Expert Commentary

Not All Mass Murderers are Terrorists

Robert J. Eatinger, Jr.
Former Senior Deputy General Counsel, CIA

When Stephen Paddock indiscriminately rained bullets down on a crowd of concertgoers from the 32nd floor of the Mandalay Bay hotel on the evening of October 1, using rifles modified to fire as if fully automatic weapons, killing over 58 people and injuring 489 others, was he engaging in terrorism? As Aaron Blake noted, “plenty of people” had the question, “How could the worst mass shooting in modern U.S. history not be terrorism?”

The answer is terrorism is defined not so much by how heinous, deadly, destructive or terrifying the act, but by the purpose of the actor – usually to intimidate or coerce a civilian population or government to act or not act in a given way, hereafter “to coerce.”

While there is no single, universally accepted definition for “terrorism,” generally accepted definitions, and certainly those used at the federal level, require the act to have been done for the specific purpose or intent to coerce. At least as of this writing, investigating authorities have not informed the public of evidence that Paddock committed his mass murder with the specific intent or for the purpose required to constitute terrorism under U.S. law.

Some commentators note that Paddock’s actions should be defined by the law of the state in which he committed these murders, and Nevada’s definition of an “act of terrorism” does not include a requirement that the act has been committed with the purpose to coerce.  Nevada Revised Statutes, Chapter 202, “Crimes Against Public Health and Safety” definition of “act of terrorism” includes “any act that involves the use or attempted use of … violence which is intended to [c]ause great bodily harm or death to the general population.” I agree, Paddock’s act appears to fall squarely within Nevada’s definition of an act of terrorism, but that does not mean the act was terrorism. The fact terrorists commit mass murder does not mean all mass murders are terrorists.

Nevada did not define “terrorism.” While defining an “act of terrorism” rather than “terrorism” may seem a distinction without a difference, I believe it is a legally material distinction, even if unintended. Others will disagree. If we accepted that by defining an “act of terrorism,” Nevada necessarily defined terrorism, then an act that is not an “act of terrorism,” is not terrorism. Thus, the murder of a single person on the streets of Las Vegas by a member of al Qaeda whose specific purpose in committing that murder was to coerce the United States to withdraw its forces from the Middle East would not be terrorism. Yet, almost certainly, even Nevada law enforcement authorities would say that murder was terrorism.

The United States Code contains different definitions for “terrorism” depending on the purpose for which each definition will be used, but they all require the act’s purpose be to coerce. The definitions of international and domestic terrorism in Section 2331 of Title 18 of the U.S. Code, the title containing most federal criminal offenses, contain the most common expression of the required purpose or intent. The definitions for “international terrorism” and “domestic terrorism” are substantially the same except the definition for international terrorism has additional language, most of which is necessary to the international aspect of the definition. International terrorism is defined as “activities that—

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;

(B) appear to be intended-

      (i) to intimidate or coerce a civilian population;

      (ii) to influence the policy of a government by intimidation or coercion; or

      (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.

       (Underlined italics added to identify the text that does not appear in the definition for “domestic terrorism.”)

The U.S. Code definition of “terrorism” for purposes of domestic security in Section 101 of Title 6, is the same as that for domestic terrorism but adds acts “potentially destructive of critical infrastructure or key resources” and does not contain the requirement the act occur primarily within the territorial jurisdiction of the United States. The definition of “international terrorism” in the Foreign Intelligence Surveillance Act does not include the intent to affect the conduct of a government by “mass destruction” and requires the activities occur “totally outside the United States” rather than “primarily outside the territorial jurisdiction of the United States.”

The most concise definition for terrorism in the U.S. Code is that used for the State Department’s Annual Reports on Terrorism. Title 22, U.S. Code, Section 2656F(d) defines “terrorism” as “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents,” and “international terrorism” as “terrorism involving citizens or the territory of more than 1 country.”

“Terrorism” per se is not defined in international law. While there are over a dozen treaties/conventions relating to various aspects of international terrorism, such as the International Convention for the Suppression of Terrorist Bombings, adopted in New York in December 1997, none of them contain an actual definition of “terrorism.” In addition, terrorism is not a specific crime under international law. The Rome Statute, which established the International Criminal Court (ICC) and defines the crimes the court may hear, does not include a crime of or even reference terrorism. While acts committed by terrorist groups may violate one or more of the crimes that are listed in the Rome Statute, I defer to ICC experts whether the court has jurisdiction over a nonstate actor and whether the actor had to be acting on behalf of a state.

Although the international community has not agreed on a single definition of terrorism, the United Nations (UN) has been pursuing a proposed comprehensive convention on international terrorism since 1996. The most current draft was created in 2013, but the UN has yet to secure enough international agreement on its language to finalize it. The most recent draft refers to “acts of terrorism in all its forms and manifestation” but does not define “terrorism.” Perhaps the UN is seeking a way to make progress without having to resolve disagreements over a definition.

In 2014, the UN committee working on the draft convention heard a series of speakers from the General Assembly urge that differences be resolved and the convention concluded. Several of the speakers make clear that there remains some dispute over how to define terrorism. The speaker for the Caribbean Community stated that countries need to agree on a definition of terrorism. Speakers for the Non-Aligned Movement and the Organization of Islamic Cooperation, as well as UN representatives from Pakistan and Qatar, told the committee that the convention needed to distinguish between terrorism and the legitimate right of people to resist foreign occupation, gain self-representation, and fight for national liberation. We’ve all heard the expression one person’s terrorist in another person’s freedom fighter, and that expression appears all the more true when one replaces “person” with “country.”

While the draft does not define terrorism, it does create an “offense.” Article 2 of the draft convention provides:

  1. Any person commits an offence within the meaning of the present Convention if that person, by any means, unlawfully and intentionally, causes:

(a) Death or serious bodily injury to any person; or

(b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or to the environment; or

(c) Damage to property, places, facilities or systems referred to in paragraph 1(b) of the present article resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.

Even though a purpose of the convention is “to take effective measures to prevent acts of terrorism and to ensure that perpetrators of terrorist acts do not escape prosecution and punishment,” the draft convention does not refer to the offense it creates as either a “terrorist offense” or that it criminalizes “acts of terrorism.” Rather, it simply refers to an offense “as set forth in Article 2.” The draft’s studious avoidance of referring to an offense under Article 2 as a terrorist offense is most apparent in draft Article 3:

Where the present Convention and a treaty dealing with a specific category of terrorist offence would be applicable in relation to the same act as between States that are parties to both the present Convention and the said treaty, the provisions of the latter shall prevail.

While a uniform definition for terrorism does not exist under international law, from the disagreements voiced in 2014, the disagreement appears to be over the purpose or motive behind a specific act, rather than what those acts are. The dispute seems to be over whether there should be some purposes or intents for which it is permissible under international law to commit violent acts that are crimes under the domestic law of the country in which they are committed; to wit, national liberation, self-determination, and expulsion of a colonial or occupying power. That dispute makes sense when terrorism is defined by the purpose or intent of the actor rather than the severity of the death or destruction of the act.

Thus, while definitions for terrorism differ, the overwhelming majority of them distinguish terrorism from other crimes of violence by the purpose of the actor, not the severity of the harm caused. In general, to be “terrorism,” the actor’s purpose must be to intimidate or coerce a civilian population or government to act or not act in a given way.

The Author is Robert J. Eatinger, Jr.

Bob is the founding Principal of SpyLaw Consulting for Business, LLC. Previously, Bob was the Senior Deputy General Counsel of the Central Intelligence Agency. He served as CIA’s Acting General Counsel from October 2013 to March 2014.  Before being named the Senior Deputy General Counsel, he served as CIA’s Deputy General Counsel for Operations from September 2009 to June 2013.  Bob also served on active duty in the United States Navy, Judge Advocate General’s Corps, and retired in... Read More

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