Armed insurgency is terrorism

Court of Appeal, Criminal Division

Published April 9, 2012

Regina v Gul

Before Sir John Thomas, President of the Queen’s Bench Division, Mr Justice Silber and Mr Justice Kenneth Parker

Judgment February 22, 2012

Insurgents who acted against the armed forces of a state anywhere in the world and who sought to influence a government for political purposes were committing acts of terrorism for the purposes of section 1 of the Terrorism Act 2000. Nothing in international law required the clear terms of the 2000 Act to be read down to exempt those committing such acts from the definition of terrorist within that Act.

The Court of Appeal, Criminal Division, so held when dismissing an appeal by Mohammed Gul against his conviction at the Central Criminal Court on February 24, 2011, before Judge Paget, QC and a jury, of five counts of disseminating terrorist publications in 2008 and 2009, contrary to section 2 of the Terrorism Act 2006. He was sentenced to a total of five years’ imprisonment.

Section 1 of the Terrorism Act 2000 (as amended by section 34 of the Terrorism Act 2006 and section 75 of the Counter-Terrorism Act 2008) provides: “(1) In this Act ‘terrorism’ means the use or threat of action where — (a) the action falls within subsection (2), (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.

“(2) Action falls within this subsection if it — (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system.”

Mr Tim Moloney, QC and Ms Tatyana Eatwell (assigned by the Registrar of Criminal Appeals) for the defendant; Mr Sean Larkin, QC, Professor Malcolm Shaw, QC and Ms Bethan David for the Crown.

SIR JOHN THOMAS said, in the reserved judgment of the court, that the Crown contended that the defendant had uploaded videos onto the internet which encouraged the commission of terrorism as defined by section 1 of the Terrorism Act 2000. The defendant was charged with disseminating terrorist publications in 2008 and 2009, contrary to section 2 of the Act. The videos included scenes showing attacks on soldiers of the coalition forces in Iraq and Afghanistan by insurgents.

At his trial, the jury asked questions, after retirement, as to whether such attacks were terrorism within the definition of section 1. The judge told them they were. The defendant was convicted. The issue on appeal was whether the judge had been correct.

It was submitted that the judge had misdirected the jury on the meaning of the 2000 Act since attacks on armed forces during a non-international armed conflict were not terrorism. In the alternative, the definition in section 1 of the 2000 Act had to be read down in accordance with the principles of international law which did not include in the definition of terrorism attack by insurgents on military forces in the course of a non-international armed conflict.

Their Lordships considered the issue of the definition of terrorism on the basis that the conflicts in Afghanistan and Iraq were non-international armed conflicts between the governments of Afghanistan and Iraq and various insurgent armed forces and that the jury were considering the issue on a possible factual premise, namely that what was depicted in the videos were attacks by insurgents on the coalition forces and not civilians.

In their Lordships’ judgment the definition in section 1 of the 2000 Act was comprehensive in its scope; on its face, acts by insurgents against the armed forces of a state anywhere in the world which sought to influence a government and were made for political purposes were terrorism. There was no exemption for those engaged in an armed insurrection and an armed struggle against a government.

Their Lordships then considered the position under international law. What was important was that the criminal liability of the insurgents was a matter of domestic law. It was essential to bear that in mind when considering the relevance of international law to the definition, under domestic law, of terrorists.

Although there was some debate as to whether there was any definition of terrorism in customary international law, it was desirable to confine the examination of state practice, evidenced by international conventions and national legislation, to the question whether attacks on the military forces of a government by some types of insurgents engaged in an armed struggle against that government, particularly those engaged in wars of liberation or self determination, conveniently referred to as freedom fighters, were acts of terrorism.

Their Lordships concluded that, although international law might well develop through state practice or opinio juris a rule restricting the scope of terrorism so that it excluded some types of insurgents attacking the armed forces of government from the definition of terrorism, the necessary widespread and general state practice or the necessary opinio juris to that effect had not yet been established.

Accordingly, there was 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.

The definition in section 1 was 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 were terrorists. There was nothing in international law which either compelled or persuaded their Lordships to read down the clear terms of the 2000 Act to exempt such persons from the definition in the Act.

Solicitors: Crown Prosecution Service, Counter-Terrorism Division.