Another look at the intent element for the war crime of terrorism

The modern basis of the war crime of terrorism may be found in the terms of article 51(2) of Additional Protocol I (1977) to the Geneva Conventions of 1949, replicated in article 13(2) of Additional Protocol II. The provision forbids attacks carried out for the ‘primary purpose of spreading terror’ among a civilian population. In view of this provision, the judges of the International Criminal Tribunal for the former Yugoslavia have pronounced terrorism to be a crime of ‘specific intent’. In an extension of this reasoning, a Trial Chamber of the Special Court for Sierra Leone has recently held that the crimes of enslavement and militarization of children do not qualify as terrorism, because they were not found to have been committed for the ‘primary purpose of spreading terror’. The aim of this paper is to examine the correctness and limits of the proposition that terrorism is a crime of specific intent. In the context of that inquiry, the Rome Statute is examined for what it is able to contribute to the discussion.