FACULTYOF LAW
LundUniversity
Cherise M. Crowe
An Expansion of International Criminal Law to include the Crime of Terrorism
Master thesis
30 credits
Dr. Iryna Marchuk
Master´s Programme in [2010-2012]
[Semester ]
Contents
Summary
acknowledgements
Abbreviations4
1Introduction5
1.1 Overview
1.2 Structure
1.3 Delimitations
2Defining the concept11
2.1 What is Terrorism?
2.2 The Complexity in Establishing a Definition
2.3 Proposed Definitions
2.4 Common Elements
2.5 Terrorism Definition
3The international criminal law framework19
3.1 Components of International Criminal Law
3.2 The Sources of International Criminal Law
3.3 Crimes of International Law
3.4 Terrorism; A Serious International Crime?
4Terrorism within the International law28 framework
4.1 Terrorism and International Criminal Law
4.2 The Rules of International Humanitarian Law
4.3 Terrorism within International Humanitarian Law
4.4 War Crimes
4.5 The Contextual Elements of War Crimes
4.6 Prosecution of the Crime of Terror
4.7Terrorism as a War Crime: Limitation of the Armed Conflict
4.8 Historical Background of Crimes Against Humanity
4.9 Definitions of Crimes Against Humanity
4.10 The Contextual Elements of Crimes Against Humanity
4.11 Terrorism as a Crime Against Humanity
5Terrorism as an International Crime 53
5.1The Evolution of Terrorism
5.2 Terrorism and the International Criminal Court
5.3A Crime Under Custom
5.4 General Assembly Resolutions
5.5 UN Security Resolutions: Pre2001
5.6 Post September 2001
5.7 International Treaties
5.8 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
5.8.5Terrorism Legislation in the United States
5.8.6 Patriot Act
5.8.7Differences in Approach
5.9 The Interlocutory Decision of the Special Tribunal of Lebanon
5.10 The Applicable Law
5.11 Peculiarities of the Definition
5.12 A Discrete Crime Under Custom
5.13 The Effect of International Criminal Law
6 Conclusion82
bibliography87
Table of Cases94
Summary
We 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 11th2001 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 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.
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.
Abbreviations
ATCSAAnti-Terrorism Crime and Security Act
CAHCrimes Against Humanity
IACInternational Armed Conflict
IACOInternational Civil Aviation Orgnization
ICCInternational Criminal Court
ICRCInternational Committee of the Red Cross
ICTRInternational Criminal Tribunal for Rwanda
ICTYInternational Criminal Tribunal for the former Yugoslavia
IRAIrish Republican Army
NIACNon-International Armed Conflict
PTA 2005Prevention of Terrorism Act 2005
SCSecurity Council
SCSLSpecial Court for Sierra Leone
UN United Nations
UNGAUnited Nations General Assembly
UNSCUnited Nations Security Council
UKUnited Kingdom
WCWar Crimes
1Introduction
1.1 Overview
The terrorism phenomenonis 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]
Theinability 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 11thSeptember 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 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 security[12] and the Special Tribunal of Lebanon had declared it a crime 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 andthe 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 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 assessestwo 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 demonstratesthat 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 Galic[15] 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 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 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.
2Defining the Concept
2.1What 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 materialI 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 whereany 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 is[21]and it would also ensure that states adhere to basic human rights standards.
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 consideredwhen 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. Thoughthe 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 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.