Accommodating terrorism an offence against the law of nations

Notwithstanding the emphasis placed on the need for concerted international action to confront the problem of terrorism, positive international law is far from treating the issue of defining the criminal notion of terrorism coherently; the discussion of such a notion is being made hostage [sic!

] to the abuse of the term ‘terrorism’ in the course of the debate and to the confusion between an empirical description of a phenomenon and its treatment under criminal law.

The definition proposed here, which does not recognize in the perpetrator’s motivations any material relevance because of the overwhelming importance of the value infringed, is able to minimize the relevance of some abused arguments (such as state terrorism or the treatment of ‘freedom fighters’), could quickly gain customary status and would prove useful in interpretation and in drafting exercises, both at international and national level.Having briefly reviewed the state of the art, this article will focus first on the definitional question of terrorism and try to single out a core notion which could facilitate the use of existing instruments of co-operation and the drafting of more satisfactory legal rules (Sections 2–6); it would be based on the quality of the protected value (basic rights of civilians, rather than the integrity or independence of the state) and the particularly heinous way of harming it (the recourse to terrorist methods by an organized group).I will try to demonstrate that a core approach to a criminal law notion of terrorism can avoid some supposed difficulties related to the political dimension in which this phenomenon is undoubtedly located and allow a satisfactory outcome of the negotiations on the draft UN Comprehensive Convention, as hoped for in the conclusions of the 2005 UN World Summit.5 Later, the results of this enquiry will be weighed against the sensitive issue of the inclusion of terrorism in the category of individual international crimes in order to demonstrate that the main problem lies in the interpretive option whether to consider the category of crimes against humanity as being already able to cover the vast majority of terrorist acts, or, alternatively, to affirm the process of the crystallization of a discrete crime of terrorism partially detached from the paradigm of such a category (Section 7).The of this enquiry is the focusing primarily on a tentative definition of terrorist crimes and on the tools for legal co-operation, both among states and, eventually, between states and the International Criminal Court.It is not my intention to dwell on the use of force to fight terrorism, nor to discuss the political strategy for addressing the ultimate causes of terrorism and fanaticism, while being well aware of the interest of the topics and of the complex underlying issues.3Having thus identified the subject under discussion, some justification must be given for an enquiry which follows many others, often from eminent authors.

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