The political sensitivities identified previously in the adoption of a single definition among States are naturally absent in domestic statutes.15Where such statutes do not implement a State’s subject specific contractual obligations into national law, they may, indeed, offer a general definition of terrorism. Section 1 of the UK Terrorism Act (TA) 2000 defines terrorism as the use or threat of action involving serious violence against a person, damage to property, endangering a person’s life, creating a serious risk to public safety or health and seriously interfering with or disrupting an electronic system, where according to sub-s (1):
(a) the use or threat is designed to influence the Government or to intimidate the public or a section of the public; and
(b) the use or threat is made for the purpose of advancing a political, religious or ideological cause.16
Section 1 provides a general definition of terrorism, but this definition is operational only within the framework of the TA 2000 and other legislative enactments may deem it expedient to adopt thematic definitions depending on the situation they aim to regulate. The Act aims to consolidate the larger part of the relevant UK legislation, apart from subject specific anti-terrorist instruments and the Criminal Justice (Terrorism and Conspiracy) Act 1998, further managing to incorporate the 1998 UN Convention for the Suppression of Terrorist Bombings17and the 2000 Terrorist Finance Convention.18 The Act is designed exclusively for offences committed abroad and against non-UK nationals,19and recognises that terrorist operations cannot be the product of a single individual but require a structured organisation. In this manner, all offences described in the Act are presumed to be offences undertaken for the benefit of a terrorist organisation.20An organisation, through an order of the Secretary of State, is deemed to be ‘concerned in terrorism’ and subsequently placed on a special list, if its members have been found to commit, participate in, prepare, promote, encourage, or otherwise concern themselves in acts of terrorism.21
15 The Russian Federation’s Federal Anti-Terrorism Act 1998 contains extensive provisions defining the main terms of relevance (terrorism, terrorist activity, offences of a terrorist nature, terrorist organisation, etc).
16 The Act revokes the Prevention of Terrorism (Temporary Provisions) Act 1989 and the Northern Ireland (Emergency Provisions) Act 1996.
17 TA 2000, ss 62 and 64.
18 Ibid,ss 63 and 64.
19 Ibid,s 1(4).
20 Ibid,s 1(5).
21 Ibid,s 3(4), (5).
UK courts have also been concerned with the effects for national security of terrorist activities perpetrated internally, but which are aimed at targets abroad. In Secretary of State for the Home Department v Rehman,22the appellant was a member of an Islamic fundamentalist organisation, being its UK point of contact, and was involved in both the recruitment of British Moslems and fundraising on the group’s behalf. The Court of Appeal, in interpreting s 15(3) of the Immigration Act 1971 which provided no right of appeal against a deportation order if this was conducive, inter alia,to UK national security, held that the promotion of terrorism against any State by an individual in the UK was capable of being a threat to UK national security.
It further accepted that a person could be regarded as a danger to national security in the light of a case as a whole which was made against that person, even though it could not be proven to a high degree of probability that he or she had performed any individual act which would justify that conclusion.
US legislation is far more diverse and complex, due in large part to an increase in terrorist activities against US and US-affiliated targets from the 1970s onwards, as the USA consolidated its financial and political dominance in world affairs. In order to protect its interests abroad, and also convey a message that attacks against its nationals would not go unpunished, the US promulgated legislation with far reaching judicial and prescriptive extraterritorial jurisdiction. Likewise, it did not hesitate to use armed force of dubious legality against targets believed to be engaged in terrorist operations against US citizens. Hence, following theAchille Lauroincident where an American was murdered by a Palestinian splinter faction that had hijacked the Italian cruiser whilst in an Egyptian port, Congress passed § 1202 of the Omnibus Diplomatic Security and Anti-Terrorism Act 1986.23This Act criminalises all terrorist violence inflicted upon Americans abroad and allows for their prosecution in the USA, despite the fact that the USA had long maintained a policy of opposition to the application of criminal jurisdiction based on the passive personality principle.24
Among the variety of terrorist legislation targeting terrorist violence with an international element, one notes with interest the Export Administration Act 1979.25 Section 6(j) of this Act, obviously attesting to the political and military might of the US, empowers the Secretary of State to provide a list of countries which are determined to have repeatedly supported acts of international terrorism. On the basis of this list, Congress is justified in prescribing sanctions, such as the prohibition of military sales, as well as termination of financial aid and tax benefits.26As far as the author is aware, no other State employs a similar legislative instrument, directly naming other countries as sponsors of terrorism, but there does not exist any rule of international law prohibiting the US from acting in this way. Much like the UK TA 2000, the US Anti-Terrorism and Effective Death Penalty Act (AEDPA) 1996 confers upon the Secretary of State the power to designate ‘foreign terrorist organizations’.27
22 (2000)The Times,31 May.
23 18 USC § 2331.
24 Cuttingcase, reported in IA Moore,Moore’s Digest of International Law,1906, p 228; see below pp 152–54.
25 50 USC § 2405.
26 Similarly, and on the basis,inter alia,of the Export Administration Act 1979, the Anti-Terrorism and Arms Export Amendments Act 1989, 22 USC § 2151, prohibits exports of military equipment to countries supporting international terrorism, as well as for other purposes.
27 28 USC § 1605(a)(7).
This power was used in 1997 in order to designate as such the People’s Mojahedin Organisation of Iran, whose subsequent petition for judicial review of its designation was denied by the Court of Appeals.28As will be demonstrated further below, the AEDPA 1996, through amendment to the Foreign Sovereign Immunities Act 1976, allows for certain claims in tort against offending States.
As for criminal prosecution of terrorist acts, Paustet alrightly point out that ‘while the United States has a full arsenal of anti-terrorism legal tools, to date there have been but a handful of judicial opinions concerning application of the various anti- terrorism statutes’.29The most influential attempt at prosecution on the basis of anti- terrorist statutes was theYuniscase.30Yunis was arrested after being lured to the open seas of the Mediterranean by the FBI with the promise of a drug deal, a few years after it was revealed that he was responsible for taking control of a Jordanian airliner in Beirut in 1985, which he subsequently forced to fly him and his accomplices to Tunis. Upon refusal by the local authorities to land the aircraft, Yunis returned to Beirut, where he released the passengers, among which there were two Americans, and then blew up the plane. The Court of Appeals upheld the District Court’s conviction on the grounds of hostage taking,31hijacking (air piracy)32and conspiracy,33 under the relevant US statutes which it found to be consistent with the 1979 Convention Against the Taking of Hostages34and the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft.
Following the 11 September 2001 attacks against the US, the most significant piece of legislation that was adopted was the ‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act’ of 2001 (Patriot Act). Title III of the Patriot Act, the International Money Laundering Abatement and Anti-Terrorist Financing Act (the IMLA) of 2001 amended prior US anti-money laundering legislation as well as the 1970 Bank Secrecy Act.Among other things, it has extended the range of predicate crimes which give rise to money laundering offences, while the definition of ‘specified unlawful activity’ has been expanded to include terrorist-related offences such as smuggling or export control violations, unlawful importation of firearms, firearms trafficking and any felony violation of the Foreign Agents Registration Act 1938. The IMLA 2001 has also extended the jurisdictional scope of predicate offences, covering offences committed outside the US, where the US would be required by treaty to extradite the alleged offender or prosecute him where he was found to be within the US.35
28 People’s Mojahedin Organisation of Iran v USA Dept of State38 ILM (1999), 1287; in a previous ruling in Rein v Socialist People’s Libyan Arab Jamahiriya38 ILM (1999), 447, the Second Circuit Court of Appeals found the AEDPA 1996 to be constitutional.
29 JJ Paustet al, International Criminal Law: Cases and Materials,1996, Durham, NO. Carolina Academic Press, p 1212.
30 USA v Yunis (No 3),924 F 2d 1086 (1991).
31 Hostage Taking Act 1984, 18 USC § 1203. Jurisdiction was based on the passive personality principle under § 1203(b)(1)(A).
32 Anti-Hijacking Act 1974, 49 USC App § 1472(n). The Court of Appeals held, rather surprisingly, that hijacking constituted a clear case of an international crime subject to universal jurisdiction. Reported in 88 ILR 176, p 182.
33 Conspiracy to Commit Offense or Defraud the United States, 18 USC § 371.
34 18 ILM (1979), 1460.
35 See Society for Advanced Legal Studies,The Funding of Terror: The Legal Implications of the Financial War on Terror,2002, London: SALS, pp 68–72.