Published in June 2018.

 

 
  This module is a resource for lecturers   

 

Key issues

 

The purpose of this Module is to introduce students to the key concepts and principles that underpin international instruments and institutions concerned with the complex topics of terrorism and how to counter terrorism, as well as any hard, security-based, responses adopted by States when confronted with acts of terrorism. When considering the concept of terrorism, it is important to note that as yet, there is no global consensus regarding an agreed definition of the term "terrorism" for legal purposes (see further Module 4). This Module will also provide a brief overview of modern terrorism and its implications for the international community. Regarding the prosecution of the perpetrators of acts of terrorism, it is vital to understand how, why and to what extent, the impact of a lack of a universally agreed global legal definition of the term may have had on the effective investigation and prosecution of terrorist offences. Principally, prosecuting chargeable crimes must rely on the judicial forums available. A decision to prosecute a "terrorist" offence will depend, among other factors, on legal and non-legal considerations. Furthermore, the State of custody must decide either to prosecute (as a "terrorist" or an ordinary crime) or to extradite elsewhere for prosecution persons accused of serious, transboundary terrorist crimes. Choosing between prosecuting on the grounds of "terrorist" or of ordinary crimes also involves wider issues such as the distinction between armed and non-armed conflict, the State use of counter-terrorist force and the return of "terrorists" who have been fighting abroad.

Notwithstanding the absence of a globally agreed, legal definition of terrorism, a n effective and prevention-focused international response to terrorism is highly desirable, particularly one guided by a normative legal framework and embedded in the core principles of the rule of law, due process and respect for human rights. Many international and regional legal instruments already exist which are dedicated to countering and deterring terrorism (see further Modules 4 and 5), primarily through the investigation and prosecution of those suspected of committing related crimes by means of State criminal justice processes. While such international and regional instruments provide for effective prevention mechanisms, including interventions targeting specific types of criminal acts (e.g., hostage-taking, the hijacking of planes or ships, terrorist bombings and the funding of terrorism), States implement their treaty obligations differently. As a result, criminal justice responses and outcomes in investigating and prosecuting terrorism-related crimes may vary between States.

Since the terrorist attacks of 11 September 2001, international support for more effective counter-terrorism measures and responses has led to greater international cooperation in counter-terrorist matters, and there is certainly evidence of a widespread hardening of approaches to the prosecution of "terrorists". This is important in a context that is witnessing the increased export and globalization of terrorism by groups such as Al-Qaida and the Islamic State in Iraq and the Levant (ISIL, or Da'esh), a trend that shows no sign of abating. In response, States are utilizing a range of counter-terrorism measures, from criminal justice mechanisms-which should represent the usual response, including as a means of terrorism prevention-to "harder" security-based measures accompanied by increased military spending. Although, as discussed in Module 6, military responses may be entirely appropriate where the requisite legal criteria are met, such as the threshold of violence necessary to constitute an armed conflict, these are also accompanied by increased complexities. For example, in most situations "terrorist" groups do not cross the requisite threshold for the application of international humanitarian law (International Law Association, 2010). Yet when States utilize armed force, it can be argued that international humanitarian law should apply (an approach adopted as "policy" by a number of States) to the treatment and prosecution of captured non-State violent actors, not least because international humanitarian law mandates strong due process rights and humanitarian treatment of all those placed hors de combat (see further Module 6).

The landscape of terrorism and counter-terrorism is complex and sensitive due to these and other factors examined throughout the University Module Series. When considering the future of terrorism therefore, it can be helpful first to look backwards, albeit briefly, to the modern origins of the criminal phenomenon referred to today as international or transboundary terrorism.

Together with a brief overview of the history of terrorism, this Module will also consider the evolution of terrorism in the twentieth century. In doing so, where examples are informative, these are drawn from terrorist organizations which have been formally designated as such within the United Nations system, namely Al-Qaida and ISIL (Security Council resolution 1267 (1999) and subsequent resolutions). That is not to say that other "terrorist" groups are any less important or that the impact of their criminal activities is any less significant in their areas of operation; rather it is reflective of some of the legal and political complexities underlying many of the issues examined in this University Module Series, a number of which circle back to the inability of the international community to agree on a universal definition of terrorism. Without this, it is often not possible to reach universal agreement, for instance, regarding the designation of "terrorist" groups. For similar reasons, since matters of "terrorist" motivations can be politically sensitive, the discussion of terrorism throughout the University Module Series is largely framed around related criminal acts and not any underlying ideologies or other motivating factors (e.g., self-determination), consistent with the approach of the international community, as reflected within the universal anti-terrorism conventions examined in Module 4.

The sub-pages to this section provide a descriptive overview of the key issues that lecturers might want to cover with their students when teaching on this topic.

 
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