Criminalizing Terrorist Offenses Defense Institute of International Legal Studies Regional Defense Combating Terrorism Fellowship Program

I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 2 Introduction: Module Objectives Participants will be able to describe the approaches to criminalizing terrorist offenses Participants will be able to list the forums for terrorist prosecution Participants will be able to list the minimum standards for prosecution of terrorist offenses

I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion I. Introduction Pre-9/11 vs. Post-9/11 worldviews Law enforcement, military action and other instruments of national power Deny safe haven Prevention of future attacks 3

II. Criminalization of Terrorist Offenses Are special terrorism laws necessary? Attacks, planning, support, resources, organizations Appropriate level of knowledge or intent? Extent of participation? I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 4

II. Criminalization of Terrorist Offenses Amended laws since 9/11 (e.g., Patriot Act) Law driven by history: CT Conventions I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 5

II. Approaches to Criminalization Explicit definition of “terrorism” and terrorist crimes Reliance on ordinary criminal law Use of terrorist intent elements or aggravating circumstances I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 6

Reliance on convention- based offenses Combination of approaches I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 7 II. Approaches to Criminalization

II. Terrorism as a Crime Violent acts or acts dangerous to life Damage to property? Risk to public health or safety? Interference or disruption of services or systems? I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 8

Terrorist intent element: intimidation or coercion of the public or a government Political, religious or ideological motive? I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 9 II. Terrorism as a Crime

Criminal offenses + terrorist intent element: Involve violent act or acts dangerous to human life that are a violation of the criminal laws of the United States …and… I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 10 II. Terrorism as a Crime

…appear to be intended to: Intimidate or coerce a civilian population; Influence the policy of a government by intimidation or coercion; or Affect the conduct of a government by mass destruction, assassination or kidnapping (U.S.) I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 11 II. Terrorism as a Crime

Criminal offenses + terrorist intent element: “an individual or collective undertaking, the aim of which is to cause a serious disturbance to public order by means of intimidation or terror” (France) I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 12 II. Terrorism as a Crime

Criminal offenses + terrorist connection: belong to, act in the name of, or collaborate with armed bands, organizations, or groups whose goal is to severely disturb the constitutional order or public peace (Spain) I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 13 II. Terrorism as a Crime

II. Jurisdictional Reach Commission or support within border Foreign support of terrorist acts within border Domestic support of foreign terrorist acts Terrorist activities against nationals abroad Terrorist activities by nationals abroad “No safe haven” and “extradite or prosecute ” I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 14

II. Material Support Facilities, transportation, communication Personnel and training Documentation Weapons and explosives Medicine and religious material? Harboring, concealing or disguising nature, location, source or ownership Knowledge or intent regarding use I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 15

II. Financing Terrorism Provide, collect or manage funds, financial services or property with knowledge or intent of use Money laundering Currency smuggling Transactions with terrorists or terror organizations Freeze, seize and confiscate terrorist assets, instruments and proceeds Monitoring and reporting obligations I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 16

II. Attempt and Participation Does offense cover attempts and conspiracies? General code provisions: Aiding and abetting Accessory after the fact Conspiracy Solicitation Is commencement by principal necessary? I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 17

II. Terror Organizations Formation and existence Threats to national security or public order Support or commit criminal offenses Advocate, solicit or incite violence I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 18

Oppose international understanding or peaceful coexistence? Disrespect for human dignity? Different treatment for organizations with mostly foreign members? Direction, membership, support, collaboration I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 19 II. Terror Organizations

Professing to belong to such an organization? Dress or wear, carry or display an article in a manner that arouses reasonable suspicion of membership? Suspension, dissolution or other restrictions on activities and support Terrorism and organized crime I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 20 II. Terror Organizations

II. Other Issues Incitement or advocacy of terrorism (Ex. encouragement or glorification in proposed UK law) Use of WMD Environmental terrorism Convention-related crimes Sensitive information disclosure Ordinary criminal laws Sentencing enhancements Limitations periods I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 21

III. National Criminal Courts Advantages Comprehensive and experienced (Mostly) public evidence Greater confidence in outcome Information about goals and tactics Demonstrates willingness and ability of civilian justice system Commitment to anti-terrorism obligations I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 22

Disadvantages High burdens of proof Strict procedure and evidence requirements Reluctance to use sensitive information I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 23 III. National Criminal Courts

Limits on death penalty Security risks and logistical problems Inability to deter committed extremists Possibility of political spectacle Length and expense I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 24 III. National Criminal Courts

Foreign National Courts Advantages International support Accountability for foreign activities I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 25 III. National Criminal Courts

Disadvantages Availability of sensitive evidence Legal inconsistency or incompatibility Limits on death penalty Terrorist reprisals or political violence I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 26 III. National Criminal Courts

III. International Tribunals Advantages Blueprint of ICTY and ICTR Security Council Chapter VII authority to require cooperation Judges and prosecutors selected by General Assembly or Security Council International authority and legitimacy 23 I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 27

Disadvantages Tribunal fatigue Expensive and lengthy No definition of terrorism Concern for undermining ICC I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 28 III. International Tribunals

Arguments over jurisdiction Access to sensitive evidence Death penalty unavailable Security concerns I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 29 III. International Tribunals

III. Coalition Tribunals Advantages Treaty based Consensus on definition of terrorism Coalition control I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 30

Disadvantages Limited jurisdiction Expense to coalition only Time needed to establish Fluctuating coalition Limited legitimacy Lack of non-party cooperation I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 31 III. Coalition Tribunals

III. Military Tribunals Advantages Greater control Fewer procedural constraints Greater security Use of sensitive evidence I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 32

Disadvantages Negative international reaction POW and lawful belligerent defenses Recast terrorist crimes as part of military struggle I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 33 III. Military Tribunals

IV. Prosecution Standards Human Rights Law (Ex. ICCPR) No arbitrary arrest Accused informed of charges Prompt hearing on lawfulness of detention Right to public trial, except for national security Presumption of innocence I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 34

Time and resources to prepare defense Right to remain silent Speedy trial and appeal to higher tribunal Previously defined or generally recognized offenses Separate standards set byLaw of Armed Conflict I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 35 IV. Prosecution Standards

V. Conclusion Criminal prosecution has risks and benefits Multilateral and domestic legal action enables civilian criminal prosecution I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 36

V. Conclusion Continued improvement and use of civilian criminal justice systems demonstrates willingness and ability of civil democratic institutions to engage terrorist threat Nature and gravity of terrorist threat may require adjustments to existing criminal law and concurrent use of alternatives I. Introduction II. Criminalization of Terrorist Offenses III. Forums for Prosecution IV. Minimum Standards for Prosecution V. Conclusion 37

Criminalizing Terrorist Offenses Defense Institute of International Legal Studies Regional Defense Combating Terrorism Fellowship Program