A recently published letter signed by eminent KCs and sent to the BBC argues that the BBC should refer to Hamas as terrorists in its coverage for three reasons: firstly, that their actions satisfy the definition of terrorism contained in section 1 of the Terrorism Act 2000; secondly, that the British Government has declared Hamas a proscribed organization under Schedule 2 of the Terrorism Act 2000; and thirdly, that the media’s refusal to frame Hamas as a terrorist organization is somehow legitimating and, in turn resulting in the BBC “stepping into the arena and taking sides as to describe Hamas in more sympathetic terms.”
Terrorism is such a stigmatising and delegitimising label that after almost every act of political violence there is debate of the use of the term ‘terrorism’. Were the January 6th riots terrorism? What about the fire-bombing of an immigration detention centre by a far-right extremist? What about a white supremacist shooting up a synagogue? What about Russia’s actions in Ukraine? The dispute as to the language used by the media in framing this act of political violence is not new. However, there are some particular legal arguments being used in this debate that do require addressing.
The Definition of Terrorism in Section 1
There are several problems with the argument put forward by the KCs. Firstly, while the authors rely upon the definition of terrorism in section 1 of the Terrorism Act 2000, there is no agreed upon definition of terrorism in international law. Therefore, the definition of terrorism in section 1 is not even the end of the legal debate on whether an act is terroristic or not. Indeed, the difficulty in concretely defining terrorism—in legal or other terms—is notorious; so difficult, in fact, that it has been referred to by some commentators as like the quest for the Holy Grail. Consequently, it does not simply follow that because an organisation satisfies the British definition of terrorism that the media should be obliged to refer to it as such.
The definition of terrorism in section 1 of the Terrorism Act 2000 is so broad that it captures the actions of any belligerent in an armed conflict directed against any government, regardless of whether the British government is also hostile towards that government. In short, the British definition makes no distinction between a good freedom fighter and bad terrorist. For instance, any armed group fighting in Syria against the Assad regime, including those groups which the British government gave military and financial assistance to, satisfied the definition in section 1. This has resulted in individuals being prosecuted for terrorist offences upon their return to the UK; however, some trials have also collapsed due to this.
The breadth of the definition of terrorism in Section 1 also potentially captures the actions of several protest groups in the UK. For example, if their actions cause serious damage to property or if they ‘create a serious risk to the health or safety of the public or a section of the public’. Like the issue of returning foreign fighters to the UK, discretion is necessary to prevent perverse application of the section 1 definition. Ultimately, all we can say is that simply because an individual or organisation’s actions satisfy the definition of section 1 is not the end of the matter.
Hamas as a Proscribed Organisation
A stronger argument can be made by virtue of the fact that Hamas is a proscribed organization under Schedule 2 of the Terrorism Act 2000. The KCs’ letter points to BBC ‘Bitesize’ guides where the BBC refers to groups like the IRA and Al Qaeda—which are both proscribed organisations— as terrorist groups and follows this by stating that ‘If the BBC is only declining to use the word “terrorist” in the context of Israel then this is further evidence of partiality (by specifically discriminating in this case only).” However, the BBC also does not refer to the PKK—also a proscribed organisation under Schedule 2— as a terrorist organisation. Instead, it often refers to it as ‘rebels’ here, here, and here. But these articles also state that the PKK are considered terrorist organisations by the EU, US, and UK. Likewise, many BBC articles on Hamas clearly state that the UK has proscribed Hamas.
There are deeper issues, however, with relying on proscription as the basis for arguing that the BBC should refer to Hamas as terrorists. The purpose of proscribing an organisation in Schedule 2 is not to force everybody to henceforth refer to that organisation as a terrorist organisation. The purpose is instead to allow for certain offences to be prosecuted that are contained in section 11—13 of the Terrorism Act 2000. These offences include: membership of a proscribed organisation; support for a proscribed organisation, and the wearing or uniforms or publication of images giving rise to a reasonable suspicion that a person is a supporter or member of a proscribed organisation. There is nothing in Schedule 2 that states that once an organisation is proscribed that it should henceforth be referred to as a terrorist organisation by everybody else.
Legal v Political Frames
This point about the purpose of proscription is, I think, fundamentally important. Lawyers often think that our legal definitions should shape and frame the language other people use in describing acts. There is some sense to this thinking. Whether something is a crime or not is dictated by law, not vibes. But other terms are simply beyond law’s scope or capacity to control. In thinking that law can frame political or media use of the term ‘terrorism’, we are putting the cart before the horse; in reality, it is the other way around and it is political and media use of the term that shapes the law. Again the example of prosecuting overseas fighters returning from Syria is a case in point. It is not the clear and unambiguous wording of section 1 that distinguishes the bad terrorist fighters for Islamic extremist groups from the ‘good’ freedom fighters that joined other pro-democracy militias. It is prosecutorial and Attorney General discretion making this distinction.
None of this is to detract or somehow mitigate the atrocities committed by Hamas on Saturday. Personally, I think it is a legitimate, defensible position for a person to take to call these acts ‘terrorism’ but this is different to me insisting that others should use this term too. An equally legally valid term to use to describe these atrocities would be to refer to them as war crimes. That language of war crimes and emphasis on international humanitarian law would have the further advantage of being a useful lens to also evaluate Israel’s actions in the conflict. But the BBC—and the media generally— also does not use this legal framework as the lens through which to view Hamas’ actions.
Ultimately, when defining terrorism in law—and particularly in domestic law— we should focus primarily on the powers and offences that will be dependent upon this definition. We should be less concerned about whether this definition can and should shape political and media discourse. It cannot. In reality, when we make legal arguments to say that an act should be described as terrorism or individuals should be described as terrorists, we are also making subjective political arguments; we are revealing as much about ourselves as we are about what we are describing. Pleading legality is a vain attempt to cloak this argument in neutrality and terrorism is too loaded and too politically useful a term for law to hope to control.