I. Responding to Terrorism: The Quest for a Legal Definition



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Journal of International Criminal Justice Advance Access originally published online on December 15, 2006
Journal of International Criminal Justice 2006 4(5):933-958; doi:10.1093/jicj/mql074

I. Responding to Terrorism: The Quest for a Legal Definition

The Multifaceted Criminal Notion of Terrorism in International Law

Antonio Cassese*

* Professor of international law, University of Florence; member of the Board of Editors. [ cassesea@tin.it]





   Abstract




 
Contrary to what many believe, a generally accepted definition of terrorism as an international crime in time of peace does exist. This definition has evolved in the international community at the level of customary law. However, there is still disagreement over whether the definition may also be applied in time of armed conflict, the issue in dispute being in particular whether acts performed by ‘freedom fighters’ in wars of national liberation may (or should) constitute an exception to the definition. As a consequence of disagreement on terrorism in armed conflict, states have so far been unable to lay down a general definition of the whole phenomenon of terrorism in a general treaty. The fact, however, remains that under current customary international rules terrorism occurring in a time of peace and which is international in nature (i.e. not limited to the territory of a state and showing transnational connections) may, depending on the circumstances, constitute a discrete international crime, or a crime against humanity. In time of armed conflict, terrorism (i.e. attacks on persons not taking an active part in armed hostilities, with a view to spreading terror among the civilian population) currently amounts to a specific war crime (crime of terror). In time of armed conflict, terrorist acts may also amount to crimes against humanity (if part of a widespread or systematic attack on the civilian population). The objective and subjective elements of each of these three classes of criminal conduct are set out in the article on the basis of existing international law. While in the view of the author, the current legal regulation of terrorism is thus sufficiently clear, the fact remains that states are politically and ideologically divided on whether the actions of ‘freedoms fighters’ involving attacks on civilians should be defined as terrorist or instead lawful. In this contentious area three divergent political trends are emerging in the world community: (i) to sic et simpliciter exempt freedom fighters’ actions from the category of terrorism, without however specifying what law would regulate their actions or whether such actions are in any case always lawful; (ii) to exclude attacks against civilians in armed conflict from the legal regulation of the international rules on terrorism and thus assign such legal regulation to international humanitarian law solely; (iii) to combine the application of both international norms on terrorism and international humanitarian law to actions in armed conflict, classifying as terrorist (not as war crimes) attacks on civilians carried out in the course of such conflicts with a view to spreading fear.




   1. Introduction: the Problem




 
The need for a generally accepted definition of international terrorism is self-evident. Each state, in passing legislation on the matter, may and does of course define terrorism as it pleases. However, terrorism is a phenomenon that very often affects multiple states, which are all compelled to cooperate to repress it. Hence, however imperfect and incomplete, a common working definition is necessary so that all states concerned may agree on the target of their repressive action: how can states work together for the arrest, detention or extradition of alleged terrorists, if they do not move from the same notion? In particular, if some states assert that certain categories of persons who engage in conduct that normally would fall under the definition of terrorism must nevertheless not be classified as terrorists on some ideological or political grounds, how can cooperation be smoothly carried out between these states and others taking a different legal view?

The legally binding Framework Decision on the European Arrest Warrant that the Council of the European Union (EU) passed on 13 June 2002 (and which entered into force on 1 January 2004) is a telling instance of this need for cooperation. The Decision provides that terrorism is one of the offences for which arrest warrants can be issued in one of the Member States of the EU and expeditiously executed in another Member State (see Article 2(2)). Clearly, as far as terrorism is concerned, the Decision can be easily implemented as among Member States of the EU only because on the very same day the EU Council also adopted a legally binding Framework Decision on Combating Terrorism,1 which in Article 1 contained a detailed definition of terrorist offences.2

It is common knowledge that interminable polemical arguments were exchanged between states in the 1970s through the 1990s over what should be meant by terrorism. The bone of contention was two-fold: could ‘freedom fighters’ engaged in national liberation movements be classified as terrorists? Should the working out of international rules on terrorism be made contingent upon delving into the root causes of this phenomenon?3 Many states asserted that as long as no agreement was reached on these two contentious issues, no consent could evolve on the very notion of terrorism either.

As a consequence, treaty rules laying down a comprehensive definition have not yet been agreed upon. However, over the years, under the strong pressure of public opinion and also in order to come to grips with the spreading of terrorism everywhere, in fact widespread consensus on a generally acceptable definition of terrorism has evolved in the world community, so much so that the contention can be made — based on the arguments I shall set forth subsequently — that indeed a customary rule on the objective and subjective elements of the crime of international terrorism in time of peace has evolved. The requisite practice (usus) lies in, or results from, the converging adoption of national laws, the handing down of judgments by national courts, the passing of UN General Assembly resolutions, as well as the ratification of international conventions by a great number of states (such ratifications showing the attitude of states on the matter). In contrast, disagreement continues to exist on a possible exception to such definition: whether to exempt in time of armed conflict from the scope of the definition acts that, although objectively and subjectively falling within its purview, according to a number of states are nevertheless legitimized in law by their being performed by ‘freedom fighters’ engaged in liberation wars.

It would appear that generally speaking the question of investigating the historical, social and economic causes of terrorism has instead been put on the backburner, although very recently the UN Secretary-General has again drawn attention to the need to ‘address conditions conducive to exploitation by terrorists’.4




   2. The Current International Legal Framework




 
A. Factors Pointing to a Generally Agreed Definition of International (or Transnational) Terrorism in Time of Peace
As emphasized above, many factors point to the formation of substantial consensus on a definition of terrorism in time of peace. First, the Conventions on terrorism adopted by the Arab League, the Organization of African Union (OAU) and the Conference of Islamic States, while providing in terms for the aforementioned exception, nevertheless lay down a definition that is to a large extent in line with that enshrined in other international instruments.5 Secondly, both the 1999 UN Convention for the Suppression of the Financing of Terrorism6 and various UN General Assembly resolutions contain a similar notion,7 which is also shared in the Draft Comprehensive Convention on Terrorism that is still being negotiated.8 Thirdly, most national laws,9 as well as national case law, take the same approach.10

What are the elements of this definition on which there is general consent? They are as follows: broadly speaking, terrorism consists of (i) acts normally criminalized under any national penal system, or assistance in the commission of such acts whenever they are performed in time of peace; those acts must be (ii) intended to provoke a state of terror in the population or to coerce a state or an international organization to take some sort of action, and finally (iii) are politically or ideologically motivated, i.e. are not based on the pursuit of private ends.

These are the rough elements of a generally accepted definition. Let us consider how they can be translated into a rigorous articulation within international law. Thereafter, it will be appropriate briefly to look at the contentious exception.

B. The Ingredients of International Terrorism as a Discrete International Crime in Time of Peace


1. The Objective Element
A first element of international terrorism (as distinguished from, i.e. not necessarily coinciding with terrorism under national legislation) relates to conduct. The terrorist act must lie in conduct that is already criminalized under any national body of criminal law: murder, mass killing, serious bodily harm, kidnapping, bombing, hijacking and so on. This conduct may, however, be in some exceptional instances, lawful per se: for instance, financing of an organization. It becomes criminal if the conduct has the requisite connection to terrorism, for example, if the organization to which money is provided or channelled, or on whose behalf it is collected, is terrorist in nature. In that case, the character of the organization makes the otherwise lawful action tainted with criminality.

Furthermore, the conduct must be transnational in nature, that is, not limited to the territory of one state with no foreign elements or links whatsoever (in which case it would exclusively fall under the domestic criminal system of that state). The transnational nature of international terrorism is pithily caught in Article 3 of the Convention for the Suppression of the Financing of Terrorism (‘This Convention shall not apply where the offence is committed within a single State, the alleged offender is a national of that State and is present in the territory of that State and no other State has a basis ... to exercise jurisdiction ...’).

As for the victims of criminal conduct, they may embrace both private individuals or the civilian population at large and also state officials including members of state enforcement agencies.

2. The Subjective Element


A second element characterizing terrorism concerns the purpose of the act. A number of international instruments and national laws provide that the objective pursued by terrorists may be either to spread terror among the population or to compel a government or an international organization to perform or abstain from performing an act.11 Other instruments also envisage a third possible objective: to destabilize or destroy the structure of a country.12

One can understand that, both for descriptive purposes and also in order to cover the whole range of possible criminal actions, these treaties, laws or other legal instruments enumerate a wide set of terrorist aims. In addition, expressly contemplating various alternative purposes pursued by terrorists may prove useful to prosecutors and other enforcement agencies when the demands of terrorist groups are not clear or are not made with regard to a specific terrorist attack; in these cases, in order to classify the conduct as terrorist, it may suffice to determine that at least the immediate aim of terrorists was to spread panic among the population. This, indeed, may greatly facilitate the action of prosecutors in applying national laws against terrorism. However, close scrutiny and legal logic demonstrate that, in fact, the primary goal of terrorists is always that of coercing a public (or private) institution to take a certain course of action. The spreading of deep fear or anxiety is only a means for compelling a government or another institution to do (or not to do) something; it is never an end in itself. Also the destabilization of the political structure of a state is a means of making the incumbent government take a certain course of action. To be sure, in some instances the terrorists’ goal is not set forth in so many words either before or after the terrorist action. For instance, the 11 September attack on the Twin Towers and the Pentagon was not accompanied by demands of the terrorist organization that had planned the attack. Yet, even in these cases, the murder, bombing or kidnapping are not made for their own sake; it is instrumental in inducing a public or private authority to do or refrain from doing something. In the 11 September case, the attack was clearly intended to prompt the US government to change its overall policy in the Middle East, in particular, by pulling out its military forces there and reversing its policy vis-à-vis Israel.

Hence, it can be said that ultimately terrorism always pursues one primary and essential purpose, that of coercing a public authority (a government or an international organization) or a transnational private organization (for instance, a multinational corporation) to take (or refrain from taking) a specific action or a certain policy. This is the hallmark of any terrorist action.

The purpose in question can be attained through two possible modalities. First, by spreading fear or anxiety among civilians (for instance, by blowing up a theatre, kidnapping civilians or planting a bomb in a train, in a bus or in a public place such as a school, a museum or a bank). Clearly, the aim of terrorists is to induce the scared population to put pressure on the government authorities. Secondly, the purpose may be achieved by engaging in criminal conduct against a public institution (e.g. blowing up, or threatening to blow up, the premises of Parliament, the Ministry of Defence or a foreign embassy) or else against a leading personality of a public or private authority (for instance, the head of government, a foreign ambassador, the president of a multinational corporation and so on).

Another element unique to terrorism regards motive. The criminal conduct must not be taken for a personal end (for instance, gain, revenge or personal hatred). It must be based on political, ideological or religious motivations. Motive is important because it serves to differentiate terrorism as a manifestation of collective criminality from criminal offences (murder, kidnapping and so on) that are instead indicative of individual criminality. Terrorist acts are normally performed by groups or organizations, or by individuals acting on their behalf or somehow linked to them. A terrorist act, for instance the blowing up of a disco, may surely be performed by a single individual not belonging to any group or organization. However, that act is terrorist if the agent was moved by a collective set of ideas or tenets (a political platform, an ideology or a body of religious principles), thereby subjectively identifying himself with a group or organization intent on taking similar actions. It is this factor that transforms the murderous action of an individual into a terrorist act.

Let us now translate the above into rigorous legal language. It can be said that for terrorism to materialize two subjective elements (mens rea) are required. First, the subjective element (intent) proper to any underlying criminal offence: the requisite psychological element of murder, wounding, kidnapping, hijacking and so on (dolus generalis). Second, the specific intent of compelling a public or a prominent private authority to take, or refrain from taking, an action (dolus specialis).



Motive in criminal law is normally immaterial (‘an actor's ultimate reason for acting may not bear on his liability’13), although it sometimes is taken into account under some specific conditions in a few national legal systems.14 Motive exceptionally becomes relevant here: as noted earlier, criminal conduct must be inspired by non-personal inducements. Hence, if it is proved that a criminal action (for instance, blowing up a building) has been motivated by non-ideological or non-political or non-religious considerations, the act can no longer be defined as international terrorism, although it may of course fall under a broader notion of terrorism upheld in the state where the act has been accomplished. This, for instance, holds true for cases similar to an American criminal act that lacks, however, the transnational element proper to international terrorism: Timothy McVeigh's blowing up in 1995 of a public building in Oklahoma City, with the consequent death of 168 persons. Reportedly that action was carried out in revenge for the killing, by the FBI, of members of a religious sect at Waco, Texas. Similarly, if bandits break into a bank, kill some clients and take others hostage for the purpose of escaping unharmed with the loot, this action cannot be classified as terrorism, although the killing and hostage-taking are also intended to spark terror among civilians and compel the authorities to do or not to do something. Here the essential element of ideological or political motive is lacking. Consequently, the offence is one of armed robbery aggravated by murder and hostage-taking, not terrorism. Let us take another example, namely the episode at the Los Angeles International airport (where on 4 July 2002 an Egyptian fired at and killed some tourists who were about to take a plane bound for Israel, and was eventually shot down by enforcement officers). To determine whether this was a terrorist act or simply murder, one ought to inquire into the possible motives of the killer; in that case, these motives could have been inferred from his life, his possible statements, his criminal record, any links he might have had with terrorist groups and so on.

Let me add that of course, motive by itself may not suffice for the classification of a criminal act as terrorist. To clarify this point I shall give an example (although it again relates to terrorist groups that were not involved in transnational terrorism, it may nevertheless be useful for illustration purposes). In the 1970s, some terrorist groups in Italy and Germany (respectively the Red Brigades and the Rote Armee Fraktion) carried out armed robberies against banks to replenish the organization's funds. Here the motive of the criminal act was not personal (to acquire a private gain), but collective (to boost the organization's cash). Yet, the action was not terrorist in nature, but an ordinary criminal offence, because another crucial element proper to terrorism was lacking (the purpose of compelling through criminal conduct an authority to take a certain stand). This conclusion does not exclude however that individual national criminal systems may consider that, since the aforementioned acts were performed to support a terrorist organization, the crimes involved must be characterized as terrorist at least for such purposes as jurisdiction, the use of special investigative methods and so on.

The legal relevance of motive for determining whether one is faced with a terrorist offence does undoubtedly pose serious problems for any prosecutorial agency or criminal court. It may admittedly prove hard to find the reasons that inspired the agent, and to disentangle the specific basis for his action from the intricacies of his possible motivations. In particular, it may be laborious to establish whether he acted out of political, ideological or religious motivations. In addition to this factual difficulty, it may also be difficult to decide in a particular instance whether a set of ideas or aspirations make up a political credo, an ideology or a religion. One easy way out could consist of ascertaining whether the agent only acted out of strictly personal reasons, in which case one could rule out that his acts be termed terrorist. Admittedly, the question is complicated and may give rise to much controversy. The fact remains, however, that the nature of motive is taken into account by international rules as one of the discriminating factors in this matter.

C. Specific Sub-categories of International Terrorism as a Discrete International Crime


It is common knowledge that at the time when ideological clashes mired the international discussion on terrorism, preventing the achievement of general consensus on the matter, in order to break the deadlock states opted for the passing of international conventions on specific categories of conduct. They thus agreed upon a string of conventions through which they imposed on contracting parties the obligation to make punishable and to prosecute in their domestic legal orders certain classes of actions. These actions were defined in each convention by indicating the principal outward elements of the offence. The conventions refrained from terming the conduct terrorist and did not point to the purpose of the conduct or motive of the perpetrators either. Instead, they confined themselves to setting out the objective elements of prohibited conduct.

This applies to (i) acts that, whether or not they are offences under national law, may or do jeopardize the safety of aircraft, or of persons or property therein or which jeopardize good order and discipline aboard;15 (ii) unlawful taking control, by force or threat thereof or by any other form of intimidation, of an aircraft in flight;16 (iii) acts of violence against persons on board an aircraft in flight or against the aircraft;17 (iv) murder and other violent acts against internationally protected persons or their official premises, private accommodation or means of transport;18 (v) unlawful possession, use, transfer or theft of nuclear material as well as threat to use it;19 (vi) taking control of a ship by force or threat thereof or any other form of intimidation or acts of violence against persons aboard or against the ship;20 (vii) taking control over a fixed platform by force or threat thereof or any other form of intimidation, or acts of violence against persons on board or against the platform;21 (viii) acts of violence against persons at an airport serving international civil aviation or against the facilities of the airport;22 (ix) the manufacture, or the movement into or out of a territory, of unmarked plastic explosives;23 (x) the delivery, placing, discharging or detonation of explosive or other lethal device in a place of public use, a state or government facility, a public transportation system or an infrastructure facility.24

Other Conventions, instead, besides setting out the objective elements of criminal conduct, also place emphasis on the purpose pursued by the perpetrators. This holds true for the 1979 Montreal Convention against the Taking of Hostages, as well as the 1999 Convention for the Suppression of the Financing of Terrorism. Both Conventions characterize the terrorist actions they deal with as intended to compel a state or an international organization to do or to abstain from doing any act; in addition the latter Convention contemplates the purpose of intimidating a population.25

It is warranted to contend that for the whole range of aforementioned conduct the hallmarks of international terrorism as a discrete crime in time of peace, outlined above, were considered implicit in the banning of such conduct. Indeed, the primary purpose of those conventions was to put a stop to terrorist conduct belonging to each category of action banned by the conventions and increasingly ubiquitous when the conventions were drafted.

Nevertheless, as the classes of actions prohibited by the aforementioned first 10 conventions are very broad, one cannot exclude from the scope of such conventions conduct that, although clearly banned by them, does not fall under the category of terrorism for lack of the requisite elements. For instance, the hijacking of a plane by a robber that aims at obtaining a huge sum of money as a ransom or the release of some fellow criminals in exchange for saving the passengers, plainly falls under the 1970 Hague Convention, without however constituting an act of international terrorism proper.

D. International Terrorism in Armed Conflict: a Sub-category of War Crimes


At present, both international humanitarian law and international criminal law already cover acts of terrorism performed during an international or internal armed conflict.

One question with which we should deal at the outset is that of so-called state terrorism. It is claimed that in time of war attacks carried out by a belligerent against the enemy civilian population may amount to state terrorism. This is primarily a political or ideological catchword without legal value (except when referring to possible instances of state responsibility for serious violations of international law, as we shall soon see). In legal terms those attacks, if they are deliberate and only target civilians, amount to a grave breach of international humanitarian law; if they target instead the enemy combatant but cause incidental damage to civilians, they may be regarded as unlawful if the damage to civilians is disproportionate.26 As we shall soon see, terrorist acts performed by states in time of war can only occur when a belligerent engages in unlawful attacks on civilians intended to spread terror; their planners or perpetrators may consequently be punished for war crimes of terrorism.

Let us now move to the crucial question of terrorist acts performed by combatants (be they members of the armed forces of a state, or rebels or guerrillas, or members of the armed forces of a non-state entity).

International rules indisputably ban terrorism in time of armed conflict. Article 33(1) of the Fourth Geneva Convention of 1949 prohibits ‘all measures ... of terrorism’ against civilians. Although the provision was primarily calculated to forestall terrorism by Occupying Powers or, more generally, by belligerents,27 terrorist acts are also prohibited if perpetrated by civilians or organized groups in occupied territories or in the territory of a party to the conflict. Thus Article 33(1) is a provision of general purport, applicable in any situation (whether terrorism is resorted to in the territory of one of the belligerents, in the combat area or in an occupied territory).

A similar provision is contained in the Second Additional Protocol of 1977. Article 4(2)(d) prohibits ‘acts of terrorism’ against ‘all persons who do not take a direct part or have ceased to take part in hostilities, whether or not their liberty has been restricted’ [Article 4(1)].

The two Protocols also spell out the general prohibition of terrorism. Article 51(2) of the First Protocol prohibits ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’. Article 13(2) of the Second Protocol repeats word for word this prohibition. It can be safely contended that all these provisions reflect, or at least have turned into customary law.28

Thus, international humanitarian law proscribes terrorism both in international and internal armed conflicts. The question, however, arises of whether, in addition to addressing its prohibition to states, international customary and treaty law also criminalize terrorism in armed conflict. An International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber convincingly proved in 2003 in Galic that already in 1992 (when the facts at issue in that case occurred) a serious violation of the prohibition against terrorizing the civilian population entailed, at least under treaty law, the individual criminal responsibility of the person breaching the rule.29

Contrary to this holding, one could object that the Statute of the International Criminal Court (ICC), which carefully and extensively lists in Article 8 the various classes of war crimes, fails to mention resort to terror against civilians. This argument would not, however, be compelling. Indeed, the various provisions of the ICC Statute are not intended to codify existing customary rules; this is borne out by Article 10 of the Statute (‘Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute’), as well as by the fact that some specific provisions of the Statute concerning the crimes over which the Court has jurisdiction go beyond customary or previous treaty rules, whereas others only partially take account of customary law.30

Support for the criminalization of terrorist acts in the course of armed conflict can be found in various normative developments. The relevant provisions of the Statutes of the ICTR and the Special Court for Sierra Leone, in granting these two criminal tribunals jurisdiction over violations of international rules of humanitarian law, include ‘acts of terrorism’.31 This proves that the drafters of those Statutes considered that such acts may amount to war crimes. Also the 1996 ILC Draft Code of Crimes against Peace and Security of Mankind takes the view that ‘acts of terrorism’ committed in internal conflicts constitute war crimes. Furthermore, it seems significant that Article 2(1)(b) of the 1999 Convention of the Financing of Terrorism explicitly refers to ‘a situation of armed conflict’, thus implying that terrorist acts can be committed in such a ‘situation’. Of course the Convention is only binding on the contracting parties. Nevertheless, so far the Convention has been ratified or acceded to by 153 states (only three of which have entered reservation to the relevant treaty stipulation);32 the provision at issue is, therefore, indicative of the generally held view that terrorism is also criminalized in time of armed conflict.

In sum, attacks on civilians and other ‘protected persons’ in the course of an armed conflict, aiming at spreading terror, may amount to war crimes (although not to grave breaches of the Geneva Conventions,33 with the consequence that the Geneva provisions on mandatory universal jurisdiction over such crimes do not apply, such universal jurisdiction being simply authorized by the Geneva Conventions34).

What are the constitutive elements of terrorism as a war crime?

It would seem that in humanitarian law terrorism as a war crime has a narrower scope than the notion contemplated by the whole body of general international law of peace. First of all, the prohibited conduct arguably consists of any violent action or threat of such action against civilians or other persons not taking a direct part in armed hostilities (wounded, shipwrecked, prisoners of war). It can be inferred both from the whole spirit and purpose of international humanitarian law and also from the wording of Articles 4(1) and (2)(d) of the Second Additional Protocol (a rule that, it is submitted, codifies a general principle applicable to any armed conflict)35 that attacks on combatants not being actively engaged in armed hostilities can also amount to terrorism: for instance, attacks (or threats of attack) on officers attending a mass or praying in a mosque, a church or a synagogue, or military personnel taking their children to the movie. This proposition is borne out by the aforementioned Article 2(1)(b) of the Convention for the Suppression of the Financing of Terrorism, which includes among the possible victims of terrorist acts in time of armed conflict ‘any other persons [than civilians] not taking an active part in the hostilities’.

The violent action or threat thereof can also be directed against a civilian object, even if it is empty (for instance, a square, a private building as a theatre), as long as the goal pursued in taking such an action is that of terrorizing the population. As rightly noted by the 2004 British Manual of the Law of Armed Conflict, the rule prohibiting terror attacks ‘would apply, for instance, to car bombs installed in busy shopping streets, even if no civilians are killed or injured by them, their object being to create panic among the population’.36 As for threats, again the British Manual rightly pointed out that ‘threats of violence would include, for example, threat to annihilate the enemy's civilian population’.37 In contrast, the prohibition on terror does not cover terror caused as a by-product of attacks on military objectives ‘or as a result of genuine warning of impending attacks on such objectives’.38

We can thus move to the subjective element of the action or threat of action. Articles 51(2) of the First Protocol and 13(2) of the Second Protocol, which, as I stated earlier, can be taken to spell out in many respects the terse content of other provisions on humanitarian law on terrorism, make it clear that terrorist acts in armed conflict are acts calculated to ‘spread terror’ among the civilian population or other protected persons. Here, then, the purpose of coercing a public (or private) authority to take a certain course of action disappears or, at least, wanes. The only conspicuous purpose appears to be that of terrorizing the enemy. In other words, in international humanitarian law, terrorist acts are acts performed within the framework of the general goal of defeating the enemy. Their ultimate purpose is to contribute to the war effort. Instead of simply attacking civilians, a belligerent carries out actions (for instance, random killing of persons passing through a bridge, or haphazard blowing up of civilian installations, or systematic shelling of an empty place in a populated area) designed to beget profound insecurity and anxiety in the population (and consequently in the enemy belligerent).

It is thus clear that also in time of armed conflict international criminal law requires intent, with the consequence that, as rightly emphasized in Galic, simple dolus eventualis or recklessness must be ruled out.39

In addition, motive becomes immaterial in terrorist acts as war crimes. In time of armed conflict, actions designed to spread terror in the enemy are always ‘public’ in nature and any personal motives (for instance, desire for revenge, racial or ethnic hatred, anger and so on) of the officer or the leader of an armed group ordering such acts does not acquire any legal relevance.

In sum, during an armed conflict, belligerent acts of terrorism, being prohibited and criminalized, are covered both by international humanitarian law and international criminal law. They may also be covered by rules on terrorism as a discrete crime to the extent that a state fighting terrorism is bound by an international convention on terrorism that addresses terrorism both in time of peace and in time of war. In this event, there would be a two-fold legal characterization of the same conduct or the combined simultaneous application of two different bodies of law to the same conduct. A case in point is the Convention on the Financing of Terrorism. If a state is party to such convention, it may apply its provisions to the financing of terrorist acts performed or planned in a foreign country where an armed conflict is underway. It would consequently punish the financing of violent acts abroad directed against persons not taking an active part in armed hostilities, whereas, it would not consider unlawful the financing of groups solely aimed at attacking enemy armed forces in the foreign country concerned.

E. International Terrorism as a Sub-category of Crimes against Humanity


Can terrorist acts amount to crimes against humanity? Yes, subject to a number of conditions.

First of all, it can be inferred from the relevant international rules and case law on crimes against humanity that terrorist acts may fall under this category of crimes, whether they are perpetrated in time of war or peace. Furthermore, they must cause (or consist of) the following conduct: (i) murder, or (ii) great suffering, or (iii) serious injury to body or to mental or physical health, or else take the form of (iv) torture, (v) rape or even (vi) enforced disappearance of persons (namely, ‘arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a state or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time’40).

Terrorist acts must also meet the basic requirements of the category of crimes under discussion. Consequently (i) terrorist action must be part of a widespread or systematic attack against a civilian population; (ii) the perpetrator, in addition to mens rea required for the underlying offence (murder, torture, etc.) must also have knowledge that his action is part of a widespread or systematic attack.

It would seem that, as in the case of terrorism as a discrete crime, also when terrorist acts are such as to amount to crimes against humanity, the victims may embrace both civilians and state officials including members of armed forces. Admittedly, the Statutes of international criminal tribunals, in granting jurisdiction to these tribunals over crimes against humanity, stipulate that the victims of such crimes must be civilian. However, this limitation cannot be found in customary international law, which to my mind provides instead that crimes against humanity may also be perpetrated against military personnel and members of other enforcement agencies.41 Generally speaking, it would be contrary to the whole spirit and logic of modern international human rights law and humanitarian law to limit to civilians (especially in time of peace) the international protection of individuals against horrendous and large-scale atrocities. This, I believe, also holds true for terrorism as a crime against humanity. For instance, it would not make sense to suggest that the 11 September 2001 attacks against the Twin Towers in New York, housing almost exclusively civilians, amounted to a crime against humanity, whereas the crashing of a civilian aircraft into the Pentagon in Washington D.C. constituted a different category of crime because the victims were not civilians but primarily state officials (mostly even military personnel) at work.

In the case of terrorist acts, what matters from the point of view of law is not so much the sheltering of civilians from becoming the target of grave crimes. What is crucial is to avoid (and punish) criminal action, whomever its victims, taken to compel a public or private entity to do or not to do something. In a way, the victims play almost a secondary role in the criminalization of conduct. What clearly emerges from current international law is that the widespread or systematic attack required as the necessary context of a crime against humanity must be one that targets the civilian population. This is only logical, for a widespread or systematic attack against members of armed forces in time of peace would simply constitute part and parcel of an armed conflict (internal if the attackers are within the territory, international if they come from outside); in time of war, depending upon the circumstances that attack could, or could not, amount to a string of large-scale breaches of humanitarian law. If, instead, a widespread or systematic attack is undertaken against the civilian population, for such atrocities to amount to a crime against humanity, one set of atrocities (for instance, torture, rape or other inhumane acts of similar gravity) may also be directed against military personnel.

Let me give some examples. If in time of peace a group of terrorists, in addition to conducting attacks on civilians, engages in atrocities against military or police personnel such as bombing barracks, blowing up police stations, destroying a major building of the defence ministry, or else kidnaps servicemen and subjects them to torture or rape, these acts (murder, imprisonment, torture, rape and so on) should be classified as crimes against humanity. Similarly, if in time of armed conflict an armed group or organization (or even a state), besides indiscriminately and violently attacking on a large scale civilians and other persons not taking an active part in hostilities, captures, rapes or tortures enemy combatants for the purpose of spreading terror among the enemy belligerent or to obtain from him the release of imprisoned members of the group, organization (or state), these acts, which normally would be classified as war crimes, may acquire the magnitude of a crime against humanity.

It is clear from what I have just pointed out that, in addition to the aforementioned objective elements, it is also necessary for the author of terrorist acts to entertain the specific intent required for terrorism as a discrete crime, namely, the purpose of compelling a public or private authority to take, or refrain from taking, a certain course of action, a purpose that may be achieved by either generating fear and anxiety among the public or by other criminal actions (see above).

In sum, terrorism as a crime against humanity substantially constitutes an aggravated form of terrorism as a discrete crime.






   3. The Current Controversy over Acts of Freedom Fighters in Armed Conflict




 


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