Terrorism, the Law, and Human Rights

“Terrorism” is commonly spoken of as though it were a crime category comparable to murder, genocide, or war crimes. In practice, however, it operates very differently. Unlike indictment, criminal charge, or judicial finding, terrorism is most often invoked through designation—an executive or administrative act that names an individual or organization as a threat and triggers extraordinary consequences without the procedural guarantees ordinarily associated with criminal law.

This distinction matters, but not because administrative action is somehow “outside” law. All governmental action is law in the positivist sense: an exercise of authority backed by coercive force. Historically, rulers governed through decree long before the emergence of separated powers or judicial review. What makes the modern distinction between administrative action and adjudication meaningful—and morally consequential—is the emergence of the modern state itself: a political entity that claims a monopoly on the legitimate use of violence while simultaneously binding itself, at least in principle, to legal constraint.

In this framework, administrative law is not supposed to touch the most fundamental and universal rights, above all the right to life. The expectation is not that the executive never acts swiftly, but that the more irreversible and lethal the consequence, the greater the demand for procedural restraint, evidentiary rigor, and accountability. National security may justify secrecy, speed, and preventive measures—but it cannot plausibly justify transforming executive designation into a license to kill. When administrative determination becomes sufficient to authorize lethal force, the distinction between law and command collapses into something far closer to prerogative or fiat than to rule of law.

Designation, then, is not merely descriptive. It is an exercise of power—one that collapses accusation, judgment, and punishment into a single administrative decision. That collapse is not accidental. It reflects a structural choice to privilege discretion, speed, and political flexibility over due process and accountability, even where the consequences rival or exceed those of criminal conviction.

From a human rights perspective, this choice is deeply consequential. Acts commonly described as terrorism—deliberate violence against civilians intended to instill fear and coerce political behavior—are among the most morally repugnant forms of violence. Precisely because of their gravity, they demand the highest standards of legal seriousness. Yet the contemporary terrorism framework treats them as administratively fluid, politically contingent, and legally exceptional. This mismatch is not a peripheral defect; it is the central problem.

Terrorism as Phenomenon — A Cross-Civilizational History

The violence we now associate with terrorism is neither modern nor confined to any single civilization, religion, or culture. While the term itself entered political vocabulary during the French Revolution—initially describing state violence during the Reign of Terror—the underlying phenomenon is far older and far more widespread.

Across civilizations, actors have repeatedly used violence against noncombatants to instill fear and coerce political behavior. Islamic history offers examples such as the Kharijites, who used takfir to justify violence against fellow Muslims, and the Assassins, who employed spectacular public killings to magnify their political impact. Islamic jurisprudence responded not by denying the phenomenon, but by developing doctrines such as hiraba, criminalizing violence that renders public space unsafe.

Comparable patterns appear elsewhere: the Sicarii in Roman Judea, political violence and intimidation in the late Roman Republic, the Thuggee in South Asia. Early modern and colonial history provides further examples often excluded from contemporary terrorism discourse. Indigenous resistance movements, anti-colonial groups, liberation movements, and rebellious populations were routinely labeled “bandits,” “savages,” or existential threats—designations imposed by imperial authorities to justify collective punishment, dispossession, and exterminatory violence.

The historical lesson is twofold. First, violence intended to terrorize civilians is a recurring human phenomenon. Second, the use of labels to delegitimize opponents and legitimize extraordinary coercion is equally ancient. What is new is not the violence, but the attempt to treat “terrorism” as a uniquely grave moral category while denying it the legal discipline such gravity demands.

Scale, Technology, and the Modern Claim to Exceptionalism

Modern terrorism differs from its historical analogues not in intent but in scale and method. Advances in weaponry, transportation, and communication allow small groups—or states—to inflict mass casualties and broadcast fear instantaneously. Civilians are no longer incidental victims; they are often the primary instruments through which political messages are sent.

This reality is frequently invoked to justify exceptional legal treatment. Terrorism is said to be too fast, too networked, too catastrophic for ordinary law. However, modern states confront many forward-looking threats—organized crime, violent conspiracies, cyber warfare, biological risk—without abandoning adjudicative principles or authorizing lethal force through mere administrative designation. The claim that terrorism alone requires exemption from law therefore cannot rest on necessity alone. It rests on exceptionalism.

Terrorism Without Law — and the Choice to Keep It There

Despite decades of debate, there is no universally binding legal definition of terrorism. The United Nations has failed to adopt one, not because the phenomenon is conceptually incoherent, but because it is politically inconvenient. UN Security Council resolutions provide descriptive language and impose obligations, but they deliberately avoid codification. Definitional authority is delegated to states, producing a fragmented and politicized landscape.

This indeterminacy is often defended as pragmatic. But its persistence is better explained by politics than by theory. Terrorism has never been the exclusive domain of non-state actors. Many of the most lethal terrorist organizations emerged with direct or indirect state involvement—through sponsorship, training, ideological patronage, or strategic tolerance.

Al-Qaeda did not arise in a vacuum. Its early networks were forged in a Cold War context in which the United States and its allies supported armed groups against the Soviet Union, while Saudi Salafi ideology provided religious legitimation (“radicalization”). When the geopolitical purpose disappeared, the armed actors did not. There was no off-switch.

This pattern has repeated across regions. States cultivate, tolerate, or instrumentalize violent non-state actors—and later seek to disown them through designation. In this sense, terrorist designation functions less like a legal judgment and more like a political switch: it can be turned on to isolate and destroy an actor, and turned off when that actor becomes useful or unavoidable.

The danger is not only that genuinely violent actors are designated. It is that the same instrument can be—and routinely is—extended to less violent dissenters, separatists, or political opponents, simply by invoking the same undefined category. When designation becomes the trigger for sanctions, coercion, and lethal force, its indeterminacy becomes a feature, not a flaw.

Designation, Lethal Power, and the Collapse of Constraint

Designation is not indictment. It is not a criminal charge. It is not a judicial finding. It is an administrative act—often grounded in statute, but implemented without adversarial testing of evidence or meaningful opportunity for defense. Still, its consequences rival or exceed those of criminal conviction. In the United States and elsewhere, designation has been used to justify targeted killing, including of citizens, without trial—even where arrest was plausibly possible. No other category of wrongdoing permits such a fusion of executive certainty and irreversible force.

Defenders argue that designation enables rapid preventive action. But this argument does not resolve the contradiction; it exposes it. If speed justifies bypassing due process for terrorism, why not for murder, violent conspiracy, or organized crime? The answer is not necessity alone. It is the decision to treat terrorism as a space where ordinary constraints do not apply.

Reversibility and the Political Nature of “Terrorism”

Perhaps the most revealing feature of the designation regime is its reversibility. Individuals and groups are designated as terrorists and later removed—not because their conduct has been judicially reassessed, but because political circumstances have changed.

The case of Ahmed al-Sharaa (Abu Mohammad al-Joulani) illustrates this dynamic. Once designated a terrorist with a bounty on his head, he was later removed from the list after consolidating power in Syria and subsequently received diplomatically. This transformation followed no judicial process, no finding of innocence, and no accounting for past acts. It followed a shift in power.

If the initial designation was justified, it presupposed victims—civilians harmed or terrorized. The removal of the designation entailed no parallel process of accountability, truth-finding, or victim recognition. Past violence was neither disproven nor addressed; it was rendered politically irrelevant.

Some defend this fluidity by invoking peace processes and transitional justice. But transitional justice does not mean erasure. It requires substitutes for prosecution: truth commissions, reparations, acknowledgment, or conditional amnesties. Designation reversals typically provide none. They function as de facto absolution without truth, justice, or reconciliation.

The signal sent is corrosive. Violence against civilians becomes a gamble rather than a crime—one that may ultimately be rewarded if it produces leverage, territory, or strategic value. Accountability becomes contingent not on conduct, but on outcome.

Power, Asymmetry, and the Shielding of State Violence

Designation regimes also ensure that states themselves are almost never subjected to the same scrutiny. By reserving the terrorism label for non-state actors, states construct a moral and legal asymmetry that shields their own conduct—even when it meets the functional criteria used in academic literature to define terrorism: intentional violence against civilians to instill fear and coerce behavior.

The more powerful the actor, the less likely it is to be labeled; the more vulnerable, the more exposed. This asymmetry undermines the universality of human rights and entrenches impunity. It also reveals that terrorism, as operationalized, is not a neutral moral category but a political one.

Taking Terrorism Seriously

Taken together, these dynamics expose a fundamental flaw in the contemporary regime of terrorist designation. It is not a legal judgment oriented toward truth, culpability, or justice. It is a political instrument calibrated to power, utility, and outcome.

Victims disappear when perpetrators become useful. Accountability is suspended when violence succeeds. The state condemns coercion while authorizing its own extrajudicial coercion, often lethal, under the same logic it claims to oppose. When that logic fails, the designation is withdrawn, revealing that what was framed as a moral absolute was always contingent.

If terrorism is to retain any coherent legal or ethical meaning, it must be disentangled from executive whim and returned to law—not law as mere command, but law as constraint. This would require acknowledging that administrative authority has limits; that the right to life cannot hinge on designation; that accountability cannot depend on who prevails. Absent such a reorientation, terrorism will remain what it has become: not a principled condemnation of violence against civilians, but a temporary label affixed to those who lack power, and removed from those who acquire it.