7B.4 ‘Terrorism’ and the legality principle

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efforts post 9/11 – an accepted definition of what constitutes terrorism

under general international law.

The result has been a proliferation of specific anti-terrorism laws. While

definitions differ dramatically, as the country reports of the Human Rights

Committee post 9/11 illustrate, commonly they have been couched in

broad-reaching and ambiguous language. The Committee has criticised

numerous states for the ‘exceedingly broad scope of . . . proposed legislation’, and specifically for the adoption of ‘broad and vague definition[s]

of acts of terrorism’,360 which draw a broad range of conduct under their

rubric, encompassing serious and less serious offences.361 Yet the terrorist label is often invoked precisely to connote a degree of gravity, thereby

purportedly to justify measures not otherwise considered acceptable.

At times the problem relates not only to the amorphous nature of ‘terrorism’ itself, but to a lax approach to those deemed to be associated with

terrorism, or supportive of terrorist organisations, who are brought within

the reach of the wide-ranging counter-terrorist measures. The United

Kingdom Anti-terrorism, Crime and Security Act 2001,362 for example,

like the United States Military Order of 13 November 2001,363 extends to

persons considered to have undefined ‘links’ with organisations deemed

to constitute a ‘terrorist’ threat.364 The EU Common Position adopted

post 9/11, which includes ‘participating in the activities of a terrorist

group’, illustrates the manifestation of the problem on the international

plane.365

360



361

362

363

364



365



Concluding Observations of the Human Rights Committee: Philippines, UN Doc.

CCPR/CO/79/PHL (2003), para. 9. See also, e.g., Concluding observations of the Human

Rights Committee: Egypt, UN Doc. CCPR/CO/76/EGY (2002), para. 9; Concluding

observations of the Human Rights Committee: New Zealand, UN Doc. CCPR/CO/75/

NZL (2002), para. 11.

See, e.g., Concluding Observations of the Human Rights Committee: Egypt, UN Doc.

CCPR/C/79/Add.23 (1993), para. 8.

See www.hmso.gov.uk/acts/acts2001/20010024.htm.

Military Order relating to ‘Detention, treatment, and trial of certain non-citizens in the

war against terrorism’, issued 13 November 2001 by the President of the United States.

Both go beyond persons associated with the particular al-Qaeda terrorist organisation suspected of responsibility for the September 11 attacks. See also, e.g., the concern expressed

by the Human Rights Committee in relation to the broad definition of terrorism and of

‘belonging to a terrorist group’ in Estonia’s penal code: see Observations finales du Comit´

e

des droits de l’homme: Estonia (15/04/2003), UN Doc. CCPR/CO/77/EST, para. 8.

See European Council, Common Position 2001/931/CFSP on the application of specific

measures to combat terrorism, 27 December 2001, OJ L 344, 28 December 2001, p. 93,

Article 2(3)(k): ‘participating in the activities of a terrorist group, including by supplying

information or material resources, or by funding its activities in any way, with knowledge

of the fact that such participation will contribute to the criminal activities of the group’. See



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Despite the lack of clarity as to its meaning, the terrorism label has been

applied with grave effect post 9/11 to justify a range of measures, some of

which are highlighted below, including expulsion, ‘preventive’ detention,

criminal prosecution, including trial by special ‘anti-terrorist’ tribunals

and the application of onerous penalties, interference with privacy, freedom of religion and free expression. The equally ambiguous mantra of

‘counter-terrorism’ has been relied on to grant impunity to those that

violate human rights, as exemplified by the Russian law criticised in 2003

for exempting law enforcement and military personnel from liability for

harm caused during counter-terrorist operations, thereby violating the

rights of victims of abuses to justice and reparation.366

Obvious tension arises in respect of the principle of legality, a requirement for any restriction of rights, even in time of emergency.367 Specific

issues that relate to the particularly stringent requirements of legality and

certainty in criminal law are addressed below.368



7B.4.1 Terrorism, criminal responsibility and

nullum crimen sine lege

The obligations of the state in respect of the legality principle (nullum

crimen sine lege), requiring clarity and precision in criminal law, are

non-derogable and generally unaffected by national security concerns, or

states of emergency. To the extent that laws enshrining vague and imprecise definitions of terrorism or related offences purport to criminalise

conduct, concerns clearly arise regarding compatibility with Article 15



366



367



368



also the European Council Framework Decision on Combating Terrorism, 13 June 2002

(2002/475/JHA), OJ L 164/3 of 22 June 2002, which includes various forms of association

with terrorists and other links with such groups (for a discussion of definition of terrorism

contained in the Framework Decision, see Chapter 2, para. 2.1.5.1). To take effect these

provisions should be translated into clear domestic criminal law.

Concluding observations of the Human Rights Committee: Russian Federation, UN Doc.

CCPR/CO/79/RUS (2003), para. 13: ‘[T]he Committee is concerned about the provision

in the Federal Law ‘On Combating Terrorism’ which exempts law enforcement and military personnel from liability for harm caused during counter-terrorist operations.’

See ‘Study on the Principles Governing the Application of the European Convention on

Human Rights during Armed Conflict and Internal Disturbances and Tensions’, prepared

by J. McBride, consultant to the Steering Committee for the Development of Human

Rights of the Council of Europe, Doc. DH-DEV(2003)001, 19 September 2003, para. 6.

See also J. Fitzpatrick, Human Rights in Crisis. The International System for Protecting

Rights During States of Emergency (Washington, 1994), pp. 46–7.

Some of the other human rights issues emerging from or related to the definitional

ambiguity and the ‘doubts and the opportunity for abuse of power’ (Castillo Petruzzi and

others v. Peru, Merits, Judgment of 30 May 1999, IACtHR, Series C, No. 52, para. 121)

created thereby are highlighted later in this section.



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of the ICCPR. Numerous criticisms have been levelled at states by human

rights bodies in this respect since 9/11.369 The Security Council does

not escape criticism for its role in fomenting such violations, by ‘opening the hunting season on terrorism’, including calling for its criminalisation, absent guidelines as to its definition, meaning or scope.370 On

the other hand, international and regional definitions that have been

advanced have themselves been criticised as falling short of the legality

requirements.371

As noted above, vague definitions of terrorism are compounded by

vague definitions of association with or membership of ‘terrorist organisations’, with serious effect. An illustration lies in Sudanese penal legislation,

reported to the Security Council post 9/11,372 where a very broad definition of terrorism, which involves threats aimed at ‘striking terror or awe

upon the people’,373 is matched by a definition of terrorist organisation

which includes anyone who ‘abets, attempts, participates or facilitates,

by word of mouth, deed or publication the operation of an organised

and planned network for the commission of any terrorist offence’.374 The

law stipulates that any person deemed to fall into this extremely elastic

group will be prosecuted by an ad hoc combating terrorism court and if

convicted ‘shall be punished with death or life imprisonment’.375

As national laws come to be implemented over time, consistency with

other aspects of Article 15 will deserve attention, such as the prohibition

of retroactive application of criminal law or the extension of criminal law

by analogy. A facet of the issue was highlighted by the Indonesian constitutional court which struck down new anti-terror legislation based on

369

370



371



372



373



374

375



See Concluding observations of the Human Rights Committee: Estonia (above), para. 8.

See SC Res. 1373, above, note 359, passed under Chapter VII of the UN Charter (thereby

imposing a legal obligation on member states of the UN), which specifically required

states to ensure that ‘terrorist acts’ are criminalised in domestic law.

International or regional definitions of terrorism, proposed or adopted post 9/11, have

been subject to criticism, e.g., for their extreme breadth and lack of specificity. See

Chapter 2.

This legislation, the Terrorism (Combating) Act 2000, was reported to the Security Council after 9/11 in support of Sudan’s claim to have met its international obligations;

see Sudan’s Report to the Counter-Terrorism Committee Pursuant to Paragraph 6

of Resolution 1373, UN Doc. S/2001/1317, available at http://www.un.org/Docs/sc/

committees/1373/submission list.html.

Terrorism includes threats ‘aimed at striking terror or awe upon the people by, inter alia,

hurting them or exposing their lives or security to danger . . . or exposing one of the native

or or national strategic resources to danger’, ibid., Sn. 2.

Ibid., Sn. 6. The definition requires also that the act ‘may constitute a danger to persons

or property or public tranquillity’.

Ibid.



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retroactive effect.376 As Article 15(2) acknowledges, the legality principle

does not prevent prosecution for serious crimes established as such under

international law – such as crimes against humanity for example, of the

type committed on 9/11. It may however preclude prosecution for other

acts that do not amount to such crimes, unless penalised in domestic law at

the time committed: as discussed above, prosecution for ‘terrorism’ on the

basis of its status as a crime under international law would be controversial,

given definitional dilemmas, while inchoate offences such as membership

of or support for terrorist organisations lays still less claim to international

criminal status.377



7B.4.2 Terrorism, penalties and nulla poena sine lege

Post 9/11 the terrorist label has been invoked to justify exceptional measures, including exceptional penalties of greater severity than those that

would attach to the conduct if differently classified. So far as greater penalties are imposed retroactively, a violation of the ‘nulla poena sine lege’

principle may arise.378 Issues also arise regarding the proportionality of

the penalties attaching to ‘terrorist’ offences which, given the potential

scope of vague definitions, in reality may not be as grave as the terrorist

epithet suggests.

Notably, one of the effects of burgeoning terrorism laws post 9/11

has been to ‘increase the number of offences attracting the death

376



377



378



Law No. 16 of 2004 was relied upon in the convictions in respect of the ‘Bali bombings’. See,

e.g., Bali terrorism conviction violates constitution, Indonesian court rules, 23 July 2004,

at http://www.cnews.canoe.ca/CNEWS/World/WarOnTerrorism/2004/07/23/553317ap.html.

Depending on the treaty in question, certain forms of support may constitute ‘treaty

crimes’: see, e.g., the Convention for the Suppression of the Financing of Terrorism,

New York, 9 December 1999, UN Doc. A/Res/54/109 (1999), which criminalises financial

support for the activities of terrorist groups and requires parties to the Convention to

cooperate in investigations and prosecutions of such financing.

The principle of nulla poena sine lege is recognised in the Universal Declaration of

Human Rights, Article 11(2): ‘Nor shall a heavier penalty be imposed than the one that

was applicable at the time the penal offence was committed’, as in Article 7(1) ECHR,

Article 9(2) ACHR, Article 7(2) African Charter and Article 23 (Nulla poena sine lege)

of the ICC Statute. Note that the principle of legality is recognised also by the main

instruments of IHL: see Article 99(1) GC III; Article 75(4)(c) AP I; Article 6(2)(d) AP

II. The provision expressly does not preclude prosecution for acts which, at the time,

were ‘criminal according to the general principles of law recognised by the community of

nations’, such as crimes against humanity, despite the fact that no penalties are specified

in international law. It would, however, apply to other acts labelled ‘terrorist’ but which

are not established crimes under international law.



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penalty’.379 While the lack of general prohibition on capital punishment

in international law has been noted above, as the Human Rights Committee has recalled post 9/11 an expansion of the penalty ‘runs counter

to the sense of article 6, paragraph 2, of the Covenant’.380 Moreover, to

the extent that the death penalty is being imposed in circumstances that

do not meet the highest standards of justice – which must include clarity

and precision in the definition of the crime as well as respect for fair trial

rights – there is a real risk of violation of the right to life itself.381



7B.5 Torture and inhuman treatment: Abu Ghraib and beyond

Images of tortures inflicted on prisoners in Iraq have provided perhaps the

most graphic and disturbing evidence of violations of human rights committed in the course of the ‘war on terror’. Since those images were released,

the US administration is increasingly accused of adopting a permissive

policy towards torture,382 of which Abu Ghraib was but one manifestation,

with similar allegations regarding abuses emerging from elsewhere.383

It has also transpired that significantly before the Abu Ghraib scandal

became public, the ICRC had alerted Coalition Forces to serious concerns regarding ‘brutality’ and the ‘excessive and disproportionate use of

force’, resulting in several cases in fatalities among detainees.384 In respect

379

380

381

382



383



384



Concluding observations of the Human Rights Committee: Egypt, UN Doc. CCPR/C/

79/Add.23 (1993), para. 16.

Ibid. Note also that the expansion of the death penalty is a direct violation of other treaty

obligations, notably the ACHR, Article 4(2).

See generally Chapter 7, under ‘Specific Rights Protected’, ‘Life’.

See 12 October memorandum from Lt Gen. Ricardo S. Sanchez, US commander of the

combined joint task force in Iraq, calling for interrogators at Abu Ghraib to work with

military police guards to ‘manipulate an internee’s emotions and weaknesses’ and to

assume control over the ‘lighting, heating . . . food, clothing, and shelter’ of those being

questioned. Murphy, ibid., p. 594, n. 15.

For other allegations of abuse in Iraq and elsewhere, see Chapter 6, 6B.2.3, ‘Humanitarian Protection of Prisoners: Executions, Torture and Inhumane Treatment’. See, e.g.,

S. Goldenberg, ‘CIA Accused of Torture at Bagram Base’, The Guardian, 27 December

2002 and S. Goldenberg, ‘Guantanamo Record Contradicts Claims that Prisoner Abuse

Was Isolated’, The Guardian, 19 May 2004, reporting that ‘the abuse at Abu Ghraib was

systematic, part of a policy instituted at US military detention centres from Guantanamo

and Afghanistan to Iraq’.

‘Report of the International Committee of the Red Cross (ICRC) on the Treatment by the

Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq during Arrest, Internment and Interrogation’, February 2004, available at

www.globalsecurity.org/military/library/report/2004/icre report iraq feb2004.htm. The

report refers to several earlier occasions during 2003 when the issue of ill treatment was

brought to the Coalition Forces’ attention (para. 34). For an example of death resulting from ill-treatment (and issues concerning the apparent falsification of the death



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of detainees ‘deemed to have an intelligence value’ the ICRC noted that

ill-treatment potentially amounting to torture appeared to be ‘systematic’

and in certain cases ‘part of the standard operating procedures by military

intelligence personnel to obtain confessions and extract evidence.385

Concerns about the practice of torture and degrading treatment have

been compounded by what is broadly perceived as official attempts to

‘justify’ it, exemplified by statements that torture might be ‘justified by

the executive branch’s constitutional authority to protect the nation from

attack’.386 Likewise, suggestions that the possibility of resorting to torture

in the context of interrogations is a matter of ‘executive privilege’, to be

determined under ‘the President’s ultimate authority’ and that criminal

courts prosecuting torturers might be held to be interfering unlawfully

with this power of the US President, are perplexing when considered

alongside human rights law.387 Torture, properly understood, is prohibited absolutely, and states are obliged, inter alia, to prosecute those

responsible.

Apparent attempts to undermine the protection against torture can

also be seen from an excessively restrictive approach to what constitutes

‘torture’ and the sort of interrogation techniques that might fall within

the definition. This is evident for example in a leaked memo from the

US Assistant Attorney General that advised, for example, that the severity

threshold for torture required ‘injury so severe that death, organ failure

or permanent damage resulting in a loss of significant bodily function

will likely result’.388

As regards the duty to hold to account those responsible for torture,

while allegations of torture in Abu Ghraib have thus far provoked undertakings by the US authorities that they will be investigated thoroughly, the



385

386



387



388



certificate) see para. 16, and of several detainees fatally shot involving unnecessary or

disproportionate use of force, see para. 45.

Ibid., para. 24. The report specifically highlighted Abu Ghraib as an example of such a

case.

Memorandum for Alberto R. Gonzales, Counsel to the President from Jay S. Bybee,

Assistant Attorney General, on ‘Standards of Conduct for Interrogation under 18 U.S.C.

Sns. 2340–2340A,’ 1 August 2002, p. 46.

Memorandum on ‘Standards of Conduct for Interrogation,’ ibid.: ‘Enforcement of the

[torture] Statute would represent an unconstitutional infringement of the President’s

authority to conduct war,’ p. 2. See also pp. 36–8.

Ibid., p. 13. Other qualifications included noting that death threats would not suffice

unless the death was threatened ‘imminently’, and that the mental element for torture

would not be satisfied unless the defendant acted with the ‘express purpose to disobey

the law’ (p. 3), that knowledge that the severe physical or mental harm would result from

his or her actions would not suffice if this was not ultimately his ‘objective,’ but instead

he was committing the acts of torture in ‘good faith’ (pp. 4 and 8).