ńňđ. 2
(âńĺăî 23)



sarily present in this instrumental aspect: the actor intends to obtain or
maintain power and affect a certain outcome, to disrupt an otherwise normal
course of events, and, most importantly, to induce fear. The instrumental
aspect is the reason why individuals, organizations or states engage in the act
in question. The specific act may seek to disrupt, erode institutions, increase
pressure, force capitulation, destroy confidence or erode resistance. The
purposive quality is not constant. Nor is it limited to one quality, as some
of the literature suggests. Terrorism and counter-terrorism reflect a multi-
plicity of purposes, many of which are related. They bear a complex relation-
ship to each other: the immediate purpose evokes further actions and
reactions that play into the hands of those engaged in violence.
For instance, the purpose of terrorism might be to provoke the state,
causing further radicalization of the population and immobilizing state
forces, as advocated by Mao Tse Tung. The purpose of a terrorist act may
relate primarily to individuals either inside or outside the group, organiza-
tion or network responsible. An act intended to punish an individual for
cooperating with the ‘enemy’ serves the purpose of intimidating others from
engaging in similar actions and establishing discipline within the organiza-
tion. Numerous examples exist. A Taliban Information Ministry official,
Abdul Hanan Himat, told Reuters in Kabul that Abdul Haq’s execution
‘happened on the basis of the verdict of the Ulema that anyone who assists
the United States is liable to be killed’.20 Haq’s death followed the attack on
9 September 2001 on Ahmad Shah Masood, another leader opposed to
Taliban rule. Thus, while the primary purpose of terrorism is to terrorize,
in meeting this purpose further aims may be accomplished.


Here I draw a distinction between non-state challenges and state actions.
Unlike many terrorist organizations, by definition liberal, democratic
states do not terrorize their own supporters through physical or emotional
violence. One could effectively argue that if they do, the regime has lost its
right to be considered a liberal democracy. Because such actions have not
been used against the majority or against a sizable minority, however, this
has led some to assume that liberal, democratic states do not use terrorism.
It would be more accurate to say, though, that terroristic state actions are
directed toward the ‘other’ in society, or the ‘other’ geographically, in
claimed defence of the state citizenry. There are exceptions to this rule – but
most of these derive from mistakenly putting individuals into the ‘other’ or
‘enemy’ category who otherwise might support the state. This does not mean
that there are no controls over the citizens – rather, informal, and essentially
non-violent mechanisms, such as leverage from ‘patriotism’, public shaming,
and presenting an inflated threat based on secret evidence, may be used to ensure
loyalty. For states that engage in terrorism, the purpose of such acts may be, as
Picard writes, to repress dissent, promote international policies, or to spread fear
to pre-empt opposition.21 State terror toward another state, when openly claimed
by the state in question, is generally seen as an act of war.

D. Terrorist and counter-terrorist targets
To understand both the intended and unintended consequences of an action –
whether taken by a non-state actor or a state – it is helpful to understand
the targets involved in a terrorist act. There are four: the immediate target of
the act, the symbolic target of the act, the target audience and the target
of demands.22 These four targets often also characterize counter-terrorist acts.
In the first area, the individuals harmed by the violence, the physical space and
buildings involved, and the conduct of operations affected by the attack may
constitute the immediate target. Using the attacks on 11 September 2001 as an
example, the employees at work in the World Trade Center, the buildings
themselves, and the immediate economic impact of the attacks provided the
immediate targets in New York City. Counter-terrorism too has an immediate
target: the individual incarcerated, the paper or subject banned from publication,
the country attacked present the immediate target of state action.
In the second area, the symbolic targets may include the group that the
individuals represented, a greater concept to which the action is meant to
draw attention, a wider group of physical buildings, structures, or places of
which the immediate site is one member, a timing element – remembering

Robert G. Picard, Media Portrayals of Terrorism: Functions and Meaning of News Coverage
(Ames, Iowa State University Press, 1993).
See also Schmid and Jongman, Political Terrorism.

a past event, marking a day, or coinciding with simultaneous events, and a
means of delivery symbolic of the grievance to which a solution is being
sought. The people who died symbolized Americans broadly and capitalists
more specifically. The building symbolized globalization – global trade and
financial flows. The failure of the 1993 attack to topple the towers, and
Yousef’s previous comments that he wanted the job to be finished, created
additional symbolism – the completion of a job begun previously. It has also
been speculated that the day of the attack (9/11), the month in which it
occurred (eighty years since the ending of the Caliphate), or the concurrent
sentencing of individuals found complicit in the 1993 attack influenced the
timing. The use of high technology in the form of a jet liner – itself a symbol of
globalization and modernity – further marked the attacks.
For counter-terrorism, the target too may bear symbolic qualities. This is
particularly true of retributive techniques, such as house and village demoli-
tion, which are meant to demonstrate state power over those who would seek
to diminish it. Attempts to capture or kill specific individuals or groups of
individuals may be referred to in heavily symbolic language: good versus evil,
justice versus injustice, one ethnic or religious group in domination of
another. An individual apprehended might serve as a wider example of how
the state will treat perpetrators of the crime.
The third area, the target audience, may include a deity with whose will the
perpetrators claim they are acting in compliance. The perpetrator may also seek
to demonstrate something to himself or herself, and to the perpetrator’s family.
The wider community of the perpetrator, neutrals and the enemy might also
be part of the target audience. Finally, elites or decision-makers, in the inter-
national arena as well as in a specific state or organization, might also be targeted.
Instructions found in a suitcase belonging to Mohamed Atta, suspected hijacker
on American Airlines Flight 11, as well as in wreckage from United Airlines Flight
93, which crashed in Pennsylvania, and in Dulles International Airport in a car
driven by Nawaf Alhazmi, one of the suspected hijackers on American Airlines
Flight 77, which crashed into the Pentagon, instructed the hijackers to recall
the battle of ‘the Prophet against the infidels’. The document told the hijackers
to say, upon entering the plane, ‘Oh God, open all doors for me. Oh God
who answers prayers and answers those who ask you, I am asking you for your
help. . . . There is no God, but God’.23 The note emphasized the importance of
proving to oneself the ability to face challenges and to act in accordance with
God’s will: ‘Remind yourself that in this night you will face many challenges. But
you have to face them and understand it 100 percent’, and ‘When you have
washed for prayer, angels will ask God to forgive you and angels will pray for
you.’ The note instructed, ‘Train yourself, explain to yourself, convince yourself


and urge yourself to carry out the mission.’24 The families and communities of
the suspected hijackers formed a greater community, to whom their devotion
would be made clear. They sought the attention of the world audience – captured
by news media throughout the world as the event unfolded – the American
public, and the United States’ political and economic elite.
Counter-terrorism also targets a wider audience. The citizens, the security
forces, groups targeted by terrorist violence, international elites, and the world
community all form different audiences the state seeks to influence with its actions.
The fourth area, the target of demands, includes the specific areas in which
change is to be accomplished. This may be in the realm of political, social,
economic or military policy. Perpetrators may also have ideological goals that
the action targets. While denying responsibility for the actual operation, the
targets of demand issued by bin Laden subsequent to the attacks outlined
three objectives: the withdrawal of the United States from Arabia, the ending
of sanctions on Iraq, and the cessation of support for Israel in its treatment of
Palestinians and occupation of Palestinian land. The fulfilment of these
demands would create space for bin Laden and his followers to develop an
Islamic state. For this, control over the regional economic, political and
military power is essential. Perhaps an even more stringent claim was the
ideological rejection of the ‘West’.
States too include a target of demands in their actions. The primary
demand is the cessation of violence and any organized activity that threatens
the state. There may be additional demands, such as the ending of support for
the cause espoused by those engaged in terrorist behaviour, or the account-
ability of financial institutions for funds distributed through the financial
network and related to the groups opposing the state. These four target areas
constitute the targets of attention.

E. Additional qualities shared by terrorism and counter-terrorism
Three additional, essential (intrinsic) qualities of the terms ‘terrorist’ and
‘counter-terrorist’ influence how people use the terms and regard individuals
to whom they are applied. First, the terms are emotive. ‘Terrorism’ brings to
mind images of indiscriminate violence – images that are certainly encour-
aged by some forms of terrorism. From the spate of anthrax mailings in
autumn 2001 to the gas chambers of the Third Reich, the concept of indis-
criminate violence levied on innocents evokes horror in the soul of humanity.
This gives rise to indignation that humans would dare to use such violence.
The emotive quality of the term ‘counter-terrorism’ turns on this indigna-
tion. It is an emotional answer to a violent, unacceptable challenge.


Second, terrorism and counter-terrorism discourse is often blatantly
infused with moral meaning. Using both terms becomes a way to express
moral opprobrium. Luigi Bonanate suggests that ‘deciding whether an action
is terrorist . . . is more the result of a verdict than the establishing of a fact; the
formulating of a social judgment rather than the description of a set of
phenomena’.25 J. Bowyer Bell points out that the term is essentially a litmus
test for closely held beliefs. He suggests that even a brief conversation quickly
reveals others’ world views, their interpretation of the nature of man and
their view of the future. This moral meaning, however, does not entail a
subjective quality. To call it such suggests that morality is intrinsically sub-
jective, denying a normative quality to moral action. Rather, the claim of
either states or sub-state organizations relies upon two conditions: the legiti-
macy of the claims and the actors as executors of those claims, and the force to
demand compliance with those who reject the legitimacy of the assertion.
Third, the moral import intoned by both states and non-state actors in the
commission of and response to acts of violence brings with it heavy religious
overtones. Martyrdom, for instance, plays a central role in many terrorist acts.
Osama bin Laden’s ascetism recalls the Prophet. And millennial cults may
contemplate their own obliteration with an eye towards rewards in the afterlife.
The religious element is not limited to religious organizations. For
instance, Che Guevara’s life and, indeed, his death, took on mythological,
martyr-like qualities. On 9 October 1967, after eleven months’ fighting in
Bolivia, security forces wounded, surrounded and captured Che Guevara. At
Barrientos’ order the security forces executed him. The following day twenty
journalists flew to Vallegrande for a press conference. There, the state dis-
played his body at the local hospital where, presumably to identify him, his
eyes were left open. With a burgeoning reputation as the liberator of the
oppressed masses, and the prone manner in which he was displayed, he
became a transcendental, Christ-like figure – despite his clear ideological
allegiance to an atheist doctrine.26 Mkonto we Sizwe, fighting in South Africa
for an anti-apartheid, Communist state, used an altered version of the Lord’s
Prayer to energize the movement.27 Nationalist-separatist organizations also
draw on these concepts of martyrdom: Bobby Sands, a convicted IRA mem-
ber, died on hunger strike in prison in Northern Ireland. After weeks without
food, unshaven, and clad only in a blanket, wall paintings depicted him as

Luigi Bonanate, ‘Some Unanticipated Consequences of Terrorism’ (1979) 16(3) Journal of
Peace Research at 197, cited in Schmid and Jongman, Political Terrorism, at 7, note 12.
Film footage: Guevara in final repose, 00:30, 02:50–03:12, 07:50–08:05, 08:27–09:00,
13:50–14:10 from El Dıa que me quieras, Directed by Leandro Katz. First Run Carus Films.
Witness to Apartheid (Long Version), California Newsreel, 630 Natoma Street;
San Francisco, CA 94103.

Jesus. Because of this mythological, martyrdom-like quality, terrorists may
welcome death. In Turkey, for instance, Abdullah Ocalan, the leader of the
PKK, commented, ‘I’ve always said that my death will bring more change
than my life. Death does not mean very much to me.’28
Political leaders deeply embedded in the counter-terrorist discourse also
revert to moral and religious paradigms to describe and to justify state
actions. Within hours of the 9/11 attacks, President Bush seized on the state’s
inevitable response as a modern day ‘crusade’. Osama bin Laden became ‘The
Evil One’. And at the first meeting of his homeland security team, Bush
stated: ‘Our job now is to find the evil ones and bring them to justice’.29
British Prime Minister Tony Blair announced: ‘We have to set about at every
single level, in every way that we can, dismantling the apparatus of terror, and
eradicating the evil of mass terrorism in our world’.30
This moral quality is important, because it contributes to the tendency of
counter-terrorist measures to remain in place long after the immediate threat
has receded.31 The moral opprobrium also means that it becomes a way to
increase or emphasize rejection of other forms of violence, by labelling them
‘terrorist’. In the US, for example, a number of states have introduced
counter-terrorist measures that range from gang terrorism, narco-terrorism,
abortion-clinic terrorism, and school terrorism to eco-terrorism, terroristic
offences, and terrorism using weapons of mass destruction.

III. Distinguishing terrorism and counter-terrorism
If counter-terrorism does share so many qualities with terrorism, then what
distinguishes terrorism from counter-terrorism? The first and most obvious
answer would be that not all acts of counter-terrorism include violence:
airport security, while perhaps intended to induce fear into those considering
acts of terror, does not usually use violence to accomplish these aims.
Similarly, a propaganda campaign might not involve any direct physical or
psychological violence, yet it might be central to a state’s counter-terrorist
strategy. However, the same could be said of many acts that states want to call
terrorism: the Provisional IRA’s involvement in money laundering or
tax fraud, for instance, for the most part does not involve direct violence.
Identity theft is similarly central to terrorist organizations’ ability to operate.

Good Kurds, Bad Kurds. Produced and directed by Kevin McKiernan.
‘Bush: Visa policies to get tighter’, 29 October 2001, available at http://www.cnn.com/
Ibid. See also http://www.whitehouse.gov/news/releases/2001/09/20010920–7.html.
See Laura K. Donohue, Counterterrorist Law and Emergency Powers in the United Kingdom
1922–2000 (Dublin, Irish Academic Press, 2000), ch. 6.

Certainly these acts are criminal; but the United Kingdom, United States and
other countries target these acts as part of their overall counter-terrorist
strategy. While it is an element common to our broad understanding of
terrorism, not all ‘terrorist’ acts necessarily involve violence.
One way to approach this phenomenon is to distinguish between types of
action and to suggest that terrorist groups engage in both crime and terror.
An effective counter-terrorist strategy would address both. A much more
difficult question presents itself, however, if the light is turned back on the
state: within the realm of counter-terrorism, it appears that states engage in
countermeasures that fall short of terrorism, and in others that fully enter
into that realm. But it is politically inconceivable, within a state, to call such
actions terrorist. To do so is to undermine state political legitimacy, forcing
the state off its moral high ground. So states do whatever is possible to
prevent this from occurring. Is there a more effective way to talk about
such actions? In one sense, it matters little if we call state actions that stop
short of violence ‘countercrime’ or ‘heffalump’. By failing to distinguish
between actions that cross into the realm of terrorism and those that do
not, we lose our ability to consider the impact of such actions and anticipate
further threats. I do not here suggest that, as a general rule, the state should
never pursue these more extreme avenues. But in doing so it must be clear
as to the path it treads and the relationship between its decision and the
violence it faces.
A second answer in seeking to distinguish counter-terrorism from terror-
ism might zero in on the ‘fear factor’: not all acts of counter-terrorism depend
to the same extent on fear to accomplish state aims. When states cross into
these regions, as they are prone to do when countermeasures are justified
through appeal to reason of state, then state actions themselves cross into the
realm of terrorism. This is the heart of state action as first mover in generating
increased dissent and fomenting violence against its institutions and citi-
zenry. It is when the state engages in violence and the manufacturing of fear
that the application of the measures to non-combatants, the elements of
policy that reach a broader audience, the purposive and instrumental quali-
ties in the discourse, and the political nature of the dialogue lock the state
into, essentially, a terrorist discourse.
The problem with distinguishing the acts based on fear goes beyond
the issue raised above (namely, that neither do all acts of terror rest on fear,
but distinguishing them raises complications in relation to the state).
Fear, perhaps more than any other element, is deeply dependent on subjec-
tivity. Thus, while a state may not intend fear to be the centrepiece of a
particular counter-action, the very nature of the terrorism realm introduces
it. Almost all security measures are meant to create fear of capture or
prevention in the mind of the potential terrorist. They may also create
increased anxiety in the population. Because of the security nature of

counter-terrorist provisions, it is hard to envisage a measure that does not
involve some element of fear. This ties back to the emotive nature of the term
itself. Even in setting the future state agenda in this realm, fear permeates the
Critically, this is not to say that terrorism and counter-terrorism do not
have other features that differ; but, rather, when the seven essential qualities
of an act of terrorism are shared by an act of counter-terrorism, the line
between the two fades, with similar consequences borne by both entities in
relation to their domestic and international legitimacy.
If, then, such actions are indistinguishable in their execution and effect, the
stark issue with which we are faced is one of moral equivalence: is there a
difference between a liberal, democratic state engaging in these actions and a
non-state actor doing so? That is to say, is there something about statehood
that legitimates control over certain types of coercion that are illegitimate in
their exercise by anyone but the state? Here, it seems clear that there are a
number of areas where the majority of the population would grant a state
unique powers: such as the ability to levy taxes, to control traffic, to adjudi-
cate disputes, and to restrict the freedoms of those found guilty of infringing
the law. Certainly, not all citizens agree with these powers: the United States,
for instance, is peppered with militia organizations who virulently oppose the
collection of taxes. And many of these powers have limits. Excessive taxes,
after all, sparked the American Revolution. But for the most part, individuals’
approaches to these issues revolve on where they place the bounds within
which state action, writ large, is deemed acceptable. Communal defence, and
protection of the politai, arguably, is at the core of the state’s purpose. The
Hobbesian claim, that individuals leave a state of nature and enter into
society precisely for protection, emphasizes the necessity of the state answer-
ing challenges to this security with countermeasures.
Complementing the concept of defence of the state in general, and the
population in particular, is the idea of defence writ-large: as long as counter-
terrorism is thought of as a response, and never a first-mover, then the use of
force under its guise may enjoy a greater level of support than violence
employed by non-state organizations. Immediate questions of morality
aside, at what point does the type of force employed generate more violence?
At such a point it ceases merely to be defensive.
An additional question that lays siege to the concern with moral equi-
valence centres on the political structure of the state: is there a difference
between a liberal, democratic state using terrorist techniques to respond to
terrorism, and a dictatorship using the same means? While we may observe
that the former political structure, at least in form, enjoys a representative
characteristic, this still does not bring us to the crux of the matter. What is the
line between absolute rights and negotiable ones? And under what circum-
stances are certain rights alienable? These questions plague liberal democratic

states locked in conflict with terrorist challenge. Their answer lies beyond
this chapter’s remit.

IV. Concluding remarks
Three assumptions dominate the counter-terrorism discourse: that terrorism
is a phenomenon distinct from counter-terrorism, that the nature of the latter is
that it responds to the first and is not a first mover, and that counter-terrorism
is what states actually do. These assumptions are important: the first two give the
state political legitimacy and obtain for it the moral high ground. The last one
shapes what is evaluated in determining a state’s effectiveness in responding
to the threat.
In this chapter I have argued that, contrary to the first assumption, the
definition, targets, and additional characteristics of terrorism and counter-
terrorism are intimately connected. In each of the five regions – the US, UK,
Ireland, Israel and Turkey – there is a close relationship between the types of
actions taken by state and non-state actors. Both incorporate violence, fear
and a broader audience. They are purposive, political and (although denied in
each case by the actor) affect non-combatants. And they are instrumental.
Their targets range from the immediate and symbolic to a broader audience
and demands. In addition, such actions are emotive and carry strong moral
and religious overtones. While not all counter-terrorism involves violence,
neither does all terrorism.
As for the second assumption, I have asserted that counter-terrorism is not
just a response. It serves alternately to undermine and reinforce state legiti-
macy. This, in turn, influences how non-state actors frame their grievances,
how the target populations respond and how the world community percei-
ves the conflict. It is thus linked not just to the response of the non-state
actors but to the resources available to a state to counter such threats in the
I now address the third assumption and suggest that counter-terrorism
includes not just what states do, but what they choose not to do. This seems an
obvious point, but it is almost universally missed in a state’s response to
terrorism. The immediate impetus is to do something, and then to evaluate
how effective the introduction and use of that particular law, or those
particular surveillance techniques, or that particular missile launch was in
accomplishing the immediate aim. Yet there is a whole range of measures
available if not morally, then practically, to the state. But when measures are
either omitted, or consciously rejected, by an executive, legislative or regu-
latory body, minimal effort is made to evaluate the effect of not including
such measures in the overall strategy. On the contrary, after the next attack,
the immediate assumption is that it is because these and other measures
were not introduced, violence occurred. And so whatever measures can be

conceived – even if previously rejected for very strong reasons – become quickly
integrated into the state’s counter-terrorism arsenal.
While the contrary of these assertions pervades the counter-terrorist discourse –
namely, terrorism and counter-terrorism are two separate phenomenon, the latter
being always a response to the former, and the latter involving what states choose
to do – a more accurate analysis would overturn such assumptions and begin the
dialogue at the question raised, but not fully answered within this chapter’s
bounds: in a liberal, democratic state, how does one address the issue of moral
equivalence in drawing the line between absolute and alienable rights?

The question of a generic definition of terrorism under
general international law

I. Treaty law and custom
Recent interest in the utility or propriety of a generic definition of terrorism
has been driven by larger issues, such as the need to build international
solidarity in the war against terrorism, and the opposing need felt by some
of guarding any such possible definition of terrorism from any undue weigh-
tage likely to be given to the unilateral beliefs of any one state, and particu-
larly the meaning likely to be or already given to that term in the foreign
policy of any one state. Talk of the need to define terrorism comprehensively
under international law cannot be divorced from such over-riding political
concerns which, together with some old diplomatic obstacles, continue to
plague the ongoing negotiations towards a Comprehensive Convention on
Terrorism. The initiative for a comprehensive treaty definition of terrorism
was a response to calls beginning in the 1990s for a departure from a regime of
variegated subject-specific treaties which I shall discuss further below. The
initiative had come originally from India,1 and negotiations are currently
ongoing. United Nations General Assembly resolution 51/210 of
17 December 1996 had established an Ad Hoc Committee which, together
with the United Nations’ Sixth (Legal) Committee, is currently tasked with
negotiations on the Draft Comprehensive Convention.2 I feel any success
here would, however, be mainly symbolic. In this chapter I have chosen to
take what I consider a more pragmatic approach than if I had chosen to focus
on the status of the negotiations on the Draft Comprehensive Convention.

United Nations General Assembly, Fifty-Fifth Session, Sixth Committee, Agenda Item 166
(Measures to Eliminate Terrorism), Working Document Submitted by India (document of
28 August 2000, on file).
See Martin Reichard, Universal Conventions Against Terrorism: Progress and Weaknesses,
Part II, Seminar under Professor Hanspeter Neuhold, University of Vienna, Summer of
2002, 18–19 (available on the German language website of Juridicum Online). For the latest
available text of the Draft Convention, see Report of the Ad Hoc Committee established by
United Nations General Assembly Resolution 51/210 of 17 December 1996, Sixth Session
(28 January–1 February 2002), General Assembly, Official Records, Fifty-Seventh Session,
Supplement No. 37 (A/57/37), Annex I A/57/37.


I want to focus instead on the question of whether a customary or general
international law definition of terrorism already exists, and if so, what that
customary definition looks like.
This is because any real legal guidance that international law can give today
lies at least as much in international custom as it could in a comprehensive
international treaty definition that may soon become available. This is due
partly to a time-lag that would normally occur between having a completed
treaty text and having widespread participation in the new treaty regime. It is
also due to the fact that much of the ‘new comprehensive definition’ would
either not be that new, or if it turned out to be so could therefore prove a long
way yet from achieving the necessary combination of (1) having a precise
formulation that would necessarily prove useful, and (2) at the same time,
attracting the necessary widespread participation of states to make such a
comprehensive regime a success.3

II. Some old political difficulties
A. State-sponsored terrorism
Political controversy over what terrorism might be taken to mean in the eyes
of the international community is hardly new. It has for long been bound up
not only with terror brought about by non-state actors, but with the spectre
of state-sponsored terrorism. According to Professor Brownlie, state-
sponsored terrorism is governed mainly, if not exclusively, by the available
categories of international legal thought such as the prohibition of the use of
force in international relations, the doctrine of imputability in establishing
state responsibility for the acts of individuals, the self-defence doctrine and
so on. He argues that:
There is no category of the ‘law of terrorism’ and the problems must be
characterized in accordance with the applicable sectors of public inter-
national law: jurisdiction, international criminal justice, state responsibil-
ity, and so forth.4

However true this may be in so far as international law has not yet evolved to
encompass an agreed definition of what terrorism is, the various subject-
specific rules of international law which focus on individual criminal respon-
sibility for different acts of terror such as hijacking, terrorist financing, and so

The twin issues of participation and precision are dimensions of consideration which, in
my view, mark out the achievement of ‘hard’ international law from what could merely
amount to symbolism. See Chin Lim and Olufemi Elias, ‘The Role of Treaties in the
Contemporary International Legal Order’ (1997) 66 Nordic Journal of International Law/
Acta Scandinavica Juris Gentium 1.
Ian Brownlie, Principles of Public International Law (Oxford University Press, 2004), 713.

on, can neither be insulated from nor absorbed wholly by the currently
existing public international law rules which may be brought to bear on
state-sponsored terrorism. As we will see from the views expressed by several
states during the negotiations leading up to the Rome Statute below, these
states view terrorism as a distinct crime under international law which
imposes individual criminal responsibility for state-sponsored terrorism.
In this sense, dealing with state-sponsored terrorism is different from the
situation which the International Court of Justice had to deal with, for
example, in the Nicaragua Case. There, Nicaragua had brought a claim
against the United States for alleged covert support given by the Central
Intelligence Agency to armed insurgents operating in Nicaraguan territory
in response to the Sandinista Government’s covert support of the Farabundo
Marti National Liberation Front in El Salvador. At issue there were the inter-
state international law rules pertaining to breach of the United States’ legal
responsibilities owed to Nicaragua by allegedly financing, supplying, equip-
ping, arming, training and providing strategic guidance to Nicaraguan rebels
seeking to overthrow the Sandinista Government.5 In short, Nicaragua was
about state responsibility.
On the other hand, Professor V. S. Mani has argued recently that what we
call ‘terrorism’ today is, in fact, very much state-sponsored terrorism as a
result of the prohibition in Article 2(4) of the United Nations Charter of the
use of force in international relations, which would nonetheless attract
individual responsibility for such acts. Our legal imagination may currently
be seized by the figure of Osama bin Laden, and we might be startled that by
the late twentieth century the only superpower in the world was required to
‘go to war’ with a mere individual, but that does not change the fact that, for
the most part, terrorism is linked to some form of state sponsorship.6 In 1945,

Nicaragua Case (Nicaragua v. United States) (Merits), I.C.J. reports (1986), 14. See Hilaire
McCoubrey and Nigel D. White, International Organizations and Civil Wars (Aldershot,
Dartmouth, 1995), 10–13.
Indeed, one difficulty with the United States missile attacks on targets in Sudan and
Afghanistan in 1998 is precisely that the United States had imputed responsibility to the
Sudanese Government and the de facto Taliban regime in Afghanistan on the basis of the
United States’ unilateral findings of fact. According to President Clinton, he ‘ordered this
action . . . because we have convincing evidence these groups played the key role in the
Embassy bombings in Kenya and Tanzania . . . because these groups have executed terror-
ist attacks against Americans in the past . . . ’, amongst other reasons. In a further state-
ment, President Clinton said: ‘The United States does not take this action lightly.
Afghanistan and Sudan have been warned for years to stop harboring and supporting
these terrorist groups. But countries that persistently host terrorists have no right to safe
havens.’ Both passages are reproduced in Sean D. Murphy, ‘Contemporary Practice of the
United States Relating to International Law’ (1999) 93 American Journal of International
Law 161 at 161–2. The circumstances of the post-9/11 campaign in Afghanistan are
arguably different for the purposes of international law.

the Charter of the United Nations came into being. One significant change
the Charter sought to effect is to outlaw the use of armed solutions to
international disputes, and so successful was that message and the need to
demonstrate fidelity to the Charter that the countries of the world that would
otherwise have been prompted to seek armed solutions could no longer do so
without (1) a Security Council resolution under Chapter VII of the Charter,
or (2) a justification based on unilateral or collective self-defence.7 As a result,
Mani argues, states were given every incentive to mask armed solutions to
international issues through state-sponsored terrorism.8
The difference between Professor Mani’s and Professor Brownlie’s views is
one which has marked the debates in the Ad Hoc Committee tasked with the
negotiation and conclusion of the Draft Comprehensive Convention. Even if we
do not agree with Mani that any definition of terrorism must also define
individual responsibility for state-sponsored terrorism, the growing phenomenon
of state-sponsored terrorism has become a powerful focal-point for advocating
the plight of the Palestinian people. In a world in which we have learned to view
some states as ‘pariah’ or ‘rogue’ states, calling Israel a ‘terrorist state’ serves to
highlight the Palestinian cause, and to stigmatize the perceived moral wrongdoer
all at the same time. To demonstrate the logic of this, the same accusation has
been directed the other way too, at the ‘Palestinian terrorists and their masters’.9
In this way, the question of terrorism and what it means has become caught up in
the complexities of the Middle-Eastern question, with any possible solution tied
seemingly to a solution to the Middle-Eastern question itself.10 But that does not
mean that the political intensity that surrounds the matter is not real, or that
state decision-makers can never be guilty of terrorism under international law.

B. Immunity of state armed forces
A second obstacle therefore in the negotiations on the Draft Convention
belies the persistent connection between state-sponsored terrorism and indi-
vidual responsibility. This second obstacle concerns the question of the

The literature is voluminous, but see, for example, Hilaire McCoubrey and Nigel
D. White, International Law and Armed Conflict (Aldershot, Dartmouth, 1992), Part I.
One other possible exception is the controversial justification of humanitarian interven-
tion, which if it does constitute a valid exception could justify the unilateral use of force for
that purpose.
V. S. Mani, ‘International Terrorism and the Quest for Legal Controls’, manuscript
courtesy of Professor Mani (on file).
Professor Robert Jensen, in his letter to the press, quoting the new Israeli Defence
Minister, Houston Chronicle, 9 March 2001 (on file).
For a concise treatment of the complex history of the Middle East peace process, see, for
example, Henry Kissinger, Does America Need a Foreign Policy? (New York, Simon &
Schuster, 2001), 166 ff.

immunity of state armed forces from the eventual scope of any comprehen-
sive treaty. Clearly, this difficulty and the difficulty regarding state-sponsored
terrorism are linked. Some states are wary that their own decision-makers or
members of their armed forces could be prosecuted for either terrorism or
aggression. While this issue continues to be debated in the negotiations on
the Draft Convention, we already have a good sense of the matter by looking
at the outcome of the negotiations establishing the Rome Statute of the
International Criminal Court.
In the Rome context, the United States had failed to make the initiation of
prosecutions before the ICC dependent on Security Council sanction.
According to the ‘Singapore compromise’ which was adopted instead in
what is currently Article 16 of the Rome Statute, the discontinuance of
prosecution became dependent on the absence of an exercise of veto power
by one of the ‘Permanent Five’ Members,11 as opposed to making the initia-
tion of prosecution potentially hostage to the veto power of P-5 Members as
had originally been proposed in the International Law Commission’s Draft
Statute.12 It is this factor, together with related disagreement over the defini-
tion of international aggression,13 which has caused the current notable lack
of full participation in the Rome Statute. Currently, the same issue has also
arisen in the separate context of the negotiations towards a Comprehensive
Convention on Terrorism.

C. National liberation movements
A third long-standing obstacle concerns the differences, if any, between
legitimate struggles for national liberation and terrorism. This too has pla-
gued the negotiations on the Draft Comprehensive Convention. What the
United Nations brought with it in the latter half of the previous century was a
new doctrine that was to revolutionize the composition of the international
community. Self-determination brought about decolonization, and much of
the impetus for decolonization came from the newly independent countries
themselves in the 1960s and 1970s. This was to bring with it an era of grave
doctrinal difficulties for international lawyers as to where the line should be
drawn between legitimate efforts towards national liberation through armed
struggle under the doctrine of self-determination on the one hand, and sheer

Article 27 of the Charter of the United Nations, 26 June 1945, as subsequently amended by
the General Assembly on 17 December 1963.
Lionel Yee, ‘The International Criminal Court and the Security Council: Articles 13(b)
and 16’, in Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome
Statute (Hague, Kluwer, 1999), 143, 150 ff.
For which, see Sir Franklin Berman, ‘The International Criminal Court and the Use of
Force by States’ (2000) 4 Singapore Journal of International and Comparative Law 479.

violence on the other. Attempts to contain the scope of the doctrine to the
former Western colonies in Asia and Africa have had a mixed success. There
was and continues to be a fuzziness around the edges as to who the bene-
ficiaries might be of the emancipatory promise of the doctrine of self-
determination.14 For example, should it be the Israeli or Palestinian peoples?
United Nations General Assembly Resolutions 1514(XV) and 2625(XXV)
speak inclusively of the entitlement of ‘all peoples’ to self-determination.15 In
the search for a principled solution, some Western scholars have sought to
narrow down the scope of these proclamations by equating them with a right
to democratic self-government which, howsoever then defined, would at least
immunize democratic states against internal and irredentist claims to self-
determination.16 This could arguably preclude the claims of, for example, the
IRA in Northern Ireland and ETA in Spain. Others such as the East Timorese
people, whose plight has been well-known for decades, were, however, simply
left to hostile political forces. In the eyes of some newly decolonized states,
there was thereby a grave moral responsibility to assist certain struggles of
national liberation, and which others could arguably characterize as mere
state-sponsored terrorism. And so the trouble began. Even in the last ten
years, the fresh independence of Timor-Leste has carried some of the baggage
of the past into the new millennium. No-one seriously suggests that there was
ever a satisfactory answer to the question of self-determination. In an inter-
national community giving pride of place to the pursuit of state interests,
questions of national liberation, self-determination, and the horrific instru-
mentality of terrorism as a tool, albeit an evil one, presented novel and
inconvenient questions that stalled progress on a comprehensive and accept-
able definition of international terror.
For example, General Assembly Resolution 42/159 of 7 December 1987
which had referred to the legitimacy of national liberation movements of
‘peoples under colonial and racist regimes and other forms of alien domina-
tion’ and which declared that nothing in the resolution itself should be taken
to deny ‘the right to self-determination, freedom and independence’ received

The best treatment is still Michla Pomerance, Self-Determination in Law and Practice
(Hague, Nijhoff, 1982), 14–23. See also Antonio Cassese, Self-Determination of Peoples:
A Legal Appraisal (Cambridge, Grotius/CUP, 1995), 141–58.
These are the key instruments of the United Nations decolonization process of the 1960s
and 1970s; United Nations General Assembly resolution 1514(XV), 14 December 1960,
para 2; United Nations General Assembly resolution 2625(XXV), 24 October 1970, Annex.
Earlier resolutions had been more circumspect and cautious in approach towards the issue
of decolonization and were derided by many newly independent countries for not
recognizing that colonial peoples had an ‘immediate’ right to self-determination, some-
thing which resolution 1514 finally recognized.
Thomas M. Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 American
Journal of International Law 46, 52–63.

the votes of 153 states. However, two states, the United States and Israel,
voted against it precisely because of such language.17 Thus, the issue of
terrorism was never very far away from the friendships, alliances and calcula-
tions of realpolitik that are so much a dominant feature of United Nations
voting practice.
In sum, the question of having a generic legal definition of international
terrorism has become so heavily politicized that, even as an international
lawyer, I sometimes feel that the question patently does not deserve the kind
of serious attention it has evoked.

III. A short history of international lawmaking to combat
international terrorism
A. A short history of lawmaking
The League of Nations had sought to bring two conventions on terrorism to
life as far back as 1937, but with no success.18 The proposed 1937 definition of
terrorism had sought to include:
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.19

During that early conference:
. . . many states still viewed any development of international criminal
jurisdiction as a serious abrogation of their sovereign criminal jurisdiction.
The protagonists of international criminal jurisdiction, on their part,
differed among themselves on the modality through which to achieve
their ideal. One argument has been that without a substantive ‘inter-
national criminal law’ relating to terrorism, i.e., a law making individuals

Jensen, above note 9.
A diplomatic conference was convened in Geneva on 1 November 1937, which thirty-six
countries attended. The conference opened for signature on 16 November 1937 and the
Convention on the Prevention and Punishment of Terrorism and the Convention of an
International Criminal Court were presented for signature, with the aim that participation
in the former would be a precondition for participation in the latter. The former
Convention was signed by twenty states, but was ratified by India on 1 January 1941;
V. S. Mani, ‘Future Strategies in the War Against Terrorism and the Proliferation of
Weapons of Mass Destruction: An Indian Perception’, manuscript courtesy of Professor
Mani (on file).
While the texts of these conventions are not widely available, this definition is reproduced
on the website of the United Nations Office on Drugs and Crime. For the texts of the two
conventions, see Convention on the Prevention and Punishment of Terrorism,
16 November 1937, League of Nations O.J. 23 (1938) and Convention of an
International Criminal Court, opened for signature, Geneva, 16 November 1937 reprinted
in Manley O. Hudson, (1935–1937) 7 International Legislation 862, 878 respectively.

criminally liable directly on the international plane, one cannot conceive of
an international enforcement mechanism for suppression of terrorism in
general and of an international criminal court in particular. The counter-
argument, however, was that the best way to develop the law was by
establishing at least a tribunal which would be instrumental in evolving
the law.20

B. The age of national liberation movements
Unfortunately, it was not until the controversies surrounding the question of
self-determination had become full-blown that the matter was subsequently
placed on the agenda of the United Nations General Assembly in 1972.
A thirty-five-member Ad Hoc Committee on Terrorism was set up, but its
work was predictably impeded by the following sort of sentiment, expressed
by the erstwhile Soviet Union, that:
It is unacceptable to give a broad interpretation to the term ‘international
terrorism’ and to extend it to cover national liberation movements or acts
committed in resisting an aggressor in occupied territories.21

In March 1977, the Committee met again but was subsequently dissolved due
to lack of progress in December of that year.22
One commonly referred to ‘definition’ today is simply that adopted by the
United Nations General Assembly in 1996 in resolution 51/210 mentioned
. . . 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 considera-
tions of a political, philosophical, ideological, racial, ethnic, religious or
other nature that may be invoked to justify them.
No-one suggests that this is a legal definition in the true sense.

C. Focusing on the methods of terror instead
Since the 1970s and more so from the 1980s onwards, international law-
makers have been preoccupied not with a comprehensive definition of ter-
rorism, but with several definitions of terrorism. Through painful experience,

Mani, ‘Future Strategies’.
Quoted in Neil Haffrey, ‘The United Nations and International Efforts to Deal with
Terrorism’, Pew Case Studies in International Affairs, Case 313 (1998), 2; and in Martin
A. Kalis, ‘A New Approach to International Terrorism’ (2001) 10 International Affairs
Review 80, note 12.
Kalis, ‘A New Approach to International Terrorism’.

they have been content with incomplete definitions whenever there was
sufficient international agreement in selective areas, focusing on known
methods of terror instead. International lawyers have come to understand
that we do tend to be better acquainted with the methods of terror barring the
use of commercial aircraft as deadly projectiles, rather than the terror itself.
There have been significant successes.
For international law-makers, what terrorism is has counted for less than
what terrorists do. Terrorists, in their view, kidnap notable public figures,
such as diplomats and other ‘internationally protected’ persons, and are
generally prone to hostage taking to publicize and gain whatever leverage
they perceive that might afford in furthering their cause. They hijack com-
mercial aircraft for the same purposes. They transport plastic explosives
across international borders and transfer monetary funds across interna-
tional boundaries to further their activities. International lawyers and inter-
national law have focused on these very specific activities and a total of twelve
multilateral conventions delimited likewise in scope have emerged (for
which, see the Annex in this paper).23 Speaking in the Sixth Committee of
the United Nations General Assembly, the United States Representative
(Mr Rosenstock) noted the link between achieving progress in setting
international standards to combat terrorism and the need to focus on specific
terrorist conduct. The benefit of such an approach is that it serves to decouple
the matter at hand from the difficulty of achieving progress on a compre-
hensive, what I here call a ‘generic’, definition of terrorism that would be
widely acceptable to all states.24

D. The 1970 Hague Convention and its progeny
So far as these multilateral conventions are concerned, most have adopted the
1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft
as a model (hereafter, the ‘Hague model’). Three distinct features of the
Hague model are noteworthy.

1. ‘Piggy-backing’ on domestic law and enforcement
While these multilateral treaties and conventions are international legal
instruments in their nature, they have not, generally speaking, sought inter-
national enforcement machinery to ensure the policing and enforcement of
their terms. There is good reason for this, aside from the fact that these

For an excellent treatment, see David Freestone, ‘International Cooperation against
Terrorism and the Development of International Law Principles of Jurisdiction’ in
Rosalyn Higgins and Maurice Flory, Terrorism and International Law (London,
Routledge, 1997), 43.
United Nations General Assembly, Press Release, GA/L/3169, 15 November 2000.

treaties are focused on the apprehension of terrorist fugitives across interna-
tional borders, and are consequently focused on individuals and not states.
International lawmakers are fully aware that one of the greatest obstacles in
the enactment of any novel norm-setting treaty regime, and one of the
standard objections raised in multilateral negotiations, is that of the cost of
a surveillance, enforcement or adjudicative machinery. The simplest way
around that practical problem has been to devolve such surveillance, enfor-
cement and adjudicatory activities to the state parties themselves. Where the
conduct called into question is not the conduct of the party to a treaty (such
as in the case of human rights treaties), such an approach which piggy-backs
on domestic law and enforcement tends to work relatively well.
These conduct-specific multilateral conventions following the Hague
model, such as the 1971 Montreal Convention, the 1973 Internationally
Protected Persons Convention, the 1979 Hostages Convention, the 1980
Physical Protection of Nuclear Material Convention and its 1988 Protocol,
the 1988 IMO Convention and the Continental Shelf Platforms Protocol, the
1997 Terrorist Bombings Convention, and the 1999 Suppression of Terrorist
Financing Convention have done so, more specifically, by generally imposing
obligations that states are required to implement domestically. These will be
in the form of the enactment of new domestic laws and enforcement

2. Focus on jurisdictional rules
Secondly, these treaties typically expand the jurisdiction of states parties and
streamline the jurisdictional rules that would apply to delimit the compe-
tence of the states parties with a view towards dealing with particular terrorist
acts in a concerted and coordinated fashion.25

3. The ‘no safe haven’ principle
Thirdly, they employ a common device to ensure that the states parties either
prosecute or extradite those alleged to have been involved in terrorist activity
to some other state party. The logic of the ‘prosecute or extradite’ doctrine is
that it matters less who should try a terrorist than that the global terrorist
should be tried by some state party (commonly referred to, therefore, as the
‘no safe haven’ principle).
In this way, the international rules in these multilateral conventions have
been most concerned (1) with having domestic legal systems provide for
certain offences as specifically international ‘terrorist’ offences, even though
these offences may already fall to be defined by some pre-existing domestic
penal offence, (2) that the individual state into whose custody the terrorist is

Freestone, ‘International Cooperation’, 49 ff.

committed will usually have jurisdiction over such persons, and (3) that the
state will either prosecute such persons under its own (domestic) laws or
extradite that person to another state party which would also have the
necessary domestic law to deal with the offence.
Putting these treaty rules aside, however, what impact have they had on the
development of general, or customary, international law?

IV. The incompleteness of current international law
Of course, the absence of a comprehensive treaty definition of terrorism had
its shortcomings, not least of which was the missed opportunity here of
stimulating more comprehensive legal doctrine under general or customary
international law, existing alongside such a comprehensive treaty definition.
The emergence of parallel customary rules, arising alongside treaty rules, has
long been recognized in international law doctrine.26 Such ‘parallel custom’
could typically arise where the treaty rule merely codifies a pre-existing
customary rule, where the practice of states during the diplomatic conference
itself is evidence of a newly emergent rule, or where non-parties to a treaty
were subsequently to take a treaty rule as a guide to their own conduct,
thereby generating a customary rule applying to themselves and which mir-
rors a treaty rule applying between other states, or indeed by some combina-
tion of these various methods or some other means.

A. The Lockerbie example
In short, the way international lawmaking has ‘got around’ the political
difficulties posed by such obstacles as the ‘Middle-Eastern Question’ and
the national liberation/self-determination issue is by seeking incomplete
definitions of global terrorism instead, and here, international lawmakers
have also relied on the support of domestic penal laws and domestic enforce-
ment machinery. Such ‘incomplete’ or ‘scattered’ regimes were always bound
to be tested should the larger political factors that ordinarily would impede a
more comprehensive legal approach come into play.
The most dramatic example of this sort of shortcoming was the Lockerbie
affair. Under the 1971 Montreal Convention (for the Suppression of Unlawful
Acts Against the Safety of Civil Aviation), Libya which was a party to that
convention was required either to prosecute or extradite two accused Libyan

North Sea Continental Shelf Cases (FRG v. Denmark/FRG v. The Netherlands) (Merits),
I.C.J. Reports (1969), 3, paras. 70–2. See further O. A. Elias and C. L. Lim, The Paradox of
Consensualism in International Law (Hague, Kluwer, 1998), 24–6 arguing on the basis of a
passage from the Nicaragua Case that what is sought to prove custom (opinio juris) is not
qualitatively different from state consent to a rule.

persons who were said to be responsible for the tragedy. The Libyan Code of
Criminal Procedures and the Libyan Constitution, however, prevent the extra-
dition of Libyan nationals, and thus Libya argued that it could only comply with
the Protocol by prosecuting these persons under Libyan domestic law, but not by
extraditing them to the United States or the United Kingdom. The United States
and the United Kingdom objected since these terrorists were (they argued) in
fact Libyan agents. Libya denied that they were.
At bottom, the 1971 Montreal Convention was required here to deal with
something which (arguably) it was never equipped to deal with; namely,
state-sponsored terrorism – the Achilles’ heel of the patchwork of interna-
tional treaties on terrorism. While they resulted because of their success in
getting around the issue of state-sponsored terrorism, they would also fail
when what is at issue is state-sponsored terrorism of one sort or another.
The United States and the United Kingdom subsequently moved a number
of Security Council resolutions in 1992 and 1993 in an effort to impose
economic sanctions on Libya and to force Libya to comply with their demand
to have these persons handed over for trial and punishment outside Libya.27
Libya, in turn, sought the assistance of the International Court of Justice,
pleading its rights under the Montreal Convention. Libya argued that once it
had decided to prosecute and punish these persons, its obligations under the
Protocol would have been fulfilled, and that this in turn would grant it an
immunity against what the United States and the United Kingdom had
sought in having sanctions brought against Libya through the collective
security mechanism of the United Nations.
Some international lawyers saw this as a historic legal opportunity for the
World Court to exercise an inherent power of judicial review over Security
Council action,28 but the Court has yet to oblige in any real manner.29
However, that was not the only issue which the Court avoided. One interest-
ing but neglected feature of the Court’s judgment was that it also avoided
having to deal with state-sponsored terrorism, leaving that question to the
Security Council by default.

Security Council resolution 731, UN doc. S/RES/731 (1992); Security Council resolution
748, UN doc. S/RES/748 (1992); Security Council resolution 883, UN doc. S/RES/883
Thomas M. Franck, ‘The Powers of Appreciation: Who is the Ultimate Guardian of UN
Legality?’ (1992) 86 American Journal of International Law 519.
See, however, the Joint Declaration issued by Judges Bedjaoui, Ranjeva and Koroma,
postponing treatment of this issue to the Merits stage. For this pre-litigational skirmish in
which the United States and the United Kingdom sought (unsuccessfully) to get the case
brought by Libya thrown out, see C. L. Lim and O. A. Elias, ‘Sanctions Without Law? The
Lockerbie Case (Preliminary Objections)’ (1999) 4 Austrian Review of International and
European Law 204. However, the case will not now proceed to the merits phase: ICJ Press
Release 2003/29, 10 September 2003.

B. Proving a customary law regime
Arguably, the Court could have backed the emergence of a general rule of
international law penalizing international state-sponsored terrorism. It could
have said, further, that such a general rule, being a customary rule, was also a
jus cogens rule; in other words, a customary or general rule from which no
derogation is permissible. It could have found that the acts committed there
did not only amount to a crime under general international law, but also
amounted to a crime that could not have been contracted out of by way of a
treaty such as the Montreal Protocol.30
The United States in its oral arguments before the Court in that case had
perhaps come close to urging this. According to the United States:
. . . the Convention is just one piece of a large tapestry of laws and inter-
national instruments designed to create multiple opportunities to bring
accused terrorists to justice . . . 31
But the United States chose ultimately to rest its case on the terms of the
Montreal Convention:
The Montreal Convention, by its terms, does not displace other laws and
instruments, nor does it eliminate the United States’ right through peace-
ful, diplomatic means to promote Libya’s surrender for trial of these
A further complication that we should note is that the bombing had not
occurred in United States territory, but in fact in British airspace, and there-
fore some further basis for the United States’ claim to jurisdiction would
thereby have been required.33 Calling the bombing of commercial aircraft an
international crime from which no derogation was permitted would have
supplied that necessary title to extraterritorial jurisdiction, for it would have
been tantamount to saying that universal jurisdiction over such accused
persons is granted to all states under customary law, and not just the state
over whose airspace the tragedy was caused. Why then did the United States
choose not to plead this argument?
One answer may be that the existence of new categories of international
crime would ordinarily be very hard to establish in practice. Without
speculating too much about the actual thinking underlying the litigation

Article 53 of the Vienna Convention on the Law of Treaties, 23 May 1969, recognizes the
existence of such customary rules as rules from which even negotiated treaty rights and
obligations cannot derogate.
US Oral Pleadings, para 1.20 (Andrews).
US Oral Pleadings, paras 2.7 ff. (Murphy).
While international law does not prohibit extraterritorial jurisdiction, it would prohibit
interference with the domestic jurisdiction of another state.

strategy of the United States, another answer could also be that such a
customary rule has simply not evolved at the present time, and perhaps
the United States knew that (see the Tel-Oren case, discussed immediately
below). That said, if anything could have qualified as a terrorist act amount-
ing to an international crime from which no treaty derogation is permitted,
it would have been the long-standing method of commercial aircraft

V. The impact of such ‘incompleteness’ on domestic courts
(in ‘making’ international law)
A. International terrorism before state courts
It is not so surprising then that domestic courts have not themselves ventured
where the World Court has feared to tread. That is perhaps one ‘link’ which
we may draw between the comparatively hesitant practice of domestic courts
in formulating appropriate rules and principles to deal with terrorism, and
the incompleteness of international law in this area.
Two notable cases have arisen before domestic courts which have invited
these courts to push ahead, and to recognize that general or customary
international law may have something to say about what international
terrorism is. There was one well-known case before the Court of Appeals
of the District of Columbia in 1984, and another recent case before the
French Court of Cassation. Both involved Mr Qaddafi. The United States
court in Tel-Oren v. Libyan Arab Republic had considered that international
terrorism did not (at least in 1984) grant universal jurisdiction as there was
insufficient evidence of an internationally agreed definition of terrorism
under customary international law.34 In the second case, the French prose-
cutor sought to annul charges brought against Mr Qaddafi on the basis that
Mr Qaddafi enjoys Head of State immunity. It is not clear that the French
Court of Cassation, which agreed with the prosecutor, had based its deci-
sion on the absence of a sufficiently deep international consensus on the
crime of international terrorism under customary international law, but the
relatively sparse reasoning does suggest this. The prosecutor had argued
that there is no established ‘terrorism’ exception to Head of State immunity,
and therefore Mr Qaddafi was immune from French justice.35 Had a

726 F 2d 774 (D. C. Cir. 1984).
For an account of the case and criticism that at least in respect of a terrorist bombing of a
commercial aircraft, there is already sufficient practice to show that such acts have become
recognized as an international crime, and would thereby form an exception to the Head of
State immunity rule, see Salvatore Zappala, ‘Do Heads of State Enjoy Immunity from
Jurisdiction for International Crimes? The Gaddhafi Case before the French Cour de
Cassation’ (2001) 12 European Journal of International Law 595.

customary rule against terrorism been found, it would have made any
state competent to try a person alleged to have committed terrorism
without any express treaty rule granting such jurisdictional competence,
or as in the French case, it could have created an exception to Head of
State immunity where such persons are implicated in the commission of
terrorist acts.

B. Should state courts be timorous?
There are very few instances in which what is required to establish a rule of
general or customary international law could be found in the behaviour of
domestic courts. Typically, state practice is tantamount to diplomatic
practice. However, in the case of extraterritorial penal jurisdiction, and in
the area of Head of State and similar immunities from jurisdiction, what
would count is precisely what state courts do, and not what the Foreign
Offices or State Departments of the various countries do. Proof of interna-
tional custom before domestic courts could provide much needed proof
that such a general rule also exists under international law. Thus, a move-
ment on the part of domestic courts and judges to recognize terrorism as a
crime under general international law in their own courtrooms would go a
long way towards establishing a generic, customary, legal definition of
global terrorism.36
The difficulty here is that while domestic courts may thereby be inclined
to be timorous in the face of having to apply an uncertain international
definition, the evolution of such an international definition by way of
substantive domestic court practice would be impeded in turn. In the
absence of a comprehensive treaty definition, it is within the possibility of
such a mature body of domestic jurisprudence that, alternatively, a work-
able and realistic generic definition of terrorism could thereby emerge on
the international plane, coupled with the potential for the several disparate
terror treaty regimes on hijacking, kidnapping, maritime terror, plastic
explosives, terrorist money-laundering, and so on to spawn parallel cus-
tomary rules and principles which may be brought to bear beyond the
parties to the individual treaties.
What I have suggested here is not a firm prediction, but simply one
realistic appraisal of the true prospects for a generic definition. Does this
mean that, in short, I have merely confirmed the marginal value of inter-
national standards to how domestic tribunals should go about dealing with
international terror when confronted with it? Is there nothing more that
international law, lawmakers and lawyers can do to help?

Elias and Lim, The Paradox of Consensualism, 85–92.

VI. Three roads that lead to Rome
At the risk of being unduly selective, there are three proposals on the inter-
national plane that deserve special mention in this regard, putting aside the
negotiations on the Draft Comprehensive Convention. They each would seek
the benefit of ‘piggy-backing’ instead on the recent establishment of the
International Criminal Court, albeit in different ways. I have already hinted
that there are several linkages between the current negotiations towards a
Comprehensive Convention on Terrorism and the Rome process. Turning
the matter around, I ask in the following discussion if Rome could instead (or
also) provide a solution to the terrorism question.

A. The Schmid/Lador-Lederer proposal: equating terrorism with the
present list of crimes against humanity
According to the first proposal which appears to have received support within
the United Nations Office on Drugs and Crime (UNODC):
Act of Terrorism ÂĽ Peacetime Equivalent of War Crime
We are told that this ‘short legal’ definition as it is called by UNODC was
originally proposed by the terrorism expert, A. P. Schmid in 1992 to the
United Nations Crime Branch.37 One problem in respect of the Schmid
proposal is that it does not appear to add in a practical fashion to the war
against terrorism by defining terrorism as a war crime. Surely if terrorism is
tantamount to a war crime, terrorists could simply be prosecuted as war
criminals. Moreover, war crimes represent one of the longest standing
species of international crime that would grant universal jurisdiction to
all states.
Viewed in this way, the Schmid proposal is tantamount to saying that it is
unnecessary to deal with terrorism as anything other than an ‘ordinary’ war
crime, except that such treatment would apply regardless of the existence of a
state of war (i.e. also during peacetime).
But it is important to notice the ‘inner logic’ of this proposal, for it gets
around a famous 1982 dissent by Professor L. C. Green and Dr J. J. Lador-
Lederer to proposals made by the International Law Association’s
Committee on Terrorism towards a Draft Single Convention on the Legal
Control of Terrorism. That objection was bound up with the ‘national
liberation’ issue already referred to. According to the ILA’s Committee on

See the website of the United Nations Office of Drugs and Crime.

. . . surely, the humanitarian law requiring states to cooperate in the
suppression of war crimes should apply to acts outside the armed conflict
classification or by persons not entitled to soldiers’ privileges.38
According to the two dissenting members of the committee, however:
. . . we fear that the proposed definition would in fact provide a loophole
whereby some acts of terrorism would be excluded, while some groups of
individuals claiming to be ‘soldiers engaged in an international armed
conflict’ and having issued a declaration in accordance with Protocol I of
1977 or having been recognized as a national liberation movement by this
or that group of states would be able to protect themselves on this spurious
In other words, the dissenting members (Green and Lador-Lederer) had
objected to the ‘war link’ proposed by the ILA Committee for the protection
that could thereby be afforded under the laws of war.
In any case, a ‘war crime in peacetime’ is itself a known category – for the
drafters of the Nuremberg Charter, ‘war crimes in peacetime’ are what we
now call ‘crimes against humanity’ (a category separate from ‘war crimes’).
The Schmid proposal is, in effect then, to treat terrorism according to the
current list of crimes against humanity.
If this understanding of the Schmid proposal is correct, it is therefore not a
new proposal, and is instead perhaps the longest standing proposal towards
a generic definition of terrorism. An earlier statement of this view lies in a
proposal by Dr J. J. Lador-Lederer himself. As we noted above Dr Lador-
Lederer had earlier dissented from the Fourth Interim Report of the ILA
Committee on the basis that terrorism should be dealt with wholly separately
from the war context. Explaining his position further, Dr Lador-Lederer said
in a conference held at Central Michigan University in 1983 that:
I reject any approach which relates the issue in any way to the law of armed
conflict . . . The method I would favour is criminalization of terrorism –
‘considering terrorism to be of the nature of crimes against humanity, it is a
crime against mankind as a whole’ (Preamble to my draft) – believing that
penal law is that legal system which is closest to the protection of human

Fourth Interim Report of the Committee on Terrorism, presented to the Sixtieth
Conference of the International Law Association, Montreal, 1982, para 20.
Ibid., Appendix I (Dissenting Statement by Professor L. C. Green and Dr J. Lador-Lederer),
para 13. For the background legal issues concerning the extension of humanitarian
disciplines to wars of national liberation, see Heather A. Wilson, International Law and
the Use of Force by National Liberation Movements (Oxford, Clarendon, 1988), 162–85.
J. J. Lador-Lederer, ‘Defining ‘‘Terrorism’’ – A Comment’, in Henry Hyunwook Han (ed.),
Terrorism, Political Violence and World Order (Lanham, University Press of America,
1984), 5–6.

We will see that the Schmid /Lador-Lederer proposal, however, faces similar
problems to those faced by a further, second proposal. The second proposal
(below) is not to equate terrorism with the list of crimes against humanity
currently available, but simply to include terrorism in that list.
I shall try to show below that, whichever proposal we adopt, lawyers
especially have an acute sense that the development of legal doctrine by
analogy is seldom a straightforward process, and often hard doctrinal choices
would still have to be made when called upon actually to apply a legal
doctrine by analogy only.

B. Professor Cassese’s proposal: terrorism as a crime against humanity
The second proposal, which was recently brought up by Professor Cassese is
in turn based on an earlier proposal put forward by Algeria, India, Sri Lanka
and Turkey during the negotiations of the Rome Statute of the ICC.41
Numerous other states, including the United States, had objected to the
proposal of these four states. The reasons given by the objecting states was
that to include terrorism as a crime against humanity would nonetheless
result in a vaguely defined offence, that this would politicize terrorist trials,
and that there was no need to grant jurisdiction to an international tribunal
where domestic courts could do a better job in adjudicating terrorist cases.42
In addition, several developing countries also raised the long-standing objec-
tion based on the need to accommodate genuine struggles for self-
determination, and a further proposal by India, Sri Lanka and Turkey was
subsequently rejected.43
As we have seen, the proposal to include terrorism as a distinct crime
against humanity does not necessarily equate terrorist crimes with the list of
crimes against humanity currently available, unlike what the Schmid /Lador-
Lederer proposal seems to suggest. Strictly speaking Professor Cassese’s
proposal faces a slightly different problem – what then does terrorism
mean, even if we take it to be a kind of crime against humanity? It appears
to beg the question.
Yet perhaps the differences between the Schmid/Lador-Lederer proposal
and Professor Cassese’s proposal are not as pronounced as that. Clearly, we
could best answer Cassese’s difficulty by looking at how a crime against

A/CONF.183/C.1/L 27.
Antonio Cassese, ‘Terrorism is also Disrupting some Crucial Legal Categories of
International Law’; paper posted on the European Journal of International Law’s
Discussion Forum (‘The Attack on the World Trade Centre: Legal Responses’) (on file).
See also Herman von Hebel and Darryl Robinson, ‘Crimes within the Jurisdiction of the
Court’, in Lee (ed.), The International Criminal Court, 79, 85–7.
A/CONF.183/C.1/ L 27/Rev 1.

humanity is currently defined. But here we run into a further set of unre-
solved questions, not insurmountable in themselves but unresolved.
In the Tadic case before the International Criminal Tribunal for the
Former Yugoslavia (hereafter, ‘the ICTY’), the Appeals Chamber had taken
the view there that:
It is by now a settled rule of customary international law that crimes against
humanity do not require a connection to international armed conflict.
Indeed, as the Prosecutor points out, customary international law may not
require a connection between crimes against humanity and any conflict at all.
Thus, by requiring that crimes against humanity be committed in either
internal or international armed conflict, the Security Council may have
defined the crime in Article 5 [of the Statute of the ICTY] more narrowly
than necessary under customary international law.44
What the Appeal Chamber suggests in the passage above is that a parallel
but not fully identical customary norm exists to Article 5 of the Statute of
the ICTY.
In these sorts of cases, the parallel customary rule need not always be
identical to the treaty rule in question.45 It is noteworthy that in the
Nicaragua Case, the International Court of Justice concluded that the cus-
tomary law on self-defence was not wholly identical with the (treaty) self-
defence rule in the Charter of the United Nations.46
However, Article 5 of the Statute of the ICTY provides (instead) that:
The International Tribunal shall have the power to prosecute persons
responsible for the following crimes when committed in armed conflict,
whether international or internal in character, and directed against any
civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
other inhumane acts.47

Prosecutor v. Dusko Tadic (Cassese, President; Li, Deschenes, Abi-Saab and Sidhwa), ICTY
Appeals Chamber, 2 October 1995, para 141 (emphasis added).
Nicaragua Case (Nicaragua v. United States) (Merits), I.C.J. reports (1986), 14, paras
Ibid., para 200. 47 Emphasis added.

Article 5 differs in turn from the earlier ‘original’ definition at Nuremberg
whereby ‘crimes against humanity’ were simply defined in Article 6(c) of
the Nuremberg Charter by reference to, and was parasitic upon, the other
‘crimes’ under international law (e.g. ‘crimes against peace’ and ‘war
crimes’). The Nuremberg Charter first defines crimes against peace and war
crimes in Articles 6(a) and (b), then stipulates that:48
Leaders, organizers, instigators and accomplices participating in the for-
mulation or execution of a common plan or conspiracy to commit any of
the foregoing crimes are responsible for all acts performed by any persons
in execution of such plan.
The aim here was, importantly, to include the Final Solution within the
ambit of the postwar Nuremberg trials where the policy which the Final
Solution represented comprised also the persecution of German nationals
in Nazi Germany prior to the war itself, during peacetime. Consequently, the
drafting intent underlying Article 6(c) was to expand the scope of war crimes
to peacetime by linking such ‘peacetime offences’ to the war itself.49
In any event, the approach taken in Article 3 of the Statute of the
International Criminal Tribunal for Rwanda (hereafter, the ICTR), coming
in the wake of the ICTY and the Tadic decision, was simply to speak of crimes:
. . . when committed as part of a widespread or systematic attack against
any civilian population on national, political, ethnic, racial or religious
grounds . . .

The problem, in short, is that there is a multiplicity of overlapping treaty
definitions today, each individual definition of which could exert some
influence still on any judgment made on what the customary law definition
of crimes against humanity (and terrorism) should look like. For example,
the drafting language of Article 7(1) of the Rome Statute of the International
Criminal Court omits mention of the words ‘on national, political, ethnic,
racial or religious grounds’ (in the ICTR definition above) and contains
instead the additional words ‘with knowledge of the attack’:
. . . when committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack . . . 50
Moreover, this ICC definition contains a ‘longer’ list of specific offences which
are included within and thereby comprise a part of the notion of crimes against

Charter of the International Military Tribunal, annexed to the London Agreement for the
Prosecution and Punishment of the Major War Criminals of the European Axis, 1945.
See further Bradley F. Smith, The Road to Nuremberg (NY, Basic Books, 1981), at 48–74;
Hersch Lauterpacht, International Law and Human Rights (London, Stevens, 1950), 36.
Emphasis added.

humanity.51 Which if any of the three definitions discussed above would be the
likely basis of a definition of the customary prohibition of crimes against
humanity? This sort of problem was highlighted by the Austrian delegation in
the negotiations leading up to the Rome Statute, and caused the following saving
clause in Article 22(3) to be inserted in the Rome Statute:
This Article shall not affect the characterization of any conduct as criminal
under international law independently of this statute.52
A further problem that would have to be resolved is that the divergent
definitions above are also dependent on the tapestry of interwoven and
interlocking provisions in the treaty instruments within which each defini-
tion arises. Picking one definition and not another would nonetheless leave
unanswered which ‘treaty tapestry’ would apply. Take Article 7(2)(a) of the
Rome Statute, for example. Article 7(2)(a), which defines ‘armed attack
against civilians’ in Article 7(1), suggests that a single act of one of the listed
offences above could in principle suffice to constitute an international crime
provided it is coupled with an unspecified number and combination of
commissions of (an)other listed offence(s) so as together to constitute a
‘systematic’ attack.53 Should this be true of a customary definition?

The list in Article 7(1) of the Rome Statute specifies:


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