The Supreme Court has reserved its judgment on the definition of ‘terrorism’. The ruling will determine which crimes can be prosecuted under the Anti-Terrorism Act of 1997.
It may be helpful to review the meaning assigned to ‘terrorism’ in international jurisprudence. One can safely assert that while there is no universally agreed definition, a certain meaning can be discerned by looking at how various actors in the international criminal justice system have tried to elucidate and explicate the concept.
The concept is not a new one. As far back as the first century AD, Sicarii Zealots used to murder high ranking officials in crowded places thereby causing panic among citizens. Their highest ranked target was Jonathan, the then High Priest of Israel. Nevertheless, despite several attempts at a comprehensive convention, there has been no real breakthrough towards an entirely universal definition.
The first real effort by the international comity to define terrorism was made towards late 1930s . Through a 1937 convention, the League of Nations, the predecessor to the United Nations Organization, provided for the prevention and punishment for terrorism. The legislation, however, never entered into force. A working definition of acts of terrorism was then tabulated as “criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public”. Thus acts of terrorism included, but were not limited to the murder of high ranking officials, members of their family and members of the public. Also included were damaging public property and the manufacture, possession and supply of arms intended to be used for such purposes. Since such a definition could include acts in aid of the rights of freedom, liberty and self-determination, as for example by the people of Kashmir, Palestine and Kosovo, there were major disagreements on the working definition.
Next, the international community turned to a ‘sectoral approach’ to defining terrorism. It sought thus to discern the offences that terrorists undertake and to work out treaties to deal with specific activities. Examples of this include the 1963 Convention on Offences and Certain Other Acts Committed On Board Aircraft and the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft since hijacking of airplanes was seen as a specific terrorist offence. Similar sectoral conventions apply to physical protection of nuclear materials, safety of maritime navigation and suppression of terrorist bombings etc.
The implications of the international community lacking a consensus on the definition and meaning of terrorism are manifold. One obvious disadvantage is that the term can be moulded by various states to serve their own interests, like India calling Kashmiris fighting for self-determination terrorists, or attacks like those in Christchurch not being labeled as terrorism
These conventions represented important developments in defining terrorism because of three shared characteristics. First, they were codified on the basis of an operational definition, wherein acts were to be treated as offences of terrorism without regard to underlying ideological or political reasons. Secondly, they applied to actions by non-state actors and not by states themselves. Finally, the conventions were adopted as a part of the international criminal justice system and the obligations on states under these conventions were not of a civil nature.
The judgment of the Special Tribunal for Lebanon in 2011 sheds further light on whether a definition for terrorism can be identified under customary international law. The judgment held that a number of treaties, conventions and resolutions attempt at forming such a definition. The special tribunal therefore ruled that there were three elements of an offence of terrorism, first was the committing of a criminal act such as murder or arson, second that such an act was perpetrated to spread fear among the general population or to coerce a legal authority to commit or omit to do an action and finally such offence must have a transnational element to bring it within the fold of international law.
General Assembly Resolution 49/60 for example speaks of terrorism when acts are intended to provoke a state of fear in the general public for ideological, political, philosophical, racial, ethnic or religious reasons. Many other such resolutions of the United Nations exist, which adopt definitions very similar to Resolution 49/60 and the judgment of the special tribunal but are ambiguous in their application to acts of terrorism all over the world. The sectoral approach mystifies the definition of terrorism just as much as it helps in its elucidation.
The implications of the international community not having a comprehensive consensus on the definition and meaning of terrorism are manifold. One obvious disadvantage is that the definition can be moulded by different states to serve their own interests like India calling Kashmiris fighting for self-determination terrorists and attacks like the one witnessed in Christchurch not being labelled as terrorism. Another disadvantage is the hindering of international cooperation in the face of terrorism and non-harmonization of laws internationally.
Justice Khosa had noted that neither the United Nations nor the United States had ever been able to give a singular definition of terrorism. When the Supreme Court of Pakistan finally announces a verdict on the meaning of terrorism, it will not only clear ambiguities in national law but may also help legal experts at the international level to finally wrap their heads around a comprehensive and harmonized definition of terrorism, but for that to happen the judgment would have to be impeccable.
The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law