News & Events

What is terrorism? Article by Lisa Gillespie, Advocate


What is terrorism?  Does it include, for example, the popular uprisings that brought down the governments of President Mubarak and then the Muslim Brotherhood in Egypt?  Are assaults by Syrian opposition groups on the Assad regime terrorist attacks, as Assad claims?  In R v Gul [2013] UKSC 64 (23rd October 2013) the Supreme Court considered the definition of ‘terrorism’ in the Terrorism Act 2000.  The court’s approach was firstly to apply familiar domestic law principles of statutory interpretation, then consider whether that resulted in a conclusion which had to be adapted to meet those requirements of international law that had been incorporated into domestic law.


The appellant in Gul had uploaded videos onto YouTube showing attacks by al Qaeda, the Taliban and other proscribed groups on military targets in Iraq, Afghanistan and Chechnya.  Accompanying commentary praised the attackers and encouraged others to emulate them.  He was convicted of ‘disseminating terrorist publications’ contrary to section 2 of the Terrorism Act 2006, and sentenced to five years’ imprisonment.  ‘Terrorist publications’ include those likely to be understood as “a direct or indirect encouragement… to the commission, preparation, or instigation of acts of terrorism”.  The appellant’s position was that the use of force shown in the videos was justified as it was being employed to resist invasion: he had thus encouraged self defence, not terrorism.  The appeal turned on whether the statutory definition of terrorism encompassed military attacks by an armed group on state or intergovernmental organisation forces in the context of a non-international armed conflict (that is, an armed conflict other than between states). 


Section 1(1) of the 2000 Act defines ‘terrorism’ as the use or threat of certain actions (those involving serious violence or property damage, endangering life, etc) where:


“(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and


(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.”


(Condition (b), the ‘target’ requirement, need not be made out where the use or threat of action involves use of firearms or explosives).  Importantly, ‘action’ includes action outside the UK, and ‘the government’ includes the government of a country other than the UK (section 1(4)).


Dismissing the appeal, Lords Neuberger and Judge (with whom the others agreed) began by observing that read in its natural sense, this definition was very far-reaching indeed.  As had been said in R v F [2007] QB 960, what was striking about the language of section 1 was its breadth: it was not limited to countries with particular types of government and it made no exception for what some might describe as ‘terrorism in a just cause’ – terrorism was terrorism, whatever the perpetrators’ motives.  The definition was intended to be very wide, and could be interpreted more restrictively only if it conflicted with the European Convention on Human Rights (which was not argued here) or with the UK’s international law obligations more generally.


Here the appellant had two arguments: first, since some provisions of the Terrorism Acts had been enacted to give effect to the UK’s obligations under anti-terrorism treaties, the meaning of ‘terrorism’ should accord with the international law norm; second, since the Acts criminalised actions committed outside the UK, the meaning should be no wider than the international norm. 


Both arguments met the insuperable obstacle that there is no accepted definition of terrorism in international law.  While there was significant support for the idea that terrorism did not extend to the acts of insurgents or ‘freedom fighters’ in non-international armed conflicts, this fell far short of a general understanding that could properly be invoked as an aid to statutory interpretation.  The United Nations had so far failed to achieve a comprehensive definition, one of the difficulties indeed being finding agreement on the distinction between terrorism and legitimate struggle for self determination.  There was no plain or consistent approach to the issue in the various anti-terrorism treaties, or in state practice: some excluded the activities of armed forces during armed conflict, others did not. 


The court rejected the appellant’s argument that the wide definition should be read down.  Some other provisions of the Terrorism Acts had been enacted to give effect to the UK’s obligations under anti-terrorism treaties that did exclude from their ambits insurgent attacks on military forces: however, there was nothing to stop the UK government from going further than a treaty required when it came to legislating – so called ‘gold-plating’ – and any reading-down would apply only to the provisions in question, not generally throughout the Act.  The extent to which the UK could criminalise activities abroad was irrelevant since the appellant’s conduct – uploading the videos – had occurred in the UK.  It followed that there was no basis for reading the definition of terrorism more narrowly than the natural meaning of the words suggested.


The Supreme Court did however express concern at the wide definition, limited only by the prosecutor’s broad discretion not to prosecute.  It cited the independent reviewer of terrorism legislation David Anderson QC, who had described the definition as “remarkably broad – absurdly so in some cases”.  The reliance on prosecutorial discretion was, said the court, intrinsically unattractive and involved Parliament abdicating a significant part of its legislative function to an unelected prosecutor; citizens were left unclear as to whether their actions would be viewed as innocent or, as here, seriously criminal.  The court found the wide definition of particular concern because the Terrorism Acts confer substantial intrusive powers on the police and immigration authorities.


Two conclusions follow from Gul.  First, while in the popular imagination terrorism often involves attacks on civilian targets, in law it can extend to military engagements with a state’s (or international organisation’s) armed forces.  It could encompass, for example, violence directed entirely at military targets during a civil war.  In his 2011 report Mr Anderson QC observed that “the current law allows members of any nationalist or separatist group to be turned into terrorists by virtue of their participation in a lawful armed conflict, however great the provocation and however odious the regime which they have attacked”. 


Second, the merit or otherwise of the ‘cause’ is, as a matter of law, irrelevant.  It suffices that the use or threat of violence is designed to influence a government – any government, however heinous the regime and regardless of the UK’s relationship with it – for the purpose of advancing a political or other cause.  Citing R v F, Mr Anderson QC has noted that the definition was particularly striking in “its indiscriminate criminalisation of those attacking countries which are governed by tyrants and dictators” (in that case, Gaddafi’s Libya).  As noted above, the ‘target’ requirement need not be made out at all if, as will often be the case, the violence involves firearms or explosives.  To take up arms with the Syrian opposition with a view to achieving Assad’s removal would therefore fall within the definition of terrorism, even as the UK government contemplated arming the opposition; so too would joining the insurgency against Colonel Gaddafi have been terrorism, despite the UK’s role in toppling that regime. 


There are undoubtedly significant practical and political challenges in drafting a workable definition of terrorism: in particular, the need to anticipate both the resourcefulness of terrorists and the ever-changing diplomatic and political landscape.  The wide definition in the 2000 Act means that great reliance is placed on executive discretion – on the police deciding who to arrest, the prosecutor deciding who to prosecute – although Mr Anderson QC, in his most recent report, found that discretions were “on the whole responsibly exercised”. While he identified no urgent need for change, he considered that more fundamental review would be desirable in the longer term.


As a final observation, those who upload jihadi material onto the internet do so at their peril: the appellant, a first offender (and law student) had his five year sentence upheld on appeal.