UN Continues to Struggle Unsuccessfully With Definition of Terrorism

By Victor Comras

The UN appears no closer to working out a consensus on a definition of terrorism � a key element holding up the adoption of new UN Comprehensive Anti Terrorism Convention � than it was at the start of this sixtieth session of the UN General Assembly last fall. Achieving a Comprehensive Anti Terrorism Treaty is one of the principal objectives set by heads of state attending this special anniversary session. Nevertheless, UN legal committee negotiators continue to wrangle over phrases that continue to convey major differences over the application and scope of the convention. The drafters, members of a working group of the UN General Assembly�s Sixth (Legal Affairs) Committee ended their week-long meeting March 3rd without even setting a new date to reconvene. All 191 UN members have a seat on the working group.

Following negotiations last summer, the Sixth Committee Working Group Coordinator put together a consolidated draft convention text for further consideration. Article 2 in that draft states:

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.

The Organization of the Islamic Conference Countries (OIC) protested the consolidated draft stating that it prejudiced its position in the negotiations. The OIC, along with the Unaligned Group insist on additional language in the treaty that could be interpreted as exempting armed resistance groups involved in so-called �struggles against colonial domination and foreign occupation.� At the same time they want the convention to specifically cover the activities of regular armed forces, which, because they are covered by other humanitarian and Law of War Conventions, now fall outside the purview of the terrorism convention. (For more details on these issues see my October 25, 2005 Blog)

The quest for a comprehensive definition of terrorism is certainly not new. The League of Nations, back in 1937, proposed a draft convention on terrorism that defined terrorism as "All 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". That convention died with the League. In 1996, the UN General Assembly adopted GA Res. 51/210 on Measures to Eliminate International Terrorism. Its preamble read in part, �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 other nature that may be invoked to justify them.� More recently, the UN High Level Panel Report on New Threats and Challenges recommended language that �Any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians or non combatants, with the purpose of intimidating a population or compelling a Government or an international organization to do or abstain from doing any act.�

Why is a terrorism definition so important? First of all it provides common ground for international cooperation in combating terrorism. It lays the foundation for requesting and receiving the mutual assistance and support required under the various UN counter terrorism resolutions and the 12 international counter -terrorism conventions now in place. The absence of a terrorism definition seriously hinders any effort to coordinate an international response to terrorism. Without a common definition countries remain free to interpret their own obligations and define for themselves which groups are terrorists and which are �freedom fighters.� Saudi Arabia uses this distinction, for example, to get away with funding Hamas, while Iran and Syria use it to provide funds and support to Hezbollah. But, many other countries have also used it to avoid taking steps to freeze funds or take other civil or criminal action against those individuals or groups which they support.

The language contained in the consolidated draft is similar to language now contained in several other international counter-terrorism conventions. The UN Convention for the Suppression of Terrorism Financing, for example, States in Article 2:

1. Any person commits an offence within the meaning of this Convention if that person by any means...provides or collects funds with the intention that they should be used ...in order to carry out: .... (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.

In the absence of any UN or universal definition of terrorism countries continue to rely on their own local laws and judicial and administrative pronouncements and findings. The US Patriot Act, for example, lays out the definition used by US courts. It provides:

1) the term �international terrorism� means activities that�
(A) involve violent acts 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;"

For the working definition of terrorism used by other countries see here.

Our Executive and Legislative Branches, as well as our academic community and NGOs must continue to bring reason and pressure to bear on the United Nations membership, the OIC and the Unaligned to come to terms with a working convention that places the stress on dealing with and preventing inernaitional terrorism, rather than using the convention as a vehicle for complicating the resolution of other international disputes, including the Israeli - Palestinian issue.

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