'The Legal Response of the League of Nations to Terrorism' by Ben Saul in 4(1)
Journal of International Criminal Justice (2006) 78-102 argues that -
Terrorism was first confronted as a discrete subject matter of international law by the international community in the mid 1930s, following the assassination of a Yugoslavian king and a French foreign minister by ethnic separatists. The League’s attempt to generically define terrorism in an international treaty prefigured many of the legal, political, ideological and rhetorical disputes which came to plague the international community’s attempts to define terrorism in the fifty years after the Second World War. Although the treaty never entered into force following the dissolution of the League itself, the League’s core definition has been highly resilient and has influenced subsequent legal efforts to define terrorism. While the League's 1937 Convention for the Prevention & Punishment of Terrorism is often referred to obliquely in international legal discussions of terrorism, the drafting of the Convention has seldom been intensively analysed. By closely examining its drafting, this article elucidates how the drafters of the Convention agreed on a definition of terrorism, and why they rejected alternative definitions. In doing so, it hopes to refresh and enliven current international debates about definition in the wake of the United Nation’s sixtieth anniversary year, which saw renewed emphasis placed on the quest for definition. ....
This article examines the League of Nations’ response to the 1934 assassination [of King Alexander I of Yugoslavia and French Foreign Minister Louis Barthou], culminating in the adoption of two treaties against terrorism. Remarkably, the League anticipated most of the legal issues which would plague the international community’s response to terrorism in the following seven decades: the political and technical difficulties of definition; the problem of ‘freedom fighters’ and self-determination; ‘State terrorism’ and the duty of non-intervention; state criminality and applicability to armed forces; the scope of the political offence exception to extradition; the impact on freedom of expression; and the relationship between terrorism and asylum. The core definition of terrorism adopted by the League in 1937 has proved remarkably durable, influencing approaches to definition in a variety of legal contexts in subsequent years.
Saul concludes that -
Given the current drafting of a comprehensive international terrorism convention in the United Nations, there are many lessons to be drawn from the League’s work. The League’s debate about whether to define terrorism generically or by enumerating prohibited acts was replayed in a UN General Assembly Ad Hoc Committee between 1972 and 1979. In its final report in 1979, the Ad Hoc Committee refrained from defining terrorism, having found states in chronic disagreement due to Cold War politics, ideological division over the legal status of ‘freedom fighters’, and disputes about the permissible means for achieving self-determination.
Instead, over the following 30 years, the international community reacted pragmatically to terrorism. Twelve international treaties regulate specific aspects of terrorism — such as hijacking or hostage taking — yet none defines a generic crime of terrorism. Many treaties require states to prohibit and punish particular acts, without requiring proof of a political motive, or an intent to intimidate or terrorize a target. There is thus considerable over-reach in these treaties, since criminal acts perpetrated for non-terrorist purposes, motives, aims or effects are also criminalized.
As a result, the desire to recognize terrorism as a crime of special characteristics, beyond the sum of its physical parts, has continued to hold sway. Various regional organizations have reached agreement on generic definition of terrorism, often replicating the template of the League Convention by establishing partly generic, partly enumerative offences. The most recent and prominent is the European Union’s 2002 Framework Decision on Combating Terrorism, while the draft UN Comprehensive Terrorism Convention adopts the same approach.
Recent international definitions of terrorism have built on the League’s core generic definition of acts ‘directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public’. Contemporary definitions accept that terrorism may comprise the intimidation of a population,178 which is similar to (though less serious than) creating a state of terror. Yet these same treaties supplement this definition by alternatively understanding terrorism as the use of criminal violence to compel a government or an international organization to do or to abstain from doing any act. Thus while recent definitions retain the circularity of League definition — defining terrorism by reference to terror or weak synonyms like intimidation or fear — they also establish the alternative definition of compelling others. The idea of compulsion moves away somewhat from the ordinary or plain textual meaning of ‘terrorism’, which implies a graver form of conduct.
The prescience of the League’s approach is further illustrated by the fact that many of the other elements of its offences — the range of protected persons and the prohibited acts against persons and property — have found their way into law, either through regional or sectoral treaties. The League Convention’s criminalization of incitement was also innovative. Jurisprudence concerning the incitement of genocide in Rwanda in 1994 demonstrates the powerful influence of incitement on the commission of international crimes. It is conceivable that suicide bombings and other terrorist acts could be publicly incited — video recordings of Osama Bin Laden inciting Al-Qaeda members to jihad is testament to this. Recently, the European Union, the Council or Europe and the UN Security Council have endorsed the criminalisation of incitement to terrorism,181 although as yet the implications for freedom of expression are unclear, at least in relation to speech which merely glorifies or condones terrorism.
The League Convention also wisely excluded armed forces from its scope, on the basis that international humanitarian law already regulated their activities. This argument is even more persuasive following the explicit prohibition of terrorism in the Fourth Geneva Convention of 1949 and the Protocols of 1977, and because liberation struggles may be regulated as international armed conflicts under Protocol I. The drafters of the UN Comprehensive Convention are still struggling with the extent to which state and non-state armed forces should be excluded, even though this question was apparently resolved in article 4 of the 2005 Nuclear Terrorism Convention and article 19 of the 1997 Terrorist Bombings Convention.
The League’s failures are equally instructive. The utility of the Convention was always doubtful because its extradition provisions did not exclude terrorism from the political offence exception, nor impose a mandatory extradite or prosecute regime. In a climate of mounting authoritarianism in the 1930s, many states were reluctant to confine their sovereign discretion in extradition matters, including the scope of political offences, and were at pains to protect asylum from degradation. Even today, there is still no universal consensus for the abolition of the political offence exception, for similar reasons, although this has been thought possible within the community of European democracies. UNHCR warns against automatically excluding terrorists from refugee status, since not every terrorist act is serious enough to warrant exclusion. Even so, it is significant that the main drafting dispute concerned the nature of the extradition provisions, rather than difficulties with defining terrorism itself.
Finally, it is significant that the League Convention addressed only international terrorism. States jealously guarded their discretion to deal with domestic terrorism, and international law was not considered competent to intrude in the reserved domain of domestic jurisdiction. This view has remained remarkably constant among States since the 1930s, at least in the context of treaties. The draft UN Comprehensive Convention is no exception, since under article 3 it will not apply ‘where the offence is committed within a single State, the alleged offender and the victims are nationals of that State, the alleged offender is found in the territory of that State and no other State has a basis’ to exercise jurisdiction. On the other hand, the UN Security Council has revealed itself increasingly willing to become involved in acts of purely domestic terrorism.
Like much of the League’s work, the labour invested in drafting the Convention has largely been forgotten, as a product of a radically different pre-war era and a failed pre-war institution. The drafting was primarily a means of averting the international crisis precipitated by King Alexander’s assassination, rather than a progressive process of legal reform. A contemporary writer viewed its provisions as not of ‘major importance’, and suggested that practical cooperation was more important than ‘stiffening’ the law. Despite its definition, ‘terrorism’ remained open to abuse, with Hitler justifying the Nazi occupation of Bohemia and Moravia in March 1939 as designed to disarm ‘terrorist bands threatening the lives of minorities’.
Despite never entering into force, the League Convention remains important for the range and detail of legal issues it covered, many of which resurfaced in ongoing UN debates about definition in the 1970s and 2000s. Its definition served for many years as a benchmark, appearing early in the drafting of the 1954 ILC Draft Code of Offences against the Peace and Security of Mankind, and shaping a much cited 1994 General Assembly Declaration. In 1996, the League definition was approved by an English judge to limit the scope of the exclusion clauses in the 1951 Refugee Convention. The definition is also reflected in draft article 5 of the 1998 Draft Rome Statute of the International Criminal Court, and most recently in a working definition adopted by the UN Security Council in resolution 1566 of October 2004. The League’s definition has also been invoked to support an argument that terrorism is a discrete international crime under customary law. The appeal of its definition lies in its intuitive simplicity — even if it remains tautological, and fails to exhaustively capture all of the myriad features of terrorism which surfaced in the past century of violence
