"Umbrellas" or "building blocks"? Defining international terrorism and transnational organized crime in international law [phi].

• Author: Orlova, Alexandra V.

1. INTRODUCTION II. DEFINITIONS OF INTERNATIONAL TERRORISM AND TRANSNATIONAL ORGANIZED CRIME A. The Draft Comprehensive Convention on International Terrorism (the Draft Convention) B. UN Convention Against Transnational Organized Crime (2000) (the Palermo Convention) III. DOMESTIC DEFINITIONS OF TERRORISM AND ORGANIZED CRIME A. U.S. Domestic Definitions of Terrorism B. Russian Domestic Definitions of Organized Crime IV. POST 9/11 MERGER OF TERRORISM AND ORGANIZED CRIME V. CONCLUSION I. INTRODUCTION

   This article considers the definition of "international terrorism" and "transnational organized crime" in international law. Our intent is not to offer our own suggestions as to what these definitions should be. Rather, the purpose (a more utilitarian one) is to discuss the difficulties encountered in recent efforts to arrive at comprehensive legal definitions of these phenomena, and, more generally, to highlight an alternative approach to the definitional exercise.

   It is often claimed, and not without cause, that international terrorism and transnational organized crime constitute two of the most serious challenges currently facing the international community. (1) The United Nations (U.N.) Security Council regards international terrorism as "one of the most serious threats to international peace and security in the twenty-first century." (2) Acts of terrorism pose a challenge confronting the entire global community, and "endanger innocent lives and the dignity and security of human beings everywhere, threaten the social and economic development of all States and undermine global stability and prosperity." (3) Similarly, the U.N. General Assembly (UNGA) has expressed its deep concern with "the impact of transnational organized crime on the political, social and economic stability and development of societies." (4)

   Why, though, is it important to define these phenomena in international law? Surely we know terrorism and organized crime when we see them, even if we cannot define them precisely. (5) While seemingly an exercise in semantics, the definitional task is critical from the standpoint of the legal regulation of the phenomena and of lawful responses to them. Without precise definition, ambiguities are created that allow terrorists and organized crime members to "slip through the cracks" in the law. States, too, can take advantage of legal uncertainties to expand their room for maneuver, both in terms of the targets confronted in the fight against terrorism and organized crime and the methods used against these targets. States can also exploit these ambiguities to harness the "wars" on terrorism and organized crime for the pursuit of other unrelated--and, often, less creditable--ends.

   Thus, there is a continuing need to elaborate the definitions of these phenomena in international law. But how should this be done? In general, two approaches have been tried. The first is to develop all-inclusive legal definitions of terrorism and organized crime within the context of comprehensive international antiterrorism and anti-organized crime conventions, in effect, to set out overarching umbrellas for the legal regimes under which the international community combats terrorism and organized crime. The second is to focus on narrow operational legal definitions of specific terrorist and organized criminal conduct within the context of sectoral international conventions, using them as building blocks in the incremental construction of comprehensive legal frameworks to deal with terrorism and organized crime.

   In this article, we examine recent international efforts taken under the umbrella approach to arrive upon all-inclusive legal definitions of international terrorism and transnational organized crime. In Part I, we consider the definitions of terrorism and organized crime found in two comprehensive international instruments--the Draft Comprehensive Convention on Terrorism (the Draft Convention) (6) and the U.N. Convention against Transnational Organized Crime (the Palermo Convention). (7) We note that no all-inclusive definition of international terrorism has yet been agreed to in negotiations on the Draft Convention, while the consensus on the definition of organized crime found in the Palermo Convention is more apparent than real. This lack of international agreement on all-inclusive definitions of the two phenomena is not surprising given that states cannot even agree on these definitions at the level of domestic law, as we show in Part II in the case of the U.S. legal definition of terrorism and the Russian legal definition of organized crime. The difficulties in arriving upon precise all-inclusive definitions of these phenomena have been further compounded in the post-9/11 world with the blurring of the operational distinction between the two concepts, as we discuss in Part III in the context of the expansion of the Financial Action Task Force's (FATF) mandate to include antiterrorist financing measures in the regime set up to deal with money laundering. Finally, in the Conclusion, we note that, regardless of the failure to date of the umbrella approach to produce all-inclusive legal definitions of international terrorism and transnational organized crime, there is still a continuing need to elaborate on the legal definitions of these phenomena, for the reasons that we subsequently set out. We complete the analysis with a discussion of the advantages and disadvantages of the building block approach as an alternative to the umbrella approach in the definitional task.

2. DEFINITIONS OF INTERNATIONAL TERRORISM AND TRANSNATIONAL ORGANIZED CRIME

   1. The Draft Comprehensive Convention on International Terrorism (the Draft Convention)

      The international community has grappled most recently with the challenge of defining international terrorism in the ongoing negotiations (8) on the Draft Comprehensive Convention on International Terrorism. (9) The definition of a terrorist offense is found in Article 2(1):

      1. Any person commits an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally, causes:

         (a) Death or serious bodily injury to any person; or

         (b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or the environment; or

         (c) Damage to property, places, facilities, or systems referred to in paragraph 1(b) of this article, resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act. (10)

         First, a general comment on this definition. Article 2(1) provides an operational definition of the conduct of a terrorist act, not a conceptual definition of the phenomenon of "terrorism." During the Ad Hoc Committee's fifth session (12-23 February 2001), the possibility of defining "terrorism" was discussed. (11) Some delegations supported the Organization of the Islamic Conference's (OIC) proposal to include definitions of the terms "terrorism" and "terrorist crime" in Article 1. (12) They argued that the OIC definitions generalized the acts described in Article 2 and included others not covered by that article, (13) for example, acts of violence "threatening the stability, territorial integrity, political unity or sovereignty of independent States." (14) Other delegations were reluctant to adopt this approach. They maintained that a definition of terrorism was not required. Article 2 provided an operational definition setting out the conduct of a terrorist act, an approach that had been used successfully in previous sectoral anti-terrorism conventions. (15) Most elements in the OIC proposal were already contained in Article 2, in their view, and any new elements could be incorporated. (16) Finally, they noted that, in treaty practice, Article 1 traditionally sets out the definition of terms used subsequently in the body of the treaty text, which was not the case with the term "terrorism." (17) The proponents of the operational definition approach prevailed in this instance, and Article 2(1) remains focused on the definition of the conduct of a terrorist act.

         Moving next to more specific comments on the Article 2 definition, there are two key elements in this definition of a terrorist offense. The first is the action element of the crime, or the actus reus. According to Article 2(1), a person commits a terrorist offense if the person uses "any means" that cause death or serious injury to any person, or serious damage or damage resulting in major economic loss to property, places, facilities, systems, or the environment. The term "any means" is an all-inclusive term that captures all conventional and non-conventional means of attack, including the use of weapons of mass destruction. This contrasts with sectoral anti-terrorist conventions that focus on specific means of attack, for example, "explosive or other lethal devices" referred to in the International Convention for the Suppression of Terrorist Bombings (1997). (19) Being all-inclusive, however, this phrase questionably lumps together an exceedingly broad range of attack methods, from simple computer viruses to crude nuclear devices.

         More ominously, a person could commit a terrorist offense under the Article 2 definition merely by expressing sympathy for the aims of an alleged terrorist group. Article 2(4)(c) states that "any person commits an offence if that person contributes to the commission of one or more offences ... with the aim of furthering the criminal activity or criminal purpose of the group." (20) In a joint letter published in January 2002, Amnesty International and Human Rights Watch warned that this paragraph could be interpreted in ways that undermine freedom of expression. They gave as an example the case of people...