Terrorism finds no place in the world of international legal concepts. Conflicting opinions differ about actions, people and organisations included. States are let to define it on their own and when addressing the problem, some trespass a threshold determined by the need to preserve democracy and human rights. Domestic legal regulation acts as a way to control political opposition, criminalizing dissent.
Our paper proposes that when dealing with some universal concerns, such as terrorism, the jus necessarium shall replace the jus dispositivum. A consensual definition shall be agreed. Specific international instruments on terrorism must be applied instead the atomized domestic regulation that is being made.
First, we assess UN Resolutions to demonstrate (i) that States can deal with terrorism making use of specific normative and (ii) how the lack of consensus led States to legislate in isolation.
Second, we introduce the case of Mercosur where domestic laws face sharp criticism because the make possible to characterize any social unrest as terrorist. Fundamental rights and freedoms are at risk.
Third, the overall effect of a ‘jus dispositivum‘ approach is a restriction on the enjoyment of rights.
Finally, we conclude that a unique and consensual definition is mandatory, while its content shall never constitute an exception to the compliance with fundamental human rights in a democratic society.
Summary:
1. Introduction: Steps to a human rights approach to terrorism
2. Terrorism as a threat to human rights
3. The Legal Regulation of Terrorism as a Threat to human rights: the case of Mercosur
4.Conclusions
1.Introduction: Steps to a Human Rights Approach to Terrorism
The first time when the international law of human rights was connected to terrorism was during the United Nations 1993 Vienna World Conference on Human Rights. At the time, the World Conference considered that ‘The acts, methods and practices of terrorism in all its forms and manifestations as well as linkage in some countries to drug trafficking are activities aimed at the destruction of human rights, fundamental freedoms and democracy, threatening territorial integrity, security of States and destabilizing legitimately constituted Governments’.[2] Subsequently, the Conference called terrorism, among other grave violations, as a ‘gross and systematic violation (s) and situation (s) that constitute serious obstacles to the full enjoyment of all human rights’.[3]
As Professor Koufa notes, from 1994 on, the UN General Assembly began to adopt resolutions on the subject of ‘human rights and terrorism and ‘measures to eliminate international terrorism’, while the UN Commission on Human Rights began to adopt resolutions on ‘human rights and terrorism’, also requesting the UN Sub-Commission on the Promotion and Protection of Human Rights to undertake a study on the relationship between terrorism and human rights. It was Professor Koufa who, as a Special Rapporteur appointed by the Sub-Commission, finally conducted which we consider the most comprehensive study on the conceptual relationship between human rights and terrorism written to present.[4]
Although the UN have been active on the subject of terrorism[5], until now it was impossible to reach consensus on a general definition of what ‘terrorism’, or ‘a terrorist’, or even a ‘terrorist organisation’ legally are. Despite numerous attempts by the UN Security Council, regional organizations such as the African Union, the European Union, the Organization of American States and national legislation to define international terrorism in different ways, there are no comprehensive definition. Altogether considered, they reveal the many legal, political, ideological and rhetorical disputes which plagued the international community’s attempts to define terrorism. The 19 existing conventions only deal with various aspects of international terrorism. Broadly, any definition given by those conventions focus on different and even contradictory aspects, for instance (i) it exclusively emphasizes acts carried out by non-State actors[6]; or (ii) it gives relevance to the concept of State-sponsored terrorism.[7] Any inclusion on the definition of State or non state actors will produce consequences on the accountability of the individuals involved. In addition, since the International Criminal Court is operative, any individual who participate on actions or omissions that amount to international crimes could potentially face criminal responsibility before the tribunal.
What turns really difficult the task of legally defining terrorism is the perennial claim made by an important number of States to differentiate between terrorism and freedom fighters in the pursue for the right to self determination. We take into account the distinction made by International Humanitarian Law (IHL) between ‘war’ and ‘non international 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’.[8]
2. Terrorism as a Threat to Human Rights
The assassination of King Alexander I of Yugoslavia by a Macedonian terrorist working with Croatian separatists in 1934 contributed to the drafting of the 1937 Convention for the Prevention and Punishment of Terrorism. This Convention defined acts of terrorism as: ‘Criminal acts directed against a state 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.’[9] Maja notes that the essential elements of terrorism present in this definition are:
(i) criminal acts directed against a State; and,
(ii) intention to create a state of terror in the minds of particular persons, or a group of persons or the general public.[10]
The definition ignored acts against civilians as well as wars for self-determination which were not part of the international agenda at the time. The outbreak of World War Two prevented States from signing and ratifying the Convention. Only India ratified it, and therefore the convention never came into effect.
The United Nations managed to negotiate ad-hoc conventions dealing with specific forms of terrorism as an answer to international criminal acts. Since 1963 and over the years different kind of attacks served to model conventions aimed at combating international terrorism. In the late 60s and 70s the Palestinian Liberation Organization (PLO) started hijacking aircraft what in time contributed to the drafting and adoption of the 1963 Convention on Offences and Certain Other Acts Committed On Board Aircraft, the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft, and the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation.
The 1963 Convention dealt with acts which may jeopardize the safety of the aircraft, people or property, while the aircraft is in flight, on the high seas or outside the territory of any State.[11]
The 1970 and 1971 Conventions only dealt with seizure of an aircraft, which they defined as:
‘(i) unlawfully, by force or threat thereof, or by any other form of intimidation, seiz(ing), or exercis(ing) control of, that aircraft, or attempt(ing) to perform any such act[12]; and,
(ii) performing an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft; or destroying an aircraft in service or causing damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight’.[13]
In the following years, different attacks on civilians such as the hijacking of the Israeli Olympic team and their following killing, or a series of diplomatic bombings, produced an public outcry which gave birth to the 1974 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents. The convention criminalized acts of terrorism against diplomats but did not define terrorism.
Cold war politics hindered any effort to come to a general definition of terrorism during the rest of the 70s and 80s. While the United States condemned liberation wars as terrorism, the then Soviet Bloc and developing countries supported liberation wars, arguing that all methods employed to overthrow racist or alien regimes were permissible.[14] The disagreement deepened when discussing the legal status of armed forces in conflicts involving non State actors: should the applicable law be International Humanitarian Law or Counter-Terrorism norms? . It is certain that not every method is valid when fighting foreign occupation. Core elements of the human rights doctrine invalidates targeting or killing civilians even when fighting against foreign occupation.
While consensus was not reached, the way out for States was to define species of terrorism rather than terrorism itself. Consequently, the 1979 Convention against the Taking of Hostages and the 1988 Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation were adopted. Both avoid a general definition of international terrorism while criminalizing the hijacking of aircraft and ships and the taking of hostages, all while extending the crime of hijacking to ships beyond the outer limits of the territorial sea.[15]
In the immediate post-cold-war period, three sets of treaties and declarations were drafted and/or adopted:[16]
(i) a first group that defines species of terrorism. In this group we find:
(i.1) the 1997 International Convention for the Suppression of Terrorist Bombings, which makes it an offence for any person to unlawfully and intentionally place or detonate an explosive device in a place of public use, state or government facility, or transportation system with intent to cause serious bodily injury or extensive destruction;
(i.2) the 2000 International Convention for the Financing of Terrorism, which makes it an offence to fund terrorist offences as defined in the conventions named on the same document; and
(i.3) the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism, that makes it an offence to possess a nuclear device with intent to cause death, bodily injury, or damage to the environment.
(ii) a second group that do not define terrorism at all, but criminalise acts which are the consequence of so called terrorist attacks like killing people or causing bodily or mental harm, including those acts as crimes which fall under the International Criminal Court’s jurisdiction (genocide, war crimes, crimes against humanity and aggression).
(iii) a third group mainly of soft law, which attempts to comprehensively define international terrorism. Here we find the 1994 General Assembly Declaration on Measures to Eliminate International Terrorism, which condemned all acts of terrorism irrespective of whomever and wherever committed, while stating that:
‘Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnical, religious or any other nature that may be invoked to justify them.’[17]
Other UN documents addressed the general issue of arriving at a general definition. General Assembly Resolution 51/210[18] established an ad hoc committee that came up with a draft comprehensive Treaty on Terrorism (1996). Its Article 2 defines terrorism as:
‘Unlawfully and intentionally causing (a) death or serious bodily injury to any person; or (b) serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or the environment or (c) damage to property, places, facilities, or systems resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act.’
The controversial clause being Article 18(2), which provides that:
‘The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention.’
According to this Article, any war of liberation may or may not constitute terrorism according to the approach of the observer. Member States of the Organization of the Islamic Conference proposed another clause:
‘The activities of the parties during an armed conflict, including situations of foreign occupation, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention.’
Rupérez remarks two obstacles for an agreed definition that are still present. First, there is the argument that any definition should include States’ use of armed forces against civilians. In this case, legal framework against State violations is far stronger than in respect to non-State actors. Second, peoples under foreign occupation have a right to resistance and a definition of terrorism should not override it. However, nothing justifies any crime against civilians.[19]
After 9/11 and as a direct consequence of the attacks, UN Security Council Res. 1368 (2001) invoked the right to individual or collective self defence under the terms of article 51 of the UN Charter. According some authors, this Resolution legitimized the use of force to fight terrorism.[20] Anyhow, respect for human rights continues being a limit when fighting terrorism back. Precisely, ‘to defend human rights’ while countering terrorism is one of the five elements of a UN Strategy against terrorism as identified by the UN Secretary General in his Madrid Address (2005):
‘Terrorism is a threat to all States, to all peoples, who can strike anytime, anywhere. It’s a direct attack on the core values the United Nations stands for: the rule of Law, the protection of civilians, mutual respect between people of different faiths and cultures and peaceful resolution of conflicts.’[21]
3. The Legal Regulation of Terrorism as a Threat to Human Rights: the Case of MERCOSUR
Virtually all human rights instruments impose a wide range of obligations that require States to act with due diligence to prevent violations: States have a positive obligation to regulate and control certain activities of non-State actors in order to avoid, prevent and protect its inhabitants against human rights abuses, including acts of terrorism.[22] The failure of the State to comply with that basic mandate made the concerned State accountable for it in cases when there is a legal obligation to act.[23]
As a direct consequence of the 9/11 attacks, the UN Security Council has attempted to characterize -if not define- international terrorism in abstract terms in its Resolutions 1368, 1373 and 1566. The first two resolutions do not specifically define terrorism.[24] Resolution 1566 in its Article 3 defines terrorism resembling the 1937 Convention, it
‘Recalls that criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or abstain from doing any act, which constitutes offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, and calls upon all States to prevent such acts and, if not prevented, to ensure that such acts are punishable by penalties consistent with their grave nature.’[25]
After this broader definition, the UN Security Council went a step further by listing some entities as terrorist organizations in order to take action against them, while encouraging States to enact its own anti-terrorism laws. The Security Council established a Counter-Terrorism Committee who decided not to define terrorism on the basis it did not want to interfere in the competence of other UN bodies. The Committee allows States to define terrorism unilaterally, which exposes the current situation as one where terrorism means what any State may need to according to its own interests. As we explain below, this solution may endanger the promotion and protection of human rights, and therefore it makes more harm than good.
The UN Security Council affirmed in 2003 that ‘States must ensure that any measures taken to combat terrorism comply with all their obligations under international law and should adopt such measures in accordance with international law, in particular international human rights, refugee and humanitarian law.’[26]
UN Security Council Resolution 2178 (2014) asks States to ensure that their laws and other domestic legislation criminalise acts which are grave enough to indict and punish terrorist behaviours.[27] The risk is that while enacting legislation to fight what is considered a world menace -while this menace is not defined precisely-, States may go too far, invading spheres of privacy, conscience and freedom of expression and protest of the individual. Taking this into account the Security Council emphasized that:
‘respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter-terrorism measures, and are an essential part of a successful counter-terrorism effort and notes the importance of respect for the rule of law so as to effectively prevent and combat terrorism (…).’[28]
3.a.Mercosur counter-terrorism strategy
Since the UN Global Counter — Terrorism Strategy (2006)[29] heavily depends on Member States for implementation, the potential role of regional organizations such as Mercosur are underspecified while leaving open a variety of regional and even national interpretations and practices.
Within MERCOSUR as a sub-regional integration scheme, we find two levels of preventing and fighting terrorism: (i) regional, within the structure and territory of the common market; and (ii) domestically, according each national legislation aimed at punishing what they consider ‘terrorist acts’. The latter is the most dangerous threat to an effective protection of human rights.
Mercosur’s Terrorism Permanent Working Group[30] was established in response to 2001 attacks, even though a working group on the subject had been created two years earlier. The Working Group aims to undertake effective action against dormant and active regional terrorists cells, while preserving democratic and human rights values of Mercosur societies. The Group is composed of governmental experts in foreign affairs, finance, intelligence and Ministers of Home Affairs and Justice of Member States. At present, there is also a Specialized Working Group on Terrorism[31] which carries out a ‘General Plan of Cooperation and Coordination for Regional Security’ among the State Parties to the Mercosur.[32] Together with other measures, this Specialized Working Group defined an standard form to exchange data related to people and organizations which are suspected of terrorist activities within the region.
In July 2006, in the city of Foz de Iguazú, the Council of Mercosur Member States signed Decision 16/06. This Decision set the Framework Agreement on Cooperation of Regional Security between the States Parts of MERCOSUR and other States like Bolivia, Colombia, Chile, Ecuador, Peru and the Bolivarian Republic of Venezuela.[33]
Despite these developments, efforts for a common legislation have not been as successful as it should. As Lombardi and Sanchez state while any economic integration needs freedom of movement for people and goods to attain success, ‘combatting terrorism and terrorist financing suggest closure and restriction of movements’.[34]
Mercosur governments have instituted and implemented several multilateral, sub-regional and national governmental initiatives to combat terrorism and terrorist financing. However, these efforts did not necessarily translate into significant achievement. Besides the work of the Permanent Group on Terrorism which includes data exchange and coordination of common efforts against regional terrorist threats, Mercosur four founding States have enacted legislation punishing terrorism, terrorist organisations and the financing of the activities. Some content of every legislation fall short of expectations because instead of protecting the population against terrorist acts, there are Articles that limit beyond legal discretion the effective enjoyment of human rights of the population. Besides, other part of the statutes mainly remained as enacted legislation without enough budget for a real change. We now review the four Mercosur States’ national Acts on terrorism.
3.b. Argentina
The Argentine Law 26734 (2011) deals with Terrorism in a way that it considers some acts that are just criminal offences, as aggravating circumstances for sanctions to be imposed:
‘when any of the crimes of this Code had been committed with the aim of terrorising population or oblige national public authorities or foreign governments or agents of an international organisation to act or abstain from acting…’.[35]
Notwithstanding, the second paragraph states that those aggravating circumstances will not be applied when the acts had been occurring while exercising a human or social or any other constitutional right. This way, the Judiciary is given almost complete discretion to characterize any behaviour as a terrorist act. In due time, it is easy to predict that this level of discretion given to any judge in a criminal matter mostly overpasses judicial guarantees of the due process of law.
Social activism carried out by NGOs are one main characteristic by which global interests such as human or environmental rights are protected. Therefore, when the Argentine law considers the ‘intention’ of those making any social claim as possible aggravating circumstances for sanctions imposed, the law directly opposes the right to participate in a democratic society. This is simply because any NGO intends to influence the decision making processes. Therefore, the most important criticism that the Argentine law has received came from human rights organisations which fear that the Counter-Terrorism law will be used to forbid strikes and social demonstrations aimed at showing discontent, by considering them as terrorist organizations performing terrorist acts and in this way, criminalising any social protest.[36] A Federal Prosecutor tried unsuccessfully to apply the law to a protest of an indigenous population which became violent (2015).[37] Two years back, the UN Special Rapporteur on Human Rights and Counter-Terrorism, Mr. Ben Emmerson has asked the Federal Prosecutors in Chile not to apply the Chilean Counter- Terrorism law in relation to territories claimed by indigenous peoples like ‘Mapuches’.[38]
As an answer to the inadequacy of the current law, the Government of Argentina announced a plan to reform its counterterrorism legal framework last 2016. The proposed legislation is aimed at including penal system reforms, a new approach to countering terrorist financing and a modernization of security and intelligence capabilities.
3.c. Brazil
Brazil enacted Law 13260 in 2016.[39] Section XLIII states that the law will regard the practice of torture, illicit trafficking in narcotics and similar drugs, terrorism, and those crimes defined as heinous as not subject to bail, clemency, or amnesty. Liability for these crimes extends to individuals giving the commands for such acts, those executing the commands, and those failing to avoid the commission of these crimes although able to do so.
Article 2 defines terrorism as the practice by one or more individuals of certain enumerated acts for reasons of xenophobia; discrimination; or prejudice in regard to race, colour, ethnicity, or religion, when committed for the purpose of causing social or generalized terror and exposing persons, property, public peace, or public safety to danger. Later, it defines acts of terrorism as:
‘(i) to use or threaten to use, carry, keep, possess or bring explosives, toxic gases, poisons, biological content, chemical, nuclear or other means capable of causing damage or promote mass destruction;
(iv) to sabotage the functioning of or to seize with violence, by means of posing a serious threat to persons, or through making use of cybernetic mechanisms the total or partial control, albeit on a temporary basis, of means of communication or transportation; ports; airports; railways or bus stations; hospitals; nursing homes; schools; sports stadiums; public facilities or places where essential works of public services are performed; facilities for the generation or transmission of energy; military installations; facilities for the exploration, refining, and processing of oil and gas; and bank institutions or their service network;
(v) to make an attempt against the life or physical integrity of a person.’[40]
In addition, as regards punishment, whoever promotes, creates, takes part in, or provides assistance to, in person or through an intermediary, a terrorist organization will be punished upon conviction with five to eight years in prison and a fine (Art. 3), in line with UN Security Council Resolution 2178 (2014) on foreign terrorist fighters. Whoever performs acts to prepare for acts of terrorism will receive the same punishment, as well as those who, for the purpose of practising acts of terrorism, recruit, organize, transport, or equip with ammunition individuals travelling to a country other than that of their residence or nationality or who provide or receive training in a country other than that of their residence or nationality [Articles 5 and 5(1)].
Brazilian law also deals with Terrorist Financing, punishing those who receive, provide, offer, obtain, store, keep on deposit, request, or invest in any way (directly or indirectly) resources, assets, property, rights, valuables or money, or services of any kind for the planning, preparation, or execution of the crimes mentioned above as well as whoever offers or receives, obtains, stores, keeps on deposit, requests, invests or otherwise contributes to the acquisition of assets or financial resources, in order to fund, in whole or in part, a person, group of people, association, organization, or criminal organization whose principal or secondary activity, even if occasionally, constitute a crime under Law 13260 (Art. 6).
This Law joined companion legislation law 13170 (2015) to facilitate the freezing of assets, giving Brazil a comprehensive legal counterterrorism framework for the first time.
Both independent experts and different NGOs from civil society have questioned different aspects of the Brazilian law. A first concern raised was that the law could be used as an instrument to criminalize the so called ‘social movements’. As a consequence, the Presidency vetoed some articles of the draft approved by Congress before it came into effect. One of the contents that did not came into effect was Article 4 which provided for prison to those who made an apology of terrorism. According to Presidency this Article could easily collide and violate freedom of expression and opinion.
A second main concern that was also attended was the actions aimed at destroying public or private goods, or sabotaging information systems or data banks. Some human rights NGOs such as Conectas, Justiça Global y Artigo19 stated that every and each actions prohibited and punish by law 13260 were just legally specified in Brazil jurisprudence.
Brazil counter-terrorism law 13260 was applied for the first time on July 21st., 2015, two weeks ahead of the start of the Olympic Games. As part of ‘Operation Hashtag’, Brazilian Federal Police arrested 12 Brazilian citizens under suspicion of preparatory acts for an intended terrorist attack.
3.d. Paraguay
Paraguay enacted law 4024 (2010)[41] which in three substantive Articles defines and criminalizes terrorism, terrorist organisation and terrorist financing. Terrorism is define as acts performed with the intent of command or cause terror, or oblige to act or to abstain from acting directed (i) to the Paraguayan population or those of a foreign country; (ii) constitutional agencies or its members; (iii) an international organisation or its officials, violating fundamental rights such as life, personal integrity; liberty; safeness in collective or massive meetings, or against protected places or essential services. The law also punishes those who create an organisation aimed at executing the mentioned acts, as well as