I've received this email from Martin Kuzmicki:
I thought that you might find the following interesting. The Court of Appeal gave judgement on Tuesday in the case of Regina v F (Terrorism). At present there is only a short summary of the decision in The Times Law Reports. F was charged with possessing documents/records containing information of a kind likely to be useful to a person committing or preparing an act of terrorism (an offence under the Terrorism Act 2000). The Act gives the following definition of 'terrorism' (I produce a summary of the essential points): the use or threat of force (e.g., serious violence against a person or serious property damage, endangering a person's life or creating a serious risk to public health and safety) designed to influence the government or to intimidate the public, and the use or threat of force is made for the purpose of advancing a political, religious or ideological cause.(See these related posts of mine.)
F sought to argue that he had a defence in that the materials in his possession were to assist in the overthrow of the Libyan regime, which was a tyrannical and unrepresentative regime that did not allow for peaceful political change, and the only option open to persons was violent resistance. The Court of Appeal accepted that the Terrorism Act does not distinguish between actions or threats, that amount to terrorism under the Act, taken against 'tyrannical/oppressive' regimes and those of a 'democratic/representative' nature. The court did not allow F's purported defence.
The case brings to the fore a critical question of whether all violent acts (such as those defined in the Act) that are used for a policital purpose should amount to 'terrorism'? For the purposes of this example I exclude what I would consider the paradigm and always prohibited act of intentionally targeting civilians through acts of violence. It should be noted that the Act does not make any distinction in respect of the target of violence.
The State (generally speaking) has an obvious self-interest in proscribing violent acts that are intended to be used against it. However, is all such violence illegitimate and unlawful simply because it is the State (or States) that have a monopoly on the legal definition of terrorism? Should a court (and if not a court who else?) introduce an objective/normative standard into any such definition that does allow for violent response against particular regimes? I would suggest that the definition in the Terrorism Act is over-broad and does not take into account the proper or most important basis of a State's legitimacy: providing for a minimum level of human and civil rights to its population. One of those fundamental rights must surely be a representative democracy and the ability to seek the peaceful and political change of regime.
However, if one lived in a State that denied such participation and opportunity, would violent resistance be acceptable? Can a person in China use violence against the State apparatus for the furtherance of legitimate political change? Or will violent resistance be permitted (and therefore would not come under our normative definition of terrorism) only if the State (by this I mean its agents) acts directly against that person through the use of direct violence or more indirect oppression (e.g., the denial of food, housing and health care that make up the basic elements of State protection)?
One could use Zimbabwe as an example of a regime that would fall down on both counts in respect of being a legitimate government. According to the Court of Appeal's judgement the demolishing of a set of traffic lights (serious property damage) in Harare which was committed as an act of protest against the Mugabe regime could lead to someone's being labelled a terrorist. Moreover, if I was arrested in the United Kingdom and had in my possession a copy of the Harare A-Z that revealed the position of traffic lights and I was planning to send it to my Zimbabwean friend who would use it to find an acceptable target, might I also be guilty of assisting terrorist offences? Surely this example reveals the absurdity of the legislation.
Yet, I can see the very real difficulties in coming to any conclusion as to when violence for political purposes would be legitimate, especially when one goes beyond the easier example of resistance to State violence and begins to enquire whether the intentional denial of voting rights, foodstuffs, housing and health care would make a State lose legitimacy and therefore its ability to set the parameters for what constitutes terrorist activity.