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To misidentify a crime as terrorist risks misdirecting the response to that crime. Anna Talbot and Greg Barns explain why on behalf of the Australian Lawyers Alliance.

WHAT HAPPENED in Nice on Bastille Day last week was awful in the true sense of that word.  But do the actions of Mohamed Lahouaiej-Bouhlel who drove a truck through crowds celebrating the national day, killing 84 and injuring many more, constitute a terrorist attack, as the media and political class widely assumes?

The sad reality is that no one knows yet why this tragedy happened. What was going through the mind of the driver of the truck? What was he trying to achieve? We may never know — he was shot dead to stop him from causing more mayhem. Islamic State have claimed responsibility, but there is no evidence that the attacker had any connections with the terrorist organisation. There is no evidence of any kind that this was a terrorist attack. It may well have been. Without evidence though, it shouldn’t be labelled as such.

Despite the lack of certainty about Lahouaiej-Bouhlel’s motives and his antecedents, reporting of the incident has almost universally presumed that it was a terrorist attack, and that Lahouaiej-Bouhlel was a terrorist. French President Francois Hollande, said it was “obviously a terrorist act”; Australian Prime Minister Malcolm Turnbull, called it a “murderous act of terror”, and most news outlets have reported the event as a terrorist event.

These assumptions are being made despite reports that Lahouaiej-Bouhlel had no links to religion, had never come to the attention to counter-terrorism authorities, and did have a history of petty and violent crime. A neighbour reported that he had been drinking and smoking during the month of Ramadan, suggesting he was not an adherent to Islam, although strict adherence to Islam is certainly not a prerequisite for becoming a terrorist.

The “terrorist” label should not be applied lightly. It should not be applied presumptively. In Nice, however, it has been. And it seems as though it has been in a discriminatory way. The attacker has Tunisian heritage. His name sounds Arabic. Therefore, the logic appears to go, the crime he commits is terrorism.

While the concept of terrorism does not have a universally agreed definition, we all know it when we see it, right?

Wrong. Terrorism is about motivation. A massacre is not a terrorist act without the motivation being clear. The Australian Attorney-General’s Department describes a terrorist act as

“an act, or a threat to commit an act, that is done with the intention to coerce or influence the public or any government by intimidation to advance a political, religious or ideological cause”,

and the act causes damage. Without the intention to coerce or influence, the act is a regular, non-terrorist, crime.

People without terrorist motivations can cause just as much damage. It is the motivation that makes it a terrorist act, not the damage it causes. Labelling something as a terrorist act doesn’t mean it caused more damage than non-terrorist crimes, or that the responses to it will be more effective. There can be appropriate legislative responses to horrific crimes that are not terrorist attacks: former Prime Minister John Howard’s changes to gun laws after the Port Arthur massacre is a good example.

The appropriate responses are different, though, because the motivations are different, and the ways to prevent similar crimes occurring in the future are different. It is unlikely that any amount of monitoring (which forms part of the attempts to prevent terrorist attacks), for example, would have had an impact on the outcome of the Port Arthur massacre, but stricter gun control might have. The legal changes responded to the crime.

To misidentify a crime as terrorist risks misdirecting the response to that crime. The risk factors that gave rise to that crime therefore are not addressed, meaning that any measures introduced in response are likely to be ineffective.

This is not just an academic legal concern. It has real consequences for real people. Hollande has said that France will “strengthen [their] actions in Syria and Iraq” following this attack and that the State of Emergency imposed after the Paris attacks last December will remain in place.

Military action is an extreme response to a crime. It would seem prudent to ensure that it was responding to the crime that actually occurred.

You can follow Anna Talbot on Twitter @annacalbot, Greg Barns @BarnsGreg and Australian Lawyers Alliance @AustLawAlliance.

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This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License

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