Case Western Reserve University School of Law Scholarly Commons Faculty Publications 2004 Defining errT orism as the Peacetime Equivalent of War Crimes: Problems and Prospects Michael P. Scharf Case Western Reserve University - School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the International Law Commons Repository Citation Scharf, Michael P., "Defining errT orism as the Peacetime Equivalent of War Crimes: Problems and Prospects" (2004). Faculty Publications. 229. https://scholarlycommons.law.case.edu/faculty_publications/229 This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. DEFINING TERRORISM AS THE PEACETIME EQUIVALENT OF WAR CRIMES: PROBLEMS AND PROSPECTS* Michael P. Schar/ I. Introduction The problem of defining "terrorism" has vexed the international community for decades. The United Nations General Assembly has repeatedly called for the convening of an international conference to define terrorism and distinpish it from legitimate acts in furtherance of national liberation struggles. Twelve years ago, representing the United States, I delivered a speech in the U.N. Sixth (Legal) Committee, in which I pointed out that general definitions of terrorism "are notoriously difficult to achieve and dan5erous in what all but the most perfect of definitions excludes by chance." I concluded that the history of the effort to deal with the problem of terrorism under the League of Nations and in the United Nations indicates that "the difficulty of an abstract definition is, as a practical matter, insurmountable."3 A few months after I gave that speech at the United Nations, Alex Schmid, the Senior Crime Prevention and Criminal Justice Officer at the U.N.'s Terrorism Prevention Branch in Vienna, proposed a novel approach to the problem of defining terrorism which would draw on the exis.ting consensus of what constitutes a war crime.4 After circulating without much interest through the United Nations during the last decade, Schmid's proposal suddenly gained world-wide attention in April 2004, when it was cited by the Supreme Court of India as a way around what the Court characterized as the Gordian definitional knot. In Singh v. Bihar, the Indian Supreme Court explained: "If the core of war crimes-deliberate attacks on • Presented at the War Crimes Research Symposium: "Terrorism on Trial" at Case Western Reserve University School of Law, sponsored by the Frederick K. Cox International Law Center, on Friday, October 8, 2004. t Professor of Law and Director of the Frederick K. Cox International Law Center, Case Western Reserve University School of Law; formerly Counsel to the Counter Terrorism Bureau, Attorney-Adviser for Law Enforcement and Intelligence, and Attorney-Adviser for U.N. Affairs, U.S. Department of State. 1 1 See e~g., G.A. Res. 51, U.N. GAOR, 46 b Sess., U.N. Doc. A/46/51 (1991). 2 See Statement of Michael P. Scharf, United States Adviser to the forty-sixth General Assembly, in the Sixth Committee, on Item 125, Terrorism, Press Release USUN 63-(91) (Oct. 21, 1991), reprinted in MICHAEL P. SCHARF, THE LAW OF lNrERNATIONAL ORGANIZATIONS: PROBLEMS AND MATERIALS 699(2001). 3Jd. 4 See Alex P. Schmid, The Definition of Terrorism, A Study in Compliance with CTL/9/91/2207 for the U.N. Crime Prevention and Criminal Justice Branch, Dec. 1992. 359 360 CASE W. RES. J. INT'L L. [Vol. 36:359 civilians, hostage-taking and the killing of prisoners is extended to peacetime, we could simply define acts of terrorism veritably as 'peacetime equivalents of war crimes. "'5 This article examines the proposal to define terrorism as the peacetime equivalent of war crimes in the context of answering two questions: First, why might it be useful to define terrorism by reference to the existing laws of war? And second, what are the potential negative consequences which might counsel against such an approach? Before addressing these questions, however, it is useful to provide a brief history of the modem international effort to defme terrorism. II The International Quest for a General Definition of Terrorism ,­ ( In 1987, the United Nations General Assembly adopted Resolution 42/159, recognizing that the effectiveness of the struggle against terrorism could be enhanced by the establishment of a generally agreed defmition of international terrorism. The issue was initially assigned to the U.N. Sixth (Legal) Committee, which had over the years drafted a number of conventions addressing specific crimes committed by terrorists, although none of these conventions ever used the word "terrorism" let alone provided a defmition of the term. When the Sixth Committee failed to make progress in reaching a consensus definition of terrorism, the General Assembly in 1996 established an ad hoc committee to develop a comprehensive framework for dealing with international terrorism. 6 Foremost among its accomplishments, the ad hoc committee developed the International Convention for the Suppression of the Financing of Terrorism, which defined terrorism as (1) any activity covered by the twelve anti-terrorism treaties; and (2) "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."7 129 States have so far ratified this multilateral treaty. This was as close as the international community has ever come to adopting a widely accepted general definition of terrorism. 5 Singh v. Bihar, 2004 SOL Case No. 264, April 2, 2004, para. 16, available at http://supremecourtonline.com (upholding conviction under the Indian Terrorist and Disruptive Activities Act of 1987 of a number of heavily armed individuals who attacked a group of police officers). 6 See G.A. Res. 210, U.N. GAOR Ad Hoc Comm., 52"d Sess., Supp. No. 37, U.N. Doc. A/52/37 (1996). 7 G.A. Res. 109, U.N. GAOR, 54th Sess., at 3, U.N. Doc. A/RES/54/109 (2000). 2004] DEFINING TERRORISM 361 Immediately after the events of September 11, 2001, the General Assembly established a working group to develop a comprehensive convention on international terrorism. In the spirit of cooperation that marked the early days after the September 11 attacks, the members of the working group nearly reached consensus on the following defmition of terrorism: [Terrorism is an act] intended to cause death or serious bodily injury to any person; or serious damage to a State or government facility, a public transportation system, communication system or infrastructure facility ... 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 abstain from doing an act. 8 The effort hit a snag, however, when Malaysia, on behalf of the 56- member Organization of the Islamic Conference (OIC), proposed the addition of the following language: Peoples' struggle including armed struggle against foreign occupation, aggression, colonialism, and hegemony, aimed at liberation and self­ determination in accordance with the principles of international law shall not be considered a terrorist crime.9 According to Nicholas Rostow, General Counsel to the U.S. Mission to the United Nations, the OIC's proposal intended to exempt acts against Israel over the occupied territories and acts against India over Kashmir from the definition of terrorism, and to brand violations of the laws of war by State military forces such as the Israel Defense Forces as terrorist acts. 10 When neither side was willing to compromise on this issue, the project was shelved indefinitely. With work on a general definition of terrorism once again stalled in the General Assembly, the U.N. Security Council stepped in to the fray. Acting under Chapter VII of the U.N. Charter, the Council adopted Resolution 1373, which in essence transformed the Terrorism Financing Convention into an obligation of all U.N. member States, requiring them to prohibit 8 Measures to Eliminate International Terrorism: Report of the Working Group, U.N. GAOR 6th Comm., 55th Sess., Agenda Item 164, at 39, U.N. Doc. A/C.6/55/L.2 (2000), quoted in Surya P. Subedi, The U.N. Response to International Ten-orism in the Aftennath of the Terrorist Attacks in America an!J the Problem of the Definition of Ten-orism in International Law, 4 INT'LLAWF. DUDROITINT'L 159, 162 (2002). 9 Subedi, supra note 8, at 163. 10 Nicholas Rostow, Before and After: The Changed UN Response to Terrorism since September lith, 35 CORNELLINT'LL. J.475, 488 (2004). 362 CASE W. RES. J. INT'L L. [Vol. 36:359 financial support for persons and organizations engaged in terrorism. 11 The Council missed an opportunity, however, to adopt a universal definition of terrorism when it decided not to include the Terrorism Financing Convention's definition of terrorism in Resolution 1373, but rather to leave the term undefmed and to allow each State to ascertain its own defmition of terrorism. Further, the Council created a committee (The Counter­ Terrorism Committee) to oversee the implementation of the resolution, but it did not give the Committee the mandate to promulgate a list of terrorists or terrorist organizations to whom financial assistance would be prohibited under the resolution. 12 The Security Council's most recent statement on terrorism came in response to a bloody terrorist attack at an elementary school in Russia in October 2004.