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9
This aspect has been rightly underlined by several commentators: see, e.g.,
B Golder and G Williams, What is Terrorism? Problems of legal definition
(2004) 27 University of NSW Law Journal 270, 2712; K Roach, The case for defining terrorism with restraint and without reference to political or religious motive,
in A Lynch, E MacDonald and G Williams (eds), Law and Liberty in the War on
Terror (Federation Press, 2007) 39, 4041; C Walter, Terrorism, in R Wolfrum
(ed.), The Max Planck Encyclopedia of Public International Law (online edn, OUP,
2011) <www.mpepil.com> [1]; B Saul, Civilizing the Exception: Universally Defining
Terrorism, (Sydney Law School Legal Studies Research Paper No. 12/68, 2012) 9.
10
See, e.g., RR Baxter, A skeptical look at the concept of terrorism (1974) 7
Akron Law Review 380; G Levitt, Is terrorism worth defining? (1986) 13 Ohio
Northern University Law Review 97, 1145; R Higgins, The general international
law of terrorism, in R Higgins and M Flory (eds), Terrorism and International
Law (Routledge, 1997) 13, 278; J Dugard, The problem of the definition of terrorism in international law, in P Eden and T ODonnell (eds), September 11, 2001:
A Turning Point in International and Domestic Law? (Transnational, 2005) 187,
198205; C Begorre-Bret, The definition of terrorism and the challenge of relativism (2006) 27 Cardozo Law Review (2006) 1987, 1990.
11
On this view, see further Di Filippo, above n 8, 5345. For a partly similar
view, see R Young, Defining terrorism: The evolution of terrorism as a legal
concept in international law and its influence on definitions in domestic legislation
(2006) 29 Boston College International and Comparative Law Review 23, 29.
24
Draft international convention on the suppression of terrorism, Annex to
UN Doc A/C.6/51/6 (11 November 1996). In 2000 India presented an amended
version: Draft comprehensive convention on international terrorism: working
document submitted by India, UN Doc A/C.6/55/1 (28 August 2000).
25
See the Report of the Ad Hoc Committee established by General Assembly
Resolution 51/210 of 17 December 1996: 6th session, UN Doc A/57/37 (28
January1 February 2002); Measures to Eliminate International Terrorism: Report
of the Working Group, UN Doc A/C.6/57/L.9 (16 October 2002).
26
See, for instance, Report of the Ad Hoc Committee established by General
Assembly Resolution 51/210 of 17 December 1996, 7th session, UN Doc A/58/37
(31 March2 April 2003); Measures to Eliminate International Terrorism: Report
of the Working Group, UN Doc A/C.6/58/L.10 (10 October 2003); Report of the Ad
Hoc Committee established by General Assembly Resolution 51/210 of 17 December
1996, 8th session, UN Doc A/59/37 (28 June2 July 2004); Measures to Eliminate
International Terrorism: Report of the Working Group, UN Doc A/C.6/60/L.6 (14
October 2005); Report of the Ad Hoc Committee established by General Assembly
Resolution 51/210 of 17 December 1996, 10th session, UN Doc A/61/37 (27
February3 March 2006); Summary Record of the 21st meeting: 6th Committee,
held at Headquarters, New York, on Thursday, 9 November 2006, General Assembly,
61st session, UN Doc A/C.6/61/SR.21 (27 November 2006); Report of the Ad Hoc
Committee established by General Assembly Resolution 51/210 of 17 December
1996, 11th Session, UN Doc A/62/37 (5, 6 and 15 February 2007). For an account
of negotiations see M Hmoud, Negotiating the draft comprehensive convention on international terrorism: Major bones of contention (2006) 4 Journal of
International Criminal Justice 1031.
27
See art 2 of the Draft elaborated by the Committee: Report of the Ad Hoc
Committee established by General Assembly Resolution 51/210 of 17 December
1996: 6th session, UN Doc A/57/37 (28 January1 February 2002) Annex II, 6.
28
For a different view see E David, Les Nations Unies et la lutte contre
le terrorisme international, in JP Cot et al (eds), La Charte des Nations Unies.
Commentaire article par article (conomica, 2005) 163, 1845: in his opinion, the
wording of art 2 implies the impossibility of qualifying as terrorist any act directed
in peacetime against military personnel.
29
Report of the Ad Hoc Committee established by General Assembly Resolution
51/210 of 17 December 1996: 6th session, UN Doc A/57/37 (28 January1 February
2002) Annex II.
30
Article 1 of the EU Framework Decision of the Council No 2002/475/JHA on
combating terrorism [2002] OJ L164/3 is a good example.
31
See M Scheinin, Report of the Special Rapporteur on Promotion and Protection
of Human Rights and Fundamental Freedoms While Countering Terrorism, UN Doc
E/CN.4/2006/98 (28 September 2005) [26][27].
32
See Golder and Williams, above n 9, 28991; Hennebel and Lewkowicz, Le
problme de la dfinition du terrorisme, in L Hennebel and D Vandermeersch
(eds), Juger le terrorisme dans ltat de droit (Bruylant, 2009) 17, 44; S Setty,
Whats in a name? How nations define terrorism ten years after 9/11 (2011) 33
University of Pennsylvania Journal of International Law 1, 5761.
33
For a brief survey which confirms such an impression see S Schmahl,
Specific methods of prosecuting terrorists in national law in C Walter et al (eds),
Terrorism as a Challenge for National and International Law: Security versus
Liberty? (Springer, 2004) 867; C Walter, Defining terrorism in national and
international law in C Walter et al (eds), Terrorism as a Challenge for National
and International Law: Security versus Liberty? (Springer, 2004) 2830; Di Filippo,
above n 8, 5589.
5.LEGAL LITERATURE
Turning to international law scholarship,37 several years ago one leading
commentator, in singling out a common feature of terrorist crimes, proposed an analogy with war crimes, by evoking the employment of cruel
offensive methods and the attacking of targets which are either innocent or
lack military value.38 The growing concern about the deliberate targeting
of civilians, under circumstances not covered by the law of armed conflict,
and the existence of a common approach, in term of strict condemnation
of such acts, was also evident in research carried out by US and (then)
Soviet experts between 1988 and 1990.39 Those cues deserve appreciation,
in that they spell out some features, common to a line of acts, reputed to be
intolerable by any state, in the light of the emergence of some basic values
of the whole international community.40
It is equally true that most prominent authors, even recently, include
37
Given the nature of the present volume and the space limits it is not possible
to give an account (even brief) of the orientations of the criminal law doctrine in a
comparative perspective.
38
See the definition proposed by E David, Le terrorisme en droit international (definition, incrimination, repression) in Colloque de lUniversit libre de
Bruxelles. Rflexions sur la dfinition et la rpression du terrorisme (Editions de
lUniversit de Bruxelles 1974) 103, 125. This concept was later picked up by other
authors: see, e.g., F Francioni, Crimini internazionali (1989) IV Digesto discipline pubblicistiche 464, 474; K Skubiszewski, Definition of Terrorism (1989)
19 Israel Yearbook on Human Rights 39, 42; JF Murphy, The need for international cooperation in combating terrorism (1990) 13 Terrorism: An International
Journal 381; D Cumin, Tentative de dfinition du terrorisme partir du jus
in bello (2004) Revue de science criminelle et de droit pnal compar 11, 2930;
MSassoli, Terrorism and War (2006) 4 Journal of International Criminal Justice
959, 97980. It should be stressed that, more recently, David elaborated a partly
different notion, according to an overall assessment of the international practice:
see David in JP Cot et al (eds), above n 28, 191.
39
See I Beliaev and J Marks (eds), Common Ground on Terrorism. Soviet-
American Cooperation Against the Politics of Terror (Norton, 1991) 169, 177.
40
See JM Sorel, Existe-t-il une dfinition universelle de terrorisme? in
KBannelier et al (eds), Le droit international face au terrorisme (Pedone, 2002) 68
(terrorism is a disturbance of international public order).
41
See, amongst others, MC Bassiouni (ed), International Terrorism:
Multilateral Conventions (Transnational Publisher, 2001) 16; Bassiouni, above
n 7, 710; Y Alexander, Terrorism: A definitional focus, in Y Alexander and E
Brenner (eds), Terrorism and the Law (Transnational Publisher, 2002) 3, 7; Sorel,
above n 40, 68; A Paust, Terrorism as an international crime, in G Nesi (ed),
International Cooperation in Counter-Terrorism (Ashgate, 2006) 27; A Cassese,
The multifaceted criminal notion of terrorism in international law (2006) 4
Journal of International Criminal Justice 933, 93743; Saul, above n 15, 3845,
6061; Saul, above n 9, 911.
42
See Sorel, above n 40, 68; Begorre-Bret, above n 10, 1995.
43
See Young, above n 11, 64; Roach, above n 9; Hennebel and Lewkowicz,
above n 32, 489.
44
See E Greppi, Terrorism and rogue states: Some reflections on international law issues (2005) 60 La Comunit internazionale 231, 2324; Saul, above
n 9, 314.
45
See, e.g., G Guillame, Terrorism and international law (2004) 53
International and Comparative Law Quarterly 537, 540.
46
Young, above n 11, 578, 64. See also A Oehmichen, Terrorism and Anti-
Terror Legislation: The Terrorised Legislator? (Intersentia, Antwerpen, 2009), 125,
127.
47
See JF Murphy, Defining international terrorism: A way out of the quagmire (1989) 19 Israel Yearbook on Human Rights 13, 32; C Tomuschat, Comment
on the Presentation by Christian Walter in Walter et al (eds), Terrorism As A
Challenge for National and International Law: Security Versus Liberty? (Springer,
2004) 45; Begorre-Bret, above n 10, 20004.
48
For similar reasoning, see K Ambos, Judicial creativity at the Special
Tribunal for Lebanon: Is there a crime of terrorism under international law?
(2011) 24 Leiden Journal of International Law 655, 6745.
same view, see Special Court for Sierra Leone, Prosecutor v Moinina Fofana and
Allieu Kondewa (Appeals Chamber Judgment) (SCSL, Case No SCSL-0414-A,
28 May 2008) [357]; Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Trial
Judgment) (SCSL, Case No SCSL-0415-T, 2 March 2009) [120][121] (RUF
Case).
54
Although the proposed solution is not an all-embracing one, it does not
passively take note of an alleged impossible dpolitisation conceptuelle du terrorisme (see E Hugues, La notion de terrorisme en droit international: en qute
dune dfinition juridique (2002) 129 Journal de droit international 753, 765) and
tries to avoid the conceptual deadlocks deriving from the approach advanced by
Begorre-Bret, (above n 10, 20024), where the will to give account of too many
supposed variants of terrorist activity leads to an excessively broad list of typologies of terrorism, totally unworkable in an international context. Lastly, the notion
here elaborated tries to offer a rational way out of the lack of precision (complained of, among others, by Ambos, above n 48, 6714) of many definitions of the
objective element of a supposed crime of terrorism.
55
A core notion of dignity here means a basic value of humanity represented
by any person and which calls for the banning of any humiliating and degrading
treatment.
56
A push in that direction could come not only from sectoral anti-terrorism
treaties on hostages taking, but also from human rights treaties and rules on crimes
against humanity.
7.CONCLUSION
Notwithstanding the confusion in the political debate and the diversity of
opinion surrounding the feasibility of a legal notion of terrorism in international law, a theoretical approach focused on the values protected by
law and on the stance of the international community at large can shed
57
For a different view see Cassese, above n 41, 938; Interlocutory Decision on
the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative
Charging (STL, Case No STL-1101/I, 16 February 2011) [85], [90].
58
Such as the Beslan School hostage crisis, which took place in Russia between
1 and 3 September 2004.
59
It has been aptly observed that the transnational element is not part of the
offence definition but rather a jurisdictional rule that limits the application of
the respective convention to terrorist offences with a cross-border dimension: see
Ambos, above n 48, 672.
60
Mention may be made of Chapter VII of the Charter of the United Nations,
or of the jurisdiction of international or mixed criminal tribunals.