by Atty. Soliman M. Santos, Jr.*
15 June 2020
Contrary to general impression, there is an emerging internationally acceptable definition of terrorism. This much can be gleaned from the Report of the UN High Level Panel on Threats, Challenges and Change on 2 December 2004, subsequently endorsed by the UN Secretary-General Kofi Annan in, among others, his keynote address to the International Summit on Democracy, Terrorism and Security on 10 March 2005 in Madrid on the eve of the first anniversary of the “3/11” terrorist attacks on passenger trains there. Those working for or against anti-terrorism legislation in the Philippines should take these new developments into account.
In paragraph 164 of the said UN High Level Panel Report, it stated that the definition of terrorism should include the following elements:
- Recognition, in the preamble, that State use of force against civilians is regulated by the Geneva Conventions and other instruments, and, if of sufficient scale, constitutes a war crime by the persons concerned or a crime against humanity;
- Restatement that acts under the 12 preceding anti-terrorism conventions are terrorism, and a declaration that they are a crime under international law; and restatement that terrorism in time of armed conflict is prohibited by the Geneva Conventions and Protocols;
- Reference to the definitions contained in the 1999 International Convention for the Suppression of the Financing of Terrorism and Security Council resolution 1566 (2004);
- Description of terrorism as “any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, 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.”
That last paragraph actually provides what could become the internationally accepted short definition of terrorism. In fact, UN Secretary-General Kofi Annan made use of or paraphrased it in his above-said keynote address in this way: “The [UN High Level] Panel calls for a definition of terrorism which would make it clear that any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians or non-combatants, with the purpose of intimidating a population or compelling a Government or an international organization to do or abstain from doing any act. I believe this proposal has clear moral force, and I strongly urge world leaders to unite behind it, with a view to adopting the comprehensive convention [on terrorism] as soon as possible.” (boldface supplied)
Immediately preceding this, Annan had said: “For too long the moral authority of the UN in confronting terrorism has been weakened by the spectacle of protracted negotiations. But the report of the High-Level Panel offers us a way to end these arguments. We do not need to argue whether States can be guilty of terrorism, because deliberate use of force by States against civilians is already clearly prohibited under international law. As for the right to resist occupation, it must be understood in its true meaning. It cannot include the right to deliberately kill or maim civilians.”
The UN High Level Panel Report’s above-quoted proposed elements in the definition of terrorism makes reference to Security Council resolution 1566 (2004). This resolution which was adopted on 8 October 2004 stated in its paragraph 3 that it: “Recalls that criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offenses within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature…”
From the above formulations towards an international legal definition of terrorism, it would seem that terrorism during armed conflict is basically covered by the Geneva Conventions and Protocols, the core of international humanitarian law (IHL) i.e. the international law on armed conflict. What remains to be covered is terrorism during peacetime. This is where the other international legal terms of reference mentioned by the UN High Level Panel Report come in – like the 12 international conventions on various aspects of terrorism and Security Council resolution 1566 (2004).
None of the 12 conventions, however, has a generally accepted single inclusive definition of terrorism. Former International Law Commission member Raul I. Goco of the Philippines has pointed out that each of these conventions describes only the particular or specific acts or subject-matter covered by it. These are aircraft hijacking and sabotage, crimes against internationally protected persons including diplomatic agents, hostage-taking, physical protection of nuclear material, airport violence, acts against maritime navigation safety, acts against the safety of fixed platforms on the continental shelf, terrorist bombings, and terrorist financing.
It bears noting that the terminology “global war on terror” has been rightly criticized, for example by the Madrid Summit on Democracy, Terrorism and Security, being not only misleading but also dangerous. That terminology plays into the hands of the perpetrators of terrorism, confuses the terminology applied in IHL and jeopardizes the applicability of human rights (HR) standards. To apply the “war on terror” terminology implies the possibility that HR standards that should be applied in these cases may be derogated or indefinitely suspended because of “war.”
This brings us to the question of framework in handling, including countering, terrorism. Aside from what we just said about the inappropriateness of “war” terminology and the applicability of IHL only to situations of war or armed conflict, IHL alone cannot be the sole term of reference or framework in defining and handling terrorism. IHL is a framework for armed conflict, not just for terrorism, and less so in peacetime. There is a distinct international legal framework on terrorism – starting with the 12 conventions on its various aspects and moving towards a comprehensive convention with an internationally accepted legal definition. IHL and the emerging international law on terrorism represent different frameworks dealing with different phenomena which have come to the fore of global attention at different eras. That the emerging international law on terrorism makes use of IHL particularly for terrorism during armed conflict does not change those differences.
Indeed, in the 1977 Protocol I Relating to the Protection of Victims of International Armed Conflicts, Article 51, paragraph 2, and in the 1977 Protocol II Relating to the Protection of Victims of Non-International Armed Conflicts, Article 13, paragraph 2, one finds an early legal concept of terrorism: “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” But the context is armed conflict or wartime, not peacetime. Thus, the early idea to consider an act of terrorism as “peacetime equivalent of a war crime.” But not all war crimes are committed against civilians, many are also committed against combatants. So, the analogy or transposition might not be appropriate or satisfactory.
So, some attention has been directed to crimes against humanity which may be committed not only during armed conflict (like war crimes) but also during peacetime. But the latest international legal definition of this, in the1998 Rome Statute of the International Criminal Court, Article 7, requires a threshold, thus: “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” What if the acts of terrorism during peacetime fall below this threshold, i.e. are “not part of a widespread or systematic attack directed against any civilian population”? What international (and national) law would then cover them?
It is not only IHL which can and must be among the international legal terms of reference regarding terrorism. Aside from specific international conventions on terrorism, UN Secretary-General Kofi Annan cites two others in his Madrid Summit keynote address: “By the same token, the UN must continue to insist that, in the fight against terrorism, we cannot compromise on the core values I have listed. In particular, human rights and the rule of law must always be respected. As I see it, terrorism is in itself a direct attack on human rights and the rule of law. If we sacrifice them in our response, we are handing a victory to the terrorists.” But in the first place terrorism violates the basic right to life and the fundamental freedom from fear. Law enforcement is a valid counter-measure against terrorism but the premise of law enforcement is the rule of law.
The Berlin Declaration of the International Commission of Jurists (ICJ) adopted 28 August 2004 is one on “Upholding Human Rights and the Rule of Law in Combating Terrorism.” This Berlin Declaration states, among others, that
In adopting measures aimed at suppressing acts of terrorism, states must adhere strictly to the rule of law, including the core principles of criminal and international law [e.g. legality, necessity, proportionality, and non-discrimination] and the specific standards and obligations of international human rights law, refugee law and, where applicable, humanitarian law. These principles, standards and obligations define the boundaries of permissible and legitimate state action against terrorism…
… There is no conflict between the duty of states to protect the rights of persons threatened by terrorism and their responsibility to ensure that protecting security does not undermine other rights,.. Both contemporary human rights and humanitarian law allow states a reasonably wide margin of flexibility to combat terrorism without contravening human rights and humanitarian legal obligations…
International and national efforts aimed at the realization of civil, cultural, economic, political and social rights of all persons without discrimination, and addressing political, economic and social exclusion, are themselves essential tools in preventing and eradicating terrorism. (italics supplied)
One might describe this as a human rights approach or a rights-based approach to terrorism. UN Secretary-General Kofi Annan even says, “Upholding human rights is not merely compatible with a successful counter-terrorism strategy. It is an essential element of it.” The Berlin Declaration has reiterated the relevant guiding principles and the ICJ has been monitoring and providing legal advice on counter-terrorism measures with a view to ensuring compatibility with the rule of law and human rights and, when necessary, challenging excessive anti-terrorism legislation and promoting policy options fully consistent with international human rights law.
The question should no longer be whether to have anti-terrorism legislation but instead whether such legislation upholds human rights and the rule of law, starting with a good, well-informed definition of terrorism (and the prohibition of specific acts of terrorism should follow from this). As it is, the Philippines has ratified most, if not all, of the 12 international anti-terrorism conventions and therefore already has an international obligation to pass implementing domestic legislation. Terrorism must be given its just due in terms of a specific legal framework to address it, in the same way that common crimes like murder, political offenses like rebellion, war crimes, crimes against humanity, and genocide have their respective specific legal frameworks. Murder committed in furtherance of rebellion is absorbed by the latter. But rebellion does not absorb war crimes, crimes against humanity, genocide and terrorism even if committed in furtherance of rebellion.
In the 112th Assembly of the Inter-Parliamentary Union held in Manila, it passed on 5 April 2005 a Resolution on “The Role of Parliaments in the Establishment and Functioning of Mechanisms to Provide for the Judgment and Sentencing of War Crimes, Crimes Against Humanity, Genocide and Terrorism, with a View to Avoiding Impunity.” Note how terrorism is distinct from and not subsumed under or absorbed by war crimes, crimes against humanity and genocide. In the Philippine legislature, the latter three international crimes are covered by an existing bill for a “Philippine Statute on Crimes Against International Humanitarian Law and Other Serious International Crimes,” while the international crime of terrorism is sought to be addressed in several anti-terrorism bills. None of the latter appear to be informed of the emerging international legal definition and framework regarding terrorism and its proper handling. Bad for human rights, bad for human security.
SOLIMAN M. SANTOS, JR. is a Bicolano human rights lawyer, legislative consultant and legal scholar; author of The Moro Islamic Challenge (UP Press, 2001), Peace Advocate (DLSU Press, 2002), Peace Zones in the Philippines (Gaston Z. Ortigas Peace Institute, 2005), and Dynamics and Directions of the GRP-MILF Peace Negotiations (Alternate Forum for Research in Mindanao, 2005).
This piece was also published in Eurasia Review.
Photo Credit: Image ID : 102570361Media Type : Vector Copyright : Anatolii Korniakov. Source: Vector graphics.