The Lexicon of Terror: Crystallization Of The Definition Of “Terrorism” Through The Lens Of Terrorist Financing & The Financial Action Task Force

Excerpt

It is widely assumed that there is no accepted international definition of terrorism, in part because global views on what constitutes terrorism are so politically polarized as to prevent arriving at any meaningful common ground. This view is widespread both in popular culture and the academic community despite the decades of work on this issue at the United Nations (UN), the existence of several UN conventions addressing terrorism, and the increasing convergence of domestic laws on terrorism. In common discourse, any discussion about the definition of terrorism is often met with the relativist quip that “one man’s terrorist is another man’s freedom fighter.”

This Article argues that there is in fact a definition of terrorism that has been widely adopted within the community of nation states, and that this definition is meaningful, substantive, and offers a resolution to some of the most salient debates on the nature of terrorism. Not only are 189 nations party to the UN International Convention for the Suppression of the Financing of Terrorism (“Terrorist Financing Convention”), which offers a basic definition of terrorism, but more than 200 jurisdictions have also committed, through the Financial Action Task Force (FATF), to domestic adoption of a definition of the offense of “terrorist financing” that includes a clear definition of terrorism.¹ Furthermore, a majority of these jurisdictions have actually transposed the FATF definition into their national laws. These include nations, such as the members of the Organisation of Islamic Cooperation, that formerly have led opposition to an international legal definition of terrorism very similar to the definition used by the FATF. While the FATF definition does not resolve all questions, such widespread and consistent adoption implies that the fundamental debates about the definition of terrorism have in fact been quietly concluded.

The literature on the impossibility of defining terrorism has acquired its own collection of literary clichés. It is traditional to begin articles and books about the definition of terrorism with a quote from a thinker of a previous generation reflecting on the difficulties of defining terrorism² or a review of definitional efforts stretching back to at least the 1930s.³

This Article pays due homage to that tradition with a quote from a man who, in contrast to many thinkers and writers on the issue, was confident that he understood what terrorism involved. Nelson Mandela, speaking in his own defense at his 1964 trial for sabotage and treason, offered a clear taxonomy of violent action: “There is sabotage, there is guerrilla warfare, there is terrorism, and there is open revolution.”⁴ He described sabotage as “not involv[ing] loss of life” and as principally involving attacks on economic and infrastructure targets.⁵ Although Mandela did not define terrorism, the use of the term in context suggests that he believed terrorism to entail violence directed against human lives rather than (like sabotage) inanimate targets.⁶ But at no point did he suggest that South Africans fighting for the overthrow of the apartheid government could not carry out terrorism simply because they were engaged in a struggle against a racist regime.⁷

Juan Zarate is Co-Founder and Chair of the Board, Consilient and Co-Founder and Chair of the Center on Economic & Financial Power at the Foundation for Defense of Democracies (FDD). He previously served as Deputy Assistant to the President and Deputy National Security Adviser for combating terrorism and as Assistant Secretary of the Treasury for Terrorist Financing and Financial crimes, and was a Visiting Lecturer on Law at Harvard Law School for eight years. Sarah Watson is a Bank Examiner with the Office of the Comptroller of the Currency. The views expressed in this Article are those of the authors alone and do not represent the views of Consilient, FDD, the Office of the Comptroller of the Currency, or the Department of the Treasury. Follow Juan on Twitter @JCZarate1. FDD is a Washington, DC-based, non-partisan research institute focusing on national security and foreign policy.

1. See International Convention for the Suppression of the Financing of Terrorism, art. 2(1), Dec. 9, 1999, 2178 U.N.T.S. 197 [hereinafter Terrorist Financing Convention]; FIN.ACTION TASK FORCE, INTERNATIONAL STANDARDS ON COMBATING MONEY LAUNDERING AND THE FINANCING OF TERRORISM & PROLIFERATION: THE FATF RECOMMENDATIONS 13, 41–42, (Oct. 2021), https://www.fatfgafi.org/media/fatf/documents/recommendations/pdfs/FATF%20Recommendations%2020 12.pdf [https://perma.cc/FE64-S649] [hereinafter FATF RECOMMENDATIONS] (identifying and clarifying Recommendation 5 (“Terrorist financing offence”) and defining “terrorist act”).
2. See, e.g., John F. Murphy, International Law in Crisis: Challenges Posed by the New Terrorism and the Changing Nature of War, 44 CASE W. RES. J. INT’L L. 59, 61 (2011) (quoting R.R. Baxter); Leonard Weinberg, Ami Pedahzur & Sivan Hirsch-Hoefler, The Challenges of Conceptualizing Terrorism, 16 TERRORISM &POL.VIOLENCE 777, 777 (2004) (quoting Walter Laqueur).
3. See, e.g., Ben Saul, Attempts to Define “Terrorism” in International Law, 52 NETH. INT’L L. REV. 57, 57–61 (2005); BRUCE HOFFMAN, INSIDE TERRORISM 1–21 (3d ed. 2017); Geoffrey Levitt, Is “Terrorism” Worth Defining?, 13 OHIO N.U. L.REV. 97, 97–108 (1986); William R. Farrell, Terrorism Is…?, 33 NAVAL WAR COLL.REV. 64, 64–66 (1980).
4. Nelson Mandela, I Am Prepared to Die, Statement from the Dock at the Opening of the Defence Case in the Rivonia Trial (Apr. 20, 1964), https://www.un.org/en/events/mandeladay/court_statement_1964.shtml [https://perma.cc/2NGW-5VQM].
5. Id.
6. See id.
7. See id.