How definitional impasses lead to legal uncertainty: the 'terrorism' case
Terrorism is a widespread phenomenon in the world we live on today. Particularly the last fifteenyears have been characterized by a number of terrorist attacks which are both more deadly and close in time than in the past. As a result of the considerable media coverage of such phenomenon, people have gradually learnt how to live with the frightening news, becoming progressively inured to them. Broadcasting news should instead represent an opportunity to common people to reflect on facts they are continuously exposed, by developing a critical thinking on such crucial global issue and refusing to be mere addressees of the media. Indeed, common people have never wondered what actually terrorism is, most likely because factual details of the attacks shift the attention from the most important question. Particularly for those scholars interested in the study of the phenomenon under the legal framework of international law, such question should sound like the following: 'what is the legal definition of terrorism?''.
Regrettably, a universal definition of terrorism does not actually exist so far. Despite the different conventions against very specific forms of terrorism issued by the United Nations (UN) from 19631 onwards, the latter has not yet succeeded in legally defining what terrorism is. It is essential to bear in mind that the lack of a comprehensive legal definition is not an issue per se, but it has become a real concern since 9/11, when the international community has strongly called for states to take action against terrorism. The urgency to counter the new global and undefined threat has increasingly led many states to take advantage of the high degree of arbitrariness in determining the definition of 'terrorism' at national level, misusing the term to adopt policies that constitute human rights violations under international law and that establish 'oppressive regimes'2, in the worst-case scenarios.
2. Is one man's terrorist another man's freedom fighter?
'One man's terrorist is another man's freedom fighter', attributed to the British author Gerald Seymour3, is an oft-heard quotation in the academic realm. It captures indeed the essence of the controversial debate about the definition of terrorism, especially referring to the thin line that distinguishes terrorism, the greatest offence to human rights, from the struggle for national liberation which instead founds its legitimacy under the right of self-determination of peoples4. As 'a meaningful and multi-faceted phenomenon'5, terrorism is undoubtedly hard to be categorized. Nevertheless, Jean-Marc Sorel has succeeded in identifying three essential criteria which could assist such inspirational aim: first, 'how the act was undertaken and its consequences […]; second, by whom the act was perpetrated; and, third, the reasons why the act was committed [...].'. Although the international community seems to agree on methods, 'indiscriminate use of violence'6, consequences, 'serious public or private material or human damage'7 and aims, 'to spread terror by dissociating victim and target'8, the qualification of perpetrators, causes and legitimation are still strongly debated. According to Sorel, as long as the different 'religious, cultural or political'9 aims of different terrorist groups are not seriously taken into account, the phenomenon can never be understood effectively and, consequently, an appropriate comprehensive legal definition of terrorism will always be difficult to reach.
3. The worrisome implications of the definitional problem of terrorism
The lack of a precise definition is not without consequences. As noticed by Conor Gearty, both 'the breadth of the definition of terrorism'10 and the 'overbroad discretionary powers'11 granted to states in time of public emergency12, invite the latter to 'depart from the rule of law'13, especially jeopardizing the enjoyment of fundamental human rights14. Despite both international15 and regional16 provisions on the 'state of emergency' allow derogation exclusively from those human rights which can been actually derogated, states have been often charged with violating 'absolute' human rights17, by implementing countermeasures which have failed to respect the required derogation limitations of 'necessity and proportionality'18. Andrea Bianchi particularly focuses on the way many states have seized the 'opportunity afforded by the implementation of the SC's (UN Security Council) anti-terror measures'19, by introducing over time new legislation and practices 'not mandated by the SC'20 and not even related to terrorism. All the elements considered above equally contribute to aggravate the legal uncertainty spread into the legal framework of terrorism, both at the national and international level: indeed, it is the 'lack of a universally shared definition of what amounts to an act of terrorism'21 which materializes the risk of controversial legislation and measures which are not actually 'limited to countering terrorism'22.
4. Attempts to define 'terrorism'
Notably, Sorel has proposed his personal definition of terrorism which reads as follows: 'international terrorism is an illicit act (irrespective of its perpetrator or its purpose) which creates a disturbance in the public order [...], by using serious and indiscriminate violence (in whatever form, whether against people or public or private property) in order to generate an atmosphere of terror with the aim of influencing political action'23.
The lack of a universally accepted definition of terrorism, both in the political and academic field, has not been overcome yet, instigating the long-term debate which involves not only regional and international organisations as, respectively, the European Union or the UN, but even individual States and non-state actors which aim to finally define terrorism. Unfortunately, as previously considered, many governments are too often reluctant to define terrorism specifically at national level as they would surely lose that flexibility currently allowed by the present vague and broad definition. It is especially for this reason that the international community should extensively keep working on the definitional problem of terrorism, encouraging more the understanding of the actual threat, rather than a superficial and blind 'denunciation'24.
1 The first convention against terrorism was the 'Convention on Offences and Certain Other Acts Committed on Board
Aircraft' (adopted 14 September 1963, entered into force 04 December 1969) 704 UNTS 219; 20 UST 2941; 2 ILM
2 Daniel Moeckli, Sangeeta Shah & Sandesh Sivakumaran, International Human Rights Law (first published 2010, 2nd
edn, OUP 2014) 555
3 Ibid, p. 554
4 Article 1§1 of the International Covenant on Civil and Political Rights declares as follows: 'All peoples have the right
of self-determination. By virtue of that right they freely determine their political status and freely pursue their
economic, social and cultural development.'.
5 Jean-Marc Sorel, 'Some questions about the definition of terrorism and the fight against its financing' (2003) 14 EJIL
6 Ibid, p. 368
10 Conor Gearty, 'Terrorism and Human Rights' (2007) 42 Government and Opposition 340, 356
11 Ibid, p. 361
12 National 'state of emergency' is usually declared by governments in the aftermath of deadly terrorist attacks.
The wide range of discretionary powers granted to States during time of public emergency includes: the power to
conduct house searches without warrants, place under house arrest suspects without judicial warrant, ban associations
and public demonstrations, dissolve groups deemed to threaten public order, block certain websites and social media
13 Conor Gearty, 'Terrorism and Human Rights' (2007) 42 Government and Opposition 340, 361
14 Sabine von Schorlemer stated that counter-terrorism measures may affect particularly: the presumption of
innocence; the right to fair trial; freedom from torture; freedom of thought; privacy rights; freedom of expression and
peaceful assembly; the right to seek asylum.
15 Article 4§1 of the International Covenant on Civil and Political Rights declares as follows: 'in time of public
emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to
the present Covenant may take measures derogating from their obligations under the present Covenant to the extent
strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other
obligations under international law and do not involve discrimination solely on the ground of race, colour, sex,
language, religion or social origin.'.
16 Article 15 of the European Convention on Human Rights states as follows: 'in time of war or other public
emergency threatening the life of the nation any High Contracting Party may take measures derogating from its
obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such
measures are not inconsistent with its other obligations under international law.'.
17 The absolute rights under the International Covenant on Civil and Political Rights are: right to life (Article 6),
prohibition of torture or cruel, inhuman or degrading treatment (Article 7), prohibition of slavery (Article 8), prohibition
of imprisonment because of inability to fulfill a contractual obligation (Article 11), principle of no punishment without
law (Article 15), right to recognition of everyone as a person before the law (Article 16), right to freedom of though,
conscience, religion (Article 18).
18 Daniel Moeckli, Sangeeta Shah & Sandesh Sivakumaran, International Human Rights Law (first published 2010, 2nd
edn, OUP 2014) 554
19 Andrea Bianchi, 'Assessing the effectiveness of the UN Security Council’s anti-terrorism Measures: the quest for
legitimacy and cohesion' (2006) 17 EJIL 881, 899
21 Andrea Bianchi, 'Assessing the effectiveness of the UN Security Council’s anti-terrorism Measures: the quest for
legitimacy and cohesion' (2006) 17 EJIL 881, 899
24 Jean-Marc Sorel, 'Some questions about the definition of terrorism and the fight against its financing' (2003) 14
EJIL 365, 370
Moeckli D., Shah S. & Sivakumaran S., International Human Rights Law (first published 2010, 2nd
edn, OUP 2014)
Bianchi A., 'Assessing the effectiveness of the UN Security Council’s anti-terrorism measures: the
quest for legitimacy and cohesion' (2006) 17 EJIL 881
Gearty C., 'Terrorism and Human Rights' (2007) 42 Government and Opposition 340
Sorel J., 'Some questions about the definition of terrorism and the fight against its financing' (2003)
14 EJIL 365
von Schorlemer S., 'Human Rights: substantive and institutional implications of the war against
terrorism' (2003) 14 EJIL 265
European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September
1953) ETS 5
Convention on Offences and Certain Other Acts Committed on Board Aircraft (adopted 14
September 1963, entered into force 04 December 1969) 704 UNTS 219; 20 UST 2941; 2 ILM 1042
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force
23 March 1976) United Nations, Treaty Series, vol. 999, p. 171