1. Lecture III: Terrorism as an International Crime

2. Kofi Annan (2005): "In addition to actions already proscribed by existing conventions, any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians or non- combatants with the purpose of intimidating a population or compelling a government or an international organisation to do or abstain from doing any act."

3.  No universally accepted and comprehensive treaty definition of terrorism  However, there could be a customary rule defining terrorism as a discrete international crime...

4.  Law derived from custom  Recognized by the ICJ (Article 38(1)(b) of the ICJ Statute), the ICC (Article 30 of the Rome Statute) and the UN (Article 92 of the Charter) as a primary source of international law  Requires: ◦ prolonged and consistent actions by most states in the world (usus) ◦ out of a sense of obligation (opinio juris)

5.  According to Antonio Cassese a customary definition of terrorism as a discreet international crime has emerged  Only its exceptions are controversial.  Usus can be inferred from a plethora of Coventions, U.N. resolutions, and national laws  Consequence: Universal jurisdiction!

6.  Terroris acts are: ◦ (a) acts normally criminalized under any national penal system (or assistance in the commission of such acts) whenever performed in a time of peace ◦ (b) intended to coerce a state or an international organization to take or abstain from some sort of action ◦ (c) through spreading fear among civilians or attacking public (or eminent private) institutions ◦ (d) politically or ideologically motivated (i.e. not purely self-interested)

7.  Objective elements (conduct): ◦ conduct already criminalized under international law (or related to such conduct) ◦ transnational in nature  Subjective elements (intent): ◦ purpose: to compell a government/int. organization to perform or abstain from performing an act (end) ◦ by any of the means mentioned above ◦ motive: not purely self-interested, but connected to a collective set of ideas (political, ideological, religious)

9.  Conduct criminalized: ✓ (murder)  in time of peace: ✓  transnational nature: ✓  to compel a government: ✓  ideological motive: ✓

11.  Subjective elements: ✓ (Cassese disagrees)  conduct criminalized: ✓  But transnational character (-)

13.  Objective: ◦ Conduct criminalized: ✓ ◦ transnational nature: (-), ferry incident not in international waters  Intent: ◦ spread fear among the civilian population: ✓ ◦ to coerce a government: maybe ◦ motive: irrational?

14.  Basic criminal offenses on customary law is problematic per se (but see Nuremberg trials)  Many doubt that a consensual definition exists; in fact, some states reject Cassese‘s definition  Where should a terrorist be tried ◦ Universal jurisdiction jurisdiction laws are being pruned worldwide. ◦ It is unlikely that any state would assume jurisdiction now. ◦ The ICC was expressly denied jurisdiction for the „crime of terrorism“

15.  Different approaches: ◦ Freedom fighters cannot – by definition – commit acts of terrorism ◦ To freedom fighters only int. humanitarian law applies ◦ Terrorism is also a crime during armed conflict (Cassese)  „warlike terrorist acts“  Highly controversial !

16.  Pro: ◦ Art. 33 (1), Geneva Convention IV explicitly prohibits „all measures (...) of terrorism“ against civilians during armed conflicts. ◦ Similar prohibitions can be found the Additional Protocols ◦ Case Law ICTY (Galić case)  Con: ◦ Some states explicitly reject the notion (thus, no usus) ◦ Convention envisages terrorism committed by belligerents

17.  A general jurisdiction of the ICC with respect to terrorism was rejected  The ICC according to Article 5 of the Rome statute, however, has jurisdiction with respect to ◦ the crime of genocide ◦ crimes against humanity ◦ war crimes ◦ the crime of aggression  Terrorist acts could sometimes simultaneously be classified as special cases of these crimes.

18.  War crimes (Art. 8 Rome Statute) require: ◦ Either:  Grave breach of the Geneva Conventions  other serious violations of the laws and customs applicable in international armed conflict, OR  in the case of armed conflict, not of an international character, serious violations of Common Art. 3, OR  other serious violations of the laws and customs applicable in armed conflicts not of an international character ◦ And:  act must be part of a plan or policy of a large scale commission of such crime.  awareness of these factors

19.  Article 8(2) Rome Statute of the ICC:  For the purpose of this Statute, "war crimes" means: ◦ (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:  (i) Wilful killing;  (ii) Torture or inhuman treatment, including biological experiments;  (iii) Wilfully causing great suffering, or serious injury to body or health;  (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;  (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;  (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;  (vii) Unlawful deportation or transfer or unlawful confinement;  (viii) Taking of hostages. ◦ Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (...)

21.  Against civilians (-)  Persons not taking part in armed hostilities? ◦ Peacekeeping mission? ◦ Status of off-duty soldiers?

22.  Crimes against humanity (Art. 7) require: ◦ commission of one of the inhumane acts enumerated ◦ act was part of a widespread and systematic campaign directed against the civilian population ◦ mens rea regarding this context

23.  Article 7(1) of the Rome Statute:  For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

25.  Inhumane act (murder): ✓  attack directed against civilian population (requires multiple acts pursuant to or in furtherance of a state of organizational policy): ✓ (other attacks before and after)  mens rea: ✓ (like regarding an attack against children)  NOTE: Russia is not party to the Rome Statute!

26.  Article 6 of the Rome Statute:  For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: ◦ (a) Killing members of the group; ◦ (b) Causing serious bodily or mental harm to members of the group; ◦ (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; ◦ (d) Imposing measures intended to prevent births within the group; ◦ (e) Forcibly transferring children of the group to another group.

27.  Genocide (Art. 6) requires: ◦ (1) that one of the acts listed have been committed ◦ (2) that the particular act has been committed against a national, ethnical, racial or religious group; and ◦ (3) that the crime has been committed with the special intent to destroy, in whole or in part the group, as such (genocidal intent).

28.  Trying terrorists remains primarily a national affair.  Whether terrorism constitutes a discreet internation crime based on customary law is controversial.  Under cirtain circumstances, terrorist acts can simultaneously constitute ◦ war crimes ◦ crimes against humanity ◦ (perhaps) genocide  Then the ICC may have jurisdiction.

29.  Antonio Cassese, International Criminal Law, Oxford (2008), Ch.8.  Richard Goldstone/Janine Simpson, Evaluating the Role of the International Criminal Court as a Legal Response to Terrorism, 16 (2003) Harvard Human Rights Journal 13.  Vincent-Joël Proulx, Rethinking the Jurisdiction of the International Criminal Court in the Post- September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity?, 19 (2004) American University International Law Review 1009.