Introduction
9/11 was one of the many acts of concentrated, premeditated and intentional attack against a large population that shook one of the superpowers of the world, which is also the reason why the entire world took notice of it. This assignment shall solely focus on the 9/11 attacks and introspect the implications of designating the terrorist attack as a war crime. This shall be done while interpreting the Rome Statute of International Criminal Court which though does not define terrorism, lays an exhaustive definition of war crimes.
The 9/11 trials were undertaken by the Federal Courts in the US and the accused were held guilty of federal charges.[i] On 4th April 2011, the then-Attorney General of the US, Eric Holder, said- “Decisions about who, where and how to prosecute have always been - and must remain - the responsibility of the executive branch." This statement had been made while the case was being transferred back to the military commission from the US District Court for the Southern District of New York. However, examining this statement from an international lens also leads us to the question that seeing the way the trials are being stretched, would an International Court for Terrorism have been better suited for such situations? This shall be another point explored in the article.
Historical Insight
The effort to combat terrorism at the international level dates back nearly 90 years. In 1926, Romania – the first country to introduce the crime of terrorism into its criminal code – asked the League of Nations to consider drafting a convention to render terrorism universally punishable. However, it was not until 1934 after the assassination of King Alexander I of Yugoslavia and French Foreign Minister Louis Barthou prompted the League of Nations to make the first attempt to create international judicial mechanisms to confront terrorism. A group of experts drafted the Convention on the Prevention and Punishment of Terrorism and the Convention for the Creation of an International Criminal Court. Both conventions were signed by 24 governments and ratified by one, but the outbreak of World War II ensured that none of them ever entered into force.
In 2000, the United Nations General Assembly instructed the Ad Hoc Committee for drafting a Comprehensive Convention on International Terrorism[ii] to begin ‘consideration with a view to the elaboration of a comprehensive convention on international terrorism within a comprehensive legal framework of conventions dealing with international terrorism[1]. To date, this aim has not been met. One of the major obstacles in the attempt to reach a consensus on the definition of terrorism is the disagreement on issues related to acts of armed forces and liberation movements.
To date, 19 “sectorial” conventions on terrorism have been signed, covering terrorist bombings, nuclear terrorism, the financing of terrorism, acts against air and maritime security and acts against internationally protected persons. However, a global legal mechanism to combat terrorism in all its forms still seems to be a farfetched reality.
3. Terrorism as a War Crime under Rome Statute
ICC has no direct jurisdiction on acts of terrorism under the Rome Statute. This is because of the majority intention to exclude terrorism by the states present in the Rome Conference 1998. A provision on terrorism was introduced in the conference, which would have included terrorism under the major three categories of crimes the ICC deals with i.e., war crimes, genocides and crimes against humanity. The provision defined the crimes which would constitute terrorism in 3 categories –
● A category providing a basic and standalone definition of terrorism.
● A category defining acts under the six already existing crimes that would amount to terrorism.
● A category specifying that violence on persons or populations by the means of firearms, explosives, weapons and other dangerous substances will amount to terrorism.
However, this entire provision was rejected by the state parties and any mention of this provision was limited to the Resolution E of the Annex to the final Act.
The major reasons behind rejecting the terrorism provision can be explained as follows-
i. The first and the biggest obstacle was the absence of a direct, specific and universally accepted definition of what is terrorism. This was also supported by the ambiguity in regards to the definition proposed in the draft of the provision.
ii. The second reason for the reluctance was that the three core crimes- war crimes, crimes against humanity, and genocide included all the crimes of great concern at that time and terrorism was not considered to be a topic of international concern at that time.
iii. The third reason behind rejecting the inclusion was to avoid burdening the court with the need for a gravity threshold.
iv. The fourth point against the provision of terrorism was that it would put a strain on the acceptance of the entire Rome Statute globally.
v. The fifth argument against this provision of terrorism was that it already existed as a treaty crime under the UN[iii]and there was already a system set to deal with it.
vi. The final objection argued that terrorism is a very sensitive term politically, and if the ICC would deal with matters of terrorism it would be put in the centre of inter-state politics. Which in turn could damage its credibility and position to act as an impartial institution.
However, an amendment on crime of aggression has been added under Article 8 of the Rome Statute on 11 June 2010. This amendment defines the crime of aggression as an act of another state, blockading ports or coastlines, bombing another state, attacking the land, sea or air forces, violating a status of forces agreement by the use of armed contrabands such as weapons, explosives etc. Other than this amendment, the Netherlands has also proposed for terrorism to be added as a prosecuted crime under the Rome Statute.
Where the amendment falls through
Though the amendment is a positive step in the direction of the recognition of terrorism as a war crime, a few other provisions inhibit the same. The primary hurdle to this has been Article 11 that evades retrospective application of the statute. Unlike the ICJ, ICC has jurisdiction to try only those cases that were committed after the enactment of the statute. If we consider acts that qualify as terrorism and have been perpetrated after the Rome Statute was enforced, Article 20 that is a manifestation of the legal rule of double jeopardy and provides that-
“No person who has been tried by another court for conduct also proscribed under article 6, 7, 8 or 8 bis shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:
(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.”
Despite the “global” implications of the terrorist act, the International Criminal Court will be hindered from trying a case due to the inclusion of Article 15 para 5 that says-
“In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.”
Way Ahead
Romania had recently proposed the establishment of an International Court Against Terrorism (ICT). In collaboration with Spain, it has launched a joint consultation process. If established, the court would be empowered to prosecute acts of terrorism in a prospective manner.
It has been proposed that the court shall exercise jurisdiction complementary to both national courts and the ICC. It shall intervene in cases of inability or unwillingness of domestic bodies to try a case concerning terrorism or when the crimes committed fall outside the ICC’s jurisdiction. A balanced representation of the world’s principal legal systems and geographical regions had been planned, along with ensuring gender equity. Besides this, it proposed the creation of a multinational police or security force that shall work if the domestic forces are unwilling to cooperate in securing evidence against the accused.
The acceptance of the court’s jurisdiction shall be subject to an international treaty or a binding act of the United Nations to ensure its universal jurisdiction. However, its enforcement shall be ensured through a binding resolution of the UN Security Council, holding International Criminal Tribunals for Yugoslavia and Rwanda and the Special Tribunal for Lebanon as precedents.
Needless to say, the creation of such a court would face difficulties like the ICC, including deciding a uniform definition of terrorism. In this case, a “common-denominator approach” could be a game-changer. In addition to encompassing the acts agreed upon in existing sectorial conventions, the ICT’s jurisdiction should also be based on customary international law. This means intent should be taken into consideration along with the crime’s gravity and international character.
This plan would only be successful positive interventions by civil societies, academia, and the general public. In times like these when the world is grappling with health and economic challenges, securing the intervention could be difficult. However, considering the larger public good and making states and individuals answerable for terrorist acts committed by them on their homeland or foreign land, this can go a long way.
Endnotes
[1] UNSC Resolution A/Res/54/110 (2 February 2000) Measures to eliminate international terrorism (operational para. 12).
[i] Zacarias Moussaoui, one of the accused, was indicted on conspiracy to commit acts of terrorism transcending national boundaries, conspiracy to commit aircraft piracy, conspiracy to destroy aircraft, conspiracy to use weapons of mass destruction, conspiracy to murder United States employees, and conspiracy to destroy property. [ii] The Ad-hoc Committee was created by UNSC Resolution A/Res/51/210 (17 December 1996), Measures to eliminate international terrorism (operational para. 9). [iii] Chapter VII of the UN Charter that deals with Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression defines the procedure to be undertaken while dealing with acts of aggression.
Priya Chaudhary is a final year law student at Lucknow University. Currently, she is the Editor-in-Chief of Desi Kaanoon and a Peer Reviewer at Swiss Chinese Law Review. She possesses a keen interest in International Humanitarian Law and Human Rights Law.
Image: Credit to Harley Schwadron