What is Terrorism? Revisited

What is terrorism? In this earlier article concerning the dreadful murder of solider Lee Rigby in Woolwich, we saw that section 1 of the Terrorism Act 2000 defines ‘terrorism’ as follows:

• the use or threat of ‘action’,
• which is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
• which is made for the purpose of advancing a political, religious, ideological or racial cause.

‘Action’ includes:

• serious violence against a person,
• serious damage to property,
• endangering a person’s life (other than the life of the person committing the action),
• creating a serious risk to the health or safety of the public or a section of the public, or
• anything designed to seriously interfere with or seriously disrupt an electronic system.

The definition is drawn widely and, in essence, involves the use or threat of violence for political, religious, ideological or racial causes.

How far does the definition extend? In particular, does it include military attacks by groups that are not backed by the state against national or international armed forces in a non-international armed conflict (for example, does it extend to Taliban attacks on coalition forces in Afghanistan)? That was the question facing the Supreme Court in the case of R v Gul [2013] UKSC 64 (the sixty-fourth case heard by the United Kingdom Supreme Court in 2013).

Background

Mr Gul was convicted by a jury of five counts of disseminating terrorist publications, contrary to section 2 of the Terrorism Act 2006. He was sentenced to five years’ imprisonment. ‘Terrorist publications’ includes publications which are likely to be understood as a ‘direct or indirect encouragement…to the commission, preparation, or instigation of acts of terrorism’.

Mr Gul’s publications included videos posted on YouTube showing, amongst other things, attacks by members of al-Qaeda and the Taliban on military targets in Chechnya and on coalition forces in Iraq and Afghanistan, and attacks on civilians, including the 11 September 2001 attacks on the United States. The videos appeared along with commentary praising the bravery and martyrdom of the attackers, and encouraging others to act in similar way.

At Mr Gul’s trial in the Crown Court the judge held that attacks by non-state armed groups against national or international armed forces in a non-international armed conflict in their territory were ‘terrorism’. The Court of Appeal agreed with this, and dismissed Mr Gul’s appeal against conviction and sentence. Mr Gul appealed to the UK’s highest court, arguing that this interpretation of ‘terrorism’ was too wide. In particular, he argued, firstly, that the 2000 Act was intended to give effect to the UK’s international treaty obligations, and since ‘terrorism’ in international law did not extend to military attacks by non-state armed groups against state (or inter-governmental organisation) armed forces in a non-international armed conflict it should not be read that way under the 2000 Act; secondly, it would be wrong to read the 2000 or 2006 Acts as criminalising in the UK acts which occur abroad, and; thirdly, as a matter of law some qualifications must be read into the wide words of the definition of ‘terrorism’.

The Judgment of the Supreme Court

The Supreme Court approached the issue by considering, firstly, what ‘terrorism’ meant based on the provisions in the 2000 Act and, secondly, whether that meaning conflicted with international law.

In relation to the first issue, the Supreme Court held that on a natural reading of the definition of ‘terrorism’ in the 2000 Act, the term had a very wide meaning and there was no reason to read that natural very wide meaning in a restrictive way. The definition had been drafted in a deliberately wide way to take account of the unpredictable forms that terrorism might take. Accordingly, the only reason to interpret the definition more restrictedly would be if it conflicted with any of the UK’s international law obligations.

Addressing the second issue, the Supreme Court held that there was no accepted definition of terrorism in international law, which was an ‘insuperable obstacle’ for Mr Gul to overcome. In the absence of an accepted international definition it could not be said that the UK’s definition of ‘terrorism’ had to be read in any particular way. Moreover there was no issue with criminalising acts occurring abroad since the relevant criminal act (publishing terrorist material) occurred in the UK.

In summary, then, on a natural reading of the definition of ‘terrorism’ the term was wide enough to encompass military attacks by non-state armed groups against national or international armed forces in a non-international armed conflict, and there was no reason in UK (domestic) or international law to read it otherwise. The appeal failed.

‘Terrorism’ Too Wide?

Interestingly, the Supreme Court stated that the definition of ‘terrorism’ was ‘concerningly wide’. Indeed they noted that the current law ‘allows members of any nationalist or separatist group to be turned into terrorists by virtue of their participation in a lawful armed conflict, however great the provocation and however odious the regime which they have attacked’. It was especially concerning given the wide powers given to the police in relation to terrorist matters. Any narrowing of the definition of ‘terrorism’ would, the Supreme Court said, be welcome.

What are your thoughts? Is the definition of ‘terrorism’ too wide?