AIDP Blog

Mr. Guiora makes a thorough and practical case for the adoption of a single uniform definition of terrorism. However, upon reading this comprehensive survey of various international and domestic definitions, as well as the means/ends and exclusionary analysis of terrorism, I found several areas of interpretation and distinction which could warrant an alternative approach.
First, it appears that the prevalent definitions of terrorism range from very narrow to very broad , but the analysis presented stops short of discussing a threshold for what distinguishes terrorism both as a means and an end. Amos N. Guiora, Framing Homeland Security. http://ssrn.com/abstracts=1086247. Unlawful “death, injury, property damage, or intimidation . . . on the innocent civilian population.” Id. While this is a clear elemental description of the “means” and is generally incorporated into most definitions, it does not by itself distinguish terrorism from mere crime except perhaps in scale . The crucial distinction is in the “ends” or objective of terrorism. Its stated purpose is not for personal gain as with most common crime, but to effect social or political change through intimidation or “leveraging” the civilian population. The US definitions vary on the necessary elements of the crime relating to this objective. “[P]olitical or social objectives” and “to intimidate or coerce” are common phrasing, the latter describing the direct effect of an attack or series of attacks and the former being the long term objective or indirect goal of the attack. Id. The lack of direct (attempted) casual connection between a terrorist attack and its stated political or social objective is an important distinction when contrasting political protest or uprising type attacks from terrorism and a key element in the political necessity defense analysis. This relation between the attack itself and the stated political objective, along with elements such as “less onerous means” are well developed in U.S. jurisprudence and could provide framework for further distinguishing terrorism from rebellion. See James O. Pearson. 3 A.L.R.5th 521.
Another broader concept that appears through out international discourse and calls into question state foreign policy action is whether such “leveraging” or intimidation of the civilian population is ever an acceptable “means” towards a political objective. Prior to the 2003 invasion of Iraq, the severity of economic sanctions imposed by the U.S. and other global powers upon the country was blamed for contributing to the social degradation that plagued Iraq between 1991 and 2003. Though eased to allow for the importation of medical supplies and some food stuffs, the embargoes placed upon Iraq undoubtedly were an attempt to coerce the Iraqi people into overthrowing Saddam’s regime through socio economic pressure which resulted in increased child deaths, malnutrition, and poverty. http://www.fas.org/news/un/iraq/sres/sres0661.htm. See also http://en.wikipedia.org/wiki/Iraq_sanctions. Interestingly, such economic sanctions which seek to exert pressure upon a state through hardship upon the civilian population, satisfies many of the underlying criteria and moral distinctions that separate terrorism from lawful state action. Again, the direct/indirect model borrowed from the political necessity jurisprudence distinguishes between a direct sanction, i.e. banning weapons trade or nuclear materials to punish illegal military actions or prevent nuclear proliferation versus an indirect sanction broadly gauged to cause malcontent within the civilian public or achieve a specific political outcome. This comparison is not meant to reduce economic sanction techniques to the level of terrorism, but should be considered when discussing a internationally accepted model distinguishing acceptable from morally culpable behavior.
One final observation that arises out of the means/ends analysis focuses on prevention. Again borrowing from the political necessity defense, the concept of “less onerous alternatives,” provides that almost all forms of domestic terrorism (think Oklahoma State Building) are per se illegal in a democratic society. Basically, in a country that allows free speech and equal voting rights, there is rarely the possibility that an attack on civilians was the best “means” of effecting political change. Contrast this with countries which rule by oppression and violence and the model provides for a factual inquiry with both framework and judicial standards for distinguishing between terrorist attack and valid rebellion. Further, there is the argument that giving internationals a valid venue for addressing their concerns against the united states, such as becoming a signatory to the ICC or the practice of claims and reimbursement the U.S. Military has employed in Afghanistan where U.S. military operations damaged civilian property, not only legitimizes international action against terrorists, but might actually prevent some of the underlying conditions that allows fanatical indoctrination an organized and widespread support base. Also relevant in this model is the extradition exception of “political crimes” that under the “Swiss” test, would allow for the political necessity analysis, but under the current U.S. or U.K., would not take into account such factors as “less onerous alternatives.” See Jordan Paust and Micheal Scharf, International Criminal Law. 2d Ed. p. 368.