Essay: International law and terrorism

Introduction
Spain, Iraq, Syria, Egypt, Lebanon, Turkey and now also Belgium and France are one of the countries who are victims of horrifying terrorist attacks. Terrorism used to be sporadic, however, during the years 2013-2016, terrorist attacks evolved into systematic attacks. Terrorism is not only a national crime, but also, a crime of international concern, as we shall see in the thesis. The whole world lives and experiences the impact of terrorism. Recently, terrorism is introduced in the field of International Criminal Law, namely, by the Special Tribunal for Lebanon. The latter is established due to the assassination of former Prime Minister Rafiq al Hariri of Lebanon and approximately, 22 other victims. The Tribunal is a ‘’hybrid’’ tribunal, meaning, that it has both international and national (Lebanese) elements.
The Judges of the STL defined the crime of terrorism on the basis of Lebanese criminal law and relied thereby also on a existing international convention, and Customary International Law. However, the International Criminal Court does not have jurisdiction over terrorism, except the crimes defined in art. 5 of the Rome Statute of the International Criminal Court, namely, genocide, crimes against humanity, war crimes, and the crime of aggression. Consequently, this thesis aims to research:
‘’Prosecuting terrorism in the International Criminal Court: What can the International Criminal Court learn from the Special Tribunal for Lebanon concerning Terrorism?‘’
For the purposes of this thesis, the following sources will be used: case law of various international courts and tribunals, international conventions, law journals and books, and negotiations of the United Nations regarding the issue of Terrorism, and also, other United Nation documents with regards to terrorism.
Initially, the discussion about the lack of a clear international definition of terrorism will start. With the focus on various international conventions and the current situation on the definition of this crime. Moreover, focusing on the Draft Comprehensive Convention and shortly, on the decision of the Special Tribunal for Lebanon for defining terrorism (Chapter 1). Followed by, the findings of the State parties during the negotiations of the Rome Statute in 1998, and also the current situation regarding the inclusion of the crime of terrorism in the International Criminal Court will be manifested. This chapter forms rather a political part of the thesis.
The findings of the States are important and essential in order to understand the reasons, the court lacking jurisdiction of this crime (Chapter 2).
Accordingly, the crime of terrorism will be discussed and analyzed in the light of crimes against humanity and war crimes. The analyses will focus on, whether terrorism can be covered by those two provisions. Furthermore, some obstacles of the ICC will be advocated, as the complementarity principle of the ICC and the referral issues (Chapter 3).
Concurrently, the Special Tribunal for Lebanon’s reasoning and rulings of the Appeals Chamber will be discussed in depth and in length, which might be a little opening door for including this crime internationally (Chapter 4).
Furthermore, the discussions about a ‘’Special Court for Prosecuting Terrorism’’ in international criminal law will be manifested. The arguments, pros and cons will be advocated as to the introduction of such a Court, which only deals with terrorism. Thereby, a view in the domestic systems of some States will be taken into account (Chapter 5). Finally, in the conclusion the research question will be answered according to all these named chapters.
Chapter 1: The growing need to define terrorism internationally
There are imminent struggles in finding a clear, international definition on terrorism, mainly for the reason that terrorism is understood differently by each person. For example, Osama Bin Laden was first a liberator and then a terrorist, Nelson Mandela was first a terrorist and then became a liberator. This is a evident example demonstrating us that the difficulty for defining this crime: ‘One person’s terrorist is another man’s freedom fighter’ . So, what is actually terrorism? Some say that the search for an accepted definition on terrorism in international law resembles ‘the Quest for the Holy Grail’. This demonstrates again that not everyone has the same view regarding the definition of this crime, it is thus rather subjective.
The struggle of finding a clear international definition is tangible since the 1930’s. Since then, there were serious efforts made to achieve consensus on a general definition of terrorism. For instance, the 1937 Convention for the Prevention and Punishment of Terrorism provided a definition on terrorism, unfortunately, it was never adopted due to the difficulties for achieving an agreement on the definition. Currently, there were new attempts to achieve a definition of terrorism, however, there was always a deadlock in achieving such definition.
There are some regional conventions which specifically address particular types of terrorism, for instance the Arab Convention on the Suppression of Terrorism, The European Convention on the Suppression of Terrorism, The Convention for the Suppression of Terrorist Bombings, and so on. In total there are twelve conventions addressing a particular type of terrorism. It is noteworthy to say, that these conventions are not intended to define terrorism, they basically address specific conduct that may fall within the purview of what we know the overarching term of terrorism. The conventions impose obligations on States to criminalize terrorism in their national legal systems. They also set obligate State parties to take measures for the prevention of terrorism. Furthermore, the State parties are obliged to cooperate in the prosecution of this terrorism, for example in sense of extradition or submission of the accused.
1.1 The draft Comprehensive Convention on International Terrorism
The discussion regarding the draft Comprehensive Convention on International Terrorism is for this thesis of great significance. The International Criminal Court (ICC) will be discussed in chapter two regarding this Convention. It all started with the General Assembly of the United Nations, which decided in its resolution 54/110 of 9 December 1999 to give consideration to the elaboration of a Comprehensive Convention on International Terrorism. It entrusted with this task both the Ad Hoc Committee, which was established by resolution 51/210.
During the adoption of resolution 1373 in response to the 9/11 attacks, the Security Council called on all Member States to become parties of existing international conventions concerning terrorism. Also, the Security Council called upon States to adopt wide-ranging measures on their domestic level. This implied that terrorism needed to be defined under international law, and the Security Council saw the necessity of it. The latter has placed pressure on the General Assembly, in order to react to a situation that requires firm action on its behalf. States were not happy with the Security Council’s exercise of Chapter VII authority to mandate certain conduct and impose treaty obligations.
Moreover, during the working group of the Ad Hoc Committee States were unequivocal in their condemnation of terrorism in all forms and manifestations. However, taking away the non-agreement on the definition of this crime, there was a some progress in the achievement of a generic definition of terrorism.
According to Article 2 of the Draft Comprehensive Convention, terrorism is ‘unlawfully and intentionally causing death or serious bodily injury to any person; b) serious damage to public and private property, including a State or government facility (…); or (c) other such damage where it is likely to result in major economic loss. Furthermore, the definition requires that ‘the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act’. However, Article 18 sets out an exception on Article 2 regarding ‘acts carried out during an armed conflict or governed by International Humanitarian Law. Currently’, the draft excludes only ‘armed forces’, thereby exempting only State forces and not others whose conduct would also be governed by International Humanitarian Law, for instance, non-state-actors.
The exclusion states that ‘the activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are already governed by that law, are not governed by this Convention.’ This Convention increased thus some legal and political consequences. The legal consequence lay in the fact that practically no one agrees on a definition. Chapter 2 will discuss the political consequences in the eyes of the States who are opposed or imposed for including the crime of terrorism in the jurisdiction of the International Criminal Court. On 3 and 4 October 2016 the discussions on the Draft Comprehensive Convention will be further discussed , hopefully, the State Parties can then agree on a clear definition, due to the evolving nature of this crime. It should be put on the first of the list.
1.2 The Special Tribunal for Lebanon on the definition of Terrorism
For the purposes of this thesis, the Special Tribunal’s rulings and findings on the definition of terrorism are important. In anticipation of Chapter 4, I would like to give some words with regards to the definition of terrorism. Judge Antonio Cassese was one of the judges who defined terrorism under International Criminal Law, but also, under Lebanese Law. The Articles 2 and 3 of the STL Statute are about terrorism.
Pursuant to Article 2 of the STL Statute, the Tribunal can apply both Lebanese Law and International law for the purpose of interpreting Lebanese Law. The STL took two rules into account, alongside, to the Lebanese Law on Terrorism, in order determine the definition of terrorism: The Arab Convention against Terrorism and customary international law on terrorism. Chapter 4 includes the analyzes of this important ruling of the STL and its impact will then continue.
Interim conclusion
Hence, the will to define terrorism exists, but the agreement on the need for a definition is not in accordance by an agreement on its substance. The work on the Comprehensive Convention on International Terrorism started by the end of 2000, which means in the immediate aftermath of the 9/11 attacks, the United Nations failed to adopt this convention. Even when the pressure was very high and all States were condemning the attacks of 9/11, still, until today we have not an agreed definition. In this chapter, the STL is very shortly discussed, perhaps, the STL can be an opening door in order to define and to prosecute this crime internationally, to be continued.
Chapter 2: The International Criminal Court: a permanent international Court
One of the most important developments of international criminal, is the creation of a permanent criminal court with potentially worldwide jurisdiction. The International Criminal Court has the power to exercise jurisdiction over persons for the most serious crimes of international concern (art. 1 Rome Statute). Furthermore, art. 5 Rome Statute provides the crimes where the Court has Jurisdiction over, namely: the crime of genocide (art. 6), crimes against humanity (art. 7), war crimes (art. 8) and the crime of aggression (art. 8 bis) the latter will be in force in 2017.
The draft Statute of the ICC proposed by the International Law Commission would have given the court jurisdiction over more offences than the ICC has now, for instance, there was a list of ‘ treaty crimes’ which included offences under the multilateral terrorism conventions, the UN 1988 drug convention, the Apartheid Convention and grave breaches of the Geneva Conventions. Since the ICC can only deal with the crimes described above, terrorism is missing, the question is, how is it possible that a serious crime as terrorism can be missed in the jurisdiction of the ICC? The main reason for this lack is the willing of the State parties who did not want to include this crime in the jurisdiction of the Court.
For a clear understanding of this thesis it is necessary to underline the reasons of the States during the negotiations of the Rome Statute of 15 June to 17 July 1998. Since this thesis questions about the prosecution of the crime terrorism under international criminal law, more specifically the ICC, it is important to have knowledge about the findings of States regarding this matter. For instance, why is this crime not included in the Rome Statute? What are the underlying reasons of this decision? First, the discussion of the crime of terrorism in 1998 will be discussed, in the second paragraph the discussions of 2009 during the Review conference will be demonstrated.
2.1. Situation in 1998 during the negotiations of the Rome Statute of the International Criminal Court
During the negotiations of the Rome Statute in 1998 there were opposing and imposing State parties, as to whether include the crime of terrorism in the Rome Statute. One of the imposers were Algeria, Armenia, Turkey and India. There were more imposers, however, only these States will be discussed in this thesis in order to illustrate.
The delegations of Algeria stated for instance that terrorism is one of the serious crimes, which threatens the international peace and security. Therefore, it should be included in the Rome Statute. In line with this, Armenia also noted that terrorism should be included in the Statute, however, that a clear definition in the Statute is needed for this crime, in order to avoid misunderstandings and interpretations in the future.
Turkey was of the opinion that the crime of terrorism was linked with transnational organized crime, the latter was already legally delimited, according to Turkey. However, the international community had failed to develop a general definition on terrorism, Turkey stated. Furthermore, the delegations of Turkey noted that States must refrain from organizing and encouraging terrorist activities. Moreover, that the systematic and prolonged terrorism was a crime of international concern. A systematic terrorism campaign waged by a group against a civilian population would be a crime under international law, and would therefore fall under art. 5 of the draft Statute. Turkey concluded with stating that terrorism was often sustained by large-scale drug trafficking, which had an undeniable international impact, which justifies that the both crimes should be cover under art. 5 of the Rome Statute.
Also India was one of the countries which highly was imposed for including the crime of terrorism in the Rome Statute. The delegations of India found it incomprehensible that the Statute should fail to address terrorism, which is truly an international crime, and had taken more lives than the so-called core crimes in recent decades. I find my self in the arguments of India, stating that terrorism had taken more lives than the other crimes in the Rome Statute, however, it is not a question of currency of victims, it is a question the threat to the international globe.
In addition, the statements of Turkey, that terrorism is systematic and prolonged, if at that time, were terrorism was much lesser than now, it is now then more severe. Thus, terrorism has intensified. The statements of Armenia, regarding the not existence of a clear definition, is somewhat true, this is still one of the main reasons why terrorism is not included in the ICC, and also one of the reasons why the inclusion of the crime was rejected. This discussion will be continued in the next paragraph.
Where there are imposing parties, there are always opposing parties. One of the countries who was opposed for including terrorism in the Rome Statute was Iraq. Also the United Kingdom was opposed, with stating that it is difficult to include treaty crimes, such as terrorism, it was thus a complex issue. Mainly, because the Court was not the adequate forum to try cases of terrorism. Accordingly, the delegation of UK could not see a way of including treaty crimes that would command a general acceptance.
Also, the Arab League was one of the opposing State Parties. It find that there had been no agreed definition on the crime of terrorism, preferably, they would not see terrorism be included in the Statute. However, they stated, should the Conference have the intention to include it, it might be guided by the definition of the crime of aggression and the crime of terrorism laid down in the Arab Convention for the Suppression of Terrorism, which was adopted in Cairo in April 1998.
Also, the United States of America was one of the opposing State parties, stating that including the crime of terrorism would serve no useful purpose, the United States also did not support Resolution E in annex I to the Final Act, for the reason that it seemed to reflect the view that crimes of terrorism should necessarily be included within the jurisdiction of the Court, subject only to the question of defining them. By conferring such jurisdiction on the Court, it might hamper essential transitional efforts at effectively fighting such crimes. It is understandable that the US does not support resolution E of the final act, since that leaves a door open for the ICC, whether or not to include terrorism in the future, if the States, come up with an agreed definition. Perhaps, the US wants to close all the doors for giving the ICC jurisdiction over this crime.
The argument of UK, that the Court is not the best forum to try issues of terrorism, does not find, in my opinion any scrutiny, terrorism, as stated by many other States, is a serious crime of international concern, it is a worldwide crime. Hence, why would the Court not be the ‘’best’’ forum to have jurisdiction over it? Of course, the ICC is a last resort court , however, if the states are unwilling or unable to carry out the prosecution, the ICC has jurisdiction.
The United States was in all forms and manifestations against the idea of inclusion the crime of terrorism, which is understandable due to the fact that the US wants to maintain the terrorism in the hands of domestic systems. The argument of the Arab League, is for a part, now used by the STL, the STL relied on the Arab Convention for the Suppression of Terrorism, which brought up in life an international hybrid tribunal.
2.2. The Review Conference in 2009 on the inclusion of Terrorism in the International Criminal Court
During the Review Conference in 2009 the issue of terrorism was again raised. However, the idea of including the crime of terrorism was rejected, mainly, because there were more States opposed to this idea, rather than, in favor. In the discussions, the Conference stated that the, Conference should focus on strengthening the role of the Court in international Criminal Justice, by including the universality of the Rome Statute.
The Conference noticed that terrorism was already covered by sixteen multilateral conventions hence, there was no problem of a lack of a definition according to the delegations. Does that mean that the problem of a lack of definition is solved? It is true, that the crime is covered by many conventions, but there is still not an agreement on the content of it, as said in the previous chapter.
However, it may the case that the draft Comprehensive Convention will again, not be completed on 3 and 4 October 2016. Perhaps, that the Court can rely on other international conventions which already have defined the crime of terrorism. This was, as we also have seen in chapter one, ruled by the STL, the STL referred hereby to the Arab Convention (an international convention, between all Arab States) and Customary International Law.
During the Review Conference the Netherlands came up with a detailed proposal regarding the inclusion of the crime of terrorism. Firstly, the Netherlands stated that since there is a lack of the definition of terrorism, the same can be done as to the crime of aggression, by including the crime of terrorism in art. 5 (1), simultaneously, postponing the exercise of jurisdiction over this crime until an agreement on the definition, and the conditions for the exercise of jurisdiction are agreed. Secondly, to establish an informal working-group (compared to the working-group on the crime of aggression).
The working-group should thus be tasked with examining the question of the extend to which the Statute might need to be adapted as a result of the introduction of the crime of terrorism, within the jurisdiction of the Court, as well as other questions relevant to the extension of jurisdiction.
However, the approach of the Netherlands was rejected due to two reasons: The States were of the opinion that it was not appropriate to make a reference to the crime of aggression, since the Rome Statute had now entered into force, there were doubts to the feasibility of incorporating the crime of terrorism in the Court’s jurisdiction, because of the absence of a legal definition.
Also, as we have seen in the earlier passage, the Arab League was also of the opinion that terrorism might be guided trough the crime of aggression. Which demonstrates, that States, after ten years, made up their minds, and start to think the same. Perhaps, the ongoing intensity about terrorism will give the States a boost for defining terrorism as soon as possible and give the ICC jurisdiction over this crime.
The Netherlands also referred to Resolution E Final act which already stated :
‘’ Affirming that the statute of the international criminal court provides for a review mechanism, which allows for an expansion in the future of the jurisdiction of the court. Recommends that a Review Conference pursuant to article 123 of the Statute of the International Criminal Court consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the court.’’
By including resolution E in the Final act, the ICC did exclude terrorism completely of its jurisdiction. Which is positive thing, giving the imposing parties some reliance on the ICC. In accordance with this, the Netherlands proposed to modify the Rome Statute as follows:
Article 5:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression;
(e) The crime of terrorism.
‘’The Court shall exercise jurisdiction over the crime of terrorism once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.’’
The discussions about the proposal of the Netherland’s will also be discussed on 3 and 4 October 2016, as earlier written. Perhaps the States will change their minds, due to the increasing nature of this crime, and have more the willingness than first in order to define a definition. Perhaps, the proposal of the Netherlands will then be accepted.
Interim conclusion
As we have seen in this chapter, it is still disputable what ‘’terrorism’’ actually is, there are many imposers, however, more States opposed to the idea of bringing this crime under the Rome Statute.
Perhaps, States will be able to find a solution in the upcoming conference. The proposal of the Netherlands is also a good start, perhaps, more States will come up with proposal’s compared like this, but also, it will encourage the States to think more about the notion of terrorism under the Rome Statute. In line with this, resolution E of the final act, does not opt out that terrorism can one day be included in the Court, thus, it seems not an impossible task to include it, whereby the drafters had such a case in their minds. Also, some States, stated that the ICC already covers the crime of terrorism, if that is the case, then why not including the crime as an independent crime in the Statute? This will be further discussed in the next chapter.
Provisional bibliography
United Nations Documents:
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court, Rome 15 June to 17 July 1998, Official Records, Volume II.
Informal text of Article 2, Report of the Working Group on Measures to Eliminate International Terrorism; Un. Doc. A/C.6/56/L.9, Annex I.B.
Assembly of State Parties, International Criminal Court, Eight Session, The Hague 15 November 2009, ICC-ASP 8/43.
Provisional programme of work of the Sixth Committee for the seventy-first session, 1.
Journals:
Aviv Cohen, ‘Prosecuting Terrorist at the International Criminal Court: Reevaluating an unused legal tool to combat Terrorism’, (2012), Vol. 20:2, Michigan State International Law Review.
Eric Creegan, ‘A Permanent Hybrid Court for Terrorism’, (2011) 237-313, American University, International Law Review 26 no. 2.
Matthew Gillet and Matthias Schuster: ‘The Special Tribunal for Lebanon Defines Terrorism’, (2011) – 989-1020, Journal of Criminal Justice.
Mahmoud Hmoud, ‘Negotiating the Draft Comprehensive Convention on International Terrorism’, (2006), Journal of International Criminal Justice.
G. Levitt, ‘Is ‘’Terrorism’’ Worth Defining?’, Ohio Northern University Law Review (1986).
Lucy Martinez, ‘Prosecuting Terrorists at the International Criminal Court: Possibilities and Problems’, (2002-2003), Vol. 34:1, Rutgers Law Journal.
Laura M. Olson, ‘Prosecuting Suspected Terrorist: The ‘’War on Terror’’ Demands Reminders About War, Terrorism and International Law’, (2010), Vol.24, Emory International Law Review.
R. Higgins, ‘The General International Law of Terrorism, in R. Higgins and M. Flory, Terrorism and International Law’, (1997), Routledge, London.
Sandra L. Hodgkinson, ‘Are Ad Hoc Tribunals an Effective Tool for Prosecuting International Terrorism Cases?’, (2010), Vol. 24, Emory International Law Review.
B. Saul, ‘Defining Terrorism in International Law’, (2008), Oxford University Press, USA.
Jean-Marc Sorel, ‘Some Questions About the Definition of Terrorism and the Fight Against Its Financing’, (2003).
Books:
Robert Cryer et al., An Introduction to International Criminal Law and Procedure, Cambridge third edition (2014).
Helen Duffy, The war on Terror and The Framework of International Law Cambridge University Press (2005).
Case law:
Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging (Appeals Chamber), STL-11-01/I, 16 February 2011.
Order on Preliminary Questions Addressed to the Judges of the Appeals Chamber pursuant to Rule 68, paragraph (G) of the Rules of Procedure and Evidence STL-11-01/I, 21 January 2011.
Resolutions:
Council Resolution 1566, 2004.
Council Resolution 1373, (S/620) 2009.
Law Conventions:
Rome Statute of the International Criminal Court (1998).
International Convention for the Suppression of Terrorist Bombings (1998)
The Arab Convention on the Suppression of Terrorism (1998).
The Statute of The Special Tribunal for Lebanon (2009).