Author: Zhuliyan Zhelezov - Edited by: Giacomo Toffanello
This is the first of two articles that are meant to be a rejoinder to the article published by David Metz with the title ‘Defining Terrorism: One Man’s Terrorist is Another Man’s Freedom Fighter’. They have the purpose to elaborate some notions and perceptions with regard to the phenomenon of terrorism. Like the article written by Davit Metz, these articles will give some suggestions towards defining terrorism. Both these articles are authored by Zhuliyan Zhelezov, a law school graduate now Master student in International Security and Law.
The historical perspective of Terrorism
From historical perspective, as stated by David Metz in his article, terrorism «over the centuries shows that it has undergone several developments». For this reason, it is difficult to put it in a fixed frame and to define it once and for all.
As correctly stated by David Metz, the notion of terrorism appeared during the French Revolution and was firstly employed by the Jacobins. Nonetheless, the phenomenon of terrorism is known to people since centuries. In 66 AD, after the Jewish War, the Romans conquered Jerusalem. According to Josephus, a Jewish general who defected to the Roman side early in the war, there was the idea to liberate Judea and its people from the Romans. They had a four stage plan with short-term and long-term objectives. Their short-term objective was to use what we would recognize today as terrorism to besiege and terrify the authorities and to spread a sense of chaos and instability among the whole society. By doing so, in their vision, in the long-term the people of Jerusalem would have rebelled to the oppressors. They used violence and they had a political objective.
Terrorism, being as old as the world itself, is a phenomenon deeply rooted and well-known to society. It was chosen by many as a political tactic and as such was developed. This is the reason why, from historical perspective, it is so difficult to find a commonly recognized definition. Nevertheless, since the «ideologies» of terrorism are different in different times and circumstances, we should «not focus» on them to take into account the methods instead. Motives and ideologies from a subjective perspective can be different, therefore the main focus has to always be on the political objective achieved by the means (use of violence and threatened use of violence), which never changes. Despite the attempts of the world community for more than 80 years to get to a reasonable consent on the definition of terrorism, success is still not achieved. Evidence for this is also the fact that the United Nations General Assembly has not approved a clear universal legal definition on the subject.
Subjective and Objective elements of terrorism
Despite the lack of universal definition on the matter, several scholars believe that there are «many factors [which] point to the formation of substantial consensus on a definition of terrorism in time of peace». I consider this statement to be misleading for several reasons. First, both the subjective and the objective elements given by Prof. Cassese, towards which a consensus should be achieved, are vague per se. Second, Prof. Cassese makes a differentiation between acts of terrorism in a time of peace and in a time of armed conflict, thereby many questions arise, for example on the freedom fighters that are fighting for liberation during armed conflicts. Another question which emerges is related to the different legal frameworks in which governments can use their powers to fight against terrorists: for example the framework of the Criminal Law or of the Laws of War.
As to the first problem, Prof. Cassese states three elements towards which he believes that there is a consensus «(i) acts normally criminalized under any national penal system, or assistance in the commission of such acts whenever they are performed in time of peace; those acts must be (ii) intended to provoke a state of terror in the population or to coerce a state or an international organization to take some sort of action, and finally (iii) are politically or ideologically motivated, i.e. not based on the pursuit of private ends». These elements are vague per se for several reasons. In regards to the first, different penal systems have different perceptions of what should be a crime and what should not be. Therefore, the same conduct can be considered a crime in one state but not in another state wherein there is a different penal system: this is a result of the fact that penal systems are the symbols of sovereignty in every state.
With regard to the second element, the ‘state of terror’ is the result which can be achieved but not the means. The use of violence can create a ‘state of terror’. The ‘state of terror’ is subjective because everyone perceives a particular event in a different way, possessing a different degree of fear. Therefore, instead of using a subjective term as a ‘state of terror’, we should replace it with the objective term of the ‘use of violence’. Moreover, one can create a state of terror in citizens and still not be a terrorist because he is not using violence. By looking at the wording of this second element («[acts] intended to provoke a state of terror in the population or to coerce a state or an international organization to take some sort of action»), we can deduce that if someone creates a state of terror (even without the use of violence) and without having a political objective (different from political motivation), he might be labelled as a terrorist. Another problem is that the second element omits the situation when a terrorist might coerce the state not only to take an action but also to abstain from taking an action. But even when this was taken into account, the second element is not sufficient because it is too narrowly defined. Political objectives of terrorists encompass the coercion of a state to take or abstain from taking a particular action. For instance, if terrorists want to create an Islamic state this would be a political objective with religious motivation which has nothing to do with the necessity of particular action taken by another state in order to please these terrorists.
The third element is about the motivation. Even if we accept that the motivation should be a separated element in the definition of terrorism and not a part of the second element (closely related to the political objective), we should come up with the conclusion that it is insufficient. Motivation might be not only political or ideological but also religious. And even if it is ideological or religious, the political aspect should exist because a political objective cannot be pursued without political motivation even if the understanding is based on ideology or religion.
This paragraph had the purpose to prove how difficult it would be to come up with a clear definition of terrorism and that there still are problems while trying to define it. In a time of peace or in a time of armed conflict there is no consent about this phenomenon and its definition.
Essential factors that should be considered
There are several factors which are preventing the global community from creating a common definition. I will reveal some of them which I believe are essential. First, terrorism is a «dynamic, mutable phenomenon [which] adapts to changes in the abilities and limitations of terrorist organizations, as well as to changes in their interests and motivations and those of their patrons and benefactors». Therefore, it is evolving and it is elusive to be fixed in a particular framework. Second, terrorism is contextual, and it is «defined in various contexts such as crime, politics, war, propaganda and religion». Third, there are more political than legal or substantive challenges among nations to create a definition. An important problem which is not settled is about the freedom fighters, or with other words whether people who are fighting in armed conflict for self-determination (liberation) should be included in the definition of terrorism (thus labelling them as terrorists) or whether they should be exempted. There are different root causes for resorting to terrorism which have to be taken into account while trying to create a comprehensive definition, and it is not an easy task.
Why do we need a definition?
I try here to prove that we need an accepted and globally recognized definition of terrorism, with both theoretical and practical implications. From a theoretical perspective, terrorism studies cannot be effective as a means to serve particular ends, i.e. the eradication of terrorism, if there is not clear definition of what actually terrorism is. Terrorism studies cannot be separated and defined as a whole new field of study when there is no consensual understanding of what is terrorism.
To analyse the practical claims I will, first, concentrate on the development of terrorism. As I have mentioned, terrorism is evolving and changing throughout the time. In the words of Prof. Schmid, «…terrorism changes as the instruments of violence and communication change and as contexts evolve». This phenomenon is no longer a concern of the isolated state, and so dealing with it like a domestic crime cannot be an effective solution any more. From the point of view of a single state, it is an international concern of the whole international community. Its international origin presupposes international cooperation between states in order to be effectively dealt with, and in order for counter-measures to be created. As an evidence of the seriousness of this issue, the Security Council stated in its Resolution 1368 (2001) that it «regards […] any act of international terrorism, as a threat to international peace and security». In the Resolution 1373 (2001), the Security Council restated this and also recognized «the need for States to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism». From a practical perspective, how can it be possible to cooperate in order to prevent, suppress or eradicate acts of international terrorism when there is no common definition of what is terrorism? How can it be possible to cooperate in this field, when different States have a different understanding of what terrorism is? How can a State be condemned for sponsoring terrorist organization if there is no clear definition of what a terrorist organization is? As Jorg Friedrichs said, «It is both important and reasonable … to ensure a legal definition of international terrorism according to which, in order to qualify as an international terrorist, one has to be the enemy of all civilized nations and not just of one or two particular states». Therefore, the «international public enemy» should not be defined by each state on a case-by-case basis only to serve its own national interests, but a definition should come from the whole community, since «exceptionalism reduces the fear in trust [and] institutes predisposition towards violence». Therefore, the policy of «a permanent state of exception» and by this of justification by exception cannot be acceptable for states which are supposed to be democratic. A globally accepted definition would prevent hegemonic states from using such a monopolistic practice and would confine them, giving more credits to International Human Rights Law. That’s why I fully agree with the statement of David Metz that «defining the word would make it possible to structure and control the use of the term, and thus freeing its use from political and ideological abuse». These and many other practical claims can be made in favour of the necessity of a clear common definition of terrorism.
 Metz, D. Defining Terrorism: One Man’s Terrorist is Another Man’s Freedom Fighter, https://encsblog.wordpress.com/2015/10/14/defining-terrorism/
 Cassese, A., 2006. The Multifaceted Criminal Notion of Terrorism in International Law. In: K. L. S. a. N. D. White, ed. Counter – Terrorism and International Law. Farnham: Ashgate Publishing Limited, p. 48.
 Ibid, page 49.
 State of terror is different than terrorism. State of terror is the result of the use of violence. Terrorism is the use of violence as a means to achieve the political objective. Therefore, the short- term result of the use of violence is the state of terror which is used indirectly in order to achieve the political objective.
 Cassese, A., 2006. The Multifaceted Criminal Notion of Terrorism in International Law. In: K. L. S. a. N. D. White, ed. Counter – Terrorism and International Law. Farnham: Ashgate Publishing Limited, p. 49.
 Ganor, B., 2015. Global Alert. The Rationality of Modern Islamist Terrorism and the Challenge to the Liberal Democratic World. New York: Columbia University Press, p. 1.
 Schmid, A.P., 2004. Frameworks for Conceptualising Terrorism. Terrorism and Political Violence, Vol.16, No.2 (Summer 2004), Taylor and Francis Group, p. 197.
 Schmid, A.P., 2011, The Routledge Handbook of Terrorism Research, Routledge Publishing, Oxon, OX14 4RN, page 2.
 Resolution 1368 (2001) Adopted by the Security Council at its 4370th meeting, on 12 September 2001.
 Resolution 1373 (2001) Adopted by the Security Council at its 4385th meeting, on 28 September 2001.
 Friedrichs, J. Defining the International Public Enemy: The Political Struggle behind the Legal Debate on International Terrorism. In: K. L. S. a. N. D. White, ed. Counter – Terrorism and International Law. Farnham: Ashgate Publishing Limited, p. 91.
 Arguments taken from: Friedrichs, J. Defining the International Public Enemy: The Political Struggle Behind the Legal Debate on International Terrorism. In: K. L. S. a. N. D. White, ed. Counter – Terrorism and International Law. Farnham: Ashgate Publishing Limited, p. 90.
 Martins, B. Drones and the New Normal – Legal and Political Approaches. During the conference on ‘Debating Drones. Politics, Law, and Aesthetics. University of Southern Denmark, Campusvej 55, Odense, Room O96, September 15, 2015, 9:00 – 13:00.
 Friedrichs, J. Defining the International Public Enemy: The Political Struggle behind the Legal Debate on International Terrorism. In: K. L. S. a. N. D. White, ed. Counter – Terrorism and International Law. Farnham: Ashgate Publishing Limited, p. 90.