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.
It has long been accepted as a matter of UK domestic law that reference to a treaty for the purposes of interpreting a statute is permissible whether or not the relevant Act expressly makes reference to the treaty (as the Terrorism Act does not). Indeed, where a statute is clearly intended to give effect to a treaty, there is a strong presumption in favour of consistent interpretation. The UK signed the Terrorist Bombing Convention before the adoption of the Terrorism Act 2000 (on 12 January 1998) and it clearly gives effect to obligations under the Terrorist Bombing Convention. In particular, S. 62 of the Act (establishing universal jurisdiction over terrorist bombings) gives effect to obligations under Article 6(4) of the Terrorist Bombing Convention, and the definition of terrorism under the Act (which excludes the requirement of a terrorist purpose from the definition of terrorism as it applies to bombings) gives effect to the broader definition of terrorism (which has no terrorist purpose element) under the Terrorist Bombing Convention.
The Terrorist Bombing Convention is therefore plainly a relevant treaty for the purposes of interpreting the Terrorism Act. And the Convention has something of particular relevance to say regarding whether military force should be qualified as an act of terrorism. The exclusion clause in Article 19(2) of the Terrorist Bombing Convention reads (in relevant part) as follows:
The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention […].
The exclusion clause draws on the definition of ‘armed forces’ and ‘armed conflict’ under international humanitarian law. ‘Armed conflict’ includes, both as a matter of customary international law and the relevant treaties, international and non-international armed conflicts. In the case at hand, the Secretary of State’s certificate designating the conflicts in Afghanistan and Iraq as non-international (in which UK troops are fighting with the consent and at the behest of those states’ governments) does not therefore affect the applicability of the exclusion clause in the Terrorist Bombing Convention. And the ICRC’s recent study of customary IHL has treated the definition of ‘armed forces’ in Article 43 API as having reached customary status. The Art 43 API definition includes ‘organized armed forces, groups and units which are under a command responsible to [a party to the conflict] for the conduct of its subordinates’. This definition is not dependent on state organ or agent status and therefore applies to non-state armed groups as long as they are organized and operate on the basis of command responsibility.
The exclusion clause in the Terrorist Bombing Convention is broad in that it excludes from its reach bombings by armed forces that are governed by IHL, regardless of whether they are lawful or unlawful under IHL. The bombings carried out by insurgents portrayed in the videos posted by the Appellant were in any case against military targets. Subject to the proportionality of any civilian casualties or damage to civilian objects, such bombings would be lawful under IHL and this posting will therefore focus on the narrower question of whether lawful acts of war should have been held to be excluded from the definition of ‘terrorism’ under the Terrorism Act. They certainly would be under the Terrorist Bombing Convention as long as they were carried out by organised armed groups (such as the Taliban) during a non-international armed conflict.
The UK’s party status to the Terrorist Bombing Convention engages the presumption of consistent interpretation and suggests that the CA ought to have interpreted the scope of ‘terrorism’ under the Terrorism Act 2000 consistently with the scope of that Convention. This is so for two important reasons. Firstly, there is the very important objective of preserving the integrity of IHL – ensuring that States do not make unlawful otherwise lawful acts of war (like targeting military objectives) under the guise of terrorism. The ICRC has made the point thusly: “The two legal regimes [international humanitarian law and terrorism suppression] should not be blurred given the different logic and rules that apply. This is particularly important in situations of non-international armed conflict, where a ‘terrorist’ designation may act as an additional disincentive for organized armed groups to respect IHL (they are already subject to criminal prosecution under domestic law).” This is a recurring theme in the negotiation of a comprehensive terrorism suppression convention, and it is the approach to regime interaction between IHL and the terrorism suppression regime which the UK has accepted in the context of these negotiations. There was no need for the CA to go so far as the treaty practice of the OIC or the OAU to determine whether lawful acts of war should be excluded from the scope of the definition of terrorism under the Terrorism Act. Looking much closer to home would have sufficed, and the UK’s party status to the Terrorism Bombing Convention, without reservation to Article 19(2), was a good place to start in determining Parliament’s intent vis à vis the scope of the definition of ‘terrorism’ as it applies to bombings carried out by armed forces in an armed conflict.
Secondly, the regime interaction issues which dominate the debate regarding the definition of terrorism in international law figured heavily in the domestic debate on the scope of the definition of terrorism in the Terrorism Act. Mr. Tony Benn, MP for Chesterfield, expressed the concern thusly: “When I appeared in Trafalgar square in 1964 to support a well-known terrorist who had just been convicted in the Rivonia trial, would I have been guilty of terrorism under the Bill? The next time I met the man, he had a Nobel peace prize and was President of South Africa.” Regime interaction concerns were also raised in particular regard to a UK citizen’s support for the Kurds in Iraq – then fighting against Saddam Hussein. Some members of Parliament worried that the Kurdish insurgents – using explosives against Iraqi military targets – would be carrying out acts of ‘terrorism’ as defined under the Act and that support for their cause would therefore be criminalised under the Act. That the only protection against such prosecutions was the DPP’s exercise of its discretion not to prosecute was considered to be highly problematic. In response to these concerns, Jack Straw had this to say: “The idea that in this country the police would investigate such an alleged offence in respect of Iraq, that the Crown Prosecution Service would bring a charge and that the Director of Public Prosecutions would give his consent cannot exist outside the right hon. and learned Gentleman’s fevered imagination.” And in response to a direct question about whether the bill criminalised support for Kurdish insurgents fighting against Saddam – then Home Secretary, Charles Clark, answered “[p]rima facie, the answer is no. […] The short answer is that support for solidarity action, international campaign organisations or whatever will not be an offence in the context that we are talking about.”
Accepting in principle that support for lawful acts of war should not be criminalised as acts of terrorism when those acts are carried out against our enemies, but prosecuting support for such acts when they are carried out against our own troops is the height of hypocrisy – and a long way from the principled approach to regime interaction issues that the UK has accepted in the context of negotiations on the draft comprehensive terrorism suppression convention. This is not to say that there mightn’t be some other regime applicable to the glorification of acts of war against UK troops – is it treasonous for instance? Under the Treason Act 1351 c. 2 (still in force!), it is a crime “if a man do levy war against our lord the King in his realm, or be adherent to the King’s enemies in his realm, giving to them aid and comfort in the realm, or elsewhere”. But this only reinforces the argument that there was no need to criminalise such conduct under the guise of terrorism and make political a category of crime in respect of which prosecutorial discretion should not appear to take sides and for which condemnation should be absolute.
Given the nature of the debate in the Commons, the Terrorism Act 2000 might have addressed the interaction between the terrorism suppression regime and IHL, but failed to. And the DPP might have exercised its discretion not to prosecute in keeping with principles of regime interaction to which the UK is committed in other contexts, but at least in this case, it didn’t. But most of all, the Court of Appeal certainly should have looked beyond the controversial treatment of terrorism in customary international law to an obviously applicable treaty before it concluded 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.” And because it didn’t, supporters of insurgencies in foreign armed conflicts may need to depend on the direction of the political wind and its effect on the DPP for their freedom, but would do so at great risk given the UK Government’s ‘habitude’ of flip-flopping in regard to foreign relations. It was not long before UK bombs rained down on Tripoli that Colonel Gaddafi was welcoming Tony Blair with a brotherly hug…. All those supporting the current insurgency in Syria, for instance, should certainly be aware of the risk of prosecution for terrorism related offences, particularly if the UK government ever decides that Assad is our friend again.
 Regina v Mohammed Gul, Court of Appeal (Criminal Division), 22 February 2012,  EWCA Crim 280.
 ‘Terrorism’ is defined as the use or threat of action, designed to influence the government or an international organisation or to intimidate the public [hereinafter referred to as a ‘terrorist purpose’], or made for the purpose advancing a political, religious, racial or ideological cause, if it involves (a) serious violence against a person, (b) serious damage to property, (c) endangers a person’s life, (d) creates a serious risk to the health or safety of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. Terrorism Act 2000 c. 11, s. 1.
 Emphasis added, Regina v Mohammed Gul, ¶6
 Ibid., ¶60.
 See also Home Secretary’s comments regarding ss. 60 & 61: “I want to emphasise that clauses 60 and 61 will enable the United Kingdom to ratify the United Nations convention on the suppression of terrorist bombings and, therefore, to meet our international obligations.” HC Deb 14 December 1999, vol. 341, col. 230.
 ICRC, Henckaerts, J.-M. and Doswald-Beck, L., Customary International Humanitarian
Law, Vol. 1 (Cambridge: Cambridge University Press, 2005), Rule 4, 14–17. See also ibid., Vol. II, 86–100.
 See Trapp, State Responsibility for International Terrorism (OUP, 2011), 156-8.
 Mr. Tony Benn, HC Deb 14 December 1999, vol. 341, col. 216.
 Mr. Hogg, HC Deb 14 December 1999, vol. 341, col.s 163, 221.
 Mr. Jack Straw, HC Deb 14 December 1999, vol. 341, col. 16.3
 Mr. Clarke, HC Deb 14 December 1999, vol. 341, col. 230.