Dr Kimberley N. Trapp is lecturer in law at Newnham College, University of Cambridge.
In its recent decision in Regina v Mohammed Gul, the Court of Appeal held that there is nothing in international law which requires the broad definition of terrorism under the Terrorism Act 2000, as amended, to be read so as to exclude acts of war committed during an armed conflict.
Mohammed Gul, then a law student at Queen Mary, had posted videos on YouTube that “showed attacks by Al Qaeda, the Taliban and other proscribed groups on military targets, including those in Chechnya and Coalition forces in Iraq and Afghanistan, [and] the use of IEDs against Coalition forces [...].” He was prosecuted for supporting terrorism as defined under Section 1 of the Terrorism Act, found guilty and sentenced to 5 years in prison. The principal issue considered by the CA was whether the trial judge’s response to jury questions had been correct in law. After having retired, the jury asked whether “an explosives attack on Coalition forces in Iraq is a terrorist attack” within the meaning of the Terrorism Act 2000. The judge told them that it was, and the Court of Appeal has agreed. In this post, I want to take serious issue with that conclusion.
The Court of Appeal started by accepting that there is a customary international crime of terrorism (at least in times of peace) on the basis of the decision by the late Judge Cassese in the Appeals Chamber of the Special Tribunal for Lebanon 2011 Interlocutory Decision on the Applicable Law. Let’s leave that controversy to one side – much has already been said on the Special Tribunal’s decision already. The question the CA then asked is whether “international law has developed so that an attack by insurgents on military forces of a government is not terrorism” – or otherwise put whether international law excludes lawful acts of war (as governed by IHL) from the definition of terrorism. The reason this question needed asking is that, at least prima facie, “the definition [of terrorism] in Section 1 is clear. Those who attacked the military forces of a government or the Coalition forces in Afghanistan or Iraq with the requisite intention set out in the Act are terrorists.” The CA therefore needed to know whether there was any international law reason why the Act should be interpreted more narrowly.
The CA focused on customary international law as the source of a potential military exclusion from the definition of terrorism. It examined what it referred to as state practice (some of it in the form of treaty practice of the OIC and OAU, plus the criminal codes of Canada and Australia) and concluded – despite the fact that three out of the four sources examined exclude military conduct from the definition of terrorism – that the “necessary widespread and general state practice or the necessary opinio juris to that effect has not yet been established.” It is hard to see how the CA could have concluded otherwise given the limited practice canvassed.
But it is unclear how the CA jumped from its conclusion that customary international law doesn’t exclude acts of war from the definition of terrorism (accepting for argument’s sake that custom does indeed define terrorism as an international crime) to its conclusion that “there is nothing in international law which would exempt those engaged in attacks on the military during the course of an insurgency from the definition of terrorism.” Perhaps the CA might have considered other sources of international law? Perhaps a treaty to which the UK is a party? The Terrorist Bombing Convention is clearly applicable to the facts of the case and speaks directly to the issue of whether the bombing of military targets by insurgent groups in Iraq and Afghanistan amount to an act of terrorism under international law.