I.

RESPONDING TO TERRORISM: THE QUEST FOR A

LEGAL DEFINITION
The Indefinable Concept of
Terrorism
George P. Fletcher*

Abstract
As the concept of terrorism fulfils multiple functions, the better way to think of
terrorism is not as a crime but as a different dimension of crime, a higher, more
dangerous version of crime, a kind of super-crime incorporating some of the
characteristics of warfare. There are at least eight primary factors that bear on
terrorism: the factor of violence; the required intention; the nature of the victims;
the connection of the offender to the state; the justice and motive of their cause; the
level of organization; the element of theatre; and the absence of guilt. However, one
cannot draw from these variables a simple (or indeed even a complex) definition
of terrorism. The reason is that not all the factors apply all the time. Any proposed
definition produces counterexamples. The way to think about terrorism is, therefore,
to become aware of all the relevant factors but not to expect that they will all
be fulfilled in any particular case. The specific cases of terrorism are related the
way the members of a family are related. Most, but not all, might have the same
eye shape. Others might have hair colour or the shape of their nose in common;
still others might be tall or short. One should try to picture a series of overlapping
sets in which no set intersects with all the others. That is the way our intuitions
of terrorism operate.

1. Three Unique Traits of Terrorism

The phenomenon of fearing terrorism bears three distinguishing features.
First, virtually all the cultures of the world use the same word ‘terrorist’ to
describe this new form of feared criminality. The sharing of the same word
among different languages is generally reserved for new developments in
technology, such as radio, television and computers. It would stop us in our
tracks if, while reviewing the names of crimes in our domestic criminal law, we

* Cardozo Professor of Jurisprudence, Columbia University School of Law; member of the Board
of Editors. [GeoPFletcher@aol.com]
............................................................................
Journal of International Criminal Justice 4 (2006), 894^911 doi:10.1093/jicj/mql060
ß Oxford University Press, 2006, All rights reserved. For permissions please email: journals.permissions@oxfordjournals.org
 The Indefinable Concept of Terrorism 895

suddenly found one that was the same in English as in all the languages of the
European Union. The one label that stands out as a linguistic landmark is not
rape, murder, theft or treason, but terrorism.
Secondly, and relatedly, the concept of terrorism is of relatively recent vintage.
This is to be expected in light of its near universality, for only concepts that
have come into our culture in the last few hundred years could have this inter-
national currency.1 It is not surprising, then, that the legal systems of the world
have no experience of defining terrorism. One looks in vain for crimes called
terrorism in the common law and in continental jurisprudence. One would have
expected to find at least a crime of murder by terror, but there is none. The crime
everyone fears today has no recorded history in the jurisprudence of the world.
The third characteristic is the depth with which political leaders and the
public as a whole subscribe to the existence of a relatively clear notion of
terrorism. Everyone would concur on the following cases of terrorism: 9/11
in the US, 7/7 in the UK, 3/11 in Spain and now 7/11 in Mumbai. Also, in
a historical context, we would readily agree that Robespierre and Stalin
both imposed reigns of terror on their civil populations. What is interesting
here is the element I would call the ‘will to believe’. We are not only afraid of
terrorism; we need to believe in it. This is a curious phenomenon, and we could
hardly provide an answer to the question without pausing to think about the
functions that the concept of terrorism plays in our current political life.
As these introductory remarks indicate, in this article, I will concentrate on
the jurisprudential aspect of outlawing terrorism. There is no need for me to
recite all the references in the field. I rely upon two excellent legal studies for this
purpose, one a book length treatment of terrorism by Tal Becker2 and the
other an analysis of criminal liability in this issue of the Journal by Thomas
Weigend.3

2. The Functions of Defining Terrorism

One of the functions of defining terrorism, to be sure, is to target the crime that
we think should be regarded as taboo and subject to punishment. This seems
to be the purpose of the lengthy collection of United Nations (UN) resolutions
condemning various forms of terrorism.4 Yet, there is not much point in

1 There are a few shared concepts that derive from the trade routes of old; coffee and tea usually
bear the names of the countries of their origin.
2 T, Becker, Terrorism and the State: Rethinking the Rules of State Responsibility (Oxford: Hart Pub,
2006) (hereinafter cited as Becker).
3 See in this issue the contribution of T. Weigend.
4 In order to avoid repeated recitations of the relevant sources, I rely in this article primarily on
the recent and comprehensive studies of the problem. For an extensive analysis of these resolu-
tions by an author who shares a belief in their purpose, see Becker, supra note 2; and for
a careful analysis of the problems of criminal liability under the various UN resolutions and
existing state statutes, see Weigend, supra note 3.
896 JICJ 4 (2006), 894^911

collecting all these resolutions, because the activity being targeted is already
criminal everyplace in the world. If the perpetrators of 9/11, 7/7, 3/11 or 7/11
could be arrested and prosecuted, they would undoubtedly merit the most
severe penalties available in the local system. So I am going to leave this
function aside and address two de facto functions of defining terrorism that
have enormous practical consequences.
The preoccupation with terrorism in recent years has led to two novel forms
of state intervention. The relatively minor innovation is the identification of
funding terrorism and terrorist organizations as a distinctive form of criminal
activity. On the assumption that everyone knows what terrorism is, the first
step is to identify certain organizations as terrorist by their nature ç
e.g. Al Qaeda, Hamas, Hezbollah ç and then to impose both criminal and
non-criminal measures against the acts of providing funds to these
organizations. American federal statutes leave the determination of ‘terrorist
organization’ to an administrative decision and impose direct criminal
penalties on acts of financing.5 The UN General Assembly Resolution against
the financing of terrorism6 focuses on the financing of terrorist acts rather
than of organizations. In effect, anyone who hires a hit man to kill a civilian
is guilty of an offence under the Resolution, provided the assassination
carries one of the purposes typically associated with terrorism ç namely,
‘to intimidate a population, or to compel a government or an international
organization to do or to abstain from doing any act’.7 As Weigend astutely
points out, in cases associated with terrorism, ‘if the circumstances do not
indicate an interpersonal motive or an interest in material gain, [the accused
could] hardly be able to convince a court that he did not act to ‘‘intimidate a
population’’ or ‘‘compel a government to do something or abstain from doing
something’’’.8 In other words, these special terror-related purposes will simply
be assumed ç unless the circumstances indicate the contrary.
Because it includes, presumptively, all killings for hire, the 1999 General
Assembly Resolution drastically overstates the range of prohibited action. The
only way to get a more properly pointed prohibition is to focus more thought-
fully on the concept of terrorism and the nature of terrorist organizations.
The post-9/11 action by the Security Council, in Resolution 1373 (2001), calls
for further restrictions on the financing of terrorist actions and even calls
for the freezing of all assets of persons who commit, attempt to commit or
facilitate the commission of terrorist acts.9 These are rather far-reaching
monetary sanctions, rendered particularly subject to abuse because the
Resolution also blurs the line between terrorism and other forms of organized
crime, including the drug trade.10 The focus on financing as the root of the

5 See 18 USC 2339B(g)(6) (‘[T]he term ‘‘terrorist organization’’ means an organization designated
as a terrorist organization under Section 219 of the Immigration and Nationality Act’).
6 GA Res. 54/109, 9 December 1999.
7 Ibid., at x 1(b).
8 Weigend, supra note 3, note 80.
9 SC Res. 1373, 28 September 2001, xx 1(b) & (c).
10 Ibid., at x 4.
 The Indefinable Concept of Terrorism 897

problem has led to many current proposals to penalize banks that participate
in the transfer of funds to terrorist organizations.11 The taint on terrorist
activity is so strong that it arguably extends to anyone who handles money in
the knowledge that it might end up in the hands of an organization labelled
terrorist. This strong taint on terrorism is possible only because governments
and the affected public are willing to hold firmly to their belief that the
terrorist enemy is clearly identifiable.
The second consequence of the ‘will to believe’ in a well-defined concept of
terrorism is that it has given rise to a new form of military violence in recent
years ç the targeted assassination. The United States has used this tactic
of extra-judicial killing numerous times, and Israel has developed the art
further in carrying out a long series of assassinations of Palestinian militants
on the West Bank and in Gaza.
Assessing the legitimacy of these assassinations proves to be one of the most
difficult problems in international law today. We cannot agree on the nature
of the threat to our security. To focus on the conflict between the Israelis
and Palestinians, for example, how do we classify the suicide bombings that
occurred in Tel Aviv, Jerusalem, Haifa and other Israeli cities from 2000 to
2005? Are they criminal acts or acts of war?12 If they are crimes, the obligation
of the governments is to arrest the suspects and bring them to trial. They
cannot use deadly force unless specific police officers are under a personal
threat to their lives. They cannot argue, ‘Well, it is too difficult to make the
arrest, let’s bomb the house or, if necessary, the whole neighbourhood.’
In contrast, if the recurrent attacks constitute a situation of armed conflict,
violence governed by the law of war, the government is entitled to deploy
its military against the military forces of the enemy. Thus the fundamental
problem is whether we classify a particular situation of violent attacks
as crime or as war.
But this question itself raises serious jurisprudential problems. There are at
least four ways to describe the relationship between crime and war: (i) crime
and war are distinct, non-overlapping categories. Every act of violence must
fall into one category or the other. The distinction arguably parallels the
principle of distinction between military forces and civilians, laid down
in among other things the Geneva Conventions; (ii) crime and war are two
overlapping categories, something like the relationship between national
and international crimes. There is no reason why the same act could
not be classified under both;13 (iii) crime and war are two distinct categories,

11 See J. Preston, ‘Hurt By Hamas, Americans Sue Banks in the U.S.’, N.Y. Times, 15 April 2006, A1;
M. Gordon, ‘A rab Bank to Pay $24 Million Fine’,Washington Post, 18 August 2005, D3.
12 The relationship between crime and war has been a topic of my research and reflection since
the first days after 9/11. See ‘We Must Choose: Justice Or War?’, Washington Post, 6 October 2001.
See also the analysis of the problem in my Romantics at War: Glory and Guilt in the Age of
Terrorism (Princeton: Princeton University Press, 2002).
13 See the attempt to mix the categories in D. Kretzmer, ‘Targeted Killing of Suspected Terrorists:
Extra-Judicial Executions or Legitimate Means of Defense?’ 16 European Journal of International
Law (2005) 171.
898 JICJ 4 (2006), 894^911

but they do not exhaust the world of possibilities. In the gap we find
the cases of ‘unlawful combatants’ recognized in case law14 and civilians
taking ‘direct part in hostilities’ recognized in the First Protocol to the
Geneva Conventions;15 (iv) crime and war might both overlap in some respects
and leave gaps in others.
All four of these approaches have some appeal. The idea that there is a gap
between crime and war is, in the end, hard to resist in analysing the
‘war against terror’ since 9/11. The question is whether that gap enables us to
justify targeted assassinations. If Hamas militants do not wear uniforms
or do not carry their arms openly, they do not qualify, when captured, as
prisoners of war.16 Thus the US Supreme Court described this category
of warriors as ‘unlawful combatants’.17 Some would argue that since unlawful
combatants are engaged in hostilities as are regular combatants ç that is, they
collectively threaten to kill ç it is permissible to kill them precisely as one
would kill regular combatants. Yet, the concept of unlawful combatancy was
designed to answer a different question ç namely, who should qualify after
detention as a prisoner of war. There is no necessary inference for behaviour
on the battlefield.
The 1977 First Protocol to the Geneva Conventions might be more to the
point, yet the relevant provisions depend on the interpretation of the phrase
‘taking direct part in hostilities’.18 Persons in this category lose their status as
protected persons and, therefore, they are presumably fair game for military
action. This phrase ‘direct part’ conjures up a picture of someone picking up a
gun and aiming it at the enemy. But if this is what ‘taking direct part in
hostilities’ means, the special rule in the Protocol is superfluous. Ordinary
principles of self-defence apply against people pointing guns, whether they
are civilians or not. Targeted assassinations are usually aimed at the organiz-
ers of terrorist attacks ç not those who are aiming weapons and engaged
in imminent attacks on others. The targets are the key figures behind the
scenes who organize the suicide bombings, the hijacking and other terrorist
activities. Are they ‘taking direct part in hostilities’? I think the phrase lends
itself to this construction. We would readily say that General Eisenhower took
‘direct part’ in World War II; in fact, it would be absurd to say otherwise.
We would also reach this broad interpretation of ‘taking direct part’ if we
interpreted it according to the criteria of criminal liability. The organizers are

14 United States v. Quirin, 317 U.S. 1 (1942).

15 Geneva Protocol I (1977), Art. 51(3) (‘Civilians shall enjoy the protection afforded by this
Section, unless and for such time as they take a direct part in hostilities’).
16 Third Geneva Convention, Art. 4(2) (defining the four conditions for members of militias to
qualify as prisoners of war).
17 371 U.S., at 31 (‘Lawful combatants are subject to capture and detention as prisoners of war by
opposing military forces. Unlawful combatants are likewise subject to capture and detention,
but in addition they are subject to trial and punishment by military tribunals for acts which
render their belligerency unlawful.’)
18 Geneva Protocol I, supra note 15.
 The Indefinable Concept of Terrorism 899

clearly liable as accessories to the persons bearing arms and engaging in

hostile action. Yet it is not clear whether the concept of ‘taking direct part’
is really meant to do more than restate the obvious criteria of self-defence
against imminent aggressors. If it were, Israel would have no difficulty defend-
ing targeted assassinations against those whom they reasonably believe to
have organized the suicide bombings of civilians. The proper construction
of the phrase obviously deserves greater attention.
In the history of warfare nations are used to targeting other nations;19 since
the Geneva Conventions, however, the international community is committed
to distinguishing between civilian and military targets. The problem in cases
of terrorism, obviously, is that one has neither a foreign army nor a defined
nation to take as the object of using force. In the absence of both, those who
must defend themselves subscribe to the belief that there is something
out there ç some kind of cross between a people and an army, something
they call ‘terrorists’. The label ‘terrorism’ thus has an almost irresistible charm
for governments engaged in de facto wars with irregular militants who do not
qualify as military forces under the law of war.
The will to believe in terrorism, therefore, generates a fictional entity
that we might call the ‘terrorist people.’ These people inhabit the space
between nations in the conventional sense and military forces as defined
under international conventions. Believing in an enemy called the
‘terrorist people’ enables military forces to take action in the form of targeted
assassinations. The new form of warfare that is expressed in the gap between
crime and conventional warfare is essentially a war against the terrorist
peoples and their leaders.
Once we see the concept of terrorism as filling the gap between crime and
war, we might consider as well whether in some sense crime and war also
intersect in the concept of terrorism. Terrorists are not ordinary criminals but
they nonetheless constitute a threat of violent activity of the same sort
engaged in by criminals. They are criminals who are also enemies. Thus we
encounter the concept developed by continental writers called ‘a criminal law
for enemies’, Feindstrafrecht,20 or derecho penal para los enemigos.21 Because of
the peculiarly dangerous status of terrorist quasi-criminals, there is consider-
able sympathy for using techniques of preventive detention against battlefield
detainees. The problem with using camps like Guanta¤namo Bay, however,
is that they rely too heavily on the model of warfare without having recognized

19 US General Order No. 100, 24 April 1863 (the Lieber Code), Art. 20 (‘It is a law and requisite of
civilized existence that men live in political, continuous societies, forming organized units,
called states or nations, whose constituents bear, enjoy, and suffer, advance and retrograde
together, in peace and in war’).
20 G. Jakobs, Strafrecht: Allgemeiner Teil: Die Grundlagen und die Zurechnungslehre (2nd edn., Berlin,
NY: De Gruyter, 1993).
21 F. Mun‹oz Conde,‘El nuevo derecho penal autoritario. Consideraciones sobre el llamado ‘‘derecho
penal del enemigo’’’, in A. Pelaez Ferrusca (ed.), La influencia de la ciencia alemana en
Iberoamerica, Part I (Mexico City: Instituto Nacional de Ciencias Penales, 2003) 117.
900 JICJ 4 (2006), 894^911

thus far the status of the detainees as prisoners of war.22 They are de facto
prisoner of war camps for all combatants23 rather than institutions of
preventive detention based on individualized findings of dangerousness.

3. Defining Terrorism
One thing is clear: the concept of terrorism fulfils many different functions
in the present state of international relations and national security. Not only
is terrorism imagined to be a crime that requires definition, it serves to stigma-
tize certain organizations as it renders the financing of these organizations
illegal. The more serious application of the concept is in the justification of
extra-judicial killings called targeted assassinations.
In light of these multiple functions, it might be naive to pursue a single
definition of terrorism. The concept obviously has different contours for differ-
ent purposes. The better way to think of terrorism, I would suggest, is not as
a crime but as a different dimension of crime, a higher, more dangerous version
of crime, a kind of super-crime incorporating some of the characteristics of
warfare.24 This idea derives from the qualitative relationship between crime
and tort proposed some years ago by Robert Nozick. He was puzzled by the
problem why all torts are not punished as crimes. Why should some injuries
be compensated by damages and other injuries trigger a public prosecution,
leading to a jail term? The question is not easy to answer but Nozick’s account
is as good as any.25 He claims that tort is an injury to a single person but crime
is characterized by a general fear in the public as a whole. Terrorism stands to
crime, therefore, as crime stands to tort. It is super-crime, one power removed
from the ordinary run of assaults and batteries.
Because of these differences between terrorism and crime, it hardly makes
sense to define terrorism the way criminal codes define murder or theft. There
is, therefore, something awry about the collective effort in the UN and
in domestic legislation to come up with a precise definition of terrorism. The
pursuit of a verbal definition seems superfluous in light of the tendency
to concur about whether 9/11 in the US or 7/7 in the UK or 3/11 in Spain or
now 7/11 in Mumbai constitutes terrorist incidents. If we already agree about
the core cases, what is the point of trying to come up with a set of words that
will qualify as a ‘definition’ of terrorism?

22 For my previous thoughts on point, see my ‘Citizens and Persons in the Jurisprudence of War’,
2 Journal of International Criminal Justice (2004) 953.
23 In the aftermath of Hamdan v. Rumsfeld, 2006 Lexis US 5185, the Bush Administration was
forced to recognize the applicability of Geneva Convention Common Article 3 to the detainees
in Guanta¤namo. This does not guarantee an individualized determination of the detainee’s
dangerousness. M. Mazzetti and K. Zernike, ‘White House Says Terror Detainees Hold Basic
Rights’, N.Y. Times, 12 July 2006, A1.
24 In the United States Code, there is no single crime called ‘terrorism’. Chapter 113B of Title 18,
titled ‘Terrorism’, encompasses a family of crimes.
25 R. Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), at 60^61.
 The Indefinable Concept of Terrorism 901

To pursue this theme more deeply, we should think first about the concept of
definition. Obviously, when people search for a definition of terrorism, they do
not want a legislature someplace to issue a fiat that will henceforth constitute
the official definition of terrorism. That would be, in the lexicon of philoso-
phers, a ‘stipulative definition’. A good example would be defining the poverty
line. When a government decides that everyone earning less than a certain
amount of money will be classified as living in poverty, the definition is
obviously a stipulation. It bears some relationship to reality but the definition
could easily be more or less inclusive. The same thing is true about terrorism.
International organizations and national governments can issue official
definitions of terrorism, but so far as they are out of harmony with our
intuitions, they are not of much use.
What we are looking for, then, is not a stipulation about the boundaries of
terrorism but rather an account of terrorism as the concept is actually used.
What do we already agree upon? What are the criteria reflected in our ready
consensus about the attacks on the Twin Towers, suicide bombers in Israel
and setting off bombs in commuter trains? Finding this account is not the
task of legislators but of scholars willing to reflect upon the world as we know
it. In search of a proper account of terrorism, I propose that we reflect on eight
variables that seem to recur in our discussions about the topic.

4. The Eight Variables of Terrorism

A. Violence
Terrorism is premised on the violent attack on life and security of human
beings. It encompasses the conventional criminal offences of murder, assault,
rape and kidnapping. Implicitly, it is not about property offences or about
voluntary victimless offences such as prostitution, gambling or drugs.
Because the Mafia and other organized criminal rings specialize in these
latter offences, they are generally not considered terrorist organizations.
Of course, one could imagine a terrorist organization that focused exclusively
on non-human targets, say, an organization dedicated to destroying all
historical monuments. It goes without saying that the violence must also be
unlawful. If the use of force is justified as self-defence, either individually or
collectively, it is obviously not terrorism.
In 1977, Michael Walzer, in writing about terrorism, stressed the randomness
of the violence.26 A totally different take on terrorism is found in the federal
legislation enacted in the US after 11 September 2001. The critical feature of
this definition is the intention of the terrorists, or at least the appearance of
their intention, which must be ‘to intimidate or coerce a civilian population,

26 The purpose of terrorism, he wrote, is ‘to destroy the morale of a nation or a class, to undercut
its solidarity; its method is the random murder of innocent people’. M. Walzer, Just and Unjust
War: A Moral Argument with Historical Illustrations (3rd edn., NY: Basic Books, 2000).
902 JICJ 4 (2006), 894^911

to influence the policy of government by intimidation or coercion, to affect the

conduct of a government by mass destruction, assassination, or kidnapping’.27
For one, randomness is key; for another, a systematic political purpose is
the characteristic feature. This leads to consideration of a second variable,
the requirement of some intention beyond that of the underlying crime.

B. The Required Intention

The official definitions of terrorism seem to focus very heavily on the element
of intention. The language typically follows the federal statutory definition
‘to intimidate or coerce a civilian population, [or] to influence the policy of
government by intimidation or coercion’. Similar language is found in the 2004
UN Security Council Resolution 1566: the purpose of terrorism must be to
‘intimidate a population or compel a government or an international organiza-
tion to do or to abstain from doing any act’. That is, terrorists want to reach
some political objective and the imposition of terror on the population is the
means of accomplishing their purpose.
It is not clear to me why those who seek an official definition of terrorism
seem so preoccupied with the subjective purpose of the unlawful violence.
Admittedly, there might be symbolic purposes in terrorist attacks such as
9/11. In their book Occidentalism, Avishai Margalit and Ian Buruma attribute
various symbolic objectives to the 19 Al Qaeda terrorists; their purpose was
symbolically to defeat the West in its cultivation of science, its provision of
equal opportunities for women in the workplace and its placement of com-
merce at the centre of its architectural monuments. All of this is probably
true, but these purposes are not empirically contingent. They are automatically
fulfilled by the very action of destroying the World Trade Center.
When we speak about intentions or purposes in the criminal law, we mean
to assert subjective states that are empirically contingent; that is, they might or
might not be realized in fact. For example, the purpose of robbing a bank is
to get the money. If the robbers achieve their end or not is a question of fact.
It is not like the symbolic purposes attributed to Al Qaeda’s use of homicidal
means against the cultural symbols of the West.
The intentions required in the definition of terrorism are someplace between
empirically contingent and symbolic purposes necessarily achieved by the act
of violence. Whether a terrorist attack actually leads a government ‘to do or to
abstain from doing any act’depends on what happens after the attack. Bombing
Hiroshima did intimidate the Japanese population and led to Japan’s surrender
but other uses of violence are apparently less successful. Certainly, 9/11 did not
result in changing US governmental policy but the bombing of trains in Madrid
did result in Spain’s withdrawing its troops from Iraq. (Whether this was the
actual purpose of 3/11 is anybody’s guess.)

27 18 USC 2331.
 The Indefinable Concept of Terrorism 903

As these examples illustrate, the main problem with attributing purposes

to terrorist attacks is determining exactly what the purpose might have been.
Terrorists do not drop leaflets in advance advising the population that an
attack is impending. They do not offer to negotiate their purposes in advance.
No one ever says, ‘Do X or we will send suicide bombers into your cities.’
For these reasons I am very sceptical about the subjective purposes attributed
to terrorist attacks. But even if there is a subjective purpose to ‘intimidate the
population’and thereby to seek some change in governmental policy, the attack
itself establishes the purpose unless there are counter-indications of monetary
or purely personal ends.28
Terrorism is not well-understood by focusing on the subjective side of the
conduct. The objective circumstances are more revealing, as we shall see in the
subsequent discussion. If this is true, as I claim, then we have a puzzle about
why all modern definitions of terrorism seem to be preoccupied by the factor
of intention. The same is true of international definitions of torture.29 This may
be indicative of a general problem in the modern theories of criminal law, all
of which de-emphasize the context and objective contours of criminal acts
for the sake of the mens rea as the essence of criminal behaviour.30

C. The Victims
Most definitions of terrorism stress that the victims must either be civilians or
innocent persons. For example, the International Convention for the Suppression
of the Financing of Terrorism, adopted by the General Assembly of the UN in
1999, defines terrorism, in part, as an act ‘intended to cause death or serious
bodily injury to a civilian’.31 Resolution 1566 of the Security Council more
broadly refers to ‘criminal acts, including against civilians’.32 This is obviously a
controversial matter with the limitation to civilians not easily justified.
In its historical roots in the 1930s, the international campaign against
terrorism was initially oriented toward crimes against state officials. The
assassination of King Alexander I of Yugoslavia was one of the first critical
incidents.33 Yet, since the Geneva Conventions, the distinction between civilian
and military targets has carried sway.

28 See Weigend, supra note 3, note 80.

29 The account of the objective features of torture in the literature is very weak, largely because
the International Convention Against Torture ç and thus lawyers and scholars working in the
area are preoccupied with the intention to inflict serious ‘pain or suffering’. See Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entry into
force 26 June 1987), Art. 1.
30 See my account of the transformation of theft offences in ‘The Metamorphosis of Larceny’, 89
Harvard Law Review (1976) 269.
31 See the International Convention for the Suppression of the Financing of Terrorism, Art. 2, 9
December 1999, UN Doc. A/RES/54/109 (1999), (entered into force 10 April 2002), as reported
online at http://www.un.org/law/cod/finterr.htm (visited 20 July 2006).
32 SC Res. 1566, 7 October 2004.
33 See Becker, supra note 2, at 85, note 8.
904 JICJ 4 (2006), 894^911

The most common argument in favour of limiting terrorism to civilian

targets is an argument by analogy to war crimes. Since the Geneva
Conventions are designed to protect civilians and prisoners of war, war crimes
are essentially about crimes committed against protected persons.34 The claim
by analogy is that terrorism should also be about civilians and other protected
persons. But there are many war crimes defined according to The Hague
instead of the Geneva Conventions and they are applicable as well against
military targets.35 In the end, the claim that terrorism should be limited to
civilian targets cannot withstand careful scrutiny.
Nonetheless, the intuition that terrorism is about civilian targets has
a powerful grip on public discourse. I have heard many arguments to the effect
that suicide attacks against Israeli soldiers ç particularly those in the occupied
territories ç differ in quality from attacks against civilians.36 The assumption
underlying this argument is probably some notion of assumption of risk. By
entering the military (even if drafted!), soldiers voluntarily expose themselves to
the risk of being killed. Therefore, when terrorists kill soldiers, it is arguably not
as bad as killing civilians who have done nothing to bring the risk on themselves.
For the first few years after 9/11, the American government subscribed to the
view that terrorism encompassed military targets. Surely, when Al Qaeda
attacked the battleship USS Cole, no one had doubts about whether the
attack constituted terrorism. In the now failed attempt to establish military
tribunals to try international terrorists,37 the Bush Administration did define
a crime of terrorism subject to trial in the tribunals, and this offence did in
fact encompass attacks against military targets.38 The question remains open

34 Rome Statute of the International Criminal Court (hereinafter cited as ICCSt.), Art. 8(2)(a).
35 ICCSt., Art. 8(2)(b).
36 An indication of this intuition is the closing scene in the film Paradise Now (Warner
Independent, 2005), which is designed to condemn suicide bombing but which seeks to create
sympathy for the Palestinian protagonist by showing him about to blow himself up on a bus full
of Israeli soldiers.
37 Hamdan v. Rumsfeld, 1006 US Lexis 5185. See G.P. Fletcher, ‘The Hamdan Case and Conspiracy as
a War Crime: A New Beginning for International Law in the US’, 4 Journal of International
Criminal Justice (2006) 442^447.
38 Military Commission Instruction Number 2, x 6(A)(18). The full definition reads:
(18) Terrorism
a. Elements.
(1) The accused killed or inflicted great bodily harm on one or more persons or destroyed
certain property;
(2) The accused: (a) intended to kill or inflict great bodily harm on such person or persons;
or (b) intentionally engaged in an act that is inherently dangerous to another and evinces
a wanton disregard of human life or intended to destroy such property;
(3) The killing or destruction was an attack or part of an attack designed to intimidate
or coerce a civilian population, to influence the policy of a government by intimidation
or coercion, or to affect the conduct of a government;
(4) The accused did not enjoy combatant immunity or an object of the attack was not
a military objective; and
(5) The killing or destruction took place in the context of and was associated with armed
conflict.
 The Indefinable Concept of Terrorism 905

and it remains to be seen how political interests will line up on this question in
the future.

D. The Wrongdoers
If there is some ambiguity about the range of victims in the crime of terrorism,
there is a parallel problem on the defendant’s side of the action. Once more
the problem juxtaposes private actors against the state. In the classic cases,
terrorists are fighters outside the military command structure. But they may
often have links with governments that provide financing or moral support.
The problem arises, therefore, whether states may engage in terrorism ç
either directly by, say, bombing civilian targets, or indirectly, by financing
those who engage in suicide bombings or airplane hijacking.
In the summer and fall of 2003, this matter was hotly debated in the UN.
The Organization of the Islamic Conference, 56 states in all, argued vigorously
for the inclusion of state-sponsored terrorism in treaty negotiations pending
in the General Assembly.39 An Australian proposal supported the opposite
view. The matter was difficult to resolve, as a matter of law or of principle.40
There is nothing in the any of the definitions of terrorism that would exclude
states or heads of states from committing the crime. And yet there seems to be
great reluctance to say that the US was guilty of terrorism in bombing civilian
targets in Hiroshima, Nagasaki and Dresden ‘for the purpose of intimidating or
coercing a civilian population’. This seems to be largely a political rather than
a jurisprudential question.
The tendency in international criminal law is to hold heads of state liable for
the war crimes committed under their command and supervision. The Rome
Statute establishing the International Criminal Court (ICC) is explicit on this
point.41 Suppose that, in the course of the armed conflict in Iraq, Saddam
Hussein had commanded an attack against a civilian population, perhaps

39 The matter largely hinged on two small changes of language in the draft convention’s Art. 18.
Where the draft Art. 18(2) reads ‘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’, the Organization of the Islamic Conference (OIC)
proposed this alternative ç‘The activities of the parties during an armed conflict, including in
situations of foreign occupation, as those terms are understood under international humanitar-
ian law, which are governed by that law, are not governed by this Convention’. (Emphasis
added.) Likewise, in draft Art. 18(3): ‘The activities undertaken by the military forces of a State
in the exercise of their official duties, inasmuch as they are governed by other rules of interna-
tional law, are not governed by this Convention’ ç the OIC proposed changing the wording to,
‘The activities undertaken by the military forces of a State in the exercise of their official duties,
inasmuch as they are in conformity with international law, are not governed by this Convention’.
(Emphasis added.) This would have the effect of broadening the scope of the convention to
include state military action outside of an armed conflict. While the Israeli-Palestinian conflict
would be the most obvious example, other ongoing conflicts such as those in Iraq and Jammu
and Kashmir would also be affected by this proposed language. Becker, supra note 2.
40 It remains so as this article goes to press.
41 ICCSt., Art. 27(1)
906 JICJ 4 (2006), 894^911

in Iran or Israel.Would this have been a war crime subject to prosecution in the
ICC? Would it also have constituted the crime of terrorism, subject to prosecu-
tion in Bush’s military tribunals? The Department of Defense would presum-
ably favour that interpretation.
My inclination is to agree with the Islamic opposition that the concept of
terrorism should apply to the actions of states as well as to criminal actions
ordered by the head of state. But the position of the Islamic states is likely
to change in light of their interest in defending Hamas and Hezbollah ç both
now with strong governmental links ç against charges of terrorism.
The American policy might change as well. These fluctuations illustrate
the highly political and contingent nature of terrorism. Despite the strong
consensus about the nature of terrorism, the deeper we delve into the subject,
the more controversial the issues appear to be.

E. Just Cause
The most controversial issue in the definition of terrorism is captured by
slogan: ‘One person’s terrorist is another’s freedom fighter’. The problem is
whether a good cause justifies the use of horrendous means. Again, the
Organization of Islamic States often claims that it does and thus the group
finds itself at odds with the dominant view in the West. On this issue, I side
with those who think the motive for terrorist actions is irrelevant.
Those who opt for terror always believe their cause is just. Sometimes it is,
sometimes it is not. No American would be happy about branding the Boston
Tea Party an act of terrorist aggression against British property. Nor would
supporters of the Union in the American Civil War readily label General
William Tecumseh Sherman’s march to the sea, which burned a 60 mile path
through the state of Georgia as a campaign of terror against the Southern
population. Yet, these acts of violence against property and people do meet the
conventional tests of terrorism.
If they are exempted on the grounds of a just cause, then we are going to
have trouble with other allegedly good causes. What about the Irgun’s blowing
up the King David Hotel in order to liberate Palestine from the British? How
about the use of suicide bombing to ‘resist occupation’ç a very popular cause
these days? Is it really true: one person’s terrorist is his neighbour’s freedom
fighter? For some it is, but in fact there are only a few historical cases in which
people tend to disagree.
The general condemnation of terrorism in international politics should lead
us to think of terrorism as analogous to torture. As the latter is taken to be
an absolute taboo, so should the former. Of course, there will always be some
utilitarians who argue that overriding considerations of security justify
torture, and overriding considerations of politics should, by like token, justify
the use of terror. But we are better off fending against this temptation and
holding fast to a line that prohibits the means of either torture or terrorism
regardless of a potentially desirable end.
 The Indefinable Concept of Terrorism 907

It has become common for UN resolutions to rule against the possibility

of justifying terrorism by invoking arguments of ‘a political, philosophical,
ideological, racial, ethnic, religious or other similar nature’.42 Islamic countries
vote in favour of this exclusion but, as Tal Becker points out, this does not
prevent many of them from thinking that ‘resistance to occupation’ and other
motives can justify violence for a right cause.43
To this point we have considered variables that have had the tendency
of maximizing the concept of terrorism. If all violent attacks constitute
terrorism ç whether against private persons or military installations, whether
by private individuals or governments, whether for good causes or bad ç the
concept may, in fact, be too expansive and inclusive to provide the meaningful
distinctions we need for useful analysis and discussion.
We should take a step back and start from the perceptions of people who
experience terror. As associated with the post-revolutionary periods in
early nineteenth-century France and twentieth-century Soviet Union, the
experience of terror consists in radical insecurity about when violence
will strike again. The insecurity is expressed in fear of the knock on the door,
in distrust of the authorities, and indeed, in suspicion towards all those who
might continue the violence. We have to ask ourselves: what are the factors
that evoke this sense of terror?

F. Organization
A curious debate arose about killings that occurred at the Los Angeles
International Airport on 4 July 2002.44 An Egyptian named Hesham
Muhammad Hadayet opened fire on tourists waiting in line to check in for an
El Al flight to Israel. He killed two people and injured five, then was shot to
death by local police officers seeking to restore order. The FBI had difficulty
deciding whether this was simply a crime of murder under California law or
an act of terrorism subject to federal investigation. That the offender was
Egyptian ç Arab and Muslim ç understandably invoked associations with
other acts of terrorism in the Middle East. Yet the FBI was uncertain, largely
because it was not known whether Hadayet acted alone or as the agent of an
organization, a conspiracy of individuals committed to killing Jewish civilians
and other patrons of the Israeli national airline. It turned out that, according
to the FBI investigation, Hadayet had no organizational ties. The interesting
question is why it mattered.
The assumption of the FBI was that terrorists act as part of a terrorist cell or
group. I doubt if this is true about all terrorists in all cases. So far as we know,
Timothy McVeigh acted alone, but he was widely described as an American
terrorist. Most people I have asked seem to be willing to classify Ted Kaczynski,

42 SC Res. 1566 (2004), x 3.

43 Becker, supra note 2, at 105^8.
44 K.R. Weiss and M. Landsberg, ‘Gunman Kills Two at LAX; FBI Identifies Shooter as Egyptian-
Born Resident of Irvine’, Los Angeles Times, 5 July 2002, A1.
908 JICJ 4 (2006), 894^911

the Unabomber, as a terrorist, though the ‘A merican’ side of his criminal action
received less emphasis than McVeigh’s supposed defence of the American
constitution.
One wonders why McVeigh’s being an American was so worthy of mention.
Perhaps it was the element of surprise, relative to our expectation that
terrorists come so often from the Middle East. To be more precise, the
common assumption ç particularly after 9/11 ç is that terrorists are Islamic
radicals, believers in the kind of radical, hate-filled Islam propagated in
the madrasas of the Arab world. That Hesham Muhammad Hadayet was an
Egyptian undoubtedly increased the suspicions of the FBI, but the ethnic
factor alone was not sufficient to tip the scale from crime to terrorism.
It is not so easy to give a precise account of the relationship between terrorism
and ethnicity. On the one hand, there are obviously many terrorists ç the Irish
Republican Army in Northern Ireland, Euzkadi Ta Askatasuna (ETA) in Spain,
the Baader-Meinhof group in Germany, the orthodox Jews who conspired to blow
up the Temple Mount ç who have less than friendly connections to Islam or the
Arab world. On the other hand, in our time at least, the relationship of terrorism
to the political frustrations and aspirations of the Islamic world is not totally
irrelevant. As adherents to principles of human rights and non-discrimination,
we naturally shy away from this factor in analysing terrorism. The underlying
sensibility probably is the fear that the linkage would lead to profiling and unjust
prejudice against all Muslims. If we leave aside these dangers of excessive
stereotyping, however, we have a more difficult time deciding whether the
cultural connection to Islamic fundamentalism should have a bearing on the
analysis.45
In the Hadayet case we are left with the FBI’s intuition that an organizational
connection should be considered a critical factor in the analysis of terrorism.
But one wonders why organization matters. The reason, I think, is that we
have less to fear from solitary actions of loners like Hesham Muhammad
Hadayet. After the particular offender is arrested or killed in the act,
the organization lives on to threaten another day. Thus we experience
terror more deeply when we perceive the individual suicide bomber not as
a lone wolf, but as one of many potential agents organized and funded by
terrorist handlers.
The connection between terrorism and large religious movements accentu-
ates the element of organization and ideological conviction in committing acts
of terrorism. The less significant the particular offender, the more frightening
the terrorist incident. When there are large numbers waiting in the wings to
repeat the same act, we experience a much deeper insecurity than that caused
by a lone gunman in the airport.

45 Avishai Margalit and Ian Buruma associate 9/11 with the Islamic hatred for the commercial,
scientific and secular mind of the West. The attack on the Twin Towers ç the great symbols of
world commerce ç cannot be entirely separated from the ideology of ‘Occidentalism’, which
finds its primary expression in fundamentalist Islamic circles. A. Margalit and I. Buruma,
Occidentalism: The West in the Eyes of Its Enemies (NY: Penguin Press, 2003).
 The Indefinable Concept of Terrorism 909

G. Theatre
The Internet contains dozens of definitions of terrorism, but one stands out
from among all the legalistic efforts to reduce the concept to necessary and
sufficient conditions. In the 1970s, one Brian Jenkins captured the phenom-
enon in a single word. Terrorism, he said, is theatre.46 You should not expect to
find that definition in a federal statute or regulation, but nonetheless there is
a lot of truth to the claim. Terrorism always has a theatrical aspect. Effective
terrorism is always a dramatic event that captures headlines for long periods.
It is unexpected, with great shock value. The element of surprise is critical,
which explains why terrorists do not drop leaflets and issue ultimatums in
advance. Like good theatre, terrorism always represents some moral drama
acted out on a large stage. If Margalit and Buruma are right,47 the attack on
the Twin Towers represented a symbolic victory over the evils of Western
commerce and secularism. For the fans of Timothy McVeigh, the blowing
up of the McMurrah Federal Building represented a local triumph over the
creeping influence of the federal bureaucracy.
Terrorism must have a theatrical aspect, for otherwise it cannot communi-
cate the threat of terror to the public at large. Secret terrorism is an oxymoron.
You can murder in private, you can steal surreptitiously, but you cannot
commit terrorism behind closed doors. The act requires an open and visible
display of violent power.
The element of theatre, along with the organizational dimension of terror-
ism, accounts in part for its destabilizing impact on the public. Yet, there is
one more factor to consider that explains that particular power that terrorism
enjoys in spreading fear and anxiety.

H. No Guilt, No Regrets
Terrorism depends on the fear of repetition, either from the agent who has
already struck or from his associates committed to the same cause. The
element of organization contributes to these fears. Also relevant is the percep-
tion of the terrorist as someone who acts without feeling guilt or remorse.
Our experience with Al Qaeda operatives so far, and indeed with other
terrorists like McVeigh, Kaczynski and the suicide bombers in Israel, suggests
that they all act without guilt or regret for their actions. They and their
organization think they are doing the right thing and that is what makes
them particularly dangerous.
The absence of guilt and regret flows from many sources. Sometimes terror-
ists think they are doing the right thing because they are counteracting
a perceived threat of some sort. McVeigh thought he was defending
the Constitution against a federal government out of control. Yigal Amir

46 B. Jenkins, ‘Intentional Terrorism: A New Mode of Conflict’, Research Paper No. 48, California
Seminar on Arms Control and Foreign Policy (Crescent Publications, 1976), at 4.
47 Supra note 45.
910 JICJ 4 (2006), 894^911

assassinated Yitzhak Rabin because he thought that Rabin satisfied the

Talmudic criteria of an ‘aggressor’ against the Jewish people.48 Hamas regards
all Jews as interlopers in the land of Palestine. Osama bin Laden cannot stand
the ‘contamination’ represented by American bases in Saudi Arabia. In these
cases the terrorists rely on some paranoid version of self-defence or necessity
to justify their conduct in their own minds.
Another reason terrorists might act without guilt is that their actions are
often connected to religious convictions that enable them to see the violence as
divinely ordained. This connection holds in most Islamic-inspired terrorism
and is found as well in the case of Yigal Amir and of all the right-to-lifers
who feel justified in blowing up abortion clinics. Doing ‘God’s work’ is often
enough to ease any sense of guilt one might have about killing otherwise
innocent people.
The notion of martyrdom is readily twisted to fit cases of terrorists who
sacrifice their own lives for the sake of holy violence. That suicide bombers ç
people who kill innocent people as well as themselves ç can think of them-
selves as martyrs for Islam startles anyone who takes religious ideas seriously.
Both suicide and murder are forbidden in Islam49 and yet, many terrorist
operatives can convince gullible young men and women that they should die
as Shahada for their faith.
The relevance of guilt and remorse is that they inhibit criminal action.
Criminals typically tender these sentiments. That is why they commit their
crimes in private, lie about their actions, cover them up and seek to avoid
detection. Even concentration camp guards in the Third Reich abstained from
advertising their actions in their home towns. East German border guards who
killed escaping citizens did not receive public acknowledgment for service
to the Communist state. Yet terrorists are proud of their crimes. Parents
and neighbours celebrate their ‘heroism.’ Osama became a common name
for Arab children born in the wake of 9/11. Their lack of guilt, supported by
public acceptance, is the primary factor that gives terrorists their identity and
makes them so dangerous.

5. Concluding Remarks
In sum, then, there are at least eight primary factors that bear on terrorism ç
the factor of violence, the required intention, the nature of the victims, the
connection of the offender to the state, the justice and motive of their cause,
the level of organization, the element of theatre and the absence of guilt.
Unfortunately, we cannot draw from these variables a simple (or indeed
even a complex) definition of terrorism. The reason is that not all the factors

48 On the concept of the Rodef ç seriously misunderstood, in my opinion, by Yigal Amir ç see
my ‘Punishment and Self-Defense’, 8 Law & Philosophy (1989) 201.
49 For an exhaustive analysis, see B.K. Freamon,‘Martyrdom, Suicide, and the Islamic Law of War:
A Short Legal History’, 27 Fordham International Law Journal (2003) 299.
 The Indefinable Concept of Terrorism 911

apply all the time. Any proposed definition produces counterexamples. If you
claim that terrorism requires violence against people, I can think of counter-
examples. If you say that the crime must be committed with a certain intent,
I can imagine cases like 9/11 where we are not sure what the intention was.
If the claim is that terrorism must be directed against civilians, I will ask
about the terrorist attack against the USS Cole. If you tell me that the attack
must come from non-state sources, I will inquire about the American bombing
of civilians in Hiroshima. If the claim is that the random or politicized destruc-
tion of property is terrorism, regardless of the cause, I will wonder about the
Boston Tea Party.
The same problem of counterexamples plagues every effort to pin down the
essential characteristics of terrorism. Organization is not essential because
some terrorists act alone. Absence of guilt is not indispensable because some
terrorists might feel guilty. And so it is for the randomness of the action,
the political nature of the motive and the relevance of ethnicity. I have
not mentioned the element of theatre because ç ironically ç this novel
description of terrorism might be as close as we get to an essential condition.
I have trouble imagining a terrorist act committed without a desire to draw
public attention to the event.
The way to think about terrorism, then, is to become aware of all the
relevant factors but not to expect that they will all be fulfilled in any particular
case. The specific cases of terrorism are related the way the members of
a family are related.50 Most but not all might have the same eye shape. Others
might have hair colour or the shape of their nose in common; still others
might be tall or short. Try to picture a series of overlapping sets in which no
set intersects with all the others. That is the way our intuitions of terrorism
operate.
This conclusion has serious implications for those who want to subject
terrorism to a rigorous statutory definition. The concept is essentially
contested. A definition in ‘if and only if’ terms (necessary and sufficient
conditions) will invariably produce intuitive counterexamples.
Perhaps this should not surprise us. A concept like terrorism that lies at
the centre of our political life may not lend itself to the discipline of legal
thinking. It is probably like the notions of ‘democracy’ or ‘constitutionalism’
or ‘rule of law’ ç too important to be settled once and for all in a legislative
definition.

50 L. Wittgenstein, Philosophical Investigations: The German Text with Revised English Translation
(1953) (3rd edn., London: Blackwell Publishers, 2001), Aphorism 67, at 52.