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The objective and subjective approach in defining terrorism

One 1988 study identified a total of 109 different definitions, [3] and the number would be far higher today. Despite decades of effort, with even greater focus after September 11, attempts to develop a generally accepted legal definition of terrorism have failed. This includes Australia, which before September 11 had no national laws on the subject. Today, the legal meaning attributed to terrorism — in Australia and elsewhere — is crucial when establishing and limiting the scope of serious criminal sanctions as well as the capacity of the State to infringe upon accepted civil liberties, such as the right to privacy.

Due to the serious legal, political, social, cultural and economic consequences of describing someone as a terrorist, or an action as terrorism, lawyers must seek to describe the concept with as much precision as possible.

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One danger is that if terrorism is not so defined, the powers of the State may extend very far indeed. Our aim in this article is not to determine what is or is not terrorism.

We do not add our own definition to an already long list. Instead, we address some of the practical and political problems that lawyers encounter when they attempt to establish a definition. We acknowledge that it is important to set out our own normative starting point in writing about such politically sensitive questions. It should be consistent with fundamental human rights and the rule of law.

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We have selected the latter nations because they have a legal system based upon the common law, as well as similar political, cultural and legal traditions to Australia. In Part III we examine some of the legal and other issues that arise out of these attempts at definition.

  • Given the specific exclusion clauses in the Australian, New Zealand, Canadian and South African legislation, the absence of such a clause might even create an implication that Parliament intended to include these acts within the scope of the definition;
  • Definition at least of the key features of terrorism by Parliament has several advantages.

We focus on the following questions: In Part IV we conclude by outlining principles that may assist in future attempts to define terrorism or in recasting current legal definitions. According to this approach, international legal scholars have not attempted to define terrorism as a general concept per se, but rather have attempted to define and proscribe specific actions such as hijacking, the taking of hostages, and so forth. This can be contrasted with the general or deductive model, whereby the definer attempts to articulate a general concept of terrorism by reference to certain overarching criteria such as, for example, intention or motivation.

As a consequence, there are some 12 international conventions, such as the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, [20] the International Convention against the Taking of Hostages, [21] and the International Convention for the Suppression of Terrorist Bombings, [22] directed to commonly-acknowledged terrorist modus operandi.

Indeed, the international community has begun to attempt more general definitions.

  1. As Levitt, himself a proponent of the specific approach, has recognised.
  2. However, a completely specific approach to the problem, as has largely been adopted to date in the international legal arena, results in a piecemeal, ad hoc and reactive means of regulation.
  3. However, this would pit the legislative drafter and the usually slow and unwieldy parliamentary process against the ingenuity of terrorists seeking new ways to achieve their goals.
  4. Sticking points are usually about conflicting national interests and unwillingness to change national legislative traditions.
  5. The Bill was referred to the Portfolio Committee on Justice and Constitutional Affairs of the National Assembly, which held public hearings over several weeks. His remarks underlie recent controversial executive actions, including a ban on people from seven predominantly Muslim countries traveling to the U.

Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in hostilities in a situation of armed conflict, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.

The Convention is still in draft form. While the international legal community has struggled to formulate a universally-accepted definition, bodies such as the United Nations have exerted a significant influence on the actions of member States in this regard.

When it comes to defining ‘terrorism,’ there is no consensus

The United Nations has been a focus of debate and activity in responding to terrorism, and a number of international instruments have provided an impetus for States to respond to terrorism through their domestic legal regimes.

We turn now to the domestic legal definitions of terrorism. Many of them can be seen as responses to September 11 and Resolution 1373. On the other hand, some jurisdictions, such as the United Kingdom and New Zealand, have had counter-terrorist legislation in place for a longer period. After September 11, the Federal Government provided the focus for the Australian legal response.

The definition appears in s 100. Section 2331 of Title 18 now provides: Paragraph a then lists a number of offences in sub-ss 7 2 and 7 3 of the Canadian Criminal Code, which implement various international instruments that are directed towards well-known terrorist modus operandi, such as hijacking.

Prior to September 11, New Zealand had passed legislation implementing eight of the major international conventions on terrorism. Indeed, a focal point of the debate became how the Bill could be redrafted to comply with the Resolution, and the Resolution was added as a Schedule to the Bill. The Bill was renamed and was ultimately enacted in October 2002, with overwhelming cross-party support, [50] as the Terrorism Suppression Act 2002 NZ.

Section 5 2 then provides: An act falls within this subsection if it is intended to cause, in any 1 or more countries, 1 or more of the outcomes specified in subsection 3and is carried out for the purpose of advancing an ideological, political, or religious cause, and with the following intention: Subsection 3 further states: The outcomes referred to in subsection 2 are — a the death of, or other serious bodily injury to, 1 or more persons other than a person carrying out the act ; b a serious risk to the health or safety of a population; c destruction of, or serious damage to, property of great value or importance, or major economic loss, or major environmental damage, if likely to result in 1 or more outcomes specified in paragraphs ab and d ; d serious interference with, or serious disruption to, an infrastructure facility, if likely to endanger human life; e introduction or release of a disease-bearing organism, if likely to devastate the national economy of a country.

Subsection 4 exempts acts of war made during situations of armed conflict and made in accordance with applicable international law from sub-s 2while sub-s 5 states: To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, the objective and subjective approach in defining terrorism not, by itself, a sufficient basis for inferring that the person — a is carrying out an act for a purpose, or with an intention, specified in subsection 2 ; or b intends to cause the objective and subjective approach in defining terrorism outcome specified in subsection 3.

The Bill purported to create a range of terrorist-related offences, such as committing or threatening to commit a terrorist act, [56] knowingly facilitating the commission of a terrorist act, [57] and being a member of, or supporting, a terrorist organisation.

Clause 1 defined a convention offence to mean an offence listed in sch 1 of the Bill, which in turn listed 10 international conventions to which South Africa was a party the list included United Nations, Organisation of African Unity and other multilateral treaties.

The disjunctive use of the specific and general approaches in this definition made an ordinary offence against South African criminal law an act of terrorism provided that it was likely to intimidate the public or a segment of the public, and automatically made a convention offence an act of terrorism irrespective of its intimidatory character or purpose.

The Bill was referred to the Portfolio Committee on Justice and Constitutional Affairs of the National Assembly, which held public hearings over several weeks. The Bill was heavily criticised by human rights organisations such as the South African Human Rights Commission for, amongst other things, its extremely broad definition of terrorism.

This Bill, like its predecessor, provided for terrorist-related criminal offences, gave certain powers to investigating authorities and provided for financial counter-terrorism measures. The Bill has not been passed and lapsed with the 2004 national elections in South Africa. The two main drafting methods used to define terrorism are the general and the specific approaches.

The specific approach identifies certain activities as terrorism, such as hijacking and taking hostages, without seeking to define a general category of terrorism per se, while the general approach seeks to arrive at a general definition of terrorism, by reference to criteria such as intention, motivation, and so forth.

The former is essentially an inductive approach, while the latter is deductive. These approaches can be combined in the one definition. Of the definitions set out in Part II, most adopt a largely general approach. The New Zealand Act also refers to offences against specified international terrorism conventions to which New Zealand is a party, while the Canadian Code refers to criminal offences contained elsewhere within the Code offences themselves created to implement some of the same international conventions.

In addition, there are specific elements in Australian and South African legislation, which refer to certain terrorist activities, such as tampering with electronic systems and introducing biological material.

Defining terrorism

It is not clear exactly what an act against a specified terrorist convention would look like. A subjective definition leaves too much room for political bias to affect the decision. A specific offence may not include the elements that distinguish a terrorist act from other criminal acts, and this can be a concern where additional penalties are imposed for terrorism. For example, the definition in clause 1 a of the original South African Anti-Terrorism Bill provided that a convention offence committed within the Republic of South Africa constituted a terrorist act.

The disjunctive drafting of the clause meant that the act of committing the convention offence did not have to be attended by an intention to exert influence over government policy, or to intimidate a civilian population.

Thus, it was conceivable that the hijacking of a small plane as part of a student prank or the kidnapping of a person for mercenary reasons would, respectively, constitute terrorist acts by virtue of contravening international conventions against hijacking and the taking of hostages.

This would be the case even though the acts were not intended to produce terror in the civilian population or to bring about a political outcome. However, this would pit the legislative drafter and the usually slow and unwieldy parliamentary process against the ingenuity of terrorists seeking new ways to achieve their goals.

Inevitably, legislative definitions of terrorism based upon specific offences will produce longer statutes that cannot cover the ambit of all possible terrorist action. Where specific offences of terrorism do not sufficiently cover the field, terrorist conduct may still fall within the ordinary criminal law, including offences such as murder and assault.

  1. First, it is preferable to adopt a general approach to defining terrorism.
  2. However, by its nature there may be less scope for indeterminacy of meaning than in the judicial development and manipulation of precedent.
  3. The sectoral approach was adopted precisely because states could not reach agreement on 'terrorism' as such.
  4. Section 5 2 then provides.

However, such actions might thereby avoid some of the additional sanctions such as additional times of imprisonment often associated with terrorist acts, and may not attract the special investigative and detention powers that many nations have provided for only in regard to the commission of terrorist crimes.

Others acts such as cyber-terrorism, or even acts not yet dreamed of, may fall entirely outside of the ordinary criminal law. Hence, by itself, a specific approach to defining terrorism is not sufficient. To base a counter-terrorism regime only upon the regulation of specific acts of terrorism would be akin to attempting to proscribe schemes designed to evade tax by specifically legislating against each and every possible method of evasion.

As with crimes of terrorism, legislation directed at specific evasion schemes may be important, but a more general definition and prohibition is also necessary. If these disparate acts are to be linked in some way, then they need to be linked by an overarching idea of what we understand by terrorism. If the law is to keep pace with such discourse then the challenge for lawyers is to formulate a generic definition that reflects our contemporary understanding of terrorism, and seeks to crystallise it in a form consistent with rule of law principles.

As Levitt, himself a proponent the objective and subjective approach in defining terrorism the specific approach, has recognised: However, the difficulty of achieving a general definition that does not encompass actions such as civil protest raises a host of new problems.

B A General Definition: There appears to be agreement across most of the nations examined in Part II that the concept refers to political, religious or ideologically-motivated violence that causes harm to people or property, intended either to coerce a civilian population or government, or to instil fear in the population or a certain part of it. However, if a definition is expressed at this level of abstraction, as some of the jurisdictions in Part II have done, it would extend to and, depending on the purpose of the legislation, potentially criminalise a range of activities not generally considered to be terrorism.

Civil disobedience, public protest and industrial action are among the activities that could fall within the definition. These types of activities should be excluded from any definition of terrorism.

The problem with not excluding such actions is demonstrated by the example of s 1 of the Terrorism Act 2000 UK. This encompasses groups whose methods are generally non-violent and who do not aim to intimidate or to coerce the government or the public.

Similarly, a mass student protest against the deregulation of university fees by the British Government could also fall within the definition of terrorism.

As with the striking nurses, the example of the protesting students could quite easily fall foul of the motive and political cause requirements in paras 1 b and 1 c if their aims were to pressure the government to reduce student financial contributions to public university funding, and to provide more public money for education.

Charles Clarke, a Member of the governing Labour Party, asserted that: It would be a trade dispute, which is not a political, religious or ideological cause. We have also made it clear on many occasions that our definition of terrorism is not intended to catch the objective and subjective approach in defining terrorism organised industrial action in connection with a legitimate trade dispute. It is worth putting that on record.

I do not believe it likely that the courts would stretch the definition of a political cause as some have suggested. Indeed, if this were not the case, it would have been a simple matter to exclude certain categories of acts, such as advocacy, dissent and industrial action. Given the specific exclusion clauses in the Australian, New Zealand, Canadian and South African legislation, the absence of such a clause might even create an implication that Parliament intended to include these acts within the scope of the definition.

While we have used the United Kingdom definition to highlight the problems of defining terrorism in a general, deductive manner without specific exceptions, the United States definition could produce similar results. It also lacks an appropriate exception clause. It creates an offence of terrorism at a high level of generality without providing an exclusion for advocacy, protest or industrial action.

Without a Bill of Rights in the Northern Territory, or a national Bill of Rights in Australia, there are no countervailing constitutional or other instruments to ameliorate its effect.

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It is not even clear that the implied constitutional protection for political communication in Australia operates in the Northern Territory. The text of such an exception is of obvious importance.

The exception would not have prevented the criminal liability associated with terrorism, with up to life imprisonment, from applying to people such as farmers, unionists, students, environmentalists and online protestors. Any exception based upon excluding forms of protest must exclude both lawful and unlawful protest.

Fortunately, this Bill failed to pass in its original form and was substantially amended over a period of months after strong criticism from legal and community groups, and a highly critical unanimous report by the Senate Legal and Constitutional Committee. This issue should not be polarised as a choice between definition by Parliament or the courts; the two are not mutually exclusive.

Whatever definition is set down by Parliament, it will require interpretation and further definition by judges.