Universal Jurisdiction for Terrorism

One of the great barriers to bringing acts of terrorism into the classification of crimes for which universal jurisdiction applies is that the international community cannot come up with a clear definition of what terrorism is.^[1] As the saying goes one man’s terrorist is another man’s freedom fighter. This was evident a couple of months ago when it was announced that a “panel of Italian judges … upheld the acquittals of three North Africans on international terror charges, bas[ing] its ruling on the fact that recruiting suicide bombers to fight against U.S. soldiers is not terrorism.”^[2] According to the Italian judges, “recruiting suicide bombers could not be considered terrorism because during an armed conflict the only acts that count as terrorism are ‘acts exclusively directed against a civilian population’”;^[3] because the acts were directed at US soldiers, the individuals were more appropriately termed guerrillas.

Adding to the complication is that while the rest of the world sees terrorism as primarily a law enforcement issue, statements by certain members of the Bush Administration have complicated efforts to develop an international definition of terrorism which would allow for universal jurisdiction. Vice President Cheney, for example, said on September 7, 2004 that voting for Senator Kerry would, in a charitable interpretation, allow the country to “fall back into the pre-9/11 mind set … that in fact these terrorist attacks are just criminal acts, and that we're not really at war.”^[4] Of course, Vice President Cheney must be well aware of Chapter 113B of Title 18 of the US Code, titled “Terrorism.” But the point remains that US insistence on using terminology such as the “Global War on Terrorism”^[5] makes it more difficult to come up with a consensus definition that would allow countries to legally exercise universal jurisdiction over acts of terrorism.

Defining what constitutes terrorism is also an extremely difficult proposition as well. For example, in a draft of Turkey’s new Counter-Terrorism Act, theft, deliberate arson, trafficking in narcotics, and flag-burning are acts which are included in the definition of terrorism.^[6] Furthermore, punishment will be increased under the proposed legislation for such activities as carrying pictures and banners supporting any terrorist organization, or shouting slogans, disguising identities, wearing emblems and symbols of such organizations, spreading “propaganda on behalf of terror networks,” and organizing activities to recruit members to the organization.^[7] If any of these activities are committed “by or at political parties, associations, foundations, trade unions, educational institutions and student hostels,” the punishment can be doubled.^[8] Furthermore, individuals taken into custody on suspicion of terror crimes are entitled to only one lawyer, and they have only 24 hours to consult with that lawyer.^[9] The lawyer’s access to the suspect’s file can be curtailed.^[10]

Compare the definitions of what constitutes an act of terrorism in Turkey with the definition of what constitutes an act of terrorism in the United States. Under 18 U.S.C. § 2331(1) international terrorism is defined as activities that

• involve violent acts or acts dangerous to human life that are criminal violations;
• 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; and
• occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in the way they are carried out

Domestic terrorism is essentially the same act but committed within the territorial jurisdiction of the United States.^[11]

Notice how the United States requires violence before an act can be classified terrorism, and Turkey’s proposed legislation may be too broad for its own good, causing not only problems for universal jurisdiction advocates, but also for its own inclusion into the European Union. For example, the United Kingdom, which is facing its own controversies about the overbreadth of its own anti-terrorism laws,^[12] defines terrorism as the use or threat of action which involves violence or serious damage to property, which is designed to influence the government or a civilian population, which is made to advance a religious or political cause.^[13]

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[1] See, e.g., Restatement (Third) of Foreign Relations Law of the United States § 404 (1987) [hereinafter Restatement] (universal jurisdiction allows a state to ‘define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern,” such as piracy, the slave trade, attacks on or hijacking of aircraft, genocide, war crimes and “perhaps certain acts of terrorism.”) (emphasis added).
[2] See Recruiting Suicide Bombers Not Terrorism, Associated Press (via MSNBC.com), Feb. 16, 2006.
[3] Id.
[4] See Richard Cheney, Vice President and Mrs. Cheney’s Remarks and Q&A at a Town Hall Meeting, WhiteHouse.gov, Sep. 7, 2004.
[5] See, e.g., Donald Rumsfeld, Memorandum from Donald Rumsfeld to Dick Myers et al., "Re: Global War on Terrorism," Oct. 16, 2003.
[6] See Murat Aydin, Scope of Terror Expanded in CTA, Zaman Daily Newspaper, Apr. 19, 2006.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] 18 U.S.C. § 2331(5).
[12] See Richard Ford, Anti-Terror Laws Are an Affront to Justice, Says High Court, Times (London), Apr. 13, 2006 (Britain’s High Court declared that the UK’s anti-terror laws are an “affront to justice,” and that holding foreign terror suspects indefinitely without trial was “conspicuously unfair.”).
[13] See Terrorism Act 2000 (c.11) s.1, amended by Terrorism Act 2006 (c.11).