Defining Terrorism- The UNGA Sixth Committee Struggles On

By Victor Comras

Once again the UNGA’s Sixth (Legal) Committee is struggling with defining terrorism as it seeks to finalize the longstanding proposed draft of a Comprehensive Convention on International Terrorism (CCIT). The Sixth Committee reconvened October 8th to focus on the draft convention and on proposals calling for a new world conference on stemming international terrorism. Unfortunately, the optimism expressed by most delegates in their opening remarks, were also accompanied by restatements of fixed positions on the key issues stalling the finalization of an acceptable draft. It seems that little real progress has been made despite the strenuous efforts of special coordinator Maria Telalian (Greece), who took on the difficult task during the February/March 2008 working group sessions, of trying to find common ground among the participating delegates. From her work it has now become apparent that the real issue holding up agreement on a draft text is simply a lack of political will.

The convention text has long been hung up on three basic issues, (1) terminology to be used in defining terrorism, (2) the relationship between terrorism and anti-colonial and national liberation movements; (3) the activities of State’s armed forces in armed conflicts, and in the peacetime exercise of their official duties.

During the course of the last 12 years the Sixth Committee (and its various working groups) has reviewed and tested just about every permutation possible for a definition of terrorism. Several delegates now suggest that “even if certain terms appear to be vague and unclear, the rules of treaty interpretation could provide the necessary tools and sufficient guidance…” Others, however, continue to insist that the value of a comprehensive convention resides in its closing the remaining gaps and underscoring the principle that “terrorism cannot be justified for whatever purposes.” Let us hope that this view prevails, doubtful as that may now seem.

It is now becoming increasingly apparent that, even if the Sixth Committee and the General Assembly are finally able to agree, at this or some future session, on a draft comprehensive anti-terrorism convention, the language contained therein will still leave the door open for many countries to continue to provide support to those insurgent groups they favor, even if such groups continue to employ terrorist tactics. For this convention, like most international conventions, will not be self executing. Implementation of its provisions, which are intended to criminalize terrorist activities, will require national legislation and domestic juridical interpretation and action. It will be up to each country to decide what is required and to enforce its provisions. And that is why several of the Organization of the Islamic Conference (OIC) countries have put such emphasis on assuring that the definition of terrorism has sufficient wiggle room for them to justify, and allow them to continue, their support for such groups as Hamas, Hizbollah, Islamic Jihad, Laskhar y Taiba, and so many other groups that employ terrorist tactics.

With this in mind members of the Organization of the Islamic Conference and the Non Aligned Group, continue to insist that there be a direct link between the definition language contained in Article 2 of the draft convention with language which they say must serve to “establish a clear distinction between acts of terrorism covered by the convention and the legitimate struggle of peoples in the exercise of their right to self-determination or against foreign occupation."

Another major Sixth Committee debate will center on the language of draft Article 18 and the scope and coverage of the convention vis a vis the operations and activities of military forces in both peacetime and conflict situations. As now presented draft Article 18 states: “The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by the present convention.” The OIC has long sought to change the current draft language so as to bring such activities also under the purview of the Comprehensive Convention on International Terrorism. They argue that the current language could serve to exempt military forces from criminal accountability for unjustified or excessive actions. But, this is largely a ruse that really seeks to use convention language to equate Israel's responses to terrorist attacks with terrorism.

A new proposal now circulating makes it quite evident that the CCIT provides no exemptions in this regard and certainly would not have the effect of making lawful, otherwise unlawful acts. Rather, the convention would recognize that other laws do apply in these circumstances and that nothing in the current convention would preclude prosecution under such laws. A new reference to Article 2 in paragraph 4 of draft Article 18, together with the new preambular paragraph, would, at the same time, underscore that there remains a “class of conduct” which, if committed, would constitute an offence that would remain punishable irrespective of the specific convention that would apply.

The OIC has pretty much already gotten what it has demanded, even as its members remain resistant and aloof toward finalizing an agreed text. Perhaps it is also now time for those interested in assuring that the convention will, if adopted, really serve the purposes for which it is intended -- to cover the gaps that continue to allow countries to throw a blind eye to the terrorist groups in their midsts -- to take a second look. Another convention that simply leaves the current loopholes in place - and allows countries to continue to fund groups known to carry out terrorist attacks will not advance the interests of international peace and security.

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