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

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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

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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

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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

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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.

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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

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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

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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.

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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

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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.

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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

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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

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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

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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

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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

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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

69

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

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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

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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

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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

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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

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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

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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

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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

International Conventions for the Suppression of the Financing of Terrorism (ICFST) (1999)

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

Vienna Convention on the Law of Treaties 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331

92

Table of CasesA v Secretary of State for the Home Department [2004] UKHL 56

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

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

Prosecutor v Dragoljub Kurnac, Radomir Kovac and Zoran Vukovic (Appeal Judgment) IT-96-23 & IT-96-23/ 1-A ICTY 12:06:12

Prosecutor v. Dusko Tadic aka "Dule" (Decision on the Defence Motion forInterlocutory Appeal on Jurisdiction) IT-94-1, ITCY 02:10:95

Prosecutor v Dusko Tadic (Appeal Judgement), IT-94-1-A, ITCY, 15:07:99

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

Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Special Tribunal for Lebanon 16:02:11

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