By Dr. Asif Khan and Pervaiz Khan; Bahria University, Islamabad.
Suggested Citation: Khan, Asif and Khan, Pervaiz, Defining Terrorism in National Laws: An Overview of the Definition of Terrorism in the Anti-Terrorism Act of Pakistan (1997) (September 24, 2019). Journal of Law and Society Vol. XLVII, No. 69, 2016. Available at SSRN: https://ssrn.com/abstract=3458805
The definition of terrorism has always remained a relative issue. The definition is adopted in perspective of dealing with the issue in a relative manner. The paper examines how differently the term has been defined by various states in their statutes. This highlights the problem in the definition of terrorism especially in context of Anti-Terrorism Act 1997 in Pakistan. The analysis of various definitions highlights the common elements adopted in order to cope with a special issue of terrorism. The definitions adopted in the anti-terrorism act inPakistan is then analysed through the broader scope of subjective and objective elements within the definition. The study is focused upon the theoretical analysis of the relative framework adopted in Pakistan through the anti-terrorism act in Pakistan. The study is based upon content analysis whereby different definitions are examined. The common elements within the definitions are examined relatively and the definition adopted within the ATA in Pakistan is examined.
Keywords: Anti-Terrorism Act 1997, Anti-Terrorism, Defining Terrorism.
The phenomenon of terrorism dates back to the French revolution, whereby the conduct of the ‘Jacobins’ to suppress the aristocratic threat led by Maxim lien Robespierre was called as “terror” by his opposition.(1) Thereby, the term terrorism at first was directed towards state instigated terror on its subjects. The contemporary meaning of the word terrorism has evolved with the international crimes, especially against the states. The cases of plane hijacking in 1960s made terrorism a subject of debate for the United Nations. The strengthening of the process of ‘globalisation’ with technological innovations has, inter alia, enhanced transnational activities. The increasing transnational activities also give impetus to transnational crime. The events of 9/11 (September 11, 2001) in the midst of these transnational activities have given a new dimension to international terrorist activities. The debate on terrorism and its definition has become an international issue.
The view of a state on a specific issue of global importance rest upon the way it affects its national interest. With regard to the acts of terrorism the approach of states would apparently differ especially in cases where the acts involved are transnational. The course for achieving a consensus to adopt a definition of terrorism acceptable internationally has thus failed. The UN Global Counter Terrorism Strategy has also failed to provide a workable definition.(2) This is the reason why thirteen different international conventions related to terrorism has been adopted since 1970s. All of these conventions deal with different forms of terrorism and are precise in nature. Negotiations on a comprehensive convention on international terrorism under a UN ad hoc committee established by resolution 51/210 are also facing a deadlock. The failure of states to agree upon a definition has also resulted in the omission of terrorism as an ‘international crime’ within the jurisdiction of international criminal court (ICC).(3) The disagreement on this issue is primarily due to the diverging views regarding terrorism, as opposed to the exercise of the right to self-determination, enshrined in the UN charter.
The acts which are termed as terrorist acts are all criminal activities, mostly defined under national and international laws. Some would argue that the re-specification of some of those criminal acts by creating new counter-terrorism laws is not a sane policy.(4) Barzilai fears the misuse of separate terrorism related laws and argues that separate treatment of terrorism-related crimes will result in municipal authorities employing tougher, more rigorous tools to gain illegitimate political advantages.(5) On the other hand the acts of terrorism supposedly pose a higher level of threat to the society and public order which may demand a distinction between simple criminal acts and an element of terrorism attached with it.(6) In some cases the criminal acts also cannot be prosecuted without defining them as terrorist acts, for instance, the financial support of organisations involved in international criminal activities.(7) With the increasing extent of globalisation, the prosecution of distinct terrorist offences with common objectives can be enhanced by familiar laws for supporting mutual legal assistance.(8) The laws regulating terrorist acts shall have the object of reducing its misuse by distinguishing them from normal criminal activities. This classification shall then be made in parlance with the needs of combating global terrorist activities. This distinction between normal criminal acts and the acts amounting to terrorism commence from the way ‘terrorism’ is defined.
The Definition of Terrorism in National Laws
Walter insists that the most important elements for defining a term as vague as terrorism would be its objective and subjective elements.(9) The objective element is the scale of a crime, whereas the subjective element is the motivation or intention on the part of perpetrators. In cases of terrorism the objective element of ‘serious violence against persons’ is widely accepted.(10)The definitions adopted by different states also accept the criminal activity (leading to violence) as a major element.11Some of the states also include damage or threat of damage to government installations and public utilities in addition to violence against persons.(12) This development of the definition might be prone to a broader interpretation, especially in the common-law countries. Demonstrations against government might be termed as terrorist activities in cases where it becomes violent. In Pakistan, around 500 political activists (including leaders of the opposition party) were booked under the anti-terrorism act duringa protest against the government in 2014.(13) The objective element then raises an issue regarding the extent of violence that shall be accepted for accruing terrorist conduct. One approach towards defining a terrorist conduct given by UN ‘Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’is to include “all elements of a serious crime as defined by law”. (14) The question of what amounts to a ‘serious crime’ under the domestic law may be characterised by the state according to the level of terrorist threats it faces. A broader approach towards determining a ‘serious crime’ might also perturb the aim of administering antiterrorism laws. The borderline between a crime and crime leading to a terrorist conduct remains thin. This thin line can be broadened via its combination with subjective elements in a definition. For this purpose, the mens rea and the motive of a terrorist must be identified while forwarding a legal definition of terrorism.
The mens rea of a normal criminal is completely restricted to something relevant with his own personal benefit or vengeance. That is why the motive and mens rea in normal criminal activities may not be longlasting. On the other hand, the terrorist activities comprise of continuing motivations with the methods of functioning in a developing mode, equivalent with the increasing or decreasing power of the terrorists. (15)These motivations might be based upon enforcing any particular ideas or policies upon the masses via coercing the state machinery, through terrorizing the population. Thereby, the subjective elements mostly included within the domestic laws for defining terrorism are the elements of spreading terror in a society and of coercing the government.(16) The element of ‘spreading terror’ might also be broadly interpreted; a crime of robbery also spreads terror in a specific area but that cannot be used to call the act as a terrorist act. Thereby, the motive behind spreading ‘terror’ in a society shall also be defined. If the purpose of a serious crime is to spread terror in a society, its motive shall be to compel or coerce a government to do or abstain from doing something, and then this conduct shall be sufficient to amount to ‘terrorism’.
Subjective and Objective Elements in Definition of Terrorism in National Laws
States adopt definition of terrorism in accordance with their own system of government and political circumstances. Definitions adopted by states are thereby different from each other; the absence of outer legal boundaries set by international community also helps in such disparity.(17) Some state governments use a pretext of anti-terrorism to forward their political interests by negating objective elements within the definition of terrorism. The practice of terror by state administrations thus in some situation replicates the state of ‘terror’ in the aftermath of the French revolution; in such cases the pretext by state administrations is the ‘anti-terrorism’ law. For instance, the Egyptian anti-terrorism law focuses on objective elements by only targeting organisations involved in activities which calls for the “harming of individuals; the spreading of terror; or the endangering of the lives, freedoms, rights, or security of the people”. (18) The list of activities that will lead to a terrorist act is extensive, including harming the environment, buildings, land, air and sea transportation etc. Moreover, individuals’ along with organisations are also banned from activities leading to infringements on public order, harming national unity, social peace etc. The objective elements have thus been included indiscriminately, however these elements are not supported with subjective elements. This might be a politically motivated legislation by the establishment to control unwanted organisations and unfavourable acts. This theoretically will result in persecution of unfavourable individuals and organizations. The international threat of terrorist activities has driven some states to take actions. Any specific laws against terrorism were missing in China; it adopted an anti-terrorism legislation very recently in December, 2015. Previously, a standing committee of the Chinese National Congress adopted the decision on issues related to anti-terrorism works, which clarifies the definition of terrorist activities.(19) The definition briefly identifies the subjective and objective elements. It states that,
“Activities that severely endanger society that have the goal of creating terror in society, endangering public security, or threatening state organs and international organizations and which, by the use of violence, sabotage, intimidation, and other methods, cause or are intended to cause human casualties, great loss to property, damage to public infrastructure, and chaos in the social order, as well as activities that incite, finance, or assist the implementation of the above activities through any other means”.
Some states target ideology or political motivation as a subjective element in their definitions. According to Russian federal law “terrorism shall mean the ideology of violence and the practice of influencing the adoption of a decision by public authorities, local self-government bodies or international organizations connected with frightening the population and (or) other forms of unlawful violent actions”. (20) This clearly specifies the subjective element whereas the activities which might lead to terrorism and the acts which lead to terrorism (objective element) are defined in the subsequent sections.21This approach evolved through the previous efforts of including the term terrorism in the criminal laws. The urge to differentiate the acts of terrorism from simple crime resulted in the adoption of specific anti-terrorism law; supported by the inclusion of a viable subjective element to the definition.
The United States defines domestic and international terrorism separately under its federal laws. The ‘domestic terrorism’ is shortly defined in Section 2656f(d) of Title (22) of the United States Code as “the term “terrorism” means premeditated, politically motivated violence perpetrated against non-combatant targets by subnational groups or clandestine agents”. (22)The subjective element has been broadly enshrined in the definition but elaborated in the section 2331 of Title 18 of the United States Code, which defines domestic terrorism as, “the term ‘domestic terrorism’ means activities that involves acts dangerous to human life that are a violation of the criminal laws of the United States or of any state;
Appear to be intended :
To intimidate or coerce a civilian population;
To influence the policy of a government by intimidation or coercion; or
To affect the conduct of a government by mass destruction, assassination, or kidnapping...” (23) The definition limits the acts of coercion to only politically motivated actions rather than generalising the acts of coercion to terrorism. This inculcates a better opportunity to the judiciary and law enforcement agencies in differentiating terrorist activities from normal criminal activities.