2007 Issue 1 - New York City Bar Association

P R E V E N T I O N A N D P R O S E C U T I O N O F T E R R O R I S T A C T S
establish jurisdiction over terrorist acts. 28 Two main issues have stalled completion
of the draft: (1) whether acts committed by persons engaged in the struggle
against “foreign occupation” (e.g., Palestinian attacks in Israel) should
be considered acts of terrorism, and (2) whether the acts of states’ armed
forces, which are already subject to the law of armed conflict during wartime,
should be covered by this convention, i.e., whether acts committed
by armed forces may be treated as terrorist acts under this convention. 29
(B) The Definition of Terrorism
The debate over the definition of terrorism, particularly whether the
definition of terrorism should exclude resistance against foreign occupation,
reflects the often-heard adage that one state’s terrorist is another
state’s freedom fighter. It is a tension that has existed since the UN’s first
attempts at addressing terrorism in the early 1970s. 30 At that time, there
was a larger degree of tolerance for the position that politically motivated
acts, particularly those committed in resistance to foreign occupation,
did not constitute terrorism. As Professor Malvina Halberstam observes,
this was demonstrated in a 1972 General Assembly (GA) resolution relating
to terrorism that established an Ad Hoc Committee on Terrorism but
at the same time “reaffirm[ed] the inalienable right to self-determination
and independence of all peoples under colonial and racist regimes and
other forms of alien domination and uph[eld] the legitimacy of their
struggle, in particular the struggle of national liberation movements.” 31
28. See Report of the Ad Hoc Committee established by General Assembly Resolution 5/210
of 17 December 1996, U.N. GAOR, 57 th Sess., Supp. No. 37, Annexes I-III, U.N. Doc. A/57/
37 (2002).
29. See Measures to eliminate international terrorism: Report of the Working Group, U.N.
GAOR 6 th Comm., 59 th Sess., Annex, Agenda Item 148, p. 4, U.N. Doc. A/C.6/59/L.10 (2004).
See also Jim Wurst, U.N. Deadlock Continues on Two Terrorism Treaties, U.N. WIRE, Dec.
10, 2003; Jim Wurst, Negotiations on Anti-Terrorism Treaties Yield No Progress, U.N. WIRE,
February 4, 2002. Like the definition of terrorism, this issue of whether armed forces should
be covered is closely related to the Israeli-Palestinian conflict. The Organization of the Islamic
Conference has urged that any exclusion from the treaty’s provisions for the actions of armed
forces should also cover situations of foreign occupation.
30. The goal of achieving a universal definition of terrorism dates back to the League of
Nations. The Convention for the Prevention and Punishment of Terrorism included a definition
of terrorism, but the treaty never entered into force. See Alex Schmidt, War Crimes
Research Symposium: “Terrorism on Trial”: Terrorism—The Definitional Problem, 37 CASE
W. RES. J. INT’L L. 375, 385 (2005). The UN resumed the attempt to reach a definition after the
terrorist attacks at the 1972 Munich Olympics. Id. at 386.
31. See G.A. Res. 27/3034, U.N. GAOR, 27th Sess., Supp. No. 30, at 119, U.N. Doc. A/RES/
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