financing. Nonetheless, there are some peculiarities about the nature of terrorism which have made not only all attempts to reach an agreement on the definition of terrorism, until now, impossible, but also the criminalization of terrorist financing controversial. That is, there is no agreement on what types of conduct, in what circumstances and when, against whom (targets or victims) and with what intention or motivation constitute terrorism.
In terms of the objective element, the actus reus of the offense of terrorism is defined by scholars as the “underlying act” which is an offense in itself: murder, hijacking, kidnapping and so on.2 The less-discussed question is whether the underlying act of terrorism encompasses any unlawful conduct, including violent conduct, “repressive acts”3 and even minor criminal conduct like vandalism. While some believe that the underlying acts of terrorism only (need to) include serious offenses or “violence,”4 in providing a generic definition on terrorism, some regional agreements even go so far as to include “any act which is a violation of the criminal laws of a State Party.”5 This seems to cover all kinds of criminal conduct. The UN draft Convention against Terrorism enumerates the underlying act of causing “death or serious bodily injury . . . serious damage to public or private property . . . resulting or likely to result in major economic loss.”6 “One may wonder when serious damage (rather than non-serious damage) to a place of public use occurs.”7 The question can be also raised as to whether lawful conduct which may terrorize people can be an underlying act.
The most peculiar feature of terrorism, as the (in)famous dictum “one man’s terrorist is another man’s freedom fighter” indicates, is that “the same kind of action . . . will be described differently by different observers, depending on when and where it took place and whose side the observer is on.”8 That is, terrorism, unlike other transnational crimes, is not an act inherently and always recognized as criminal. Its criminality can be circumstantial. There are some circumstances, such as struggles for self-determination, attempts at national liberation, rebellion and duress or necessity, on which there is no agreement whether terrorist-type of conduct or the use of violence is unlawful and unjustifiable but excusable, or unlawful but justifiable, or even lawful.9 Although these circumstances might be regarded as exceptional, ambivalence about the use of terrorism in these circumstances has plagued agreement on a generic definition of terrorism.10 In some regional agreements, however, some of these circumstances have been taken into account by being exempted from the definition of terrorism.11 Nonetheless, what law should govern such exempted acts,12 or whether these acts ought to be covered by the international humanitarian law or the “law of international criminal defences” has not been clarified either regionally or internationally.13
To solve the problem of how to label terrorist-type conduct, especially in those exceptional circumstances named, one may assume that specifying the targets or victims of terrorism can help to identify which acts constitute terrorism. But, the peculiarity of the concept of terrorism also confuses the recognition of the targets of terrorism. Terrorism is a “compound offence” which needs both a mens rea in relation to its underlying act and a special intent in regard to the terrorism itself. So, there are two types of victims: the target of the underlying act and the “real target” at which the underlying act has been aimed.14
With regard to the targets of the underlying offense, there is a critical controversy about whether acts against nonhuman targets can be labeled as terrorism. A “British-inspired definition of terrorism”15 includes various forms of damage to property and interference with or disruption of essential utilities and infrastructure.16 Others restrict this definition by requiring that such property damage needs to be “likely to endanger human life.”17 In some regional agreements, an act falls within the scope of terrorism if it is taken with the intention of destabilizing or destroying “the fundamental political, constitutional, economic, or social structure of a country or an international organization.”18 Although the property damage element is included in the UN Draft Convention definition of terrorist acts,19 it is neither in the list of the acts drawn by the Resolution 1566 of the Security Council on the condemnation of terrorism20 nor consistent with the meaning of terrorism advocated by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.21 The concern expressed is that while such inclusion can capture conduct of a terrorist nature, it is likely to target “conduct with no bearing at all to terrorism.”22 A protest against the WTO, for instance, would be a terrorist act if it resulted in property damage.23
With regard to the special intent of terrorism, the League of Nations regarded terrorism as a criminal act with the intention of creating “a state of terror in the minds of particular persons, or a group of persons or the general public.”24 In this definition, it is not clear whether intimidation is the primary purpose of the terrorists or whether it is a means to an ulterior end. A number of recent definitions broaden the element by (relying on the British approach) requiring that the purpose of an act of terrorism must be “to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.”25 The difficulty is that it is not clear what degree of intimidation or compulsion needs to occur for an act to be considered terrorism:26 mere intimidation27 or serious intimidation?28 In addition, the concern has been expressed that none of these elements are easy to prove because terrorists do not necessarily make their specific demands or make openly public the purpose of their action.29 In the Boston marathon bombings in 2013, for example, it has not been plainly announced what the perpetrators intended to prompt the U.S. government to do or to abstain from doing.
What complicates defining the subjective element of terrorism is the question whether intimidation of the public or coercion of a state constitutes terrorism if it is motivated by personal impulses or by material gain such as in blackmail, extortion, revenge, or personal hatred. While some propose that even acts of violence for personal gain should constitute terrorism,30 others exclude any terrorist-type conduct with a private motive from a definition of terrorism.31 They argue that “if a definition of terrorism is to reflect the real nature of the harm that terrorism inflicts on the political process,” public motives, including political, ideological, religious, ethnic, or philosophical motives, must be distinguished from “private violence.”32 It is argued that setting fire to a building motivated by nonpolitical, nonreligious, or nonideological cannot be regarded as terrorism but arson as a public motive is lacking.33 Similarly, an aggravated bank robbery may end with killing or hostage taking, but if done in order for the bandits to flee unharmed, the intimidating of the public and coercing the police not to take any action against the bandits cannot be regarded terrorism as this action has not be done for advancing an ideological, political, or other public cause (there are of course a range of common crimes suited to deal with such situations).34
From a criminal law perspective, it is again controversial whether while motive is irrelevant to criminal culpability, the existing criminal law needs to be expanded so as to include motive as an element of the crime of terrorism. The proponents of such inclusion believe that requiring motive as a mental element “allows the criminal law to more finely target, stigmatise and deter what is considered by society to be especially wrongful about terrorism” “which is not inherent in a physical act of violence alone.”35 This may also help “satisfy public indignation,” “better express community condemnation,” “placate popular (but reasonable) demands for justice,” and send “a symbolic message that certain kinds of violence cannot be tolerated in plural, secular democracies.”36
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