Differentiating International Terrorism and ‘Peoples’: Struggles for Self-Determination

By Elizabeth Chadwick

Dr. Elizabeth Chadwick is a retired British academic. In recent years, she has authored ‘Terrorism and self-determination’, in Ben Saul (ed.), Research Handbook on International Law and Terrorism (Cheltenham, UK: Edward Elgar, 2d ed., forthcoming), ‘Terrorism and self-determination’, in Ben Saul (ed.), Research Handbook on International Law and Terrorism (Cheltenham, UK: Edward Elgar, 2015), ‘National Liberation in the Context of Post- and Non-Colonial Struggles for Self-Determination’, in Marc Weller (ed.), The Oxford Handbook of The Use of Force in International Law (Oxford: OUP, 2015), and Self-Determination in the Post-9/11 Era (Routledge Research in International Law, 2011). She has also contributed a number of other book chapters and journal articles on a variety of related topics, including ‘Neutrality’ for Oxford Bibliographies in International Law (T. Carty, ed.) (2014).

Published September/October 2019

All too little understood, the uniqueness of the [terrorist] strategy lies in this: that it achieves its goal not through its acts but through the response to its acts.[1]

1. Introduction

Acts of international terrorism and the right of “peoples” to struggle forcefully for their self-determination are separate and distinct issues. However, as international law has no overarching, universally accepted definitions for either phenomenon,[2] they should be examined through specific examples of violent acts.

By way of preliminary overview, acts of international terrorism ordinarily entail the perpetration of “unauthorised” violence, inasmuch as governments hold the monopoly over the lawful use of force. As such, the terrorist “characterisation” is normally employed politically to denote violent non-state actors, even though governments, too, can and do perpetrate acts of terrorism.[3] Much depends on how the ‘crime’ of terrorism is defined.[4]

The self-determination of “peoples”, in contrast, is a legal right; forceful struggle for to obtain the right presupposes the existence (and desirability) of sovereignty. However, as they utilise unauthorised force to seek greater autonomy, to change an existing government, or to secede territorially, they are often depicted and prosecuted domestically as “criminals” and “terrorists”.

The choice and definition of the legal labels employed domestically to prosecute terrorist acts and forceful struggles for self-determination are generally of little utility, however, when seeking to resolve international difficulties concerning wider legal distinctions.[5] Specifically, when states enact domestic criminal laws, their ultimate aims may differ from one state to another. This means that domestic-state legal labels are of little or no utility when the time arrives for states to agree at the global level on definitions of and/or responses to either terrorism or self-determination.

More often than not, individual states prohibit acts which might endanger that state’s existence, or the global map of existing states.[6] The very issue of popular resistance to government – whether or not force is utilised – prompts many states to adopt the rhetoric of criminality and to label all forms of anti-government opposition as “terrorism,” which permits the term “terrorism” to be utilised widely in the political arena. Its ubiquitous employment since 9/11 has thus enabled a return to “the very old trend of resorting to the notion of ‘terrorism’ to stigmatise political, ethnic, regional or other movements [governments] simply do not like.”[7]

For example, the 1999 Terrorism Convention of the Organisation of African Union defines a “terrorist act” in Article 1(3)(a)(iii) in pertinent part as follows:

“‘Terrorist act’ means: (a) any act which is a violation of the criminal laws of a State Party … and is calculated or intended to: …; or (iii) create general insurrection in a State; …”

In other words, this definition of “terrorist” acts includes revolution.[8] Therefore, the term “terrorism” remains a pejorative label, even though the “justness” of a self-determination “cause” may influence its reception at the international level.[9]

The term ‘self-determination’ is also amorphous, but for different reasons. States may acknowledge the right of ‘peoples” to choose how they wish to be organised and governed,[10] but any notional ‘right’ to use force to achieve that result will not be recognised by a state threatened with liberation violence. A few examples are revealing. At the international level, the principle of equal rights and self-determination of peoples is expressly re-affirmed in the Preamble of the 1979 Hostages Convention,[11] and there is no express labelling of hostage-taking as “terrorism.” At the regional level, the right to struggle to achieve self-determination is acknowledged in a number of anti-terrorism treaties, such as the Convention against Terrorism 2004 of the Co-operation Council for Arab States of the Gulf, the Arab Convention on the Suppression of Terrorism 1998 of the League of Arab States, the Convention on the Prevention and Combating of Terrorism 1999, and the Protocol of 2004, of the Organisation of African Unity, and perhaps most notably, the Convention of the OIC On Combating International Terrorism 1999, of the Organisation of Islamic Countries, to name a few.

This discussion concerning the distinction between international terrorism and self-determination is structured as follows. First, the issue of terrorism is presented briefly in general terms, from its early-modern political origins in the “anarchic” late 19th century, to the political violence of the present day; violent acts based on religion or belief are generally beyond the scope of discussion.[12] Secondly, the right of peoples to struggle for self-determination is introduced. Thirdly, the contemporary tendency to confound terrorism with struggles for self-determination is contextualised both in terms of the use of force, and as part of a global state effort to prohibit all non-state violence, including revolution. It is concluded that the central distinction between the two phenomena is premised on the use of indiscriminate violence.[13]

2. Terrorism

The term “terrorism” has its modern origins in the state-sponsored violence of the French Revolution (1789 – 1799),[14] but the emergence of terrorism’s modern connotation, denoting the perpetration by non-state actors of violence for political ends, began with the rise of the “anarchist” movements in the mid-to-late 19th century. These movements constituted a significant, politicised aspect of early organised labour. In turn, a growing rejection of extradition for the perpetrators of political offences inaugurated the linkage of terrorism and self-determination.[15]

The early anarchists were guided by their own codes of revolutionary ethics,[16] as they advocated direct violence against governments, including such methods as the targeted assassination of the powerful.[17] Most particularly, the assassination of King Alexander I of Yugoslavia and the French Minister for Foreign Affairs at Marseilles on 9 October 1934, finally prompted the drafting by the League of Nations of the 1937 Convention for the Prevention and Punishment of Terrorism (“Terrorism Convention”), which was linked to the Convention for the Creation of an International Criminal Court.[18]

Neither convention entered into force, but both were highly innovative. For example, the Terrorism Convention made an attempt in Article 2 to harmonise state domestic definitions of terrorist offences having an international character, and to roll back the traditional state neutrality shown towards the revolutions of others by incorporating a duty to prosecute captured suspects.[19] It also was the first convention to frame the definition of terrorism as an attack against the state. Article 1(2) of the 1937 Terrorism Convention specifically defines ‘acts of terrorism’ as “criminal acts directed against a State” to which the following condition is added: “and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public.” The state, in turn, is represented, in Article 2, primarily by Heads of State, their families, other state agents, and public property. Members of the public are protected in Article 2(3) somewhat as an afterthought.

These early terrorists clearly limited their means, methods and targets. Walzer remarks that they had their own “political code first worked out in the second half of the 19th century and roughly analogous to the laws of war worked out at the same time.”[20] For example, he points to the political parallel of differentiating combatants from non-combatants. Most presciently, he asserts that:

“Tyrants taught the method [of terrorism] to soldiers, and soldiers to modern revolutionaries. … [T]errorism in the strict sense, the random murder of innocent people, emerged as a strategy of revolutionary struggle only in the period after World War II, that is, only after it had become a feature of conventional war.”[21]

On this basis, it can be argued that, alongside the evolution of formal inter-state laws of war, so did the ethics and tools of non-state revolutionary actors. Demobbed soldiers after both World Wars returned to their communities trained and equipped with the knowledge and methods of “total” warfare. Today, the effects of indiscriminate violence have become contemporary hallmarks of warfare and modern terrorism alike, while violent actors continue to emerge and to develop new tools and targets, making randomness, “death by chance,” intimidation and fear into every-day experiences.[22]

Towards the end of the Cold War, international sentiment regarding terrorism was changing. For example, UN GA Resolution A/Res/40/61 of 9 December 1985, on measures to prevent international terrorism, stated, in Para. 1, that the Assembly “unequivocally condemns, as criminal, all acts, methods and practices of terrorism wherever and by whomever committed”; its reaffirmation of “the principle of self-determination of peoples enshrined in the Charter of the United Nations” is found only in the preamble. UN GA Resolution A/Res/49/60 of February 17, 1995, [23] supplemented by UN GA Resolution A/Res/51/210 of January 16, 1997, condemns all terrorist acts, and promises to fill any remaining gaps in legal coverage at the international level.[24]

Three new anti-terror conventions with extremely broad definitions were the result: on terrorist bombings, terrorist financing, and acts of nuclear terrorism.[25] Meanwhile, a new consensus among states of a right to use force in self-defence against violent non-state groups also emerged.[26]

After the al Qaeda terrorist attacks of 11 September 2001, UN Security Council Resolution S/Res/1373 (28 September 2001) called upon all member states to ratify and implement not only the provisions of the recent 1999 Financing Convention,[27] but also the earlier “anti-terrorism” conventions. The resolution urged states to refrain from providing any form of support, active or passive, to anyone involved in terrorist acts, including by suppressing recruitment to nominated terrorist groups, to intensify and accelerate their mutual exchanges of information, especially concerning the use of information and communications technology by terrorist groups, to construct a global net over certain actors, and to encourage states to harmonise their domestic arrangements regarding same.

Nonetheless, a single, global definition of terrorism in either conventional or customary international law has yet to emerge.[28] The General Assembly’s Ad Hoc and Sixth (Legal) Committees have been at work for years on a Draft Comprehensive Convention on International Terrorism (DCCIT),[29] which is intended mainly to provide a technical legal enforcement instrument to supplement existing police and judicial co-operation in criminal law matters, such as extradition and mutual assistance, and to rationalise related provisions in earlier instruments. The DCCIT remains a work-in-progress, however, due, inter alia, to questions surrounding the inclusion or exclusion of liberation acts from its coverage. A consolidated text of the DCCIT was submitted in 2005 to the General Assembly and awaits a decision to finalise it under UN auspices at some future point.[30]

The stalemate on the DCCIT attributable to the inclusion or exclusion of liberation acts within its coverage poses huge risks for the structure of international law, as it threatens to reverse the priority of international laws of armed conflict over domestic state law-and-order approaches to terrorism,[31] when the former area of law is lex specialis, and is to be respected “in all circumstances.”[32] In either legal regime, terrorist acts are unlawful, but while such acts are always unlawful under peacetime law,[33] they are unlawful under laws of armed conflict only when utilised intentionally against civilians.[34] Cassese encapsulates this distinction succinctly:

[A]ttacks by freedom fighters and other combatants in armed conflict, if directed at military personnel and objectives in keeping with IHL, are lawful and may not be termed terrorism. If instead they target civilians, they amount to terrorist acts (not, therefore, to war crimes) if their purpose is to terrorise civilians.[35]

In turn, the distinction is yet another telling reminder of the way in which state uses of force have foreshadowed non-state terrorist violence in the 20th century: inflicting terror against civilians can be highly effective in bringing hostilities to a close.

3. Self-Determination

The right to self-determination has also never been defined at the international level,[36] but it is today generally understood to denote the process by which a “people” forms its own government and/or determines its own statehood.[37] While the principle of self-determination is certainly long-standing,[38] it emerged after both 20th century World Wars largely to deal with minority issues: first, via the League of Nations Minorities Treaties, for newly-formed states,[39] and, secondly, within the UN principle of “friendly relations among nations,”[40] and anti-colonial agenda.

Nonetheless, self-determination is not about minorities, per se. A minority may need to utilise force to compel receipt of their internal rights entitlements (“internal” self-determination),[41] but a minority is not viewed as automatically entitled to autonomy or secession. Something more is required, e.g., a colonial context, such that the key is a “people” seeking its self-determination and national liberation against the rule of outsiders, and/or to achieve territorial secession from a larger state administrative unit (external self-determination) in accordance with traditional national liberation theory, e.g., to oust invaders.[42]

Early on, the UN Charter’s promotion of “friendly relations among nations” included the ending of colonialism, as promised in the 1941 Atlantic Charter,[43] between US President Roosevelt and UK Prime Minister Churchill. Nonetheless, the two express references to self-determination in the UN Charter remain quite conditional in comparison to “hard” Charter rules for maintaining international peace and security.[44] Otherwise, states retain sovereign control internally.[45]

The world has changed greatly since 1946, however, when eight UN member states (Australia, Belgium, Denmark, France, the Netherlands, New Zealand, the UK and the USA) identified 72 non-self-governing territories under their control, and when 11 territories were placed under the stewardship of the Charter Trusteeship System.[46] During the decades-long Cold War, many of these territories utilised force to gain their independence from former colonial states. Issue-specific anti-terrorist conventions at the international level were agreed starting in the 1960s, yet the early conventions did not refer to the prohibited offences as “terrorism”, due to geo-strategic rivalry regarding support for or against certain forceful liberation struggles.

In turn, an early international effort to tether “approved” liberation struggles to the UN’s anti-colonial agenda was doomed to fail.[47] As the Charter is silent regarding which peoples are entitled to self-determination, how, precisely, they are to achieve it, and what rights entitlements are included, many struggles for self-determination begin as political protests in any event, escalating only once governments respond with excessive force.[48] Most revolutionary struggles ultimately make appeals to self-determination,[49] so the desirability of self-determination remains solidly anchored in the modern consciousness.

Nonetheless, the human costs of violent struggle for self-determination have been high: over 80% of all casualties in armed conflicts since 1945 are attributable to civil wars, most fought for self-determination.[50] With the Cold War over, the USA and USSR terminated their competing support in a number of liberation conflicts; many struggles ended, while new funding sources were secured in others.[51] Most colonial situations are resolved[52] and notional justifications for utilising violence to achieve self-determination have been eroded,[53] but new forms of terrorism and self-determination causes, continue to emerge.

In short, while the principle of self-determination has evolved from a minorities issue into a norm of customary international law,[54] and today is recognised as a legal right erga omnes,[55] the notion of self-determination is continuously re-invented, both in actual situations and theoretically. Its scope today embraces not only the older “just causes”[56] of colonial domination, alien occupation and racist regimes,[57] but also, a broadening range of new causes, groups and rights.[58] One such recent theory is “remedial” self-determination,[59] which seeks to justify the use of force against grossly oppressive and discriminatory government. It proved highly persuasive during the Kosovan war of independence in the 1990s.[60]

In contrast, the UN has created a complex counter-terror legal web, which seeks to entrap all non-state violent actors,[61] which exacerbates the conflation of terrorist violence with liberation struggles. Nonetheless, UN condemnation of all ‘terrorist’ acts as unjustifiable under any circumstances only underscores the fact that revolution in general is not and cannot be prohibited by international law, due not least to an enduring, natural ‘right’ of peoples to use ‘all available means’,[62] including force, to protect themselves against gross oppression and bad governance,[63] as is now discussed.

4. Self-Determination, Terrorism, and the Use of Armed Force

Charter silence concerning civil wars mandates a search elsewhere for regulatory guidance once an armed conflict for self-determination occurs. Article 1(4) of the 1977 Additional Protocol 1 to the four 1949 Geneva Conventions on the laws of armed conflict is indicative. Protocol 1 relates to the protection of victims of international armed conflicts, and its Article 1(4),

[I]nclude armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

In other words, some forceful struggles for self-determination are viewed as equivalent to international armed conflicts, which are highly regulated. If not so considered, liberation fighters must look to the far less regulated legal regimes for non-international armed conflicts.[64] The reference in Protocol 1 to UN GA Resolution A/Res/2625 (XXV) of 24 October 1970 (the ‘Friendly Relations’ Declaration), helps to illuminate the distinction, as follows:

“Nothing … shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples … and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. [Emphasis added]

This conditionality in Resolution 2625 is notable, and has led many, including Friedrich, to argue that it supports the transformation of a denial of internal rights entitlements into external, secessionist rights,[65] and with it, the transformation of a non-international into an international armed conflict. Nonetheless, Resolution 2625 does not expressly equate “representative” and “democratic” governance, and, the exhortation to preserve the territorial integrity only of states whose governments represent the people belonging to the land hearkens back to indigenous colonial contexts, rather than to today’s multi-cultural world.[66]

The primary difficulty in considering forceful struggles for self-determination as international armed conflicts is, of course, political: few if any governments wish to regard ‘rebels’ and ‘traitors’ as privileged combatants. Therefore, their use of violence will be viewed as unlawful, but to avoid the pejorative label “terrorism,” if only on the wider stage, the means and methods of force used by non-state fighters must remain within the limits permitted by the laws of armed conflict.[67] Specifically, innocent civilians and other non-combatants should not be intentionally targeted, weaponry and military attacks should not be indiscriminate,[68] and military objectives should be lawful.[69]

However, despite contemporary rejection of traditional state neutrality towards the revolutions of others, inter-state solidarity against liberation struggles is not airtight. The blanket condemnation at international level of all acts of non-state violence has sown geo-political discord.[70] Moreover, states in the Charter era each possess their own sovereign entitlement to self-determination,[71] and must tolerate their mutual disagreements regarding the legitimacy and legality of utilising force.[72] As such, the de-centralised, anarchic, international legal order mandates flexibility, which only enables individual states to take what forcible internal action each deems appropriate, and with it, to govern oppressively, whilst statutory law entrenches varying views of forceful struggles for self-determination versus terrorism, such that the most crucial distinction of all – that between combatants and non-combatants – is easily ignored.

The consequence of tarnishing all non-state political struggles (including those in pursuit of self-determination) as international terrorism is that better compliance with the known rules of armed conflict is discouraged. In contrast, adopting a structured legal approach to matters of war and peace which entail the use of non-state force clearly helps to distinguish ‘terrorists’ and ‘liberation fighters’, is more logical and consistent with the rule of law, and sidesteps the political content inherent in terrorist labels.

As one commentator has noted, ‘[t]he justice of the cause does not make good, cannot transmute, moral atrocities committed in its name’.[73] The laws of (international or non-international) armed conflict will usually be ignored by a threatened state in any event,[74] as rebels are normally nominated as ‘terrorists’. As noted in pertinent part by Geras,

Wars are fought in the main between states and … there must be enough of a common interest among them in having codes of rules for these to have evolved to the point they have. Few states, however, if any, can have an interest in drawing up, much less in observing, a comparable code of rules to govern possible revolutionary struggles against them. Oppressive regimes, it may therefore also be said, will use – do use, across the globe – the most savage forms of violence in the counter-revolutionary cause: use terror, torture, massacre.[75]

Gross examples of non-compliance with the laws of armed conflict, even when minimally regulated by the Geneva Conventions, ironically ensure that anti-government liberationist force will be viewed sympathetically in certain quarters beyond threatened state territorial borders, as is illustrated by the DCCIT deadlock.[76] Clear distinctions between international terrorism and struggles for self-determination will thus depend on multiple legalities and underlying political considerations, while a people forced to struggle for self-determination blurs important legal distinctions, as is now discussed.

5. Terrorism and Self-Determination

Geras rejects the idea “that the use of violence is never justified … it is a doctrine that would deprive people of all weapons save passive resistance in the face of any oppression or threat, however terrible.”[77] Nonetheless, the passage of time and terrorist events such as 9/11 have meant that aspirational expansions of self-determination’s scope or of a notional right to struggle forcefully to achieve it have been left behind in the global cooperation to prevent terrorism.[78]

Of course, the use of force by a people is not invariably necessitated when seeking self-determination.[79] Equally, state domestic legal systems incorporate violent mechanisms with which to maintain internal order, while official control over domestic enforcement agencies ensures that political actors will lose the benefit of any doubt when prosecuted as criminals and terrorists. In turn, mutual state obligations to extradite or prosecute terrorist suspects, as frequently required by treaty or otherwise agreed, effectively deny safe haven anywhere.[80]

Terrorism as a tactic and tool employing anything as a weapon creates an endless choice, as witnessed on 11 September 2001, when passenger jets were utilised for ‘kamikaze’ attacks against the USA.[81] The international cooperation achieved since 9/11 has prompted governments to criminalise a very wide spectrum of acts as ‘terrorism’, including forms of non-violent protest, making even more theoretical the likelihood of maintaining a legal distinction between different forms and purposes of non-state violence.

Equal sovereign states hold the domestic monopoly over the use of ‘lawful’ force, and, left to their own devices,[82] excesses occur.[83] The requisite political will to demand human rights compliance is often lacking, necessitating diplomacy, international legal pressure and/or the progressive development of international law to increase compliance with individual human rights norms, such as those of due process.[84]

In this way, treating liberation fighters as terrorists creates more, not less, officially-recognised terrorism.[85] Modern terrorist lists held at regional and international levels further entrench a collective state approach to harsh law-and-order parameters, contributed to by Interpol, whose extensive databases provide information for the international law enforcement community.[86] “Technological terrorism” is also of concern,[87] making it little wonder that states are unwilling to distinguish between the innocent and the terrorist, and/or to make any statutory exception for those engaged in armed conflict elsewhere.[88] Sovereign autonomy thus explicates the proliferation of force in international life today, and further illuminates how and why so many international and regional legal instruments have been developed to deal with acts of terrorism.

6. Conclusion

This discussion of the distinction between international terrorism and self-determination has argued that the contemporary tendency to confound terrorism with forceful struggles for struggle for self-determination is nothing new. Instead, it is part-and-parcel of on-going efforts by states to protect themselves by preserving the status quo, and the existing territorial map, by prohibiting all non-state violence, including revolution.

A central distinction between international terrorism and self-determination is locatable, however, depending on whether and when particular non-state groups eschew violence against civilians which is intentionally indiscriminate, particularly as the term “terrorism” today denotes the use of random, unpredictable, indiscriminate violence, as such. Therefore, the violence utilised in struggles for self-determination, itself a legal right of “peoples” erga omnes, can easily be differentiated from international terrorism. In other words, the utilisation of non-state forces discriminately and in self-defence, e.g., against gross breaches and deprivations of individual and group rights entitlements perpetrated by those wielding arbitrary power, is the missing ingredient in international law with which to differentiate “terrorism” from self-determination.

On this basis, rights struggles, including for self-determination, will continue worldwide, despite their contemporary conflation with examples of “true” terrorism and attempts by states to prohibit all non-state uses of force and means of political protest. Meanwhile, what is certain is that, at any future point in time, in some part of the world, force will be utilised by a state against its own populace, in order to maintain domestic control. That populace will defend itself as it can. One or other party will emerge victorious.

7. Select Bibliography, Relevant Source Materials, and Further Reading

General:

Terrorism:

Self-Determination:

  • Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [22 July 2010] ICJ Rep 403.
  • L. Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ [1991] 16 Yale J.Int.L. 177.
  • Case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) [22 December 1986] ICJ Rep 554.
  • E. Chadwick, Self-Determination in the Post-9/11 Era (Abingdon: Routledge, 2011).
  • E. Chadwick, Self-Determination, Terrorism and the International Humanitarian Law of Armed Conflict (The Hague: Martinus Nijhoff, l996).
  • James Crawford, The Rights of Peoples (Oxford: Clarendon Press).
  • S. Darcy and J Reynolds, ‘“Otherwise occupied”: the status of the Gaza Strip from the perspective of international humanitarian law’ [2010] J.Confl.Sec.L. 211.
  • E.A. Laing, ‘The Norm of Self-Determination’, 1941-1991’ [1993] 22 Int. Rel. 209.
  • League of Nations, Minutes of the 14th Meeting of the Council, June 24th, Decision on the Aaland Islands Including Sweden’s Protest [Sept. 1921] 18 A.J.I.L. 777; [Sept. 1921] L.N.O.J. 697 (last visited September 2019).
  • Legal Consequences for States of the Continued presence of South Africa in Namibia (South West Africa) (Advisory Opinion) [1971] ICJ Rep 16.
  • Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136.
  • Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [25 February 2019, amended 4 March 2019] ICJ, General List No. 169 (last visited September 2019).
  • V.I. Lenin, ‘The Right of Nations to Self-Determination’, in Lenin’s Collected Works, Vol. 22 (Moscow: Progress Publishers, 1972, first published 1914).
  • Minority Rights Group International, ‘Self-Determination’ (last visited September 2019).
  • James Summers, ed., Kosovo: A Precedent? The Declaration of Independence, the Advisory Opinion and Implications for Statehood, Self-Determination and Minority Rights (Leiden: Brill 2011).
  • UN GA Resolution A/Res/637(VII) (16 December 1952), on the Right of peoples and nations to self-determination (last visited September 2019).
  • UN GA Resolution A/Res/1514(XV) (14 December 1960), Declaration on the Granting of Independence to Colonial Countries and Peoples; and UNGA Res. 1541 (XV) (15 December 1960), Annex, Principle VI, on the three options for self-determination of Non-Self-Governing Territories.
  • UN GA Resolution A/Res/1803(XVII) (14 December1962), on the Permanent sovereignty over natural resources.
  • UN GA Resolution A/Res/2625(XXV) (24 October 1970), Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States.
  • UN GA Resolution A/Res/3281(XXIX) (12 December1974), Charter of Economic Rights and Duties of States.
  • UN GA Resolution A/Res/65/119 (January 20, 2011), on the Third International Decade for the Eradication of Colonialism (2011 – 2020).
  • Marc Weller, Escaping the Self-determination Trap (Leiden: Martinus Nijhoff, 2008).
  • Marc Weller, ‘The Self-determination Trap’ [2005] 4(1) Ethnopolitics 3.
  • Woodrow Wilson, Self-determination and the Rights of Small Nations (Dublin: Candle Press, 1918).

 

[1] David Shariatmadari, ‘Is it time to stop using the word “terrorist”?’, The Guardian, 27 January 2015 (quoting David Fromkin).

[2] See, e.g., T. Weigand, ‘The Universal Terrorist: The International Community Grappling with a Definition’ [2006] 4 J.Int.Crim.J. 912; A. Spataro, ‘Symposium: Some Problems in the Fight Against Terrorism: Why Do People Become Terrorists? A Prosecutor’s Experiences’ [2008] 6 J.Int.Crim.J. 507.

[3] See, e.g., Explanatory Report to the Council of Europe Terrorism Convention (CETS No. 196), Warsaw, 16 May 2005, para. 83 (‘the Convention, therefore, leaves unaffected conduct undertaken pursuant to lawful government authority’).

[4] States do not commit ‘crime’. See the I.L.C., ‘Draft Articles on State Responsibility for Internationally Wrongful Acts’, UN Doc A/Res/56/10, Annex (2001), the 1991 version, which contained Article 19, which provided for state crimes. This was subsequently omitted.

[5] See Peter Feuerherd, ‘What Violent Acts Get Defined As Terrorism’, JSTOR Daily, 7 March 2019: ‘right-wing violence tends to attract less attention from government officials’; David C. Rapport, ‘Reflections on “Terrorism and the American Experience”’ [June 2011] 98(1) The Journal of American History 115. Consider also Reuven Young, ‘Defining Terrorism: The Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation’ [2006] 29 B.C. Int. & Comp. L. Rev. 23.

[6] See UN Office of Counter-Terrorism, ‘International Legal Instruments’. See also UNSC Resolution 1566 (8 October 2004).

[7] Report of the Special Rapporteur, ‘Promotion and Protection of Human Rights’, Commission on Human Rights, 62nd session, agenda item 17, UN Doc E/CN.4/2006/98, para 56(a). See also UNSC Resolution 1566 (8 October 2004), above n. 6, Article 9. Consider Shariatmadari, above n. 1, who queries whether the label ‘terrorism’ can ever be more than a value judgement.

[8] Cf. Feuerherd, above n. 5 (terrorism is perpetrated by organized groups attempting to sway political reality through violent means).

[9] See, e.g., Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019] ICJ, General List No. 169; UNGA Resolution 73/295 (22 May 2019), welcoming the Chagos Archipelago Advisory Opinion.

[10] See, e.g., UN GA Resolutions A/Res/1514(XV) (14 December 1960) – the Declaration on the Granting of Independence to Colonial Countries and Peoples; 1541 (XV) (15 December 1960) – Annex, Principle VI, providing for three self-determination options; A/Res/2625(XXV) (24 October 1970) – the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States,; and Resolution A/Res/65/119 (January 20, 2011) – the Third International Decade for the Eradication of Colonialism (2011 – 2020).

[11] International Convention Against the Taking of Hostages (New York; 17 December 1979). See, e.g., J.J. Lambert, Terrorism and Hostages in International Law – A Commentary on the Hostages Convention 1979 (Cambridge: Grotius Publications Ltd, 1990).

[12] As they do not seek traditional state sovereignty. See EEAS, ‘EU Statement – United Nations General Assembly: Combating terrorism and other acts of violence based on religion or belief’, 2 April 2019; UN Office of Counter-Terrorism, Counter-Terrorism Implementation Task Force, ‘Plan of Action to Prevent Violent Extremism’, last updated 21 May 2019; UN Security Council, ‘Sixth report of the Secretary-General on the threat posed by ISIL (Da’esh) to international peace and security and the range of United Nations efforts in support of Member States in countering the threat’, UN Doc. S/2018/80, 31 January 2018; Graeme Wood, ‘What ISIS Really Wants’, The Atlantic, March 2015.

[13] See, e.g., Deniz San, , ‘Nationalism and Self-Determination in Times of International Terrorism’, ACGMUN 2018.

[14] A useful overview is provided in David J. Whittaker (ed.), The Terrorism Reader (New York: Routledge, 2001), Chapter 1. For an earlier perspective, see Charles W. Kegley, Jr. (ed.), International Terrorism: Characteristics, Causes, Controls (London: St. Martin’s Press 1990).

[15] See, e.g., In re Castioni [1891] 1 QB 149 (the political offence exception defined pursuant to the Extradition Act 1870, 33 & 34 Vict., c. 52). Contrast I.L.C., ‘Final Report, Executive Summary: The obligation to extradite or prosecute (aut dedere aut judicare)’, 66th Sess., [2014] 2 Yb.I.L.C. Pt. 2.

[16] Consider Feuerherd, above n. 5 (distinction between terrorism directed at property and at people).

[17] See Keesings Archives, 1393 – 1395. Many extradition treaties contained clauses exempting assassination attempts against Heads of State from the list of political offences. Editor’s Notes, 7 Hudson, International Legislation, 878.

[18] 7 Hudson, International Legislation, No. 499, at 862, L.N.O.J. 1934, pp. 23-34, and No. 500, pp. 37-51, respectively.

[19] See, e.g., In re Castioni [1891], above n. 15. Consider also Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, paras 88-90.

[20] Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), p. 198.

[21] Ibid.

[22] As noted by the UK’s Royal United Services Institute, ‘… terrorism is a dynamic phenomenon that is constantly evolving’. Hans-Jürg Käser and Bernhard Wigger, ‘Commentary: The 2019 Swiss Security Network Exercise: More Than an Exercise’, RUSI, 24 May 2019.

[23] UNGA Res. 49/60 mentions neither ‘peoples’ nor ‘legitimate struggle’.

[24] The cause of much on-going geo-political friction. See, e.g., R. Bosworth-Davies, ‘The Influence of Christian Model Ideology in the Development of Anti-Money Laundering Compliance in the West and Its Impact, Post 9-11, Upon the South Asian Market: An Independent Evaluation of a Modern Phenomenon’ [2008] 11(2) J.Money-Laundr.Contr. 179.

[25] The 1997 International Convention for the Suppression of Terrorist Bombings, the 1999 International Convention for the Suppression of the Financing of Terrorism, and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism. ‘International Legal Instruments’, above n. 6.

[26] Charter Article 51. See, e.g., ‘The Chatham House Principles of International Law on the Use of Force in Self-Defence, Section F’ [2006] 55 I.C.L.Q. 963, 969-71.

[27] In force 10 April 2002. Adopted by the UN General Assembly in Resolution 54/109 (9 December 1999).

[28] Contrast A. Cassese, ‘The multifaceted criminal notion of terrorism in international law’ [2006] 4(5) J. Int. Crim. J. 933, and B. Saul, ‘Legislating from a Radical Hague: The UN Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism’ [2011] 24 Leiden J. Int. L. 677.

[29] UNGA Doc A/59/894 (12 August 2005), 59th Sess., Item No. 148, Appendix II: ‘Draft comprehensive convention against international terrorism: Consolidated text’. See also M. Hmoud, ‘Negotiating the Draft Comprehensive Convention on International Terrorism: Major Bones of Contention’ [2006] 4 J. Int. Crim. J. 1031.

[30] UN Sixth Committee Report, ‘Measures to eliminate international terrorism’, 73rd session, Item No. 111, 13 November 2018, UN Doc A/73/551, para. 5 (working committee established to finalise draft process).

[31] E.g., regarding violent acts against an occupying power. S. Darcy and J. Reynolds, ‘“Otherwise occupied”: the status of the Gaza Strip from the perspective of international humanitarian law’ [2010] J.Confl.Sec.L. 211.

[32] Common Article 1 to the four Geneva Conventions of 1949. Consider I.L.C., ‘Draft Articles on State Responsibility’, above n. 4, Article 10; A. Clapham, ‘Human rights obligations of non-state actors in conflict situations’ [2006] 88 I.R.R.C. 491.

[33] As reflected in the ‘“exceptionless” definition of terrorism’ in the Financing Convention 1999, above n. 27, as substantially incorporated in UNSC Resolution 1373 (28 September 2001).

[34] Geneva Convention IV of 1949, Article 33; Geneva Additional Protocol 1 of 1977, Articles 43, 44, and 51; Geneva Additional Protocol 2 of 1977, Articles 4 and 13.

[35] Cassese, above n. 28, pp. 955-956.

[36] The canon for which is extensive. See, e.g., Marc Weller, Escaping the Self-determination Trap (Leiden: Martinus Nijhoff, 2008), Bibliography, pp. 171 – 224.

[37] Regional autonomy is thus included. UNGA Resolution 1541 (XV), above n. 10. See UN, ‘The United Nations and Decolonialism’. Consider Legal Consequences for States of the Continued presence of South Africa in Namibia (South West Africa) (Advisory Opinion) [1971] ICJ Rep 16, 31.

[38] See, e.g., V.I. Lenin, ‘The Right of Nations to Self-Determination’, in Lenin’s Collected Works, Vol. 22 (Moscow: Progress Publishers, 1972, first published 1914); Decision of the League of Nations on the Aaland Islands Including Sweden’s Protest [Sept. 1921] 18 A.J.I.L. 777; [Sept. 1921] L.N.O.J. 697. See also E.A. Laing, ‘The Norm of Self-Determination, 1941-1991’ [1993] 22 Int. Rel. 209.

[39] E.g., Yugoslavia.

[40] 1945 UN Charter, above n. 26, Articles 1(2) (‘friendly relations among nations’) and 55 (‘the creation of conditions of stability and well-being’ deemed necessary for those relations and the maintenance of peace).

[41] See, e.g., ‘Conference on Yugoslavia Arbitration Commission Opinions 2 and 3 on Questions arising from the dissolution of Yugoslavia [11 January and 4 July 1992]’, reprinted in 31 I.L.M. 1488, 1497-8 and 1499-1500, respectively (‘true’ minorities may only claim a right to full political participation in an existing entity).

[42] See, e.g., Gene Currivan, ‘Zionists Proclaim New State of Israel’, NY Times,15 May 1948 (a ‘self-evident right of the Jewish people to be a … sovereign state’).

[43] Atlantic Charter, 14 August 1941 (‘Third, they respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self government restored to those who have been forcibly deprived of them’).

[44] UN Charter, above n. 26, Articles 24(1), 25, and Chapters VI and VII, respectively.

[45] As per the Charter, ibid., Article 2(7), and the principle of non-interference in the domestic affairs of other states.

[46] UN Department of Public Education, ‘Territories to which the Declaration on the Granting of Independence to Colonial Countries and Peoples continues to apply (as of 2007)’, The United Nations Today (New York: ASDF, 2008), pp. 298 – 304.

[47] E.g., Via the doctrine of ‘uti possidetis’, the international law principle that a ‘people’ has no ‘right’ to secede unless established in a former territorially-defined administrative unit, and only he who possesses territory (and other property) at the end of a war may keep it, subject to any contrary treaty provision. See Case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) (1986) ICJ Rep 554, paras. 20 – 26. For a spirited attack on the doctrine, see G. Abraham, ‘“Lines upon Maps”: Africa and the Sanctity of African Borders’ [2007] 15(1) Afr. J. Int. & Comp. L. 61.

[48] Consider the on-going civil war in Syria, which has lasted since 2011, after government attacks on political demonstrations.

[49] See, e.g., J. Summers, ed., Kosovo: A Precedent? The Declaration of Independence, the Advisory Opinion and Implications for Statehood, Self-Determination and Minority Rights (Leiden: Brill 2011).

[50] ICRC, ‘Introduction: Additional Protocol 2 of 1977’, above n. 34. Consider Justin McCurry, ‘Sri Lankan terrorist attacks among world’s worst since 9/11’, The Guardian, 22 April 2019.

[51] See, e.g., E. Stepanova, ‘Islamist Terrorism in the Caucasus and Central Asia’, in A.P. Schmid and G.F. Hindle (eds.), After the War on Terror: Regional and Multilateral Perspectives on Counter-Terrorism Strategy (London: RUSI Books, 2009), p. 104.

[52] With some notable exceptions, e.g., Legal Consequences of the Separation of the Chagos Archipelago, above n. 9.

[53] Starting with UN GA Resolution A/Res/40/61 of 9 December 1985.

[54] According to the International Court of Justice, self-determination had emerged as a norm of customary international law between the years 1965 and 1968. Legal Consequences of the Separation of the Chagos Archipelago, above n. 9, paras. 142 and 161.

[55] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, para. 88 (a right erga omnes). Moreover, respect for the right to self-determination is an obligation erga omnes. See East Timor (Portugal v. Australia), Judgment [1995] ICJ Rep 90, p. 102, para. 29; Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment [1970] ICJ Rep 6, p. 32, para. 33.

[56] E.g., in UNGA Resolutions 1514 (XV), above n. 10 (‘[a]ll peoples have the right to self-determination’), 1541 (XV), above n. 10, 1654 (XVI) (21 November 1961), on ‘the Implementation of the Declaration on the granting of independence to colonial countries and peoples’, and 2625(XXV), above n. 10. See also Article 1 common to the two 1966 UN International Human Rights Covenants. Consider L. Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ [1991] 16 Yale J. Int. L. 177; R. Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective (Ardsley, NY: Transnational Publishers, 1998).

[57] Geneva Additional Protocol 1, above n. 34, Article 1(4). See the UN Secretary-General’s many Reports on Decolonization. See generally E. Chadwick, Self-Determination in the Post-9/11 Era (Abingdon: Routledge, 2011).

[58] See J. Summers, ed, above n. 49. Cf. J. Crawford, The Creation of States in International Law (Oxford: OUP, 2nd ed., 2006).

[59] See, e.g., J. Friedrich, ‘UNMIK in Kosovo: Struggling with Uncertainty’ [2005] 9 Max Planck U.N. Yearbook. 225.

[60] See Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [22 July 2010] ICJ Rep 403.

[61] A range of useful UN resources can be found at UN, Dag Hammerskjold Library, ‘Counter-Terrorism: Quick Guide’ (last updated 1 May 2019). See also documents and information regarding the UN Security’s Council Counter-Terrorism Committee.

[62] See, e.g., UN GA Resolutions A/Res/3070 (XXVIII) (30 November 1973), and A/Res/3246(XXIX) (29 November 1974). See also UNGA Resolution 2625, above n. 10.

[63] For example, the post-war independence in 1991 of Eritrea from Ethiopia was followed by international recognition, and a UN-supervised referendum in 1993; international supervision of Kosovo constituted ‘deferred self-determination’ until its Declaration of Independence in 2008.

[64] Article 3 common to the four Geneva Conventions of 1949; Additional Protocol 2 of 1977, above n. 34; customary international humanitarian law. Article 3 standards are the minimum for all conflicts. Military and Paramilitary Activities in and against Nicaragua (Merits) [1986] ICJ Rep 14, para. 218.

[65] Friedrich, above n. 59, p. 248 (citations omitted).

[66] Consider UNGA Resolutions 1803 (XVII) (14 December 1962), on Permanent sovereignty over natural resources, and 3281 (XXIX) (12 December 1974), the Charter of economic rights and duties of states.

[67] Above n. 34.

[68] See, e.g., Additional Protocol 1, ibid., Article 51, which prohibits ‘indiscriminate attack’, as defined in paras. 4 and 5. Civilians are protected so long as they do not participate directly in the hostilities. See, e.g., ICRC, ‘Clarification process on the notion of direct participation in hostilities under international humanitarian law (proceedings)’.

[69] Protocol 1, above n. 34, Article 52, defines lawful military objectives as being ‘limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage’.

[70] See, e.g., Bosworth-Davies, above n. 24.

[71] Well-considered by Laing, above n. 38.

[72] Consider France v. Turkey (The Lotus) [1927] PCIJ Rep Ser A, No10.

[73] Norman Geras, ‘Our Morals: the Ethics of Revolution’ [1989] The Socialist Register 185-211, p. 201.

[74] See K. Obradovíc, ‘International humanitarian law and the Kosovo crisis’(the conflict between the KLA and Serbia was a Geneva Additional Protocol 2 situation, not terrorism’ [2000] 839 I.R.R.C.

[75] Geras, above n. 73, p. 197. See, e.g., R. Branche, ‘Torture of terrorists? Use of torture in a “war against terrorism”: justifications, methods and effects: the case of France in Algeria, 1954–1962’ [30 September 2007] 867 I.R.R.C.

[76] International Law Association, Use of Force Committee, ‘Final Report on the Meaning of Armed Conflict in International Law, Summary’, 2010.

[77] Geras, above n. 73, p. 186.

[78] See, e.g., UN Secr.-Gen’l., ‘Report: Uniting Against Terrorism: Recommendations for a global counter-terrorism strategy (2006)’.

[79] See generally Weller, above n. 36.

[80] See Executive Summary, above n. 15. Cf. the European Convention on the Suppression of Terrorism 1977, ETS No. 090, Article 13(1), which permits states to reserve the right not to extradite in respect of any offence ‘which it considers to be a political offence, an offence connected with a political offence or an offence inspired by political motives’. Its 2003 Protocol, ETS No. 190, updates Article 13, to be applied only on a case-by-case basis for three years.

[81] Again, a tactic previously employed by states.

[82] As per UN Charter Article 2(7), above n. 45, which, nonetheless, is made subject to Security Council enforcement powers pursuant to Charter Chapter VII.

[83] See, e.g., W Abresch, ‘A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’ [2005] 16 E.J.I.L. 741, 765 (doubt as to the existence of a ‘jus ad bellum of internal conflict’).

[84] See, e.g., UN News Centre, ‘Security Council strongly condemns massacre of civilians in Syria’, 27 May 2012.

[85] See the Institute for Economics & Peace, ‘Global Terrorism Index 2018’, p. 6 (‘[i]n order to be included as an incident in the GTD, the act has to be “an intentional act of violence or threat of violence by a non-state actor”’).

[86] See, e.g., Interpol, ‘“Best Practices” in Combating Terrorism’, Report submitted to the UNSC-C-TED, October 2006.

[87] See, e.g., the 1999 Treaty on Cooperation in Combating Terrorism of the Commonwealth of Independent States, Article 1 of which defines ‘technological terrorism’ as ‘nuclear, radiological, chemical or bacteriological (biological)’ means of attack to ‘achieve political, mercenary or any other ends’. See also David P. Fidler, ‘Cyberspace, Terrorism and International Law’, [2016] 21(3) J.Confl.Sec.L. 475.

[88] The case in the UK. See, e.g., R. v. Gul [2012] EWCA Crim 280; 3 All ER 83 (CA (Crim Div)); Terrorism Act 2000 (c. 11), ss. 1 and 2.