(Ομιλία σε ημερίδα της Ενωσης Νομικών Κασπίας Μαύρης Θάλασσας ,Baku 8/10/2018
Is a common definition for terrorism possible?
According to the US State Department definition, “terrorism” is «premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents ».
This is one of the widest definitions. A large variety of acts can be prosecuted under this definition, including unarmed violence and minor offenses.
But, State terrorism is excluded, for example, extrajudicial executions of civilians. This definition has been widely used against organizations and political parties hostile to western interests. On the contrary, US never uses the term “terrorist” for militants of the extreme right or for armed groups who are acting in favor of the US interests. They call them “rebels” or “moderate rebels”
According to the German penal code, paragraph 129a,
“a terrorist group is a group of persons who commit or intend to commit at least one crime from a list of crimes, with the intention to produce fear to a serious part of the population, to illegally coerce or threat a public service to an action or to destroy or influence in a serious range the fundamental political, constitutional, economic or social structures of a state or an international organization and it is possible, due to the way of execution or due to its consequences, to severely harm a state or an international organization”.
The purpose of this provision is –obviously- 1st the protection of the social/economic system and 2nd the international organizations of German interest. It was originally used against German leftist armed organizations who used to attack targets of symbolic significance for the social system and against NATO. Later it was used for the disbandment of some Turkish and Kurdish organizations in Germany.
The definition of a terrorist organization provided by the EU directive 514/2017 , is largely a reiteration of the German definition. Describes as terrorist offences a large number of the crimes of the common criminal law, when committed with the purpose of: 1) intimidating a population, 2) illegally forcing a government or an international organization to commit or to omit an act, 3) destabilizing or destroying a country’s fundamental political, constitutional, financial or social structures.
It is obviously a very vague definition, in which a great number of criminal behaviors, if not all, could be included. The most problematic point is that the terrorist intention is described with vague political criteria not with strict, legal classifications. The directive also obliges the Member States to classify as crime behaviors which, by themselves, are not a crime, such as: travelling, teaching, learning for terrorist purpose, praising terrorism, systematic visit of pro-terrorist websites, public declaration of support to a terrorist.
The same directive creates new objects of the law enforcement: 1st : The “suspect”. As all legal workers understand, if we start sentencing based on suspicions instead of proofs we return to medieval legal era.
2nd : The “individual terrorist” . This new legal term is also very problematic because it could expand the enforcement of antiterrorist legislation to a large number of political opponents , not connected with terrorist groups.
3rd The “funding of terrorism” without a bottom limit etc.
The Russian criminal code of 1996, in Article 205 as amended in 2004, defines the terrorist act as:
“1. The execution of an explosion, arson or other actions that intimidate the population, and the threat of human death, the imposition of significant property damage or the onset of other serious consequences, in order to influence the decision-making of the authorities or international organizations, and the threat of commission of such actions for the same purposes – shall be punishable by a term of imprisonment of eight to fifteen years. The commitment of the above crimes by an organization is an aggravating circumstance”.
This is one of the less vague definitions and for this reason, this is an honest definition.
As far as I have studied it, the Russian antiterrorist law doesn’t punish the simple intention to commit a crime which finally was not committed, as it is provided in the legislation of the EU member states.
On October 29, 2011, the Standing Committee of the National People’s Congress of China passed a decision clarifying the definitions of terrorist activity, terrorist organization and terrorist, as follows:
“Activities that severely endanger a society with the purpose of creating terror in society, endangering public security or threatening state organs and international organizations and which, through the use of violence, sabotage, intimidation, and other methods, cause or are intended to cause human losses, 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. (Decision, Article 2) “.
The definition demands an act or the intention for an act on the condition that the intended damage must be serious. The intented damage is also well defined, in opposite of the Western definitions.
It is interesting to examine the definition of terrorism according the Syrian law, given that the war-torn country faced and still is facing invasions of foreign militants and foreign states as well. According to the anti-terrorist law, passed by the Parliament during the invasion , in 2012, the terrorist action is defined as “every action with use of weapons, aiming at spreading a situation of serious intimidation among people or disrupting the security of the public life or the destabilization of the fundamental structures of the state by force. The same law punishes also the financing of terrorism, the conspiracy and the establishment of a terrorist organization. Provides as aggravating circumstance, the intention to change the government structure or to abolish the statehood. It also punishes the acclamation and promotion of terrorist acts and the concealing of information, but it doesn’t criminalize actions not directly related to terrorism like travelling, education, etc. Also provides reduction or exemption from sentence in cases of cooperation with the authorities.
It is very important to underline that for its implementation requires use of arms. There is not such requirement in the EU or US definitions.
Comparing each other the above laws, we could say that In general terms there are common elements in all definitions of terrorism regarding the political motives, the major offence of social structures and the increased penalties.
It seems that the Western countries tend to criminalize more behaviors, which are also described more vaguely, especially with the use of general political descriptions of terrorist intention. A crucial element for the democratic legitimacy of the definition of terrorist crime is whether the intention to commit a crime is punishable independently, that is to say, when there is no attempt or even preparatory action.
Definitions may resemble each other, but not necessarily their application. Those who a state defines as terrorists, another state can consider as friends and allies. For example, the US and Israel consider Hezbollah as a terrorist organization, while it is considered by Lebanon, Syria, Iran, and Russia as legitimate political-military power.
We believe that in order to define an armed group as terrorist, it is crucial to take into consideration the legitimacy of its goals, in accordance with international law, the social legitimacy within the people in which it develops, and the proportion of purposes and means.
We must note that there are state behaviors that could be fully integrated into a definition of terrorism: Massive and systematic extermination of civilians, such as these which often happen in occupied Palestine, or in Yemen by the Israeli and Saudi states respectively, the systematic bombardment of cities, the extrajudicial executions of citizens by state authorities abroad or within the country must be considered – if there is not a war crime – as state terrorism and the perpetrators and instigators must be prosecuted.
The serious crimes, committed by the staff of private security firms usually hired by state or by occupying authorities to provide military or police services, should also be included in state terrorist crimes.
In conclusion, I would like to note that a terrorist crime is a political crime and that’s why its punishment must be backed by broad consensus, taking into account that the perpetrators often have purely ideological motives, self-sacrifice, high level of education and esteem in their societies. That is why, in cases where there are no serious crimes, members or supporters of terrorist groups, should be treated as political opponents. In such circumstances, the use of administrative or political measures could offer better results than criminal repression. This policy has been implemented in various countries, now in Syria, with very positive results.