Some Questions About the Definition of Terrorism and the Fight Against Its Financing

When the subject of terrorism is discussed in the context of international law, the issue inevitably arises of how to define ‘terrorism’. A substantial number of international conventions have been agreed which deal with various aspects of terrorism, but in all these conventions terrorism is defined in a way that is specific to the subject-matter of the particular convention. No universal definition of terrorism can thus be discerned from them. This approach has proved adequate in the past, but recent events, and the reactions to those events in the context of international law, have made it necessary for a comprehensive definition to be agreed. The first part of the article discusses this issue generally, and suggests a tentative but comprehensive definition of terrorism. The second part of the article discusses the fight against the financing of terrorism. The article discusses the 1999 Convention for the Suppression of the Financing of Terrorism, and the work of the Financial Action Task Force of the OECD. The article concludes that, though much good work has been done, there is still a long way to go in the fight against the financing of terrorism. Since it is difficult to consider together all the aspects of this broad subject a choice must be made from amongst its themes. At first sight, it is apparent that there is a problem with the nature of the definition of terrorism in relation to international law. What is terrorism and what is international law in application to terrorism? We need to know what it is that we are fighting against and what it is that international law needs to encompass. It is therefore a precondition of any useful discussion of terrorism to define it. (Section 1). In terms of the narrower field of the battle against the financing of terrorism, it seems that the instruments have not been adapted. The problem of the laundering of ‘dirty’ money is a big problem which has yet to be solved, quite simply because this money (analogous to the ‘speculative bubble’) is now intimately connected with the economic survival of people and even entire States (Section 2). MFK-Mendip Job ID: 9538BK--0156-3 10 366 Rev: 14-05-2003 PAGE: 1 TIME: 13:38 SIZE: 61,11 Area: JNLS OP: RB EJIL 14/2 chg299 366 EJIL 14 (2003), 365–378 1 This study partly re-uses our contribution at the Conference of the CEDIN Paris 1 of 14 January 2002 entitled: ‘Existe-t-il une définition universelle du terrorisme?’ (Does there exist a universal definition of terrorism?), Le Droit international face au terrorisme (2002), at 35–68. 2 See our study: ‘Le système onusien et le terrorisme ou l’histoire d’une ambiguïté volontaire’ (‘The United Nations system and terrorism, the story of a voluntary ambiguity’), L’Observateur des Nations Unies, (1999) 6, at 32–33. These two different aspects will be considered — the first one general and more theoretical, the second one essentially practical and focused. But, first, it is necessary to be more precise about the way the subject will be considered. What is interesting (from US and European perspectives) is not the point of view of a European about the problems facing Europe (for example, the legal mutual assistance between US and Europe), but the point of view of a European about terrorism in general. Do we think in the same way about this general phenomenon? So this paper does not deal primarily with questions about Europe, but rather with questions about Terrorism and International Law today and how the US and Europe can push the margins of International Law (which is different to how the International Community can push the margins of International Law). To summarise, it is preferable to contrast ideas rather than compare laws-which has been done to a considerable extent already. 1 Which Definition for Which Terrorism? Although this is the first question which generally arises (and is the first question which should arise), it is shrouded in a mist of legal ambiguity. A The Ambiguity of Terrorism The expressions Terrorism and Terrorist (except under the ‘reign of Terror’ during the French revolution) have always had a pejorative connotation. In other words, these expressions are used in order to oppose someone or something and to justify this opposition. This does not mean that the terrorist will be a terrorist for ever. If they win, they will become liberators. During the Occupation in France those who were called ‘terrorists’ by the German occupying army suddenly became the heroes of liberation, the Resistance fighters. Only the will of the victor could give the brief appearance of a conclusion. If this does not seem surprising when people have to resist what is characterised as ‘oppression’, it becomes trickier to evaluate within a democracy. Moreover, whatever is characterized as oppression must be objectively identifiable (in contrast to an ideal order) since people are prone to justify terrorism whenever a situation of domination occurs. Historical events tend to demonstrate that terrorism has never ceased; it sails on the crest of ambiguity and appears in various forms. In place of a single definition in political science we find expressions of varying degrees of generality (the ‘riposte of the weak to the strong’, the ‘atomic bomb of the poor’, ‘indirect strategy’ and so on). No MFK-Mendip Job ID: 9538BK--0157-3 10 367 Rev: 20-05-2003 PAGE: 1 TIME: 08:51 SIZE: 61,11 Area: JNLS OP: LP EJIL 14/2 chg299 Some Questions About the Definition of Terrorism and the Fight Against Its Financing 367 3 See Fukuyama, ‘Nous sommes toujours à la fin de l’histoire’ (‘We are always at the end of History’), Le Monde, 18 October 2001, which renews his famous (but very disputed) thesis on the end of History. This has also been illuminated by the discussion surrounding the ‘clash of civilizations’ thesis, developed by Samuel Huntington. 4 ‘If you can always condemn terrorist action in the field of ethics, it is much harder to do so in the field of politics, when it has popular support’; Foreword of ‘Terrorisme, violence et politique’, PPS, 29 June 2001 (859), at 4. This compilation of texts illustrates the most fatal attacks from 1973 to 1998 (the maximum of 477 having then died) and mentions an unknown person, named Bin Laden, as implied in the attacks against the American embassies in 1998. This addition would nowadays be useless. 5 For an illustration, see the remarks of the President of the Spanish Government, J-M. Aznar, who assimilates Ben Laden to ETA and declares: ‘Je ne fais aucune différence entre les terroristes. En faire, c’est commencer à perdre la lutte’ (I do not make any difference between the terrorists. Making differences is to start losing the fight), Le Monde, 17 January 2002. 6 The full list would be long and tiresome (and subjective), but it would include: terrorism with revolutionary claims (the Italian Red Brigades, the German Red Army Fraction, Action Directe in France, Communist Cells fighting in Belgium, the GRAPO in Spain), terrorism with nationalist or independence claims (IRA — at least until 1998 — in Ireland, the FNLC in Corsica (France), ETA in the Basque Country, the LTTE of Tamouls in Sri Lanka), fundamentalist terrorism (Hamas, the Algerian GIA, Al-Qaeda, Kach in Israel) or terrorism of the far right (OAS in France, the American Patriots which represent nearly 500 groups through the United States) and those which are more or less criminalized (but this also relates to certain movements quoted previously) like in Colombia, the Luminous Path in Peru or the MTA in Burma. If the link between drug trafficking and terrorism is well known, we now have ‘ecological terrorism’ (Theodore Kaczynski, alias Unabomber), and ‘Mega-terrorism’ (‘Hyperterrorisme’) (according to the expression of F. Heisbourg in Le Monde, 13 September 2001, and the title of his book, Hyperterrorisme: la nouvelle guerre (2001). The evolution of methods is also on the agenda e.g. chemical and biological weapons, nuclear power, weapons of mass destruction, cyberterrorism. doubt the end of ideology, but not the end of History, would suggest the possibility of isolating a phenomenon which was previously enveloped in the flame of revolutionary struggle. But despite the ‘myth’ of terrorism having given room to a cruel reality, the border between resistance and terrorism remains subjective and contested. The aphorism persists: ‘one man’s terrorist is another man’s freedom fighter’. As X. Crettiez remarks: ‘S’il est toujours possible de condamner sur le plan éthique une action terroriste, il est bien plus délicat de le faire sur le plan politique, lorsqu’elle reçoit un soutien populaire’. Democratic countries do not escape from this predicament. It is difficult to navigate between the different forms of terrorism and terrorists, from those whose aims are relatively well defined, such as obtaining independence, autonomy or the recognition of minority or group rights — to those with more obscure outlines, such as civilizational struggle (religious, cultural or political) — to those which resemble private groups of criminals. The refusal to differentiate between these different forms of terrorism will make definition all more difficult. Terrorism remains a meaningful and multi-faceted phenomenon which unfortunately fulfils the need for a certain fantasy, of polemic heroes toppling the established order, and which explains some of the empathy for these movements. The media attention now obtainable through terrorist action is tremendous, as we witnessed by the events of September 11, 2001. Whilst that attack might be interpreted at some level as an attack on modernity or modern values the tools of modern life became its weapons. MFK-Mendip Job ID: 9538BK--0158-3 10 368 Rev: 20-05-2003 PAGE: 1 TIME: 08:50 SIZE: 61,11 Area: JNLS OP: LP EJIL 14/2 chg299 368 EJIL 14 (2003), 365–378 7 And is supplemented frequently since three regional conventions were adopted between June and July 1999. 8 From the political point of view, the invariants seem to be: the indiscriminate use of violence, disjunction between the victim and the target, use of a kind of scenography, like the systematic opposition with the State; See Crettiez, Foreword of ‘Terrorisme, violence et politique’, at 5, supra note 4. B The Difficult Definition of Terrorism At the level of international law the hijacking will highlight the use of conventions to fight against terrorism — until they have expanded in accordance with the problems to be solved and appear locally in a more precise and synthetic way. The technique is the same: the law is adapted to the predominant form of terrorist action at any given time. The problem facing a ‘global’ definition is the difficulty in taking account of special circumstances according to the type of action committed (e.g. hijacking), the nature of the victims (e.g. hostage-taking incidents) or the type of method of the terrorist action (e.g. explosives, financing). For all these reasons, the so-called universal conventions are negotiated and signed in specific frameworks depending on the appropriate field (ICAO, IMO, IAEA or the General Assembly of the United Nations for the cross-disciplinary themes). Although it is noticeable that the framework of conventions is relatively well developed in terrorist matters, this is not matched by a corresponding efficiency in the law itself. To the extent that definitions of terrorism do appear they are enumerative, descriptive, not to say a confused mix. Would it not be better to refer to the approaches of terrorism? The exclusion clauses included in some conventions aimed at specific cases (such as precisions peculiar to each regional convention) turn this dense framework into a relatively insipid one. It is noticeable that if clauses of depoliticization (regardless of motive) and extradition are able systematically to acquire a customary value, and particular clauses mentioned are found in almost the same identical framework in nearly all the treaties, the same is not true for terrorism itself. Globally, in different international conventions, the identifiable criteria must be delimited. A distinction can be made between: how the act was undertaken and its consequences (the approach which has been preferred until now by Western countries); by whom the act was perpetrated; and the reasons why the act was committed (which looks to the motivation or legitimation for the act and to a preventive approach-which had been the leitmotif for a long time in Southern countries). However, if people seem to agree on the method used in terrorism (indiscriminate use of violence) and on the qualification of the act (rather than the more precise question of its qualification as a crime and its penalty), on its consequences (serious public or private material or human damage), and on its aim (to spread terror by dissociating victim and target), the disagreement on its causes, its motivation and its legitimation and therefore also on the qualification of its perpetrators, still exists. In this respect, the project of a General Convention on Terrorism reflects an awareness of the aforementioned shortcomings. This project is founded upon the twelve universal conventions which are evoked in its preamble. It categorises as MFK-Mendip Job ID: 9538BK--0159-2 10 369 Rev: 14-05-2003 PAGE: 1 TIME: 11:11 SIZE: 61,11 Area: JNLS OP: RB EJIL 14/2 chg299 Some Questions About the Definition of Terrorism and the Fight Against Its Financing 369 9 A/C.6/55/L.2, Report of 19 October 2000, at 38, §34. 10 These acts can in no circumstance be justified by considerations of political, philosophical, ideological, racial, ethnic, religious nature or others similar reasons (Art. 5). 11 This is, in particular, the system which exists in the Convention of Montreal of 1971 on which the Court had to decide in the Lockerbie cases. 12 The Convention is supplemented by three appendices relating to the exclusion of the political character of the offence aimed at Article 14 (Appendix 1), on mutual legal assistance aimed at Article 13 (Appendix 2), and to extradition aimed at Article 17 (Appendix 3). 13 ‘Le terrorisme est un totalitarisme’ (Terrorism is a totalitarianism), Le Monde, 6 Novembre 2001. ‘criminal and unjustifiable’ all actions, methods and terrorist practices wherever they occur and whoever the perpetrators are, and includes those which are committed directly or supported indirectly by states. According to a standard technique the first Article repeats the definition of the main words used in the convention but doesn’t give a definition of terrorism or of terrorist acts. The second Article, in contrast, describes terrorist acts and returns to the enumerative technique which has been mentioned. The project of the convention continues according to a well-known development: first by qualifying terrorist acts as criminal offences under domestic law (Article 4); followed by the clause of non justification or of depoliticization (Articles 5 and 14, widening the twelve previous conventions) which, however, is re-politicised by Article 15 which excludes an obligation to extradite for racial, religious, national, ethnical or political considerations. Then there is a clause on the establishment of the jurisdiction of the state and mutual legal assistance (Articles 6 and 13); the exclusion of terrorists from using the right of asylum (Article 7), legal entities (Article 9); international human rights law (Articles 10 and 12); the exclusion of the armed forces in case of armed conflict and the famous clause : aut dedere, aut judicare, which treats the extradition or prosecution of nationals (Article 11) and of which one notices (Article 17) that a legal right is included in the existing or forthcoming treaties and the convention itself-allowing it to stand as an extradition treaty if necessary. The settlement of disputes concerning the application or the interpretation of the convention also reiterates the previous system; it involves the arbitration and the submission of the case to the Court (ICJ) within six months by one of the parties if the previous proceedings fail. It is noticeable that this disposition is the only one that seems to be subject to a reservation (Article 23). Twenty-two ratifications will be necessary for its entry into force. C Do We Need Any Definition of Terrorism? The Security Council discussed this question during the adoption of Resolution 1373 in September 2001. One shouldn’t try to define terrorism in order to reach a quick agreement; to do so runs the risk of getting into deeper and deeper water. It is a temptation that should be avoided, in the way — neatly summarized by F. Rachline — that advancing the provocative behaviour of a woman who has been raped instead of studying the behaviour of the rapist should be avoided. The redundancy of a definition has some support, in a somewhat different manner, MFK-Mendip Job ID: 9538BK--0160-2 10 370 Rev: 14-05-2003 PAGE: 1 TIME: 11:12 SIZE: 61,11 Area: JNLS OP: RB EJIL 14/2 chg299 370 EJIL 14 (2003), 365–378 14 ‘The General International Law of Terrorism’, in R. Higgins and M. Flory (eds), Terrorism and International Law (1997) at 13. 15 Ibid, at 27–28. in the doctrine of International Law. R. Higgins provides a good illustration of it. To introduce her study on terrorism and international law, she asks: ‘Does the theme of ‘terrorism’ really constitute a distinct topic of international law? (. . .) Is there an international law of terrorism; or merely international law about terrorism? Is our study about terrorism the study of a substantive topic, or rather the study of the application of international law to a contemporary problem?’ She notices the great problems that are raised by the definition of terrorism, a comparison with the difficulty facing those who were to define the concepts of ‘minority’, ‘people’ or ‘aggression’. She finally deduces that terrorism is a term of convenience that has no particular juridical meaning but that it is just a convenient way to describe some situations. These observations are correct as far as they go, but if one keeps searching for acts of terrorism without defining terrorism itself, then its denunciation is encouraged more than its understanding by confusing the reasons for an action with its explanation, definition and support. In place of proper definitions we have to cope with descriptions of terrorist behaviour, which is more a social judgment than the comprehension of a global phenomenon. The subject as a whole is based on a excessive, repetitive and sometimes meaningless terminology. In spite of these hesitations, it is true that the will to define terrorism exists today. But the agreement on the need for a definition is not matched by an agreement on what its content should be. Without such agreement terrorism will be a feature of daily legal dispute, a phenomenon which is denounced as shameful and reprehensive by all but understood by none. Its legal value will be instrumental and incantatory, yet inefficient. As such a kind of lex talionis may develop due to the absence of even an approximate multilateral definition. One could rightfully denounce the idea that the United States has a natural right to create this law. It is surely necessary therefore to establish a definition in this area despite the many obstacle to achieving it, and international law should be pushed in that direction. D How to Define Terrorism? So, the definition of terrorism must be divorced from the notion of its legitimation. It can only be established in accordance with the perceived order of the international community as any given time. If the disparaged cause is later considered benign, the ‘terrorism’ remains an illicit act if the means of terror were used against a ‘representative’ public order — i.e. other than one based on a regime characterised as oppressive and illegitimate. Yet since this later aspect remains ambiguous, the risk is obvious; namely that the powerful countries set themselves up as guardians of an international order that they define in their own image. The aftermath of the events of September 11, 2001 illustrate the reality of this risk. Moreover, the analysis of terrorism in political science often highlights the political MFK-Mendip Job ID: 9538BK--0161-3 10 371 Rev: 20-05-2003 PAGE: 1 TIME: 08:50 SIZE: 61,11 Area: JNLS OP: LP EJIL 14/2 chg299 Some Questions About the Definition of Terrorism and the Fight Against Its Financing 371 16 About the concept of Public International Order, see the study of Combacau : ‘le droit international : bric-à-brac ou système?’, Arch. Phi. Dr (1986) at 85–105; or, more recently, the study of Ruiz Fabri : ‘L’ordre public en droit international’, in L’ordre public : ordre public ou ordres publics, ordre publics et droits fondamentaux (2001), at 85–108; D. Alland, ‘De l’ordre juridique international’, Droits (2002) 35, at 81–101. reversibility of this public order depending on the (good-) will of the leading nations. In a somewhat contradictory sense, the analysis also fears the immutability of an order which would render any action more difficult-preventing the immediate qualification of any political violence as terrorist. If public order in international society is short-lived and politically reversible (Bin Laden was first a liberator then a terrorist, whereas Nelson Mandela has moved in the opposite direction), it is apparent that it is slowly moving towards a structure on the basis of values which must not be infringed, particularly through the emergence of jus cogens or the definition of international crime in which terrorism could be included. The structure built on these restrictions is currently more a ‘police state’ which changes according to the perceived troubles, rather than a proper normative order. For a satisfactory definition, one must distinguish the attitude of terrorism (in terms of an illicit attitude) from terrorist actions or methods (which will be qualified as terrorist if the aim is to spread terror). Only the impact of the act or method is to be taken into account because it conditions the terrorist fact and can be assimilated to a common law crime (whether it is e.g. a bomb attack, assassination, offence against property). This effect can also be characterized by a terror that inculcates and conditions a feeling of uncontrolled fear in the mind of the population, even inducing psychosis. It is necessary to define terrorism in contrast to a state of public order in order so as to avoid evoking the notion of terrorism vis-à-vis acts against an oppressive regime. It is also hypercritical and counterproductive to avoid discussion of the causes of terrorism-once established they can be excluded from the language of