1. Definition
     International definition    National and regional definitions  

2. Quantitative studies on the impact of terrorism on judiciaries
     Terrorism and the impact on the balance of power    Court Independence and Counterterrorism    Miller (2017), a new perspective of the relation between terrorism and judicial systems    Terrorism and judges    Terrorism and the judicial structure  

3. The impact of the judiciary on terrorism

4. References

The notion of terrorism is ambiguous because of the absence of an international definition, but it generally refers to the violent actions of individuals or subnational groups against non-fighters in order to pursue a political goal through the propagation of fear. The judicial systems of targeted countries have played a large role in implementing counter-terrorist measures and in condemning suspected terrorists or supporters of terrorist organizations. The political and economic literature is rich on the topic and shows that terrorism impacts the balance of power between the judiciary, the legislative and the executive, but also the popular confidence in the judicial system, the judicial reaction to unconstitutional executive practices, and the decisions of judges. But despite its struggle during the War on Terror, the maintenance of the rule of law has empirically proven to be an effective policy to fight against terrorism.

Definition

International definition

Though terrorism is a largely discussed topic at the international level, there is no universal and comprehensive definition of terrorism. Many treaties, resolutions, and conventions refer to terrorism, but always in a sectoral approach.^[1] They target specific aspects of terrorism, like the financing of terrorism in the 1999 International Convention for the Suppression of the Financing of Terrorism, and provide a framework and orientations while leaving the formal definition of terrorism to the national level. Individuals and officials in international organizations thus developed their own definitions. The UN High Commissioner for Human Rights considered as terrorist any “act[s] of violence that target civilians in the pursuit of political or ideological aims”.^[1] The Security Council went further in 2004 by declaring that terrorism referred to “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a Government or an international organization to do or to abstain from doing any act”^[1] (Resolution 1566). Another example is from the Secretary-General’s High-level Panel on Threats, which qualifies an act as terrorist when “intended to cause death or serious bodily harm to civilians or noncombatants, […] the purpose of such an act, 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”.^[1] In total, 13 sectoral conventions have been elaborated by the UN to fight against terrorism. According to these, the implementation of the UN guidelines are left at the discretion of the state, with a few exceptions of obligatory criminalized acts like the financing of terrorist organizations.  

Another interesting definition is the one from Enders and Sandler in "The Political Economy of Terrorism", stating that “terrorism is the premeditated use or threat to use violence by individuals or subnational groups to obtain a political or social objective through the intimidation of a large audience beyond that of the immediate victims”^[2] because it emphasizes both the organizational characteristic of terrorism and the subnational dimension. However, one loophole of this definition is that it doesn’t specify who the target of the terrorist act is and thus doesn’t differentiate actions against civil persons and actions against the state.

National and regional definitions

The US State Department’s definition is more complete on this issue and defines terrorism in the Title 22 of the United States Code, Section 2656 f(d) as “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents, usually intended to influence an audience”.^[3] By specifying the target, the US State Department includes civilians and non-fighting soldiers but excludes fighting soldiers.

For the first time in 2002, the European Union agreed on a common definition of terrorism,^[4] which mainly focuses on the outcome of an act to qualify it as terrorist. Hence, in European Law, terrorism includes acts that, “given their nature or context, may seriously damage a country or an international organization where committed with the aim of: seriously intimidating a population; or unduly compelling a Government or international organization to perform or abstain from performing any act; or seriously destabilizing or destroying the fundamental political, constitutional, economic or social structures of a country or an international organization”.^[5] This Council Framework Decision 2002/475/JHA was replaced in 2017 by the Directive (EU) 2017/541. France, Germany, Great Britain, Spain and Italy were the only countries to have a national definition of terrorism prior 2002 and, despite this common definition, France and the United Kingdom also kept their national definition in national law. Despite these exceptions, having a common definition gave the European Union a foundation for a common judicial system on terrorism and the possibility to implement common counter-terrorism measures. Following this decision, Eurojust was created in 2002 to fight against terrorism at the European level.

Beside a regional approach, cooperation of judicial systems also happens at the international level. Various agreements have been signed between the European Union and the United States regarding the financing of terrorism, border control, judicial assistance or data base sharing (like PNR Passenger Name Record Data)^[6] and more cooperation is under negotiations.^[7] International cooperation follows the incentives of the United Nations in its 2004 1566 Resolution.^[1]

Quantitative studies on the impact of terrorism on judiciaries

Terrorism and the impact on the balance of power

Measures adopted by states to fight terrorism often flirt with fundamental rights, notably the rights to life and fair trial. The UN Office of Counter Terrorism regularly emphasizes the importance of due process and respect of rule of law despite the war on terror’s use of unorthodox measures like targeted killings, torture, or degrading treatment during inquiries. By doing so, States sometimes happen to violate international agreements like the 1987 Convention against Torture or the 1954 International Covenant on Civil and Political Rights establishing the right to a fair trial in its article 14.^[8] A commonly cited example is the prison of Guantanamo Bay in Cuba aimed at detaining illegal combatants captured by the US army during the War on Terror. Laurel Fletcher et al. conducted a study on detainees in 2008 and reported that more than 56% of their respondents considered their conditions of confinement as abusive. However, no court ruled yet on whether or not the processes of interrogation were conform to the Geneva Convention criteria.^[9]

Terrorism also indirectly impacts judicial systems by holding courts accountable for the maintenance of the balance between civil liberties and national security, for the credibility of justice and for the legitimacy of democratic principles.

Many economic and political quantitative studies have been conducted since the start of the War on Terror in 2001. In a research paper from 2011, Marc Hetherington and Elizabeth Suhay show that in a period of terror threat, Americans are more likely to support national security at the expense of civil liberties, thus agreeing to restrictive reforms such as censorship, introduction of torture and government surveillance.^[10] Those results have been confirmed by a study of Leonie Huddy and Stanley Feldman in 2005 and applied to American politics. They show that facing terrorism, Americans were more likely to support the monitoring and civil-liberties-restrictive reforms of President Bush.^[11]

This study also reflects another trend that has been shown by Solomon Landau et al. in a research from 2004, namely that terror increases the support for strong leadership and a strong executive branch compared to the legislative and judicial ones.^[12] In the United States, this can be explained by the privileged position of the President to move first, move quickly and have the monopoly of information regarding foreign affairs.^[13]

This disturbance of the balance of power in favor of the executive power in times of terrorist threat creates a risk of both cooptation in the judiciary and credibility of courts.

Court Independence and Counterterrorism

The independence of judicial systems varies across countries. In Israel, counter-terrorist executive actions have been regularly blocked by the Supreme Court for violation of the rule of law, including cases of assigned residence, house demolition, separation fence, interrogations and even electoral banning during the 2003 Knesset elections. In a study from 2005, Yigal Mersel shows that the Israel Supreme Court has established herself as the protector of the rule of law even in case of fight against terrorism.^[14] In that spirit, Israeli Courts ruled that one could not detain a suspect for someone else’s actions as long as this suspect is not directly threatening national security, or ruled against the banning of election candidates for alleged support of terrorist organizations. They thus stressed the fundamental notions of proportionality and sufficient proofs, even when national security is at stake.

The judicial branch being the guardian of the security-liberty dilemma, an increase of the support for security measures will discredit its counter-balancing action. Marc Bühlmann and Ruth Kunz showed in 2011 a positive causal link between the independence of the judiciary, defined as fairness and impartiality, and confidence in the judicial system.^[15] However more recent studies show that in times of terrorist threat, this relation can be altered significantly.

Miller (2017), a new perspective of the relation between terrorism and judicial systems

In a research from 2017, Steven Miller showed that terror threats have negative effects on confidence in independent judicial systems.^[16] He defines independent judiciary as a judicial system with three main characteristics: impartiality in the decision-making, decision that are respected and considered as legitimate by the population, and the absence of external pressures. As the guardian of the rule of law and the third party enforcer of the law, the judicial system is threatened by the increased support of the executive power. But Miller hypothesizes that in addition, the judicial system is directly threatened because the combo of terrorist threat and judicial independency results in a decrease of confidence in the judiciary. To confirm or invalidate his hypothesis, Miller uses data from the Global Terrorism Database, the National Consortium for the Study of Terrorism and Responses to terrorism and four European Values Surveys. He uses judicial confidence as the dependent variable and designs two independent macro-level variables: terror threat and the level of judicial independence during the previous five years. Finally, he uses various micro-level control variables such as employment, income, education, age, and gender and draws a regression table. His results show that a combination of terrorist threat and judicial independence are strongly related to a decrease of judicial confidence. However, terrorist threat alone in the absence of judiciary independency has a significant positive effect on judicial confidence. He then concludes that citizens are more likely to be less confident in their judicial system if they are threaten by terrorism and their judiciary is independent, than if they are threaten by terrorism but their judicial system is not dependent. He argues that a plausible explanation is the refusal of th population to grant terrorists are due process.

Miller applies his theory in various countries. Among others, he explains the origin of the confidence gap between the French and the British judicial systems by the different anti-terrorism approaches of both countries.

France opted for a security-oriented approach and reduced the independence of the judicial system in order to reinforce the leadership of the executive as required by the population. It implemented the “état d’urgence” (state of emergency) since 2015, a constitutional arrangement giving temporary extraordinary powers to the executive in case of national security threat.

This cooperation between the national agencies differs from the British approach and its reliance on the courts.^[17] Great Britain has a strong culture of fair process protection, judicial equality and civil liberties. According to Miller’s theory, a terrorist threat in Great Britain should lead to a drop in judicial confidence. Empirical evidences show that despite its 6th place in the World Bank’s ranking for judicial equality, the level of domestic confidence in the British judicial system is comparable to that of a third world country.

Comparably, some Middle Eastern countries like Syria and Egypt have maintained their level of confidence in the judicial system and proved to have an initial high level of both terrorist threat and judicial cooptation.

Miller’s theory can also be applied to the United States. The Supreme Court acknowledged the power of the executive authorities to detain enemy combatants including US citizens in the 2004 court case Hamdi vs. Rumsfeld. But it clearly specified that detention should respect legal conditions and due process. This decision was followed by a drop in the Supreme Court’s approval ratings while the support of the Bush administration remained at its level.^[16] 

Terrorism and judges

An ongoing study conducted by Claude Berrebi and Yaacov Mashmush assesses the impact of terrorism on judges’ decisions in the context of the Israeli-Palestinian conflict.^[18] The results show a 10%-11% increase –everything else constant- of the likelihood of judges’ approval of restraining orders to immediate family members due to terrorism. However, this effect, if significant, is also short-lived and loses its statistical relevance within a week. Moreover, this study also shows that the religion of the perpetrator relative to the judges’ religion matters: “the probability of issuing a restraining order, following a terrorist attack when the defendant’s religion differs from the judge’s religion, increases by 20% relative to the situation in which the respondent and the judge are members of the same religion.”^[18]

Terrorism and the judicial structure

The security-liberty dilemma doesn’t exclusively impact the confidence of the population in the judiciary or the judges’ preferences, but also the structure of the judicial power itself. Under President Bush, the trade-off between civil liberties and national security has been shaken by many attempts to reform the judicial system. After 9.11, President Bush’s administration proposed to create a specific court system for alleged terrorists in which death sentence could be pronounced more easily and constitutional protections could be lifted.^[19] Beyond such direct efforts, President Bush’s use of unilateral tools such as executive orders or directive to act without the Congress’s approval (CIA’s ability to assassinate, military strikes in Afghanistan) have mostly faced a silent Court, raising the questions of the applicability of common law to war and of the importance of rule of law in facing terrorism.^[20]

The impact of the judiciary on terrorism

If terrorism influences the judicial system, the contrary is true as well. Two studies of T. Dragu et al. and Seung-Whan Choi focus on the effectiveness of the rule of law in dampening terrorism and both reached the conclusion that proper rule of law is indeed effective in fighting terrorism.

Choi defines the rule of law as the “coexistence of effective and impartial judicial systems and citizen’s recognition of the law as legitimate”.^[21] Gathering information from the Global Terrorism Data base, the ITERATE database, the International Country Risk Guide and the PRS Group, Choi draws a regression model to show the impact of the rule of law variable (with 10 control variables) on the level of terrorist violence. He also differentiates the impact on domestic terrorism, defined as a terrorist from country A committing a terrorist act in country A, and international terrorism, defined as a terrorist from country A committing a terrorist act in country B. In both case, he argues that the use of violent terrorist tools is more likely to happen when citizens are facing a lack of effective conflict resolution mechanisms. In the absence of rule of law, these mechanisms are taken away from the citizens who are more likely to search justice on their own. The specificities of international terrorism are that terrorists in their home country must have grievances against the foreign country and a lack of trust in their home institutions to deliver proper justice regarding potential violations of domestic rights and liberties.^[21] The results of his regression confirm his hypothesis that there is a causal negative relation between the quality of the rule of law and the terrorist democracy-threatening risk. He concludes that effective rule of law indeed dampens terrorism both domestically and internationally. Those results support President Obama’s policy of strengthening political freedom, social justice and legal framework in order to fight against terrorism, as opposed to President Bush’s strategy.

Following the same idea, Dragu et al. acknowledge that it is hard to restrict executive action against terrorists for legal preoccupations. But they prove through empirical analysis and regression-models that flexibility in the rule of law leads to less security and to less efficiency in the achievement of the executive’s objectives.^[22]

References

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