By Al Macina

Even with homicide and counterfeiting on the downslide, at least in my caseload, I have had no lack of Chilean adventure of late.  When not at the office, I have crossed the Andes, discovered southern island penguin reserves, enjoyed the best mussels in my life and followed mountain trails by bicycle to secluded waterfalls.  I have further explored Temuco, from hiking its beautiful, lush rain-forested mountain to sharing a taste of chicha with the old woman who sells this Mapuche apple brew on a downtown corner.  Add another delicious parrillada barbeque with my colleagues and pounding much of the town pavement looking for a new place to live and I can say with certainty that my weekends are packed.

Back at the office, my casework remains at status quo, that is to say, interesting.  A new assignment has widened the scope of my research goals outside of Chilean law.  For a current case, a defense attorney wants me to review foreign and international law sources addressing the nature and definition of terrorism.  I will leave the case details in the confidentiality “lock box,” but I can say that the assignment brings forth a question perhaps few (few attorneys at least) have considered: What is the legal definition of terrorism?  In what law source can it be found?

To summarize Chilean law on the subject, terrorism appears to have two dimensions: an (1) act of crime with (2) fearsome intent.  Apparently almost any felony crime (including highjacking of a public vehicle), or its intent, with the goal to produce fear among a population (or a part of a population) of becoming victim of it or a related crime constitutes terrorism.  Much like murder, the law requires premeditation, shown by a plan to threaten a determined group of people in attempting the crime.  Apart from the public, terrorism can also be found where the crime is shown to have intent to influence the government.

At first glance, the law appears clear.  But consider a serial killer.  For example, one who targets a class of people like women, and justifiably creates fear in a community while in the process of committing a series of murders.  Do his acts constitute terrorism?  Or do murder statutes alone properly serve to classify and punish these crimes?  An ethical prosecutor solves the problem by not charging terrorism where not warranted, but the question remains: What is this thing we call terrorism?

As to international law sources, terrorism is a hot topic, but undefined in treaties and U.N. resolutions likely because its definition is left to the domestic law of the place in which the act occurs.  U.S. law provides some guidance.  As the Foreign Relations title of the U.S: code concisely describes, “the term “terrorism” means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.”  The Immigration title also puts forth that terrorist activity (among other activity) is, “any activity which is unlawful under the laws of the place where it is committed… and involves… highjacking or sabotage [of any vehicle, or] the seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person [of government] to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.”  Here again, kidnapping for ransom fits neatly into this framework.

My new project requires further research of course, both into international and foreign law, as well as into Chilean jurisprudencía (case law).  As one author asserts, shouldn’t we be able to define the activity we so desperately want to defeat?  Alternatively, in the wise words of a Chilean friend, it’s like love: we can’t define it, but we know it when we feel it.  But when the charge could mean an extra ten years in jail, or worse, we should work hard to determine what this crime, or perhaps “aggravation of crime” really is.

Back to Diary Home