The Law of Terrorism

Unlike the law of war and international criminal law, which have undergone significant development in the past decades, the law of terrorism has progressed slowly, stumbling over definitional ambiguity. Nevertheless, two distinct legal approaches to terror have developed—preventing and punishing acts of terrorism and holding states accountable for those acts. Both approaches provide further support for the principle of civilian inviolability.

The United Nations attempted to draft a comprehensive treaty against terrorism in 1972 and failed. Instead, a piecemeal approach ensued in which specific acts of terrorism—aircraft hijacking, crimes against protected persons, and hostage taking—became the subjects of separate multilateral treaties. The purpose of these treaties was to define a specific crime, to require states to pass domestic laws forbidding the crime, and to create a system whereby perpetrators would either be prosecuted or extradited to face prosecution elsewhere. Each of the crimes defined in these various treaties involves the taking of innocent civilian life, whether air passengers, diplomats, or hostages.

The limited effectiveness of piecemeal treaty-making led to a broader approach to prevent terrorism. In 1994, the UN Declaration on Measures to Eliminate International Terrorism condemned “all acts, methods, and practices of terrorism as criminal and unjustifiable” and declared such acts a “grave violation of the purposes and principles of the United Nations.” Invoking the principle of civilian inviolability, the declaration described terrorism as “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons.” This declaration was followed in 1997 by the Convention for the Suppression of Terrorist Bombings, which “criminalizes a general technique”—the detonation of “an explosive or other lethal device… with the intent to cause death or serious bodily injury.” Here again, bombing is not prohibited in and of itself but only when certain to result in civilian deaths. The 1999 International Convention for the Suppression of the Financing of Terrorism has sought to punish those who finance terrorists. Offenses under this convention likewise bolster the principle of civilian inviolability, including any “act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict.”

Beyond the criminalization of acts of terrorism, a second approach prevents state sponsorship of terrorism. Soft law in the form of UN resolutions and declarations call on states to “refrain from organizing, instigating, assisting, or participating in… terrorist acts in another state or acquiescing in… activities... directed towards the commission of such acts.” These declarations, too, invoke the notion of civilian inviolability, declaring as criminal all acts “intended or calculated to provoke a state of terror in the general public.”

To date, much of the international law governing terrorism has been patchy and ineffective. The specific conventions only ban one technique and have not been uniformly respected. The broader declarations have no binding legal force, and the UN Sixth Committee charged with producing a global terrorist convention has met with only limited success. An underlying theme running though all these efforts, however, is an attempt to ban attacks aimed at civilians.

The Future of Law

Individually, the developments in each of these three areas of law are significant. Taken collectively, they are extraordinarily powerful. They create a web of prohibitions and penalties around the principle of civilian inviolability. Whether understood as illegal combat, international crime, or an inherent element of terrorist attacks, the deliberate killing of individuals intent only on living their lives as members of civil society is unacceptable.

The logic of this principle provides a new way to think about terrorism. Terror does not exist in isolation; it is spread for a purpose, generally to advance or publicize a cause or undermine public order as part of a political, ethnic, or religious struggle. It is this communicative aspect associated with “terrorism” that leads to the old adage and analytic dead end: “one man’s terrorist is another man’s freedom fighter.”

The principle of civilian inviolability, by contrast, offers a definitional approach to terrorism with analytic power. The fundamental issue at stake is not the desire to terrorize but rather the types of targets attacked. Civilians must not be the deliberate targets of attack under any circumstances, for any purpose. Focusing on targeting choices resolves the uneasy definitional tension between civilian, soldier, and terrorist.

A foundational principle of civilian inviolability creates a new category between civilian and soldier. It is the category of global criminals. Individuals who deliberately target and kill civilians are the modern equivalent of “the enemies of all mankind,” the designation given pirates, slave-traders, and torturers under the international law establishing universal jurisdiction. In their current incarnation, global criminals have killed hundreds of thousands of people.

The final element in the equation is the addition of weapons of mass destruction. By definition, such weapons cannot discriminate between civilians and combatants. A foundational principle of civilian inviolability would thus outlaw their use. It would immediately label as an outlaw any individual, whether a national leader or a terrorist, who prepared to use them. As part of the UN Charter or an incorporated element of Security Council jurisprudence, this principle could thus authorize a much wider range of action against state leaders or individuals suspected of developing biological, chemical, or nuclear weapons outside the strictures of current international law.

Those who kill civilians are global outlaws, individuals who have violated the basic precepts of all legal systems. They have violated the law of war and both national and international criminal law. They may be government officials or generals, religious or political fanatics. Global outlaws may be pursued by armies and police forces as well as by intelligence operatives, financial regulators, and prosecutors. But their pursuit, arrest, and trial must be conducted under a new international legal order closely connected to national law. Developing that order is the international legal challenge of the 21st century.