FACULTY OF LAWLund University
Cherise M. Crowe
An Expansion of International Criminal Law
to include the Crime of Terrorism
Master thesis30 credits
Dr. Iryna Marchuk
Master´s Programme in [2010-2012]
[Semester ]
ContentsSUMMARY 1
ACKNOWLEDGEMENTS 2
ABBREVIATIONS 4
1 INTRODUCTION 51.1 Overview1.2 Structure 1.3 Delimitations
2 DEFINING THE CONCEPT 112.1 What is Terrorism?2.2 The Complexity in Establishing a Definition2.3 Proposed Definitions2.4 Common Elements2.5 Terrorism Definition
3 THE INTERNATIONAL CRIMINAL LAW FRAMEWORK 193.1 Components of International Criminal Law3.2 The Sources of International Criminal Law3.3 Crimes of International Law3.4 Terrorism; A Serious International Crime?
4 TERRORISM WITHIN THE INTERNATIONAL LAW 28 FRAMEWORK
4.1 Terrorism and International Criminal Law4.2 The Rules of International Humanitarian Law4.3 Terrorism within International Humanitarian Law4.4 War Crimes4.5 The Contextual Elements of War Crimes4.6 Prosecution of the Crime of Terror4.7Terrorism as a War Crime: Limitation of the Armed Conflict4.8 Historical Background of Crimes Against Humanity 4.9 Definitions of Crimes Against Humanity4.10 The Contextual Elements of Crimes Against Humanity4.11 Terrorism as a Crime Against Humanity
5 TERRORISM AS AN INTERNATIONAL CRIME 535.1 The Evolution of Terrorism 5.2 Terrorism and the International Criminal Court5.3 A Crime Under Custom5.4 General Assembly Resolutions
5.5 UN Security Resolutions: Pre20015.6 Post September 20015.7 International Treaties5.8 National Laws 5.8.1 United Kingdom Terrorist Legislation 5.8.2 Terrorism Crime and Security Act 2001 5.8.3 Prevention of Terrorism Act 2005 5.8.4 Terrorism Act 2006 5.8.5 Terrorism Legislation in the United States 5.8.6 Patriot Act 5.8.7 Differences in Approach5.9 The Interlocutory Decision of the Special Tribunal of Lebanon5.10 The Applicable Law5.11 Peculiarities of the Definition 5.12 A Discrete Crime Under Custom5.13 The Effect of International Criminal Law
6 CONCLUSION 82
BIBLIOGRAPHY 87
Table of Cases 94
SummaryWe have cause to regret that a legal concept of
terrorism was ever inflicted upon us. The term is
imprecise; it is ambiguous and above all, it serves
no legal purpose.1
The preceding quote by the late R.R. Baxter in 1974, summarises the
international legal community’s view on terrorism. As a meddlesome
concept, that has disrupted international legal norms. Regardless of this
belief, terrorism has become a pervasive concept. The international legal
community can no longer hide behind the Baxter rhetoric. His words have
become archaic in a world now defined by terrorist acts. In a post
September 11th 2001 era terrorist actions have become a permanent fixture
in our world today.
Despite this, the international community has failed to come to terms with
the concept that is terrorism. Disputes over definitions, human rights issues
and public security have impeded constructive discourse and by extension
delayed adequate judicial sanctions and protection.
Interestingly enough the lack of agreement has not hampered terrorism from
developing legal personality. Through national legislation, sanctioning
terrorist acts, and international treaties condemning particular acts as
terrorism has steadily developed its own rules and norms. In addition, UN
General Assembly Declarations denouncing terrorist actions as horrendous
criminal activity and the Security Council Resolutions claiming terrorism as
a threat to international peace and security have added credence to claim
that terrorism is a serious international crime.
Though detractors may argue otherwise, terrorism is now part of customary
law. In trying to combat terrorism the international community has – by 1 Baxter, R.R. A Skeptical Look at the Concept of Terrorism Akron Law Review 7 (1974) 380-387 pp 380
1
default – engineered its growth into a concept with its own legal personality
and norms. The acceptance of the international treaties and the international
condemnation that terrorism is a criminal practice that threatens
international peace and security refutes any claim that this is not true
Terrorism has developed over time and outgrown its traditional treaty roots.
It is a distinctive legal concept within the international law, evidence of its
effect can be seen in politics, law and society. To lament that we must
regret its legal existence is to cling to the past.
2
Acknowledgements I would like to thank my supervisor Dr. Iryna Marchuk for her support and
patience during my thesis and inspiring me during her International
Criminal Law classes. My knowledge on all things ICL is because of your
teaching. You have been a great teacher and I thank you.
Thank you to my family for their continued support during my studies and
to listening to me drone on about all things legal even when they did not
understand.
I would like to say a special thank you to my friend Ms. Annabel Raw.
Thanks so much for all the assistance, insight and motivational talks during
the writing of my thesis. Thank you, thank you, thank you.
3
AbbreviationsATCSA Anti-Terrorism Crime and Security ActCAH Crimes Against HumanityIAC International Armed ConflictIACO International Civil Aviation Orgnization ICC International Criminal CourtICRC International Committee of the Red CrossICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former
Yugoslavia IRA Irish Republican ArmyNIAC Non-International Armed ConflictPTA 2005 Prevention of Terrorism Act 2005 SC Security CouncilSCSL Special Court for Sierra LeoneUN United NationsUNGA United Nations General AssemblyUNSC United Nations Security CouncilUK United KingdomWC War Crimes
4
1 Introduction 1.1 Overview
The terrorism phenomenon is not a new concept in history; acts of violence
have long been used to bend the will of governments.2 The focus on
terrorism as legal entity however, is a more recent concept.3 The earliest
attempt to tackle it as a distinct topic of international law was conducted by
the League of Nations in 1934 and again in 1937.4 Since then terrorism has
plagued the international legal community. Issues ranged from the political
and technical difficulties of establishing a definition, the duty of non-
intervention, state terrorism, the struggle of freedom fighters, state
criminality and the application of the armed forces and the terrorism and
asylum relationship.5 Furthermore, some academics believed that terrorism
was not a distinctive topic of international law with its own concrete legal
norms.6
The inability by the international community to come to an agreement on
the concept of terrorism impeded successful progress in establishing an
accepted definition in international law and by extension successful counter
terrorism measures. The deficiencies in counter terrorism strategies were
made blatantly apparent after the events that took place in the United States
of America on 11th September 2001. The response was a flurry of legal
activity that saw the enactment of national legislation. Though the premise
was to protect society, it infringed civil liberties. It saw leaders of states
2 For an account for acts of violence throughout history see: Saul, B. Defining Terrorism in International Law (2006) Oxford: Oxford University Press and Young R. Defining Terrorism: The Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation, Boston College International & Comparative Law Review 29 (2006) 23-1043 Young R. Defining Terrorism: The Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation, Boston College International & Comparative Law Review 29 (2006) 23-104 pp 27 4 Saul, B The Legal Response of the League of Nations to Terrorism Journal of International Criminal Justice 4 (2006) 78-102 pp 795 Ibid pp 796 Higgins, R. The general international law of terrorism Chp2 in Higgins, R. and Flory, M. (eds) (1997) pp 14 Terrroism and International Law London: Routledge
5
declare that the rules of the game had changed in the fight against
terrorism.7 The response was not surprising; the attacks on the US were a
concern for the international community for two reasons. Firstly, it was not
only the scale of the attack or even that it was highly co-ordinated. It was
whom the attack was directed against, arguably the most powerful nation of
the western world, the United States of America. If such an attack could be
successfully directed at the US, other countries with less power and
influence were susceptible to a similar attack. Secondly, with the attack,
came an assault on the normative framework on other areas of law.8 The
international community realised that it was time to revisit the concept of
terrorism in an effort to resolve the conflict.
One of the proposals was that terrorism had now developed into an
international crime.9 As an international crime, terrorism could be
combated within the strictures and rules of international criminal law. This
proposal had been made before, during the establishment of the ICC.
Unfortunately, this idea was rejected. Terrorism, it was argued, was a
treaty crime prohibited in international law through agreements between
states, rather than, a clear infringement of a norm of international law.10 The
crime however was of serious concern to the international community to be
considered for review under the jurisdiction of the ICC. Viewed severe
enough that it affected the conscious of humanity, to the extent it was
proposed that it should be regarded as a crime against humanity.11
Furthermore, the Security Council declared it a threat to international peace
and security12 and the Special Tribunal of Lebanon had declared it a crime
7 The Guardian: Blair vows to root out extremism Available at : http://www.guardian.co.uk/politics/2005/aug/06/terrorism.july7 Accessed on [01:09:12]8 See mainly Cassese, A. Terrorism is also Disrupting Some Crucial Legal Categories of International Law European Journal of International Law 12 (2001)993-1001, Saul, B. Terrorism and International Criminal Law: Questions of (In)Coherence and (Il)Legitimacy9 Cassese, A. Terrorism as an International Crime Chp10 in Bianchi A. (eds) (2004) Enforcing International Law Norms Against Terrorism Oxford:Hart Publishing pp 213- 225 10 Creegan, E. A Permanent Hybrid Court for Terrorism American University International Law Review 26 (2010) 237-313 pp24411See mainly Proulx. V.J. Rethinking the Jurisdiction of the International Criminal Court in the Post-September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity? American University International Law Review 19 (2004) 1009-1089 12 S/RES/1368 (2001) Preamble to para 1
6
under customary international law.13 In light of these events, the possibility
that terrorism is now a crime under international criminal law should be
seriously considered.
1.2 Structure
The focus of the thesis is to explore the possibility that terrorism can be
expanded under the jurisdiction of international criminal law. After the
preceding introductory chapter, the thesis is divided into 5 sections. Chapter
2 begins with the exploration of the concept of terrorism. Terrorism has
been used to describe various atrocities such as the London underground
bombings in July 2005, the assassination of former Prime Minster of
Lebanon Rafiq Harri on 14th February 2005 and the Bali bombings of
October 2002 and 2005. However, there lacks an understanding on what
terrorism is or what it ought to be. The theoretical difficulties on
establishing a definition will be discussed. Following this there will be an
overview of legal definitions proposed at the Third Conference for the
Unification of Penal Law, the Sixth Conference in Copenhagen the League
of Nations and the United Nations despite the difficulties. These definitions
will be analysed in order to identify the reoccurring elements found in
definitions of terrorism. The results will be used to propose a definition of
terrorism that encompasses these elements.
In order to assess whether terrorism can fit within the parameters of
international criminal law the 3rd chapter assesses its framework. The
chapter begins by discussing the legal sources of ICL, and examines how
each source works to build the framework of the discipline. This is
followed by an explanation of the term ‘a crime of international criminal
law’ and the differences between international crimes and treaty crimes. It
13 Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Special Tribunal for Lebanon 16:02:11 para 85 (‘Decision’)
7
explores further the concept that terrorism is considered a treaty crime or at
least should be regarded as a serious transnational crime.
The fourth chapter assesses two categories of core crimes in international
criminal law. As there has been increased international discussion on the
possibility that terrorism may already qualify as a war crime or a crime
against humanity.14 The first section of the chapter analyses the rules of
international humanitarian law and the provisions that prohibit terrorist acts.
It then briefly discuses the modern development of war crimes and
examines the contextual elements that constitute the crime. Considering the
previous analysis the next section evaluates the possibility of terrorism as a
war crime. It examines the war crime of terror and focuses on the seminal
case of the ICTY in the Prosecutor v Galic. It demonstrates that though,
Galic identifies the crime of which the primary purpose of which is to
spread terror among the civilian population. The contextual elements of war
crimes limit the application terrorism as a war crime and cases like Galic15
concern terrorist acts committed as part of the war, where the prerequisite of
an armed conflict already exists.
The second section of the chapter focuses on crimes against humanity. In
the aftermath of September 11th it has been purported that CAH is the way
forward to prosecute terrorism. 16 This section critically assesses this theory.
It begins with a brief history on the development of the crime followed by a
look at varying definitions. This will be followed by an examination of the
contextual elements of the crime. The definition of terrorism provided by
the author will be applied to contextual elements to establish whether
terrorism can be subsumed under crime against humanity. It will show that
although CAH lack the requirement of an armed conflict. The systematic
14 See mainly Cassese, A. Terrorism is also Disrupting Some Crucial Legal Categories of International Law European Journal of International Law 12 (2001)993-1001 15 See Prosecutor v Radulovic et al decided in May 1997 by a municipal court in Croatia.16See mainly Proulx, V.J. Rethinking the Jurisdiction of the International Criminal Court in the Post-September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity? American University International Law Review 19 (2004) 1009-1089
8
nature of the crime and the state or organisational policy bar many terrorist
acts being considered under the crime.
Chapter 5 analyses the idea that that terrorism is no longer a treaty crime
and has evolved into a pure international crime under customary
international law. Before an analysis of empirical evidence, proving this
hypothesis there will be an examination of the proposal to have terrorism
recognised as an international crime, by studying the establishment of the
ICC. Terrorism was regarded as serious crime that affected the international
community however; it was not included under the jurisdiction of the Court.
It is interesting to note that the exclusion was not because it was not
considered as a crime of custom.17 Rather, the exclusion was the result of a
compromise by delegations who wanted to keep a dissatisfied American
delegation involved in the ICC.18 In addition the there was a lack of
agreement on the definition of the crime, the customary law character of
terrorism was not the issue.19
The chapter then explores terrorism as a crime under custom, though many
academics refute the opinion, the late Antonio Cassese believed that
terrorism had evolved into a crime under custom. Cassese’s theory is
discussed, and his argument that this evolution can be shown through UN
Resolutions, international treaties and national legislation is analysed. The
analysis will firstly begin with the UN General Assembly and its approach
to terrorism. After which the UN Security Council resolutions will be
assessed, these will be divided into ones passed before 2001 and ones after
2001. The analysis will show the progression of terrorism by the UN from
social issue to a crime of international concern. In regards to the national
legislation, the thesis will focus on the United Kingdom and the United
States of America. Both countries have extensive anti-terrorist legislation,
which provides interesting insight on how national jurisdictions view
17 Van der Dyver, J.D. Prosecuting Terrorism in International Tribunals Emroy International Law Review 24 (2010) 528-547 pp 54418 Ibid19 Ibid
9
terrorism. The examination will focus on the Terrorism Act 2000,
Terrorism Crime and Security Act 2001, Prevention of Terrorism Act 2005,
Terrorism Act 2006 and the Patriot Act of the US. Further, there will be an
examination of the Special Tribunal of Lebanon and its decision that
terrorism is now an international crime under custom. This decision only
serves to support the finding on the expansion of international criminal law
to include terrorism as a discrete crime within its jurisdiction. The preceding
discussion will prove that when all the empirical evidence is evaluated it
points towards terrorism as a crime under customary international law. The
final last chapter will recapitulate the arguments and make concluding
remarks.
1.3 Delimitations
The purpose of this thesis is to identify the possibilities of expanding the
scope of International Criminal Law. There will be no in depth focus on the
jurisdiction of the ICC and any practical issues that may or may not arise
from such an expansion. In regards to the Special Tribunal for Lebanon the
focus will be on the Interlocutory Decision that terrorism developed into a
customary crime. There will be no discussion on crimes under Lebanese or
other methods of criminal participation. Finally regarding the analysis of
the national legislation of the United Kingdom and America the focal point
will be the faults with the legislation. There will be no comprehensive study
of human rights issues.
10
2 Defining the Concept2.1 What is Terrorism?
In the American case of Jacobellis v Ohio (1964) concerning the issue of
whether a film was deemed to be pornography, Supreme Court Justice
Potter Stewart stated in his concurring opinion
I shall not today attempt further to define the kinds of
material I understand to be embraced within that shorthand
description, and perhaps I could never succeed in intelligibly
doing so. But I know it when I see it, and the motion picture
involved in this case is not that.20
The exact same sentiment can be applied to terrorism, for many individuals,
legal scholars and politicians alike the concept and or the word remains
frustratingly indefinable. However, like Justice Potter we all claim to know
what terrorism is when we see it. It is an interesting conundrum that
international criminal law finds itself encased. How can such an act be so
widely known but the elements that constitute the act be so disagreed upon?
To the point where any apparent legal framework seems haphazardly
approached. Part of the answer lies within the subjectivity of the concept
and what any individual perceives terrorism to be at any given moment, in
the end it often depends on which side of the fence you deem to stand.
Subjectivity aside the time for an agreed definition could not be more
imperative than today. A definition would not only assist in the states
comprehension of what terrorism is21and it would also ensure that states
adhere to basic human rights standards.
20Jacobelliss v Ohio 378 U.S. 184 (1964) Available at: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0378_0184_ZC1.html Accessed on: [01:06:12]21Young R. Defining Terrorism: The Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation, Boston College International & Comparative Law Review 29 (2006) 23-104 pp 26
11
The purpose of this chapter is to identify these difficulties, examine some
definitions that have been proposed and note the common elements in each.
By assessing the common elements, the author will arrive at an answer of
what terrorism is and produce a definition. This definition should by no
means be taken as a legal one. Rather it should be identified more as a
conceptual definition to identify what elements should be considered when
proposing such a definition.
2.2 The Complexity in Establishing a Definition
Most if not all articles on terrorism always begin with the common line that
as of yet there is still no agreed international definition of terrorism. It is
frequent complaint of many legal scholars, in addition to the argument that
terrorism is without any legal significance.22 It may be to some that no legal
significance exists; however, one cannot deny the immense political
significance the term terrorism has today. In fact many counter terrorism
measures exist both internationally and on the national level. It is for this
reason that the law needs to take a firm step and clearly state what terrorism
is and lay down an international definition. This is why Baxter’s view that
there is no legal significance to the concept of terrorism is no longer valid,
the term is used too widely both in legal and political circles to ignore.
The failure of the international community to clearly define terrorism is
based on two reasons political disagreements and technical issues. Though
the opinions on whether national liberation movements should be identified
as terrorist or not have caused the greatest stumbling block politically, the
technical issues have proven the most difficult. These issues relate to the
constitutive elements that would be included in the crime of terrorism, these
elements are imbued with many diverse nuances and beliefs and finding a
common element to its complex nature has proven difficult.23 In addition to
which many different crimes are put under the banner of terrorism and this
22 Higgins, R. The general international law of terrorism Chp2 in Higgins, R. and Flory, M. (eds) (1997) Terrroism and International Law London: Routledge pp 2823Kolb, R. The Exercise of Criminal Jurisdiction over International Terrorists Chp11 in Bianchi A. (eds) (2004) Enforcing International Law Norms Against Terrorism Oxford: Hart Publishing pp 227-228
12
assortment of various functional different crimes can be confusing.
Terrorism is subjective and whether or not someone’s actions are seen as
such can be debated endlessly depending on where your allegiances are
aligned. In addition to which it must be noted that different cultures of the
world are using the same word terrorism and each country would have its
own take on what the elements should constitute. This is the crux of the
issue at hand, the components that would make up the crime. Any
definition of terrorism must be able to present clearly the unique features
that make up the concept and not leave or include elements that should not
be considered. This is because terrorism is not ‘ordinary crime’ these
crimes are committed with intent to pursue an ideological goal or to bend
the will of governments. ‘Terrorist crime’ is complex and there are major
differences between crimes of terrorism and normal forms of criminality.24
Terrorism is well planned it requires financial support; there must be access
to weaponry, explosives and can in certain cases it is maintained by political
support.25 This makes it so unlike everyday criminal acts, it is a distinct
crime in its own right and as such any response or retaliation will be
different, therefore there needs to be an adequate legal framework, to be
combated.
2.3 Proposed Terrorism Definitions
A good starting point to any definition of terrorism would be to identify
some definitions that have been suggested before. Although conventions
are products of compromise between different states, there are elements that
overlap and indicate that there is a broad conceptual consensus regarding
terrorism as a legal concept.26 These common elements will assist in
arriving at what a large faction of the international community regard as
imperative to the idea of terrorism.
24 Nuotio, K. Terrorism as a Catalyst for the Emergence, Harmonization and Reform of Criminal Law Journal of International Criminal Justice 4 (2006) 998-1016 pp 99925 Ibid26 Young R. Defining Terrorism: The Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation, Boston College International & Comparative Law Review 29 (2006) 23-104 pp 33
13
In 1931 the Third Conference for the Unification of Penal Law at Brussels
proposed terrorism to be
The intentional use of means capable of producing a common
danger that represents an act of terrorism on the part of anyone
making use of crimes against life, liberty or physical integrity
of persons or directed against private or state property with the
purpose of expressing or executing political ideas27
In 1935 at the Sixth Conference in Copenhagen terrorism was defined as
International acts directed against the life, physical integrity,
health or freedom of a head of state or his spouse, or any
person holding the prerogatives of a head of state, as well
as crown princes, members of governments, people enjoying
diplomatic immunity, and members of the constitutional,
legislative or judicial bodies [if the perpetrator creates] a
common danger, or state of terror that might incite a change
or raise an obstacle to the functioning of public bodies or a
disturbance to international relations.28
Though the definition never entered into force the League of Nations,
created a definition in 1937; the Convention for the Prevention and
Punishment of Terrorism Article 1(2) defined terrorism as
criminal acts directed against a State and intended or
calculated to create a state of terror in the minds of
particular persons, or a group of persons or the general
public.
27 Young R. Defining Terrorism: The Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation, Boston College International & Comparative Law Review 29 (2006) 23-104 3528 Ibid pp 35
14
More recent definitions include the Convention on the Suppression of the
Financing of Terrorism. Article 2(a) states that all the acts that are
mentioned in the annex and prohibited in the nine treaties; Article 2(1)(b)
sets out the definition as
Any other act intended to cause death or serious bodily injury
to a civilian, or to any other person not taking an active part
in hostilities in a situation of armed conflict, when the
purpose of such an act, by its nature or context, is to
intimidate a population, or to compel a Government or an
international organization to do or to abstain from doing any
act29
Another definition, though not from a Convention can be sourced in UN
Resolution 1566 mainly paragraph 3 it states as follows
……criminal acts, including against civilians, committed
with the intent to cause death or serious bodily injury, or
taking of hostages, with the purpose to provoke a state of
terror in the general public or in a group of persons or
particular persons, intimidate a population or compel a
government or an international organization to do or to
abstain from doing any act, which constitute offences within
the scope of and as defined in the international conventions
and protocols relating to terrorism, are under no
circumstances justifiable by considerations of a political,
philosophical, ideological, racial, ethnic, religious or other
similar nature . . . .30
2.4 Common Elements
29 International Conventions for the Suppression of the Financing of Terrorism (ICFST) (1999) Article 2(1)(b)30 S.C. Res. 1566 U.N. Doc S/Res/1566 (Oct. 8 2004)
15
One of the first identifiable themes that can be recognised when reading the
definitions is the harm caused. The Third Conference for the Unification of
Penal Law speaks of causing danger against life, liberty or physical integrity
of persons at the Sixth Conference in Copenhagen also mention causing
harm against the life, physical integrity. The threshold for this harm appears
to be that it causes serious bodily injury both the Suppression of Financing
Terrorism and Resolution 1566 mention this level of harm. This idea of
serious bodily harm is mentioned in various national definitions, so it can be
said that the idea that the harm be serious is an ideal held by many.
Who or what the harm is directed against is another recurring theme. The
earliest proposals on what terrorism was, listed a host of individuals that if
the harm was against it would be considered terrorist in nature. Be they
head of state, crown princes or government officials what can be realised
her is that these are private individuals or better stated civilians who are not
taking active part in the hostilities. Attacking civilians is one of the
simplest ways to instil fear into the population; it leaves states vulnerable as
they are not prepared for battle. It appears that it need not be the entire
population but a part of the population would be sufficient.
The intent behind the act usually cites imposition of fear to achieve a
particular purpose. This purpose is usually to coerce or intimidate
governments and/or organisations to refrain from committing certain acts or
to force them not to. This is concept is fairly simple the act must be to
impose demands on the government or organisation. Without this element
there is no purpose to the act other than to create basic disruption.
Though only mentioned in one of the examples shown here there is a new
development in ideas held on terrorism today. It concerns the purpose
behind the act; there must be an ideological reason for the act. This may
be of a political, philosophical, ideological, racial, or religious or any other
nature that may be invoked to justify the act in question. As stated before
16
terrorism is a special type of crime and such an element is needed to
separate terrorism from ‘ordinary crime’ such as organised crime.
2.5 Terrorism Definition
Absence of a definition does not actually mean that international terrorism is
not identifiable. It is here Justice Potter’s words are reinforced again. Do
we know terrorism when we see it? It appears that we do there have been
several themes that we come across when regarding an act as terrorist by
nature.
i. There should be an act of violence
ii. The act should cause physical injury or death to persons or
damage to buildings
iii. The intent of the act must be to coerce a government and or
organisation to do an something or refrain from doing
something
iv. The act must be made towards the civilian population not
taking part in any hostilities
v. The motive or intent behind the crime must have an
ideological, political or religious impetus
In lieu of this the proposed definition being used by the author would read
as follows;
Terrorism is a criminal act of violence intended to cause fear and disruption,
to coerce a population or force a government or any other international
organisation to refrain from doing an act or to force the said organisation or
government to commit an act, with the intention to cause death or serious
bodily injury, towards the civilian population not taking part in the
hostilities. The motive of the said act must have an ideological political or
religious impetus.
17
3 The International Criminal Law Framework
3.1 Components of International Criminal Law
When examining international criminal law one observes two factors. The
idea of a body of law that imposes individual criminal responsibility and
punishes violations through international mechanisms is a relatively recent
concept and international criminal law is a complex and multifaceted body
of law. In the 1950’s George Schwarzenberger noted that there were six
different meanings of the interrelationship of international law and criminal
law.31 However, there was no such concept as an international crime. In his
belief, an international crime put forward the argument that there existed
international criminal law.32 He believed that such a branch of law was not
in existence.33 Today international criminal law is recognised as a distinct
body of law. In fact, Cherif Bassiouni has identified twenty-five different
categories of international crimes.34 The crimes are understood to be ones
that involve behaviour and actions that are in violation of shared norms that
have negatively affected significant international interest. They also
concern lesser interests that cannot be rectified without international
criminalisation, because it involves more than one State due to the means
employed, the nationality of the victims and or the perpetrators.35 The
complexity of ICL stems from the different facets that have been fused
together to achieve its particular values. These facets are drawn from
different legal regimes; international law, national criminal law,
comparative criminal law and procedure, international and regional human
31 Cryer, R. et al An Introduction to International Criminal Procedure (2010) 2nd eds Cambridge: Cambridege University Press pp 432 Ibid33 Ibid34 Ibid35 Ibid
18
rights law.36 Each one of these regimes is a distinct aspect of law in their
own right and have their own scope, values, goals and methods.37
As such ICL structure may lack the coherence of the legal disciplines it
draws its basis from.38 However, the fusion of these disciplines is what
makes the ICL system unique, one that originates from an affiliation
between different parts of this legal discipline and its value orientated
system.39
In an effort to understand the ICL discipline and ascertain whether terrorism
has, the characteristic to become part of its system this chapter explores its
framework. Firstly, it examines the sources of ICL, this will assist in an
understanding on the operation of the ICL structure. The crimes of
international law and the difference between international crimes and treaty
crimes will be explained. After which the discussion will focus on whether
terrorism has developed more into a transnational crime.
3.2 The sources of International Criminal Law
As ICL draws aspects of its regime from international law, its sources are
those found within international law. Both international tribunals and the ad
hoc tribunals generally use these sources. The Statute of the International
Court of Justice lists in Article 38 the sources of international law as
follows:
The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing
rules expressly recognized by the contesting States;
36 Bassiouni, M, C International Criminal Law: Volume I Sources, Subjects and Contents (2008) 3rd eds The Netherlands: Koninklijke Brill NV, Leiden pp 337 Ibid38 Bassiouni, M, C International Criminal Law: Volume I Sources, Subjects and Contents (2008) 3rd eds The Netherlands: Koninklijke Brill NV, Leiden pp 339 Ibid
19
(b) international custom, as evidence of a general practice accepted as
law;
(c) the general principles of law recognized by civilized nations;
Treaty Law According to the Vienna Convention on the Law of Treaties a treaty is a
‘means an international agreement concluded between States in written for
and governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever particular designation.’40
Simply put treaties are written transactions that states who which to
participate show a desire to be bound by the content of the agreement.
Customary LawCustom is made up of two schools of thought usus or diuturnitas known as
State practice and opinio juris which is the general practice and the opinion
of states. It is not enough to say that once these elements are identified that
custom is created, certain perquisites must be satisfied. Firstly, in regards to
State practice it is understood that the practice must be extensive and
uniformed.41 Though the conformity does not need to be strictly adhered
too. In regards to the opinion of States, they must believe that the action is
obligatory, without such a requirement a customary rule cannot emerge. As
noted in the North Sea Continental Shelf case
‘…in order to achieve this result, two conditions must
be fulfilled. Not only must the acts concerned amount to
a settled practice, but they must also be such, or be carried
out in such a way, as t o be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of
law requiring it. The need for such a belief, i.e., the existence
of a subjective element, is implicit in the very notion of
40 Vienna Convention on the Law of Treaties Part I Article 2 (a)41 ICJ Reports of Judgments Advisory Opinions and Orders, North Sea Continental Shelf Case 1969 pp 43 para 74
20
the opinio juris sive necessitatis. The States concerned must
therefore feel that they are conforming to what amounts to a
legal obligation. 42
This case shows that it is not just enough to say that there is a customary
rule, which exists to support one’s argument. There must be a belief by
states that their conduct has crystallised in a law or is on the verge of
becoming part of law. In addition, the acceptance or rejection of the said
conduct must be taken into account. It is for these reasons that a reliance on
custom as a legal indicator of norms may be regarded critically. However,
far from being out the door there has been resurgence in the use of custom.
The advent of the international criminal tribunals has seen the reliance on
custom as an integral element to decisions handed down by the tribunals. As
the discipline of ICL is in its infancy many of the questions presented to
tribunals are ones being adjudicated for the first time. As such there is a
heavy reliance of customary law in international tribunals.
General Principles of Law
Though to date neither the International Court of Justice nor the Permanent
Court have made a decision based on a general principle of law43 they often
provide a useful legal source for the international criminal court and the ad
hoc tribunals. The general principles are used when there is no applicable
rule of law to either support or dismiss a particular legal claim; this is
known as a non liquet. The general principles are obtained from assessing
different national legal systems. It should be noted that Article 38 states
that the law should be taken from civilised countries; this should be taken in
the context of its time, when the Convention was drafted this was more to
ensure that only legal systems that were developed were to be included.44
Today it would appear that the systems that would be address are the major
legal systems of the world. Once the systems are examined the court will
42 Ibid pp44 para 7743 Thirlway, H. The Sources of International Law Chp 4 in Evans, M, D. (eds) (2010) The Sources of International Law Oxford: Oxford University Press pp 108-10944 Ibid pp 109
21
try to find a common approach and once one is found this would be enough
to determine a general principle exists. It should be noted that the reliance
on general principles has come under criticism, for two reasons: (i) which
systems should be examined and (ii) an over reliance on national systems to
assist with interpreting international law. It was noted in the case of
Furundzija that when using this type of legislation one should not solely
depend on major legal systems of the world but use varied principles of
legal institutions common to all legal systems.45 Furthermore, where the
ICC is concerned they are to only apply general principles if treaty law or
customary law do not provide a suitable answer.46 Thus where international
criminal law is considered though an examination of national law is allowed
and is consistently used to fill in gaps in the law that may occur, it is
important to remember that national principles are just that, national
decisions or laws reflective of a state’s domestic politics. As such, any
reasoning gained from national legislation should not overshadow the
international perspective needed when assessing international criminal law
rules.
Judicial Decisions and Scholarly WritingsAmong the sources of international law, a clear differentiation is made
between treaties, custom, general principles of law and judicial decisions
and teachings. These are considered to be subsidiary sources, whereas the
other three are formal sources. The reason for this is simple, because
neither courts of law nor legal scholars create law, their decisions on legal
matters and writings on the law are to assist in making matters clearer.
Furthermore any judicial decision or legal writing made by an individual
judge or legal scholar will never say that what has been stated is law
because they indicated it but rather because it was gained from one of the
general principles of international law.47 In the case of judicial decisions,
the Ad hoc tribunals have often followed their earlier decisions and those of
other tribunals. Though as a rule they are not bound by them, they must 45 Prosecutor v Furundzija (Trial judgment), IT-95-17/1-T ICTY 10:12:98 para. 17846 Cryer, R. et al An Introduction to International Criminal Procedure (2010) 2nd eds Cambridge: Cambridege University Press pp 1247 Thirlway, H. The Sources of International Law Chp 4 in Evans, M, D. (eds) (2010) pp110 The Sources of International Law Oxford: Oxford University Press
22
however follow decisions of the Appeals Chamber. The highest court to set
precedent it would seem would be the ICJ however the Court has stated that
they are not in the nature of binding precedents.48
3.3 Crimes of International Law
At present International Criminal Law provides a distinction between core
crimes also known as international or supranational crimes and treaty
crimes. The core crimes are listed as genocide, war crimes, crimes against
humanity and aggression. Treaty crimes are considered to be grave
breaches of the 1949 Geneva Conventions and Protocol 1, the terrorism
conventions, Article 3(1) of the 1988 Drug trafficking Convention, Article 4
of the Torture Convention, crimes against diplomats and apartheid. There is
a noted difference in these crimes, international crimes are considered as
violations of international customary regulations.49 These rules are
considered important by the entire international community and are binding
on all States and individuals. In addition, the crimes are also subject to
universal jurisdiction.50 As such under international law the alleged
perpetrators may, potentially be prosecuted and punished by any state in
spite of any territorial or nationality link with the perpetrator. If the
individual responsible for the crime acted in an official capacity, the state
who the individual has performed the act for is prohibited from claiming
immunity.51 Unless the state official is a head of state or diplomatic agent
and still serving by which he would have complete personal immunity.52 By
contrast treaty crimes are those crimes which states are obliged to proscribe
under national law as criminal offences and cooperate with other state
48 Ibid49 Arnold, R. The ICC as a New Instrument for Repressing Terrorism (2004) New York: Transnational Publishers, Inc pp 5950 Resolution on Universal Criminal Jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes Para 3(a)Available at http://www.idi-iil.org/idiE/resolutionsE/2005_kra_03_en.pdf Accessed on 01:06:13, Article 8 of the ILCs Draft Code of Crimes against the Peace and Security of Mankind also provides for universal jurisdiction with respect to genocide, crimes against humanity and war crimes. The phrase ‘irrespective of where or by whom those crimes were committed’ is used in the first provision of the article to avoid any doubt as to the existence of universal jurisdiction for those crimes.51 For more on immunities see Chp 21 in Cryer, R. et al An Introduction to International Criminal Procedure (2010) 2nd eds Cambridge: Cambridege University Press52 Ibid
23
parties with regard to their investigation and punishment. Furthermore
treaty crimes are only considered binding on the States that are party to the
treaty, thus not under universal jurisdiction.53
3.4 Terrorism: A Serious Transnational Crime?
This differentiation between the elements of international crimes and treaty
crimes is essentially, why terrorism is regarded as a treaty crime. According
to the literature on ICL terrorism lacks the international character required
to be considered a true international crime. It should be regarded as more a
national crime that has some international elements within its personality.
As Bassiouni has identified; the penal aspects of ICL have are drawn from
two aspects of law that have converged and developed.54 These are the
criminal aspects of international law (substantive international criminal law)
and the international aspects of national criminal law.55 Substantive
international criminal law comprises international crimes, and elements of
criminal responsibility.56 The international aspects of national law include
extraterritorial jurisdictional norms, conflicts of criminal jurisdiction
between states and between a state and an international legal organ and the
international sources of law applicable to modalities of international
cooperation in penal matters or the indirect enforcements system.57 These
are found in multilateral and bilateral treaties, customary international law
and in national norms.
Terrorism by contrast is only legislated at the international level because
such acts can at times cross over international borders. Furthermore, as of
yet the crime of terrorism carries with it no form of universal jurisdiction. It
has been and is still regarded as a crime under and combated by national
legislation. In addition it is not considered to have attained customary
53 Arnold, R. The ICC as a New Instrument for Repressing Terrorism (2004) New York: Transnational Publishers, Inc pp5954 Bassiouni, M, C International Criminal Law: Volume I Sources, Subjects and Contents (2008) 3rd eds The Netherlands: Koninklijke Brill NV, Leiden pp 555 Arnold, R. The ICC as a New Instrument for Repressing Terrorism (2004) New York: Transnational Publishers, Inc pp5856 Ibid57 Ibid
24
international law status. Though terrorist crimes are at times perpetrated
beyond national borders, and increased international interest has produced
international conventions to combat the growing trend, for some this not
enough to develop into a true international crime. Hence the reason for
terrorism being regarded as a crime more suited under transnational law.
Transnational criminal law is used to describe criminal acts that go
beyond national borders and violate the laws of many different states and
impact on other countries.58 To put simply transnational crime describes
illegal acts that have an actual or potential trans-boundary effect of national
and international concern.59 Regarding terrorism as a transnational crime
effectively means that in spite of the international aspect of the crime it only
causes issues for the international community to the extent that they feel it
necessary to co-operate to combat the crime. The conventions that have
emerged to combat such activity are thus a by product of this cooperation.
These conventions exist not because terrorism is a violation of a norm of the
international community but rather an agreement of States60 to work at
combating the crime within their national legislation. The suppression
conventions as they are they commonly called; are a group of conventions
that in their own way each legislate against the crime of terrorism, as
Nadelmann stated
International prohibition regimes are intended to minimise or
eliminate the potential havens from which certain crimes can
be committed and to which criminals can flee to escape
prosecution and punishment. They provide an element of
standardisation to co-operation among governments that have
few other law enforcement concerns in common. And they
create and expectation of co-operation that governments
challenge at the cost of some international embarrassment.61
58 Boister, N. Transnational Criminal Law? European Journal of International Law, 5 (2003) 953-976 pp 95459 Ibid60 Creegan, E. A Permanent Hybrid Court for Terrorism American University Law Review 26 (2010) 237-313 pp24461 Boister, N. Transnational Criminal Law? European Journal of International Law, 5 (2003) 953-976 pp 954
25
From this statement, it would appear that the prohibition regimes are a
separate system from international criminal law crimes. Though they are
regarded as part of the international criminal law system they are in essence
not part of international criminal law stricto sensu. The crime of terrorism
is thus seen as more of a common crime that affects international concern.
In spite of the fact that many terrorist acts cross international borders,
threaten international security, national governments and take the lives of
many individuals not involved in hostilities. It appears that terrorism
though regarded as crime of a serious nature, has not yet achieved the
level of respect given to international crimes. This view appears to be
based on the fact that any charges for such acts terrorism are done at the
national level. In fact some of the arguments put forward imply that its
international character is more of a per chance outcome and that its overall
personality is national. Considering however, that a large majority of States
have signed and ratified the Suppression Conventions arguably it should be
said that through these Conventions terrorism has achieved significant
international interest, and achieved international credibility.
26
4 The Existence of Terrorism Within the International Law Framework
4.1 Terrorism and International Criminal LawAs mentioned previously the four core crimes are genocide, war crimes,
crimes against humanity and aggression. However, there are only two
crimes where terrorism is specifically mentioned, war crimes and crimes
against humanity. These will be the two core crimes explored here. There
have been suggestions that the crime of terrorism should be tried under the
scope of war crimes or crimes against humanity.62 This raises two important
questions, can it be done and is it wise to do so? Both these international
crimes have particular prerequisites that make committing such acts a crime.
These will be analysed in order to ascertain whether the elements that
constitute terrorism fit into these parameters. This is the first factor in
trying to determine if terrorism can be accommodated within international
criminal law. Is it better suited as a sub crime under already established
principles or is it an international crime within its own right? It is
questionable whether in trying to fit them within the scope of the crimes that
in some manner established concepts of international criminal crimes are
maligned.
4.2 The Rules of International Humanitarian Law
Any discussion on war crimes must begin with an examination of the rules
of International Humanitarian Law (IHL). War crimes are inextricably
linked to IHL, its main tenets patterned after long standing principles of
IHL. The law of IHL encompasses the rules of international law, which
regulate the conduct of individuals civilian or military, wounded or active in
62 Cassese, A. Terrorism is also Disrupting Some Crucial Legal Categories of International Law European Journal of International Law 12 (2001)993-1001 pp 994, It was noted during the Rome Conference that Algeria, India, Sri-Lanka and Turkey supported the idea for international terrorism to be under the jurisdiction of the ICC under the heading crimes of humanity.
27
international armed conflicts.63 Thus unlike human rights law, which
applies in times of peace, IHL is the law applied during times of war to
assist in alleviating the destruction that war causes on all individuals (no
matter whom they are), the infrastructure and the environment. IHL
addresses the violations of the laws and customs of war. Though customs
regulating warfare have been around for centuries, modern codification
originated with the concepts laid down by Francis Lieber in his manual and
Henri Dunant’s book ‘A memory for Solferino.’64 These ideals developed
into what is now regarded as the legal sources of IHL. They are often
divided into Geneva Law and Hague Law aptly named after the cities where
each was initially codified. Geneva law consists of four conventions the
main purpose of which is to protect military personnel who are no longer
taking an active part in the hostilities.65 The Geneva Conventions are
considered internationally binding on all states and have received universal
participation. Hague Law regulates the responsibilities of individuals in the
performance of military operations, with an end result of limiting the impact
felt. The Hague Conventions are binding not only to the contracting states
but are now considered as part of customary international law. In addition
to these treaties there are also the three Additional Protocols to the Geneva
Conventions the purpose of which is to further develop the rules contained
in the Geneva Laws of 1949 and parts of The Hague Law of 1907. These
conventions contain the main principles of IHL known as distinction,
proportionality and protection. Distinction relates to the parties of the
conflict, who must always discern between military objectives and the
civilian population.66 In addition, attacks should only be made towards the
63 Greenwood, C. Historical Developments and Legal Basis in The Handbook of International Humanitarian Law 2nd eds edited Fleck, D pp 1164 See Greenwood, C. Historical Developments and Legal Basis in The Handbook of International Humanitarian Law 2nd eds edited Fleck, D for a historical development on international humanitarian law pp 15-2765These are: Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Geneva Convention II for the Amelioration of the Condition of the Wounded, Sick Shipwrecked Members of Armed Forces at Sea; Geneva Convention III Concerning the Treatment of Prisoners of War; Geneva Convention IV Concerning the Protection of Civilian Persons in Time of War66 Additional Protocol I 1977, Articles 48 and 52(2)
28
former. This follows into the second point of proportionality.67 When
attacking the individual must ensure that collateral, damage is minimal and
any attack that would cause undue or unnecessary civilian damage should
not be attempted. Finally, protection relates to the care of individuals under
the authority of the enemy, both combatants and civilians are entitled to
humane treatment. This also includes former combatants such as prisoners
and those rendered hors de combat.
4.3 Terrorism within International Humanitarian Law
Terrorism is not considered as one of the grave breaches of IHL however, it
is expressly prohibited in particular articles of the Geneva Conventions and
its Additional Protocols:-68
Article 33 of the 1949 IV GC – No protected person may be
punished for an offence he or she has not personally committed.
Collective penalties and likewise all measures of intimidation or
terrorism are prohibited.
Article 51(2) AP I – The civilian population as such, as well as
individual civilians, shall not be the object of attack. Acts or threats
of violence the primary purpose of which is to spread terror among
civilian population are prohibited.
Article 4 (2) of Protocol II – Without prejudice to the generality of
the foregoing, the following acts against persons referred to in
paragraph 1 shall remain prohibited at any time and in any place
whatsoever… (d) acts of terrorism.
Article 13 AP II – The civilian population as such, as well as
individual civilians, shall not be the object of attack. Acts or threats
of violence the primary purpose of which is to spread terror among
the civilian population are prohibited.
67 Additional Protocol I 1977 Article 51(5)(b) 68 Arnold, R. The ICC as a New Instrument for Repressing Terrorism (2004) New York: Transnational Publishers, Inc pp 69
29
A closer examination of each prohibition garners a greater understanding of
the treatment of terrorism within IHL. The scope of article 33 is narrow; it
is concerned with the prohibition of terror in regards to upholding public
order in an occupied territory. Its purpose is to guard protected persons
from terrorist acts which are often used to suppress the civilian population
from resisting. This is not surprising considering that article 33 is draw
from Article 50 of the 1907 Hague Regulations. Concerned with the
protection of civilian population against hostilities, the scope of article 51(2)
of Additional Protocol I and Additional is more expansive. It is rooted in
the rules of distinction and military necessity. As mentioned previously the
principle of distinction requires that states differentiate between their targets
i.e. combatants and military objectives and non- combatants and civilians
any attack should only be directed towards the first group. Military
necessity refers to the type of force used during the attack. It should be,
directed towards military objectives and used towards an end of complete or
partial submission of the enemy with as little time, loss of life and
resources.69 As such, it prohibits acts of terrorism intended to spread fear
amongst the civilian population and threats perpetrated for the same
purpose. The scope of Additional Protocol 4(2) (d) covers not only acts
against the civilian population but it also includes acts against installations
that would cause victims terror.
It appears that terms terrorism and terror when used within the context of
IHL appear to be interchangeable70 and in essence ban the same type of
conduct. The recurring theme within the articles appears to be that a
certain type of violence is understood to be terrorist in nature and this type
of violence is illegal when directed against civilians. The scope of the
prohibitions however, only covers acts purposely intended to cause terror
and do not include acts of an incidental nature or terror that is a by-product
of the war. This suggests that surely an act of violence even if it is
69 Additional Protocol I 1977 Article 52 (2)70 Arnold, R. The ICC as a New Instrument for Repressing Terrorism (2004) New York: Transnational Publishers, Inc pp 73
30
considered to be terrorist would be in keeping with the rules of IHL if its
sole objective is to terrorise a military object.
4.4 War Crimes
A modern development on war crimes begins with the establishment of the
Nuremberg Charter and the Tribunal. The purpose of which was to
prosecute the former Axis Power for the atrocities at the end of World War
II. The IMT defined war crimes under Article 6 (b) of its statue as
namely, violations of the laws or customs of war.
Such violations shall include, but not be limited to,
murder, ill-treatment or deportation to slave labor
or for any other purpose of civilian population of or
in occupied territory, murder or ill-treatment of
prisoners of war or persons on the seas, killing of
hostages, plunder of public or private property, wanton
destruction of cities, towns or villages, or devastation
not justified by military necessity;71
The definition embraces many of the ideologies laid down in IHL, though
arguably the rules were already considered part of custom. The Tribunal
nevertheless gave structure to the rules and developed the framework of war
crimes that would become the foundation for future tribunals. Under the
Rome Statute war crimes are grave breaches of the Geneva Conventions,
other serious violations of the laws and customs applicable in international
armed conflict, within the established framework of international law, in
conjunction with the enumerated acts listed in the statute. In situations of
armed conflict not of an international character, serious violations of
Common Article 3 consisting of the enumerated acts committed against the
identified individuals72 are also considered war crimes.
71 The 1945 Charter of the International Military Tribunal Available at http://avalon.law.yale.edu/imt/imtconst.asp Accessed on [01:05:12] 72 The Rome Statute lists these individuals as persons taking no active part in the hostilities,
31
Under the statute of the ICTY though there is no cumulative definition of
war crimes per se the Tribunal has jurisdiction over persons who commit
grave breaches of the Geneva Conventions of 1949 under article 2 and
jurisdiction over individuals who violate the laws and customs of war.
Under the ICTR whose focus is internal armed conflict serious violations,
war crimes are governed under Common Article 3 and Additional Protocol
II of 1977.73
4.5 The Contextual Elements of War Crimes
The main elements of War Crimes are:
1. Armed Conflict
2. Nexus to an Armed Conflict
3. Protected Status
4. Mens Rea
Armed Conflict
International Humanitarian law legally recognises two types of armed
conflicts.74 International armed conflicts and non-international armed
conflict. IAC are defined by two or more opposing states, i.e. state-to-state
conflict involving the use of force.75 Non-international armed conflicts are
understood to be a confrontation of prolonged violence between the
government authorities and organised armed forces or between different
belligerent groups who do not act on behalf of the government, within the
national territory, which reaches the degree of armed confrontation or civil
war.76
including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause73 Statute of the International Criminal Tribunal for Rwanda, January 2010 Article 4 74 How is the Term “Armed Conflict” Defined in International Humanitarian Law? International Committee of the Red Cross (ICRC) Opinion Paper, March 2008 Available at: www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf Accessed on 13:07:1375 United Nations Charter 1945 Article 2(4)76 Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. Article 3
32
Nexus between Conduct and Conflict
According to the ICC Elements of Crimes implicit in a war crime is that the
conduct “took place in the context of and was associated with an armed
conflict”.77 This point was elaborated by the ICTY Trial Chamber (who
considered its finding unimpeachable) in the case of Kunarac.78 The
Chamber reasoned that the character of a war crime was dependent upon the
environment i.e. the conflict in which it was committed. In addition, the
existence of the armed conflict must at the very minimum, be of a
substantial part of the individual’s capability, decision, the manner and the
purpose to commit the crime.79
Victims and Protected Persons
The acts that are considered to amount to war crimes must be directed
against civilians, the entire population need not be civilian, but
predominantly civilian.80 It is important that the victims of the crime do not
take and active part in the hostilities. If they do take, part in the hostilities at
any point they lose their status as victims immediately and are considered as
a military target.81 Victims also include protected persons and those who are
hors de combat. According to Common Article 3 these are persons who are
not taking an active part in the hostilities, including members of armed
forces who have laid down their arms and those placed ' hors de combat ' by
sickness, wounds, detention, or any other cause.
Mental Element
The mental element of the war crime consists of the intent and the
knowledge of the perpetrator at the time of committing the attack.82 The
77The ICC Elements of Crimes Available on: http://www1.umn.edu/humanrts/instree/iccelementsofcrimes.html Accessed [23:06:12]78 Prosecutor v Dragoljub Kurnac, Radomir Kovac and Zoran Vukovic (Appeal Judgment) IT-96-23 & IT-96-23/ 1-A ICTY 12:06:12 para 5479 Ibid para 5480 Ibid para 9081 Additional Protocol I of 1977 Article 51(3) 82The ICC Elements of Crimes Available on:
33
ICC Elements of Crimes advised only requirement needed is the awareness
of the factual circumstances that established the existence of an armed
conflict that is implicit in the terms “took place in the context of and was
associated with”.83 Effectively this means that the perpetrator of the crime
needs only to be aware that there is an armed conflict and at least have an
awareness of the protected status of the person.
4.6 Prosecution of the Crime of Terror
Terrorist acts during war are not recent concept, such acts have been
documented in earlier wars,84 and there have been previous convictions for
terrorist crimes.85 Furthermore, as noted in the foregoing IHL does prohibit
acts of terrorism conducted during war. Arguably, it can be considered a
sub category of war crimes. Much of the modern development of war crime
terrorism has been advanced by the ICTY, which has added to the
understanding of the prohibition of terrorism during armed conflict.
One case in particular is the case of the Prosecutor v Stanislav Galic. The
Trial Chamber found Galic guilty on the count of the violations of the laws
or customs of war (acts of violence the primary purpose of which is to
spread terror among the civilian population as set forth in Article 51 of
Additional Protocol I to the Geneva Conventions of 1949) under Article 3 of
the Statute.86 The court defined the material and mental elements of the
crime of terror within the meaning of Article 51(2) of Additional Protocol I.
This constituted (i).Acts of violence directed against the civilian population
or individual civilians not taking direct part in hostilities causing death or
serious injury to body or health within the civilian population. (ii). The
offender wilfully made the civilian population or individual civilians not
taking direct part in hostilities the object of those acts of violence. (iii). The
above offence was committed with the primary purpose of spreading terror
http://www1.umn.edu/humanrts/instree/iccelementsofcrimes.html Accessed [23:06:12]83Ibid84 Prosecutor v Stanilav Galic (Trial Judgement and Opinion) IT-98-29-T ICTY 05:12:03para 114- 118 85 Ibid86 Prosecutor v Stanilav Galic (Trial Judgement and Opinion) IT-98-29-T ICTY 05:12:03 para 769
34
among the civilian population.87 The crime of terror has the same legal
elements as the crime of attack on civilians. Included with this is an
additional mental element requiring that the main purpose of the act to be
spreading terror among the civilian population. Thus as noted by the
Chamber in Galic, the Prosecution is required to prove not only that the
Accused accepted the likelihood that terror would result from the illegal acts
–or, in other words that he was aware of the possibility that terror would
result-but that that was the result he specifically intended.88
The reasoning in Galic identified that terror against the civilian population
was a crime under customary international law. The Majority advised that
they took no position on whether a customary basis existed for a crime of
terror.89 However, their review of the law has been argued to be meticulous
enough to satisfy a customary law analysis.90 The Appeals Chamber upheld
the analysis by the Trial Chamber and stated that the Protocols did not
contain new principles rather they codified the prohibition of attacks on the
civilian population.91 They were based on the principles of distinction and
protection, which have a long history in international humanitarian law.92
According to the Appeals Chamber the principles were the basic foundation
of international humanitarian law and constituted ‘intransgressible
principles of international customary law.’93 The Chamber’s judgement that
acts of terror against the civilian population could amount to a war crime
and additionally that it attained customary status is not surprising. As noted
in the forgoing it was not the first time such acts were deemed war crimes.
In addition, the statutes of ad hoc tribunals such as the ICTR and the Special
Court of Sierra Leone both have jurisdiction over crimes of international
humanitarian law of which includes the crime of terrorism.94 Cassese argues
87 Ibid para 13388 Prosecutor v Stanilav Galic (Trial Judgement and Opinion) IT-98-29-T ICTY 05:12:03 para 13689 Ibid para 11390 Kravetz, D. The Protection of Civilians in War: The ICTY’s Galic Case Leiden Journal of International Law 17 pp521-536 pp52891 Prosecutor v Stanilav Galic (Appeals Judgment) IT-98-29-A ICTY 30:11:06 para 8792 Ibid93 Ibid94 Statue of the ICTR Article 4(d) and Statute of the SCSL Article 3(d)
35
this is proof that the drafters of the statues were of the opinion that such acts
could qualify as war crimes.95 Furthermore, as the Appeals Chamber noted
many states have criminalised violations of international humanitarian law,
which includes the crime of acts or threats of violence the primary purpose
of which is to spread terror among the civilian population within their
jurisdiction.96
Another important factor of Galic’s reasoning is, it gives an authoritative
interpretation of terror's mens rea (specific intent) in the context of criminal
law albeit in the context of armed conflict. The need for a motive element
or expression of further intent for there to be an act of terrorism has caused
considerable division.97 However, the Chamber’s decision that terror is a
crime of specific intent gives creditability to the concept that the additional
intent element is imperative as a means of separating terror crime from
ordinary crime. The intent factor however deals less with a personal motive
and focuses more on the intent of spreading fear as a primary purpose. As
Cassese has noted motive is of no importance when there is a crime of
terrorism as a war crime.98 The crime is conducted openly against the
enemy with the sole purpose of spreading terror, to defeat the said enemy.99
This effectively removes any personal agenda of the officer or leader of the
armed group conducting the act. In fact, the coercive element behind
terrorism as a method to force a public or private authority to take a
particular course of action is no longer apparent.100
95 Cassese, A. The Multifaceted Criminal Notion of Terrorism in International Law Journal of International Criminal Justice 4 (2006) 933-958 pp 94696 Prosecutor v Stanilav Galic (Appeals Judgment) It-98-29-A ICTY 30:11:05 para 9497 Saul, B. The Curious Element of Motive In Definitions of Terrorism: Essential Ingredient-Or Criminalising Thought (2008). Law and Liberty in the War on Terror, A. Lynch, E. MacDonald, & G. Williams, eds., pp. 28-38, Federation Press, Sydney, 2007; Sydney Law School Research Paper No. 08/123. Available at http://ssrn.com/abstract=129157198 Cassese, A. The Multifaceted Notion of Terrorism in International Law Journal of International Criminal Justice 4 (2006) 933-958 pp 94899 Ibid100 Cassese, A. The Multifaceted Notion of Terrorism in International Law Journal of International Criminal Justice 4 (2006) 933-958 pp 948
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4.7 Terrorism as a War Crime: Limitation of the Armed Conflict
The forgoing analysis highlights how far the law has progressed in the
prosecution of terrorist acts as a war crime. However, the author believes
that it is imperative to mention that cases like Galic are unique, to the
International Tribunal of the ICTY as the crimes were conducted within the
context of an armed conflict. As such, the laws of armed conflict became
applicable from the moment hostilities began therefore the application of
IHL was not in question. Therefore, once an armed conflict is present,
terrorist acts that take place during the conflict will automatically be subject
to IHL. However, not every terrorist act is conducted during a time of war.
Acts of terrorism can also be conducted during times of peace when no
armed conflict is in place.
As mentioned previously there are two types of armed conflict IAC and
NIAC. The underlying factor of an IAC is the resort to force involving
states. According to the Montevideo Convention a ‘state’ has a permanent
population, a defined territory, government and a capacity to enter into
relations with other states.101 Thus, an entity that fulfils these international
legal requirements of statehood can be considered a state. Without the
recognition of statehood by the parties involved an IAC does not exist. The
September 11th terrorist attacks provide a good example of this situation.
The US government argued that the September 11th attacks constituted an
armed attack as laid down in the UN Charter. However, article 2(4) of the
UN Charter clearly states that the attack requires the involvement of a state.
It is highly arguable that the Taliban has fulfilled the requirements of a state
according to the Montevideo Convention. Furthermore as Arnold has
argued Al Qaeda is not a High Contracting Party102 of Article 2(1) of the
1949 Geneva Convention which refers to sovereign entities. Hence, the
Taliban cannot be considered a representative of Afghanistan and as a non
101 Monteviedo Convention on the Rights and Duties of States 1934 Article 1 102 Arnold, R. The ICC as a New Instrument for Repressing Terrorism (2004) New York: Transnational Publishers, Inc pp 122
37
state entity cannot bring into play an IAC.103 Therefore it highly arguable
whether September 11th can be regarded as a IAC.
Whereas the identification of the actors within the conflict is of utmost
importance within an IAC, in the context of a NIAC there is considerable
focus on the intensity and the organisation of the parties to the conflict.
The purpose of which is to distinguish it from situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts of
violence and other acts of a similar nature’.104 According to the ICTY
factors that are indicative that the intensity of the violence has reached the
minimum threshold required of an NIAC are the duration of the conflict,
frequency of violence, displacement of civilians, number of victims dead or
wounded and control of territory by oppositions forces 105. An ICRC
commentary states that when the hostilities are of a collective character or
when the government is obliged to use military force against the insurgents,
instead of mere police forces this qualifies as protracted armed violence.106
Regarding the organisation of the party in revolt against the incumbent
government (non-state actors), the ICRC commentary on Common article 3
has laid out particular guidelines. The party must possess an organized
military force, an authority responsible for its acts, acting within a
determinate territory and having the means of respecting and ensuring
respect for the Convention.107 Concerning government forces, they should
have access to military forces to fight against insurgents and in possession
of a part of the national territory.108 However, according to Prosecutor v
Haradinaj it is not necessary to conduct an evaluation of each case as it
103 Ibid pp 121104 Protocol II Article 1(2)105 Prosecutor v Boskoski and Tarculovski (Trial Judgement) IT-04-82-T ITCY para 177 106 International Committee of the Red Cross (ICRC) Opinion Paper, March 2008 How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law? pp 3 Available at: http://www.icrc.org/eng/assets/files/other/opinion-paper-armed- conflict.pdf Accessed on 22:05:13107 Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949 International Committee of the Red Cross Commentary – Art. 3. Part I: General Provisions ,Available at: http://www.icrc.org/ihl.nsf/com/375- 590006?OpenDocument Accessed on: 22:05:13108 Ibid
38
would be presumed that this requirement can be met.109 If one or the other
of these two conditions is not met, the situation may be regarded as an
internal disturbance or internal tension.
This places terrorism at a disadvantage, as not all terrorist groups or acts
fulfil the requirements that constitute a NIAC. Thus, when considering the
test of intensity, though some terrorist acts may involve a high number of
victims and the act itself may be extremely violent. At times, the violence
will still not reach the requirement of protracted armed violence. Consider
the actions of the IRA terrorist group, though their actions were horrendous
and did cause severe death and destructions the violence that they inflicted
cannot be said to be protracted. Noting the ICRC comment that the violence
should reach the point where regular police forces are no longer adequate.
Regarding the IRA this was not the case in the UK, though it can be argued
that the level of violence was high. In addition the attacks were not,
constant they were sporadic in nature, as they occurred over a period of
time.
As to the organisational structure, terrorist groups could consist of a handful
of individuals. For example, four British nationals of varying backgrounds
conducted the London underground bombings of 2005. These individuals
did not posses any military structure or acted within a determined territory.
Their actions were of their own accord and as such, they did not have a
higher authority to claim responsibility for their actions. Furthermore, they
did not have any means of respecting and ensuring respect for the
Convention.
There are other factors which terrorism is known for that unfortunately
would not be addressed if terrorism is to be regarded as a subset of war
crimes. These are the coercive factors and the additional intent requirement
of the ideological, political or religious aspects. There is little mention if
109 Prosecutor v Haradinaj et al (Trial Judgment), IT-04-84-T (ICTY) 03:04:08 para 60
39
any at all of any political motives, ideological or otherwise within war
crimes. The motives to go to war are varied, however, motives are not
significant factor in regards to war crimes. There is no concern as why one
state went to war with another, there may be questions arising as to which
party initiated the use of force but that would mainly be used to ascertain
who began the conflict and if a state has the right of self-defence.
4.8 Historical Background of CAH
Where war crimes are limited to the existence of an armed conflict, crimes
against humanity have no such limit. A crime can be perpetrated during
times of war or times of peace. The crime, encompass a broad range of
criminal activity, thus the idea of prosecuting terrorism under crimes against
humanity appears to be the way forward. This idea though is fraught with
difficulties; the parameters of this crime though they appear effectively
defined contain idiosyncrasies reflective of the manner in which the crime
emerged and later developed.
The idea of an offence of CAH first materialised in the early part of the 20th
Century. May 28th 1915 saw the governments of Great Britain, Russia and
France declare that the massacre of the Armenian peoples at the hands of the
Turks as a crime against humanity and civilisation.110 Unfortunately, it was
held that the concept of laws against humanity was not sufficiently precise
to be the object of punishment by a court of justice, thus no one was ever
prosecuted for crimes under this heading. Not until the advent of the
Nuremberg trials did prosecution for crimes against humanity reappear.
Arguably this did not occur because of a crystallisation of the concept but
because of an element of fear and overall political pressure to bring justice
the perpetrators of the atrocities. The focus of the drafters of the Charter
were on crimes against peace and war crimes, a lot of time was spent on
defining and finding a legal basis for crimes against the peace whereas war
crimes was simpler as there was already sufficient legal basis in
110Arnold, R. The ICC as a New Instrument for Repressing Terrorism (2004) New York: Transnational Publishers, Inc pp 203
40
international law.111 However, there was a missing aspect; many of the acts
perpetrated by the Nazi regime did not fit into the context of war crimes.112
This was the fear, that many of the violations would not be punished such as
those committed by the Germans against their own citizens.113 At the time
there was no legal framework to prosecute such crimes, therefore the
drafters created a third group of crimes i.e. CAH. Under Article 6 (c) of
International Military Tribunal crimes against humanity read as follows:
namely, murder, extermination, enslavement, deportation,
and other inhumane acts committed against any civilian
population, before or during the war; or persecutions on
political, racial or religious grounds in execution of or in
connection with any crime within the jurisdiction of the
Tribunal, whether or not in violation of the domestic law of the
country where perpetrated.114
What is highly commendable about this definition is its statement that such
acts are deemed to be a violation whether or not they are in breach of
domestic law. This was very forward thinking of the IMT at the time, as it
established the supremacy of international law over municipal law.115
However, any praise and or adulation would have to begin and end at this
point. For in spite of this groundbreaking move the definition was also
limiting. Crimes of humanity were extended to only those crimes that were
committed before or during the war and in the execution of or in connection
with crimes that were under the jurisdiction of the Tribunal. This was the
known as the war nexus, it was felt that without this nexus that States had
no reason to intervene in what would have been a purely domestic matter.116 111 Bassiouni C. M. Crimes Against Humanity in International Law (1999) The Netherlands: Kluwer Law International pp17112 Ibid113Van Schaack, B. The Definition of Crimes Against Humanity Resolving the Incoherence Columbia Journal of Transnational Law (1999) 787-850 pp 789114 The 1945 Charter of the International Military Tribunal Available at http://avalon.law.yale.edu/imt/imtconst.asp Accessed on [01:05:12] 115Van Schaack, B. The Definition of Crimes Against Humanity Resolving the Incoherence Columbia Journal of Transnational Law (1999) 787-850 pp 791 116 Van Schaack, B. The Definition of Crimes Against Humanity Resolving the Incoherence Columbia Journal of Transnational Law (1999) 787-850 pp 791
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Justice Robert H. Jackson had stated that there needed to be a link between
the crimes and a ‘common plan’ this was the only way to justify
international jurisdiction.117 Considering this was a time when States
believed that one did not interfere in the domestic matters of its citizens, this
focus on having a connection to the war is not surprising. In spite of this
requirement, in practice the Tribunal did not require such strong nexus
between the acts and the war.118 This seems a curious decision, the
insistence on having the war nexus to justify the Tribunal’s jurisdiction but
not needing there to be proof that the nexus existed, gives credit to the term
victor’s justice.
Presently, there is no reliance on the war nexus to prove a crime against
humanity; barring Article 5 of the statute of the ICTY which has jurisdiction
over certain prohibited acts ‘when committed in an armed conflict, whether
international or internal in character and directed against a civilian
population.’ However this position of the ICTY has been stated as being
jurisdictional rather than definitional.119 Article 7 of the ICC omits any
prerequisite of a nexus to the war; this conforms to customary law. After
much legal wrangling, it was agreed that crimes against humanity had
developed into a self-governing concept meaning that it covered offences
which caused an interference with international peace and security.120
Furthermore it was no longer intrinsically connected to war crimes or crimes
against peace. This was further reiterated by the ILC draft adopted in 1991
which advised that as long as the act committed was done in a systematic
manner or on a large scale.121 Such a move was seen to ensure that isolated
violations of human rights were not included under CAH and to make
certain that jurisdiction would only come into play when acts were
perpetrated in a systematic manner or on a large scale. 122
117 Ibid 118 Ibid pp 804119 Ibid pp827120 Ibid pp 823121 Van Schaack, B. The Definition of Crimes Against Humanity Resolving the Incoherence Columbia Journal of Transnational Law (1999) 787-850 pp 824122 Ibid
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4.9 Definitions of Crimes Against Humanity
The statues of the International Criminal Court, (ICC), The International
Criminal Tribunal for the former Yugoslavia (ICTY) and The International
Criminal Tribunal for Rwanda (ICTR) all contain definitions of what
comprises crimes against humanity with varying differences. The statues of
the ICTR and ICTY maintain that certain acts committed under particular
conditions constitute a crime against humanity. The acts are as follows:
murder; extermination; enslavement; deportation; imprisonment; torture;
rape; persecutions on political, racial and religious grounds; and other
inhumane acts. The Rome Statue also includes the crime of apartheid and
enforced disappearances of persons. In conjunction with the acts, the Rome
Statue states that CAH is committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the
attack. The ICTR definition resembles that of the Rome Statue. It defines
CAH as an act committed as part of a widespread or systematic attack
against any civilian population on national, political, ethnic, racial or
religious grounds. The ICTY in contrast defines that CAH must be
committed in the context of an armed conflict be it international or internal
in character, and directed against any civilian population. The Appeals
Chamber in the case of Tadic later reversed this decision.123 With the
eventual closing of the ad hoc tribunals and the ICC poised as being the
foremost court to try international crimes the preferred definition of CAH
under the ICC statue will be applied.
4.10 The Contextual Elements of CAH
The Main Requirements of CAH are:
1. An attack
2. The act must be widespread or systematic attack
3. Contain a state or organisational policy
4. Directed against any civilian population
5. Mens Rea 123 Prosecutor v. Dusko Tadic aka "Dule" (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1, ITCY 02:10:95 para 141
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Attack
The Rome Statute defines an attack as a course of conduct involving the
multiple commission of proscribed acts.124 By this reasoning it would
appear that to constitute an attack one act on its own would not be enough
but a combination of the acts.
Widespread and Systematic
The concept widespread and systematic lies at the heart of understanding the
essence of crimes against humanity. The reasons for these requirements are
to ensure that indiscriminate acts of violence are excluded as crimes against
humanity and only serious violations are brought to justice. The terms are
not meant to be read conjunctively,125 only one of the elements need to be
satisfied for there to be a crime against humanity.
The term widespread generally refers to the amount of victims as a
consequence of the acts. This should not be taken to mean that there is a
numerical figure that needs to be met. The ICTR Akayesu Trial Chamber
explained widespread to mean ‘massive, frequent, large scale action carried
out collectively with considerable seriousness and directed against a
multiplicity of victims.126 The systematic character of the attack refers to
the methodological nature. This requirement has been explained in different
cases before ad hoc tribunals. In Akayesu this was taken to be thoroughly
organised, following a regular pattern, on the basis of a common policy and
involving substantial public or private resources.127 The case of Blaskic
understood systematic to require: a plan or objective, large scale or
continuous commission of linked crimes, significant resources and
implication of high level authorities.128
124 Rome Statute of the International Criminal Court 1998 Article 7(1) 125 Cryer, R. et al An Introduction to International Criminal Law and Procedure 2nd eds (2010) Cambridge: Cambridge University Press pp 236 126 The Prosecutor v Jean-Paul Akayesu (Trial Judgment) ICTR-96-4-T ICTR 2:09:1998 para 580 127 The Prosecutor v Jean-Paul Akayesu (Trial Judgment) ICTR-96-4-T ICTR 2:09:1998128 The Prosecutor v Tihomir Blaskic (Appeal Judgement) ICTY-95-14-T )3:03:00 para 203
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State or Organisational Policy
After the Second World War, national jurisprudence often required that
there be a governmental policy for there to be a crime of humanity.129 It is
regarded by some academics that the state or policy requirement is the
element that unites and elevates the attacks to ones that can be regarded as
crimes of international concern.130 Without the element, there is the danger
that the acts would be considered as a crime wave of random inhumane
acts.131 In addition, customary law has excluded random crimes,132 hence, in
order to complete the effectiveness of the widespread and systematic
requirement the definition of attack included the concept of a policy.133 As
the concept developed, further concerns were voiced in both Tribunal
jurisprudence and ICC discussions. The argument maintained was proving
the element of an organisational policy, it was felt that this was extremely
difficult and it contradicted the disjunctive test. In the ICTY decision of
Kunarac it was held that there was nothing contained in statue or in
customary international law that stated that there should be an existence of a
plan or a policy in order for a violation to occur.134 Cryer criticised this view
and argued that there was no assessment of any precedents or of any other
authorities who held a different view on the subject matter135 as is needed
when assessing customary law. In contrast to the view by the ITCY in
Kunrac, the ICC Statute supports the state or organisational policy
requirement, evidenced in Article 7(2) (a) of the Rome Statue.136
129 Cryer, R. et al An Introduction to International Criminal Law and Procedure 2nd eds (2010) Cambridge: Cambridge University Press pp 238130 Arnold, R. The ICC as a New Instrument for Repressing Terrorism (2004) New York: Transnational Publishers, Inc pp 257131 Ibid132 Cryer, R. et al An Introduction to International Criminal Law and Procedure 2nd eds (2010) Cambridge: Cambridge University Press pp 238133 Ibid pp 238134Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Appeal Judgment), IT-96-23 & IT-96-23/1-A ICTY, 12:06:02135 Cryer, R. et al An Introduction to International Criminal Law and Procedure 2nd eds (2010) Cambridge: Cambridge University Press pp 239136 The statute states; ‘attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of State or organizational policy to commit such attack.
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The perquisite of the organisational policy was discussed at length in the
Situation in the Republic of Kenya Decision Pursuant to Article 15 of the
Rome Statute on the Authorization of an Investigation into the Situation in
the Republic of Kenya (Kenya Investigation). In regards to the organisation,
the Chamber acknowledged that not all organisations might, be linked to a
State however, they could carry out a policy to commit an attack against a
civilian population.137 To assist in such a determination of ‘organisation’ the
Chamber identified particular factors that should be taken into account.
Whether the group:
Is under a responsible command, or has an established hierarchy
Possesses in fact the means to carry out a widespread systematic
attack against the civilian population
Exercises control over part of the territory of a State
Has criminal activities against the civilian population
Is part of a larger group, which fulfils some or all of the
abovementioned criteria.138
As to the policy requirement the Chamber followed the previous decision in
Prosecutor v Jean Pierre Bemba Gombo which found that an attack, which
is planned, directed or organised, meaning one that was not spontaneous
would satisfy the policy requirement.139 This determination by the ICC is
evidence of an acceptance on the importance of the organisational policy to
the concept of CAH. Its addition separates human rights crimes from
international crimes.
Any Civilian Population
The concept of any civilian population should be divided into three parts;
any, civilian, and population.
‘Any’ is the central piece of the crimes against humanity; it effectively
means that all individuals are protected against such crimes. This includes
137 Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09, para.92 138 Ibid 93139 Ibid 85
46
not only enemy nationals but the protection also extends to citizens who
have experienced violations at the hand of their governments.
The term civilian refers to crimes that are directed against individuals who
are not taking part in any hostilities. There have been suggestions that
customary international law is not limited to ‘civilian’ populations and
extends to military personnel. Judicial practice has shown however, that
civilian population is the defining character of crimes against humanity.
Firstly the population need only be predominately civilian in nature the
presence of certain non-civilians in their midst does not change the character
of the population.140 Tribunal decisions also reasoned that civilian included
persons who were formerly combatants who had been decommissioned and
combatants who became hors de combat. 141 In addition, Tribunals have
often decided that civilians should be the main object of the attack,142 as
such this would rule out any attacks where the main objective was a military
target.
Population refers to the amount of victims; single acts against individuals
are not included in the scope of crimes against humanity.
Mental Element
The perpetrator needs to be aware that there is an attack on the civilian
population and that his actions form part of the attack. Thus, an awareness
of the broader context in which the act transpires is needed in order for an
individual to be liable for an offence of CAH as apposed to an ordinary
crime or a war crime.143
140 Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Trial Judgment) IT-96-23-T & IT-96-23/1-T, ITCY 22:02:2001 Para 425141 Prosecutor v Jean-Paul Akayesu (Trial Judgment) 96-4-T ICTR 2:09:1998 para 582142 Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Appeal Judgment), IT-96-23 & IT-96-23/1-A, (Appeal Judgement) ITCY 12:06:2002 para 91 143 Prosecutor v Dusko Tadic (Appeal Judgement), IT-94-1-A, ITCY, 15:07:99 para 248
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4.11 Terrorism as a Crime Against Humanity
The disconnection from an armed conflict creates the illusion that the
prosecution of terrorism as a war crime is ideal. As such, the definitional
parameters appear to be more inclusive towards the crime of terrorism.
There is the attack, against a civilian population and it needs to be either
widespread or systematic and involve a state or organisational policy.
However, these arguments are superficial, and do not delve further into
issues of CAH.
Firstly, there is the issue of the attack. There are varying types of attacks,
however, it would only seem that the ones open to discussion under the
author’s proposed definition of terrorism are murder and other inhumane
acts of a similar character intentionally causing great suffering, or serious
injury to body or to mental or physical health. As identified terrorism
consists of a violent act that causes injury, death and or damage to buildings.
If death occurs from a terrorist act then it may fall into the category of
murder under CAH, most arguments however centre on other inhumane acts
of a similar nature that cause great suffering or serious injury to body or
mental or physical health. According to the ejusdem principle of
interpretation,144 other inhumane acts would include acts of a similar nature.
In this case the list of the enumerated acts in the statue in addition the acts
must cause injury of which must be of a physical or mental nature to human
beings. Many acts of terrorism cause death or injury of persons however,
not all acts have to be directed at human life but at the infrastructure of
society. The destruction of an oil rig or a major supply of energy may cause
severe damage to destabilise the economy taking this into consideration
such an attack may leave governments very vulnerable. A simulation
exercise carried out in June 2010 by the Heritage Foundation to ascertain
144 The ejusdem generic rule was explained in the case of Allen v Emerson (1944 K.B. 362) as follows: If in an enactment or document a general word follows particular and specific words of the same nature as itself, the general word takes its meaning from them, and is held to be restricted to the same genus as those more limited words, unless there be something to show that a wider sense is intended to be borne by the general word.
48
the economic effects of terrorist attacks on key nodes in the global energy
infrastructure found
Petroleum prices would jump from $75 per barrel to $250 per barrel and eventually fall back to $125 per barrel after two years;
Gasoline prices would jump to $8 per gallon and remain above $4 per gallon throughout the first year;
Gross domestic product (GDP) losses would exceed $300 billion per year for both years of the crisis; and
Employment would drop by more than 1.3 million the first year and drops an additional 1.1 million in the second year for a total two-year drop of 2.4 million.145
Granted this is just a simulation, the fact remains that violent acts directed
towards certain aspects of infrastructure could have a negative effect on the
economy and could have the possible effect to hold a government at ransom.
The scope of CAH does not account for this type of effect within attack,
though the possibility of massive unemployment could be a stressful burden
it is by no means on the same level of serious mental injury.
As mentioned earlier the essence of CAH is that the attack needs to be
widespread and systematic. The first hurdle terrorism would face is that the
attack would have to satisfy the requirement of being large scale, frequent
and it must affect a number of victims. The definition of terrorism proposed
by the author does not indicate a scale of the atrocity, a single act with one
victim can qualify as terrorist. Therefore smaller scale isolated criminal
activity would be excluded from the jurisdiction of the Court. Such as an
assassination or a kidnapping of a high level political official, for example
the assassination of former Lebanese President Rafic Hariri. The attack
must include a systematic element applying the reasoning of Akayesu this
means being thoroughly organised, following a regular pattern, on the basis
of a common policy and involving substantial public or private resources.
This requirement poses a problem for acts of terrorism, not every terrorist
act involves a methodical plan that involves significant financing with a
large outcome i.e. large death toll or large-scale catastrophe. There are
145Coordinated Terrorist Attacks on Global Energy Infrastructure: Modeling the Risks Available at: http:/www.heritage.org/research/reports/2011/03/coordinated-terrorist- attacks-on-global-energy-infrastructure-modeling-the-risks Accessed: [23:06:12]
49
‘smaller’ acts of terrorism for example, the bombings that occurred in
London on 7th July 2005. These acts were devastating, however, they do not
meet the requirements advised by Akayesu and Blaskic. The attack did not
include a string of attacks before the bombings or afterwards and the death
toll though unfortunate was not incredibly high as compared to other
terrorist bombings such as the Bali bombings of 2002. As for the resources,
the operation did not cost a significant amount of funds,146 in fact, the
overall cost of the attack was estimated at £8000.00 and much of the cash
was self-financed from personal savings, credit cards and a personal loan.147
The level of organisation is also questionable. The materials to make the
bombs were commercially available and did not require much expertise.148
One of the bombs meaning to go off on the underground exploded on a bus,
which was not the original intention. A properly organised attack would not
have left room for error, especially considering the materials used to make
the bomb were simple enough that no previous proficiency was required.
The need for a state or organisational policy is another requirement that
unfortunately acts of terrorism cannot fulfil. Even though the notion of the
state according to case law can now include groups with quasi state abilities.
Vincent-Joel Proulx has argued that as international law has advanced
beyond state –based polices this reasoning effectively extends to criminal or
terrorist groups.149 Thus, he believes that organisations such as Al-Qeda can
be held accountable for acts of terrorism under CAH. Proulx and others
however have not fully analysed the policy concept. The fact that a group
may have the capability to perform an act that infringes human rights
does not make the group an organisation with a policy. According to Judge
Hans-Peter Kaul in the Situation in the Republic of Kenya, to be considered
an organisation one must fulfil the characteristics of a state.150 It is those 146Report of the Official Account of the Bombings in London on 7th July 2005 pp27 Available at www.official-documents.gov.uk/documents/hc0506/hc10/1087/1087.pdf Accessed on 01:06:13147 Ibid 148 Ibid149 Proulx, V.J. Rethinking the Jurisdiction of the International Criminal Court in the Post- September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity? American University International Law Review (2004) 1009-1089 pp1079150 Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an
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characteristics that that turn a private organisation into an entity with quasi-
like state abilities.151 As Judge Kaul stated:
In this respect the general argument that any kind
of non-state actors may be qualified as an orgnization
within the meaning of article 7(2)(a) of the Statute on
the grounds that is ‘has the capability to perform acts
which infringe on basic human values’ without any
further specification seems unconvincing to me. In fact
this approach may expand the concept of crimes against
humanity to any infringement of human rights.152
Considering the approach by Judge Kaul, the argument that Al-Qaeda can
consider itself an organisation within the meaning of CAH is questionable.
The supporters of this argument often point to Al-Qaeda being a
comprehensive political structured entity.153 However, on closer
examination Al-Qaeda appears to be more of a violence prone group with
fluctuating membership. There is no organised structure; the group has
been described as a loose-knit global network.154 Most importantly, they do
not exercise any control over part of a territory of a State and according to
characteristics of a state, they do not have the capacity to impose a policy on
its members and sanction them. This leads to the conclusion that they do not
qualify as a state based organisation.
There are other factors which terrorism is known for that unfortunately
would not be addressed if terrorism is to be regarded as a subset of CAH.
Investigation into the Situation in the Republic of Kenya, ICC-01/09 Dissenting Opinion by Judge Kaul para 51151 Ibid 152 Ibid para 53153 Proulx, V.J. Rethinking the Jurisdiction of the International Criminal Court in the Post- September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity? American University International Law Review (2004) 1009-1089 pp 154 BBC News, Quick Guide Al-Qaeda Available at http://news.bbc.co.uk/1/shared/spl/hi/pop_ups/04/world_al_qaeda/html/1.stm Accessed on 01:06:13
51
These are the coercive factors and the additional intent requirement of the
ideological, political or religious aspects
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5 Terrorism an International Crime
5.1 The Evolution of Terrorism
Often criticised due to its definitional roots, enumeration of prohibited acts
as apposed to being generically defined. Terrorism is considered
quintessentially a treaty crime. In an effort to find a method around
disagreements on self-determination, freedom fighters, problems both
technical and of a political nature, rules of non intervention and a host of
others it was felt that the only course of action was the penalisation of acts
considered terrorist. Such action though at the time may have been
necessary in order to have nations on board to co-operate against terrorist
threats, have invariably become a crutch for detractors, who use this as
proof that there is no consensus of the terrorism concept.155 A series of
treaties and resolutions have emerged from prohibited conduct it is through
these that one can see the law which is developing on terrorism.156 The
previous arguments on there being no consensus on what constitutes
terrorism or the lack of a definition disappear. What does become apparent
is the evolution of terrorism from its treaty parameters and its emergence as
a discrete crime of international law. The factors that would attest to such
an evolution are: customary international law, treaty law and violations of
fundamental principles of justice. Ancillary methods of determination such
as judicial decisions and the work of legal writers can also be used to assist
in proving such a hypothesis. This chapter examines these methods to prove
that terrorism has evolved into an international crime.
155 This argument is still highly contested as the League of Nations did put forward a definition of terrorism in the mid 1930’s though it was never adopted it has been built upon for definitions used today. 156 Kolb, R. The exercise of Criminal Jurisdiction over International Terrorists Chp11 in Bianchi, A. edited (2004) Enforcing International Law Norm Against Terrorism pp 233
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5.2 Terrorism and the International Criminal Court
It should be noted that the proposal that terrorism be considered as a crime
under international law is not new. The most significant proposal
commenced with establishment of the International Criminal Court. The
Rome Conference of 1998 was a milestone event in the world of ICL. It
was here that The United Nations Conference of Plenipotentiaries on the
Establishment of an International Criminal Court took place from 15 June to
17 July 1998 in Rome, Italy. The Court was established after much debate
and work by many states and individuals.157 The most important factor
established was the jurisdiction of the court. The draft statute proposed by
the International Law Commission listed this jurisdiction under Article 20,
which in addition to the core crimes included in its annex crimes it regarded
through its conduct ‘constitute exceptionally serious crimes of international
concern.’158 During the conference, many states supported an inclusion of
terrorism and other treaty crimes within the jurisdiction of the Court.
However, the crimes were not incorporated into the statue, to the
disappointment of the supporting states. The main reasons given as to why
terrorism was unable to be placed under the jurisdiction of the court were
firstly, terrorism as an offence was not clearly defined.159 Secondly,
particular acts of terrorism were considered not to be serious enough to be
prosecuted by the ICC.160 The purpose of the ICC was to deal with the most
serious crimes affecting the international community. Thus, crimes that
could not meet the requirement of garnering support of being a crime of
international concern would no be included. Finally, there was concern that
the inclusion of terrorism would see the politicisation of the Court.161
Through all this however, in the Final Act of the Rome Conference it was
recognised by governments that terrorist acts had become a serious concern 157 It is interesting to note that the impetus for establishing the ICC was to create and international criminal court with jurisdiction over international drug trafficking which is considered a treaty crime. 158 Draft Statue for an International Criminal Court 1994 Part Three Article 20 (e) Available at: http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/7_4_1994.pdf Accessed on: [25:07:12]159 Much, C. The International Criminal Court (ICC) and Terrorism as an International Crime Michigan State Journal of International Law 14 (2006) 121-138 pp126 160 Ibid161 Much, C. The International Criminal Court (ICC) and Terrorism as an International Crime Michigan State Journal of International Law 14 (2006) 121-138 pp126
54
of the international community. As such, a Review Conference was
recommend so a suitable definition could be realised with a subsequent
inclusion within the jurisdiction of the court.162 The arguments against
terrorism being included within ICC jurisdiction are an extension of the
stringent requirements needed to attain status as a crime warranting
international concern, and rightly, so, the core crimes are considered the
most abhorrent to the international community. However, the arguments to
prohibit its entry are flawed. It has to be acknowledged that arriving at any
definition for an act in law is challenging this is especially true with
criminal law as it must meet the requirements under the nullum crimen sine
lege rule.163 Considering though that for the crime of aggression a working
group was created to discuss how best to incorporate it within the Court, this
could have also been done for the crime of terrorism. It appears that
delegates were more concerned with getting as many states as possible on
board with the creation of the Court than adequately defining the
jurisdictional scope. As to the crime, not being one of sufficient concern
this is contradictory to the Final act of the conference where states
recognised terrorism as a serious concern of the international community.
In addition to which the incidents of terrorism had raised exponentially over
time many of them causing significant damage and death. Many of these
acts had been denounced by both the UNGA and the UNSC highlighting
their concern and condemnation. Just like the core crimes these acts
shocked the conscience of humanity due to their magnitude of human
suffering and damage that they wrought.164
5.3 A Crime under Custom
162 Much, C. The International Criminal Court (ICC) and Terrorism as an International Crime Michigan State Journal of International Law 14 (2006) 121-138 pp126163 A principle in criminal and international criminal law that a person cannot or should not face criminal punishment except for an act that was criminalised by law before performance of the act.164 Wertheim, P. J. Should Grave Crimes of International Terrorism’ be included in the Jurisdiction of The International Criminal Court? Policy and Society 22 No. 2 (2003) 1-21 pp 6
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There has been much debate on whether terrorism is a discrete crime of
international law. The view held by some is that terrorism does not have the
legal character to be considered as such a crime. Rosylin Higgins wrote:
‘…terrorism is not a discrete topic of international
law with its own substantive legal norms. It is
rather a pernicious contemporary phenomenon.165
This reasoning is supported by the perception on a lack of clarity on a
definition of terrorism and varying approaches towards the concept. As
Duffy stated
‘…while at the heart of the definitional dispute
undoubtedly relates to the potential authors of
terrorism there is divergent practice in respect of
most if not all, elements of terrorism’166
Due to this disagreement, it is believed that the concept cannot be
criminalized, the only possibility lies in the criminalization of the particular
forms of terrorism in treaties.167 This amounts to terrorism not being
considered as a discrete crime under international law. It should be noted
however that this is not the belief of all scholars. Reuven Young wrote that
there is a central meaning of terrorism that ought to be accepted as the
minimum threshold of an international definition.168 In supporting his
arguments he cited Professor Oscar Schacter who stated that the absence of
a comprehensive definition
‘does not mean that international terrorism is
not identifiable. It has a core meaning that all 165 Higgins, R. The General International Law of Terrorism Chp 2 in Higgins, R. and Flory, M. edited (1997) Terrorism and International Law pp 13-14166 Duffy, H. The ‘War on Terror’ and the Framework of International Law (2005) Cambridge: Cambridge University Press pp 40167 Cassese Terrorism as an International Crime Chp10 in Bianchi, A. edited (2004) Enforcing International Law Norm Against Terrorism pp 213168Young R. Defining Terrorism: The Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation, Boston College International & Comparative Law Review 29 (2006) 23-104 pp 33
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definitions recognize.169
Antonio Cassese was a firm supporter of this view and that this definition
amounted to a crime under customary international law. He firmly dispelled
the idea that there was no definition of terrorism in international law. He
argued that there was never a lack of a definition (in fact a definition had
emerged since 1937), what existed was a disagreement to the exception,
which was the omission from the definition of terrorism the actions of
individuals fighting in national liberation movements.170 This stalemate did
not stop a consensus on terrorism from emerging. In fact even though there
has not been any ‘agreement’ on the concept of terrorism the legal
framework has been consistently evolving, to the point where not only a
definition in law has emerged but also a clear prohibition of the crime under
customary international law. Evidence of this can be found in the
judgments handed down in national courts, resolutions of the UN General
Assembly, the ratification of international conventions by states171 and the
author would like to add decisions of international tribunals.
5.4 General Assembly Resolutions
Resolutions do not have any legal binding character and do not give an
immediate indication of custom. However, they can be an indication of
emerging customary norms and or opinio juris depending on the content of
the resolutions and the stipulations regarding adoption.172 Furthermore,
when they are structured as general principles it helps in the advancement of
strengthening customary norms. In short, resolutions show the will of the
international community and the issues at the forefront of nation states and
their opinions.
169 Young R. Defining Terrorism: The Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation, Boston College International & Comparative Law Review 29 (2006) 23-104 pp 33170 Cassese, A. Terrorism as an International Crime Chp10 in Bianchi, A (eds) (2004) Enforcing International Law Norms Against Terrorism pg 214171 Cassese, A. The Multifaceted Criminal Notion of Terrorism in International Law Journal of International Criminal Justice 4 (2006) 933-958 pp 935172 Saul, B. Defining Terrorism in International Law (2006) Oxford: Oxford University Press
57
The General Assembly has passed a total of 75 resolutions from 1972 to
2012, regarding various concerns in connection with terrorism.173 The first
resolution passed on 18th December 1972 refers to the Declaration on
Principles of International Law Concerning Friendly Relations and Co-
operation among States in accordance with the Charter of the United
Nations and invited States to take suitable measures to eliminate the
problem.174 The language of these resolutions from this period up until to
September 11th follows in the same vein, expressing concern over the
increase of acts of terrorism that had begun to affect innocent individuals.
The resolutions all acknowledge an increase of terrorist activity and make
suggestions to state to become parties to international conventions,
harmonise their domestic legislation with international conventions175 and
co-operate which each other particularly through the exchange of
information pertaining to combating and preventing international
terrorism.176 There is a steady development in the manner in which
terrorism is viewed from these resolutions harmful to the stability to the
international community, violating the right to life of individuals and
creating an environment of fear for individuals.177 Though the concern is
apparent, the resolutions have often been criticised for their soft tone and
ambiguous nature. The resolutions never addressed the root cause of
terrorism; and there is support for self-determination. This was interpreted
to mean by some that any method available to gain self rule i.e. force, wars
of national liberation were acceptable.178 In spite of these criticisms the
resolutions do regard terrorism as a threat to international stability and
identify that it was at the cause of other heinous crimes. In fact Resolution
34/145 out rightly condemned all acts of international terrorism, (it used the
term ‘unequivocally condemns’) that endangered or took human lives or
173 See UN Action to Counter Terrorism Available at: http://www.un.org/terrorism/resolutions.shtml Accessed on [23:06:12]174 G.A Res. A/RES/3034(XXVII) 18 Dec 1972175 G.A. Res A/RES/34145 para 9176 Ibid para 11177 G.A./RES/54/164 24th February 2000 178 Saul, B. Defining Terrorism in International Law (2006) Oxford: Oxford University Press pp 201
58
jeopardized fundamental freedoms. This resolution received considerable
support and the term unequivocally has been used ever since.179
From this period onwards the condemnation of terrorism moves from being
general and ambiguous and more focused on particular instances and
attributes of terrorism. The first resolution after the bombings in the US
strongly condemned the acts180. The resolution identified the acts as heinous
acts of terrorism and noted that it caused enormous loss of human life,
destruction and damage. At this point even though there was a high rise in
terrorist activity the Assembly refrained from defining terrorism this was
due more to disagreements than inability to define terrorism. However, a
middle ground seemed to be resolutions that described the characteristics of
terrorism. For example Resolution 58/174 noted terrorism to be
‘…activities aimed at the destruction of human rights,
fundamental freedoms and democracy, threatening the
territorial integrity and security of States, destabilizing
legitimately constituted Governments, undermining
pluralistic civil society and having adverse consequences
for the economic and social development of States…’181
These words are mentioned in past resolutions and reiterated in and future
ones. What is especially telling of the Assembly’s concept of terrorism is
its 1995 declaration where it states
‘…criminal acts intended or calculated to provoke a
state of terror in the general public, a group of persons
or particular persons for political purposes are in any
circumstances unjustifiable, whatever the considerations
of a political, philosophical, ideological, racial, ethnic,
179 Saul, B. Defining Terrorism in International Law (2006) Oxford: Oxford University Press pp 203180 G.A./RES/56/1 18th September 2001181 G.A./RES/58/174 10th March 2004 preamble
59
religious or other nature that may be invoked to justify them;182
Though not actually defining the concept the resolutions show evidence of a
common agreement on what terrorism should entail. There is a continuous
mention of terrorism being a heinous act, that it causes loss of life,
destabilises governments and causes fear in the public.
5.5 UN Security Council Resolutions: Pre 2001
Like General Assembly resolutions Council resolutions do not create
international law; however under the Charter they create normative
responsibilities for member states.183 Thus the adoption of unanimous
Council resolutions can be a good indication to the development of opinio
juris even non-binding resolutions can have a strong influence of the
opinion of states or even show evidence of general principles of law.184
Prior to late 2001 the issue of terrorism was regulated by the General
Assembly; this was not due to a lack of terrorist threats but down to parts of
the UN establishment that the situation of terrorism was more of a social
phenomenon and better suited to the work of the General Assembly than the
UN Security Council.185 More importantly, this was a period of the Cold
War Era and Cold War politics were at its height.186 Between the late 1980’s
to the 1990’s incidents within the international community began coming to
the attention of the Council and they began taking an interest through
resolutions and sanction regimes. These early resolutions are the beginning
of a precedent on the manner by which the Council would tackle the
terrorist threat and set an example for nation states.
182 GA RES/49/60 17 February 1995 para 3183 Saul, B Definition of ‘Terrorism’ in the UN Security Council: 1985-2004 Chinese Journal International Law 4 (2005) 141-166 pp 142 184 Saul, B. Defining Terrorism in International Law (2006) Oxford: Oxford University Press pp 215 185 Rostow, N. Before and After: The Changed UN Response to Terrorism since September 11th Cornell International Law Journal 35 (2001-2002) 475-490 pp 475 186 Saul, B. Defining Terrorism in International Law (2006) Oxford: Oxford University Press pp 216
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The first resolution that mentioned terrorism was Resolution 579 passed in
1985 this was in direct response to a series of incidents the year before.187
Some of these included the hijacking of a Kuwaiti plane in December 1984
an Egyptian aircraft in Nov 1985 and the capture of 25 Finnish UN soldiers
by the South Lebanese army.188 These incidents were considered so grave
by the Council that it felt it was necessary to state that it considered that all
acts of hostage taking and abductions were a ‘grave concern to the
international community, having severe adverse consequence for the rights
of the victims and for the promotion of friendly relations and co-operation
among States.’189 Terrorism is not directly mentioned in the resolution what
is done instead is the alignment of a criminal act as terrorist when used to
cause instability and fear within the international community and the
jurisdiction of the Council in such an occurrences. Resolutions passed in
the later years of this time period follow a similar trend. In 1989 the
Council established resolution 635 on plastic explosives, it was the first
resolution to deem that terrorism posed a thereat to international peace and
security190. It also required States to do all possible to put a stop to acts of
terrorism and recommend that the IACO to step up its work on stopping
terrorism against aviation.191 By recognising terrorism as a threat to
international peace and security the Council had taken the first step in
changing the face of terrorism. It was no longer a sideline project for the
GA it was a serious enough matter to be under the direction of the SC
furthermore this meant that if necessary the Council could not only impose
sanctions but use force if it deemed that the situation had reached the
necessary threshold. In 1992 Resolution 731 was passed as a response to
the Lockerbie disaster in Scotland. In 1996 resolution 1044 was established
the Council declared that the assassination attempt on the president of Egypt
was in violation of the sovereignty of Ethiopia and it affected the peace and 187 Saul, B. Defining Terrorism in International Law (2006) Oxford: Oxford University Press pp 217188 Ibid189 S/RES/579 (1985) Available at: http://www.unhcr.org/refworld/docid/3b00f17370.html Accessed on [01:07:12]190 Kramer, H. H and Yetiv, S.A The UN Security Council’s Response to Terrorism Political Science Quarterly Vol 122 3 (2007)409-432 pp413 191 Saul, B. Definition of ‘Terrorism’ in the UN Security Council 1985-2004 Chinese Journal of International Law 4 (2005) 2-30 pp7
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security of the region. Resolution 1189 concerned bomb attacks in Kenya
and Tanzania. Not only are the responses to the resolutions192 significant,
but the framework it established is equally important. Each resolution
identifies a particular illegal activity which is promptly condemned and
subsequently labelled as terrorist. There is never any acknowledgement of
terrorism being a crime in its own right. This is clearly a missed
opportunity on the part of the Council to assist in establishing a legal
framework to work from considering that resolutions are used as legal gauge
for development of the law.
5.6 Post September 2001
After the September 11th the response of the council was swift, with the
unanimous adoption of Resolution 1368 within 24hours of the attacks.193
The wording of the resolution was very strong. It stated:
The Security Council, reaffirming the principles and purposes
of the Charter of the United Nations, Determined to combat by
all means threats to international peace and security caused
by terrorists acts, Recognizing the inherent right of individual
or collective self-defence in accordance with the Charter,
Unequivocally condemns in the strongest terms the horrifying
Terrorist attacks that took place on 11 September 2001 in
New York, Washington (DC) and Pennsylvania and regards such
acts, like any Act of international terrorism, as a threat to
international peace and Security;194
After this the Council passed Resolution 1373, on 28th September 2001 less
than three weeks after the attacks. This resolution imposed various
obligations on member states195 in what can only be described as a 192 There are several more resolutions during this period, which can be located on the UN website at http://www.un.org/terrorism/sc-res.shtml193 Kramer, H.H. and Yetiv, S. A. The UN Security Council’s Response to Terrorism: Before and After September 11, 2001 Political Science Quarterly Vol 122 3 pp 413194 S/RES/1368 (2001) Preamble to para 1195S/RES/1373 Required states to: prevent and suppress the financing of terrorist acts; criminalize the use of any funds of their nationals that may be used to carry out terrorist
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legislative approach. Previous resolutions had always made requests to
states; these two resolutions had provisions that were structured as
obligations. This is a radical change in the Council’s approach on
terrorism. It moved away from its previous method (which was cautious so
as not to upset states) and set in motion a quasi-legislative approach.
5.7 International Treaties
At present there are fourteen international treaties that regulate particular
features of terrorism.196 It has been argued that though these treaties do
denounce acts of terrorism the treaties in themselves do not provide a
definition of terrorism.197 Kolb argues however that considering their
themes define specific areas of terrorist acts, taken together, several of their
definitions cover a large sector of terrorist activities.198 Thus, an analysis of
the treaties would unearth the international consensus on terrorism.
Collectively the treaties are understood to make the offences it criminalises
prohibited by law and requests for the conduct to be prosecuted or the
acts; freeze the assets of individuals and any other resources of individuals who commit or intend to perpetrate terrorist acts and prevent their nationals or any other individuals within their territory from making any funds or other financial assets available for individuals to use to commit terrorist acts. In addition to these requirements the resolution also stipulated that no assistance should be provided to any individuals involved in terrorism, this included taking steps to stop the supply of weapons to terrorists and repressing the conscription of members of terrorist groups. 196These are as follows: The Convention on Offences and Certain Other Acts Committed On Board Aircraft (1963), Convention for the Suppression of Unlawful Seizure of Aircraft (1970), Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971), Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (1973) International Convention against the Taking of Hostages (1979), Convention on the Physical Protection of Nuclear Material (1980), Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1988), Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988), Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf (1988), Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991), International Convention for the Suppression of the Financing of Terrorism (1999), International Convention for the Suppression of Acts of Nuclear Terrorism (2005), Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (2010)197 Saul, B. The Legal Response of the League of Nations to Terrorism Journal of International Criminal Justice 4 (2006) 78-102 pp79198 Kolb, R. The Exercise of Criminal Jurisdiction Over International Terrorists Chp11 in Bianchi, A. (eds) (2004) pp233 Enforcing International Law Norms Against Terrorism Oxford: Hart Publishing
63
perpetrators extradited. It calls on nation states to ensure that terrorism is
prevented and requires that states co-operate more fully with each other to
prevent the threat. This should be done through the exchanging of
information and provision of mutual assistance. In addition, the treaties
denounce all acts of terrorism on all grounds. The first convention to
articulate a general definition of terrorism was the International
Convention for the Suppression of the Financing of Terrorism (1999). It
defines terrorism as an
‘…act intended to cause death or serious bodily injury
to a civilian, or to any other person not taking an active part
in the hostilities in a situation of armed conflict, when the
purpose of such act, by its nature or context, is to intimidate a
population, or to compel a government or an international
organization to do or to abstain from doing any act’199
Though the definition is contained within a treaty, the prime importance of
which is the financial means surrounding terrorism it does acknowledge
some of the main tenants of the crime. Such as human fatalities or civilians
not involved in armed conflict and intimidation of governments and
organisations to bend their will to perform or abstain from conducting
particular acts.
5.8 National Laws
Anti-terrorist legislation has often been criticised as flouting the rule of law
and allowing government’s undue power. However, for all its criticisms
anti-terrorist laws have become a permanent fixture of national legislation.
Under national laws domestic legislation against terrorism is quite different
to that of international legislation as it is defined by the socio-political
history of each nation, hence the various views. However, an assessment of
199 Article 2(b) International Convention for the Suppression of the Financing of Terrorism
64
national laws can garner an understanding of what nation states perceive as
terrorism and aid in finding any converging ideals. Furthermore as
mentioned in preceding chapters one of the legal contributors to ICL are the
general principles of law of varying nations.
5.8.1 The UK Terrorism Legalisation
The United Kingdom has extensive anti-terrorist legislation due in part to its
long history of with Northern Ireland. After years of having terrorism
governed under the Prevention of Terrorism (Temporary Provisions) Act the
government introduced the Terrorism Act 2000. It was the first permanent
counter-terrorist legislation Act in the UK. Containing eight sections, the
subject mater of the Act included a definition of terrorism. Section 1 of the
act defines terrorism as the use or threat of action that falls within
subsection 2 where the use or threat designed to influence the government
or international governmental organisation or to intimidate the public or a
section of the public and it is made to advance a political, religious or
ideological purpose.200 Further sections also covered proscribed
organisations, terrorist property, terrorist investigations, counter-terrorist
powers, miscellaneous offences and powers concerning Northern Ireland.201
Reception to the Act was less than gracious, the Joint Committee on Human
Rights argued that the Act was inherently flawed and stated that the
definition
Was expansive and indiscriminate; did not
reflect commonly held notions of terrorism;
undermined basic human rights; made no
allowances for legitimate protest and struggles;
and therefore criminalised people who could not
properly be regarded as terrorists202.
The vastness of the definition meant that it could potentially encompass a
large spectrum of possible of offences. For example, destruction by 200 As amended in 2006201 For a detailed view of the Act see www.legislation.gov.uk/ukpga/2000/11/contents202 Joint Committee on Human Rights online para 5: http://www.parliament.the-stationery- office.com/pa/jt200607/jtselect/jtrights/26/2611.htm Accessed [01:06:13]
65
environmental, anti-abortion and animal rights groups previously detained
under criminal law could be charged under the 2000 Act. The
expansiveness of the definition also meant that it was open to various
interpretations and could be used untowardly by police and the government
to repress individuals.203 The wide berth of the proscription powers under
the Act and the authority of the Secretary of State were also of concern.
The banning of terrorist organisations was left to the discretion of the
Secretary of State. The test was the Secretary believing that the said
organisation is ‘concerned in terrorism.’ No explanation was forthcoming
on how an individual could be ‘concerned in terrorism’ or the level (if any)
of political antagonism. This left organisations exercising the right to self-
determination to be considered as terrorist.204
5.8.2 Anti-Terrorism Crime and Security Act 2001
Enacted on 14th December 2001 the Act was the government’s response to
the September 11th attacks. It was viewed warily and as Conor Gearty
argued, some of the proposals had no connection with the incidents in the
US and were nothing more than an opportunity to enact legislation that had
been gathering dust in the Home Office cupboards over a lengthy period of
time205. The credibility of the Act was also in question. In order to make
the Bill compatible with Convention rights under Section 19 of the Human
Rights Act the government had derogate from Article 5 (1) of the European
Convention.206 The Act had various provisions that extended the powers of
the state and gave greater control to the police and contained provisions on
203 See Amnesty International ‘United Kingdom Human Rights a broken promise’ [online] Available from http://www.amnesty.org/en/library/info/EUR45/004/2006 Accessed [01:06:13] 204 For more on terrorism and self-determination see Muller, M. QC (2008) Terrorism, Proscription and the Right to Resist in the Age of Conflict Denning Law Journal 20 pp111-131 [online] Available from: http://www.coe.int/t/dghl/standardsetting/media/ConfAntiTerrorism/DenningLawJournal2008_en.pdf Accessed: [01:06:13]205 Gearty, C 11 September 2001, Counter-terrorism, and the Human Rights Act Journal of Law and Society 32 (2005) 18-33 pp23206 For more on this topic see Hickman, T.R. Between Human Rights and the Rule of Law: Indefinite Detention and the Derogation Model Constitutionalism Modern Law Review 68 (2005) 655- 668 and Fenwick, H. Legislation The Anti-Terrorism, Crime and Security Act 2001: A Proportionate Response to 11 September? The Modern Law Review (2002) 65 724-762
66
the retention of communications data,207 disclosure of information208 and the
policing of the nuclear.209 Most disturbing was Part IV of the Act, which
contained the provision to detain indefinitely without charge foreign
individuals who were suspected of being international terrorists or a threat
to national security. The Home Secretary argued Part 4 of the legislation
was designed to fill the apparent void that that had arisen – the difficulty of
not being able to remove non-nationals back to their home countries because
of the risk of endangerment of their human rights.210 However, a Privy
Counsellor Review Committee found fault with the system, as it lacked
procedural safe guards.211 The Courts also found the detention system
sorely lacking as the Act did not make mention of any protection against
home-grown British terrorists, a point that it went to great lengths to
address.212
5.8.3 Prevention of Terrorism Act 2005
In light of the decision by the House of Lords in the Belmarsh case, the UK
government responded with the enactment of the Prevention of Terrorism
Act 2005. The Act introduced the control order regime, and was presented
as an improvement to the previous ATSCA. Control Orders were described
as
an order against an individual that imposes
obligations on him for the purposes connected
with protection members of the public from a
risk of terrorism213
Some of these obligations and restrictions ranged from restrictions on
possession of specified articles or substances, restrictions on the individual’s 207 Anti-Terrorism Crime and Security Act 2001 Part 11 208 Ibid Part 3209 Ibid Part 8210Gearty, C 11 September 2001, Counter-terrorism, and the Human Rights Act Journal of Law and Society 32 (2005) 18-33 pp25211 See Privy Counsellor Review Committee, Anti-Terrorism, Crime and Security Act 2001 Review Report (2003-2004 HC 100) 212 See A v Secretary of State for the Home Department [2004] UKHL 56213 Prevention of Terrorism Act 2005 Section 1(1)
67
place of residence and visitors to said residence, and requirements for
specified persons to search his place of residence.214 Despite the
government’s insistence that the orders were only a restriction to liberty the
reaction to PTA 2005 was the same as its predecessor ATCSA. The orders
were deemed extremely restrictive and a deprivation of liberty.215 Judge
Sullivian called the restrictions ‘antithesis of liberty and equivalent to
imprisonment.216 Questions were also raised on lack of judicial scrutiny
afforded during the bill process. The Joint Committee on Human Rights
were concerned as to the reason the government had refused to allow any
judicial input on the bill, and doubted its legitimacy since the executive had
seen fit to deny the courts involvement.217 As such the role of the judiciary
was reduced to one of mere supervision over control orders.
5.8.4 Terrorism Act 2006
The Terrorism Act 2006 was the UK government’s response to the 7th July
2005 London bombings. Under the Act, the government increased its
powers under the proscription regime. The government now had the power
to prosecute individuals for encouraging terrorism.218 This included
incitement through the dissemination of terrorist publications, and
organisations that glorified terrorism.219 Offences such as the preparation of
terrorist acts, terrorist training, offences involving radioactive devices and
materials, nuclear facilities and sites were prosecutable as well.220 The
criminalisation of speech was one of the main issues with the Act. There
were concerns that such an offence could criminalise anyone who glorified
the armed opposition to the Apartheid regime in South Africa.221 Even
214 Prevention of Terrorism Act 2005 Section 1(4) 215 House of Lords, House of Commons, and Joint Committee on Human Rights Counter- Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006 Twelfth Report of Session 2005–06 HL Paper 122 HC 915 Available at http://www.icj.org/IMG/pdf/jchrreport.pdf Accessed on [01:06:13]216 A v Secretary of State for the Home Department v JJ [2006] HRLR 38217Hiebert, Janet L. Parliamentary Review of Terrorism Measures (2005) Modern Law Review 68 (4) 676-680 pp 679218 Terrorism Act 2006 Part1(1)219 Ibid Part 1(2)220 Ibid Part 1(5),(6),(9),(10),(11)221 Walker, C. Clamping Down on Terrorism in the United Kingdom Journal of International Criminal Justice 4 (2006) 1137-1151 pp1142
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Cherie Booth the wife of the former Prime Minister Tony Blair was not
beyond reproach as it was felt she should be prosecuted for stating in a
speech that she understood how decent Palestinians became terrorists
because of the illegal occupation of Palestine.222
5.8.5 Terrorism Legislation in the US
In the post 2001 society of America, one has a tendency to forget that
terrorist attacks occurred on American soil prior to 9/11.223 The September
11th attacks however, played a pivotal role in the American terrorist
experience. Following the attacks there was a consensus that it was
imperative to have legislation that would protect the US from terrorism.224
5.8.6 Patriot Act
The response by US Congress was the passing the United and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act (USA PATRIOT Act) of 2001. The legislation was passed a
mere eight days after the attack225 it contained 342 pages and covered a total
of 350 subject areas226, needless to say the Act was an extremely complex
and comprehensive document. The act stated the term domestic terrorism
meant activities that: (a) involve acts dangerous to human life that are a
violation of the criminal laws of the United States or of any State. (b) appear
to be intended (i) to intimidate or coerce a civilian population. (ii) to
influence the policy of a government by intimidation or coercion or (iii) to
affect the conduct of a government by mass destruction, assassination, or
kidnapping and (c) occur primarily within the territorial jurisdiction of the
222 Ibid 223 In response to the World Trade Centre bombing in 1993 and the Oklahoma City bombing in 1995 Congress passed two major pieces of legislation the following year. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Defense Against Weapons of Mass Destruction Act of 1996.224 Young, R. Defining Terrorism: the Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation Boston College International and Comparative Law Review 29 (2006) 23-102 pp 76225 Harvard Journal on Legislation 39 (2002) 435-453 pp 438226 Young, R. Defining Terrorism: the Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation Boston College International and Comparative Law Review 29 (2006) 23-102 pp 76
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United States.227 The Act expanded the federal government’s powers in the
areas of surveillance in interception of wire, oral and electronic
communication. It gave authorisation for the confiscation funds and
property of foreign nationals suspected of being involved in organising an
attack against the United States. In addition, immigration laws were made
more restrictive, new crimes connected to terrorism were constructed and
existing crimes were expanded.
Politically the Act received a great deal of support, when the bill passed it
was done with a significant margin in its favour.228 However, detractors
made up of immigrant organisations, civil libertarians, and privacy
advocates saw the act as a threat to the right to privacy, association and due
process.229 For example, Section 215 of the Act, expanded the types of
records the government could obtain. It now included any particular record
or tangible object and most importantly, it did not require the government to
show proof of suspicion on the part of the individual.230 In addition, the
section contained a gag order forbidding any individual from divulging to
anyone (other than persons necessary to produce the tangible things) that the
FBI required or attained the tangible items under the section.231 Susan
Herman argued that such a provision violated the Fourth Amendment.232
Effectively the government could gather sensitive information on any
individual even if there was no reason to suspect the individual of any
misconduct or connection with terrorists.233 Regarding due process rights,
Section 412 was of particular concern, as it allowed the Attorney General to
detain indefinitely aliens when there were reasonable grounds to believe that
227 Pub. L. 107-56 Section 802, 115 Stat. 376 228 Recent Developments Harvard Journal on Legislation 39 (2002) 435-453 pp 435229 Ibid230 Pub. L. 107-56 Section 215, 115 Stat. 287231 Pub. L. 107-56 Section 215, 115 Stat. 287232 The Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.233 Herman, S. The US Patriot Act and the Submajoritarian Fourth Amendment Harvard Civil Rights-Civil Liberties Law Review, Vol. 41, Issue 1 (2006) 67-132 pp 77
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the alien was a terrorist.234 The individual could be held for a period of
seven days without any criminal charges being brought against him. The
detention could be continued for an additional six months if it was claimed
by the Attorney General that the alien posed a threat to national security or
safety to others. Such a provision was in direct violation of the Fifth
Amendment,235 it is not surprising that there is such distaste for the act both
from activists and in academic circles.236
5.8.7 Differences in Approach
Despite the differences in their approach the common denominator between
these two governments are seen in their definitions, which give insight to
how they view terrorism. As a violent act that is used in order to bend the
will of governments. Both countries mention this fact, within the UK the
word serious is used several times. There is no explanation on what level of
serious is needed but if the word serious is read in its ordinary meaning to
mean not of a trifling nature this would presume that serious should be taken
to mean damage of a high level. The additional intent requirement of an
ideological purpose used in UK legislation is not mentioned in the US
definition. However, it is interesting to note that the US definition
mentioned that the act should ‘seriously destabilise or destroy fundamental
political, constitutional, economic or social structures in a state…’ and
‘influence the policy of a government…’ or ‘affect the conduct of a
government…’ This can be interpreted as the additional intent requirement,
mentioned in UK definition. In addition to intimidation etc both of the
definitions focus on how the act will affect government decisions and
political policies they both state that is must be the ‘intent’ of the act.
Though it has not been explicitly mentioned in the definitions, the need for
234 Pub. L. 107-56 Section 412, 115 Stat.350235 The fifth amendment concerns rights concerning the Grand Jury, Double Jeopardy, Self- Incrimination and Due Process, it advises that no one should be deprived of life, liberty, or property, without due process of law236 See Bloom, R. and Dunn, W.J. The Constitutional Infirmity of Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment William & Mary Bill of Rights Journal 15 (2006-2007) 147-202 and Zelman, J, D. Recent Developments in International Law: Anti-Terrorism Legislation Part II The Impact and Consequences Journal of Transnational Law and Policy 11(2) (2002) 421- 441
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the additional requirement of an ideological purpose is apparent. This
shows that states views on terrorism are understood to be violent acts when
used against the government or civilians to intimidate coerce or bend the
will of governments in the pursuit of a goal with an ideological purpose.
5.9 The Interlocutory Decision of the Special Tribunal for Lebanon
The Special Tribunal of Lebanon (STL) was convened in The Hague with
the purpose of trying individuals responsible for the bombing in Lebanon
that killed the Lebanese Prime Minister Rafiq Hariri and 22 others.
Amongst the international tribunals created the STL is unique. It is the only
international tribunal that has authority over crimes under domestic criminal
law and the only tribunal to date to have jurisdiction over the crime of
terrorism. The Interlocutory Decision of the Appeals Chamber is a
groundbreaking judgment where the Chamber identified a customary
international crime of transnational terrorism existed in law.
5.10 The Applicable Law
Before an analysis of the interlocutory decision is done, it is necessary to
explain briefly the law being applied by the Court. Article 2 of the
Tribunal’s Statue requires that provisions of the Lebanese Criminal Code be
applied in regards to the prosecution of terrorism. This makes the STL
unlike other international courts whose only applicable law is of an
international nature or who apply both international and national law.
Though, the Court’s use of the law is limited to the national criminal law of
Lebanon the Court still has to adhere to the highest standards of justice
required of international tribunals. Hence any law that appears to be lacking
i.e. that is unreasonable, results in evident injustice or is not in line with the
international principles and rules binding on Lebanon237 will not be applied.
Article 314 of the Lebanese Criminal Code (LCC)238 provides
237 Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Special Tribunal for Lebanon 16:02:11 para 39 (‘Decision’)238The Tribunal also made reference to Article 6 which states that any act of terrorism that
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Terrorist Acts are all acts intended to cause a
state of terror and committed by means liable
to create a public danger such as explosive devices,
inflammable materials, toxic or corrosive products
and infectious or microbial agents.239
The actus reus of the offence is comprised of two parts (i) the commission
on any act and (ii) the application of means liable to create a public danger
which are the devices mentioned in the provision.240 The standard practice
of the Lebanese courts has been to interpret the first requirement (the act)
very broadly regardless of the nature of the criminal offence. The second
requirement (the means) is interpreted restrictively it needs the further
requirement of the creation of a public danger added to one of the itemised
means or any other means. In short the only way the act could be defined as
terrorist is if the means (similar to the ones cited in the article) were liable to
create a public danger, namely against the general population.241 This would
exclude other ways in which violent attacks could occur. According to the
Tribunal this exclusion of guns, semi-automatics, automatic machine guns,
revolvers, knives or even letter bombs from the list of means; not amounting
to a terrorist act meant. That any attack on Heads of State, Prime Ministers,
diplomats etc would not be considered as terrorist if they were carried out
by the means excluded as they were less likely to cause danger to the
general population or third parties falling victim to the attacks.242
results in the death of individuals or the total or partial destruction of buildings, ships, industrial plants, other facilities or disrupts the functioning of the services such as transport or telecommunications shall be punishable by death. Additional reference is also made to Article 7 which state that a person who enters into a conspiracy with the intention with the intention of committing any of the acts mentioned in previous articles shall be liable to the death penalty 239 Decision para 68240 Ambos, K. Judicial Creativity at the Special Tribunal for Lebanon: Is there a Crime of Terrorism under International Law Leiden Journal of International Law 24 (2011) 655- 675 pp 660241 Decision para 51-52242 Decision para 54
73
The Chamber disagreed with this literal interpretation of the law on
terrorism by the Lebanese Courts, especially the narrow interpretation of
the means. It would appear that in the opinion of the Chamber such an
interpretation was indeed lacking and needed to be realigned with the
international understanding of what terrorism meant. Thus it turned to
international law for assistance as a corrective tool, the Chamber stated
‘We note, however, that international Conventional
and customary law can provide guidance to the Tribunal’s
interpretation of the Lebanese Criminal Code. It is not a
question of untethering the Tribunal’s law from the Lebanese
provisions referred to in Article 2. It is rather that as domestic
law those Lebanese provisions may be construed in light and on
the basis of the relevant international rules. Thus when applying
the law of terrorism, the Tribunal may take into account the
relevant applicable international law but only as an aid to
interpreting the relevant provisions of the Lebanese Criminal
Code.243
This method of interpretation has confused some, Gillett et al argued that
the Appeals Chamber reasoned that it had to adhere to domestic law.
However, by staying steadfast to the Statute and not applying international
law to the crime of terrorism, the Appeals Chamber still used international
law to interpret and essentially widen the Lebanese definition of
terrorism.244 However, there is no confusion in such an approach, it is an
accepted fact that when States are implementing national laws these laws
must be in line with their international obligations. For example, states are
bound to ensure that their laws fulfil at least the minimum standards of
International Covenant on Civil and Political Rights and the Universal
Declaration of Human Rights. Though there still may be a few states that
do not follow all the rights stipulated in these texts, it would be unheard of
243 Decision para 45244 Gillett, M. and Schuster, M. Fast Track Justice: The special Tribunal for Lebanon Defines Terrorism Journal of International Criminal Justice (2011) 9 989-1020 pp 998
74
them to create national laws that are in contradiction to their provisions.
Hence, all national is law is subject to interpretation to ensure it meets its
various international standards. Furthermore States do not exist in a
vacuum neither do the laws they enact. As such, they are bound to by
international law to adopt the necessary implementing legalisation once they
become parties to international treaties.
5.11 Peculiarities of the Definition
The finding by the Appeals Chamber that terrorism had crystallized into a
discrete crime under international law was bold but not surprising. The
presiding Judge was Antonio Cassese had already maintained in numerous
legal writings that this was already the case in law. The Chamber was
aware that the opinion it set out was very contentious in fact it was
acknowledged, the widely held view by scholars and legal experts was that
no accepted definition existed, this was mainly due to the varying
differences on particular issues.245 However, the Chamber felt that it could
not support this view as evidence had shown that a definition had gradually
emerged. This was to be found in treaties, UN resolutions, and the
legislative and judicial practice of States; which lead to the development of
opinio juris within the international community together with consistent
practice with such opinio. 246 On examination of these elements, the
Appeals Chamber identified acts that comprised the customary definition of
international terrorism.
The perpetration of a criminal act (such as murder kidnapping,
hostage taking, arson and so on, or threatening such an act;
The intent to spread fear among the population (which would
generally entail the creation of public danger) or directly or
indirectly coerce a national or international authority to take some
action or to refrain from taking it
When the act involves a transnational element.247
245 Decision para 83246 Decision para 85247 Decision para 85
75
Like other proposed definitions of terrorism there is the identification of the
criminal act; or an act of violence that is already penalised in law and the
intent that this act should cause fear and/or trepidation in the public to be
used purposely to coerce a government or international organisation. The
centrepiece of their definition is the inclusion of a transnational element. For
the Chamber, this is what sets international terrorism apart from domestic
terrorism, which would be under domestic legislation. The requirement of a
transnational element as specific to the crime of terrorism seems limiting to
terrorism being considered as an international crime. None of the other core
crimes of ICL require a transnational element. ICL is characterised by the
crimes that it criminalises. These are crimes, which are considered truly
abhorrent and affect the consciousness of humanity, hence being labelled as
international crimes. Therefore, it is curious why the Chamber felt the
element was necessary.
The missing requirement in the definition provided by the STL is the
additional intent element of an ideological, political or religious purpose.
This additional intent element is the essence of what terrorism is, a crime
driven by violent behaviour the achievement of which is not personal gain
but the advancement the ideological policy be it religious or political. This
element sets it apart from other grave crimes making the basis of this crime
different. As such to leave out this requirement would dramatically
change the concept of what terrorist crime is and its purpose. The
omission of this element is surprising, as Cassese has often cited in his own
work that such an element was needed.248 The argument may exist that
considering this definition is one based on what is found in customary
international law there was not sufficient convergence on the ideological
requirement. However, it is the opinion of the author that there is sufficient
support for this requirement. Various states have seen the need for such an
element: the United Kingdom, Australia, Canada, New Zealand and the
United States.249 Furthermore, there is support for this view within the UN
248 See Cassese Terrorism as an International Crime Chp10 in Bianchi, A. edited (2004) Enforcing International Law Norm Against Terrorism249 Saul, B. The Curious Element of Motive in Definitions of Terrorism: Essential
76
framework, the 1994 Declaration on Measures to Eliminate International
Terrorism, which was supported by many states; made the distinction
between terrorism and other acts of violence mainly due the motivation
behind the act which was of a political purpose.250 Taking the above
arguments into account the STL should have considered the additional
intent requirement further; this was an indeed missed opportunity.
5.12 A Discrete Crime under Custom
In recognising terrorism as crime under customary law, the STL was
severely criticised. For many authors considering that since the existence of
the League of Nations to the present international law had failed to come to
an agreement on a terrorism definition. The fact that an international
tribunal declared emphatically that there was a definition under international
law was astonishing. The detractors invariably lined up with their
criticisms, of which there are many. One area of the contention is
methodological assessment of the formation of the custom surrounding
terrorism. In an analysis of its sources Saul regarded that the conclusion by
the Chamber was a mistake, and its empirical evidence had no basis in
law.251 He believed that it interpreted the treaties used incorrectly seeing an
emergence of custom where there were only divergent opinions, lack of
definitions present and no definitive crime under treaty law.252 Except for a
consensus that particular offences (such as hijacking or hostage taking) had
entered into the realm of custom, he considers that no such custom exists
and what was witnessed in regards to this emergence was the Chamber use
of poor reasoning.253
Ingredient –Or Criminalising Thought? The University of Sydney, Sydney Law School Legal Studies Research Paper No. 08/123 (2008) Available at:http://ssrn.com/abstract=1291571 Accessed on [01:07:12] pp 3250 Ibid
251 Saul, B. The Special Tribunal of Lebanon and Terrorism as an International Crime: Reflections on the Judicial Function (09:06, 12) The Ashgate Research Companion To International Criminal Law, W. Schabas, Y. McDermott, N. Hayes and M. Varaki, (eds).Ashgate: Farnham, Forthcoming; Sydney Law School Research Paper No. 12/64. Available at SSRN: http://ssrn.com/abstract=2142324 Accessed on 15:06:13 Para 5 Approach to Customary Law252 Ibid From Identifying Custom to Law Making253 Ibid
77
It has been argued that the Chamber’s methodology embraces a modern
approach to custom254 focused on establishing the formation of opinio juris
through the use of treaties, UN resolutions and the legislative and judicial
practice. However, the Chamber does also take into account state practice
by focusing on the judicial decisions of states, thus their approach may be a
merger of both schools of thought.
The Chamber’s approach identifies firstly that there is a general agreement
that there is a need to fight terrorism in all it forms regardless of the
motivations, the perpetrators and victims in international law.255
Furthermore it identified that states had developed the practice that acts of
terrorism when conducted during a time of peace should be punished and
such a punishment was seen as a social necessity (opinio necessitatis) as
such there needed to be a rule in place; this was obligatory (opinio juris). 256
This is found in various international and multilateral treaties that impose on
states the requirement to prevent and prosecute terrorism. It further
confirms this reasoning by identifying judicial assertions to the fact, the
Chamber did recognise that this was not sufficient basis and assessed
national definitions; the purpose of which was to reveal commonalties and
to prove that national legislations clearly expressed the view that terrorism
was regarded as a violation of universal values. Though there were
differences in the state, practice the STL moved beyond that and addressed
the substance behind the definition as apposed to the formation.257 Thus
once the shared elements were identified the state practice was uniformed
despite the form of the definition.258 Thus, the divergent elements in the
definition do not necessarily mean that states do not agree on the essential
254Kirsch, S.and Oehmichen, A. Judges gone astray: The fabrication of terrorism as an international crime by the Special Tribunal for Lebanon Durham Law Review Online pp 8 Available at: http://durhamlawreview.co.uk/attachments/article/26/Judges%20gone%20astray.pdf Accessed on: 03:06:13 255 Decision para 86256 Decision para 102257 Ventura, M. J. Terrorism According to the STL’s Interlocutory Decision on the Applicable Law Journal of International Criminal Justice (2011) 9 1021-1042 pp 1031258 Ibid 1031-1032
78
components of terrorism nor does it impede on a finding of international
custom. As Ventura advised though there are variants in national
definitions of genocide to include political groups, groups based on sexual
orientation, or groups with disabilities, it is not argued that such nations and
even those nations who are not parties to the Genocide Convention (1948)
or the Rome Statute do not recognise genocide as a crime under customary
international law.259 Thus, the assessment considers what is common
amongst states and those who do not concur with the agreement are often
seen as persistent objectors, which customary law makes allowances for.
Ascertaining the emergence of custom is not an exact science; hence the
criticism of its legal effectiveness. The Chamber assessment, of the
literature to determine custom however is carefully structured and sound. It
took into account varying definitions of all legal systems and international
instruments to establish whether common elements existed. They did not
limit themselves to only definitions that were the same i.e. analysing
definitions contained in only civil law systems or common law systems. Its
approach was noted to be that of a line of best fit which avoids extreme
formalism of rejecting a definition because of a strictly uniform approach.260
Such an approach would have only made minor differences seem more
important than they really were and missed the widely regarded core
elements of terrorism.261
5.13 The effect on International Criminal Law
Even though the decision by the STL has been highly controversial, one
cannot doubt the significant contribution that it has made to international
criminal law. There has been for quite some time a deficiency in ICL in
regards to a definition; this has caused (and arguably one of the main
causes) many of the problems such as impunity in regards to terrorist acts,
human rights violations and divergent opinions on the conceptual ideals of
259 Ibid 1033-1034260 Gillet M. and Schuster, M. Fast Track Justice: The Special Tribunal for Lebanon Defines Terrorism Journal of International Criminal Justice (2011) 9 989-1020 pp 1007261 Ibid pp 1007
79
terrorism. The definition provides guidance and at the very least acts as a
minimum benchmark to what terrorism should entail. Thus, both
international and national jurisdictions can use it as direction in their
judgments. Recognising terrorism as an international crime under custom
also has implications for non-state actors who commit terrorist crimes. As
we have seen in the preceding section, the reliance on sectoral treaties and
resolutions alone has not provided an effective deterrence of terrorism. As
many States remain outside the conventions and not all countries ratifying
the conventions proceed to adopt internal enforcement measures.262
With terrorism established, as an international crime the deterrence level is
higher, alleged terrorist suspects will no longer be able to hide from the law.
As States or capable international subjects would be able to prosecute and/or
impose these rules at the domestic level.263 Terrorists would now be
obligated under international law to refrain from taking part in acts of
terrorism. As such, the crimes of terrorism would incur individual criminal
responsibility. This would be a start in ending the culture of impunity that
surrounds individual’s who commit terrorist acts.
Taking the above into consideration once terrorism is regarded as an
international crime there would be no reason for the scope of ICL crimes to
include the crime of terrorism, as it would satisfy all the requirements.
Mainly, that it is an international crime of a serious nature of which the act
shocks the consciousness of humanity.
262 The UN General Assembly, [Report of the High-level Panel on Threats, Challenges and Change, entitled "A more secure world : our shared responsibility"], 2 December 2004, A/59/565, para 149 Available at: http://www.refworld.org/docid/47fdfb22d.html [Accessed on 15:06:13] 263 Decision para 105
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6 ConclusionAlthough detractors of terrorism hold on stubbornly to the belief that the
emergence of terrorism as a legal concept is unfortunate and it acts more as
a hindrance to the law, both national and internationally. It is hard to deny
that terrorism has now become a distinctive legal concept. As the forgoing
analysis has shown, there is a general understanding of terrorism. It entails
acts of violence, directed at civilians causing death, physical injury or
damage to buildings with the intention to coerce a government the intent of
which includes an ideological, political or religious impetus. This has led to
a consensus that acts that follow this pattern of violence are tantamount to a
terrorist act. These acts distinguish the crime of terrorism from other
criminal activity; as its aim is not for personal or monetary gain. The
crime‘s sole purpose is to cause fear because of an ideological goal and
bend the will of governments.
As such subsuming terrorism under current international core crimes will
not address all its aspects and nuances. In regards specifically to war
crimes, the author believes that the law of armed conflict will cover acts of
terrorism conducted during wartime. Particular conventions such as Article
51(2) AP I and Article 13AP II prohibit acts of terrorism with the primary
purpose of causing fear among the civilian population as seen in the case of
Galic. However, the war crime provisions only cover those acts conducted
in the context of an armed conflict. This creates a problem for archetypal
acts of terrorism such as the 1972 Munich Olympics or the 1985 hijacking
of Achille Lauro both of which occurred during a time of peace.264 There is
not question that the contextual elements of war crimes have a limiting
effect on terrorism being prosecuted as a war crime, in particular, the
requirement of an armed conflict. As discussed the existence of the armed
conflict is paramount to the prosecution of war crimes, without it, a war
crime ceases to exist. Thus for an act of terrorism to be considered a war 264 Arnold, R. The ICC as a New Instrument for Repressing Terrorism (2004) New York: Transnational Publishers, Inc pp 336
81
crime it would have to create the situation of an armed conflict. As
discussed previously terrorist acts conducted during a time of peace, are not
always able to meet the requirements to initiate an armed conflict.
Of all the core crimes, CAH has been advocated to be the best suited regime
in which to combat terrorism. Without the necessity of an armed conflict, it
has been advocated as the natural course of direction. The analysis
highlights however, that CAH require the fundamental element of being
widespread and systematic and there needs to be a state or organisational
policy. These requirements bar terrorism from developing into a crime
under CAH jurisdiction. Acts of terrorism does not always involve a course
of action that is strategically planned or methodical and the act does not
need to be nor is not always widespread. They can be indiscriminate. In
addition, with more and more terrorist acts being performed by non-state
actors it is important to not to be swayed by the atrocity of the acts and
focus more on the character of the organisation. Herein lies the danger with
terrorism being prosecuted as a CAH, the large loss of life overshadowing
the legal requirements. As such, any group of individuals with the means
can conduct a terrorist act. It is not the act however, that makes a group
one with a state or organisational policy.
For it is not the cruelty or mass victimization
that turns a crime into a delictum iuris gentium
but the constitutive contextual elements in which
the act is embedded.265
Notably, neither war crimes nor crimes against humanity acknowledge the
intention to bend the will of a government or organisation, or the additional
intent component of and ideological, political or religious impetus. Just as
the contextual elements of War Crimes and CAH define the character of the
crimes so to do the requirements of terrorism identified by the author. The
coercive element, which is the intent of the act mainly to cause fear and
265 Situation para 52
82
intimidate governments, and the additional intent element, which separate
terrorism from ordinary crime, are integral components to the crime of
terrorism. Without which the crime of terrorism becomes more of a crime
focused on personal motive.
The correct way to address terrorism within the framework of international
criminal law is not as a subset of a core crime. Rather, it should be
recognised as an international crime. This recognition is not farfetched. In
fact, the author argues it may be long overdue. The corpus of international
conventions, national legislation and judicial decisions all point towards this
natural progression. Taken together we can identify themes. Firstly, acts of
terrorism are a serious threat to international peace and security. As
discussed the Council has reiterated this point in several resolutions, thus it
created obligations for states to adhere, hence the Council assumed a more
quasi-legislative role. Such a role has been critiqued as overstepping its
limits,266 the Council’s legitimacy as the foremost international body
however gives it the authority to impose binding obligations on all states.
However, what constitutes a threat to international peace and security is a
constantly developing and very political.267 A UN High-Level Panel on
Threats Challenges and Change in December 2004 did however include,
among other traditional threats, terrorism as a threat to international peace
and security268 This is a clear indication of the seriousness that the
international community views the terrorist threat. Secondly, there is a
clear prohibition of the crime under customary law. All the sectoral treaties
on terrorism prohibit various actions that constitute the crime of terrorism,
taken together they point to the emerging consensus of the illegality of
terrorist acts. States have adopted many of these treaties, this attests to the
developing opinio juris believing the treaties have crystallised into law. A
266 See Saul, B. , B. Definition of Terrorism in the UN Security Council: 1985-2004 (2005) 4 141-166267 Ibid pp161268 See The UN General Assembly, [Report of the High-level Panel on Threats, Challenges and Change, entitled "A more secure world : our shared responsibility"], 2 December 2004, A/59/565, available at: http://www.refworld.org/docid/47fdfb22d.html Accessed on 15:06:13
83
fact noted by the STL who indicated the development of terrorism as an
international crime.
Where does the international community go from here? The author suggests
the adoption of a definition of terrorism as the first step in the right
direction. A straightforward and inclusive, definition of terrorism would
ensure that the current laws of criminality are matched with the requisite
empowerment of international judicial institutions to bring terrorists to
justice.269 The lack of a definition has plagued the international community
for too long and has impeded terrorists being brought to justice and creating
an atmosphere of impunity. Considering its high adoption and, that it is the
first modern convention to articulate a definition of terrorism. The
definition supplied in the Convention for the Suppression of the Financing
of Terrorism (1999) could provide a foundation for an international
definition. Though the definition does refer to an armed conflict the author
suggests that any reference to an armed conflict should be removed as
shown previously terrorists acts can occur outside of an armed conflict.
Adopting an international definition would add clarity to the crime of
terrorism. Furthermore as states are bound to adhere to international law
such a move would ensure that states follow the definition. It would serve
as a minimum requirement that governments would have to apply and they
(the states) would no longer be able to avoid their international legal
obligations. With the institution of a definition and the support from the
international community through states and intergovernmental
organisations, (evidenced in the analysis) that terrorism is an attack on
universal values. The crime of terrorism would make a simple transition
into a crime of international criminal law.
269 Lawless, M. Terrorism: An International Crime, National Defence and Canadian Armed Forces Available at http://www.journal.forces.gc.ca/vo9/no2/05-lawless-eng.asp Accessed on 13:06:13
84
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RESOLUTIONS AND TREATIES
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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949
UNGA Resolution A/RES/3034(XXVII) 18 Dec 1972
UNGA Resolution/49/60 17 February 1995
UNGA Resolution A/RES/34145
UNGA Resolution /54/164 24th February 2000 UNGA Resolution /56/1 18th September 2001
UNGA Resolution /58/174 10th March 2004
UNSC/RES. 1566
U.N. Doc S/Res/1566 (Oct. 8 2004)
UNSC/RES/579 (1985)
UNSC/RES/1368 (2001)
UNSC/RES/1373 (2001)
91
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Jacobelliss v Ohio, 378 U.S. 184 (1964)
North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (1967–1969) (20 February 1969)
Prosecutor v Boskoski and Tarculovski (Trial Judgement) IT-04-82-T, ITCY
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Prosecutor v Furundzija (Trial judgment), IT-95-17/1-T ICTY 10:12:98
Prosecutor v Haradinaj et al (Trial Judgment), IT-04-84-T (ICTY) 03:04:08
Prosecutor v Jean-Paul Akayesu (Trial Judgment) -96-4-T ICTR 2:09:1998
Prosecutor v Stanilav Galic (Appeals Judgment) IT-98-29-A ICTY 30:11:06
Prosecutor v Stanilav Galic (Trial Judgement and Opinion) IT-98-29-T, ICTY 05:12:03
Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Trial Judgment) IT-96-23-T & IT-96-23/1-T, ITCY 22:02:01
Prosecutor v Tihomir Blaskic (Appeal Judgement) 95-14-T ICTY 03:03:00
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