Defining Terrorism in International Law

by Saul, Ben

• ISBN13: 9780199535477
• ISBN10: 0199535477
• Format: Paperback
• Copyright: 2008-04-15
• Publisher: Oxford University Press

Summary

Despite numerous efforts since the 1920s, the international community has failed to define or criminalize 'terrorism' in international law. This book first explores the policy reasons for defining and criminalizing terrorism, before proposing the basic elements of an international definition.Terrorism should be defined and criminalized because it seriously undermines fundamental human rights, jeopardizes the State and peaceful politics, and may threaten international peace and security. Definition would also help to distinguish political from private violence, eliminating the overreachof the many 'sectoral' anti-terrorism treaties. A definition may also help to confine the scope of UN Security Council resolutions since 11 September 2001, which have encouraged States to pursue unilateral and excessive counter-terrorism measures.Defining terrorism as a discrete international crime normatively recognizes and protects vital international community values and interests, symbolically expresses community condemnation, and stigmatizes offenders. Any definition of terrorism must also accommodate reasonable claims to politicalviolence, particularly against repressive governments, and this book examines the range of exceptions, justifications, excuses, defences and amnesties potentially available to terrorists, as well as purported exceptions such as self-determination struggles, 'State terrorism' and armed conflicts.While this book seeks to minimize recourse to violence, it recognises that international law should not become complicit in oppression by criminalizing legitimate forms of political resistance. In the absence of an international definition, the remainder of the book explores how the internationalcommunity has responded to terrorism in international and 'regional' treaties, the United Nations system, and in customary law. The final part of the book explores the distinctive prohibitions and crime of 'terrorism' in armed conflict under international humanitarian law.

Author Biography

Ben Saul is a Senior Lecturer in the Faculty of Law at the University of Sydney.

Table of Contents

Introduction: Concepts of Terrorism

Reasons for Defining and Criminalizing Terrorism

Nature of International Crimes

International Criminological Policy

Terrorism as a Discrete International Crime

Elements of a Definition of Terrorism

Defending 'Terrorism': Justifications and Excuses for Terrorist Violence

Common Justifications for Terrorism

Criminal Law Defences to Terrorism

Circumstances Precluding Group Responsibility

'Illegal but Justifiable' Terrorism

Discretion and Law: Never Negotiate with Terrorists?

Terrorism in International and Regional Treaty Law

Transnational Criminal Law Treaties

Treaties of Regional Organizations

Attempts at Definition in Treaty Law 1930 - 2005

Terrorism in Customary International Law

UN General Assembley Practice

UN Security Council Practice

Judicial Decisions Defining Terrorism

National Terrorism Legislation

Terrorism in International Humanitarian Law

Early Developments 1919 - 1948

Second World War and Aftermath 1939 - 1948

1949 Geneva Conventions and 1977 Protocols

International Criminal Tribunals since 1993

Individual Criminal Responsibility for 'Terrorism'

Customary Crimes of Terrorism in Armed Conflict

US Military Commissions and 'Terrorism'

No Separate Category of 'Terrorist'

Conclusion: Proving Terror, Avoiding Duplication

Conclusion

Bibliography

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