4.1. The Main Contentious Issues
Many years of research on the phenomenon of terrorism and the leg-islative work undertaken by various national and international bodies aimed to implement measures to combat it encountered some insuper-able obstacles right from the beginning. They were primarily caused by the lack of consensus in determining both the constitutive elements of the concept of terrorism, as well as the criteria defining the terrorist nature of a single prohibited act.
The term “terrorism” is widely recognized as emotive,45 extremely pe-jorative in meaning46 and revealing political tinge.47 Still, there is no agree- ment as to whether it should be used to describe the behaviour, phenom-enon, methods of operation, strategy or a specific ideology. As a matter of fact, the term encompasses various categories of offences involving the use of violence or a threat to use it; it may well accommodate racial cleansing, the activity of gangs or even home argument.48 Currently, there is a visible trend to extend the concept, as reflected in some linguistic neologisms, such as “eco-terrorism,” “bio-terrorism,” “drug-terrorism,” “cyber-terror-ism,” or even to trace some attributes of terrorism in cultural (“cultural terrorism”) or fashion influences (“fashion terrorism”).49
44 Cf. Wilkinson, P. Terrorism, p. 182.
45 Claridge, D. „State Terrorism? Applying a Definitional Model,” TPV 8 (1996), p. 48, Saul, B. Defining, p. 1.
46 Hołyst, B. Terroryzm, vol. I, p. 72, Jenkins, B. M. International Terrorism, p. 14, Quénivet, N. “The World after September 11: Has It Really Changed?” EJIL 3 (2005), p. 562, Saul, B. Defin-ing, p. 3, Sorel, J. M. “Some Questions About the Definition of Terrorism and the Fight Against Its Financing,” EJIL 2 (2003), p. 366.
47 Cf. Saul, B. Defining, p. 3.
48 Cf. Ch. L. Ruby, The Definition, p. 10.
49 Gearson, J. „The Nature of Modern Terrorism,” PQ (2002), p. 9.
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The Notion of Terrorism
The main concern seems to be the imposing of different content on the concept of terrorism based on political assessment. Over thirty years ago, B.M. Jenkins made the following observation: “Some governments are prone to label as terrorism all violent acts committed by their politi-cal opponents, while anti-government extremists frequently claim to be the victims of government terror. What is called terrorism thus seems to depend on point of view.”50 This popular statement is a good illustration of that: “One man’s terrorist is another’s freedom fighter.”51 The concept of terrorism happens, as proven here, to be narrowed by the use of terms that instil a positive attitude in the listener, such as revolutionary, militant or guerrilla. It may as well be unduly inflated and used instrumentally to condemn some disapproved forms of political activity52 that in fact fall within the universal standards of human rights.
In connection with the problems outlined above, opinions are ventured that terrorism is intrinsically “indefinable” and the term itself is hollow and devoid of content.53 Consequently, some are dubious about the effort made to propose a universal definition of terrorism and gain a widespread acceptance for it within the international community.54 At the same time, there are voices urging for such a definition. If accepted, it may prevent the abuse of criminal law for eliminating political opponents and as a justifica-tion for the violations of human rights.
It is no doubt indispensable to endeavour to create a universal defi-nition of terrorism of an international reach in order to help harmonize national laws; this will improve the cooperation between law enforcement agencies and the judiciary in different countries. A uniform legal evalua-tion of terrorist acts could prevent the impunity of their perpetrators and facilitate procedures, such as requesting extradition, or granting asylum or refugee status.
50 Jenkins, B. M. International Terrorism, p. 14.
51 Cf. Golder, B., Williams, G. „What is “Terrorism”? Problems of Legal Definition,” UN-SWLJ 2 (2004), p. 272, O’Day, A. “Introduction,” in: Weapons of Mass Destruction and Terrorism, O’Day, A., ed., Aldershot – Hants – Burlington 2004, p. xv, Wheeler, E. L. Terrorism, p. 7.
52 Gearty, C. Terroryzm, p. 71, Filar, M. „Terroryzm – problemy definicyjne oraz regulacje prawne w polskim prawie karnym w świetle prawa międzynarodowego i porównawczego,”
in: Terroryzm. Materiały z sesji naukowej. Toruń 11 kwietnia 2002 roku, Kwiatkowska-Darul, V., ed., Toruń 2002, p. 18.
53 Gearty, C. Terroryzm, p. 9, cf. also Ferracuti, F. Una interpretazione, p. 427.
54 Śliwowski, G. „Legal Aspects of Terrorism,” in: International Terrorism and World Security, Carlton, D., Schaerf, C., eds., London 1975, p. 76.
Defining Terrorism The effect of provisions criminalizing all forms of terrorism and hav-ing the character of positive general prevention should also be noted here.
The assessment of their effectiveness in preventing this type of crime is rather unbalanced in the literature. Nevertheless, there are views that the very use of terms like “terrorism,” “terrorist” or “terrorist offence” im-plies a negative attitude and has a “stigmatizing”55 effect. In order for such a preventive action of criminal law to meet its expected goals, the legisla- tor should be able to rely on a precise definition of terrorism, thus counter-acting abuse that may entail the devaluation of the concept.
4.2. Academic Definitions
Among the various definitions of terrorism, many have been proposed by academics based on the results of their research. In this vast group, some are of inclusive and broad in character and, in fact, constitute a com-prehensive description of the phenomenon, while others are concise, often one-sentence statements indicating the most essential features of the con-cept.
Concisely, terrorism is defined as, for example, “the intentional use or threat of violence to instil fear and/or submissive behaviour of the victim and/or the audience,”56 or “intentional generation of massive fear by hu- man beings for the purpose of securing or maintaining control over oth-er human beings.”57 A representative of the Polish doctrine of penal law, R. Lemkin, wrote back in 1935 that terrorism in its broadest sense means,
“to intimidate the population by means of violent acts.”58 P. Wilkinson pointed to similar constituent elements of the concept when submitting his synthetic formula of the systematic use of coercive intimidation.59 The usefulness of the above definitions for the analysis of the phenomenon and its adaptation to some legal framework is still limited, since they highlight only the most essential – in the opinion of the definition-makers – charac-teristics of terrorism. They fail to fix the exact boundaries of the concept, leaving some issues unresolved, e.g. state terrorism, criminal terrorism, or the need to substantiate the existence of a political motivation of the perpetrator.
55 Hess, H. „Like Zealots and Romans: Terrorism and Empire in the 21st Century,” CLSCh 39 (2003), p. 339, Malik, O. Enough of the Definition of Terrorism, London 2000, pp. xviii-xix.
56 Stohl, M. National Interests, p. 38.
57 Cooper, H. H. A. „Terrorism. The Problem of Definition Revisited,” ABS 44 (2001), p. 883.
58 Lemkin, R. „Teroryzm,” GSW 41 (1935), p. 561.
59 Wilkinson, P. Terrorism, p. 51.
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The Notion of Terrorism
A definition widely acknowledged by researchers, and at the same time descriptive and inclusive, is submitted by A. P. Schmid, which reads: “Ter-rorism is an anxiety-inspiring method of repeated violent action, employed by (semi-)clandestine individual, group, or state actors, for idiosyncratic, criminal, or political reasons, whereby—in contrast to assassination—the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target popula- tion, and serve as message generators. Threat and violence based commu-nication processes between terrorist (organization), (imperilled) victims, and main targets are use to manipulate the main target (audience(s)), turn-ing it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion, or propaganda is primarily sought.”60 A.P. Schmid advanced his thesis after a thorough examination of 109 definitions submitted beforehand by both the scientific community and national legislatures. Among the most common definition components testifying to what the substance of terrorism is the following factors were indicated: the use of violence and force (83.5%), the political nature (65%) and fear and terror (51%). Some other components include threat; psy-chological effects and anticipated reactions; differentiation between victim and target; purposive, planned, premeditated, systematic and organized action; method of combat, strategy, and tactics.61
M. Cherif Bassiouni defines terrorism as a strategy of violence de-signed to inspire terror within a particular segment of a given society. He adds that terrorism is usually associated with acts committed by ideologi-cally and politically motivated individuals in order to achieve power, but also by individuals who are not motivated and by individuals acting on behalf of states in time of war and peace.62
In recent years, much attention in the literature has been given to the definition by B. Hoffman, who sees terrorism as “the deliberate creation and exploitation of fear through violence or the threat of violence in the pursuit of political change. All terrorist acts involve violence or the threat of violence. Terrorism is specifically designed to have far-reaching psy-chological effects beyond the immediate victim(s) or object of the terrorist
60 Schmid, A. P., Jongman, A. J. Political Terrorism. A New Guide to Actors, Authors, Concepts, Data Bases, Theories, and Literature, New Brunswick 1988, p. 28.
61 Cf. ibidem, pp. 5-6.
62 Cf. Cherif Bassiouni, M. „Terrorism, Law Enforcement, and the Mass Media: Perspec- Cf. Cherif Bassiouni, M. „Terrorism, Law Enforcement, and the Mass Media: Perspec-tives, Problems, Proposals,” JCLC 72 (1981), p. 1.
Defining Terrorism attack. It is meant to instil fear within, and thereby intimidate, a wider
“target audience” that might include a rival ethnic or religious group, an entire country, a national government or political party, or public opin-ion in general. Terrorism is designed to create power where there is none or to consolidate power where there is very little. Through the publicity generated by their violence, terrorists seek to obtain the leverage, influ-ence and power they otherwise lack to effect political change on either a local or an international scale.”63 Interestingly, the author underlines the existence of a particular motivation of the perpetrators (“the pursuit of political change”) and therefore curtails his analysis to political terrorism and omits to include other forms of crime from his consideration. The lit- erature recognises the “transparency” of Hoffman’s choice of words to de-fine the research problem and his ability to clearly mark the boundary of terrorism.64 In addition, the “relevance” and “universal character” of the description help transpose it to international terrorism.65
4.3. Legal Definitions
In addition to academic definitions based on research, and thus of more or less private nature,66 there is a distinctive set of legal definitions contained in legislation and applied by various national and international institutions. They provide an authentic interpretation of the term “terror-ism” along with its derivative expressions, such as “terrorist offence” or
“terrorist group”.
The annual U.S. State Department report submitted to the Congress (Country Reports on Terrorism), defines terrorism as premeditated, politi-cally motivated violence perpetrated against non-combatant targets by sub-national groups or clandestine agents. The “non-combatant targets”
are not only civilians but also military personnel (whether or not armed or on duty) who are not deployed in a war zone or a war-like setting but also military personnel, regardless of whether they are armed and on duty outside the zone of hostilities.67
63 Hoffman, B. Inside Terrorism, London 1998, pp. 40-41.
64 Malik, O. Enough, pp. 3-4.
65 Dyrcz, Cz. Terroryzm początku XXI wieku jako zagrożenie bezpieczeństwa międzynarodowego i narodowego, Gdynia 2005, pp. 13-14.
66 Cf. Indecki, K. Prawo karne, p. 19.
67 Cf. Country Reports on Terrorism 2007, p. 311.
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The Notion of Terrorism
Another legal technique was adopted in the British Terrorism Act 2000,68 which offers a two-stage approach. First, it determines the subjec-tive scope of such a criminal behaviour. A terrorist act falls within this scope if it involves serious violence against a person, involves serious damage to property, endangers a person’s life, creates a serious risk to the health or safety of the public or a section of the public, or is designed seriously to interfere with or seriously disrupt an electronic system (Ar-ticle 1(2)). Second, it is mandatory to prove that such an act is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public for the purpose of ad-vancing a political, religious, racial or ideological cause (Article 1(1) (b-c)).
Introduced in recent years in various states, the laws regulating the suppression of terrorism in a holistic manner often contain legal definitions of selected terms. The Russian Federal Law of 6 March 2006 on Counter-acting Terrorism69 elucidates not only the concept of “terrorism,” but also some derivative terms, such as “terrorist activity,” “terrorist act” and even
“countering terrorism” and “antiterrorist operation.” According to its pro-visions, terrorism is defined as “the ideology of violence and the practice of influencing the adoption of a decision by public authorities, local self- government bodies or international organizations connected with fright-ening the population and (or) other forms of unlawful violent actions.”
(Article 3(1)) The vague wording of this law is particularly conspicuous (“ideology,” “practice,” “other forms”), thus leaving the state authorities a broad and discretionary power in its interpretation. This definition can to a lesser extent serve as a guarantee; in particular, it contains no safe-guards against the use of counter-terrorism legislation to stifle political opposition or quash demonstrations, strikes, etc. It also resembles a rather general description of the phenomenon than an authentic interpretation of the term used in the law.
The examples provided demonstrate that it is rather challenging to grasp and describe the most essential features of terrorism in an abstract and synthetic formula; moreover, it is no less difficult to obtain approval for it in the scientific community or at the level of interstate cooperation.
It transpires that any endeavour to propose a definition that will com-prehend the concept in the most definitive manner possible should occur
68 Full text of the act available at: www.hmso.gov.uk/acts/acts2000/00011--b.htm.
69 Федеральный закон от 6 марта 2006 г. Ν 35–Ф3 „О противодействии терроризму”
(с изменениями от 27 июля 2006 г., full text of the act available at www.garant.ru/law/12045408-001.htm.
The Components of the Definition of Terrorism in two stages. First, some elements must be identified that constitute the essence of the phenomenon. This includes such features of criminal behav-iour that contain genuine “terrorist” attributes. Next, the boundaries must be unambiguously defined that distinguish terrorism from other forms of crime and lawful conduct, for example, manifestations of political opposi-tion in the country.