Defining the International Public Enemy, the Political Struggle behind the Legal Debate on International Terrorism_Jörg Friedrichs

8/12/2019 Defining the International Public Enemy, the Political Struggle behind the Legal Debate on International Terrorism_J

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Leiden Journal of International Law, 19 (2006), pp. 6991

CFoundation of the Leiden Journal of International Law Printed in the United Kingdom doi:10.1017/S0922156505003183

Defining the International Public Enemy:The Political Struggle behind the LegalDebate on International Terrorism

J O RG FRI EDRI CHS

AbstractWho shall have the power to define international terrorism? To answer this question, whichmeans determining the international public enemy, is an eminently political task. According

to Carl Schmitt, politics is essentially about determining the public enemy. When it comes toa situation of emergency, whoever is in the position to distinguish friend from enemy holdsultimate power. While Schmitt was still thinking primarily in terms of the nation-state, thedetermination of the public enemy has now become an international issue. To demonstratethis point, this article examines the political struggle behind the legal debate on the definitionof international terrorism. This is done by comparing two debates on international terrorism,one held in the 1970s and the other in the 2000s. Both these debates had, and still have,their institutional locus in the UN General Assembly and its Legal Committee. In the 1970sthe non-aligned countries tried to challenge the discretion of the West in determining theinternational public enemy. In the 2000s the incumbent regimes of the Third World agreewith Western states that terrorism is a common threat. The main cleavage is now between

the leading Western powers that would like to determine the public enemy on a case-by-casebasis (the United States and the United Kingdom), and the status quo states that would liketo tie these hegemonic powers by a legal definition. It is precisely the absence of such a legaldefinition that makes it possible for the hegemonic powers and their followers to determinethe international public enemy on a case-by-case basis. A legal definition would increase thecoherence of the international coalition against terrorism and serve as a limitation on thediscretionary power of the hegemonic states.

Key wordsCarl Schmitt; Comprehensive Convention on International Terrorism; definition of terrorism;terrorism; United Nations

Who shall have the power to define terrorism? Who will distinguish it from otherforms of political violence? Who is going to tell a terrorist from a freedom fighter?

To answer these questions is an eminently political task. It is tantamount todeciding who is with us and who is against us, or in other words it means

Research Associate, School of Humanities and Social Sciences, International University Bremen,[email protected]. Research on this article was carried out in a project on the internationalizationof the monopoly of the legitimate use of force, within a collaborative research centre on the transformationof statehood. The research project is based at the International University Bremen, Germany, and is directedby Markus Jachtenfuchs. Funding by the Deutsche Forschungsgemeinschaft is gratefully acknowledged.Thanks are due to those who have collaborated on empirical research: Eva Herschinger, Christiane Kasack,Holger Stritzel, and Dana Trif; to those who have provided valuable comments: Alessandro Colombo, Bibivan Ginkel, and the anonymous reviewers of the Leiden Journal of International Law; and above all to RaphaelMuturi for having contributed to an earlier version of the paper.


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70 J O R G FR IEDR IC HS

determining the international public enemy. According to Carl Schmitt, The spe-cific political distinction to which political actions and motives can be reducedis that between friend and enemy.1 The person, group or institution that has theauthority to draw this distinction holds the key to sovereign power. Writing in the

early 1930s, Schmitt was thinking primarily about the nation-state of his time andits leaders. But the moment has come to apply Schmitts ideas to the internationalrealm, given the fact that the determination of the international public enemy (readterrorist), whether by definition or on a case-by-case basis, is a matter of worldwideconcern.

It is precisely the absence of a legal definition of terrorism that makes it possiblefor the hegemonic power (read United States) and its followers to determine theinternational public enemy on a case-by-case basis. A legal definition would serveas a limitation to this discretional power. Especially from the viewpoint of those

continental European states that do not share the US approach to the war on terror,it would be highly desirable if international law became a restraint on the power ofthe Anglo-Saxon hegemon.

On the surface, the definition of terrorism may be a matter of debate among legalexperts in bodies such as the Sixth Committee of the UN General Assembly, theInternational Law Commission, or the International Law Association. But as soon asone looks behind the technicalities of these reputedly legal debates, it becomes clearthat the problem is at the centre of a political maelstrom. Moreover, experience hasshown that, as long as states do not agree on who the international public enemyis, it does not help very much to vest the problem in a legal cloak. In the present

article I will therefore try to examine the political struggle behind the legal debateon international terrorism.

The first section starts with a general overview of the efforts undertaken at the UNagainstinternationalterrorism,followedbyabriefoutlineofthetwodebatesastheyunfolded in the 1970s and again in the 2000s. In the second section I compare thepositions taken by the four major European powers (Britain, France, Germany, andItaly) in either debate. On this basis, the third section analyses the political strugglethat is lying behind the legal debate on international terrorism. This leads me, inthe conclusion, to the formulation of some policy suggestions. The suggestions are

particularly, but not exclusively, directed to the conservative states representing oldEurope.

1. THE UN AND INTERNATIONAL TERRORISM

After a series of terrorist attacks in 1972, most prominently on the Olympic villagein Munich, the quest for a common understanding of international terrorism tookcentre stage at the UN, namely the General Assembly and its Legal Committee. Itsoon became apparent that due to profound political disagreements no consensus

1. C. Schmitt,Der Begriff des Politischen(1932), translated by G. Schwab under the titleThe Concept of the Political(1996), 26.


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DEFINING THE INTER NATIO NAL P UBLIC ENEMY 71

couldbereached.Duringthe1980sand1990sthequestforacommonunderstandingof international terrorism was therefore left aside, and a more pragmatic approachheld sway. Over the last few decades, this approach has led to more than a dozenconventions against particular manifestations of international terrorism. Neverthe-

less, in the absence of an overarching legal framework these conventions do notagglomerate into a coherent whole. While affording some help in dealing with in-ternational terrorism, they do not provide guidance on how to tackle the threat ofnew kinds of violence against innocent victims. It is therefore not surprising thatthe quest for a common understanding of terrorism has returned to the agenda ofthe United Nations.2

In international as well as in domestic politics, the fight against terrorism tendsto follow the politics of the latest outrage.3 Domestic laws and international con-ventions are mostly discussed, and eventually agreed upon, after major events. This

pattern can be detected from the very first and inconclusive attempt to set up acomprehensive convention on international terrorism. That attempt was under-taken by the League of Nations between 1934 and 1937, after the assassination ofthe Yugoslav King Alexander and the French foreign minister.4 The same patterncould again be observed in the 1970s. After a series of terrorist attacks in the early1970s, international terrorism became a topic on the UN agenda. Eventually thedebate ended in failure, in 1979. Another round of the debate is now under way.It had a difficult start in 2000. After the outrage of 11 September 2001, the debatestarted to become more lively. But although there has been considerable progressin recent years no final agreement has yet been reached on the legal project of a

comprehensive anti-terrorist convention.It iscold comfort that there are bynow more than a dozen UNconventions against

particular manifestations of terrorism such as skyjacking, assaults on diplomats,hostage taking, and so forth. Despite the obvious usefulness of these instruments,they do not lead significantly closer to a shared understanding of the problem.In most cases the word terrorism is not even used, let alone defined, in theseinstruments. This is unfortunate, since the lack of consensus about the politicaland legal boundaries of the phenomenon can undermine international coalitions.The predetermined breaking point for any anti-terrorist coalition is disagreement

about the essence of the phenomenon. Ever since decolonization, there has beendisagreement as to whether international terrorism covers activities by nationalliberationmovementsontheonehand,andcertainactsofstate-committedandstate-sponsored political violence on the other. In the 1970s, states such as Algeria, Libya,and Syria struggled to exempt national liberation movements from the definitionof terrorism. At least in part, this is still true after the terrorist attacks on the WorldTrade Center of 11 September 2001. For example, there is still some disagreement

2. M. J. Peterson, Using the General Assembly, in J. Boulden and T. G. Weiss (eds.),Terrorism and the UN: Beforeand After September 11(2004), 173.

3. P. Wilkinson,Terrorism Versus Democracy: The Liberal State Response(2000), 197.4. M. D. Dubin, International Terrorism: Two League of Nations Conventions(1991).


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as to whether the violent actors in Palestine and Chechnya are terrorists or, rather,freedom fighters.

1.1. The first debate (19729)

In September 1972, when the world was outraged by the terrorist attacks on theOlympic village in Munich, West Germany was not yet a member of the UnitedNations. Israel, as the country representing the victims, did not refer the issueto the Security Council. UN Secretary-General Kurt Waldheim, however, placedinternational terrorism on the agenda of the General Assembly. The initiative waswelcomed by a majority of Western countries including West Germany, Israel, andthe United States, while most Arab and African countries had serious misgivings.5

Only a few days after the initiative of the Secretary-General, the United Statessubmitted a draft Convention for the Prevention and Punishment of Certain Actsof International Terrorism.6 The US draft was explicitly and deliberately limited to

certain acts of international terrorism and did not suggest any legal definition of thephenomenon. It was clearly not intended to provide a comprehensive conventionon terrorism. Nevertheless, the US initiative faced stout opposition from the Non-Aligned Group, spearheaded by Algeria. Many Arab and African countries arguedthat it would be appropriate first to discuss the root causes of terrorism beforesuggestingrepressivemeasures.Moreoverthenon-alignedcountries,manyofwhichwere themselves the offspring of national liberation movements, suspected that theUS draft was intended to outlaw their brethren fighting against colonialism andoppression. Against this, the non-aligned countries maintained that state terrorism

was actually the most harmful and deadly form of terrorism. These allegations werenot very much to the point if one considers the letter of the US draft, which tooka relatively moderate and pragmatic stance. But whether justified or not, the fierceopposition ofthenon-alignedphalanxultimatelyscuttledthe USdraftin theGeneralAssembly.7

Instead of the US draft, at the instigation of Algeria and other states of the Non-Aligned Group (and against the vote of the United States) the General Assemblyadopted a resolution to establish an AdHoc Committee on International Terrorism.8

Despite the affinity of this resolution with the requests of the non-aligned states,the United States and many other Western countries nevertheless were ready to

engage in the deliberations of the Ad Hoc Committee on International Terrorism. Ascould have been expected, its main problem was to find a common understanding ofinternationalterrorism.Atitsfirstroundofmeetingsin1973,theAdHocCommittee

5. Italian Diplomatic Archives, Telegrams to and from New York(1972).6. UN Doc. A/C.6/L.850 (25 Sept. 1972): draft convention.7. Department of State, U.S. Votes against U.N. General Assembly Resolution Calling for Study of Terrorism,

Department of State Bulletin, 22 Jan. 1973, 81; L. Hoffacker, The U.S. Government Response to Terrorism: AGlobal Approach, in M. Cherif Bassiouni (ed.), International Terrorism and Political Crimes(1975), 537; E. N.Evans, American Policy Response to International Terrorism: Problems of Deterrence, in M. H. Livingston(ed.), International Terrorism in the Contemporary World(1978), 376.

8. UN Doc. A/RES/3034 (18 Dec. 1972): GA resolution.


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did not reach any substantive consensus on the definition of international terrorismand could only restate the diversity of existing views on the various aspects ofthe subject submitted for consideration.9 Although the Ad Hoc Committee wasreconvened in 1977 and 1979, it finally had to be suspended without any tangible

results due to a blatant lack of political consensus.10

Disagreement among the states represented on the Ad Hoc Committee startedwith the apparently innocuous question of if and when concrete measures shouldbe taken against international terrorism. The non-aligned states held that first itwas necessary to study the underlying causes of terrorism, and that only after un-derstanding the legitimate reasons behind the grievances raised by internationalterrorists would it make sense to take practical steps. In this spirit, the Algeriandelegation not only pinpointed certain root causes of international terrorism, butalso suggested that terrorism sometimes could be justified. Violence becomes ter-

rorism, when situations which lead to violence are exacerbated.11

Terrorism wasconsidered as the inevitable consequence of fundamental freedoms being violated,and accordingly was a cause for sympathy rather than retribution. Against theseand similar arguments, the United States and other Western states protested that intheir domestic legislation states did not wait for the underlying causes of crime tobe identified before enacting penal laws against criminals.12

Another bone of contention was whether international terrorism had to be con-demned regardless of motive, or whether certain causes such as national emancip-ation struggles could justify the political use of violent means. Again, on behalf ofthe Non-Aligned Group the Algerian delegation was very outspoken on that point:

a distinction should be made between heinous terrorism and terrorism that waspolitical in origin and purpose.13 The Western response was somewhat ambiguous.On the one hand, most delegations were paying lip service to the legitimate claimsof national liberation movements. On the other hand, they insisted that the endcould never justify the means; that is, violence against innocent people could not becondoned under any circumstances.14

Finally, the Non-Aligned Group was adamant on the inclusion of state terror-ism under the Ad Hoc Committees mandate. Acts of violence by colonial, racist,

9. UN Doc. A/9028 (1973): report of the Ad Hoc Committee.10. UN Docs. A/32/37 (28 April 1977); A/34/37 (17 April 1979); A/AC.160/SR.1119 (1979): reports and summary

records ofthe AdHocCommittee.See also T. M.Franckand B.B. Lockwood,Preliminary ThoughtstowardsanInternational Convention on Terrorism, (1974) 68 (1) AJIL 69; J. Dugard, International Terrorism: Problemsof Definition, (1974) 50 (1)International Affairs67; J. Dugard, International Terrorism and the Just War,in D. C. Rapoport and Y. Alexander (eds.), The Morality of Terrorism: Religious and Secular Justifications(1982),77; F. Hoveyda, The Problem of International Terrorism at the United Nations, (1977) 1 (1) Terrorism: AnInternational Journal71; G. Levitt, Is Terrorism Worth Defining?, (1986) 13 Ohio Northern University LawReview97; J. F. Murphy, United Nations Proposals on the Control and Repression of Terrorism, in Bassiouni,supranote 7, at 493; J. F. Murphy, Defining International Terrorism: A Way Out of the Quagmire, in IsraelYearbook on Human Rights 19(1989), 13; J. Toman, Developing an International Policy Against Terrorism, inS. Flood (ed.),International Terrorism: Policy Implications(1991), 111.

11. UN Doc. A/9028 (1973): report of the Ad Hoc Committee, annex 7b.12. UN Doc. A/C.6/SR.13551374 (November 1972): verbatim records of the Sixth Committee.13. UN Doc. A/32/37 (28 April 1977): report of the Ad Hoc Committee, 14.14. UNDocs.A/AC.160/1(16May1973);A/AC.160/1/Add.1(12 June1973);A/AC.160/2(22June1973):observations

of states and analytical study by the Secretary-General.


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and alien regimes, they maintained, constituted the cruellest and most perni-cious form of international terrorism and therefore had to be given the highestpriority during the deliberations.15 Against this, Western states insisted that ininternational law there already existed appropriate provisions to restrain state vi-

olence, for example the Geneva conventions and the convention against genocide.While rejecting the inclusion of state-perpetrated terrorism, however, some West-ern states paradoxically supported the inclusion of state-supported terrorism underthe convention. To cover up these and similar inconsistencies, some Western states(most prominently the United States and the United Kingdom) opposed a defin-ition of terrorism as being counter-productive and called for practical measuresinstead.

1.2. The second debate (20005)

The debate in the 1970s was the last serious attempt to reach a common under-standing of international terrorism for many years to come. Only in January 1997did the General Assembly again establish an Ad Hoc Committee on InternationalTerrorism.16 The committee, which is supported by a Working Group, has the man-date of drafting appropriate instruments against international terrorism. The AdHoc Committee and the Working Group meet once a year, in spring and autumnrespectively. Late in 1999, the General Assembly called upon the Ad Hoc Committeeand the Working Group to deal with a comprehensive convention on internationalterrorism.17 Since 2000, discussions have been taking place on the basis of a draftsubmitted by India.18

Already in 1999 the United Nations had adopted a convention on the financingof terrorism. This convention contains, for the first time, an embryonic definition.Building on this precedent, Article 2 of the Draft Comprehensive Convention onInternational Terrorism in its present version contains a relatively broad definitionof international terrorism. According to this definition, serious offences againstpersons or heavy damage to private or public property qualify as offences withinthe meaning of the Convention when the purpose of the conduct, by its natureor context, is to intimidate a population, or to compel a Government or an inter-national organization to do or abstain from doing any act.19 Although the word

15. UN Doc. A/32/37 (28 April 1977): report of the Ad Hoc Committee, at 14.16. UNDoc. A/RES/51/210 (16Jan. 1997):GA resolution. This is anexceptionto therulethatdebates on terrorism

follow major events. Already in the second half of the 1980s and the first half of the 1990s, there had beeninconclusive attempts by some states of the Third World, namely Syria and Algeria, to revitalize the itemin the General Assembly. B. T. van Ginkel, The United Nations: Towards a Comprehensive Convention onCombating Terrorism, in M. van Leeuwen (ed.),Confronting Terrorism: European Experiences, Threat Perceptionsand Policies(2003), 207, at 21416. In 1996/1997 the return of the issue to the agenda of the Sixth Committeewas provoked by discussions about whether or not to include terrorism in the mandate of the InternationalCriminal Court. In 1998 the terrorist attacks on the US embassies in Nairobi and Dar es Salaam may haveplayed a catalytic role in convincing member states of the urgency of the problem.

17. UN Doc. A/RES/54/110 (2 Feb. 2000): GA resolution.18. UN Doc. A/C.6/55/1 (28 Aug. 2000): revised draft convention; cf. UN Doc. A/C.6/51/6 (11 Nov. 1996): original

version.19. UN Doc. A/59/894 (12 Aug. 2005): letter containing Draft Comprehensive Convention on International

Terrorism, 9.


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terrorism is used only in the title and in the preamble of the draft, the defini-tion in Article 2 is clearly meant to be a definition of international terrorism. Itwould be a decisive breakthrough for international law if the UN were to suc-ceed in writing a legal definition of international terrorism into the comprehensive

convention.Initially the bargaining positions were similar to those familiar from the 1970s.

Thus many Third World states insisted that terrorism be clearly distinguished fromacts of legitimate self-defence by national liberation movements.20 Most notably,the 56 members of the Organization of the Islamic Conference (OIC) demanded theexemption of national liberation movements from the reach of the convention.21

Peoples struggle including armed struggle against foreign occupation, aggression,colonialism, and hegemony, aimed at liberation and self-determination in accord-ance with the principles of international law shall not be considered a terrorist

crime.22

The countries of the OIC were calling for a binding legal definition of inter-national terrorism along these lines, which was rejected by the majority of Westerncountries.

Despite these apparent continuities,on closer examination it turns out that thereis a significant departure from the traditional view of Arab countries that stateterrorism is the most harmful and deadly form of terrorism and therefore mustfall under a comprehensive convention on international terrorism. Of course thisview was initially brought to the negotiation table and is still being reiterated incertain contexts, especially with hindsight to Israel.23 But the exclusion of stateterrorism has now become negotiable under the condition that political violence

by liberation movements be exempted as well. Thus in January 2002 the OIC grouprejected a proposal to exempt the activities of armed forces during an armed conflict.According to the OIC, the exemption of state terrorism is acceptable but should beexpanded to cover all parties during an armed conflict, whether regular forces ornational liberation movements.24 The discussions are still going on, and accordingtothereportsissuedoverthelastfiveyearssomesubstantialprogresshasbeenmade.However, the decisive breakthrough has still not occurred.25

The most important bone of contention has been draft Article 18 (now Art. 20), ofwhich therewere two versions on the table. The so-called version of the co-ordinator

was very clear in the exemption of the activities of armed forces, but it remaineda bit nebulous as to whether this would cover the activities of parties to a conflictother than regular troops. To avoid this kind of ambiguity, the alternative version ofthe OIC asserted that the parties during an armed conflict, including in situations

20. UN Doc. GA/L/3008 (4 Oct. 1996): press release.21. OIC Resolution No. 64/27-P (June 2000).22. Malaysia on behalf of the OIC Group, in UN Doc. A/C.6/55/L.2 (19 Oct. 2000): report of the Working Group,

38.23. E.g. UN Doc. A/57/730-S/2003/178 (13 Feb. 2003): verbal note by Syria.24. L/2993 (1 Feb. 2002): press release.25. Reports of theAd Hoc Committee: UN Docs. A/56/37 (27April 2001);A/57/37(21 Feb. 2002);A/58/37(25 April

2003); A/59/37 (22 July 2004); A/60/37 (18 May 2005). Reports of the Working Group: UN Docs. A/C.6/55/L.2(19 Oct. 2000); A/C.6/56/L.9 (29 Oct. 2001); A/C.6/57/L.9 (16 Oct. 2002); A/C.6/58/L.10 (10 Oct. 2003);A/C.6/59/L.10 (8 Oct. 2004); A/C.6/60/L.6 (14 Oct. 2005).


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of foreign occupation, were to be exempt from the provisions of the convention.26

At least in situations of armed conflict, this would have led to an explicit exemptionof both state terrorism and national liberation movements from the remit of thecomprehensiveconvention.ForthemembersoftheOIC,maintainingthedistinction

between freedom fighters and terrorists was a strategic objective that supersededearliereffortsatdelegitimizingso-calledstateterrorism.Duetotheuncompromisingstance of both sides, the two conflicting versions of Article 18 (recently renamed asArticle 20, and complemented by a new preambulary paragraph) were still the mainproblem after a consolidated version of the draft was transmitted, in August 2005,to the 60th General Assembly of the United Nations.27

Another interesting development could be observed with regardto thetraditionalclaim that before taking specific measures it is necessary to study the underlyingcauses of international terrorism. While an OIC resolution from 2000 still alluded to

the underlying causes argument,28

and while the Islamic states periodically repeatthis argument and demand a high-level conference to discuss the problems connec-ted with international terrorism, the question of the causes underlying terrorismno longer seems to pose any serious obstacle to the conclusion of a comprehensiveconvention.

A recent report has made explicit another concern that was looming over the lastfew years: A point was made against the unilateral practices of certain States whichwere considered contrary to the norms of international law and to the purposes andprinciples of the Charter of the United Nations. While thereis no explicit naming ofthese certain States, it is remarkable in itself to find this articulation of uneasiness

with the conduct of the war on terror in an official UN document.29

All these difficulties notwithstanding, there seems to be considerable progressin comparison with the situation in the 1970s. However, this is not to deny thatthe discussions illustrate once more how difficult it is to agree on the conceptualboundaries of terrorism, let alone reach a legal definition of the term. In the firstweeks after 11 September, a breakthrough seemed in sight. But although disagree-ment could quickly be limited to only one article (Article 18 on the exemption ofstate terrorismand/ornational liberationmovements, in combination with Article2on the legal definition of international terrorism), the attempt to reach a compre-

hensive convention was weakened once more by the mutually exclusive claims ofcertain Western countries and certain states of the Third World.30

After the terrorist attacks in London in July 2005, Washington and Londonsuddenly tried to break free from deadlock and joined the Secretary-General in

26. UN Doc. A/57/37 (11 Feb. 2002): report of the Ad Hoc Committee, 17.27. UN Doc. A/59/894 (12 Aug. 2005): letter containing Draft Comprehensive Convention on International

Terrorism; cf. A/C.6/60/L.6 (14 Oct. 2005): report of the Working Group; for the predictably negative OICreaction see UN Docs. A/C.6/60/3 (5 Oct. 2005) and A/C.6/60/SR.3 (24 Oct. 2005), 6; for recent amendmentsproposed by the Friends of the Chairman see UN Docs. A/C.6/60/INF/1 (20 Oct 2005); A/C.6/INF/2 (20 Oct.2005); A/C.6/60/SR.10 (31 Oct. 2005).

28. OIC Resolution No. 64/27-P (June 2000); a more recent formulation of the OIC position can be found in UNDoc. A/60/440-S/2005/658 (19 Oct. 2005), 15.

29. UN Doc. A/59/37 (2 July 2004): report of the Ad Hoc Committee, 6.30. K. Wiesbrock, Wer ist Terrorist?, (2002) 50 (2)Vereinte Nationen72.


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callingforaninstantsolutiontotheproblemofdefiningterrorism.31 Theplanwastocondemn terrorismin allitsmanifestations,amounting tothedeliberate andunlaw-ful targeting and killing of civilians, since this could not be justified or legitimisedby any cause or grievance.32 This would have included attacks on civilians by na-

tional liberation movements. In the absence of an exemption for national liberationmovements, however, itishardlysurprisingthat theattempttoreacha breakthroughat the UNs 60th anniversary meeting in September 2005 failed due to the resistanceoftheArabandMiddleEasterncountriesthatwerewaryofthePalestinianliberationstruggle being outlawed.33

Despite the inevitable failure of this manoeuvre, at the time of writing, inDecember 2005, the attempt to conclude a comprehensive convention on inter-national terrorism is being passed to the 61st UN Plenary Assembly in 2006. Aftermore than five years, it will be necessary either to abandon the project of a com-

prehensive convention altogether, or to compromise on the pending issue of anexemption clause for liberation movements.

1.3. Change and continuitiesCynics stick with great relish to the cliche that your terrorist may be my freedomfighter. And indeed, if one looks at the debate held in the 1970s about internationalterrorism, this does not seem to be far off the mark. States tended to favour thoseconcepts of terrorism that subsumed their political enemies, while opposing con-cepts that might have stigmatized their political friends. Since it was impossible toreach agreement on these and similar issues, the international community had tolimit itself to conventions against particular manifestations of terrorism. The wordterrorism normally did not even appear in the main text of these sector-specificconventions, although it was sometimes used in the title and preamble. In noneof these early conventions was there any explicit attempt to define terrorism. Thefocus was on specific criminal acts, and the political intent of the perpetrators wasset aside. Thereby it was possible to avoid conflicts over basic definitional principles,permitting textual agreement to be reached.

Although it should be appreciated that the piecemeal approach has slowlycontributed, by way of induction, to the emergence of a common understanding

of terrorism, the fundamental legal and political problem remains unsolved. Whilenewcategoriesofconductarealwayssubjecttocoverageinsubsequentinstruments,theinternationalfight against terrorismremains inherentlyreactive andpotentiallycontroversial.Acomprehensiveapproachtointernationalterrorismisthereforestillan important desideratum.

31. World Leaders Seek Terror Definition,New York Sun, 8 July 2005; State Department Press Release, 20 July2005, United States Urges Completion of Terrorism Convention.

32. The USand British initiative wasin part prepared by Security Council resolution UN Doc. S/2000/792 (8 Oct.2004) and, in particular, by the elements for a definition suggested in the report of the High-Level Panel onThreats, Challenges and Change: UN Doc. A/59/565 (2 Dec. 2004), 49.

33. UN Struggles to Agree on Definition of Terrorism, Agence France-Presse, 12 Sept. 2005; The Obstacles thatBlock the Way to a Watertight Definition of Terrorism,Herald, 17 Sept. 2005; A Reckless Salesman: BlairsApproach to Terrorism Will Not Suit All Members, Financial Times, 19 Sept. 2005. Cf. A/RES/60/1 (24 Oct.2005), 22.


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After an interruption lasting more than twenty years there now exists anotherattempt to reach a common understanding of international terrorism. It seemsthat positions are much less erratic now than they were in the 1970s. Despitethe inconclusive attempt to reach a consensus in the immediate aftermath of 11

September (and again after the London terrorist attacks in July 2005), it should beappreciated that the Islamic countries are less adamant now than was the Non-Aligned Group in the 1970s. Whereas the Non-Aligned Group categorically de-manded the inclusion of state terrorism in the definition of terrorism, the OICgroup has come to accept its exemption. Moreover, the members of the OIC groupare no longer making the drawing up of a comprehensive convention conditionalon a study of the underlying causes. However, they are still adamant on the ex-emption of all parties during an armed conflict, including in situations of foreignoccupation. This is the last substantive obstacle to an agreement on the legal defin-

ition of international terrorism, and thereby to the conclusion of a comprehensiveconvention.34

It is sometimes maintained that 11 September has completely changed the termsof the debate on terrorism. But this is at best a half-truth. Although the politicalcontext of the debate has changed considerably, the debate in the 2000s seems toreproduce many arguments that are familiar from the 1970s.35 There are both con-tinuities and change. While some familiar arguments are still assiduously repeated,other important cleavages from the 1970s are obsolete.

This can be explained by a number of contextual differences and similaritiesunderlyingthe twodebates.The most importantfactorconcernspowerand ideology,

namely the question of who defends and who challenges the political status quo. Inthe 1970s, the Western states played the role of status quo powers challenged by theThird World, with the communist bloc somewhere in between.36 The maintenanceof political violence used by national liberation movements in general, and by thePalestine Liberation Organization (PLO) in particular, was in the real or perceivedinterest of many Third World regimes.37 Therefore these regimes demanded theexemption of national liberation movements from the definition of internationalterrorism, and called for the inclusion of state terrorism instead; moreover, theyasked that the causes of terrorism be analysed prior to measures being taken against

it. Unsurprisingly the Western status quo powers were not willing to accommodatethe claims of the Non-Aligned Group, and the quest for a common understanding ofinternational terrorism was doomed to failure.

Bythe2000sthesituationhaschangedsignificantly.TherearestillmanyEuropeanand Asian powers interested in the status quo, but the Third World movement is

34. Rowe in UN Doc. A/C.6/57/L.9 (16 Oct. 2002): report of the Working Group, Annex ii.35. Cf. Ginkel,supranote 16; C. Walter, Defining Terrorism in National and International Law, in C. Walter,

S. V oneky, V. R oben, et al. (eds.),Terrorism as a Challenge for National and International Law: Security versusLiberty?(2004), 23.

36. V. Abell an Honrubia, El terrorismo internacional, (1975) 28 Revista Espa nola de Derecho Internacional33;

S. J. Rosen and R. Frank, Measures against International Terrorism, in D. Carlton and C. Schaerf (eds.),International Terrorism and World Society(1975), 60;I. Blishchenko andN. Zhdanov, Terrorism and InternationalLaw(1984), 20831.

37. L. Migliorino, International Terrorism in theUnited Nations Debates, in Italian Yearbook of International Law(1976), II, 102; L. Migliorino, Il terrorismo internazionale nei dibattiti alle Nazioni Unite, in L. Bonanate(ed.), Dimensioni del Terrorismo Politico: Aspetti Interni e Internazionali, Politici e Giuridici(1979), 255.


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virtually dead. The Arab and Muslim states are losing ground at the regional andgloballevel.Accordinglytheirstancehasbecomemoredefensive,andtheirdemandsmore moderate. As we have seen, they have come to accept the exemption of stateterrorism from the reach of the convention, and they have dropped their claim that

the causes of terrorism must be analysed prior to taking practical measures (whilestill asking for the exemption of all parties during an armed conflict, includingin situations of foreign occupation). Since this is not too far from what manyWestern states are demanding, one would expect that an agreement on some sort ofcompromise should be possible. Such a coming together of occidental and orientalcountriescouldbe greatlyfacilitatedby thefactthatIslamicterroristsarethe enemiesnot only of Western civilization, but of the incumbent regimes in the Muslim worldas well.

The crux, however, is that in the 2000s the United States no longer behaves like a

status quo power. Mainlyunder the banner of the war against terrorism, the UnitedStates is projecting its own power all over the world. In Afghanistan the UnitedStates has created a situation of foreign occupation and has become party to anarmed conflict. Together with a small number of other states, the United States hasfurthermore occupied Iraq and thereby created a fait accompli in the Gulf region.In such a situation, it has clear advantages for the hegemonic power to determineon a case-by-case basis who is a terrorist and who is not. For example, it is difficultto imagine that the United States will deny itself the possibility of stigmatizing itspolitical opponents in Afghanistan and Iraq as terrorists.

As long as this situation persists, the United States can hardly accept the OIC

version of the exemption clause in the Draft Comprehensive Convention, which ex-empts all parties to an armed conflict, including in situations of foreign occupation.Or, in other words, for the comprehensive convention on international terrorism tobe concluded, the United States would have to accept or at least to respect sovereignequality again.

2. THE POSITIONS OF THE MAJOREUROPEAN STATES

LetusnowconsiderthepositionsofthemajorEuropeanstates.Theanalysisislimited

to the largest and most important west European countries: France, Germany, Italy,and the United Kingdom. For the sake of comparison, the analysis covers only thethree most controversial topics that were debated during both periods: (i) the questforadefinitionofinternationalterrorism;(ii)theneedtostudyitsunderlyingcauses;and (iii) the inclusion or exclusion of national liberation movements. A carefulcomparative analysis of the political preferences of these four European countrieswill shed further light on the political struggle underlying the legal debate oninternational terrorism.

2.1. The first debate (19729)When the new item was placed on the UN agenda in September 1972, all Westerncountries welcomed the initiative. However, after the topic was used by the non-aligned countries for propaganda purposes, reactions differed.


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Against all odds,38 the United Kingdom was initially very interested in the topic.The main reason was that a strong condemnation of terrorism would have helpedto criminalize external support for the IRA (Irish Republican Army) in NorthernIreland. As one official in the Foreign Office put it, the objective was to have a

periodic stick with which to beat the Irish Government. On the other hand, Britaindid not want to jeopardize its relationships with the Arab world. Accordingly, theEgyptian foreign minister was reassured that the UnitedKingdom wanted terrorismto be dealt with as an international problem and not as particular Arab problem.At the same time, Britain was careful not to provoke international debate on theunderlying causes of terrorism in Northern Ireland. The objective was rather todemonstrate the lack of effective action by the Republic of Ireland against IRA cross-border terrorist activity. Furthermore, there were clear normative limits to Britainsreadiness to accept special treatment for national liberation movements: Freedom

fighting with propaganda is one thing; with bombs another.39

In any case, Britains flirtation with the topic completely evaporated when thenon-aligned countries started using the UN as a propaganda platform. From then on,the United Kingdom worked for a decent burial of the item.40 Britain torpedoed allattempts by the Non-Aligned Group to exclude national liberation movements fromthe definition of international terrorism and to include state terrorism instead. Thebottom line of the British position was that the main immediate objective shouldbe to devise concrete, agreed measures to prevent senseless acts of violence whichmaimed or killed innocent victims.41 At this point Britain opposed a formal defini-tion of international terrorism altogether, and preferred defining the international

public enemy on an ad hoc basis. The study of underlying causes, important as thismight be, should not be allowed to hamper the adoption of immediate measures.The United Kingdom maintained this pragmatic approach, according to which itwas better to devise conventions against specific manifestations of internationalterrorism than to insist on the ambitious objective of a comprehensive convention,until the debate was ended in 1979.42

The French case is interesting because Paris considered international terrorismto be a moral ill and agreed with the non-aligned countries that the problem should

38. In the 1930s the United Kingdom had been unenthusiastic about, if not highly critical of, plans for acomprehensive convention against international terrorism. British National Archives,Terrorism: Committeefor International Repression (1937), CO 323/1466/11; Diplomatic Conference, November 1937: Correspondence,Reservations on Particular Provisions of the Terrorism Convention(1937), HO 189/7;Convention for the Preventionand Punishment of Terrorism and Convention for the Establishment of International Criminal Court: Draft Report(1937), HO 189/8.

39. British National Archives, Motion for Recommendation on International Terrorism(1972), FCO 41/938; Reports ofthe 6th Committee at 27th United Nations General Assembly(1972), FCO 58/667;Measures to Combat TerrorismIncluding Hijacking(1972), FCO 14/1078. The quotations are fromMotion for Recommendation on InternationalTerrorism(undated document) andMeasures to Combat Terrorism Including Hijacking(19 Oct. 1972); see alsoFreeland in UN Docs. A/C.6/SR.1359 (15 Nov. 1972) and A/C.6/SR.1390 (11 Dec. 1972).

40. British National Archives, Measures to Combat Terrorism(1973), FCO 76/633.41. Freeland in UN Doc. A/C.6/SR.1310 (25 Sept. 1972).42. Douglas-Home in UN Doc. A/PV.2042 (27 Sept. 1972); Crowe in UN Doc. A/PV.2114 (18 Dec. 1972); cf. UN

Docs. A/AC.160/1 (16 May 1973), A/9028 (1973), 28; Fifoot in UN Docs. A/C.6/SR.1581 (4 Dec. 1975), A/32/37(28 April 1977), 3334, A/C.6/32/SR.58 (29 Nov. 1977), A/AC.160/SR.15 (28 March 1979); cf. UN Doc. A/34/37(17 April 1979), 2627. Britain took a similar position at the Council of Europe: British National Archives,Council of Europe: Consultative Assembly Recommendation 684 on International Terrorism(1973), FCO 41/1085.


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be legally defined.43 On such normative grounds the French Ministry of Justicesubmitted a proposal for the definition of terrorism.44 France had also suggestedto the Secretary-General that the agenda item should be amended to internationalterrorism, adding a qualifying epithet and thereby assuaging the concerns of some

African and Arab delegations.45 Although it is difficult to imagine that France wouldhave accepted measures that would have seriously infringed national sovereignty,Paris saw it as a moral duty vis-a-vis the international community to bridge the gapbetween extreme positions and help find an adequate legal response.

Unlike its fellow Western democracies France believed in the moral axiom thatthe phenomenon of terrorism could not be dealt with unless its causes wereeliminated.46 Moreover, France was apparently convinced that a legal definitionof terrorism was the best way to legitimize the international fight against terror-ism. Only on the exclusion of national liberation movement from the definition

of terrorism was the French delegate a little more hesitant, although not entirelyopposed.47 The insistence on the underlying causes of terrorism was probably atribute to the former French colonies. France had a national interest in maintaininga large sphere of influence in the Third World, most notably in the Arab countries,and an accommodating stance on terrorism furthered this interest.

In any event, France shared the conviction of many states that the fight againstterrorism needed the support of all countries, that is, had to be universal in orderto be effective. Paris believed that international interests would be best served bya universal agreement and that there was no reasonable alternative to the UN asthe legitimate geographical framework. Accordingly, France insisted that the UN,

rather than the European Economic Community (EEC) or the Council of Europe,was the proper place to devise a comprehensive strategy against terrorism.48 Itwas relatively safe for France to take such a conciliatory stance, since the Ad HocCommittee was used as a talking shop by the newly independent countries of theThird World. This situation engendered so much disagreement that the debate wasnever going to reach the point where a serious commitment would have becomenecessary.

43. French Diplomatic Archives, Note pour la Direction des Nations Unieset Organisations Internationales: Terrorismeinternational, 19 juin 1973, in NUOI 1409: 19701973; dHaussy in UN Doc. A/32/37 (28 April 1977), 20; cf. UNDoc. A/9028 (1973), 21.

44. UN Doc. A/9028 (1973), 21: A heinous act of barbarism committed in the territory of a third State by aforeigner against a personpossessing a nationality other than that of theoffenderfor thepurpose of exertingpressure in a conflict not strictly internal in nature.

45. French Diplomatic Archives,Telegrammes de M. de Guiringaud, Representant de la France aupres des NationsUnies:19Sept.1972,24Sept.1972,03Oct.1972, in NUOI 1409: 19701973. During the1970s, France consideredinternational terrorism to be less of a danger to French territory than a problem in the international sphere.P. G. Czerny, France: Non-terrorism and the Politics of Repressive Tolerance, in J. Lodge (ed.), Terrorism: AChallenge to the State(1981), 91.

46. Guiringaud in UN Doc. A/BUR/SR.201 (21Sept. 1972); dHaussy in UN Doc. A/AC.160/SR.14 (26March 1979).47. FrenchDiplomaticArchives,Rapportsur lAssembleedesNationsUnies1972,inNUOI1409:19701973;dHaussy

in UN Docs. A/AC.160/SR.10 (30March 1977)and A/AC.160/SR.19 (13 April 1979). France did notaddress theproblem of state terrorism.

48. Bessou in UN Doc. A/C.6/SR.1360 (15 Nov. 1972); French Diplomatic Archives, Note pour la Direction desAffaires Politiques: 51eme session du Comite des Ministres du Conseil de lEurope, 12 decembre 1972, in NUOI 1409:19701973; Council of Europe, CM (74) PV.2, 1974, 19; dHaussy in UN Doc. A/32/37 (28 April 1977), 20.


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It was therefore easy for France to lend moral support to the Ad Hoc Committee,although Paris was not particularly satisfied with its work.49 First, everyone shouldhave an opportunity to present his ideas and opinions; then the debate should moveon to study the problem of the underlying causes; subsequently there should be an

attempt to formulate a definition; after that, it would be much easier to considermeasures to combat international terrorism.50 This attitude must have furthercontributed to the slow pace of the work in the Ad Hoc Committee, and France didnot stress a need to speed up the process. All in all one gets the impression that,while formally courting the favour of the non-aligned countries, in reality Francewas not entirely unhappy that the Ad Hoc Committee on International Terrorismhad become a propaganda platform.

Italy, meanwhile, tried to take on itself the role of honest broker.51 This wasmainly due to the fact that Italy at the time was pursuing a global peace strategy

for the Middle East. The idea was that the only way towards an enduring end topolitical violence in Palestine wasa comprehensive approach that took into accountthe political, social, and economic grievances of the Third World in general andof the Palestinian people in particular.52 At the same time, Italys role as honestbroker was also in the national interest, since it was warmly welcomed by the USdelegationthathadfounditselfinanimpasse,andsincesuccessfulmediationwouldhave increased Italys diplomatic prestige. Accordingly, the Italian delegation at theUnited Nations called persistently for a compromise that should meet with as widean international approval as possible.53 The Foreign Ministry in Rome even went asfar as to stress that any action regarding the problem of international terrorism can

only be effective if it is undertaken on a global scale.54

Although Italysaw itself as a mediator between the conflicting parties, it also hadits own preferences on the most important substantive points.55 For example, Romerecognizedthe importance of studying the underlying causes of terrorism, althoughthis should not be allowed to become an obstacle to the goal of adopting concretemeasures. Moreover, Rome was in favour of safeguards for national liberation move-ments, instead of criminalizing their members as international terrorists. But, ofcourse, Italy emphasized that atrocities could not be condoned, however politicallymotivated they might be. Furthermore, Italy recommended that the phenomenon

of state terrorism should not be dealt with under the label of international terror-ism but rather under the rubric of human rights.56 As far as possible, Italy would

49. France kept a certain critical distance from the Ad Hoc Committee and usually abstained from voting.50. Lennuyeux-Comnenk in UN Doc. A/AC.160/SR.12 (28 March 1979).51. Italian Diplomatic Archives (1972), supra note5; Italian Diplomatic Archives, Telegrams to andfrom NewYork

(1973); cf. L. Migliorino, LItalia e il terrorismo internazionale, in L. Bonanate (ed.), Dimensioni del TerrorismoPolitico: Aspetti Interni e Internazionali, Politici e Giuridici(1979), 313.

52. G. Medici, Italian Foreign Minister, in Italian Senate, Plenary Assembly, 6 Oct. 1972.53. Migliuolo in UN Doc. A/C.6/SR.1389 (11 Dec. 1972); cf. Italys initial refusal to deal with the problem at the

Council of Europe: CM (74) PV.2, 1974.54. Italian Diplomatic Archives, Telegrams to and from New York(1974), 20 Jan. 1974.55. Italy sponsored a compromise proposal, which eventually failed in 1972: UN Docs. A/C.6/L.879 (27 Nov.

1972); C.6/L.879/Rev.1 (8 Dec. 1972); Migliuolo in UN Docs. A/C.6/SR.1389 (11 Dec. 1972); A/AC.160/1(16 May 1973), 1416.

56. Vinci in UN Doc. A/C.6/SR.1386 (8 Dec. 1972); Danovi in UN Doc. A/32/37 (28 April 1977), 2223; Forlani inUN Doc. A/31/PV.13 (1 Oct. 1976); Bosco in UN Doc. A/C.6/32/SR.58 (28 April 1977).


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also have preferred to avoid the thorny problem of finding a legal definition ofinternational terrorism.57

After the kidnapping of the former Italian Prime Minister Aldo Moro in 1978,Italy became more pragmatic and called vociferously for concrete measures against

terrorism.58 Nevertheless, theseniorItalian politician Giulio Andreotticontinuedtodrawadistinctionbetweenterroristsandfreedomfighters, 59 andevenin1986sevenyearsafterthedemiseoftheAdHocCommitteetheItalianMinisterofDefencekeptcallingfortheadoptionofacomprehensiveconventiononinternationalterrorism. 60

It is somewhat ironic that West Germany, the country struck by the Munichterrorist assault, was not yet a member of the United Nations when the item ofinternational terrorism was put on the agenda. At an EEC meeting in September1972 the West German Foreign Minister asked the UN delegations of the nine EECmember states to seize the General Assembly of the necessity of an international

convention against terrorism in all its forms.61

When West Germany finally becamea UN member, in 1973, the country formally disclosed its position.62 But since it hadno delegate on the Ad Hoc Committee on International Terrorism, Bonn continuedto keep a relatively low profile.

In any event, West Germany declared that concrete measures against terror-ism were more important than a study of its underlying causes, and that nationalliberation struggles were no excuse for committing terrorist acts.63 Internal docu-ments, however, reveal that West Germany tried to keep neutral on the questionof whether there was an overlap between national liberation movements and ter-rorism. Interestingly, it wanted the political use of violence to be proscribed not

only for non-state actors but also for states. Since the lowest common denominatorat the United Nations was too low for a comprehensive agreement on terrorism tobe reached, Germany had a preference for the more exclusive multilateral fora inEurope. Even NATO was deemed more suitable than the UN for reaching the desiredagreement on terrorism.64

Already in 1973 West Germany had declared its conviction that the best wayto achieve a convention on international terrorism was pragmatically to coverparticularaspectsofthephenomenon.65 From1976onwards,then,Germanyfocusedon its own political project, the draft International Convention against the Taking

of Hostages.66

According to a chief officer from the Ministry of Justice, Germanys

57. Italian Diplomatic Archives, Telegrams to and from New York(1973), 9 May 1973.58. Serafini in UN Doc. A/AC.160/SR.16 (22 March 1979); given this pragmatic turn, it is quite surprising that

Italy was now in favour of defining terrorism (ibid.; but cf. also Serafini in UN Doc. A/C.6/34/SR.9 (3 Oct.1979)).

59. G. Andreotti, Considerazioni sul terrorismo, in M. Galleni (ed.),Rapporto sul terrorismo(1981), 545, at 552.60. G. Spadolini, Una alleanza antiterrorismo fra Ovest, Est e non allineati, interview inCorriere della Sera,

28 Sept. 1986.61. British National Archives, Reports of the 6th Committee,supra note 39.62. UN Doc. A/AC.160/1 (16 May 1973), 1011.63. Busse in UN Doc. A/C.6/SR.1581 (4 Dec. 1975); Bracklo in UN Doc. A/C.6/SR.1521 (9 Dec. 1974).64. German Federal Archive,Vereinte Nationen: InternationalesUbereinkommen vom 18. Dezember 1979 gegen Ter-

rorismus, B 141/57349, vol. 4.65. Paper Unsere Position zum TOP Terrorismus, ibid. There are no explicit statements on whether Germany

thought it desirable or not to define international terrorism.66. Genscher in UN Doc. A/31/242 (28 Sept. 1976).


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initiativewasareactiontothefailureofpreviousattemptstoreachacomprehensiveagreement.67 It was basically due to this failure that Germany had come to theconclusion that concrete measures against certain manifestations of terrorism werebetter than endless discussions about its essence and underlying causes.

2.2. The second debate (20005)In recent decades the member states of the European Union are often representedat the UN by the country holding the EU presidency. For example, Italy declaredin late 2003 on behalf of the European Union: With regard, in particular, to thedraft Comprehensive Convention on International Terrorism, submitted by India,wereiteratethatitsscopeshouldbetoprovideaddedvalueinrelationtopre-existingspecific Conventions by filling the gaps of unregulated issues.68 At the same timethe member states of the European Union are free to formulate their own policy

statements whenever they deem it appropriate.The most important problem with EU presidency statements is that they usuallyrepresent the lowest common denominator among member states. They tend topaper over substantial differences between individual bargaining positions. It istherefore better to analyse the statements of the delegates of the most importantmember states than EU presidency statements.

TheUnitedKingdomtendstoopposeadefinitionofterrorismattheUN,althoughit is one of the few European countries where terrorism was legally defined before11 September. The British permanent representative at the UN said in October2001,

There is common ground amongst us all on what constitutes terrorism. What looks,smells and kills like terrorism is terrorism. . . . But there are also wars and armedstruggles where actions can be characterized, for metaphorical and rhetorical force, asterrorist. This is a highly controversial and subjective area, on which, because of thelegitimate spectrum of viewpoints within the United Nations membership, we willnever reach full consensus . . . Our job now is to confront and eradicate terrorism pureand simple: the use of violence without honour, discrimination or regard for humandecency.69

Since the terrorist attacks of September 2001, the United Kingdom has two al-

ternative outlets for its initiatives against terrorism. On the one hand is the GeneralAssembly and its Sixth Committee. On the other hand, the United Kingdom hasa permanent seat on the Security Council and its Counter Terrorism Committee(CTC). Between these two options, the United Kingdom clearly prefers the prag-matic approach of the Security Council to the legalist approach of the GeneralAssembly. In 2003 the UK delegates even kept absent from the meetings of the Ad

67. E. Corves, International Co-operationin theField of International Political Terrorism, (1978)1 (2)Terrorism:An InternationalJournal199,at 210;cf. R. Lagoni, DieVereinten Nationen undderinternationaleTerrorismus,in M. Funke (ed.),Terrorismus: Untersuchungen zur Struktur und Strategie revolution arer Gewaltpolitik(1977),259, at 26871.

68. Nesi, EU Presidency Statement, Measures to Eliminate International Terrorism, Sixth Committee, 15 Oct.2003 (http://www.europa-eu-un.org, retrieved 30 July 2004).

69. Greenstock in UN Doc. A/56/PV.12 (1 Oct. 2001).


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Hoc Committee.70 As Sir Jeremy Greenstock, then chairman of the CTC, put it inearly2002, the General Assembly is 189 equal voices and votes, with no party discip-line and no particular leadership, and it is chaos most of the time in terms of gettingcollective answers.71 This explains the predilection of the United Kingdom to use

its permanent seat on the UN Security Council rather than its voice in the GeneralAssembly. Indeed, Greenstock used all his influence to keep the CTC as operationalas possible and to prevent it from being dragged into debates on the legal definitionof terrorism and its causes and on the legitimacyof political violence by national lib-eration movements.72 In the General Assembly and its Sixth Committee the UnitedKingdom hardly spoke at all on the comprehensive convention on internationalterrorism.73

As has already been mentioned, after the terrorist attack in London in July 2005Britain apparently reversed its stance on the definition of terrorism. After this dread-

ful event, the United Kingdom suddenly started to call for a comprehensive con-vention, including an unequivocal definition and condemnation of terrorism.74

However, Britain was not at all ready to compromise with the Muslim world on anexemption clause for national liberation movements. Accordingly, what seemed tobe a revolution in the British bargaining position may also be seen as a tactical moveagainst the effort to achieve an internationally agreed definition of terrorism. Afterthe failure of this adventurous episode, Prime Minister Tony Blairs official spokes-man argued that what mattered most was not a perfect definition of terrorismbut the practical measures taken to combat it.75 One may indeed wonder whetherthe BritishUS initiative was really intended to solve the problem of a consensus

definition of international terrorism, or whether it was not rather meant to raise thestakes so high that the entire project would fail altogether. Given the general stanceof the United Kingdom (and the United States) over the last five years, the latterhypothesis is more plausible.

The French position, in contrast, has been distinguished right from the start bya repeated insistence that a comprehensive convention on terrorism is necessary.76

Although it is likely that France desires a legal definition of international terrorism,the problem is not directly addressed. France has also remained remarkably silenton the question of whether national liberation movements should be exempted

from the application of the convention. However, Paris consistently stresses thepoint that it is necessary to analyse the underlying causes of terrorism and not just

70. See UN Doc. A/AC/252/2003/INF/1 (18 June 2003).71. Merill House conversation, 27 Feb. 2002, Carnegie Council on Ethics and International Affairs

(http://www.cceia.org/, retrieved 2 Aug. 2004).72. I. Williams, Abbringen,Verweigerung, Zusammenarbeit: der Ausschuss des Sicherheitsratszur Bek ampfung

des Terrorismus, (2002) 50 (6) Vereinte Nationen213; R. Mani, The Root Causes of Terrorism and ConflictPrevention, in Boulden and Weiss,supra note 2, at 219.

73. Only once, on 12 Nov. 2001, did the UK Foreign Secretary Jack Straw declare to the Security Council that theUnited Kingdom would continue to work to complete the comprehensive convention on terrorism, whileat the same time stressing the paramount importance of taking concrete measures (S/PV.4413).

74. Cf. note 31supra; on the British position see London Attacks Should Spur New Efforts toward TerrorismConvention, DiplomatsSay, Associated Press, 8 July 2005; British DiplomatsPush Annan for a No ExcusesDefinition of Terrorism, Sunday Telegraph, 24 July 2004.

75. Blair Frustrated as UN Fails to Agree on Anti-terror Action,Independent, 15 Sept. 2005.76. Levitte in UN Doc. S/PV.4242 (6 Dec. 2000); Villepin in UN Doc. S/PV.4688 (20 Jan. 2003).


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to take practical steps against it. Take for example the following statement by aformer French foreign minister:

We are waging a merciless fight against terrorism. Let us at the same time address itsroots.That means putting an endto situations that terrorists exploit; givingthe worldsexcluded hope again;restoring dignity tothosepeoples deprivedof it;and ensuringthatdialogue and co-operation among civilizations, cultures and religions prevail, ratherthan conflict and intolerance.77

In comparison with the French position, the German stance is even bolder.78 Notonly does Berlin explicitly support the effort to reach a comprehensive conventionon international terrorism and stress the necessity to analyse the full range ofcauses and circumstances that permit such hatred and violence to grow;79 theGerman Foreign Ministry also declares, and this goes beyond the political rhetoricfrom the Quai dOrsay, that it would like to see a universally binding legal definition

of terrorism.80 If it were only up to Berlin, the Comprehensive Convention wouldcover national liberation movements.81 The rationale of the German position wasneatly put by the foreign minister:

What we need is a system of global co-operative security. Asymmetrical conflicts inparticularmustbecounteredwithaninternationalsystemofsanctionsandverificationmechanisms. It is theUnited Nations that provides us with theappropriate frameworkfor that.82

Italy has kept a relatively low profile, not only in comparison with the strongattitudes of Britain, France, and Germany, but also in comparison with its own

active role in the 1970s. It seems that the Italian delegates in New York, althoughgenerally sympathetic to the project of a comprehensive convention, have hardlymade any substantial contributions to the debate.83 It is therefore impossible toreconstruct the details of the Italian position from official UN documents, and,unfortunately, the situation is not much better with regard to official statements bythe Italian government.84 One is therefore forced to turn to more informal sources.85

AccordingtooneinterlocutorattheForeignMinistryinRome,Italyinitiallyfollowedthe United States in opposing the Comprehensive Convention as drafted by Indiain 1996.86 Although Rome is not opposed to a definition of terrorism as such, thesource in the Foreign Ministry reveals that Italy considers itself to be a close ally of

the United States. Since the United States is a notoriously close ally of Israel, Italy

77. Barnier in UN Doc. A/59/PV.7 (23 Sept. 2004); cf.inter alia UN Doc. S/2001/1274 (28 Sept. 2001), 3.78. Kastrup in UN Docs. A/56/PV.10 (25 Sept. 2001) and A/56/PV.15 (2 Oct. 2001).79. Fischer in UN Doc. A/56/PV.48 (12 Nov. 2001).80. Personal communication with a diplomat in the German Foreign Ministry (April 2004); Germany Says UN

Reform Agenda Falls Short on Disarmament and Terrorism, Agence France-Presse, 15 Sept. 2005.81. http://www.auswaertiges-amt.de/www/de/aussenpolitik/vn/itb/itb_vn_html, retrieved 8 Aug. 2005.82. Fischer in UN Doc. S/PV.4688 (20 Jan. 2003).83. Shortly after 9/11, Italy declared itself in favour of a comprehensive convention; see Ruggiero in UN Doc.

A/56/PV.46 (11 Nov. 2001).84. Foreign Minister Renato Ruggiero made some cursory remarks in the Italian House of Representatives on

9 Oct. 2001; cf. also Putin und Berlusconi f ur Verabschiedung umfassender Konvention gegen Inter-nationalen Terrorismus,RIA Novosty, 3 Nov. 2004.

85. Personal communication with a diplomat in the Italian Foreign Office (April 2004).86. This changed around 2000, after the Indian draft had been rewritten (with strong US involvement).


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considers itself as an ally of Israel as well. Still according to the same interlocutor,this is the reason why Rome has for a long time opposed a definition of internationalterrorism that would have excluded the Palestinian insurrection.87

3. THE POLITICAL STRUGGLE BEHIND THE LEGAL DEBATE

Let us now try and place these findings within the broader conceptual framework.According to Carl Schmitt, politics under extreme conditions is first and foremostabout determining and fighting the public enemy.88 According to such a view, theperson or institution able to tell us from them in a state of emergency holds theultimate sovereign power.89 This amounts to a sort of litmus test for the true locusof political authority. Of course that is not to deny that in a state of normalcy, that is,mostofthetime,politicsisbroadlyinlinewithacivilizingprocessthatdelegitimizesthe indiscriminate use of violence.90 But there is another side to the same coin: realor perceived challenges to the civilizing process must be violently suppressed.

As a matter of fact, the Leviathan has always been in the business of suppressingprivate violence, whether it comes in the shape of individual misdemeanour ororganized crime. If this is true about private violence, then it is even truer aboutpolitical violence in general, and about terrorism in particular. Whereas privateviolence is a challenge to the states monopoly of the legitimate use of force andprompts the obligation of the state to uphold law and order, political crime andterrorismarenotonlyachallengetothemonopolyofforcebutalsotothemonopolyof the state and its ruling elite to determine the public enemy. Political offenders

in general, and terrorists in particular, almost always challenge the state on its ownturf by declaring that the incumbent power is the real enemy that must be foughtrelentlessly for the sake of some higher end, be it anarchy, separatism, communism,or religious rectitude. They thereby challenge the very core of sovereign power: thediscretion of the state to determine the public enemy.91

This is the main reason why struggles against political violence and terrorismtend to be so acrimonious even when they involve a lesser objective (i.e. statistical)risk to the safety of the individual citizen than other forms of violence. Whenever

87. Nevertheless, Italy accepted an EU compromise proposal that suggested that an explicit reference to theprinciple of national self-determination should be included in Art. 18 (now 20) of the draft Convention (R.Barberini,Alcuneosservazionisulprogettodi Convenzioneglobalecontroil terrorismo, (2002)2 LaComunit aInternazionale201, at 2089); moreover, Italy suggested a safeguard clause: whenever the ComprehensiveConvention enters intoconflict withan existing sector-specificconvention, the latter shallcontinueto apply(ibid., at 203; cf. Vento in UN Doc. A/56/PV.17 (3 Oct. 2001)).

88. C.Schmitt, Politische Theologie: VierKapitel zur Lehrevon der Souver anit at(1922), translated by G. Schwab underthe title Political Theology: Four Chapters on the Concept of Sovereignty(1986); Schmitt, supra note 1.

89. There are interesting attempts to construct a political theory of the state of emergency (G. Agamben,Statodi Eccezione(2003)). Nevertheless, I do not believe that it is possible to construct such a theory. Although thestate of emergency poses a profound challenge to the theory and practice of political and legal order, it cannever be an organic part of it. The reason is that any vision of order necessarily derives from the state ofnormalcy, as endangered as it may be, and not from the state of emergency, as frightening as it may be.

90. N. Elias, Uber den Prozess der Zivilisation(1939), translated by E. Jephcott under the titleThe Civilizing Process(1994).

91. As the Italian Red Brigades put it, the aim of their fight was to create a new legality, a new power (leafletdistributed in Milan in spring 1970).


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the power to determine the public enemy is at stake, there is a tendency for thestruggle to become unconditional and for atrocities to take place on both sides.More often than not, such struggles are born out in terms of eschatological holywars or merciless crusades.

Terrorists challenge by brute force the power of the state to determine the publicenemy.Thisisalsothecaseinsituationsofcivilwarandarmedconflict,orwheneverthere is a movement of partisans, rebels, guerrillas, or revolutionary warriors tochallenge the incumbent power.92 Brute force is the hallmark of all these violententrepreneurs, and more often than not the immediate response of the incumbentpower to these challenges is particularly acrimonious and violent.

In less extreme cases, or in concomitance with such a bloody struggle, the fightcan also take on a legal dimension. At the international level, for example, this wasthe case after the Napoleonic wars, when Europes conservative powers formed a

Holy Alliance to determine and suppress the common threat of liberalism andnationalism. Another example is the 1970s. As we have seen, there was a phalanxof African and Arab states who sympathized with the attempt of violent politicalentrepreneurs to challenge the Western state system in general and states such asIsrael and South Africa in particular. Western reactions ranged from denial as in thecase of the United States, the United Kingdom, and Germany, to accommodatingmoves as in the case of France and Italy. Another round in this legal struggle hasstarted in the 2000s, especially after the terrorist attack of 11 September 2001.

As was shown at the end of the first section, there are both important similaritiesand differences between the debate in the 1970s and that in the 2000s. This becomes

even clearer if one moves from an analysis of the general debate to the positionsof the major European powers. In either debate, most European countries had (andstill have) a stake in defending the status quo. At the same time, there are importantdivergences due to differences in political context. In the 1970s the status quo waschallenged from the bottom, that is, by non-aligned countries that were, at leastrhetorically, supporting national liberation movements. In the 2000s, by contrast,theterrorists are mostly isolated from state power. This time theinternational statusquo is rather challenged from the top, namely by the United States and some of itsclosest allies.

In fact, today there is no revolutionaryThird World movement anymore. Instead,one challenge comes from violent political entrepreneurs known as Islamic terror-ists. Another challenge is posed by the US government, which claims for itself thediscretion to determine the international public enemy on a case-by-case basis. Theother states are left with the choice of either joining the coalition of the willing andfightingtheenemyasdeterminedbytheUnitedStates,orofrunningtheriskofthem-selves being associated with the enemy (either you are with US or you are against

92. Cf. C. Schmitt,Theorie des Partisanen: Zwischenbemerkungen zum Begriff des Politischen(1963). All this is not todeny that Schmitt, especially during his flirtation with Nazi power, had a certain contempt for legal normsand celebrated the production of concrete orders by decisionist fiat (C. Schmitt, Uber die Drei Arten desRechswissenschaftlichen Denkens(1934)). On theperson of Carl Schmitt seethe fascinating piece by C. Lindner,Himmelsschlachten oder die Heimkehr des Odysseus: Eine Reise zu Carl Schmitt, Frankfurter AllgemeineZeitung, 24 March 2005.


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US). It is easy to understand that, under the immediate impact of 11 September,Western states were more concerned with the challenge posed by the terrorists thanwith the challenge posed by the United States. Nevertheless, there were differences.Some countries (France, Germany) were just a bit less concerned with international

terrorism and a bit less accommodating towards the United States, whereas others(United Kingdom, Italy) tended to bandwagon unconditionally with the hegemonicpower in its fight against whomever was declared to be the international publicenemy.

By and large, however, the United States has been in a position to determine on acase-by-casebasiswhotheinternationalpublicenemy(readterrorist)happenstobe.It therefore came as no surprise that, as far as can be seen from the UN documents,the United States was rather wary of participating in the debates of the Ad HocCommittee and the Working Group.93 Since a comprehensive convention with a

legal definition of terrorism would have limited the discretion of the United Statesto determine the international public enemy on a case-by-case basis, the UnitedStates has been acting according to an old motto coined by a Roman lawyer: omnisdefinitio in iure periculosa.94

From the standpoint of the less powerful, it is quite to the contrary: it is preciselythe absence of a legal definition which is dangerous. A reasonably clear and legallybinding definition of terrorism would work as an insurance against the tendencyof the hegemonic power to determine the international public enemy at its owndiscretion. There are certainly common enemies of all states, such as al Qaeda, andthese should definitely be covered by the definition of terrorism. At the same time,

however, a good definition should prevent the hegemonic power from misusingthe label of terrorism as a licence to crack down on its occasional enemies. It istherefore surprising that the major European powers, for a long time, have beenkeeping such a low profile in the discussions about a comprehensive convention oninternational terrorism. Maybe this is still due to the experience of the 1970s, whenit was rather unpleasant for a Western state to participate in these debates. But thesituation has changed, and it would be a gross political mistake for the Europeanpowers to neglect the issue.

4. CONCLUSIONThe fight for the power to define the public enemy takes the shape of a permanenteschatological struggle. Its latest manifestation is the fight against Islamic terroristsashostes humani generis. Apart from the atrocity of their deeds, these criminals areposing a challenge to the power of states to tell good from evil at the global level.

93. To the United States, as well as to the United Kingdom, the Security Council and its Counter-TerrorismCommittee seem to provide a much more attractive platform than the General Assembly and the Ad HocCommitteeon InternationalTerrorism (Williams,supra note72;C.deJongeOudraat,TheroleoftheSecurityCouncil, in J. Boulden and T. G. Weiss (eds.),Terrorism and the UN: Before and After September 11(2004), 151).

94. Any definition in law is dangerous (Iavolenus).


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However, the status quo is challenged not only by the terrorists but, although in asomewhatlesstangibleway,bytheleadinganti-terroristsaswell.IftheUnitedStatescontinues to hold the monopoly of determining the international public enemy atits own discretion, this will be a decisive step towards world empire. Most of the

present friends of the United States would then turn from allies into vassals, whileothers might eventually become enemies themselves. The status quo powers musttherefore steer their ship between the Scylla of leniency towards terrorist criminalsand the Charybdis of excessive accommodation to the hegemonic power. This isdefinitely not only a legal question but above all a political problem. In the longrun, the monopoly of the hegemonic power to determine the international publicenemy would pose a higher risk to the political autonomy of the status quo statesthan the challenge posed by international terrorism, since the six spitting faces ofthe terrorist Scylla are less likely to lure them than the deep throat of the hegemonic

Charybdis that threatens to suck them in.Theworldisnowattheendofasmallhegemonicpolicycycle.Intheshortrun,thewar on terror created a permanent state of exception (SchmittsAusnahmezustand)that could rally an ample coalition of the willing around the hegemonic powerof the United States. The discretion of defining the international public enemy, beit Osama Bin Ladens al Qaeda or Saddam Husseins Iraq, engendered a mechanismof othering that initially increased US power. In the medium term, however, theabsence of a shared definition of terrorism threatens to undermine the consensus oftheinternationalcoalition,ascanbeseenfromthecampaignagainstIraq.Therefore,in the long run, the United States (and its British junior partner) cannot do without

a minimum consensus on the definition of the international public enemy, and,interestingly, it is precisely the long-despised UN General Assembly that offers theinstitutional focal point for such a definition. Insofar as the state of exception isnot sustainable in the long run, this is the revenge of the less powerful states. Theycan now try to drag the hegemonic power into a legal arrangement that is bound toconstrain its room for manoeuvre.

It is indeed in the common interest of the Arab states and the European powersto agree on a binding legal definition of terrorism. The current position of the OICgroup to exclude both national liberation movements and state terrorism from

the definition should be acceptable to all those interested in the maintenance ofthe status quo, especially west European countries but possibly also east Europeancountries, Russia, India, and China. At least as far as western Europe is concerned,national liberation movements have ceased to be a matter of concern many yearsago. The times of colonialism and the Cold War are over. The Palestinians havestopped relying on international terrorism and have returned to local campaigning.Where liberation movements are still active they should be dealt with using legalframeworks other than terrorism, such as the Geneva conventions. To meet theimminentchallenge,adefinitionofinternationalterrorismthatwouldrulealQaedaand other fundamentalist terror organizations in, and the Palestinians and Israelis

out, should be acceptable to a wide variety of states.The familiar policy of the hegemonic power, which tends to determine the in-

ternational public enemy on a case-by-case basis and thereby not only declares but


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also reproduces a perpetualAusnahmezustand, is hardly desirable to the status quostates. It is both important and reasonable for them to ensure a legal definition ofinternational terrorism according to which, in order to qualify as an internationalterrorist, one has to be the enemy of all civilized nations and not just of one or

two particular states. This will greatly increase the consensus in the internationalcoalition against terrorism. However, it will depend on the spirit of compromiseamong all parties concerned whether a comprehensiveconvention on internationalterrorism is finally concluded.

Defining the International Public Enemy, the Political Struggle behind the Legal Debate on International Terrorism_Jörg Friedrichs

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