Today, the international criminal justice operates in the world that is changing; non-state actors and transnational factors are increasingly powerful. Therefore, it is essential that international system and international criminal justice, as its key part, would be adequate to the contemporary realities. This article considers the issue of terrorism as one of those transnational factors. It discusses whether the International Criminal Court has the capacities to contribute into the international and national efforts to confront terrorism. To this end, it looks specifically at the issue of the ICC jurisdiction to prosecute terrorist crimes.
The major argument is that, although the crime of terrorism is not included into subjectmatter jurisdiction of the ICC, it appears that the Rome Statute provides legal tools to prosecute individuals who commit terrorist acts for the other core international crimes, however, despite of a number of advantages, due to limitations both of legal and political nature, the chances for these tools to be fully applied are minimum.
Law Applicable under Rome Statute and Subject-matter Jurisdiction of the ICC
As a part of public international law, international criminal law relies on the same sources stipulated in Article 38(1) of the ICJ Statute (1946). The ICC is not an exception. The treaty that establishes the ICC is the Rome Statute (1998). Under its Article 21, apart from the Statute itself, the law applicable to the ICC shall be the Elements of Crimes and its Rules of Procedure and Evidence (ICC, 2011) based on the jurisprudence by the previously established ad hoc tribunals. Article 21 of the Statute also stipulates that the ICC shall apply “where appropriate” the treaties (in this case these are Geneva Conventions and Protocols as well as Genocide Convention) and principles of international law, particularly those of armed conflict. The Court may also derive general principles of law by from national laws provided they exercise jurisdiction over the crimes and are consistent with the Statute itself and international law in general. The Statute also maintains that the Court shall interpret and apply law in line with the internationally recognized human rights (Rome Statute, Article 21).
The Rome Statute states the ICC goal as to end the impunity for the most serious international crimes and to help their prevention through integrating sovereign states (signatories to the Statute) and the ICC in one legal system (Sang-Hyun Son, 2010). Under its Statute, the International Criminal Court is a permanent tribunal having the right to exercise its rati one temporis jurisdiction to prosecute individuals for genocide, crimes against humanity, war crimes (and subsequently, crime of aggression)
(Rome Statute, 1998, Article 11). The Statute contains the detailed definitions of such crimes incorporating the content of the Genocide Convention (1949) and the Geneva Conventions (1949) and Protocols (ICRC, 1977) into a single document.
Unlikethe situation, where the states signatories to a particular treaty assume the obligation to prosecute or extradite individuals (therefore individual responsibility for the international crimes is under domestic law) and the failure to do so arises state responsibility, the ICC is aimed at prosecution Ofindividuals internationally for the international crimes (Broomhall, 2003, Bianchi, 2009). It has the jurisdiction to do so when the accused person is a national of a state party, the alleged crime accrued in a state party, or, under Article 13, following the reference made by a state party or the United Nations Security Council.
To sum up, under its Statute, the crime of terrorism is not included into the subject-matter jurisdiction of the ICC. Therefore, the ICC cannot prosecute individuals for the terrorist crimes per se. The question is what about terrorists’ crimes? Is there possibility to bring individuals who committed acts of terrorism to international justice for the other core crimes in the Rome Statute? As has been suggested (Much, 2006; Cassese, 2001) it would allow avoiding endless highly politicized discussions about who must and must not considered “terrorist” and will help to enhance the ICC capacities to achieve its goals of ending the impunity for the most serious crimes. This matter is considered in the following sections.
Crimes against Humanity
Under Article 7 of the Rome Statute of the ICC, crimes against humanity are the following acts committed with knowledge of such as part of a widespread or systematic attack directed against civilian population by means of murder; extermination; enslavement; deportation; imprisonment or other severe deprivation of physical liberty; torture and other intentional inhumane acts causing great suffering, bodily and mental injury; sexual violence of serious gravity; persecution against identifiable groups.
Terrorists often use the means of murder, torture, persecution, and deprivation of liberty for their purposes, therefore to find these elements of crime shall not be difficult. As the ICC is a tribunal for the most serious cases, the argument in favor of investigating and prosecuting only those terrorist acts that meet the standard of widespread or systematic attack seems reasonable because the gravity of these offences explain, why these crimes are of international concern and why those who perpetrate them shall be brought to international justice if states fail to do so under their national jurisdictions. However, the jurisdiction over the isolated terrorist acts or those of lesser impact is not that obvious because sporadic terrorist acts or those of smaller scale may or may not be a part of a larger campaign.
The other reason why legal scholars support the idea to charge terrorists for the crimes against humanity is that Article 7 of the Rome Statute does not require that such acts shall accrue during warfare (Cassese, 2001; Cohen, 2011; Proulx, 2004). There is jurisprudence endorsing this argument. For example STL Appeal Chamber stated that the “extent of the customary rule of an international crime of terrorism extends only to terrorist acts committed in times of peace” (SLTL, 2011).
Indeed, attacks committed in peace time are, arguably, one of those features that distinguish “terrorists” from “freedom fighters”. This means, provided the suggested practice is incorporated into the ICC functions, that those individuals who commit atrocities in peace time cannot escape justice. Yet, the history of how the crimes against humanity have been conceptualized in law, dating back to the Nuremburg Charter (1945), reveals that the notion developed on the background of crimes against peace and war crimes. In this regard the question is whether understanding them otherwise would be a breach of Article 22(2) of the Rome Statute.
To conclude, the ICC has the right to exercise its jurisdiction over the action perpetrated by terrorists if these actions possess the elements of the crime against humanity as defined in the Rome Statute. The lack of any references to war or any armed conflict in the Article 7 as specific requirement of the elements of such a crime provides the possibility to investigate and prosecute, however stipulation of the Article 22 and general principles of the criminal law may pose a number of obstacles.
Terrorists often operate under the conditions of armed conflicts and justify their actions by the logic of war. However, international custom says that even warfare shall be according to law the breach of which must be regarded as unlawful. Law of war or IHL is one of the oldest bodies of law and contains well-established custom, numerously endorsed by treaty law and other sources.
Often terrorists deliberately target civilians and civilian objects, the death and injuries they cause are intently indiscriminate, taking hostages and particular cruelty of their treatment is often a part of their campaign to spread terror. These practices may be a part of the larger armed resistance to the state forces. Any armed resistance to a legitimate government is and will be unlawful under national legislation. Under international law, however, fighters are criminals only if they violate international law of armed conflict. The ICTY Trial Chamber in the Gali case resolved that “prohibition against terror is a specific prohibition within the general prohibition of attack on civilians” (ICTY, 2006).
War crimes, as unlawful acts committed during an international and non-intemational armed conflict, are defined in Article 8 of the Rome Statute. Hence, terrorist acts may be regarded as war crimes when an armed conflict accrues if the elements of crime exist. Underthe Rome Statute, war crimes are grave breaches of the Geneva Conventions, namely, willful killing or causing great suffering; torture, inhuman treatment; humiliating and degrading treatment and other outrages upon personal dignity, in particular rape, sexual slavery and forced pregnancy; extensive destruction and appropriation of property without military necessity; depriving persons of the rights of fair and regular trial; hostages taking. All these may be and have been used by terrorists while committing their actions.
Additionally, applying Common Article 3 of the Geneva Conventions as Protocol I, the Statute stipulates that in the case of international armed conflict serious violations of the international laws and customs such as direct attacks against the civilian population and objects, especially when it is known that it will cause incidental loss of life or injury to civilians; attacking towns and villages which are not military objectives including buildings of religion, education and other civil purposes as well as historic monuments. In the case of a non-international armed conflict “serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law” defined in Article 3(e) of the Statute and are similar to those enumerated in Article 3(b).
To conclude, the Statute of the ICC does not preclude the Court from exercising its jurisdiction over the atrocities perpetrated by terrorists as the war crimes during armed conflict provided the elements of crime are present. However, the possibilities to do so are impeded for a number of reasons. The most problematic of them is classification of conflict. It has been recognized by legal scholars (Marler, 1999; Morris, 2003; Cohen, 2011) and in the jurisprudence; for example by the International Criminal Tribunal for Yugoslavia’s Appeals Chamber in the Tadic case (ICTY, 1995). The contemporary “war on terror” complicates the issue even further as it is very questionable whether international law regards those who perpetrate terror and those who confront them as the lawful participants of an armed conflict. Moreover, this “war” does not have definite geographic location.
The definition “genocide” in Article 6 of the Rome Statute is based on the Convention on the Prevention and Punishment of the Crime of Genocide (UNGA, 1948). Among other elements of crime, genocide is defined as the actions committed with intent to destroy in whole or in part a group of people that can be distinguished by nationality, race, ethnicity, and religion, by the means killing of or causing serious bodily or mental harm to its members or inflicting the conditions of life to bring about its physical destruction.
Although the victims of terrorists’ acts are often members of a certain group, the matter of specific intent is still questionable. Do they aim at destroying a protected group as such either in a whole or in a part? The answer to that question is rather ambiguous. Very often “terrorists use the deaths and injuries they cause as leverage to achieve another goal, and those deaths and injuries are not an end in itself’ (Cohen, 2011).
In some cases, however, it is possible to argue that perpetrators of terrorism have genocidal intent. Thus, the 9/11 attacks may be deemed genocidal as the perpetrators thought them to be a part of a large-scale Al-Qaeda’s campaign to defeat the West, meaning eliminating the Westerners as a distinguished group possessing certain values, mentality, way of life, social and political institutions. Breivik, who was charged and found guilty for terrorism and premeditated murder of 77, explicitly stated that he specifically targeted Muslims. It is important to remember, however, that, being the crime of all crimes, genocide has the highest threshold and is very difficult to prove. Therefore, the jurists within the ICC may opt not to do so even when the elements of crime exist to a certain extent.
The Crime of Aggression
The Review Conference (2010) adopted a definition of the crime of aggression that is now included into the Rome Statute of the ICC and will be in force to those states that have ratified it in compliance with the amendment procedure of the Statute. Article 8 contains the following definition of the crime of aggression: “planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”.
Thus, under the ICC Statute, only states are able to commit act of aggression. Although there have been debate on the matter of “state terrorism”, the notion itself is far too controversial and unlikely to become an international legal norm in the foreseeable future. Therefore, there are minimum grounds to suggest that the ICC will exercise its jurisdiction over the terrorists’ crime as having the elements of crime of aggression.
Interpretation of the Rome Statute and Basic Principles of Criminal Law
The sections above dealt with the possibilities for the ICC to investigate and prosecute terrorists if their actions contain the elements of the four core international crime within its jurisdiction, namely crimes against humanity, war crimes, genocide and aggression. The analysis showed that the ICC has the right to exercise its jurisdiction over the crimes perpetrated by terrorist if there are the elements of genocide, crimes against humanity, war crimes, but not the crimes of aggression. Yet, this endeavor faces a number of legal constraints that are discussed in this section.
Firstly, it requires application of the Statute in the manner it has never seen earlier. Thus, the issue Ofinterpretation arises. Articles 31 and 32 of the Vienna Convention on the Law OfTreaties (1969), reflecting customary international law, maintains that the preference shall be given to the text of the treaty itself but allows expanding the interpretation to the travaux preparatories as well. The existence of the Vienna Convention, however, has not eased the tension between the two approaches to interpretation Ofinternational treaties; literal reading of the text as understood at the time it was written; the goals of the treaty under changing circumstances and realities.
For the purposes of prosecution of the individuals who committed terrorist crimes by the ICC the second approach seems to be preferable, but the ICC faces serious legal constraints to do so. Nullum crimen sine lege, the basic principle of criminal law, which is reflected in Article 22 of the Rome Statute, maintains that a person cannot be punished for an action if it was not criminalized at the time of its commission. Moreover, the Rome Statute specifically calls for the strictest interpretation; expanded interpretation by analogy is, therefore, precluded and mandatory reference to the Elements of Crimes and its Rules of Procedure and Evidence is stipulated.
Secondly, as a basic element of criminal justice is the matter of intent, there might be some reservation from the jurists, as they will have to ignore “terrorist intent”. This specific intent to achieve a cause - be it political, ideological or religious - is characteristic for all terrorist activities. Moreover, there is often said that terrorist intent shall be considered as aggravating circumstances but prosecuting terrorism as a part of the crimes existing in the Rome Statute of the ICC does not allow bringing the matter of these aggravating circumstances into the courtroom. This is one of the reasons why a number of experts call for including the crime of terrorism into the Rome Statute. This matter wifi be discussed further.
Further limitation for the ICC is that, unless the case it referred to the Court by the UN Security Council, its jurisdiction is based on the principle of nationality or territoriality. Therefore, as it has been noted above, the ICC has jurisdiction only over the crimes committed on the territory of a state party or by a national of a state party. This means that those crimes committed by a national of non-party state (or non-consenting state) or in the territory of a non-party state (or non-consenting state) are out of the reach of the ICC jurisdiction. This is a significant factor to be taken into account when an act, which contains the elements of crimes, has been committed by a group of individuals who are nationals of nonparty states. As Morris (2004, p.481), rightly argued none of the 9/11 hijackers would have been brought to justice had they survived and had the ICC been already established. It is important to note that this particularity of the ICC jurisdiction has not precluded it from exercising it over the crimes under its Statute but limits the scope of its geographical reach.
The issue of jurisdiction, in turn, is counterbalanced by Article 1 of the Rome Statute stating that the ICC has “the power to exercise its jurisdiction over persons for the most serious crimes of international concern ... and shall be complementary to national criminal jurisdictions”. According to the principle of complementarity (Article 1, Articles 17 -19), the ICC is meant to be a court of last resort when states parties are either unwilling or unable to investigate and prosecute. If a state is not willing to accept the jurisdiction of the ICC it would be logical to suggest that it either solely assume responsibility to deal with the genocide, war crimes, crimes against humanity committed in its territory or by its nationals or does not recognize the gravity of these crimes as those of international concern and, therefore, put itself beyond international legal system*.
The other problematic issue is that under Article 18 the prosecutor is obliged to communicate the intent to open an investigation. In this case, a state that, for its own political reasons, is not interested in genuine prosecution may initiate the investigation making the case inadmissible to the ICC and try the perpetrators itself and, then the charges may be dropped altogether or the sentence may be considerably less severe. A “terrorism- sponsor” state may even take measures to prevent the ICC investigation. In this case, however, according to Article 17, the ICC has the right to declare such a state officially “unwilling and unable” and ultimately proceed with investigation and prosecution. The other possibility is to obtain the UN Security Council referral to open the case.
On the other hand, it has been argued that the reluctance of states may be eased as long as a comprehensive convention on terrorism is adopted, preferably under the auspices of the UN; that will allow namely including the crime of terrorism into the Rome Statute via referring to that convention. This matter is considered in the following section.
Inclusion of Terrorism as Independent Crime into the ICC Statute
As it has been noted above, there is a legal debate on a possibility of adding terrorism as a separate crime to the list in Article 7. One of the arguments may be that this will establish a crime and identify its elements that will include a requirement of the specific motivation of terrorists. Thus, the logic behind this argument is to elevate the crime of terrorism to that of concern of all humanity, making it one of the most serious international crimes alongside with genocide, crimes against humanity and war crimes.
In order to encompass terrorist acts within the jurisdiction of the
ICC, amendment of the Rome Statute is required. Resolution E of the Rome Conference affirms “that the ICC Statute provides for a review mechanism, which allows for an expansion in future of the jurisdiction of the Court”. Here the issue of definition of terrorism arises. Terrorist crime could be included with a definition that may be elaborated in two ways 1) using existing treaty law in a similar manner it has been done with the Genocide Convention and Geneva Conventions and Protocols via reference to the offenses under existing international counter-terrorism conventions and other legal sources; 2) adoption of a comprehensive convention on terrorism. Let us consider the both possibilities.
There are a number of international treaties dealing with various aspects of terrorist activities. Currently, thirteen counter-terrorism international conventions, developed under the auspices of the United Nations, are in force: conventions and protocols dealing with attacks, seizure and unlawful acts against aircraft and airports (Tokyo Convention, 1963, Hague Convention, 1970, Montreal Convention, 1971, Montreal Protocol, 1988, Beijing Convention, 2010; Beijing Protocol 2010); terrorist bombing and plastic explosives (UNGA, 1991, UNGA, 1997); Hostages Convention (UNGA, 1979); nuclear terrorism (Materials Convention, 1979; Nuclear Terrorism Convention, 2005); suppression of the financing of terrorism (Financing Convention, 1999). The fact that out of 114 states parties to the ICC 108 are signatories of 1999 International Convention for the Suppression of the Financing of Terrorism makes this treaty the most appropriate tool to derive the definition of the crime of terrorism with its subsequent inclusion into the Rome Statue.
Nothing in the Rome Statute precludes from deriving a definition from other sources; UN Security Council Resolution adopted a number of resolutions on terrorism (731, 748, 883) Security Council Resolution 1373 under Chapter VII of the United Nations Charter (UNSC, 2001) is legally binding to the member states. The Appeals Chamber of the Special Tribunal for Lebanon (STL, 2011) issued an interlocutory decision regarding the legal definition of terrorism giving an elaboration of the elements of this crime. It defined the mens rea and actus reus elements of terrorism and merely maintains that crime of terrorism has been defined by international custom.
It is possible however that, given the lack of universally accepted definition of terrorism and highly politicized nature of the matter, a number of states may not “accept the amendment” and “the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by a State Party’s nationals or on its territory” (Article 121(5)). Therefore, it has been argued that the reluctance of states may be eased as long as a comprehensive convention on terrorism is adopted, preferably under the auspices of the UN; that will allow including the crime of terrorism into the Rome Statute via referring to that particular convention. Yet majority of experts are skeptical (Goldstone and Simpson, 2003; Martinez, 2002; Morris, 2003), therefore the second option is even less likely to be realized than the first one.
The article has discussed the issue of the ICC jurisdiction over terrorists’ crimes. It has been concluded that the ICC has the right to exercise its jurisdiction over the action perpetrated by terrorists only if these actions possess the elements of the crimes already existing in the Statute, namely genocide, crimes against humanity, war crimes but not crime of aggression.
Prosecution for each of the above-mentioned crimes has its rational behind. For example, when terrorist acts are committed in the absence of an armed conflict, there is a possibility to bring the perpetrators to justice for crimes against humanity. Those who use terrorism as a means of warfare will be deprived of the “freedom fighters” status and be regarded as criminals. Finding genocidal intentions in terrorist actions may help revealing its inhumane nature and gravity of the offence. Moreover, one may argue that given how politicized the issue of terrorism is, the absence of terrorism as a separate crime under the Rome Statute is rather advantageous. Yet, the analysis showed numerous problematic issues of both legal and political nature.
The Rome Statute, being based on general principles of criminal justice precludes any extended interpretation of the elements of crimes, in this case “genocidal” and “terrorist” specific intent. In other words, general principles of criminal justice says that it is necessary to know not only “what” has been committed but also “why”.
Consequently, the lack of universally accepted definition and a comprehensive international convention on terrorism and the absence of a consensus about the nature of terrorist crime does make the amendment to the Rome Statute almost impossible. However, provided such as amendment has been made, the state parties have the right not of accept it.
The other problematic issue is that territorial and national jurisdiction of the ICC does not allow it to bring to justice those who are not the nationals of the state parties and when the actions themselves do not accrue in the territory of a state party unless there is the UNCS resolution. While, the possibility to obtain such a resolution is often impeded by the geopolitical considerations of its permanent members.
Further, the principle of complementarity and predictability may allow some states sabotaging the investigation and prosecution.
Finally, in order to enable the International Criminal Court to exercise its jurisdiction over terrorists’ crimes either as a part of existing crimes or through amendments of the Statute, the states shall cease to regard terrorist crimes solely as the matter of their national security, or even international security, but accept the notion that terrorism is indeed the crime against all human kind. Moreover, the ICC wifi be able to contribute into ending impunity of terrorists only when those states, which are currently the most active participants in the “war on terror”, join theirs Statute, which is very unlikely.
Thus, the answer to the question whether the International Criminal Court has jurisdiction to prosecute terrorist crimes is the following. The ICC has such a jurisdiction de jure, or, to be more precise, the jurisdiction is over terrorists’ crimes when they contain the elements of the core international crimes under its Statute, namely genocide, crimes against
humanity, war crimes (not crime of aggres- facto, limited. So is the probability to expand sion). The capacities of the Court to exercise its jurisdiction to include the crime of terror- its jurisdiction over terrorists ’ crimes are, de ism into the Rome Statute.
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