DEFINING TERRORISM UNDER INTERNATIONAL CRIMINAL LAW: A CRITICAL ANALYSIS

By

FANUEL WILLIAM

Submitted in accordance with the requirements

for the degree of

MASTERS OF LAWS

at the

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: PROFESSOR CHARNELLE VAN DER BIJL

October 2014
 DEDICATION

This dissertation is dedicated to all the victims of Terrorism.

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 II

DECLARATION

I declare that Defining Terrorism Under International Criminal Law: A Critical Analysis is my
own work and that all the sources I have used or quoted have been indicated and
acknowledged by means of complete references.

---------------------------------------

FANUEL WILLIAM

October 2014

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 ABSTRACT

This paper critiques contemporary definitions of terrorism in international instruments,

regional instruments and academic circles. One of the fundamental problems in addressing
the phenomenon of international terrorism is that despite a plethora of academic work and
several years of inter-governmental dialogue there is still no universally accepted definition
of the concept of terrorism. Existing definitions seem to fall either into the academic circle or
the political realm. Contemporary academic definitions are often lengthy, complicated and
often defy common usage. In contrast governmental definitions tend to be ambiguous to
allow the most politically convenient interpretation of events. This dissertation adopts a
pragmatic approach at the ongoing definitional dilemma in the study of international
terrorism. It critically assesses whether there is an accepted definition of terrorism under
international criminal law. Concluding that there is no such consensus and drawing upon both
sides of the definitional spectrum, the author critically argues for a more lucid and functional
definition of terrorism under international criminal law, based on primary characteristics
which distinguish international terrorism from other forms of violence.

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Key Words: Terrorism, Transnational Criminal Law, Crimes against humanity, Customary
International Law, International Criminal Law, Jurisdiction, War Crimes,
Convention.

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 ABBREVIATIONS-ACRONYMS: GLOSSARY

ALR Akron Law Review

BCI&CLR Boston College International & Comparative Law Review

CJIL Chinese Journal of International Law

CWRJIL Case Western Reserve Journal of International Law

DJIL&P Denv Journal of International Law & Policy

EJIL European Journal of International Law

GA General Assembly

HILJ Harvard International Law Journal

HI&CLR Hastings International & Comparative Law Review

HJIL Huston Journal of International Law

Ibid As in the above

ICC International Criminal Court

ICLQ International and Comparative Law Quarterly

JICJ Journal of International Criminal Justice

ICT International Criminal Tribunals

ILC International Law Commission

ICAO International Civil Aviation Organization

IHL International Human Rights Law

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for Yugoslavia

ONULR Ohio Northern University Law Review

PLO Palestine Liberation Organization

SC Security Council

SCJIL Santa Clara Journal of International Law

SCSL Special Court for Sierra Leone

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STL Special Tribunal for Lebanon

UN United Nations

UNSWLJ University of New South Wales Law Journal

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 TABLE OF CONTENTS

Chapter 1 ------------------------------------------------------------------------------------8
1.1 Introduction----------------------------------------------------------------------------8
1.1.1 Historical Evolution of the notion of Terrorism -------------------------9
1.2 The Problem Statement -----------------------------------------------------------11
1.3 Conceptualization and Scope of Dissertation --------------------------------14
1.3.1 The Notion of International Criminal Law --------------------------14
1.3.2 The Notion of International Crimes ----------------------------------14
1.3.3 The Concept of Transnational Criminal Law -----------------------15
1.4 Aim of Research-----------------------------------------------------------------------15
1.5 Method of Research -----------------------------------------------------------------16
1.6 Delineation and Limitation of Study --------------------------------------------17
1.7 Structure of Research ---------------------------------------------------------------17

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 CHAPTER 1

INTRODUCTION

EVOLUTION OF THE NOTION OF TERRORISM

1.1 Introduction

When the subject of terrorism is discussed under International Criminal Law, the issue
inevitably raises the question of how to define the concept.1 The struggle to give legal form
and content to the phenomenon has preoccupied states, international organizations, and
academics for almost a century, since the League of Nations first considered terrorism as a
transnational legal problem.2 Since then lawyers, academics, national legislatures, regional
organizations and international bodies, have come up with a puzzling array of definitions.3 In
February 2011 the United Nations Special Tribunal for Lebanon (STL) identified a customary
international crime of transnational terrorism.4 The Appeals Chamber of the UN STL identified
a customary international crime5 of transnational terrorism in peacetime, for the purposes of
interpreting the scope of domestic terrorism offences under Lebanese Law. 6

1
See among others Scharf MP “Defining Terrorism as the Peace Time Equivalent of War Crimes: Problems and
Prospects” 2004 (36) Case Western Reserve Journal of International Law 359 -374 at 359 who observed that the
problem of defining terrorism has vexed the international community for decades. See also the definition
proposed by Schmid in 1988 including sixteen elements in total in Schmid A “Terrorism-The Definitional
Problem” 2004 (36) Case Western Reserve Journal of International Law 375-419 at 382. See also Traves who
regards the question of defining international terrorism as a stumbling block in international law in Treves T
“The Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation” in
Ronzitti N (ed) Maritime Terrorism and International Law (Nijhoff Dordrecht 1990) at 71.
2
Saul B “The Legal Response of the League of Nations to Terrorism” 2006 (4) Journal of International Criminal
Justice 78-103 at 78.
3
One study in 1988 identified a total of 109 different definitions of terrorism, see Schmid (2004) ibid note 1 at
382.
4
The elements of the crime were identified as follows: (a) the perpetration of a criminal act (such as murder,
kidnapping, hostage-taking, arson and so on), or threatening such an act; (b) the intent to spread fear among
the population (which would generally entail the creation of public danger) or directly or indirectly coerce a
national or international authority to take some action, or to refrain from taking it; (c) when the act involves a
transnational element. See United Nations Special Tribunal for Lebanon (Appeals Chamber) Interlocutory
Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL – 11 -
01/I, 16 February 2011 at 85.
5
In terms of Article 38 of the Statute of the International Court of Justice, customary international law is
evidenced by “a general practice accepted as law.” Custom is therefore comprised of two elements: (a) general
patterns of practice or behavior (what people do), and (b) general acceptance as law (what people think) or
general patterns of legal expectation or opinio juris (i.e., expectations generally shared that something is legally
required or appropriate). Both elements must exist or coincide for custom to become law. See North Sea
Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands)
1969 ICJ, 3, 44. See also Paust J et al International Criminal Law: Cases and Materials (2007) at 6.
6
Interlocutory Decision Ibid note 4 at para 85.

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This analysis of customary law is, however, highly contentious and has been prodigiously
condemned by several commentators.7 The STL’s decision is largely considered unpersuasive,
by recognizing a definition of terrorism in customary international law, it sidelined almost a
century of legal deadlocks in (ongoing) treaty negotiations and debates in the bodies of UN.8
Until then there was a widespread belief that there existed neither an agreed definition of
terrorism nor an international crime of terrorism. Thus, the question about the definition of
terrorism is shrouded in a mist of legal ambiguity. Very few concepts in contemporary political
discourse have proved as elusive to define as terrorism.9 The term is commonly and widely
used in everyday parlance with varying political and criminal connotations. There are a
number of issues that can be grappled with when one attempts to define terrorism namely,
the distinction between terrorists and revolutionaries, or between political violence and
terrorism, and/or between terrorism and organized crime. Furthermore, what is the
relationship between terrorism and International Criminal Law? More precisely, should
terrorism join genocide, crimes against humanity, war crimes, and aggression as crimes within
the jurisdiction of the International Criminal Court (ICC)?

1.1.1 Historical evolution of the notion of terrorism

The term terrorism has over the years been erratically deployed to describe several kinds of
evils. Throughout history, terrorism has been deeply intertwined into the fabric of social and
political conflict.10 Theorists trace the origin of the word “terror” from Latin and is said to have
first been used in French to describe the Jacobin Reign of Terror that followed the French

7
See among others criticisms by Saul B “Legislating from A Radical Hague: The UN Special Tribunal for Lebanon
Invents an International Crime of Transnational Terrorism” 2011 (24) Leiden Journal of International Law 677 -
694; Ambros K “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 - 675. Gillett M and Schuster M “Fast-
track Justice: The Special Tribunal for Lebanon Defines Terrorism” 2011 (9) Journal of International Criminal
Justice 1 - 32; Kirsch S and Oehmichen A “Judges Gone Astray: The Fabrication of Terrorism as an International
Crime by the Special Tribunal for Lebanon” 2011 (1) Durham Law Review 1 – 20; Saul B “The STL Interlocutory
Decision on the Definition of Terrorism – Judicial Ingenuity or Radicalism? 2011 (24) Leiden Journal of
International Law 651- 654.
8
Saul B “Civilizing the Exception: Universally Defining Terrorism” in Masferrer (ed) Post 9/11 and the State of
Permanent Legal Emergency (2012) at 80.
9
Many definitions are currently in circulation in both the literature and international legal documents, yet one
general definition of terrorism does not exist. For example, see the arguments by Duffy H The ‘War on Terror’
and the Framework of International Law (2005) at 32-37, Young R “Defining Terrorism: 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 23-105 at 24, and Schmid A “Terrorism – The Definitional
Problem” 2004 CWRJIL at 376 on this view.
10
Martin G Understanding Terrorism: Challenges, Perspectives and Issues (2006) at 9

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Revolution in 1789.11 The French legislature led by Maximillien Robespierre, concerned about
the aristocratic threat to the revolutionary government, ordered the public execution of
thousands of people (“regime de la terreur”) to educate the citizenry of the necessity of
virtue.12 Robespierre’s supporters who turned against him, having supported the use of terror
in the first instance, accused him of using terrorism in an attempt to identify the illegitimate
use of terror.13

This conception of terrorism as an instrument of state control persisted until the end of the
Second World War.14 Gradually however, the term terrorism also become synonymous with
abuse of office and power and terrorists were viewed as people who tried to further their
views or aims by a system of coercive intimidation. Thus, although initially, terrorism was
understood to apply only to the actions by states, the notion was later expanded to describe
a variety of acts of violence by non-State actors.15

After the Second World War, terrorism become mired in the ideological cleavages and proxy
violence of the Cold War. Whereas developed states focused on non-State terrorism,
developing and socialist states placed emphasis on state terrorism by imperial powers, and
regarded anti-colonial violence either as an exception to terrorism or as justified by
colonialism.16 By the late 20th century new forms of fundamentalist religious terrorism
emerged, decoupled from particular territorial claims, with specific demands like the release
of prisoners, or restraint in tactics. After 11 September 2001, there has been a remarkable
tendency to conflate desperate terrorist threats into a homogeneous global pandemic,
erasing the specificity of the concrete conditions giving rise to different situations of violence.

11
Saul Defining Terrorism in International Law (2006) at 1. See also Lutz JM and Lutz BJ Global Terrorism (2004)
at 10.
12
Schmid AP “The Problem of Defining Terrorism” in Crenshaw M and Pimlott J (eds) Encyclopedia of World
Terrorism (1997) at 12.
13
Schmid Ibid at 13.
14
Saul ibid note 11 at 1.
15
For instance, in the late 19th century, revolutionaries and anarchists in Tsarist Russia were commonly regarded
as terrorists see Saul Ibid at 2. The Bolshevik seizure of power is also often described as revolutionary terror,
while communists are said to have embraced terrorism as a means of class struggle see Marks K and Engles F
Collected Works Volume 8 (1977) at 161. In the Balkan, ethnic separatists assassinated Archduke Franz Ferdinand
in 1914, precipitating the First World War, and King Alexander of Yugoslavia in 1934, leading to a diplomatic
crisis in the League of Nations, while in the 1940s, Jewish extremist’s hastened Israel independence by
assassinating Lord Moyne in Cairo, and the UN mediator Count Bernadotte, see Saul Ibid at 2.
16
Saul Ibid at 2. See also Greenwood C “Terrorism and Humanitarian Law – The Debate over Additional Protocol
I” 1989 (19) Israel Yearbook on Human Rights 187-207.

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1.2 The Problem Statement

Despite decades of efforts, with even greater focus after September 11, 2001 attempts to
agree on a generally accepted legal definition of terrorism have not been very successful.17
Part of the problem is that terrorism tends to be politically motivated resulting in the
circumstance that what some regard as acts of terrorism may be regarded by others as acts
of resistance, hence the cliché, one man’s terrorist is another man’s freedom fighter. Today,
the definition of what constitutes terrorism varies from society to society, from government
to government and, to a lesser extent, from academic author to academic author.18

The quite insurmountable problems that the search for a legal definition of terrorism has
always implied are broadly highlighted by many scholars over the years.19 In United States v
Yousef and Others,20 the Court, following in the footsteps of the ruling made in Tel-Oren,21
held that “terrorism is a term as loosely deployed as it is powerfully charged.” It went on to
say that “there continues to be strenuous disagreement between states about what actions
do or do not constitute terrorism”. The court drew from such lack of agreement the
consequence that, among other things, terrorism “does not provide a basis for universal
jurisdiction.”22 This view is shared by many scholars.23 The search for an accepted definition
of terrorism has also been described by some as “resembling the quest for the Holy Grail.”24

17
States have not been able to agree on the scope of application of the definition of terrorism and whether it
should apply to the actions of both national liberation movements and states, See Sambei, Du Plessis and Polaine
Counter Terrorism Law and Practice (2009) at 6
18
Acharya UD “War on Terror or Terror Wars? The problem in Defining Terrorism” 2009 (37) Denv Journal of
International Law and Policy 653-679 at 655.
19
See among others Graham K “The Security Council and Counterterrorism: Global and Regional approaches to
an Elusive public good” 2005 (17) Terror Political Violence 37 – 65 at 55 who claims that defining terrorism and
identifying a terrorist is perhaps the most complex and highly charged issue of modern times. See also the UN
Security Council which regards terrorism as “one of the most serious threats to international peace and security
in the 21st century” in Security Council Resolution 1377, UN SCOR, 4413thmtg, Annex, at 2, UN Doc. S/RES/1377
(2001). See also Orlova and Moore who claim that terrorism constitutes one of the most serious challenges
currently facing the international community in Orlova AV and Moore JW “Umbrellas or Building Blocks?
Defining International Terrorism and Transnational Organized Crime in International Law” 2005 (27) Huston
Journal of International Law 268 -310 at 268.
20
327 F.3d 56 (2003) at 84.
21
233 US App DC 384, 726 F.2d 744 (DC Cir 1984) at 795, 806-7, 823.
22
Ibid at 86
23
See among others, Mushkat R “Technical Impediments on the Way to a Universal Definition of International
Terrorism” 1980 (20) Indiana Journal of International Law 448 – 71; Murphy JF “Defining International Terrorism:
A Way Out of the Quagmire” 1989 (19) Israel Yearbook of International Law 13 – 73; Skubiszewski K “Definition
of Terrorism” 1989 (19) Israel Yearbook of International Law 39 -53; Higgins “The General International Law of
Terrorism” in Higgins R and Flory M (eds) Terrorism and International Law (1997) 14 -19.
24
Levitt G “Is Terrorism Worth Defining?” 1986 (13) Ohio Northern University Law Review 91-116 at 97.

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Baxter once even questioned the utility of a legal definition stating; “we have cause to regret
that a legal concept of terrorism was ever inflicted upon us. The term is imprecise; it is
ambiguous; and above all, it serves no operative legal purpose.”25

Thus, transnational terrorism has long presented special problems for public international
law, the traditional view was that there is no international law of terrorism as such. Instead
terrorism was regarded not as a discrete topic of international law with its own substantive
legal norms, but as a pernicious contemporary phenomenon which presents complicated
legal problems.26 Thus, it has been argued, since states have never agreed upon a definition
of terrorism, it would be impossible to criminalize it as such. It would be possible to consider
as criminal only single and specific instances of terrorism specifically prohibited by anti-
terrorism treaties.27 In contrast, the late Cassese has boldly claimed that there is now a
customary international crime of terrorism,28 even if the scope of exceptions remains
contentious.29 He has aptly argued that over time, through a range of international treaty
provisions, a definition of terrorism does now exist and the phenomenon also amounts to a
customary international law crime.30 The STL (over which Cassese presided) also asserted in
2011 that international law had developed to the point that there was a customary
international crime of terrorism.31

From an analysis of the above views, it appears that there is a fundamental disagreement
about the conceptual and normative status of terrorism in international law. As Higgins once
presciently observed, “whether one regards terrorism…..as new international law, or as the

25
Baxter R “A Skeptical Look at the Concept of Terrorism” 1974 (7) Akron Law Review 378-392 at 380. See also
Rosalyn Higgins who shares the same view that terrorism had not become a distinct subject of international law
with substantive rules of its own, to her the use of the term terrorism was merely “a convenient way of alluding
to a variety of problems with some common elements, and a method of indicating community condemnation
for the conduct concerned” Higgins “The General International Law of Terrorism” in Higgins & Maurice Ibid note
23 at 28.
26
See among others, Higgins Ibid note 28 at 13-14; Baxter Ibid note 28 at 380; Guillaume G “Terrorism and
International Law” 2004 (53) International and Comparative Law Quarterly at 537.
27
Cassese “Terrorism as an International Crime” in Bianchi A Enforcing International Law Norms Against
Terrorism (2004) 213-225 at 213-4.
28
Cassese International Criminal Law (2003) at 120-131.
29
Cassese Ibid at 121.
30
Cassese Ibid at 120. See also Cassese 2006 JICJ at 933 and Young R 2006 BCI&CLR at 32, who also argue that
by abstracting from the common elements and themes present in the UN General Assembly and Security Council
Resolutions concerning terrorism, and the multilateral anti-terrorism conventions, treaties and protocols, one
can discern a core international law definition of terrorism.
31
See STL Interlocutory Decision Ibid note 4 at 86.

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application of a constantly developing international law to new problems – is at heart a
jurisprudential question.”32 This jurisprudential disagreement extends not only to the
threshold question of defining terrorism and its status in International Criminal Law, but also
to the impact of the phenomenon of terrorism on the development of norms across
international law as a whole.33 In light of the shifting and often contested meaning of
terrorism over time, it is fallacious and dangerous to assert pragmatically that terrorism is
recognizable without difficulty.34 Disagreements about terrorism run much deeper than just
the technical disputes about formulating a definition. They reflect doctrinal, ideological, and
jurisprudential differences about who is entitled to exercise violence, against whom, and for
what purposes.35 The term terrorism lacks the precision, objectivity, and certainty demanded
by legal discourse. Criminal law aims at avoiding emotive terms so as to prevent prejudice to
an accused, and shuns ambiguous or subjective terms as incompatible with principles of non-
retroactivity and specificity. If criminal law is to use such concepts, definitions are an essential
component. Thus, a legal and acceptable definition of terrorism could plausibly retrieve the
phenomenon of terrorism from the ideological and political confusion associated with the
term.

Furthermore, terrorism affects several states which are all compelled to cooperate to repress
it. How can states then work together for the arrest, detention or extradition of terrorists if
they do not agree on what is meant by the term? How can countries fully cooperate against
terrorism without knowing the scope of the phenomenon against which they would be
required to impose legal sanctions on? Notwithstanding the great concern about terrorism
by states to find an appropriate solution, political and ideological reasons have made it

32
Higgins Ibid note 28 at 13.
33
Saul B “The emerging International Law of Terrorism” in Saul B (ed) Documents in International Law: Terrorism
(2012) at Ixix.
34
Freestone D “Legal Responses to Terrorism: Towards European Cooperation” in Lodge J (ed) Terrorism: A
Challenge to the State (1981) at 95.
35
Saul Defining Terrorism in International Law (2006) at 4. Terrorism has also long presented special problems
for public international law, the traditional view of leading international lawyers was that there is no
international law of terrorism as such. Instead terrorism was regarded not as a discrete topic of international
law with its own substantive legal norms, but as a pernicious contemporary phenomenon which presents
complicated legal problems, See Higgins “The general International Law of Terrorism” in Higgins and Flory (eds)
Terrorism and International Law (1997) at 13-14, see also Bexter “A Skeptical Look at the Concept of Terrorism”
1974 ALR at 380; Guillaume G “Terrorism and International Law” 2004 (53) International and Comparative Law
Quarterly at 537

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particularly challenging to reach an agreement on a generally acceptable definition of
terrorism.36

1.3 Conceptualization and scope of the dissertation

1.3.1 The notion of International Criminal Law (ICL)

ICL is a complex legal discipline that consists of several components bound by their functional
relationship in the pursuit of its value-oriented goals.37 It can be described as a body of
international rules designed to proscribe certain categories of conduct38 and to make those
persons who engage in such conduct criminally liable. It authorize states, or impose upon
them the obligation, to prosecute and punish such criminal conducts. ICL also regulates
international proceedings before international courts and tribunals, for prosecuting and
trying persons accused of such crimes.39 The present study investigates the relationship
between ICL and the concept of terrorism.

1.3.2 The notion of International Crimes

International Crimes are breaches of international rules entailing the personal criminal
liability of the individuals concerned as opposed to the responsibility of the state of which the
individuals may act as organs. They are crimes that are deemed by the international
community to transcend the domestic criminal law of any state, and that call for suppression
and enforcement either directly under international law or by permissive use of the widest
bases of state jurisdiction. They are acts which strike at the most central concerns and
interests of the entire world community. They result from violations of international
customary rules as well as treaty provisions. Such rules are intended to protect values
considered important by the whole international community and consequently binding all

36
Terrorism was not included within the jurisdiction of the ICC because it lacked a clear definition under
international law. The League of Arab states opposed its inclusion in the ICC Statute on the ground that the
international community was not able to define terrorism in such a way as to be generally acceptable, see Currie
International and Transnational Criminal Law (2010) at 296; Kittichaisaree International Criminal Law (2001) at
227
37
The goals include the prevention and suppression of international criminality, enhancement of accountability
and reduction of impunity, and the establishment of international criminal justice. See Bassiouni “The Discipline
of International Criminal Law” in Bassiouni (ed) International Criminal Law (2008) at 3.
38
Conduct such as War Crimes, Crimes against Humanity, Genocide, and Aggression, however, as Bassiouni
noted, a doctrinal framework reflecting the polyvalent nature of ICL is difficult to formulate because the
disciplines from which its components originate are inherently different. See Bassiouni Ibid note 37 at 9.
39
See Cassese International Criminal Law (2008) at 3.

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states and individuals. Thus, there exist a universal interest in repressing these crimes. Subject
to certain conditions, under international law their alleged authors may in principle be
prosecuted and punished by any state, regardless of any territorial or nationality link with the
perpetrator or the victim.40 International Crimes include war crimes, crimes against humanity,
genocide, and aggression. This dissertation investigates whether terrorism can be included in
this category of crimes.

1.3.3 The concept of Transnational Criminal Law (TCL)

TCL covers crimes that are not properly considered International Crimes. Boister proposes
using the concept of TCL as a descriptive analytical phrase separate from ICL. In essence it
covers “the indirect suppression by international law through domestic penal law of criminal
activities that have actual or potential trans-boundary effects”41and focus specifically on
suppression conventions that have developed in order to coordinate inter-state efforts to
combat certain types of crime. There is no direct liability under international law for an
individual convicted of these acts, nor may any state utilize the principle of universal
jurisdiction in a permissive manner to prosecute any offender whom it can apprehend.
However, they are regarded as crimes that affect the interests of several states. Generally
they have a trans-boundary element where any or all of the acts, perpetrators, proceeds of
crime, harm or other effects touch on the jurisdiction of more than one state. Thus, they are
not crimes under international law, though there is international law dealing with these
crimes. The aim is to coordinate the efforts of states in prosecuting such crimes, but the
prosecutions are done under each state’s domestic criminal laws. The category includes
crimes such as drug trafficking, corruption, human trafficking etc. This dissertation
investigates whether terrorism can be categorized as a transnational crime as opposed to an
international crime.

1.4 Aim of the Research

The aim of this dissertation is to critically analyze the definition of terrorism as a legal concept
under international criminal law. The research critically argue for a more lucid and functional
definition of terrorism under international criminal law, one that is based on primary

40
Cassese Ibid at 11-13.
41
Boister N “Transnational Criminal Law?” 2003 (14) European Journal of International Law 953 at 953.

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characteristics which distinguish terrorism from other forms of violence. The purpose a more
utilitarian one, is to critique and analyze some of the practical difficulties encountered in
efforts to asses various material sources and arrive at a comprehensive legal definition of
terrorism, and more generally, to underline an alternative approach to the definitional
debate. Accordingly, the research proposes a definition of terrorism as the perpetration of
unlawful, serious, violent, criminal acts intended to cause death or serious bodily injury, or to
endanger life, including by acts against property; which are committed for a political, religious
or ethnic purpose; and are intended to: seriously intimidate a person, group, or the general
public, or to unduly compel a government or an international organization to do or to abstain
from doing any act. The cumulative elements of this definition will ensure that terrorist acts
are reserved for only the most serious kinds of unjustifiable political violence.

One of the jurisprudential debate concerning terrorism revolves around the question of how
material sources of law, such as the resolutions of UN bodies, are to be evaluated and
weighted as evidence of custom formation, and how such sources are measured together
with other forms of practice. This dissertation reflects a modest empirical effort to critically
analyze international practice on the subject, and to situate it within the historical context of
ICL. The author argues that by critically looking at the definitions proposed in different
international legal sources addressing terrorism, it may be possible to gain a better sense
whether customary norms against terrorism are maturing or whether there still remain too
much political aspiration and normative inconsistence to support the existence of a definition
of terrorism.

1.5 Method of Research

The method employed to conduct this study adequately is essentially analytical. The research
involves a literature study of international treaties, UN resolutions, regional treaties, and
other official documents, textbooks, journal articles and available case law. A primarily critical
analysis of available definitions of terrorism is undertaken in order to identify the short
comings of these current definitions.

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1.6 Delineation and limitation of study

The problem of terrorism touches many areas of international law, the study focuses on a
critical analysis of definitions of terrorism under ICL, drawing on other branches of
international law where relevant, and mindful that criminal law is only one facet of the overall
response to terrorism. The research acknowledges that by its very nature, terrorism cannot
absolutely be dealt within the framework of an international order defined by the nation
state; rather, it requires a multilateral effort that, inter alia, relies on improved international
collaboration in criminal matters and improved criminal justice responses, both of which
should uphold human rights and the rule of law.42 Therefore, an in-depth consideration of
various national definitions of terrorism is beyond the scope of this study.

1.7 Structure of Research

The present study is divided into five chapters. Since Chapter 1 has been discussed, Chapter
2 investigates on what is the law with regard to terrorism. It critically examines international
and regional developments towards a definition of terrorism in treaty law. It traces the areas
of agreement and disagreement in the definitions of terrorism as found in international
instruments and analyzes whether such definitions meet the standards of precision required
for criminal prohibitions under ICL.

Chapter 3 investigates on what the law could be with regard to terrorism. It serves to the
categorization of terrorism under ICL. It provides an assessment of what are crimes against
humanity and war crimes and investigates whether terrorism can be categorized as a sub-
category of any of these International Crimes. Chapter 4 investigates on what the law should
be with regard to terrorism. It investigates whether terrorism should be categorized under
TCL or as an International Crime. Thereafter, in Chapter 5 the paper draws a conclusion,
outlining recommendations that may assist in future attempts to define terrorism or in
recasting current legal definitions.

42
Walker C Terrorism and the Law (2011) at 21.

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