International Law and Terrorism

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International Law and Terrorism PIL 2007 Mark
Klamberg

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• Outline
• Conceptual issues
• The international regulatory framework concerning
  terrorism
• State response to terrorism
• Terrorism as an international crime
• Humanitarian law and terrorism controversy over
  additional protocol I
• Human rights and terrorism
• Responsibility of terrorist groups
• Limits on anti-terrorist measures

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• What is terrorism? (I)
• The term terrorism refers to a method by which
  an organisation seeks to achieve a goal, usually
  political, by means of violence and the creation
  of fear.
• Question Does it make any difference what the
  goal is?

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• What is terrorism? (II)
• Alex P. Schmid
• Terrorism is an anxiety-inspiring method of
  repeated violent action, employed by (semi-)
  clandestine individual, group or state actors,
  for idiosyncratic, criminal or political reasons,
  whereby in contrast to assassination the
  direct targets of violence are not the main
  targets. The immediate human victims of violence
  are generally chosen randomly (targets of
  opportunity) or selectively (representative or
  symbolic targets) from a target population, and
  serve as message generators. Threat- and
  violence-based communication processes between
  terrorist (organization), (imperilled) victims,
  and main targets are used to manipulate the main
  target (audience(s)), turning it into a target of
  terror, a target of demands, or a target of
  attention, depending on whether intimidation,
  coercion, or propaganda is primarily sought.

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• What is terrorism? (III)
• Declaration on Measures to Eliminate
  International terrorism annexed to UNGA
  resolution 49/60 (1994)
• 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 circumstance unjustifiable,
  whatever the considerations
• of a political, philosophical, ideological,
  racial, ethnic, religious or any
• other nature that may be invoked to justify them

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• Who are the terrorists?
• From single issue factions to well-armed,
  organized and financed entities in control of
  territory, behaving as a quasi-government and
  aiming for the control of the state, or the
  creation of a new state.
• Question Does state terrorism exist?

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• The international regulatory framework concerning
  terrorism
• No universally accepted definition of terrorism
• No terrorist offence in the Rome Statute
• 12 global multilateral treaties dealing directly
  with specific acts of terrorism
• 9 regional treaties dealing with terrorism as a
  whole, or particular aspect of it
• Other treaties and crimes may be relevant
• Treaties concerning drugs and money laundering
• Terrorist methods may fall under the definition
  crimes against humanity
• Humanitarian law and the protection of combatants
• Human Rights Law
• UN
• Resolutions
• Blacklisting

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• Global multilateral treaties
• ICAO
• 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)
• 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, done at Montreal on 23
  September 1971 (1988)
• Convention on the Marking of Plastic Explosives
  for the Purpose of Detection (1991)
• UN
• Convention on the Prevention and Punishment of
  Crimes against Internationally Protected Persons,
  including Diplomatic Agents (1973)
• International Convention Against the Taking of
  Hostages (1979)
• International Convention for the Suppression of
  Terrorist Bombings (1997)
• International Convention for the Suppression of
  the Financing of Terrorism (1999)
• International Convention for the Suppression of
  Acts of Nuclear Terrorism (2005)
• IAEA
• Convention on the Physical Protection of Nuclear
  Material (1980)
• IMO
• 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)

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• A definition of terrorism
• International Convention for the Suppression of
  the Financing of Terrorism (1999), article 2
• b) 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 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.

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• The international regulatory framework concerning
  terrorism
• Actions provided for by treaties and the UNSC
• To criminalize specific acts
• To acquire jurisdiction over the proscribed acts
  in a variety of circumstances
• To extradite or submit the case to its competent
  authorities for the purposes of prosecution, and
• Obligation to cooperate, mutual legal assistance
  (MLA)

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• State response to terrorism
• Military force
• Economic
• Law enforcement
• Intelligence

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• Terrorism as an international crime
• Resolution F of the ICC Final Act, to be
  considered during the review conference
• Terrorism as a war crime
• AP I article 51(2)
• Terrorism as a crime against humanity

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• Humanitarian law
• GC III (1949), art 4
• Art 4. A. Prisoners of war, in the sense of the
  present Convention, are persons belonging to one
  of the following categories, who have fallen into
  the power of the enemy
• (1) Members of the armed forces of a Party to the
  conflict, as well as members of militias or
  volunteer corps forming part of such armed
  forces.
• (2) Members of other militias and members of
  other volunteer corps, including those of
  organized resistance movements, belonging to a
  Party to the conflict and operating in or outside
  their own territory, even if this territory is
  occupied, provided that such militias or
  volunteer corps, including such organized
  resistance movements, fulfil the following
  conditions
• (a) that of being commanded by a person
  responsible for his subordinates
• (b) that of having a fixed distinctive sign
  recognizable at a distance
• (c) that of carrying arms openly
• (d) that of conducting their operations in
  accordance with the laws and customs of war.

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Humanitarian law AP I (1977), art 44 Art 44.
Combatants and prisoners of war 3. Combatants
are obliged to distinguish themselves from the
civilian population while they are engaged in an
attack or in a military operation preparatory to
an attack. Recognizing, however, that there are
situations in armed conflicts where, owing to the
nature of the hostilities an armed combatant
cannot so distinguish himself, he shall retain
his status as a combatant, provided that, in
such situations, he carries his arms openly (a)
during each military engagement, and (b) during
such time as he is visible to the adversary while
he is engaged in a military deployment preceding
the launching of an attack in which he is
to participate. 4. A combatant who falls into
the power of an adverse Party while failing to
meet the requirements set forth in the second
sentence of paragraph 3 shall forfeit his right
to be a prisoner of war, but he shall,
nevertheless, be given protections equivalent in
all respects to those accorded to prisoners of
war by the Third Convention and by this Protocol.
This protection includes protections equivalent
to those accorded to prisoners of war by the
Third Convention in the case where such a person
is tried and punished for any offences he has
committed.
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• Limits on anti-terrorist measures
• Three different groups
• Terrorist suspects
• People who support the same ideas but who pursue
  these ends by peaceful means
• The general public

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• Limits on anti-terrorist measures
• Right to life
• ECHR article 2 and ICCPR article 6
• ECHR art 2(2)
• Deprivation of life shall not be regarded as
  inflicted in contravention of
• this article when it results from the use of
  force which is no more than
• absolutely necessary
• a) in defence of any person from unlawful
  violence
• b) in order to effect a lawful arrest or to
  prevent the escape of a person
• lawfully detained
• c) in action lawfully taken for the purpose of
  quelling a riot or insurrection.

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• Limits on anti-terrorist measures
• Arrest and detention
• ECHR article 5 and ICCPR article 9 Freedom from
  arbitrary arrest
• ECHR
• Preventive detention not allowed
• In relation to terrorist crimes the requirement
  reasonable suspicion is less strict
• Limited disclosure
• The requirement that the arrested/detained person
  shall be brought promptly to a judge also apply
  in relation to alleged terrorist crimes
• Fair trial
• Independent courts
• ECHR article 6(1) and ICCPR article 14
• Equality of arms and disclosure

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• Limits on anti-terrorist measures
• Supervision
• Interstate
• Human rights treaties and institutions
• National constitutional standards