance approaches only one aspect of the problem. Other, more comprehensive projects have not yet entered into force¹² or are still in draft status.¹³ It cannot be denied that substantial steps have been made towards an international consensus on defining terrorism in a functional way, yet there are still a number of disputed areas that preclude a confident finding of agreement on an offence definition as part of customary international law.

In what follows, I will briefly trace the areas of agreement and disagreement¹⁴ in the definitions of terrorism as found in international instruments and will then proceed to discuss the question of whether those definitions satisfy the standards of precision commonly required for criminal prohibitions,¹⁵ and further whether they are properly limited to conduct seriously endangering the international community or whether they suffer from overreach to less noxious behaviour.¹⁶ Before doing so, I will briefly address a distinction between two different concepts of terrorism that is sometimes overlooked.

	2. Individual Terrorism and State-Organized Terrorism

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The expression ‘terrorism’ today evokes the image of one or more private individuals committing an assault on persons or property in order to frighten the population at large and to destabilize the rule of a government or the internal order of a state.¹⁷ The first modern definition of terrorism in a relevant international instrument, namely the Convention for the Prevention and Punishment of Terrorism of 16 November 1937, adopted by the League of Nations,¹⁸ reflects this idea. Its Article 1 defines ‘terroristic acts’ as ‘criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public’.¹⁹ The main elements of this definition — i.e. the (forbidden) use or threat of violence, in order to intimidate an indefinite number of persons,²⁰ and in order (further) to reach some political or ideological goal²¹ — have since been used in the great majority of legislative,²² diplomatic²³ or scientific²⁴ attempts to describe the phenomenon of ‘private’ terrorism.

In earlier documents and case law, the term ‘terrorism’ appears in a different connotation, referring not to acts directed against the stability of a state but to acts committed on behalf of the ruling power to establish or uphold, by a rule of fear, a dictatorial regime or military occupation.²⁵ It is in this sense that the term ‘terrorism’ is used, for example, in Article 33(1) of the Fourth Geneva Convention of 1949. (‘No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.’) Whereas this provision relates only to persons in the hands of the opposing party in an international armed conflict, a broader scope of protection is provided by similar prohibitions in Article 51(2) of Additional Protocol I and Article 33(2) of Additional Protocol II to the Geneva Conventions.²⁶ These provisions, which reflect a rather scarce jurisprudence from the years after the Second World War,²⁷ place ‘terrorism’ next to violations of basic principles of justice — indiscriminate arrests and imprisonment, torture and the imposition of penalties without cause come to mind as possible examples, and it was in this sense that an occupation court used the term ‘systematic terrorism’ when it convicted Japanese officers for the maltreatment they had visited upon the population of the Dutch West Indies during the war.²⁸ It is important to keep apart this (older) strand of ‘terrorism’ instruments²⁹ from those that have been drafted since the 1990s. The use of the same term might otherwise camouflage the different context in which it is used. While ‘state terrorism’, understood as intimidating a population in order to maintain a ‘reign of terror’, may or may not be covered by the later international instruments, it is — for better or worse — no longer the main focus of the 21st century's ‘war against terrorism’.

	3. The Problem of Defining Terrorism

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A. The Path towards Consensus
In the 1950s and 1960s, efforts at devising an internationally agreeable definition of (‘private’) terrorism could have fallen back on the terminology used in the 1937 Draft Convention,³⁰ the main elements of which reflected a general consensus. Such attempts were nevertheless doomed to failure because of a political issue that had arisen in the wake of the post-World War II move toward decolonization: the problem of ‘freedom fighters’ who resorted to acts of violence in their resistance against oppressive and/or colonialist regimes. Although their actions squarely met the usual definition of terrorism, many of these militants had the political support of one or the other world power in the Cold War of the 1950s and 1960s. That situation led to political gridlock and made it impossible to find agreement on outlawing terrorism while carving out an exception for ‘legitimate’ freedom fighters or political opponents of dictatorial regimes. In view of this dilemma, the international community took an inductive approach. It (temporarily) gave up the quest for an all-inclusive denunciation of terrorism but agreed on outlawing and broadening extraterritorial jurisdiction over certain activities typically associated with terrorism.³¹ This approach led to the conclusion of a string of international conventions, starting with instruments concerning the hijacking of airplanes and the abduction of diplomats and later extending to terrorist bombings and ‘nuclear terrorism’.³² The latter Convention, although carrying the term ‘terrorism’ in its title, does not contain a general definition of that phenomenon but declares certain acts (e.g. the possession and use of radioactive material) to be criminal when the actor intends to cause death, serious injury or substantial damage to property or the environment.³³

In the 1990s, the UN resumed its efforts to arrive at a generally acceptable definition of terrorism. In a 1994 Resolution,³⁴ the General Assembly reaffirmed its ‘unequivocal condemnation of all acts, methods and practices of terrorism’ and declared further:

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 are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.³⁵

The most remarkable feature of this Resolution is the absence, for the first time, of any reference to peoples’ ‘legitimate struggle for freedom and independence’. In 2002, the UN went one step further and incorporated an ‘exceptionless’ definition of terrorism into a legally binding instrument, the Convention for the Suppression of the Financing of Terrorism.³⁶ Security Council Resolution. 1373 of 28 September 2001, passed in the wake of the events of 11 September 2001, had the practical effect of conferring universally binding authority upon many provisions of the Financing Convention.³⁷ The most recent step has been taken in 2004 by Security Council Resolution 1566. That Resolution calls upon all states to combat terrorism regardless of its cause or motivation, reiterating the broad definition from the Financing Convention and making no exception for ‘freedom fighters’ of any kind.³⁸

B. Remaining Areas of Dispute
1. Freedom Fighters as Terrorists?
The appearance of universally agreed complete rejection of terrorism in any context may be misleading, however. In spite of the fact that traditional colonial regimes have disappeared, the freedom fighter issue continues to haunt the international community's efforts to find common ground on an omnibus convention against terrorism.³⁹ The most recent example is the controversy surrounding the Draft Comprehensive Convention against International Terrorism — an instrument originally proposed by India and debated in the 6th Committee of the UN for several years.⁴⁰ This Convention would oblige State Parties to criminalize acts of terrorism⁴¹ regardless of the religious, ideological or other motives of their perpetrators⁴² and would further provide for the principle aut dedere aut iudicare and enhanced international cooperation in the prosecution of these offences.⁴³ The Draft Comprehensive Convention has the strong political support not only of the UN Secretary-General but also of a great number of Member States. The main point of dispute, which has so far prevented the Draft Convention from being adopted, is the question of whether to include, in the preamble or in an operative paragraph, a reference to the legitimate struggle of peoples for independence and freedom.⁴⁴ It is, perhaps, not surprising that regional anti-terrorism instruments adopted by the Arab states⁴⁵ and by the Organization of African Unity⁴⁶ explicitly except acts performed in the course of the struggle for freedom from the definition of terrorism. It should be noted, however, that opposition to a truly ‘water-tight’ condemnation of acts of terrorism is not limited to states that have been or still are the victims of colonialist or racist oppression. For example, a recently enacted criminal provision on the financing of terrorism in the Swiss Penal Code explicitly excepts from its scope acts ‘directed at the creation or restitution of conditions of democracy and the rule of law or at the exercise or protection of human rights’.⁴⁷ The grave legal and political implications of such an exception are obvious. It remains to be seen whether anything short of an explicit ‘struggle for freedom’ exception will persuade a sufficient number of African and Asian states to agree to the adoption of a comprehensive anti-terrorism convention.

2. Terrorism in Armed Conflicts?
Another critical issue of definition concerns the relationship between ‘individual’ terrorism as a criminal offence and ‘state’ terrorism as proscribed, for example, in the Fourth Geneva Convention and the Additional Protocols.⁴⁸ The main target of international legal instruments of the 1990s and 2000s has been ‘individual’ terrorism unrelated to an ongoing armed conflict. In an effort to keep the areas of ‘individual’ and ‘state’ terrorism apart, some of the more recent instruments have excluded from the definition of terrorism the situation of an armed conflict (to the extent covered by international humanitarian law);⁴⁹ others have gone further and have exempted ‘the activities undertaken by military forces of a state in the exercise of their official duties’ inasmuch as they are governed by other rules of international law.⁵⁰ Although the intention to avoid interferences between conventional international criminal law and humanitarian law deserves support, it appears questionable whether the wholesale exemption of acts committed by members of armed forces from the scope of terrorism legislation is warranted. This may cause particularly reprehensible acts of ‘state terrorism’ to escape criminal sanction when they are ‘governed by other rules of international law’ that do not necessarily provide for individual punishment.⁵¹

3. What Are the Subjective Requirements?
Differences exist with respect to the subjective element required for terroristic offences — which is important because the offender's ‘specific’ intent accompanying his overt act is what sets a terroristic murder, bombing or assault apart from an ‘ordinary’ crime of the same kind. Terrorists typically pursue a triple goal: they have ‘normal’ intent to commit the base crime of murder, bombing, assault, etc.; they intend, further, to intimidate a group or the population as a whole and/or to compel others to take action (e.g. to release political prisoners); and they have ulterior political or ideological motives, e.g. to destabilize the present government or to defeat a rival religion or ideology. Legal instruments differ as to the extent to which they require all or only some of these ideal-typical subjective elements for a terrorism conviction. Although the presence of ulterior political motives characterizes terrorist offenders and permits to distinguish them from similar offenders connected with organized crime (who typically act for material gain),⁵² definitions of terrorism in many conventions do not require a ‘political purpose’ element. All that is needed is the actor's intention to intimidate or compel;⁵³ his ulterior goals are immaterial. In some instruments, even that minimal subjective requirement can be inferred from the ‘nature or context’ of the act itself⁵⁴ — which means that all that has to be proved is that the actor had mens rea with respect to the base crime (murder, assault or destruction of property) and that that crime was committed in a ‘context’ that the court deems indicative of terrorism.⁵⁵ That is unsatisfactory because the largely increased penalties provided for terrorists can be justified only when the actor is proven to have intended or known that his acts will intimidate the population or interfere with important government functions. Moreover, since the actus reus of terrorist attacks does not differ from ‘ordinary’ offences, being labelled a terrorist hinges on the presence of a specific subjective element. Leaving determination of that defining element to inference means that the court can without conclusive proof put the terrorist label on one defendant and withhold it from another.

	4. The Problem of Overreach

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The aforementioned disputed issues concern relatively small points of the definition of terrorism. In the remainder of this article, I will turn to a broader criticism of terrorism legislation: the contention that this legislation violates general principles of criminal law (or criminal policy) by reaching too far and by lacking precision.

Before addressing this criticism, it is important to remember what terrorism legislation is all about. As I mentioned before, the various attempts at describing the phenomenon of terrorism in national and international legal instruments do not aim at creating new criminal offences; rather, they pursue the threefold goal of providing enhanced penalties, permitting special means of investigation and broadening international cooperation. It is in this context that the claims of vagueness and overbreadth must be considered.

Requirements for legislative precision may vary in accordance with the purpose of the legislation in question. Such requirements are relatively low when legislation or an international convention is limited to facilitating mutual legal assistance. States have broad discretion in determining to what extent they will extradite suspects or lend each other help in discovering and preserving evidence, and citizens do not have a strong protected interest in being able to foresee under what circumstances international legal assistance will be granted.⁵⁶ Higher standards of precision should apply where intrusive investigative methods are concerned. Because it is important to control and limit the executive's power to intrude into citizens’ areas of privacy, legislation must circumscribe in detail the requirements for entering people's homes, wiretaps and other covert methods of investigation. The use of such methods must, moreover, be substantively limited to situations where they are necessary for resolving serious crime, and their intrusiveness must not be out of proportion to the seriousness of the case in question.⁵⁷ Even higher standards of foreseeability and necessity apply when a statute provides for criminal punishment: citizens should be able to tell, from reading the relevant statute, what conduct is prohibited and will be criminally sanctioned, and it is the legislature rather than the executive or the judiciary who must determine the borderline between tolerable and criminal conduct in any society. Legislative determinations affecting only the sentence (range) of criminal offences need not be held to the same high standard of precision. Since sentencing in many legal systems is left to the discretion of the judiciary with no or little legislative guidance, the legislature can choose to proclaim open-ended or qualitative guidelines on what constitutes mitigating or aggravating circumstances.⁵⁸ A legislature's discretion in that regard may still be limited because it is the legislature's task to indicate the relative importance of any criminal conduct on the large scale between petty and very serious crime; but, certainly, the distinction between ‘normal’ and aggravated cases of, e.g. assault need not be drawn with as much precision as the delineation between criminal and non-criminal behaviour.

A ‘hard and fast’ definition of terrorism would be needed if that definition formed an independent basis of criminal responsibility. This would be the case if terrorism was a criminal offence under international customary law.⁵⁹ But, at the present state of development, one would be hard put to extrapolate from existing international instruments and international practice a definition of terrorism exact enough to serve as the basis for criminal responsibility under customary international law. Existing definitions do have certain elements in common, but the similar features form only a rough pattern with many deviations in detail rather than a coherent crime definition. In addition to the continuing and unresolved disputes about ‘freedom fighters’ and the inclusion of activities of or directed against armed forces,⁶⁰ grave differences exist, for example, with respect to ‘base’ offences as well as to requirements concerning the offender's motivation.⁶¹ It would, thus, be premature to assume the existence of an independent crime of terrorism under international law. What we have to be concerned with, then, is the definitions of terrorism in recent international instruments that do not create but presuppose the existence of (national) criminal prohibitions of terrorist activities. It is in this context that we have to examine the issue of possible vagueness and overbreadth.

A. Vagueness
I will first deal with the claim that the definitions of terrorism as found in international legal instruments may be too vague for the purposes of criminal law and criminal procedure. Take, for example, the definition of terrorist offences given in Article 1(1) of the EU Framework Decision on Terrorism:

... intentional acts referred to below in points (a) to (i), as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation where committed with the aim of:

— seriously intimidating a population, or

— unduly compelling a Government or international organisation to perform or abstain from performing any act, or

— seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation ....⁶²

The EU Framework Decision, it may be recalled, aims at creating a unitary punishment level for terrorist offences⁶³ and at ensuring that Member States exercise jurisdiction over these offences when they have been committed on their territory or by their nationals or residents.⁶⁴ It is evident that the definition of Article 1(1) contains a number of general or figurative terms: ‘may seriously damage a country or international organisation’; committed with the aim of ‘seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation’. While this terminology indicates the general direction in which the authors of the Framework Decision were thinking, it does not easily lend itself to practical application.⁶⁵ The problem of the Framework Decision's flowery language is, however, not so much its vagueness but the fact that, if taken literally, it limits the definition of terrorism to the most egregious and dangerous actions. It is difficult to imagine how even a serious offence, unless it has the exceptional dimension of the 9/11 assaults, could ‘damage a country’ or (even more quaint) ‘damage an international organisation’.⁶⁶ The same is true for the actor's intention. The Framework Decision requires an intention of ‘seriously [sic] destabilising the fundamental [sic] economic or social structures of a country or of an international organisation’. Anything short of large-scale ‘fundamental’ attacks on a state fails to qualify as terrorism under this strand of the EU definition.⁶⁷ One might ask whether an ‘ordinary’ bombing in, for example, an IRA or ETA context would have been sufficient to meet these requirements — may it have ‘seriously damaged’ Britain or Spain?

Other definitions are even less controversial under vagueness aspects. Take the rather straightforward formulation in Article 2 of the UN Draft Comprehensive Convention:⁶⁸

1. Any person commits an offence within the meaning of the present Convention if that person, by any means, unlawfully and intentionally, causes:

(a) Death or serious bodily injury to any person; or

(b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or to the environment; or

(c) Damage to property, places, facilities or systems referred to in paragraph 1(b) of the present article resulting or likely to result in major economic loss;

when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.

2. Any person also commits an offence if that person makes a credible and serious threat to commit an offence as set forth in paragraph 1 of the present article.

One may wonder when ‘serious damage’ (rather than non-serious damage) to a ‘place of public use’ occurs, and one may have doubts about the definition of an ‘international organization’; but these are problems of a kind well-known to anyone charged with interpreting ordinary criminal (or other) statutes. To the average reader, the formulation of Article 2 of the Draft Comprehensive Convention makes it quite apparent what types of conduct are to be punished as terrorist offences. One should, moreover, bear in mind that the Draft Comprehensive Convention does not purport to define a ‘new’ crime⁶⁹ but deals mainly with the facilitation of international cooperation and with establishing jurisdiction for extraterritorial offences; the definition of its subject-matter can, thus, not be held to the high standard of precision required for introducing new criminal offences. In sum, then, vagueness is not a serious problem of recent definitions of terrorism.

B. Overbreadth
A related but different criticism of international instruments in the combat against terrorism concerns their overbreadth.⁷⁰ The aim of encouraging and harmonizing joint efforts of states to step up the use of criminal law, criminal procedure law and mutual legal assistance as weapons in the ‘war against terrorism’ can be justified — but only if those new weapons are in fact directed against international terrorism and its capacity to disturb the peaceful coexistence of nations.⁷¹ New measures would be counterproductive if they visited disproportionately harsh sanctions or overly intrusive procedural measures on petty offenders or — worse — on legitimate political protesters.

It is, thus, necessary to examine whether the definitions used in international instruments succeed in concentrating the efforts of the international community on the most dangerous assaults on the interior functioning of states and their peaceful mutual relations. The label of terrorism should not be used for petty crimes — not only would application of the legal armoury to such cases be out of proportion with their importance, but also would the overuse of the terrorism label lead to an inflation of the strong reprobation reserved for terrorism, thus weakening its moral force and social utility. Definitions should, therefore, be narrow enough to avoid an over-expansion of the concept of terrorism.

The first (and only objective) defining element of terrorism is the ‘base’ crimes that qualify as candidates for being treated as terrorist offences. In various legal instruments, we find different assortments of crimes that can be regarded as terrorist offences whenever the actor possesses the ‘right’ intention. Looking again at Article 2(1) of the UN Draft Comprehensive Convention⁷² as the most recent and advanced document, we find the following list of ‘base’ offences:

(a) Death or serious bodily injury to any person; or

(b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or to the environment; or

(c) Damage to property, places, facilities or systems referred to in paragraph 1(b) of the present article resulting or likely to result in major economic loss.

It is certainly unexceptionable to treat as a terrorist an individual who, with the requisite intent, kills or seriously injures another person. Yet, the offences listed under (b) and (c) of the above definition clearly include conduct that fails to require the severe legislative response that should be reserved for ‘real’ terrorism. Not every instance of inflicting ‘serious’ damage to private property (of whatever value?) or a place of public use (such as a public children's playground or a communal bowling alley) nor every causation of (non-serious!) ‘damage’ to any public or private property ‘likely to result’ (for whatever reason) in ‘major economic loss’ (the quantity of which remains undefined) should necessarily trigger the tough procedural measures and criminal sanctions foreseen for terrorist offences. Definitional overkill may well be balanced by prosecutorial discretion — but any definition that must rely on being reduced to reasonable proportions through teleological reduction smells of overbreadth and should be reconsidered. The law should not be termed in a way that it requires prosecutors and courts to cut it back to appropriate dimensions.

Similar problems of overbreadth are posed by the definition of terrorism in Article 1(1) of the 2002 EU Framework Decision on Terrorism. Article 1 contains a lengthy catalogue of ‘base’ offences,⁷³ most of which are described so as to limit application of the Framework Decision to the causation of serious damage or grave risks to individuals or the community. We again find here, however, the modality of ‘causing extensive destruction ... to a public place or private property ... likely to result in major economic loss’⁷⁴ that we have criticized above as overbroad because it could be met by mere acts of vandalism or simple destruction of private property with possible (!) grave financial consequences. The English version of the EU Framework Decision also seems to define as an act of terrorism any physical assault regardless of its seriousness (‘attacks upon the physical integrity of a person’);⁷⁵ yet, this may be an editorial lapse, since the French version (correctly) requires ‘les atteintes graves à l’intégrité physique d’une personne’.⁷⁶ ‘Seizure of other means ... of goods transport’⁷⁷ also could encompass harmless acts, such as the taking of a wheelbarrow from its rightful owner; and the ‘possession of weapons’⁷⁸ is, by itself, totally innocuous and can still be an ‘act’ triggering the legal consequences of terrorism legislation when done with the aim of, e.g. unduly compelling a government to abstain from performing any act (for example, invading a foreign country). It should be noted, however, that Article 1(1) of the EU Framework Decision limits its scope of application to ‘acts which, given their nature or context, may seriously damage a country or an international organisation’. As has been mentioned, this clause, if applied literally, would not only cure any problem of overbreadth but would indeed reduce applicability of the Framework Decision to very few instances of truly disastrous terrorism.⁷⁹

The problem of overbreadth has to some extent been avoided by the Financing of Terrorism Convention. Article 2(1)(b) of that Convention describes as potentially terrorist ‘any other act intended to cause death or serious bodily injury to a civilian ...’.⁸⁰ However, the benevolent narrowness of this definition is more than compensated for by the fact that Article 2(1)(a) extends the scope of the Convention by reference to several other anti-terrorism conventions.⁸¹ These conventions cover such vaguely described acts as ‘disrupting the services of an airport ... if such an act is likely to endanger safety at that airport’⁸² or communicating information one knows to be false, thereby endangering the safe navigation of a ship.⁸³ It also bears mentioning that the list of acts of ‘financing’ declared to be criminal by the Financing of Terrorism Convention includes textbook examples of overbreadth.⁸⁴

As these examples show, it is much more difficult to devise a sufficiently narrow list of ‘core’ terrorist offences than to find instances of over-extension in the smorgasbord of potentially terrorist activities collected by cautious international drafting committees. The problem of overbreadth is compounded by the fact that almost all international (and national) instruments treat as punishable not only the completion of terrorist attacks but also various activities in preparation of such attacks. Prohibitions (with the ensuing extension of procedural authority to invade otherwise protected spheres of privacy) typically extend to attempts, aiding and abetting terrorists, forming groups that plan terrorist activities, belonging to such groups, aiding and abetting such groups⁸⁵ and in some instruments even the commission of ‘ordinary’ offences such as extortion or forgery if perpetrated ‘with a view toward’ later committing a terrorist offence.⁸⁶ This means that a person can be punishable as a terrorist long before anyone has committed any overt act defined as terroristic. The existence of so wide a net to catch (potential) terrorists early may be useful — but it provides an additional argument in favour of moderation in defining the criminal acts that can trigger the labelling of the actor as a terrorist.

Mens rea requirements beyond simple intent with respect to one's actions and their consequences are not usually very helpful in narrowing down the scope of criminality. The actor's evil intentions will be easily inferred from the proven fact that he has intentionally done serious harm. Terrorist offences are good examples of that thesis — a person who has intentionally killed someone or taken a person hostage or seized an aircraft will, if the circumstances do not indicate an interpersonal motive or an interest in material gain, hardly be able to convince a court that he did not act to ‘intimidate a population’ or ‘compel a government to do something or abstain from doing something’.⁸⁷ In practice, the need to show the existence of these subjective requirements does not present a serious impediment to the conviction of a terrorist offence, hence any problem of overbreadth cannot be cured by adding subjective requirements.

	5. Conclusion

Top Abstract 1. Terrorism as an... 2. Individual Terrorism and... 3. The Problem of... 4. The Problem of... 5. Conclusion Notes

 
It is a sad fact that terrorism will not soon go away. Given the personality structure and ideological conviction of the ‘typical’ terrorist, it is not very likely that criminal prohibitions and sanctions will persuade many potential offenders to abstain from their plans; and this is also true for solemn proclamations of international bodies. This does not mean that the efforts of criminal justice in this area are totally futile; if they cannot prevent terroristic acts they may at least contribute to a fair adjudication of offenders and to their punishment in accordance with the severity of their offences. As we have seen, the efforts of the international community to bring together and harmonize its activities do not so much aim at creating a new crime of terrorism but at enlarging the possibilities of investigating terrorist activities even in their early stages and at facilitating international cooperation.

The quest for a definition of terrorism must be seen in this context. Precision in describing the multi-faceted phenomenon of terrorism certainly remains a goal, but the standards to be applied to formulations in international instruments may be somewhat less rigorous here than those applied to ab ovo incriminations of conduct. A greater problem is the potential overuse of the label of terrorism. In drafting international or national instruments on the subject, one should be careful to limit its scope of applicability to the undisputable ‘core’ of terrorist activity and to avoid the pitfall of trying to catch every situation that might, in a particular context, be part of terrorist activity. In order to avoid disproportional intrusions into protected areas of individual privacy as well as a devaluation of terrorism through an inflationary use of this term, it is better to err on the side of moderation. In employing the criminal law in the war against terrorism, we should not lose sight of the fact that this war cannot be won on the field of criminal justice but only through dealing, in a responsible manner and on a global scale, with the root causes of terrorism.

	Notes

Top Abstract 1. Terrorism as an... 2. Individual Terrorism and... 3. The Problem of... 4. The Problem of... 5. Conclusion Notes

 
¹ See in this issue the country reports on Germany (C. Safferling), the UK (C. Walker) and the US (N. Abrams).

² See e.g. Art. 3 of the European Convention on Extradition of 13 December 1957 (ETS No. 24); from the literature, see T. Stein, Die Auslieferungsausnahme bei politischen Delikten (Berlin and Heidelberg: Springer, 1983); C. van den Wyngaert, The Political Offence Exception to Extradition (The Hague: Kluwer, 1980).

³ The European Convention on the Suppression of Terrorism of 27 January 1977 (ETS No. 90) was the first international instrument that explicitly abolished the political offence exception for certain offences typically connected with terrorism, e.g. hijacking of airplanes and abduction of diplomats. See also R. Arnold, The ICC as a New Instrument for Repressing Terrorism (Ardsley: Transnational, 2004), at 39–43 (suggesting that ‘licit’ politically motivated terrorist offences should continue to be protected from extradition); see further T. Herzog, Terrorismus — Versuch einer Definition und Analyse internationaler Übereinkommen zu seiner Bekämpfung (Bern, Berlin, and Frankfurt: Peter Lang, 1991), 150 et seq.

⁴ See infra 3.B.

⁵ A. Cassese, International Criminal Law (Oxford: OUP, 2003), at 124 (see also p. 129 limiting terrorism as an international crime to cases of state-sponsored or state-tolerated terrorism); see also the contribution of A. Cassese in this issue.

⁶ See e.g. B. Saul, ‘Crimes and Prohibitions of "Terror" and "Terrorism" in Armed Conflict: 1919-2005’, 18 Humanitäres Völkerrecht — Informationsschriften (2005) 264, at 273–274 (‘emerging’ customary international crime); G. Werle, Principles of International Criminal Law (The Hague: T.M.C. Asser Press, 2005) at marginal no. 74.

⁷ For the reasoning behind this decision, see Cassese, International Criminal Law, supra note 5, at 124–125.

⁸ Article 4 ICTRSt. reads:

The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to:

(a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

(b) Collective punishments;

(c) Taking of hostages;

(d) Acts of terrorism; ...

⁹ See infra 2. The International Criminal Tribunal for the former Yugoslavia (ICTY) has explicitly left open the question whether that Court can convict a person of the international crime of terrorism in the sense of the ICTRSt., see ICTY Judgment, Gali (IT-98-29), Trial Chamber, 5 December 2003, 69, 97. The defendant was eventually convicted of ‘treaty-based’ terrorism as defined in Art. 51 Additional Protocol I to the Geneva Conventions. In this context, see also the contribution of M. Sassòli in this issue.

¹⁰ The International Convention for the Suppression of the Financing of Terrorism has been adopted by the General Assembly on 9 December 1999 (GA Res. 54/109) and has entered into force on 10 April 2002. By early 2006, the Convention has been ratified by 149 states. See also the contribution of M. Pieth in this issue.

¹¹ The following definition is offered in Art. 2 of the Convention:

1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out: (a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or (b) 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 organization to do or to abstain from doing any act.

¹² The latest instrument is the International Convention for the Suppression of Acts of Nuclear Terrorism, adopted on 13 April 2005 (GA Res. 59/290).

¹³ See Draft Comprehensive Convention against International Terrorism (UN Doc. A/59/894, Appendix II).

¹⁴ See infra 3.A. and 3.B, respectively.

¹⁵ See infra 4.A.

¹⁶ See infra 4.B.

¹⁷ For more elaborate definitions proposed by sociologists and political scientists see H. Vest, Terrorismus als Herausforderung des Rechts (Zürich: Schulthess, 2005), at 34–36.

¹⁸ The text of the Convention can be found in Y. Alexander, M.A. Browne and A.S. Nanes (eds), Control of Terrorism: International Documents (New York: Crane-Russak, 1979), at 19. The Convention was ratified only by India and has never entered into force. For a discussion of the background and details of the Convention, see B. Saul, ‘The Legal Response of the League of Nations to Terrorism’, 4 Journal of International Criminal Justice (2006) 78.

¹⁹ Article 2 of the Convention (supra note 18) describes certain offences (e.g. assaults on internationally protected persons and destruction of public property) as terroristic if they bear the special features described in Art. 1. The Convention obliges states parties to incorporate these acts into their national laws as criminal offences and to facilitate mutual legal assistance, especially extradition.

²⁰ In subsequent instruments, the purpose of compelling a government or international organization to do something or to abstain from doing something has often been included as an alternative.

²¹ In the definition of the 1937 Convention (supra note 18), the aim of furthering an ideological goal is not an explicit element but could be read into the words ‘directed against a State’. This element has remained controversial. For an account of the debate on this issue in the context of the 1937 Convention, see Saul, supra note 18, at 90–91.

²² See e.g. Section 1(1) of the Terrorism Act 2000 (England):

(1) In this Act ‘terrorism’ means the use or threat of action where (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person's life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system.

For an assessment of the Terrorism Act 2000 in light of its historical and international background, see B. Brandon, ‘Terrorism, Human Rights and the Rule of Law: 120 Years of the UK’s Legal Response to Terrorism', Criminal Law Review (2004) 981; see also the contribution of C. Walker in this issue. Similar elements as in the English Act can be found in the dual definition of terrorism (international and national) in 18 United States Code 2331(1) and (5):

(1) the term ‘international terrorism’ means activities that (A) involve violent act or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; (B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum; [...]

(5) the term ‘domestic terrorism’ means activities that (A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; (B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily within the territorial jurisdiction of the United States.

For an informative and critical overview of recent anti-terrorism legislation in the US, see J.A.J. Vervaele, ‘The Anti-Terrorist Legislation in the US: Inter Arma Silent Leges?’, 13 European Journal of Crime, Criminal Law and Criminal Justice (2004) 201, as well as the contribution of N. Abrams in this issue.

See also Arts 571 and 577 of the Spanish Criminal Code defining the crimes of belonging to a terrorist gang and committing acts of terrorism.

²³ See Art. 1 of the EU Council Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA):

1. Each Member State shall take the necessary measures to ensure that the intentional acts referred to below in points (a) to (i), as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation where committed with the aim of:

— seriously intimidating a population, or

— unduly compelling a Government or international organisation to perform or abstain from performing any act, or

— seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation, shall be deemed to be terrorist offences: (a) attacks upon a person's life which may cause death; (b) attacks upon the physical integrity of a person; (c) kidnapping or hostage taking; (d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss; (e) seizure of aircraft, ships or other means of public or goods transport; (f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons; (g) release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life; (h) interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger human life; (i) threatening to commit any of the acts listed in (a) to (h).

²⁴ See e.g. Arnold, supra note 3, at 4; Cassese, International Criminal Law, supra note 5, at 124; Herzog, supra note 3, at 93; A. Kuhn, ‘Terrorisme scientifique’, Schweizer Zeitschrift für Kriminologie (2002), 23–24; L. Moreillon and F. de Courten, ‘La lutte contre le terrorisme et les droits du suspect: le principe de sécurité à l’épreuve des droits fondamentaux’, 121 Schweizerische Zeitschrift für Strafrecht (2003) 117, at 120; J.-M. Sorel, ‘Some Questions about the Definition of Terrorism and the Fight against Its Financing’, 14 European Journal of International Law (2003) 365, at 371.

²⁵ Cf. Vest, supra note 17, at 4 (distinguishing between ‘terrorism from below’ and ‘terrorism from above’).

²⁶ Article 51(2) Additional Protocol I and Art. 13(2) Additional Protocol II are identical: ‘Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.’ For an interpretation of these provisions, see the Gali Judgment, supra note 9, 119, 120, 132. In his Dissenting Opinion ( 113), Judge Nieto-Navia expresses doubt as to whether these prohibitions are sufficiently grounded in state practice as to provide a basis for individual criminal liability.

²⁷ For an overview, see Saul, supra note 6, at 267–268.

²⁸ Trial of Shigeki Motomura et al., XIII War Crimes Trials 138.

²⁹ As has been mentioned above, Art. 4 ICTRSt. also refers to ‘terrorism’ as a crime committed in a (non-international) armed conflict and thus belongs to the group of instruments treated here.

³⁰ See text supra note 18 et seq.

³¹ A. Aust, ‘Counter-Terrorism – A New Approach’, 5 Max Planck Yearbook of United Nations Law (2001) 285, at 290–291; C. Tomuschat, ‘Der 11. September 2001 und seine rechtlichen Konsequenzen’, Europäische Grundrechte-Zeitschrift (2001) 535, at 536.

³² See e.g. Convention on Offences and Certain Other Acts Committed on Board Aircraft of 14 September 1963 (UNTS 1969, 10106); Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970 (UNTS 1973, 12325); Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971 (UNTS 974, I-14118); Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 14 December 1973 (UNTS 1035, I-15410); Convention on the Physical Protection of Nuclear Material of 26 October 1979 (UNTS 1456, I-24631); Convention against the Taking of Hostages of 17 December 1979 (UNTS 1316, I-21931); Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 24 February 1988 (UNTS 1589, A-14118); Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 10 March 1988 (UNTS 1678, I-29004); Convention for the Suppression of Terrorist Bombings of 15 December 1997 (UN Doc. A/Res/52/164); Convention for the Suppression of Acts of Nuclear Terrorism of 13 April 2005 (UN Doc. A/Res/59/290).

³³ See Art. 2(1) of the Convention for the Suppression of Acts of Nuclear Terrorism (supra note 32):

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally:

(a) Possesses radioactive material or makes or possesses a device: (i) With the intent to cause death or serious bodily injury; or (ii) With the intent to cause substantial damage to property or to the environment;

(b) Uses in any way radioactive material or a device, or uses or damages a nuclear facility in a manner which releases or risks the release of radioactive material: (i) With the intent to cause death or serious bodily injury; or (ii) With the intent to cause substantial damage to property or to the environment; or (iii) With the intent to compel a natural or legal person, an international organization or a State to do or refrain from doing an act.’

One may well regard this description as an inherent definition of nuclear terrorism, but due to the particular dangerousness of nuclear material this definition goes beyond the generally agreed core of ‘normal’ terrorism.

³⁴ GA Res. 49/60 of 9 December 1994.

³⁵ Art. 1(3) GA Res. 49/60 of 9 December 1994. The same definition was repeated two years later in GA Res. 51/210 of 17 December 1996 (‘Measures to eliminate international terrorism’).

³⁶ See supra note 10. The definition in Art. 2(1)(b) of the Convention on the Suppression of the Financing of Terrorism (‘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 organization to do or to abstain from doing any act’) differs from the one used in the 1994 GA Resolution in that it lacks the ‘political purpose’ element; the intention merely to intimidate a population is sufficient.

³⁷ SC Res. 1373 provides, inter alia: ‘... all States shall: (a) Prevent and suppress the financing of terrorist acts; (b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts ...’.

³⁸ See the first operative paragraphs of SC Res. 1566 of 8 October 2004:

1. Condemns in the strongest terms all acts of terrorism irrespective of their motivation, whenever and by whomsoever committed, as one of the most serious threats to peace and security; 2. Calls upon States to cooperate fully in the fight against terrorism, especially with those States where or against whose citizens terrorist acts are committed, in accordance with their obligations under international law, in order to find, deny safe haven and bring to justice, on the basis of the principle to extradite or prosecute, any person who supports, facilitates, participates or attempts to participate in the financing, planning, preparation or commission of terrorist acts or provides safe havens; 3. Recalls that criminal acts, including against civilians, committed with the 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 or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, and calls upon all States to prevent such acts and, if not prevented, to ensure that such acts are punished by penalties consistent with their grave nature ... .

³⁹ See also the contribution of A. Cassese in this issue.

⁴⁰ Draft Comprehensive Convention against International Terrorism, UN Doc. A/59/894 App. II (12 August 2005). On the developments leading towards the Draft Comprehensive Convention, see A. Rohan Perera, ‘Reviewing the U.N. Conventions on Terrorism: Towards a Comprehensive Terrorism Convention’, in C. Fijnaut, J. Wouters and F. Naert (eds), Legal Instruments in the Fight against International Terrorism (Leiden and Boston: Martinus Nijhoff, 2005), at 567.

⁴¹ Art. 2 of the Draft Comprehensive Convention defines terrorism in generic terms as follows:

Any person commits an offence within the meaning of the present Convention if that person, by any means, unlawfully and intentionally, causes: (a) Death or serious bodily injury to any person; or (b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or to the environment; or (c) Damage to property, places, facilities or systems referred to in paragraph 1 (b) of the present article resulting or likely to result in major economic loss; when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.

Any person also commits an offence if that person makes a credible and serious threat to commit an offence as set forth in paragraph 1 of the present article.

Any person also commits an offence if that person attempts to commit an offence as set forth in paragraph 1 of the present article.

⁴² Any such grounds are explicitly ruled out as providing a justification by Art. 6 of the Draft Convention: ‘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 the present Convention are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature.’

⁴³ Arts 9 and 12 of the Draft Comprehensive Convention.

⁴⁴ The coordinator of the deliberations on the Draft Comprehensive Convention has proposed this preambular clause: ‘Reaffirming that ... all peoples have the right to self-determination, freedom and independence, and that those peoples that have been forcibly deprived of its exercise have the right to struggle to that end, in conformity with the relevant principles of the Charter and of the above-mentioned Declaration...’; see UN Doc. A/59/894 App. II (12 August 2005).

⁴⁵ See Art. 2(a) of the Arab Convention for the Suppression of Terrorism of 22 April 1998: ‘All cases of struggle by whatever means, including armed struggle, against foreign occupation and aggression for liberation and self-determination, in accordance with the principles of international law, shall not be regarded as an offence. This provision shall not apply to any act prejudicing the territorial integrity of any Arab State.’ Cf. also S. Zeidan, ‘Desperately Seeking Definition: The International Community's Quest for Identifying the Specter of Terrorism’, 36 Cornell International Law Journal (2004) 491, at 493 (‘Terrorism should not be equated with the legitimate, internationally protected right of peoples to self-determination. To resist occupation is to end the highest form of terrorism, namely, state terrorism.’).

⁴⁶ See Art. 3 Abs. 1 of the OAU Convention on the Prevention and Combating of Terrorism of 14 July 1999: ‘Notwithstanding the provisions of Article 1, the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts.’

⁴⁷ See Art. 260 quinquies (3) of the Swiss Penal Code (‘Die Tat gilt nicht als Finanzierung einer terroristischen Straftat, wenn sie auf die Herstellung oder Wiederherstellung demokratischer und rechtsstaatlicher Verhältnisse oder die Ausübung oder Wahrung von Menschenrechten gerichtet ist.’). For critical appraisals of this provision, see M. Forster, ‘Die Strafbarkeit der Unterstützung (insbesondere Finanzierung) des Terrorismus’, 121 Schweizerische Zeitschrift für Strafrecht (2003) 423, at 444–445; D. Jositsch, ‘Terrorismus oder Freiheitskampf? — Heikle Abgrenzungsfragen bei der Anwendung von Art. 260 quinquies StGB’, 123 Schweizerische Zeitschrift für Strafrecht (2005) 458, at 462 et seq.; see also the contribution of M. Pieth in this issue.

⁴⁸ See text supra note 26.

⁴⁹ Art. 2(1)(b) of the Financing of Terrorism Convention (supra note 10); Art. 20(2) of the Draft Comprehensive Convention (supra note 13); EU Framework Decision (supra note 23), Preamble (11).

⁵⁰ Art. 19(2) of the International Convention for the Suppression of Terrorist Bombings of 15 December 1997 (A/RES/52/164); Art. 4(2) of the Nuclear Terrorism Convention (supra note 12); Art. 20(3) of the Draft Comprehensive Convention (supra note 13); EU Framework Decision (supra note 23), Preamble (11).

⁵¹ Cassese, International Criminal Law, supra note 5, at 127 points out that the general exemption of armed conflicts may also go too far because it leaves military personnel unprotected from terroristic attacks by civilians. It is thus preferable to limit any exception — as in Art. 20(2) of the Draft Comprehensive Convention (supra note 13) — to the activities of armed forces during an armed conflict.

⁵² See K. Schmalenbach, ‘Der internationale Terrorismus — Ein Definitionsversuch’, Neue Zeitschrift für Wehrrecht (2000) 15, at 19; E. Symeonidou-Kastanidou, ‘Defining Terrorism’, 12 European Journal of Crime, Criminal Law and Criminal Justice (2004) 14, at 20–21.

⁵³ See e.g. Art. 1(1) of the EU Framework Decision (supra note 23): ‘... where committed with the aim of: seriously intimidating a population, or unduly compelling a Government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation, shall be deemed to be terrorist offences ...’; similarly, see Art. 2(1) of the Convention for the Suppression of Terrorist Bombings (supra note 32).

⁵⁴ See Art. 2(1)(b) of the Financing of Terrorism Convention (supra note 10): ‘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 organization to do or to abstain from doing any act.’ The same definition is used in Art. 2(1) of the Draft Comprehensive Convention (supra note 13). According to 18 United States Code 2331 (1) and (5), it is sufficient that the actor's conduct only ‘appears to be intended’ to intimidate or coerce.

⁵⁵ Some conventions do not require any subjective element beyond intention to commit the prohibited act that is (obviously) deemed ‘terroristic’ whatever its circumstances; see e.g. Article 2(1) of the Terrorist Bombing Convention (supra note 32). Art. 2(1)(a) of the Nuclear Terrorism Convention (supra note 12) requires only a combination of the actus reus of possessing radioactive material with an intent to cause death, injury or substantial damage to property.

⁵⁶ This may be different when a state grants its citizens a constitutional right not to be extradited.

⁵⁷ For an example of a thorough analysis of procedural laws along the lines indicated in the text, see the decision of the German Federal Constitutional Court on the installation of hidden microphones in private homes: 109 Entscheidungen des Bundesverfassungsgerichts (2004) 279.

⁵⁸ See e.g. Arts 132–18 and 132–19 of the French Criminal Code, permitting the court to impose a sentence below the maximum indicated for each offence without giving any substantive guidance for the court's sentencing decision. In Germany, the principle of legality is said to extend to the determination of the sanction (cf. 105 Entscheidungen des Bundesverfassungsgerichts (2002) 135, at 152–157 (declaring void for vagueness a provision permitting imposition of a fine up to the totality of the offender's financial means)); yet there exist criminal offences where the court can impose any sentence between a low fine and 15 years' imprisonment without being bound by substantive legislative standards (e.g. extortion, 253(1) and (4) of the German Penal Code).

⁵⁹ This is the position advocated by Cassese, International Criminal Law, supra note 5, at 128–130.

⁶⁰ See supra 3.B.

⁶¹ See Cassese, International Criminal Law, supra note 5, at 129, who describes as the actus reus of an international crime of terrorism ‘acts [that] must constitute a criminal offence under most national legal systems’ and gives a few (non-exhaustive) examples, which do not cover some of the acts treated as potentially terroristic in several international instruments. He also requires a political, ideological or political motivation on the part of the actor, which is not a prerequisite of terrorism in most recent instruments.

⁶² For the full text, supra note 23. Subparagraphs (a) to (i) list certain ‘base’ offences.

⁶³ See Art. 5 of the Framework Decision, supra note 23. Article 5(3) establishes minimal levels of maximum punishments, and Art. 5(2) requires Member States to punish terrorist offences more severely than ‘ordinary’ offences of the same type. For criticism of this policy decision, see F. Verbruggen, ‘Bull's-Eye? Two Remarkable EU Framework Decisions in the Fight against Terrorism’, in C. Fijnaut, J. Wouters and F. Naert (eds), Legal Instruments in the Fight against International Terrorism, supra note 40, 299, at 322–323.

⁶⁴ Art. 9 of the EU Framework Decision