Sydney Law School

Legal Studies Research Paper

No. 10/108

October 2010

The Emerging International Law of

Terrorism

Ben Saul

This paper can be downloaded without charge from the

Social Science Research Network Electronic Library
at: http://ssrn.com/abstract=1699568.

Electronic copy available at: http://ssrn.com/abstract=1699568

 The Emerging International Law of Terrorism
Ben Saul*

The shock of the terrorist attacks of 11 September 2001 (‗9/11‘) triggered protracted debates
in international legal scholarship about whether existing international law was adequate to
respond to terrorism, or whether moderate adjustments, or even entirely new and radical
paradigms (such as a ‗third way‘ between crime and war) were warranted. The normative
‗noise‘ following 9/11 has left the law unsettled in various respects. More than eight years
after those attacks, and with the dust settling on the unilateralist tendencies of US President
George Bush, this article is an attempt to make sense of that uncertainty by asking whether
contemporary terrorism and counter-terrorism responses have led to a new or emerging
public international law of terrorism.
While transnational terrorism has long presented special problems for public
international law, prior to 9/11 the traditional view of leading international lawyers was that
there is no ‗international law of terrorism‘ as such. Terrorism is regarded not as ‗a discrete
topic of international law with its own substantive legal norms‘, but as ‗a pernicious
contemporary phenomenon which… presents complicated legal problems‘.1 Being both
vague and undefined, the term terrorism was long thought to serve ‗no operative legal
purpose‘.2 Rather, terrorism is considered ‗merely a convenient way of alluding to activities...
widely disapproved of and in which either the methods used are unlawful, or the targets
protected, or both‘.3
On that view, existing general norms of international law were thought capable of
dealing with terrorism, such as principles of non-intervention, the non-use of force, State
responsibility, the law of armed conflict, international human rights law, and international
criminal law. While those principles might face occasional difficulty in their specific or
practical application to the factual phenomenon of terrorism in given contexts, it was
nonetheless thought that they largely covered the field. As such, it was felt that there was
little need for a more specific, discrete field of ‗international anti-terrorism law‘ per se.
Where general norms were occasionally found to be inadequate, they were
supplemented by numerous ‗sectoral‘ treaties on transnational criminal cooperation, adopted
since the 1960s, which targeted the common methods of violence used by terrorists (such as

*
BA(Hons) LLB (Hons) Sydney DPhil Oxford; Barrister; Associate Professor of International Law and Co-
Director, Sydney Centre for International Law, Faculty of Law, The University of Sydney. Email:
ben.saul@sydney.edu.au. Versions of this paper were delivered at the Lauterpacht Centre for International Law
at Cambridge University and at the British Institute for International and Comparative Law, London, in
November/December 2009.
1
R. Higgins, ‗The General International Law of Terrorism‘, in R. Higgins and M. Flory (eds.), Terrorism and
International Law (Routledge, London, 1997), 13, 13-14; see also R. Baxter, ‗A Skeptical Look at the Concept
of Terrorism‘ (1974) 7 Akron L Rev 380, 380; G. Guillaume, ‗Terrorism and International Law‘ (2004) 53
International and Comparative Law Quarterly 537; M. Bassiouni, ‗A Policy-Oriented Inquiry into the Different
Forms and Manifestations of ―International Terrorism‖‘, in M. Bassiouni (ed.), Legal Responses to International
Terrorism (Martinus Nijhoff, Dordrecht, 1988), xv, xvi; D. Freestone, ‗Legal Responses to Terrorism: Towards
European Cooperation?‘, in J. Lodge (ed.), Terrorism: A Challenge to the State (Martin Robertson, Oxford,
1981), 195, 195; J. Sorel, ‗Some Questions About the Definition of Terrorism and the Fight against its
Financing‘ (2003) 14 AJIL 365, 370; C. Gearty, The Future of Terrorism (Phoenix, London, 1997), 3; R.
Friedlander, ‗Terrorism‘, in R. Bernhardt (ed.), Encyclopaedia of PIL, vol 4 (North Holland, Amsterdam, 2000),
845.
2
Baxter, ibid.
3
Higgins, above note 1, 28.

Electronic copy available at: http://ssrn.com/abstract=1699568

hijacking, hostage taking, endangering maritime facilities and so on),4 but did not create a
new international crime of terrorism, or an ‗international anti-terrorism‘ law as such.5 At a
practical level, such normative frameworks were supplemented by technical assistance and
transnational cooperation facilitated by specialised agencies such as the International
Maritime Organization, International Civil Aviation Organization, International Criminal
Police Organization, and the United Nations Office on Drugs and Crime.
This pragmatic approach enabled the repression of terrorism while side-stepping the
irreconcilable problem of defining it, at a time when States were unable to agree on the
legitimacy of violence committed by self-determination movements or by State forces. The
result has been a functional transnational cooperation against terrorism, even if there remain
regulatory gaps because of the reactive, ad hoc nature of treaty making (for example, terrorist
attacks by small arms, as in Mumbai in 2008, are not prohibited by treaty law). In
consequence, many international lawyers believe that ‗[m]ost of the normative work has been
accomplished,‘6 notwithstanding the ongoing deadlock in United Nations negotiations for a
new Comprehensive Terrorism Convention since 2000.
The traditional view of the above ‗extra-legal‘ status of the concept of ‗terrorism‘ has
come under strain with distance from 9/11. In international criminal law for instance, the
leading jurist Antonio Cassese boldly claims that there is now a customary international
crime of terrorism,7 even if the scope of exceptions remains contentious.8 However,
Cassese‘s claims about the existence of a customary international crime of terrorism, and his
method of assessing custom formation, are deeply contested.9
There is thus a basic disagreement about the conceptual and normative status of
terrorism in international law. As Higgins observes, ‗[w]hether one regards terrorism… as
new international law, or as the application of a constantly developing international law to
new problems—is at heart a jurisprudential question‘.10 Jurisprudential disagreement extends
not only to the threshold question of defining terrorism and its status in international

4
See, e.g., Convention on Offences and Certain Other Acts Committed on Board Aircraft (adopted 14
September 1963, entered into force 4 December 1969, 704 UNTS 219); Convention for the Suppression of
Unlawful Seizure of Aircraft (adopted 16 December 1970, entered into force 14 October 1971, 860 UNTS 105);
Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including
Diplomatic Agents (adopted 14 December 1973, entered into force 20 February 1977, 1035 UNTS 167);
International Convention against the Taking of Hostages (adopted 17 December 1979, entered into force 3 June
1983, 1316 UNTS 205); Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation (adopted 10 March 1988, entered into force 1 March 1992, 1678 UNTS 221); Protocol for the
Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (adopted
10 March 1988, entered into force 1 March 1992, 1678 UNTS 304); Protocol on the Suppression of Unlawful
Acts of Violence at Airports Serving International Civil Aviation (adopted 24 February 1988, entered into force
6 August 1989, 974 UNTS 177); Convention on the Marking of Plastic Explosives for the Purpose of Detection
(adopted 1 March 1991, entered into force 21 June 1998); 1997 International Convention for the Suppression of
Terrorist Bombings (adopted 15 December 1997 by UN General Assembly Resolution 52/164 (1997), entered
into force 23 May 2001, 2149 UNTS 256); International Convention for the Suppression of the Financing of
Terrorism (adopted 9 December 1999 by UN General Assembly resolution 54/109, entered into force 10 April
2002, 2178 UNTS 229); International Convention for the Suppression of Acts of Nuclear Terrorism (adopted 13
April 2005 by UN General Assembly Resolution 59/290 (2005), entered into force 7 July 2007).
5
See B. Saul, Defining Terrorism in International Law (Oxford University Press, Oxford, 2006), chapter 3.
6
Guillaume, above note 1, 547.
7
A. Cassese, International Criminal Law (Oxford University Press, Oxford, 2003), 120-131; A. Cassese,
‗Terrorism is Also Disrupting Some Crucial Legal Categories of International Law‘ (2001) 12 EJIL 993, 994.
8
Cassese (2003), ibid, 121.
9
Saul, above note 5, chapter 4; M. di Filippo, ‗Terrorist Crimes and International Cooperation: Critical Remarks
on the Definition and Inclusion of Terrorism in the Category of International Crimes‘ (2008) 19 European
Journal of International Law 533.
10
Higgins, above note 1, 13.

Electronic copy available at: http://ssrn.com/abstract=1699568

criminal law, but also to the impact of the phenomenon of terrorism on the development of
norms across international law as a whole. It remains controversial precisely how terrorism
and counter-terrorism measures have affected the law of human rights, international
humanitarian law, the law on the use of force and the law of State responsibility.
In this context, this article asks whether there is now emerging ‗international law of
terrorism‘ or ‗global anti-terrorism law‘ of which it is possible to speak with increasing
confidence, just as one can speak of specialised (or self-contained) regimes on the law of the
sea, or of human rights, or international environmental law. The article identifies and
classifies a number of recent legal patterns in response to contemporary terrorism: first, new
or emerging anti-terrorism norms (in the criminal and financing fields) which can be properly
called international anti-terrorism law; secondly, an increasing clarification or
particularization of general norms in their application to terrorism, usually without generating
‗new‘ law as such; and thirdly, the continuing application of unaltered general norms to the
problem of terrorism – areas where, indeed, it is ‗business as usual‘. While the focus is on
developments in international criminal law and anti-financing law, the article also broadly
charts the key trends in the law on the use of force, humanitarian law and human rights law.
Conceptual Definition of Terrorism and International Criminal Law
Cassese claims that terrorism is a customary crime with distinct elements, deriving from a
combination of mutually reinforcing sources: prohibitions on terrorism in international
humanitarian law;11 the 1999 Terrorist Financing Convention;12 a much-reiterated 1994
General Assembly Declaration;13 the 1937 League of Nations Convention;14 treaties of
regional organizations; converging national law definitions; and the statements and practice
of States and international organizations since 11 September 2001.15
In Cassese‘s view, the essence of terrorism is the commission of serious, politically
motivated, criminal violence, aimed at spreading terror, regardless of the status of the
perpetrator.16 Such conduct must also have a nexus with armed conflict, or be of the
magnitude of crimes against humanity, or involve State authorities and exhibit a transnational
dimension, such as by jeopardizing the security of other States.17 For Cassese, there is general
agreement on a definition, but the scope of exceptions remains contentious.18
At first sight, the claim that terrorism is now a customary international law crime may
seem compelling, given the apparent mass of practice in support of it. The claim is also
pragmatically attractive, because it short-circuits the enduring failure of the international

11
1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (adopted 12
August 1949, entered into force 21 October 1950, (1950) 75 UNTS 287), article 33(1); 1977 Protocol (I)
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978, 1125 UNTS 3),
article 51(2); 1977 Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of the Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7
December 1978, (1979) 1125 UNTS 609), articles 4(2) and 13(2).
12
1999 International Convention for the Suppression of the Financing of Terrorism (adopted 9 December 1999
by UN General Assembly resolution 54/109, entered into force 10 April 2002, 2178 UNTS 229).
13
UNGA Resolution 49/60 (9 December 1994): Declaration on Measures to Eliminate International Terrorism,
annexed Declaration, para. 3.
14
1937 League of Nations Convention for the Prevention and Punishment of Terrorism (adopted 16 November
1937, never entered into force; (1938) 19 League of Nations Official Journal 23; LoN Doc. C 546 (I) M 383 (I)
1937 V (1938); 7 Hudson 862; in LoN, International Conference Proceedings on the Repression of Terrorism,
Geneva, 1–16 November 1937, LoN Doc. C.94.M.47.1938.V, annex I, 5).
15
Cassese (2003), above note 7, 120-131; Cassese (2001), above note 7, 994.
16
Cassese (2003), ibid, 129.
17
Ibid, 125-126, 129.
18
Ibid, 121.

3
community to define and criminalize terrorism in any international treaty, ever since efforts
began in the 1920s. Since 2000, the UN‘s Draft Comprehensive Terrorism Convention, an
initiative of India, has been mired in disagreements about the legal position of ‗freedom
fighters‘, self-determination movements and ‗State terrorism‘.
Being able to point to a customary crime of terrorism allows international lawyers to
extol the flexibility, adaptability and responsiveness of international law as a regulatory field,
and indeed to provide a more structured and rights-respecting alternative to more militant and
violent State responses to terrorism. At the same time, an overly elastic conception of custom
formation brings its own risks: ‗the quest for softness amounts to an endeavour by scholars to
broaden the international law discipline beyond its original ambit with a view to expanding
the potential objects that they can seize and study‘.19 Evidence of custom must be cautiously
appraised if international law is to retain its normative purchase and legitimacy; in the
criminal law field particularly, there are also potential human rights implications involved in
too readily jumping to conclusions about the existence of vague new crimes.
The evidence of State practice that Cassese points to is neither sufficiently dense nor
of the requisite character to establish customary agreement on an international crime of
terrorism.20 Central to Cassese‘s argument is the reliance upon the UN General Assembly‘s
1994 Declaration on Measures against International Terrorism as evidence of ‗broad
agreement‘ on the ‗general definition of terrorism‘.21 The Declaration declares that:
Criminal acts intended or calculated to provoke a state of terror in the general public, a group of
persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the
considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that
may be invoked to justify them…
The normative weight of the 1994 definition must be evaluated in light of a number of
factors. On one hand, as a Declaration it is of greater importance than ordinary resolutions. It
was adopted without a vote, suggesting a degree of consensus among States, and has been
reiterated in numerous later resolutions.22 The reference to ‗criminal acts‘ invokes normative
language, rather than mere exhortation or aspiration. There is apparent widespread support
for its condemnation of terrorism.
On the other hand, there is little support for the view that the definition declares
custom. The Declaration itself emphasizes the need to progressively develop and codify the
law on terrorism,23 far from purporting to reflect existing rules. Adoption by consensus does
not guarantee unanimity among States, just that there are no formal objections.24 States may
also have supported it for non-legal reasons. Indeed, during discussions in the Sixth
Committee of the UN General Assembly, a number of States proposed legal definitions, or
gave concrete examples, of terrorism at variance with the 1994 Declaration.25

19
J. d‘Aspremont, ‗Softness in International Law: A Self-Serving Quest for New Legal Materials‘ (2008) 19
European Journal of International Law 1075, 1076.
20
Saul, above note 5, chapter 4.
21
A. Cassese, International Law (OUP, Oxford, 2001), 246.
22
UNGA Resolutions 50/53 (11 December 1995), para. 2; 51/210 (17 December 1996), para. 2; 52/165 (15
December 1997), para. 2; 53/108 (8 December 1998), para. 2; 54/110 (9 December 1999), para. 2; 55/158 (12
December 2000), para. 2; 56/88 (12 December 2001), para. 2; 57/27 (19 November 2002), para. 2.
23
UNGA Resolution 49/60 (9 December 1994): Declaration on Measures to Eliminate International Terrorism,
para. 12.
24
E. Suy, ‗The Meaning of Consensus in Multilateral Diplomacy‘, in R. Akkerman, P. Van Krieken and C.
Pannenborg (eds.), Declarations on Principles: A Quest for Universal Peace (Leyden, Groningen, 1977), 259,
272.
25
UNGAOR (49th Session) (6th Cttee), 13th meeting, 19 Oct 1994, para. 3 (Germany); 14 th meeting, 20 Oct
1994, para. 5 (Sudan); para. 23 (Pakistan); paras. 74, 78 (Turkey); 15th meeting, 21 Oct 1994, paras. 44-45, 60
(Kuwait); para. 59 (Iraq); para. 25 (Libya); para. 26 (US).

4
 More importantly, many States argued that there was still a need to define terrorism
and/or to adopt a comprehensive treaty,26 and to distinguish self-determination struggles.27
Subsequently, the many States of the Non-Aligned Movement (118 member States) and
Organization of the Islamic Conference (56 member States) have insisted on the continuing
importance of achieving a legal definition and the differentiation of liberation struggles—
even while approving the 1994 Declaration.28 While other States dismissed the need for a
definition and/or a convention,29 the 1994 definition must be viewed as a compromise
formula, which identifies a minimal political agreement on the scope of terrorism, but falls
short of a legal definition, which was plainly left to another day.
Cassese also relies too heavily on resolutions as evidence of custom. United Nations
resolutions must be interpreted cautiously, since parallel UN treaty negotiations on the Draft
Comprehensive Convention since 2000 have been unable to reach agreement on a legal
definition. Against that background, it is difficult to interpret resolutions as sufficient
evidence of a customary crime, particularly since the 1994 definition is rather different to that
in the Draft Comprehensive Convention.30 Further, treaties negotiated after 1994—including
the 1999 Terrorist Financing Convention and regional treaties—have adopted different
definitions, suggesting that the definition of terrorism remains contested.
While Cassese states that the 1994 definition ‗is not far from, and indeed to a large
extent dovetails with‘ the definition in the 1999 Terrorist Financing Convention,31 that is a
misdescription. The 1994 Declaration defines terrorism as criminal acts intended to provoke
terror in certain persons for political purposes. In contrast, the 1999 definition refers to
serious violent acts for the purpose of intimidating a population, or compelling a government
or international organization.32 The first definition focuses on a mental state inflicted for a
political purpose, whereas the second focuses on coercive or intimidatory objectives for
whatever purpose—including non-political ones. The 1999 definition should be read
cautiously since it does not establish general offences, but triggers only financing offences.
There have been few extradition requests or prosecutions pursuant to the 1994
definition, which has only marginally influenced national laws.33 At best, the definition
reflects nascent political agreement on a shared concept of terrorism, but not legal agreement
evidencing a customary crime. For many States, voting support for such resolutions was
conditioned on an understanding that they did not generate criminal liability. It would be
surprising if the protracted disputes on definition in the treaty context could be circumvented
by a relatively recent series of non-binding resolutions, unsupported by State behaviour in
conformity.

26
Ibid, 14th meeting, 20 Oct 1994, para. 5 (Sudan), 13 (India), 27 (Algeria), 71 (Nepal); 15 th meeting, 21 Oct
1994, para. 4 (Sri Lanka), 9 (Iran), 18-19 (Libya),
27
Ibid, 14th meeting, 20 Oct 1994, para. 6 (Sudan), 20 (Syria), 24 (Pakistan); 15 th meeting, 21 Oct 1994, para. 9
(Iran), 18-19 (Libya).
28
Non-Aligned Movement (‗NAM‘), XIV Ministerial Conf, Final Doc, Durban, 17-19 Aug 2004, paras. 98-99,
101-102, 104; NAM, XIII Conf of Heads of State or Government, Final Doc, Kuala Lumpur, 25 Feb 2003,
paras. 105-06, 108, 115; NAM, XIII Ministerial Conf, Final Doc, Cartagena, 8-9 Apr 2000, paras. 90-91; OIC
resols 6/31-LEG (2004), para. 5; 7/31-LEG (2004), preamble, paras. 1-2; 6/10-LEG(IS) (2003), para. 5; 7/10-
LEG (IS) (2003), paras. 1-2; OIC, Islamic Summit Conf (10th Session), Final Communiqué, Malaysia, 16-17
Oct 2003, para. 50; OIC (Extraordinary Session Foreign Ministers), Declaration on Intl Terrorism, Kuala
Lumpur, 1-3 Apr 2002, paras. 8, 11, 16 and Plan of Action, paras. 2-3.
29
UNGAOR (49th Session) (6th Cttee), 14th meeting, 20 Oct 1994, para. 18 (Sweden for Nordic States), 38
(Romania), 41 (Israel), 56 (Venezuela); 15th meeting, 21 Oct 1994, para. 40 (Hungary), 57 (Germany for EU).
30
CITE draft comprehensive convention definition.
31
Cassese (2003), above note 7, 124.
32
1999 International Convention for the Suppression of the Financing of Terrorism (adopted 9 December 1999
by UN General Assembly resolution 54/109, entered into force 10 April 2002, 2178 UNTS 229), article 2(1)(b).
33
Saul, above note 5, chapter 4.

5
 Cassese suggests further that numerous national laws prohibit terrorism and
‗substantially converge‘, contributing to custom.34 Yet, the only four definitions cited by
Cassese are those of very similar common law jurisdictions (such as the UK, Canada, and
Australia) – hardly evidence of widespread and representative practice. Wide divergences in
national definitions make it difficult to ascertain any common, customary definition. Too
many national definitions excessively restrict internationally protected human rights, or are
otherwise too vague to satisfy the principles of legality and certainty underpinning the
freedom from retroactive criminal punishment under article 15 of the International Covenant
on Civil and Political Rights.
Definitions of terrorism in regional treaties are also too diverse to point towards any
universal customary agreement, with some treaties classifying even common crime, or public
disorder, as terrorism; and a number of treaties (such as the Organization of the Islamic
Conference and Arab League Conventions) exempting national liberation violence altogether
(paradoxically unless directed against those States).
The problem also remains of securing agreement on the scope of exceptions – which
is still unresolved after nine years of treaty negotiations in the Sixth Committee on the Draft
UN Comprehensive Convention (despite earlier agreement in the Financing/Bombings
treaties). Jurisprudentially, it may be doubted whether there can exist a customary crime if
one can drive a truck of undefined exceptions through it.
Future Trends in International Criminal Law
As of early 2010, it is fairly clear that there is not yet a treaty-based or customary
international law crime of terrorism. There is, however, a legal architecture emerging which
may, over time, impel the crystallisation and consolidation of a customary international crime
of terrorism. The lynch-pin of that architecture is the directive to all States by the UN
Security Council, in Resolution 1373 (2001), adopted under Chapter VII of the UN Charter,
to criminalize terrorism in domestic law.
That resolution did not define terrorism for the purpose of national criminalization,
resulting in the decentralized and rather disorderly or haphazard national implementation of
the resolution. Many States utilized the authority of the resolution to define terrorism to suit
their own political purposes and to camouflage assaults on fundamental civil and political
rights, as well as to deviate from procedural protections ordinarily enjoyed by suspects in
criminal proceedings. The Security Council‘s Counter-Terrorism Committee initially rejected
calls for it to take human rights considerations into account when responding to State reports
about national action against terrorism in implementing Resolution 1373.
Faced with an increasingly vociferous backlash from the international, regional and
national human rights bodies and from civil society, in Resolution 1566 (2004) the Security
Council eventually signalled its own conception of terrorism. In that resolution the Security
Council recalled
that criminal acts, including against civilians, committed with the intent to cause death or serious
bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public
or in a group of persons or particular persons, intimidate a population or compel a government or an
international organization to do or to abstain from doing any act, which constitute offences within the
scope of and as defined in the international conventions and protocols relating to terrorism, are under
no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic,
religious or other similar nature, and calls upon all States to prevent such acts and, if not prevented, to
ensure that such acts are punished by penalties consistent with their grave nature…35

34
Cassese (2003), above note 7, 122.
35
UNSC Resolution 1566 (8 October 2004), para. 3.

6
The definition of terrorism presented by the Security Council is only a working definition
which does not require States to conform their anti-terrorism legislation to it. Nonetheless,
that resolution is understood by States as establishing ‗soft‘ guide-posts in the
implementation of earlier Resolution 1373, which over time has the potential to stimulate
increasing uniformity among national laws on the definition of terrorism and to reduce the
width of the zone of sovereign discretion in implementation. The Security Council‘s Counter-
Terrorism Directorate has also responded by utilizing that definition in its ongoing dialogue
with States, encouraging further convergence.
The relatively narrow scope of that definition complements efforts by the UN human
rights bodies and mechanisms36 to identify and wind-back excessive national anti-terrorism
laws which adversely affect human rights, helping to re-balance public security imperatives
with human rights – a relationship which rapidly tilted in favour of security after 9/11. On a
number of occasions, for instance, the UN Human Rights Committee has criticised national
definitions of terrorism for being too vague or ambiguous and thus failing to satisfy the
principle of legality underlying freedom from retroactive criminal punishment in article 15 of
the International Covenant on Civil and Political Rights. Definitions have also been critiqued
having discriminatory or prejudicial effects against particular racial or religious groups.
Resolution 1373 did not have the formal legal effect of instantly creating a new
international crime of terrorism. Rather, Resolution 1373 provides international legal
authorisation for States to enact international terrorism offences in domestic law and to
establish extraterritorial jurisdiction over them. Over time, however, sufficient State practice
in conformity with the resolution – that is, the actual universal criminalization of terrorism –
coupled with adequate normative convergence in national laws on the definition of terrorism
(stimulated by Resolution 1566 and the UN human rights bodies) – may provide evidence of
a customary crime. There is, however, a considerable way still to go before there is sufficient
evidence of a global normative consensus around the definition of terrorism.
Any emerging global consensus around the definition in Resolution 1566 would
reflect a fairly narrow and rights-respecting concept of terrorism. The cumulative elements
set out in that resolution define conduct as terrorism only: (a) when it is committed to harm
people, (b) with the purpose to provoke a state of terror, or to intimidate a population, or to
compel a government or an international organization, and (c) and where such conduct also
constitutes an offence under the existing sectoral anti-terrorism treaties. In other words,
Resolution 1566 does not criminalize any conduct which is not already criminal under
existing transnational crime treaties; rather, it reclassifies as ‗terrorism‘ certain existing
criminal wrongs where they are designed to terrorize, intimidate or compel. There is no

36
Including the UN Human Rights Committee, various Special Rapporteurs, the Human Rights Council, and the
UN High Commissioner for Human Rights. See, e.g., UN Human Rights Committee, General Comment 29,
States of Emergency (article 4), 31 August 2001; UN Commission on Human Rights, Resolutions 2003/37
(2003) and 2005/80 (2005); UN Human Rights Council, Resolutions 7/7 (2008), 10/9 (2009), 10/11 (2009),
10/15 (2009), 10/22 (2009). Reports of the Special Rapporteur on Terrorism and Human Rights (Kalliopi K.
Koufa): Working Paper, 26 June 1997; Preliminary Report, 7 June 1999, Progress report, 27 June 2001, Second
Progress Report, 17 July 2002, Additional progress report, 8 August 2003, Final Report, 25 June 2004, Updated
framework draft of principles and guidelines concerning human rights and terrorism: Second expanded working
paper, 3 August 2006. Report of the independent expert (Robert K. Goldman) on the protection of human rights
and fundamental freedoms while countering terrorism, 7 February 2005. Reports of the Special Rapporteur
(Martin Scheinin) on the promotion and protection of human rights and fundamental freedoms while countering
terrorism: Report to the Commission on Human Rights, 28 December 2005; Reports to the General Assembly,
16 August 2006, 15 August 2007, 6 August 2008; Reports to the Human Rights Council, 29 January 2007, 21
November 2007, 4 February 2009. Office of the UN High Commissioner for Human Rights, Report to the UN
Human Rights Council on the protection of human rights and fundamental freedoms while countering terrorism,
2 September 2009.

7
further ‗special intent‘ or motive requirement of a political, religious or ideological purpose
behind the conduct, thus avoiding concerns about the discriminatory targeting of certain
religious beliefs or political expression.37
The Security Council has also provided quasi-legislative guidance to States
concerning inchoate terrorist offences and extended modes of criminal participation. Thus
Resolution 1373 requires States not only to criminalise the ‗perpetration‘ of terrorist acts, but
also participation in the ‗financing, planning, [or] preparation‘ of such acts. In addition, in
(non-binding) Resolution 1624 (2005) the Security Council called upon States to ‗Prohibit by
law incitement to commit a terrorist act or acts‘, prevent incitement, and deny safe haven or
entry to inciters,38 and similar developments have occurred at the regional level.39 It is not
entirely clear how such concepts relate to the forms of legal responsibility recognised in
international criminal law generally (for example, as reflected in article 25 of the Rome
Statute of the International Criminal Court).40 Certainly some States have expansively
interpreted Resolution 1373 to criminalize, for instance, acts preparatory to the commission
of a terrorist act, even in circumstances where no specific terrorist act has been agreed
upon;41 as well as mere membership of a ‗terrorist‘ organization.42
Nothwithstanding the indication in Resolution 1566 that terrorist offences should be
linked to the existing sectoral treaties, in practice the Counter-Terrorism Committee and the
UN Office on Drugs and Crime have encouraged States to criminalize extended modes of
criminal participation which go well beyond that which is provided for in the sectoral
treaties.43 In particular, States have been urged to criminalize a range of preparatory offences
in relation to all sectoral treaty offences, even where the treaties themselves do not authorise
it. Likewise, extended extraterritorial jurisdiction and the removal of the political offence
exception to extradition have been encouraged in relation to all terrorist type offences,
beyond the terms of many of the treaties themselves. The involvement of such technical
experts in the law-making process is hardly politically neutral, despite claims to that effect;
an elite UN expert urging the removal of the political offence exception to extradition, where
it is not provided for in ‗hard‘ treaty law, has potentially profound implications for political
freedom in countries where it may be necessary to use violence in defence of human rights.44
Given the divergence in national criminal law systems on the scope of individual
criminal responsibility, and the Security Council‘s apparent deviation from accepted modes
of criminal participation in international criminal law generally, it may be less likely that
there will emerge global uniformity on the modes of criminal participation in terrorism. At
the same time, however, there is an increase in the horizontal borrowing and transplant of
anti-terrorism law principles among certain groups of States (particularly those sharing

37
Such concerns may, however, be misplaced: see B. Saul, ‗The Curious Element of Motive in Definitions of
Terrorism: Essential Ingredient or Criminalising Thought?‘, in A. Lynch, E. MacDonald & G. Williams (eds.),
Law and Liberty in the War on Terror (Federation Press, Sydney, 2007), 28-38.
38
Threats to International Peace and Security (Security Council Summit 2005), SC Resolution 1624, UN
SCOR, 5261st meeting, UN Doc. S/Res1624 (2005) at 3. The preamble also repudiates ‗attempts at the
justification or glorification (apologie) of terrorist acts that may incite further terrorist acts‘.
39
In 2005 the Council of Europe adopted a Convention on the Prevention of Terrorism which requires State
parties to criminalise ‗public provocation to commit a terrorist offence‘: Council of Europe Convention on the
Prevention of Terrorism, opened for signature 16 May 2005, entered into force 1 June 2007, ETS No. 196,
article 5(2).
40
Including commission and joint commission; ordering, soliciting, or inducing; aiding, abetting or assisting;
joint criminal enterprise; and attempt.
41
Criminal Code Act 1995 (Commonwealth of Australia), ss. 101.2(1-3), 101.4(1-3), 101.5(1-3); 101.6(1-2).
42
Criminal Code Act 1995 (Commonwealth of Australia), s. 102(3).
43
See, eg, UNDOC, Legislative Guide to the Universal Legal Regime against Terrorism, 2008; UNDOC, Draft
Model Legislative Provisions against Terrorism, February 2009.
44
See Saul (2006), above note 5, chapter 2.

8
common legal traditions), stimulated further by the technical assistance activities of
organizations such as the Commonwealth Secretariat.45 With time what may emerge is not
only a global consensus on a customary crime of terrorism, but further agreement on the
preparatory, ancillary, predicate and inchoate offences which attach to it and which may be
distinctive from the ordinary modes of criminal participation in international law. 46 One area
in which an extended form of criminal participation in terrorism has already become well
established is the financing of terrorism.
New International Law against Terrorist Financing
The clearest area of new ‗international anti-terrorism law‘ concerns norms against terrorist
financing. While anti-financing norms emanate from disparate sources of varying normative
quality, the combination of such sources in their totality is sufficiently universal and rule-like
so as to establish genuinely new customary international law rules. A variety of international,
regional, national and inter-governmental regulatory and cooperative measures have been
adopted against terrorist financing.47
At the international level, the response has been threefold. First, an International
Convention for the Suppression of the Financing of Terrorism 1999 was negotiated through
the UN General Assembly and adopted consensually by States. Secondly, Security Council
Resolution 1373 (2001) required all States to criminalise and prevent terrorist financing
through their domestic legal systems,48 in effect universalising the Terrorist Financing
Convention – including in respect of States that had not ratified it. Thirdly, situation-specific
financial sanctions regimes have been adopted by the Security Council against Al-Qaeda, the
Taliban and their worldwide ‗associates‘, beginning with Resolution 1267 (1999) and
extended and modified in subsequent resolutions.
The Security Council‘s response to terrorism in Resolution 1373 has been queried for
its focus on terrorism generally (rather than on a specific terrorist threat to security), for its
‗quasi-legislative‘ approach (that is, requiring States to adopt legislation with prospective
application, rather than taking concrete measures in a particular case),49 and for its inattention
to human rights impacts of counter-terrorism measures.

45
Commonwealth Secretariat, Model Legislative Provisions on Measures to Combat Terrorism, September
2002.
46
Similar considerations may apply to special investigative powers which attach to terrorism in national legal
orders, as well as non-criminal means of confronting terrorism (such as through the proscription of terrorist
organizations, or the imposition of ‗civil‘ control orders which affect liberty and other rights). The greater the
powers attaching to the legal concept of ‗terrorism‘, the greater the incentive for States to reclassify existing
criminal harms as terrorism.
47
See generally Commonwealth Secretariat, Combating Terrorist Financing: A Model of Best Practice for the
Financial Sector, the Professions and Other Designated Business (2nd edition, London, 2006); I. Banketas, ‗The
International Law of Terrorist Financing‘ (2003) 97 American Journal of International Law 315; Sorel, above
note 1; A. Aust, ‗Counter-terrorism: A New Approach—The International Convention for the Suppression of
the Financing of Terrorism‘ (2001) Max Planck Year Book of UN Law 287; R. Lavalle, ‗The International
Convention for the Suppression of the Financing of Terrorism‘ (2000) 60 Zeitschrift fur auslandisches
offentliches Recht and Volkerrecht 491.
48
UNSC Resolution 1373 (28 September 2001): Threats to international peace and security caused by terrorist
acts, para. 2(e).
49
See generally S. Talmon, ‗The Security Council as World Legislature‘ (2005) 99 American Journal of
International Law 175; N. Rostow, ‗Before and After: The Changed UN Response to Terrorism since Sep 11 th‘
(2002) 35 Cornell International Law Journal 475, 479; E. Rosand, ‗Security Council resolution 1373, the
Counter-Terrorism Committee, and the Fight Against Terrorism‘ (2003) 97 American Journal of International
Law 333; P. Szasz, ‗The Security Council Starts Legislating‘ (2002) 96 American Journal of International Law
901; J. Stromseth, ‗The Security Council‘s Counter-Terrorism Role: Continuity and Innovation‘ (2003) 97
American Journal of International Law Proceedings 41.

9
 If novel, the Council‘s approach has been generally endorsed by the international
community, indicating the adaptability of international institutions to deal with emerging
global threats. There has been a high level of cooperation with the global administrative
machinery established to implement the resolution: by mid-2004, the Counter-Terrorism
Committee had received 515 reports from States and international organizations about
implementation and compliance.50 Regional organisations have also supplied technical
assistance in adapting universal obligations to particular local legal systems.51
Supplementing these measures are perhaps even more unusual processes of ‗global‘
norm development. The Financial Action Taskforce (FATF) has taken a central role in
coordinating global efforts to counter terrorist financing.52 The FATF is not an international
organisation with legal personality, a constitution, or a basis in treaty law. It is, rather, a loose
inter-governmental partnership which promotes harmonised international financial standards
and policies. It is comprised of 32 States and two regional organisations (the European
Commission and the Gulf Cooperation Council), headquartered at the OECD, but its
normative influence extends beyond member States.
The FATF‘s 40 Recommendations (1990, revised 1996 and 2004) on money
laundering are ‗soft law‘ standards which have exerted a powerful influence on global
financial practices. Further, in 2001, the FAFT adopted the 9 Special Recommendations on
Terrorist Financing, which urge States to implement relevant treaties; criminalise terrorist
financing; freeze and confiscate terrorist assets; report suspicious transactions linked to
terrorism; assist other States‘ terrorist financing investigations; impose anti-money
laundering requirements on alternative remittance systems; strengthen customer identification
measures wire transfers; and prevent entities (particularly NGOs) from misuse to finance
terrorism.
The FATF‘s role is not, however, confined to standard setting on money laundering
and terrorist financing, but involves pro-active monitoring of implementation. The process is
in the first instance a form of cooperative compliance. A mutual evaluation process assesses
compliance with the 40 Recommendations, whereby foreign experts evaluate and certify a
country‘s compliance with the 40 Recommendations, and report to the FATF plenary session.
Within two years a country must then report on steps taken to remedy any deficiencies.
Faced with continuing non-compliance, however, Recommendation 21 enables the
FATF to take further action. In particular, the FATF‘s International Cooperation Review
Group identifies problematic States and seeks to constructively engage with them. If that
fails, the FATF can publicly urge all States to advise their financial institutions to consider
the additional risks posed by financial dealings with those States, which has the potential to
adversely affect their reputation in the business and financial communities. A range of
counter-measures is available against delinquent States, including increased regulatory and
reporting requirements in relation to dealings with those States, warnings to non-financial
sector businesses transacting with those States, and limiting business relationships or
financial transactions with such States.
The 9 Special Recommendations are also subject to a detailed compliance procedure.
The FATF‘s comprehensive Plan of Action stipulated that all countries were to self-assess
their compliance by the end of 2001 and to commit to implementation plans by mid-2002.
The FATF also developed technical guidance for financial institutions. From mid-2002, the

50
UNSC (CTC), CTC Work Program (1 July–30 September 2004), UN Doc. S/2004/541 (6 July 2004), p. 4.
51
For example, the Commonwealth Secretariat adopted model legislation for common law States to implement
resolution 1373: Commonwealth Secretariat, Model Legislative Provisions on Measures to Combat Terrorism,
part I.
52
The G7 (Finance) and G8 have also sought to enhance cooperation on terrorist financing.

10
FATF began to identify problem jurisdictions and to consider responses, including
countermeasures.
For a non-binding, extra-legal procedure, the FATF has had a powerful influence on
both norm creation and norm enforcement in the area of global terrorist financing. A number
of factors account for its influence. First, its members include most of the world‘s largest
economies and so the political commitments made by that small, relatively cohesive group of
States have ripple effects across the global economy. FATF standards have become
conditions of doing business with non-members and there is thus a powerful commercial
incentive for non-members to conform.
Secondly, its emphasis on cooperative compliance is generally seen as non-
threatening by States and where States face compliance problems (for lack of capacity or
resources) the FATF has also sought to reach out to provide technical assistance to non-
members alike. Thirdly, FATF standards are not in competition with international legal
norms, but rather complement them: thus, while terrorist financing is not legally defined in
the 9 Special Recommendations, the FATF‘s operative understanding of its scope is based on
the 1999 Terrorist Financing Convention. Further, Special Recommendation 1 encourages
ratification of international treaties; while the FATF‘s cooperation with other relevant
bodies53 helps to thicken and consolidate global norms on terrorist financing. Finally, the
FATF works not only with States, but directly with the financial institutions which drive the
global economy.
If the FATF exemplifies a sui generis and innovative form of contemporary ‗global‘
norm creation, its departure from more regular international law-making processes also
presents its own problems. Its small membership raises problems of representativeness when
its decisions and processes have wider effects on the whole global economy and the financial
structures of non-member States. Its processes for making decisions, setting policy, and
determining membership are rather opaque and have been criticised as lacking a sufficient
degree of transparency and accountability given the power the organisation wields.
A UK House of Lords Committee largely dismissed such concerns on the basis that
the FATF ‗is not a legislative body‘ and its effects are only felt by natural and legal persons
when governments choose to implement them in domestic law, at which stage there may be
opportunity for openness and transparency.54 That defence of the FATF is not wholly
convincing; non-members in particular, as well as less powerful members, may have no
practical choice but to conform to FATF standards, or else risk their financial reputations.
The pressure on weaker economies and developing countries is likely to be irresistible.
That FATF recommendations are formally enacted through domestic legal systems
does not change the reality that their substantive origin and normative force are located
within the FATF itself, as a centre of quasi-legislative gravity that cannot easily be resisted.
For these reasons, greater attention to problems of transparency, accountability and process
are to be expected. Just like other informal actors driving anti-terrorism norms (such as UN
technical experts), the FATF provides a paradigmatic example of the need for a ‗global
administrative law‘ to counterbalance or even out the effects of new forms of coercive but
unconventional global norm setting. The global administrative law movement is concerned
with the growth of transnational regulation and administration in a variety of fields where
there is often an ‗accountability deficit‘.55 It is particularly concerned about accountability

53
Including the UN, Egmont Group of Financial Intelligence Units, G20, and other financial institutions.
54
UK House of Lords (European Union Committee), Nineteenth Report: Money Laundering and the Financing
of Terrorism, 14 July 2009, para. 27.
55
B. Kingsbury, N. Krisch and R. Stewart ‗The Emergence of Global Administrative Law‘ (2005) 68 Law and
Contemporary Problems 15, 16.

11
transparency, participation, reasoned decision, legality, and effective review56 – few of which
are well structured or considered in the context of the FATF.
The FATF is, ultimately, an example of how globalization ‗has changed the
modalities of international law by often emphasizing regulation above law... manifest in the
growth of soft-law, directives, and standards.... [over] constraint and bindingness‘. 57 The
FATF‘s work against terrorist financing has been supplemented by other groupings active in
the economic arena but typically outside the arenas of ‗hard‘ law making, including the
Group of 8, Asia-Pacific Economic Cooperation (APEC), and private sector actors such as
the Wolfsberg Group of Banks and the Basel Committee on Banking Supervision.58
International Law and the Use of Force
While it may now be possible to speak of a new ‗international law of terrorist financing‘ and
to point to the future emergence of new criminal law on terrorism, other specialised branches
of law have tended not to generate new and specific anti-terrorism norms. Traditionally, there
were no terrorism-specific rules in the law on non-intervention and non-use of force.
Although the 1970 Declaration on Friendly Relations expressly prohibits States from using
force or intervening by using terrorist means,59 the reference to terrorism is purely
descriptive, sitting alongside references to numerous other illustrative methods of using force
or intervening – civil strife, subversion, or other armed activities. Legally what mattered was
that a State unlawfully supported some form of non-State violence, however named.
There has long been controversy in the law on the use of force about how to respond
to terrorist threats. The attacks of 9/11 and the global response to them has sharpened those
controversies but not necessarily provided entirely new answers to old problems. Terrorism
has presented special problems in the determination of what constitutes a ‗use of force‘ and
an ‗armed attack‘, particularly as regards the scope of State responsibility for affiliated and
unaffiliated terrorist groups. It has also reinvigorated old discussions about pre-emptive and
anticipatory self-defence.
It is highly doubtful, however, whether the response to 9/11 has ushered in a new era
of rules specifically attuned to the problem of terrorism. There is, indeed, no new
‗international anti-terrorism law on the use of force‘. Rather, what has happened is that the
factual problem of and confrontation with terrorism have sharpened the general law on the
56
Ibid, 17.
57
F. Megret, ‗Globalization and International Law‘, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of
Public International Law (Max Planck Institute for Comparative Public Law and International Law and Oxford
University Press, Oxford, 2009), para. 36.
58
See, e.g., APEC Leaders‘ Statement on Counter-Terrorism, Shanghai, 21 October 2001; APEC Leaders‘
Statement on Fighting Terrorism and Promoting Growth, Los Cabos, 26 October 2002; APEC Leaders‘
Statement on Recent Acts of Terrorism in APEC Member Countries, Los Cabos, 26 October 2002; G7+1,
Ottawa Ministerial Declaration on Countering Terrorism, 12 December 1995; G8 Finance Ministers, Action
Plan to Combat the Financing of Terrorism, Washington DC, 6 October 2001; G8 Recommendations on
Counter-Terrorism, Foreign Ministers‘ Meeting, Whistler, Canada, 2002; G8, Statement by the Leaders of the
G8 over last week‘s terrorist attacks in New York and Washington, 19 September 2001; G8, Enhance transport
security and control of Man-Portable Defence Systems (Manpads): A G8 Action Plan, Evian Summit, 2 July
2003; G8 Secure and Facilitated International Travel Initiative (SAFTI), Sea Island Summit 2004; G8 and the
Leaders of Brazil, China, India, Mexico and South Africa and the Heads of the International Organisations,
Statement on Terrorist Attacks on London, Gleneagles, 7 July 2005; G8 Summit Declaration on Counter-
Terrorism, St Petersburg, 16 July 2006; G8, Report on G8 Support to the United Nations‘ Counter-Terrorism
Efforts, G8 Summit 2007, Heiligendamm; G8 Leaders Statement on Counter-Terrorism, G8 Summit 2008,
Hokkaido, Japan; Wolfsberg Group of Banks, Statement on the Suppression of the Financing of Terrorism, 11
January 2002.
59
UN General Assembly Resolution 2625 (XXV) (1970), annex: 1970 Declaration on Principles of International
Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United
Nations.

12
use of force and helped to cure old ambiguities. First, the global acceptance of the necessity
of a defensive response in Afghanistan has established beyond doubt that a non-State actor
acting not as an agent of any State, is capable of committing an ‗armed attack‘, in turn
justifying a forcible response by the victim State acting in self-defence.
Secondly, there is an unfinished, but ongoing, process of clarification concerning the
rules of State responsibility on the attribution of non-State violence to a State. The traditional
approach was that defensive cross-border operations against a non-State group were unlawful
unless another State directed or effectively controlled that group. Since 9/11 there has been
much contention about whether attenuated forms of attribution are desirable, such as by
loosening the requirements of control to hold States accountable for terrorists attacks merely
where the State has ‗harboured‘, tolerated or acquiesced in terrorist activities.60 Close
analysis of the totality of State practice since 9/11, not limited to Afghanistan, indicates that
the standard of attribution has been lowered from ‗effective control‘ to active support by a
State, but mere toleration or acquiescence by a State remains insufficient.61 Further, there is
arguably nothing terrorism-specific about any lowering of the standard of attribution. There is
no reason why other militant non-State groups would not be similarly treated by the law.
Thirdly, there has been further clarification of the concepts of pre-emptive,
preventive, or anticipatory self-defence since 9/11. Prior to 9/11, the preponderant view of the
scope of self-defence was that an ‗armed attack‘ must have actually occurred before the right
was activated. That view flowed from the purpose of the UN Charter in 1945 in breaking
from a less structured legal past, evidenced from a literal or textual interpretation of the
language of article 51, the travaux preparatoires underlying it, and the very structure of
Chapter VII in moving towards a collective rather than unilateral security paradigm.
The challenge presented to that post-war order by US President Bush‘s articulation of
an anticipatory self-defence doctrine in 2002 did not gain acceptance and indeed was widely
repudiated by the international community.62 The law was not, however, left untouched. The
process of repudiating the ‗Bush doctrine‘ involved the international community shifting the
law away from the traditional strict approach to confirm a middle ground of pre-emptive self-
defence. The UN Secretary-General thus affirmed after 9/11 that self-defence is permitted
against an imminent attack, while rejecting the US claim to self-defence in circumstances
where no attack is imminent and there may be uncertainty about the time, nature or location
of an attack.
Again, there is nothing terrorism-specific about the law: pre-emption potentially
applies to any threat which is imminent and of the character of an ‗armed attack‘. As with
other areas of the law on the use of force set out above, the factual phenomenon of terrorism
has assisted in the clarification of the general law, but terrorism is just one manifestation or
instantiation of non-State armed force to which the general legal principles apply.
Terrorism and International Humanitarian Law

60
See T. Becker, Terrorism and the State; Rethinking the Rules of State Responsibility (Hart, Oxford, 2006); R.
Barnidge, Non-State Actors and Terrorism: Applying the Law of State Responsibility and the Due Diligence
Principle (TMC Asser Press, The Hague, 2008); K. Trapp, ‗Back to Basics: Necessity, Proportionality, and the
Right of Self-Defence Against Non-State Terrorist Actors‘ (2007) 56 International and Comparative Law
Quarterly 141; P-M Dupuy, ‗State Sponsors of Terrorism: Issues of International Responsibility‘ in A. Bianchi
(ed), Enforcing International Law Norms against Terrorism (Hart, Oxford, 2004), 3.
61
B. Michael, ‗Responding to Attacks by Non-State Actors: The Attribution Requirement of Self-Defence‘
(2009) 16 Australian International Law Journal (forthcoming March 2010).
62
For an overview of the debate, see A. Sofaer, ‗On the Necessity of Pre-emption‘ (2003) 14 European Journal
of International Law 209; M. Boethe, ‗Terrorism and the Legality of Pre-emptive Force‘ (2003) 14 European
Journal of International Law 227.

13
As in the law on the use of force, the problem of terrorism has impelled a clarification of
general norms without generating terrorism-specific rules of international humanitarian law.
Early assertions after 9/11 that new rules of humanitarian law were necessary to deal with
terrorism were not met favourably by most States and terrorists remain well ‗within‘ rather
than ‗outside‘ the law.
Thus, there remains no special legal category of ‗terrorist‘ in armed conflict, nor any
different or lesser regime of rights and duties applicable to those engaged in terrorist
activities. If ‗terrorists‘ do not meet the conditions of combatancy (and they rarely will), then
technically they are civilians. International humanitarian law has long recognised that the
conduct of some civilians renders them dangerous to military forces and the law has means of
dealing with such security threats.
Where ‗terrorists‘ commit unlawful violence under international humanitarian law or
international criminal law, they may be prosecuted for war crimes or crimes against
humanity, either in national courts or (where available) in international tribunals. Most
terrorist-type conduct committed in connection with an armed conflict is already criminalized
as war crimes in international or non-international armed conflict.63 There is even a
specialised war crime of spreading terror amongst a civilian population.64
In addition, the criminalization of terrorist acts pursuant to Security Council 1373
provides States with a further means of prosecuting terrorist activity which occurs either in an
armed conflict or alongside it (in circumstances where terrorism is not relevantly connected
to the conflict). In international armed conflicts, national law continues to apply to civilians
in occupied territory; in non-international conflicts, the State is entitled to criminalize as
‗terrorism‘ violence committed by civilians against each other or against the State.
In all cases, practice since 9/11 has also confirmed the necessity of ensuring the
fundamental guarantees of fair criminal trial in terrorist prosecutions. Attempts to deviate
from such guarantees, as through the US President‘s first military commissions at
Guantanamo Bay, met stiff opposition and were ultimately rejected by the US Supreme
Court.65 While the subsequent congressional Military Commissions Act 2006 (US) responded
in part to those concerned, such trials remained dogged by concerns about procedural
irregularities.66 The third system of trials, constituted by President Barrack Obama under the
Military Commissions Act 2009 (US) is also not free of defects.67
That is not to suggest that a fair criminal procedure has a static content. Many national
legal systems have attempted to develop mechanisms for protecting security sensitive
intelligence information while balancing the concerns of a fair criminal trial, in particular the
right of an accused to see and test the evidence brought against him or her. 68 Such
63
See H. Gasser, ‗Acts of Terror, ―Terrorism‖ and International Humanitarian Law‘ (2002) 84 International
Review of the Red Cross 547.
64
Prosecutor v Galic, ICTY-98-29-T (5 December 2003), paras. 65-66; affirmed in Prosecutor v Galic (Appeals
Chamber Judgment), IT-98-29-A, 30 November 2006, paras. 87-90. See also B. Saul, ‗Crimes and Prohibitions
of ―Terror‖ and ―Terrorism‖ in Armed Conflict: 1919-2005‘ (2005) 4 Journal of the International Law of Peace
and Armed Conflict 264.
65
Hamdan v Rumsfeld, 548 U.S. 557 (2006).
66
J. Stewart, ‗The Military Commissions Act‘s Inconsistency with the Geneva Conventions: An Overview‘
(2007) 5 Journal of International Criminal Justice 26.
67
For example, it retains the arguably retrospective offence of ‗providing material support for terrorism‘, in
contravention of article 15 of the International Covenant on Civil and Political Rights.
68
See, eg, A and others v United Kingdom (Application no. 3455/05), Judgment, 19 February 2009 (Grand
Chamber of the European Court of Human Rights); Secretary of State for the Home Department v AF [2009]
UKHL 28 (UK House of Lords); Binyam Mohamed v The Secretary of State for Foreign and Commonwealth
Affairs [2010] EWCA Civ 65 (English Court of Appeal); Canada (Prime Minister) v Khadr, 2010 SCC 3
(Supreme Court of Canada).

14
mechanisms are subject to an ongoing, constructive process of refinement as they are
challenged in court over time. There are also genuine and reasonable differences of opinion
of the essential elements of a fair trial, as is illustrated by the common law‘s usual rejection
of hearsay evidence but its common acceptance by civil law systems.
Where it is not possible to prosecute, international humanitarian law provides other
security powers for dealing with terrorist threats. The internment or administrative detention
(without charge) of dangerous civilians (definitely suspected of activities hostile to the
occupying power) is permitted in international armed conflict, as long as it is subject to
periodic independent review and conditions of detention are humane.
The picture is slightly less clear in non-international armed conflict,69 but the claims and
counter-claims (including through judicial proceedings) about detention of terrorists since
9/11 has tended to confirm the applicability of the existing law, if sharpening its focus. It is
implicit in common article 3, applicable to non-international conflicts, that detention may be
necessary, but there are no express legal criteria authorising or governing detention.70
The background assumption is that it is the province of national law to regulate detention
in non-international conflicts. Any detention powers under national law must, however,
satisfy the requirements of international human rights law, including being (prospectively)
authorised by law, necessary for security reasons, proportionate to the security objective, and
subject to periodic judicial review. In non-international conflicts of a transnational character,
it will be particularly important for national law to be given extraterritorial effect in order to
ensure the legality of foreign detentions.
International humanitarian law has undergone its most extensive processes of clarification
in relation to two core issues: first, the characterisation of non-international armed conflict,
and secondly, the military targeting of suspected terrorists. It has been sometimes been
suggested that ‗mere‘ terrorist acts should be distinguished from more sustained military-
style violence in the assessment of whether there exists a non-international armed conflict.
Those suggestions have been commonly misunderstood as a proposition that terrorist
campaigns can never constitute or trigger an armed conflict.
That interpretation is not accurate. The central legal question in the existence of an armed
conflict is whether there exists sufficiently intense armed violence between organized armed
groups and a State or other organized groups.71 The description of the nature of the group
(guerrilla, insurgent, rebel, terrorist) is immaterial in answering that question, particularly
since after 9/11 many armed groups may now have a dual characterisation (as both ‗terrorist‘
under Security Council measures and ‗insurgents‘ in armed conflict).
Accordingly, if terrorist violence reaches the requisite threshold of intensity of violence,
then there may exist a non-international armed conflict in which that terrorist group is a
party.72 Recent examples include the conflicts between the US and Al Qaeda in Afghanistan,
Sri Lanka and the LTTE (Tamil Tigers), or Israel and Hezbollah in Southern Lebanon. Such
clarification of the law is not peculiar to ‗terrorist‘ groups; the analysis applies equally to

69
See generally R. Goodman, ‗The Detention of Civilians in Armed Conflict‘ (2009) 103 American Journal of
International Law 48; M. Sassòli, ‗The Status of Persons Held in Guantánamo under International Humanitarian
Law‘ (2004) 2 Journal of International Criminal Justice 96.
70
J. Bellinger (US State Department Legal Adviser), ‗Remarks on Contemporary Challenges to the Geneva
Conventions‘, University of Oxford, 10 December 2007.
71
Prosecutor v Tadic (Interlocutory Appeal on Jurisdiction), IT-94-1, Appeals Chamber, 2 October 1995, para.
70; Prosecutor v Limaj et al, IT-03-66-T, ICTY Trial Chamber II Judgment, 30 November 2005, para. 83.
72
See also UK Ministry of Defence, The Manual of the Law of Armed Conflict (OUP, Oxford, 2004), para.
1.33.4.

15
other groups (such as the Kosovar ‗extremists‘ involved in violence against Macedonian
authorities in the early 2000s).73
The other core issue which has undergone substantial, if incomplete, clarification
concerns the scope of the right of military forces to target and attack ‗terrorists‘ in armed
conflict. Again, a general rule exists: a civilian may be targeted for the duration of that
civilian‘s direct participation in hostilities.74 The central controversy concerns what degree of
military threat constitutes ‗direct participation‘.75
Some States, such as Israel, have sought to flexibly interpret that rule so as to expand the
categories of civilian liable to attack.76 On that view, not only those taking a physical part in
the fighting (for example, by holding weapons or planting bombs) are directly participating in
hostilities, but those responsible for terrorist attacks, such as those who enlist terrorists or
plan or order attacks.
Further, civilians are regarded as participating in hostilities for as long as they are
involved in committing a chain of hostile acts, even if there are brief periods of non-hostile
activity in between. The latter development is designed to address the ‗revolving door‘
problem, whereby some civilians move in and out of hostilities (and thus in and out of
immunity from attack), such as where they work as farmers by day but terrorists by night.
States such as Israel argue that a restrictive view of ‗direct participation‘ would give terrorist
groups an unfair advantage by permitting them to operate under cover of civilian immunity.
The problem of direct participation is not confined to terrorist groups and indeed
underlies long-running concerns among certain States about the regulation of non-State
groups generally (including guerrillas, insurgents, and national liberation forces). The mixed
reception of the ‗guerilla warfare‘ provisions of the Additional Protocol I of 1977 is
indicative of the underlying difficulties of regulating asymmetric warfare. The contemporary
challenge of terrorism certainly brings the problem into renewed and stark relief.
Recent efforts by the International Committee of the Red Cross to clarify the meaning of
‗direct participation‘ have gone some way towards building international consensus on the
content of the rule. As with many principles of international humanitarian law, however,
there is an inherent vagueness at the heart of the notion of ‗direct participation‘ – at once
necessary to flexibly accommodate the range of ways in which violence is perpetrated in
armed conflict, but simultaneously confounding because of its relative lack of precision.
Identifying the spectrum of methods by which civilians participate in conflict, and
providing reasoning about the risks and advantages of permitting the targeting of civilians
engaged in the different methods, may at least help to circumscribe national discretion in
implementing an ambiguous rule. The contribution of the Israeli Supreme Court is also
important in its articulation of the human rights principles which must be complied with
before targeting terrorists as a last resort.
A final issue concerning international humanitarian law and terrorism deserves mention.
It was noted earlier that the Security Council has authorised States to criminalize terrorism in
domestic law and many States have further proscribed certain terrorist organizations (some of
which appear on the Security Council‘s Resolution 1267 Committee list, others which have
been unilaterally added by States themselves). One adverse consequence of the

73
See, eg, Prosecutor v Boskoski, IT-04-82-T, ICTY Trial Chamber II Judgment, 10 July 2008.
74
Protocol I (1977), art. 51(3), reflecting customary law in international and non-international conflicts.
75
See generally N. Melzer, Targeted Killing in International Law (Oxford University Press, Oxford, 2008); D.
Kretzmer, ‗Target Killings of Suspected Terrorists‘ (2005) 16 European Journal of International Law 171.
76
See, eg, Public Committee against Torture in Israel v Government of Israel (Targeted Killings case), Israeli
Supreme Court, HCJ 769/02, 11 December 2005.

16
criminalization of terrorism and the banning of terrorist organizations is the potential for
interference in the logic and practical effectiveness of international humanitarian law – and
its underlying humanitarian purposes.
If non-State parties to an armed conflict find themselves branded and delegitimized
internationally as criminal terrorist groups, any incentive towards compliance with
humanitarian law by those groups evaporates. For it then makes sense to such groups to fight
as dirtily as possible, and for as long as possible, to avoid defeat, since defeat and capture
likely brings severe criminal penalties rather than amnesties and demobilization. In contrast,
where non-State groups are not criminalized as terrorists, but treated as belligerent parties in
an armed conflict, there is greater reason to comply with humanitarian principles, both to
enhance the group‘s own legitimacy (and the legitimacy of its claims) and to stake a claim to
more dignified treatment as belligerents upon capture.
International Human Rights Law
Cutting across many of the areas of international law discussed above is the impact of
terrorism on international human rights law. Terrorism has presented special problems for
human rights across the spectrum of rights: life, liberty and security, non-discrimination,
freedom from torture, freedom of movement, privacy and so on. Human rights law has
struggled to retain its normative purchase in regulating and constraining both terrorist and
counter-terrorist violence,77 and has sometimes been instrumentally used to justify ‗trade-
offs‘ between the rights of terrorist and of the community as a whole.
The initial failure of the Security Council‘s Counter-Terrorism Committee to take
human rights aggravated the problem of human rights compliance in counter-terrorism,
although over time the UN human rights bodies have increasingly asserted themselves against
excessive State anti-terrorism measures. There remains, however, something of a divorce
between technical assistance efforts in the criminal law field (such as through the UN Office
of Drugs and Crime) and efforts to mainstream human rights in counter-terrorism.
As is largely the case with the law on the use of force and international humanitarian
law, there has been no large scale refashioning of human rights law in response to the
contemporary terrorist threat. Indeed human rights law has survived acute challenges
relatively intact. For example, attempts to justify torture, whether through creative
interpretations of the definition of it, or direct assaults on its prohibition, were ultimately
rebuffed by the international community.78 So too has the international community robustly
turned against the ‗irregular renditions‘ as a means of gathering intelligence and
circumventing the regular legal processes concerning extradition, deportation, or transfer of
detainees in armed conflict. Hawkish opponents of the structure and principles of human
rights law have failed to articulate sound reasons for departing radically from it.
This should come as no surprise: human rights law itself contains highly flexible
mechanisms for accommodating a wide range of public security threats and other emergency
situations. The law permits necessary and proportionate limitations on many rights in order to
secure legitimate public safety objectives; in more extreme cases, derogation (suspension) of
certain rights is possible. Judiciaries are also sensitive to the expertise and necessary

77
See, for example, J. Fitzpatrick, ‗Speaking Law to Power: The War against Terrorism and Human Rights‘
(2003) 14 European Journal of International Law 241; D. Moeckli, Human Rights and Non-Discrimination in
the ‘War on Terror’ (Oxford University Press, Oxford, 2008); B. Goold and L. Lazarus (eds), Security and
Human Rights (Hart, Oxford, 2007); O. Gross & F. Ní Aoláin, Law in Times of Crisis: Emergency Powers in
Theory and Practice (Cambridge University Press, Cambridge, 2006).
78
See generally B. Saul, ‗Torturing Terrorists After September 11: Dershowitz‘ Torture Warrant‘ (2004) 27
International Journal of Law and Psychiatry 645.

17
discretion of executive governments in making security assessments and accord appropriate
deference to the executive in many cases. Indeed the problem with human rights law is often
not that it is too restrictive in responding to terrorist threats, but that it is sometimes not
restrictive enough: too ambiguous, too discretionary, too deferential to executive judgments,
too fearful of getting it wrong and exposing the public to terrorist attack.
Like the other branches of law discussed above, the post-9/11 response to terrorism
has tended to clarify rather than revolutionise or un-wind the law. In particular, there has
been an ongoing refinement of judicial reasoning concerning justifications for limiting rights
and balancing them against public security imperatives, whether in relation to powers of
detention, the imposition of control orders, new surveillance powers, or the availability and
standard of judicial review. In the assessment of public emergencies, there has been an
increasingly sophisticated articulation of the relevant principles, the respective roles of the
judiciary and the executive, and the characterisation of terrorism as an emergency.
In military operations abroad, the extraterritorial applicability of human rights law has
been increasingly confirmed in relation to the use of force and detention powers. In domestic
criminal trials, closer scrutiny has been brought to bear on the minimum requirements of a
fair trial,79 including concerning the disclosure of security sensitive information, as well as a
more nuanced risk analysis of preventive criminal law approaches. As noted earlier, attention
has also focused on the paramount importance of non-discrimination in anti-terrorism
measures, including in the treatment of non-citizens and religious or minority groups. In
international refugee law, the temptation to automatically exclude suspected ‗terrorists‘ from
protection has been balanced by more nuanced recognition of the legal principles at stake.
Despite the serious human rights violations committed in the war on terror, the relentless
probing of the adequacy of human rights law in the name of counter-terrorism has
paradoxically served to strengthen, rather than unravel, its normative power over time.
Conclusion
The global reaction to 9/11 has driven a complex and often uncoordinated process of counter-
terrorism norm-creation and implementation, often in ways which ‗operate below the level of
highly publicized diplomatic conferences and treaty-making, but [which] in aggregate…
regulate and manage vast sectors of economic and social life through specific decisions and
rulemaking‘.80 These law-making processes have taken place on a variety of registers:
vertical norm development;81 stronger transnational criminal cooperation; new measures in
regional public law;82 the emergence of new ‗soft law‘ standards;83 the mobilisation of non-
State actors;84 the horizontal, cross-border borrowing and transplant of domestic legal norms
across national legal systems;85 and the reverse vertical uplifting of national norms onto the

79
For an overview, see Report to the General Assembly of the Special Rapporteur (Martin Scheinin) on the
promotion and protection of human rights and fundamental freedoms while countering terrorism, 6 August
2008, A/63/223.
80
Kingsbury et al, above note 55, 17.
81
Including consensual processes such as international treaty negotiation and attendant domestic
implementation, and mandatory processes such as binding UN Security Council resolutions adopted under
Chapter VII of the UN Charter.
82
Particularly in the European Union.
83
Through UN bodies, international organisations and sui generis entities such as the Financial Action Task
Force.
84
Such as the global financial sector to counter terrorist financing and money laundering.
85
Thus, Australia adopted a civil ‗control order‘ regime for suspected terrorists, based on a UK model: see
Criminal Code Act 1995 (Commonwealth of Australia), Schedule, Division 104. Likewise various common law
States have been attentive to developments in comparable jurisdictions in the definition of terrorism, extended
periods of investigative detention, surveillance, powers to proscribe terrorist organisations and so on.

18
regional or international plane.86 The reaction to terrorism, through the development of ‗hard
and soft, global and regional law‘,87 illustrates ‗the diversity of law-making approaches that
international law now offers and [to show] that the choice of process depends upon context,
political preference and purpose‘.88
The relatively fragmented response to terrorism means that it is still accurate to
conclude that there ‗is not ‗any ―joined up‖ international law approach to combating
terrorism‘.89 Rather, there is sectoral treaty law addressing particular forms of terrorist
violence, largely without naming it as terrorism; there is genuinely new international law of
terrorist financing; and there are emerging criminal law norms on terrorism which will take
some time yet to crystallize. In some of the specialised branches of law (the use of force,
humanitarian law, and human rights), the problem of terrorism has triggered the clarification
of various ambiguities in existing norms, without necessarily producing terrorism-specific
rules, and has also confirmed the general applicability of the existing law in various ways.
It is, therefore, too soon to speak of a coherent ‗self-contained‘ regime90 of
substantive ‗international anti-terrorism law‘, given the disparate and contradictory ways in
which terrorism is approached in different areas of law, the lack of procedural clarity
surrounding counter-terrorism efforts, and the absence of any global institutions for
coordinating counter-terrorism responses. Terrorism is thick with law; coherence is lacking.
Incoherence or fragmentation is not of itself problematic; but it becomes so when it impedes
an effective, legitimate and coordinated global response to terrorism.
The successful conclusion of the UN Draft Comprehensive Terrorism Convention
might go some way towards consolidating and progressively developing a field of global
anti-terrorism law and enhancing the effectiveness and clarity of counter-terrorism efforts.
Such a ‗framework‘ convention would establish conceptual agreement on the definition of
terrorism and exceptions to it, as well as setting out principles for resolving conflicts between
anti-terrorism norms (including the sectoral treaties) and between other international norms
and anti-terrorism norms (particularly as regards international criminal law, humanitarian
law, Security Council measures, and human rights law). Despite the best efforts of sponsor
States such as India, the Draft Convention continues to languish in part because of the
unproductive and sometimes unprincipled political positions taken by various blocs of States
– positions which often have nothing to do with the effective protection of civilians from
terrorist violence.

86
As when the definition of terrorism in the Arab Convention on the Suppression of Terrorism 1998 was
modelled on article 86 of the Egyptian Penal Code 1992.
87
A. Boyle and C. Chinkin, The Making of International Law (Oxford University Press, Oxford, 2007), 10.
88
Ibid, 8-9.
89
Ibid, 8. Moeckli also tentatively raises whether there is an emerging international law of terrorism: D.
Moeckli, ‗The Emergence of ―Terrorism‖ as a Distinct Category of International Law‘ (2009) 44 Texas
International Law Journal 157.
90
International Law Commission, ‗Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law‘, Report of the Study Group, Finalized by Martti
Koskenniemi, 13 April 2006, A/CN.4/L.682; see also B. Simma and D. Pulkowski, ‗Of Planets and the
Universe: Self-contained Regimes in International Law (2006) 17 European Journal of International Law 483.

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