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Russian Legislation and the Struggle Against Terrorism Mikhail P. Kireev * Academy of the Ministry of Internal Affairs Terrorism, terrorists, and terrorist activity these concepts appear in the media practically every day, bringing horror and fear to the population and giv- ing rise to unease and well-founded alarm for our present and our future. Let us try to get an understanding of the position of Russian legislation in the manner in which Russian laws protect the citizen from crimes of a terrorist nature, crimes with terrorist aspects, and terrorism itself, from the criminal-legal standpoint. Objectively speaking, terrorism represents a complex and multifaceted phe- nomenon, the subjects of which infringe in various ways on many legally pro- tected common goods in the pursuit of the most varied goals. This naturally gives rise to difficulties in developing a universal understanding of just what terrorism means. One of the most serious problems is that of defining the criminal-legal con- cept and correctly applying existing laws in the struggle against terrorism. A survey conducted among law enforcement agency personnel (more than 1000 individuals were polled) showed that 31 percent anticipate a stabilization in the level of terrorism, while another 31 percent expect a small rise and 13 percent forecast a significant rise. The data collected evoke concern, since the funda- mental object of the struggle lies in relations of the security of civil society, characterized by stability and protection of those social conditions necessary for the normal activities of the population and the stable functioning of social insti- tutions. At the same time, terrorism creates a threat not only to the security of society, but also to the security of the individual and to the lives and health of * Translated from the Russian by Kelly Robbins. 16

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TERRORISM AND THE LAW 17 people, as well as to the security of the state and the capacity of state institutions to fulfill their duties to society. Of course, the question immediately arises as to the extent to which the actions of law enforcement agencies affect the stabilization of the situation. Among those polled, the overwhelming majority of 70 percent responded that these actions had a partial impact, 21 percent replied on the contrary that there was no such effect, and only 9 percent indicated that stabilization was entirely dependent on the actions of law enforcement. The Criminal Code and the 1998 Federal Law on Combating Terrorism represent the key elements of Russian antiterrorism legislation. The Criminal Code of the Russian Federation defines actions that are considered to be terror- ism or terrorist acts, including the differences between such actions and sabotage or other crimes. It also sets forth the punishments if such actions are committed. The code largely formulates the tasks of law enforcement agencies and intelli- gence services in uncovering, preventing, and suppressing terrorist activity and defining their goals, organizational structures, and means of using the results of preventive, antiterrorist, administrative, procedural, and other activities aimed at fighting terrorism. The correct criminal-legal evaluation of information obtained by law en- forcement agencies is highly significant in increasing the effectiveness and pro- ductivity of the struggle against terrorism. Evidence of this may be found in the results of our research. We shall point out the reasons, in our view, for the unsatisfactory state of the struggle against terrorism. Among the reasons most commonly cited, 24 percent of those surveyed blamed insufficient coordination and 18 percent pointed to a lack of decisiveness on the part of law enforcement officials during decision making. On the whole, the 1996 Criminal Code of the Russian Federation regulates matters of responsibility for terrorism and terrorist acts in a new way. This is connected with certain changes and additions made in the texts of the corre- sponding articles of the Special Section of the code, other changes in many criminal-legal standards and institutions, and reforms in the state legal system of our country. The criminal-legal concept of terrorism is set forth in Article 205 of the Russian Criminal Code. The objective aspect of this crime lies in the perpetra- tion of bombings, arson, or other actions creating a danger of loss of life, signif- icant property damage, or other socially dangerous consequences (an analysis of statistical data shows that 35 percent of terrorist acts involve bombings). The characterization in the new Criminal Code of certain possible consequences of terrorism as "socially dangerous" requires some limiting commentary. Indeed, if the above-mentioned expression were interpreted literally, then any intentional crime committed in the aim of violating societal security would have to be viewed as an act of terrorism. After all, any crime is a socially dangerous action, that is, it entails or threatens to entail socially dangerous con-

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18 HIGH-IMPACT TERRORISM sequences. Furthermore, in such a literal interpretation, the boundary would disap- pear between a deliberately false report of an act of terrorism (Article 207 of the Criminal Code) and a deliberately false report of a crime (deliberately false accu- sation) (Article 306~. In the normative language on terrorism, the law has in mind not any dangerous consequences, but only those for which the danger is compara- ble to the danger of loss of life and significant property damage. In addition, the actions carried out must be capable of facilitating the achievement of terrorist goals as described in Article 205, that is, frightening the population, violating societal security, and influencing the decisions of organs of power. Therefore, the category of "other consequences" might include causing harm to the health of many people, making it impossible for the population to exercise its civil rights and freedoms, causing serious disruptions in the operation of vital services and organs of power, or leading to other such socially dangerous outcomes. At the same time, the new Criminal Code is similar to previous legislation in that it does not require that the above-listed consequences actually occur in order for terrorism to be recognized as a committed crime. Moreover, even if in a case of bombing or arson, the real danger of loss of life, serious property damage, or other such consequences never actually arose due to measures taken, terrorism must be deemed as having been committed formally under Russian legislation. The Criminal Code does not provide an exhaustive list of actions recognized as terrorism. It is supposed that these could include not only single one-time actions (arson, bombing, landslide, destruction of a building, gunfire, contami- nation of a local area, and similar acts, including technological and nuclear ter- rorism), but also continuing actions made up of a number of connected attempts against life, health, or property united by a common plan and goal of frightening the population, violating societal security, or putting pressure on organs of pow- er This element, in our opinion, also differentiates terrorism from other serious comes. An example of this would be campaigns of murder and violence carried out among a population on ethnic, religious, or other lines or group armed attacks and mass murders carried out in such forms and using such weapons, means, and methods as are clearly intended to frighten residents and create panic. Such pogroms and attacks can be viewed as single socially dangerous actions aimed at achieving terroristic goals. It should be emphasized that the goal of affecting decision making by or- gans of power presupposes a striving to influence both organs of state power (including executive, legislative, and judicial branches, as well as both federal and federation-subject organs) and organs of local self-government, through which the people realize the power pertaining to them in accordance with the Constitution of the Russian Federation. In a criminal-legal assessment of infor- mation on facts that might involve the commission of an act of terrorism, it is essential to keep in mind the following circumstances. In its external aspects and in the socially dangerous consequences it pre-

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TERRORISM AND THE LAW 19 sents, terrorism resembles certain other crimes against life and health, societal security, and the security of movement and transportation. This concerns such crimes as negligently causing death or harm to health (Articles 109 and 119 of the Criminal Code of the Russian Federation); violating rules of fire safety (Arti- cle 219) as well as safety rules at atomic power facilities (Article 215), potential- ly explosive sites (Article 217), or mining, construction, or other work sites (Article 216~; violating rules for the storage and use of explosives (Article 218) or use of transportation (Articles 263 and 268~; or handling radioactive materials illegally (Article 220~. However, in the cases listed above, the danger to property or human life arises as a result of the negligence of the guilty party. Terrorism here does not represent an intentional crime. An individual committing an act of terrorism recognizes the societal danger of his actions, foresees the unavoidabil- ity or possibility that socially dangerous consequences will ensue, and hopes for such consequences in order to achieve his goals. Terrorism must also be differentiated from certain intentional crimes that are similar from an objective standpoint, such as the intentional destruction or damage of property by universally dangerous means (Part 2, Article 167), the intentional destruction or damage of military property committed by a perpetra- tor in the course of another military crime (Article 346), or murder committed by universally dangerous means (Article 105, Part 2, Section E). The descriptions of these crimes lack any indication of special terrorist goals. But it is these very goals the violation of societal security, the frightening of the population, and the influencing of decision making by organs of power that are pursued by an individual committing an act of terrorism. The criminal directs his will toward achievement of these goals, and to realize them, he selects the time and appropriate weapons and tools of the crime as well as the situation. As a rule, the terrorist accompanies commission of universally dangerous actions with notification of the authorities and the popula- tion that new bombings, arsons, or similar acts are possible. In this way, he is counting on attaining the terrorist goals that have been set. Even mere reports of possible actions that would create the danger of loss of life, significant property damage, or similar consequences are capable of creating panic among the popu- lation, producing disorder, disrupting the operations of transportation and other enterprises and institutions, and compelling state agencies to take complex and . . expensive preventive measures. It is for this reason that the new Criminal Code classifies as a completed terrorist act even a threat of universally dangerous actions made for terroristic purposes. Furthermore, the making of an intentional false report of an act of terrorism is also deemed to be a crime (Article 207 of the Criminal Code), regardless of the motives and goals of such a report. A footnote to Article 205 of the Criminal Code concerns the absolution from criminal responsibility of individuals who have participated in preparations for a terrorist act. Its text is practically unchanged from that of a footnote to Article

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20 HIGH-IMPACT TERRORISM 213/3 of the 1961 Criminal Code of the Russian Soviet Federated Socialist Re- public. At the same time, the juridical content of this footnote requires new interpretation. This is due to the appearance in the General Section of the Crim- inal Code of standards concerning the voluntary refusal of participants in a crime to carry that crime through to completion. In accordance with Part 2 of Article 31 of the Criminal Code, there are no grounds for assigning criminal responsibil- ity to an individual who has voluntarily and finally declined to carry a crime through to completion. Furthermore, an accomplice to a crime bears no responsi- bility if in addition to voluntarily and finally declining he has also taken all possible measures to prevent the crime. The same would be true for the organiz- er and instigator of the crime if he in fact managed to prevent the criminal attempt (Part 4, Article 31~. It must be emphasized that in this case we are referring not to an absolution of criminal responsibility, but rather to the com- plete absence of grounds for such responsibility. By comparing Article 31 of the Criminal Code and the footnote to Article 205, one may conclude that the referenced footnote refers only to those cases in which the criminal becomes involved in preventing a terrorist act voluntarily and not through pressure or force (for example, by being discovered and held to account) or because an individual stops a planned terrorist act in order to carry it through later at a more convenient time. In other words, the footnote to Article 205 could be applicable only if there is no evidence of a voluntary and final withdrawal from participation in a terrorist act. If not, then Article 31 would apply, stipulating not an absolution of responsibility, but rather an absence of grounds for responsibility. In making a criminal-legal assessment of information on planned or com- pleted bombings, arsons, or similar actions, one must make a distinction between a terrorist act and an act of sabotage. Indeed, along with language on responsibil- ity for terrorism, the new Russian Criminal Code also includes a standard on sabotage. Sabotage is defined as a bombing, arson, or other action aimed at destroying or damaging vital service facilities, enterprises, structures, means of communications, or the transportation infrastructure if committed for the pur- pose of undermining the economic security and defense capability of the Russian Federation (Article 281 of the Criminal Code). Differentiating between the ele- ments involved in these two crimes, terrorism and sabotage, is done by means of objective characteristics (sabotage does not necessarily presuppose the creation of danger of loss of life or serious harm to health, and it does not necessarily require the use of universally dangerous means of harming the above-mentioned facilities) and subjective characteristics (the saboteur pursues certain goals that do not coincide with the goals involved in an act of terrorism). Sabotage is categorized among crimes against the foundations of the consti- tutional structure and state security (Chapter 29 of the Criminal Code). Accord- ing to the law, the fundamental difference between sabotage and a terrorist act lies in the goals of the criminal. A terrorist bombing is directed against societal

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TERRORISM AND THE LAW 21 security and against the population. It is carried out with the aim of disrupting the foundations for the existence and functioning of civil society, the founda- tions for the organization and self-organization of the social sphere. If the goal of the criminal is to attack national (state) security and harm its basic values, in- cluding first of all its economic security and defense capability, criminal law labels the actions as sabotage. It is no accident that the law does not require the act of sabotage to create the threat of loss of life. Indeed, the saboteur achieves his goals not by frightening the population, but primarily by affecting material objects created and functioning in the interests of protecting the country and defending its economic interests. The choice of the target that the criminal aims to destroy or damage is the primary evidence indicative of sabotage-related goals. The Criminal Code lists the following possible targets in this category: facilities providing vital services to the population (heating plants, bakeries, medical and pharmacy establishments, water intake sites, etc.~; other enterprises and structures; radio, telephone, tele- graph, and other communications-related facilities; bridges; roads; means of transportation; and other transport infrastructure-related sites. Further evidence of sabotage-related goals may be found in the choice of the time, place, and specific circumstances of the crime (for example, the commis- sion of a crime during war or danger of war or during a period of economic crisis, and an attempt to undermine Russian sovereignty using these circum- stances). Other evidence may be found in the specific target selected for destruc- tion or damage (for example, a facility that plays a key role in a strategically important economic or vital services sphere). Let us emphasize once more that this sort of case does not require the damage to be caused by universally danger- ous means. The means chosen by the criminal are primarily aimed at harming the economy and military power of Russia. In the course of applying the new Criminal Code of the Russian Federation, a question might arise regarding the possibility of an ideal combination of terror- ism and sabotage, that is, a situation in which the perpetrator fulfilled the re- quirements for committing both crimes in a single action (for example, an action carried out in a zone of internal armed conflict). It seems that the law does not rule out such a possibility. In carrying out his task of weakening Russia's mili- tary potential, the criminal takes a defense-related facility out of commission, choosing to use the most terrifying and universally dangerous means and intend- ing to elicit a certain reaction from the authorities. It should be considered that the law does not rule out the possibility that the criminal may have goals related to both sabotage and terrorism simultaneously. This is possible if, for example, a perpetrator on assignment from a foreign organization and in the aim of undermining the country's economic security takes a strategically important industrial facility out of commission, using means that frighten the population (a powerful explosion) and intending to force the authorities to meet the criminal's individual demands. In such cases, commission

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22 HIGH-IMPACT TERRORISM of such a bombing includes characteristics of both sabotage and terrorism, which means that it would be qualified under two different articles of the Criminal Code of the Russian Federation. When the criminal destroying targets aims to frighten the population so as to diminish Russia's defense capability and its social-moral potential in some man- ner (for example, in conditions of war or armed conflict), then it is a matter only of sabotage-related goals. No additional qualification of the action as terrorism is required. Another circumstance also merits attention. In the majority of instances, both acts of sabotage and acts of terrorism are planned and carried out on the basis of a preliminary agreement among a group of individuals or an organized group. It is no coincidence that the Criminal Code includes the appropriate qual- ifying standards in Parts 2 and 3 of Article 205 and Part 2 of Article 281. Therefore, it is highly likely that a situation could arise in which the goals of individual participants might not coincide. This is possible, for example, if for the purpose of undermining the economic security and defense capability of Russia, the head of a saboteur group plans a bombing to be carried out by another individual unaware of the group leader's true motives. This individual in fact might be pursuing goals linked with frightening the population or other terrorist purposes. In such situations, the actions of each participant should receive an independent criminal-legal evaluation regarding the orientation of their inten- tions. The actions of participants in a bombing must be categorized according to the article on terrorism or on sabotage, depending on the goals established and held by each criminal involved. Examples of terrorism in the political sphere are not found only in univer- sally dangerous actions aimed at influencing the activities of organs of power. Such terrorism can also appear in the form of specific terrorist acts committed for the purpose of halting the political activity of individual persons (Article 277 of the Criminal Code). Serious changes were made in the 1996 Russian Criminal Code standard on responsibility for terrorist acts. These changes primarily involved characteristics of the objective aspect of the crime. According to the new Criminal Code, a terrorist act is considered to have been committed not only in the event that it causes the death of a state or public figure, but also in the case of attempts on the lives of such individuals. Shifting the moment at which a terrorist act is deemed juridically complete to the assassination attempt stage males it possible to apply the maximum measure of punishment to the culprit, including the death penalty, even if the intended victim is not killed (although it is true that a death penalty moratorium is currently in effect in Russia). The list of those potential target individuals who are covered under the crime analyzed above is narrow: the law excludes representatives of organs of power, since responsibility for their murder must fall under Article 295 ("At- tempt on the Life of an Individual Involved in Facilitating Justice or Preliminary

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TERRORISM AND THE LAW 23 Investigations"), Article 317 ("Attempt on the Life of Law Enforcement or Mil- itary Service Personnel"), or Part 2 of Article 105 ("Murder in Connection with Employment in an Official Capacity". The subjective aspect of the terrorist act has now taken on new characteristics as well. A requisite component of this crime is the motive of revenge for the state or public activity of the victim or the goal of halting the victim's state or public activity. The above-mentioned motive and goal may be present simultaneously. The question of types of intent in committing a terrorist act also merits independent evaluation. For Russian criminal law, only direct intent has tradi- tionally been included as a criterion for this crime. This is because the subjective aspect of an act of terrorism for a long time presupposed the mandatory presence of special "counterrevolutionary" or later "anti-Soviet" goals. The presence of this special goal as part of the crime of terrorism understandably narrowed down the possible types of intent, leaving only direct intent. However, the present law also recognizes as an act of terrorism an assassination attempt without any spe- cial goal, or only with the motive of revenge for political activity. Thus, "with regard to causing death to the victim, there can be both direct and indirect intent, as the presence of a motive necessarily presupposes direct intent with regard to the action but not necessarily to the result of that action." The motive can determine the action itself but can be aimed at another result; in that case, indirect intent is possible with regard to the anticipated result of the terrorist act (death). This occurs specifically if out of revenge for political activity, the criminal wishes to harm the health of a state figure, creating the possibility of his death in the process. In the event that death is actually caused, intent must be considered indirect. An expansive approach is lacking in recent doctrinal commentaries regard- ing the concept "state figure." More accurately, emphasis is placed on the cir- cumstance that the figure is primarily an individual who makes decisions, that is, a leader or member of a collegial governing agency influencing the functioning of the state mechanism or a public association, not merely executing but rather forming their policies. At the same time, efforts to place only federation-level figures in this cate- gory are clearly unfounded. Leaders of cities and districts and similar individuals involved in local self-government must be regarded as public figures, and in this capacity they cannot be excluded from the category of potential victims of ter- rorist acts. It should be kept in mind that the new criminal law does not preclude the designation of foreign government officials or figures from international and for- eign public organizations as victims under the article on terrorist acts (Article 277), provided that these persons are conducting their activities in our country in accor- dance with the Constitution of the Russian Federation and Russian legislation. In conclusion, another new legislative enactment also merits attention. It is commonly known that Part 3, Article 12 of the 1996 Criminal Code of the

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24 HIGH-IMPACT TERRORISM Russian Federation sets forth the "real" principle of criminal law activity with regard to actions infringing upon the interests of the Russian Federation. It signifies that Russian criminal law can be applied to a foreign citizen or stateless person who has committed a crime on Russian soil aimed against the interests of our state. This standard is applied in the event that such an individual is not convicted in a foreign country and is subsequently tried in our country. This means that in accordance with the above-outlined principle in our law, foreigners who have committed the following acts could be held criminally re- sponsible: a terrorist act aimed at influencing the decisions of Russian authori- ties (Article 205 of the Criminal Code); sabotage of a Russian military or eco- nomic target located outside the borders of the Russian Federation (Article 281~; a terrorist act against a Russian state or public figure who is temporarily abroad committed in connection with the victim's official activities but in the interests of our country (Article 277~. From this analysis, it is obvious that the struggle against terrorist activity is effective when it is legal, uncompromising, and correctly qualified, that is, dif- ferentiated from other types of crimes that may include elements of terrorization.