Acta Universitatis Danubius. Juridica, Vol 13, No 1 (2017)

Fatos HAZIRI¹, Enver BUÇAJ²

Abstract: The effect of terrorism today has much more international impact because of the interconnectedness of markets, the mobility and the advanced technological capabilities of individuals and terrorist groups. The international community must act as a united front against all forms of terrorism and that there can be no justification for terrorism and the war against terrorism cannot be selective.

Keywords: Terrorism; terrorist group; the right to appeal

1. The Origin of the Term Terrorism

Origin of the term terrorism and the definition of the term terrorism in particular, derive from French word “terrorisme” and from Latin word “terrere”, meaning “terrified” or “fear” and can be used as a verbal phrase “to intimidate”, etc. (Suter, 1983, p. 22).

The aforementioned term “terrorism” was used in the meeting of French National Convention held in September 1793, while the period of 1793-1794 is referred to as Regime de la Terreur (Reign of terror), recognized as a period of terror. Maximilien Robespierre, a leader of the French Revolution, in 1794 stated: “Terror is nothing but prompt, severe, inflexible justice; it is therefore an emanation of virtue” (Burgess, 2002).

It is impossible that the notion of terrorism be defined in unique manner, because no definition will be able to cover all forms of terror which appeared during its history. Furthermore, there is no international legal consensus on the definition of terrorism. There are different opinions concerning the origin of the term “terrorism” and it must be said that this term is commonly used to describe the terrorist acts committed by non-state or regional entities against a state (Williamson, 2001, p. 43), institution, company or business. Terrorism is defined as “systematic and organized violence against a passive subject, by which is caused a sense of insecurity and fear to the passive entity, with the aim of political submission, or with the aim to cause to the passive subject disbelief against the existing social regime and thus to impose political power of terrorists for exploitation and submission. At the same time, with the violence is exercised influence on political power for certain political concessions” (Demolli, 2002, p. 7).

“The meaning of terrorism”, according to researcher Myra Williamson, has undergone a transformation during the change of regime or system where terrorism was used as an instrument of governance, wielded by a recently established revolutionary state against the enemies of the people. According to the Federal Bureau of Investigation (FBI), terrorism means any unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives (FBI, 2001). Important concepts that are discussed in relation to cyber-terrorism include the purpose or intent of attacks that are illegal. It is essential to be taken into account that in order to be classified as a terrorist act, it has cause harm or danger to ordinary people.

US Department of Defense defines terrorism as “the calculated use of unlawful violence or threat of unlawful violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological” (FBI, 2001). It is not wonder if it is said that each of the above definitions reflect the priorities and interests of the individual agencies involved. US Department of State notes the nature of premeditated, planned or calculated actions of terrorism and that terrorism is the opposite of spontaneous acts of political violence. This definition is also the only one of the three others that emphasizes the inevitable political nature of terrorism and its “basic” and “international” characteristics.

The definition of State Department is significantly deficient and failed to take into account the psychological dimension of terrorism. Terrorism has to do more with the threat of violence, as an act of violence itself, and is therefore conceived for a wider influence and psychological consequences that exceed the current target of the act to a much wider targeted audience. For the researcher Jenkins, two decades ago, “terrorism was a theater” (Jenkins, 1975, p. 5). Given the mission of the FBI's investigation and resolving of crimes - including political (e.g. terrorism) and other crimes - is not to wonder why its definition focuses on different elements.

Quite different from the US State Department's, this definition addresses the psychological dimensions of the terrorist act as described above, stressing the propaganda and coercive aspect of terrorism. FBI definition also identifies a much wider category of terrorist targets than “non-combatants” itself, specifying not only governments and their citizens, but also inanimate objects, such as private and public property. Further, the definition of FBI recognizes social policy objectives in addition to the basic purposes as terrorist, although it offers no concrete explanation for either. We consider that the definition of terrorism of Department of Defense is perhaps the most comprehensive of the three abovementioned definitions, because in general emphasizes terrorist threat more as “the actual act of violence” and focuses on the goals of terrorism in society, including governments. Further, the definition of the Department of Defense, mentions religious and ideological purposes of terrorism in addition to the basic political objectives, but surprisingly does not include the social dimension in the definition of the FBI (Schmid, 2011, p. 39). It should be emphasized that the international community has not been coordinated in terms of achieving a universal consensus regarding the definition of terrorism, and these difficulties arise from the fact that the term “terrorism” is politically and emotionally charged (Hoffman, 1998, p. 32).

In addition, Angus Martyn in a briefing paper for the Australian Parliament has stated that “the international community has never succeeded in developing an accepted comprehensive definition of terrorism”. During the 70s and 80s of the XX century, United Nations have failed in their efforts to give a unique definition of terrorism, mainly due to differences of opinions between the various members regarding the use of violence in the context of conflict for national liberation and self-determination (Martyn, 2002). These divergences have made it impossible adoption of a comprehensive convention against international terrorism, which would involve a single comprehensive definition as part of the criminal laws that define terrorism (Diaz-Paniagua, 2008, p. 47).

In the meantime, the international community has adopted a series of sectoral conventions which define and condemn various kinds of terrorist activities. In addition, since 1994 the General Assembly of the United Nations has condemned terrorist acts by defining them as “criminal acts committed with premeditation”, or that provoke a state of terror in the general public, and, according to it, the terrorists are a group of persons or particular persons with purposes of a political, philosophical, ideological, racial, ethnic, religious or any other purpose may use terrorism to justify them (United Nations Declaration on Measures to Eliminate International Terrorism annex to UN General Assembly Resolution 49/60, 1994).

TERRORISM IS AMONG THE MOST SERIOUS CRIMES. IT CANNOT AND SHOULD NOT BE LINKED TO ANY NATIONALITY, RELIGIOUS OR ETHNIC AFFILIATION.

In a study by Jeffrey Record, in 2003, US military has cited a source (Demolli, 2002; Schmid, Jongman & Albert, 1998, pp. 5-6) that counted 109 definitions of terrorism which cover a total of 22 different elements of definitions (Record, Schmid, Jongman & Albert et al, 1998, pp. 5-6). Walter Laqueur, an expert on terrorism, also has counted over 100 definitions of terrorism and concludes that general feature of all definitions is that terrorism involves violence and the threat of violence (Laqueur, 1999, pp. 6-12). “Meanwhile, Bruce Hoffman, a researcher, has noted that terrorism is a pejorative term. In fact, this term has a negative connotation that is generally applied to enemies or opponents of someone, or to those with whom one disagrees and would prefer to ignore.”

Use of the term terrorism means a moral judgment and if one party manages his to successfully add to its opponent the designation of terrorist, then; he has indirectly persuaded others to adopt his moral views. Therefore, the decision to call or label an organization as terrorist depends on individual perspective and becomes almost subjective, and, inevitably, depends on whether one can sympathize or object the group or its members. For example, if one identifies with the victim of the violence, then the act is terrorism. If, however, one identifies with the perpetrator, the violent act is regarded in a more sympathetic, if not positive and it is not terrorism (Martyn, 2002, p. 32).

While the goal of the terrorist is politically inevitable, the aim of the killer, deep within him, is individual, completely selfish and deeply personal. John Hinckley, who attempted to assassinate President Reagan in 1981 to impress actress Jodie Foster, is a typical case. He did not act out of political motives or ideological beliefs, but to fulfill some deep personal need. Such completely apolitical motives, in no way can be compared with rationality used by Narodnaya Volya, to justify its assassination campaign against tyrannical czar and his friends. Another case is the failure to carry out the murder of Prime Minister Margaret Thatcher, or its successor “Big John”, despite the efforts of the Irish Republican Army, hoping that British politics will change dramatically over Northern Ireland. Further, as a person cannot claim to be a political party in itself, a single terrorist cannot be considered to constitute a terrorist group.

In this regard, although the murder of rival candidate for the president of USA, Senator Robert Kennedy, committed by Sirhan Sirhan in 1968, had a political motive (to protest against US support for Israel), it is still questionable whether the motive should be defined as a terrorist act or not, because Sirhan did not belong to any organized political group and acted completely individually, driven by his deep personal disappointment and by deep and common hostility with couple other persons. To qualify as terrorism, violence must be performed by an organizational unit with at least some conspiracy structures and an identifiable chain of command beyond a single individual acting independently.

Thus, terrorism can be defined as a deliberate action and exploration of fear through violence or threat of violence in pursuit of political change. All terrorist acts involve violence or threat of violence. Terrorism has far-reaching psychological effect beyond the immediate victim or object of terrorist attack. This action is intended to instill fear in a wide “targeted audience”, which may include a rival ethnic or religious group, an entire country, a national government, a political party or a public opinion in general. According to author Bruce, terrorism is designed to create power where there is none or to consolidate power where there is very little. Through publicity generated by their violence, terrorists seek to obtain the leverage, influence and power they otherwise lack to effect political change on either local or international scale (Hoffman, City diary, September 28, 2001). In some cases, instead of terrorism, term ‘militant’ is used to avoid using the term terrorism.

Acts of terrorism in many countries are legally distinguished from criminal acts committed for other purposes. It is understood that is not an easy and indisputable action that in critical way to perform an analysis and review of abovementioned definitions, in the created political and scientific atmosphere. However, to define the notion of terrorism in rougher manner, preliminarily must be analyzed and reviewed in detail elements which are prevalent in the phenomenon of terrorism (Demolli, 2002, p. 7), which will be discussed in section 5.

Thus, the arguments of some experts of this field, that terrorism in general and cyber-terrorism in particular, is a contested concept, it is a completely accurate observation. So, the definition of terrorism in a scientific way is very difficult, given that throughout the history of its development has changed its forms and elements. However, it is clear that this form of violence creates psychological terror to the general population and mostly causing permanent fear and uncertainty across the globe.

2. General Goals and Forms of Terrorism

To achieve its goals, terrorists undertake terrorist acts of different forms, aiming to hit the opponent's weakest points. They apply various forms of terrorist acts and consider that some forms have priority because are more easily implemented, and because some of their demands and goals can be realized only with certain forms of terrorist acts (e.g. making the protection of hostages, etc.).

The most common forms of terrorist actions are:

• Taking and holding of hostages;

• Abduction of public transportation (airplanes, ships, trains, etc.);

• Torture and murder (assassination) of political opponents, including their disappearance;

• Explosions;

• Bombing of civilian populated areas;

• The use of weapons of mass destruction (nuclear, chemical, biological, etc.);

• The killing of civilians (Demolli, 2002, p. 244);

• Destruction of information systems;

• Destruction of Internet networks;

• Intrusion in different systems of government and other institutions etc.

There are four dominant forms of terrorism:

• Anti-state terrorism;

• Terrorism sponsored by state/state terror;

• Totalitarian terrorism; and

• Street terrorism (Gardner, 2005).

Anti-state terrorism hinders stable states and undermines their development in order to flourish black market and gray economy.

State-sponsored terrorism, in general, groups of this form of terrorism force to bring to power new political factions to power, possibly by murder, coup or revolution.

Totalitarian terrorism, state leaders fear domestic opposition to establish legitimacy by conducting various forms of repression becoming totalitarian terrorists.

Street terrorism, despite the fact that terrorism is primarily a political-psychological phenomenon, however, this form of terrorism contains: murder, robbery, rape, extortion, etc. These actions are done to provide recruits for various mafia gangs, pirates, drug dealers, but they can be used even by leaders of the party elite to use and manipulate the street terrorists for political purposes (Gardner, 2005, p.1).

3. Elements of Terrorism

Terrorism, as a deliberate action of harmful and destructive activities, contains elements of crime to be considered a terrorist act.

Some of the constituent elements of cyber-terrorism are as follows:

• Organized action and premeditated attack;

• Creation of concerns and obstructing normal life activities in society;

• The clear aim of terrorist action;

• Use of information technology in the commission of terrorist acts.

Organized action and premeditated attack is an act which is organized and executed entirely on the basis of certain plan of action, before the action has caused damage and destruction during the activity.

Creating concerns and obstructions of activities in the moral life of society is considered as an element of terrorism, which causes obstacles and difficulties to individuals and various sectors in society in carrying out daily activities. (Carmer & Hope, 2011; Tripathi, 2011)

Terrorist act is intentional against the person and could have an impact on specific sectors and can affect the obstruction of achieving the desired goals. Although this is the most common way of action, there are times when terrorist acts can be carried out indirectly. That is done so that a person or particular group could eventually realize a planned terrorist attack.

One of the important elements is the role of computer technology in the commission of acts of terrorism. Terminology of computer and informatics, in particular the internet, means different technologies such as computers, computer networks, telecommunications, multimedia, etc. which gives terrorism an advantage in overcoming geographical barriers. Thus, computer technology can cause double advantages and disadvantages for the group who uses them for its own benefit, but also for the other users.

In cases of cyber-terrorism, the use of computer brings the advantage to authors but, at the same time, causing damage to target agencies. The act of terrorism can be driven by the goals of a secret nature. These acts may be caused by political, religious and fanatical reasons. The most common of which can be observed, in the course of history, are the terrorist incidents that are related to political interests. We must not forget that terrorism is done to achieve a result which could change the situation in favor of offenders.

Causing of fear is an element of terrorism. This compels terrorist to carry out terrorist actions against the will or/and objectives of attacked organization. All this stems due to the fact that most of the goals set by the terrorists have devastating effects to the target organization and agency. The interaction of these factors leads to the launch of the act of cyber-terrorism. This act creates concern, which has also become the subject of studies aiming to increase awareness of the society on the effects that can be caused by such cases (Rohas, 2002, p. 14).

4. Kosovo's Ranking According to Indexed Reports from Global Terrorism

The total number of deaths caused by terrorism decreased by 10%, to 29.376 cases in 2015, according to the Global Terrorism Index in 2016, reversing a four-year trend of increasing. According to the ranking, Kosovo is in 70^th place, leaving behind Macedonia. While Serbia is ranked 121^st.

The annual report, drafted by the Institute for Economics and Peace (IEP), based on data on global terrorism, the National Consortium for the Study of Terrorism and Responses to Terrorism (START), as well as other sources, bring more complete data on global terrorism trends.

This report finds that globally, the number of countries recording higher numbers of deaths in 2015 rose to 23, six more than the previous highest number of 17 (Denmark, France, Germany, Sweden and Turkey has recorded the highest numbers of deaths from terrorism in one year, since 2000. More than half of the 557 deaths were linked to ISIL terrorist group, whose attacks in Paris, Brussels and Ankara were among the most horrific attacks in the history of these countries).

Countries that experienced significant deterioration in Global Terrorism Index include France, Turkey, Saudi Arabia, Kuwait and Tunisia (member countries of the Organization for Economic Cooperation and Development, respectively 21 out of 34 member countries, experienced at least one terrorist attack, with most of the deaths recorded in Turkey and France).

Global economic impact of terrorism amounted to over 89 billion dollars in 2015. Iraq has suffered the most economic consequences of terrorism, reaching the figure of 17% of Gross Domestic Product in 2015. The five countries with the higher overall impact of terrorism are Iraq, Afghanistan, Nigeria, Pakistan and Syria (in these countries occurred 72% of all deaths from terrorism in 2015).

Below we bring the ranking of some countries in the Global Terrorism Index, where the lowest figure indicates the greatest impact of terrorism: Iraq 1, Afghanistan 2, Pakistan 4, Ukraine 11, Russia 30, Iran 47, Tajikistan 56, Bosnia and Herzegovina 62, Kosovo 70, Macedonia 78, Kyrgyzstan 84, Belarus 86, Georgia 87, Kazakhstan 94, Azerbaijan 106, Armenia 108, Montenegro 117, Serbia 121, Moldova 129, Turkmenistan 130. In the US, there has been an average of 20.4 terrorist events per year, the number of the second highest, after Lebanon, followed in third place by Germany 19.3 and 17.9 in France.

5. The Trend of Terrorism in Kosovo

The Republic of Kosovo sanctions the offense of terrorism under the Criminal Code of the Republic of Kosovo, based on following articles:

135 Definitions for terrorism provisions in articles 121-145;

136 Commission of the offense of terrorism;

137 Assistance in the commission of terrorism;

138 Facilitation of the commission of terrorism;

139 Recruitment for terrorism;

140 Training for terrorism;

141 Incitement to commit a terrorist offense;

142 Concealment or failure to report terrorists and terrorist groups;

143 Organization and participation in a terrorist group; and

144 Preparation of terrorist offenses or criminal offenses against the constitutional order and security of the Republic of Kosovo.

Also, the Republic of Kosovo has adopted the Law on prohibition of joining armed conflicts outside the state territory (Law nr. 05/L-002 on prohibition of joining armed conflicts outside the state territory of 2015).

Simultaneously, it has also issued two national strategic documents, “National Strategy of the Republic of Kosovo Against Terrorism, 2012-2017” and the “Strategy for Prevention of Violent Extremism and Radicalism Leading to Terrorism 2015-2020”.

Based on the importance of living in a peaceful and multiethnic state, for citizens of Kosovo, in order to ensure their welfare and guarantee their freedoms provided by the Constitution, it is essential that the state and society create institutional mechanisms and coordinate activities to face the challenges of security in general as well as measures for preventing and combating terrorism in particular, a phenomenon which is nowadays considered as one of the main threats to national and international peace (National Strategy of Republic of Kosovo against terrorism 2012-2017, p. 3).

The threat of radicalism and violent extremism is not a new phenomenon in the world. The use of political violence and destruction to intimidate and weaken the states and peoples has been present throughout the centuries, wherever and whenever a political group or religious group seek to destabilize and weaken borders, governments and societies harming civilians and societies through acts of terror. However, modern forms of radicalism and violent extremism are a new phenomenon. This new phenomenon is based on the strengths and weaknesses of the globalized world to spread the messages of terrorist groups to provide funding for support groups and criminal activities, and furthermore making the recruitment of new members for achieving goals them even in places that are far away from conflicts. Events that have occurred in recent years in Kosovo, Europe, Middle East and beyond have made clear the necessity and interest of the Republic of Kosovo to develop a strategy through which to coordinate measures to strengthen the stability of the state and society against threats posed by radicalization and violent extremism (Strategy for the Prevention of Violent Extremism and Radicalism Leading to Terrorism 2015-2020, p. 3).

Political engagement, training, cooperation and coordination of activities, as well as serious and systematic approach of all Law Enforcement Agencies in Kosovo have yielded good results in the field of rule of law and also has ranked our country in the group of very active states, even considering as a regional leader, in particular in the fight against terrorism, especially with the prevention and detection of those who recruit and send people in conflicts/wars in Syria and Iraq.

The total number of Kosovars who have traveled to Syria since 2012 is 316 persons, among them are 44 women and 29 children, and in this number are also included 38 people who have dual citizenship.

Currently it is estimated that the number of Kosovo citizens in conflict areas is about 140. Including 75 persons suspected in various terrorist organizations are active, followed by their wives and children. In Syria and Iraq are also 38 women and 27 children, 58 people - citizens of Kosovo have been reported killed, most of them believed to have been killed by terrorists after attempts to leave the areas of conflict. While so far, 117 of them have returned to Kosovo.

Kosovo citizens who have traveled to conflict zones, according to the analysis, we notice that mostly are young people aged 18-27, with severe economic and social problems, most of them have a low education or had no access to education and some of them have criminal record.

Along activities to prevent the spread of extremism, radicalism and involvement of the citizens of Kosovo in conflicts abroad, Kosovo Police in cooperation with the Kosovo Special Prosecution Office has initiated criminal investigations against 237 persons suspected to have committed the offenses provided under the Criminal Code: organizing and participating in terrorist groups, participation in conflicts abroad, organizing, recruiting, facilitating, financing of terrorism and other offenses against the constitutional order and security in Kosovo.

As a result of these investigations, since 2013, over 127 people were arrested, including the key persons of the group dealing with recruiting and facilitating the majority of fighters from Kosovo.

Courts in Kosovo so far in the first instance judgment and have sentenced 44 persons arrested for abovementioned offenses with 187 years in prison.

6. Bibliography

Demolli, Haki. (2002). Terrorism. Pristina, Kosovo.

Diaz-Paniagua, Carlos. (2008). Definition of Terrorism.

Burgess, Greg (2002). For later revolutions in France. See July Revolution and French Revolution of 1848, France.

Hoffman, B. (1998). Inside Terrorism. USA: Columbia University.

Jenkins, Brian M. (1975). International Terrorism. Los Angeles, USA: Crescent.

Laqueur, W. (1999). The New Terrorism: Fanaticism and the Arms of Mass Destruction. New York, USA: Oxford University Press.

Martyn, A. (2002). Terrorism, War and International Law in 2009 and the legality of the use of force against Afghanistan in 2001. The Australian Law and Bills Digest Group, Parliament of Australia Web Site.

Rohas, N. (2004). Cyber Terrorism in the Context of Globalization. USA: Asian School of Cyber Laws.

Schmid, Alex P. (2011). The Definition of Terrorism, The Routledge Handbook of Terrorism Research. New York, USA: Routledge.

Suter, D. (1983) Angst und durch Rechtsauslösung Schrecken/Anxiety and fear, the release of rights. Berlin, Germany.

Williamson, M. (2009). Terrorism, War and International Law and the legality of the use of force Against Afghanistan in 2001. Ashgate Publishing.

Other documents

Criminal Code of the Republic of Kosovo.

Law no. 05/L -002 on prohibition of joining the armed conflicts outside the country.

National Strategy of the Republic of Kosovo against terrorism, 2012-2017.

Strategy for the Prevention of Violent Extremism and Radicalism Leading to Terrorism 2015-2020.

The United Nations Declaration on Measures to Eliminate International Terrorism annex to UN General Assembly Resolution 49/60 of 1994 and Measures to Eliminate International Terrorism, of December 9, 1994, United Nations, Assembly Resolution, 60/49.

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