Johan D. Van Der Vyver, Prosecuting Terrorism in International Tribunals

• Citation: Vol. 24 No. 2
• Publication year: 2010
• topic: Criminal Law

PROSECUTING TERRORISM IN INTERNATIONAL TRIBUNALS

Johan D. van der Vyver^*

Prosecution of the crime of terrorism in an international criminal tribunal depends on several basic norms of criminal justice.

(1) To comply with the legal certainty prong of the principle of legality, the crime must be defined with sufficient clarity that would "provide effective safeguards against arbitrary prosecution, conviction and punishment."¹

(2) To substantiate the competence of an international tribunal to be seized with the acts of terrorism, the crime as defined must be included in the subject matter jurisdiction of an international criminal tribunal.

(3) To secure a conviction, conduct of an accused must not fall within the confines of any of the circumstances that have been accepted as grounds of justification for conduct that comes within the definition of the crime.

This Article explores the feasibility of prosecuting terrorism in international tribunals considering, respectively, the above three principles. Part I shows that terrorism comprises willful acts of violence directed against civilians with the intent to spread terror within a civilian population, plus the further intent for such terror to be the instrument through which the perpetrators seek to intimidate the powers that be into submitting to certain (mostly) political, ideological, or religious demands. Part II shows that the subject matter jurisdiction of some, but not all, international tribunals includes international terrorism. Part III seeks to discredit the view that a certain noble cause can legitimize terror violence as an instrument to realize such causes.

Part IV is devoted in greater detail to the status of terrorism within the context of prosecutions in the International Criminal Court ("ICC") and the ad hoc tribunals. It shows that the subject matter jurisdiction of the ICC does not include terrorism, but terrorism can come within the confines of certain crimes over which the ICC has jurisdiction. Although the Statute of the International Criminal Tribunal for the former Yugoslavia ("ICTY Statute") does not mention terrorism by name, instances of terrorism have been prosecuted in the International Criminal Tribunal for the former Yugoslavia ("ICTY") as violations of the rules and customs of armed conflict that prohibit "[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population."²

Part V is devoted to brief comments on criminal prosecutions as a means to combat particular instances of terrorism or international terrorism in general. Although acts of terrorism should never go unpunished, this Part argues that negotiation, mediation, and conciliation eliminate terrorism more effectively than law enforcement and armed conflict.

I. TERRORISM DEFINED

Terrorism, which comprises violence against innocent civilians or civilian objects, is used to intimidate the powers that be to submit to the perpetrator's demands.³Terrorism has been defined as:

Any 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 and context, is to intimidate a population, or to compel a Government or any international organization to do or to abstain from doing an act.⁴

Resolutions of the General Assembly refer more generally to "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 . . . whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them."⁵

Terrorism can more precisely be defined as acts of violence⁶deliberately aimed at civilian targets⁷with a view to promoting (mostly) a preconceived political objective.⁸This political objective is achieved by intimidating the target of such violence (which need not be, and seldom is, the victims themselves)⁹to submit to the demands of the perpetrators¹⁰out of fear emanating from the threat or actual abhorrence of the act.¹¹

Typical terrorists fanatically devote themselves to their objective and act from inflated feelings of self-righteousness. They are motivated by feelings of "misery, frustration, grievance and despair,"¹²which result from their inability to achieve their objective using regular or lawful means, or through an armed struggle conducted in accordance with the laws and customs of war. The victims of their violent acts are seldom the people or institutions whose attention they seek to attract through their evil deeds. In some cases, the terrorists are quite prepared to sacrifice their own lives to advance the cause and execute the violent act. They might even intend to commit suicide as a strategy for success and/or to add personal martyrdom to their cause.

Terrorism is thus a crime based on intent-or to be more precise, on special intent, or to be even more precise, on special intent on two fronts. An act of violence must be willfully committed against individual civilians or against the civilian population, and must furthermore be committed with special intent to spread terror within the civilian population and with the further special intent to achieve a particular political, ideological, or religious objective.

II. CONDEMNATION OF ACTS OF TERROR VIOLENCE

The United Nations often addressed international terrorism,¹³culminating in the 1994 Declaration on Measures to Eliminate International Terrorism,¹⁴which was supplemented in 1996 by further measures,¹⁵the 1998 International Convention for the Suppression of Terrorist Bombings,¹⁶and the 1999

International Convention for the Suppression of the Financing of Terrorism.¹⁷

Following the September 11th terrorist attacks, the Security Council added its voice to the ongoing concerns regarding terrorism, noting, amongst other things, that "acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations."¹⁸

International conventions are binding on states parties to those conventions only and cannot, therefore, create binding obligations enforced against natural persons (commonly referred to in Anglo-American sources as "individuals").¹⁹

If a state party to a crime-creating treaty undertakes to subject the conduct of its private citizens to punishment, it must do so through its municipal criminal justice system.²⁰On the other hand, in international criminal law, violations of customary international law may produce individual criminal responsibility.²¹

But then, the crime must be clearly defined and must be included by international agreement in the subject matter jurisdiction of the international criminal tribunal where the perpetrator is to be brought to justice.²²Customary international law has thus far criminalized acts of terror violence as a war crime only.²³

In the Čelebići case, a Trial Chamber of the ICTY stated that civil unrest and terrorism do not constitute armed conflicts, absent the "protracted extent of the armed violence" and the "extent of organisation of the parties involved" required for violent conduct to qualify as an armed conflict not of an international character.²⁴France added a declaration to its instrument of ratification of the ICC Statute which likewise proclaimed that "the term 'armed conflict' . . . in and of itself and in its context, refers to a situation of a kind which does not include the commission of ordinary crimes, including acts of terrorism, whether collective or isolated."²⁵

This must not be taken to mean that resorting to acts of terror committed as a strategy of war by an organized armed group engaged in protracted violence against governmental armed forces-or against the forces of another armed group not aligned with any Government-would disqualify the struggle from being an armed conflict not of an international character. The events of September 11th have again reminded us that terror violence is not confined to individual perpetrators but, at the other end of the spectrum, has also come to be a strategy of belligerency with international dimensions. Resistance strategies in Palestine, past armed struggles of Africans subject to colonial rule or a racist regime, and militant efforts to bring about political change, or to retain the constitutional status quo, in regions such as Northern Ireland, Kashmir, and the Basque regions of Spain, have all included acts of terror violence.²⁶Terrorism has indeed in this day and age become a potent means of combat-both on the national and international level.

Terrorism is not expressly included in the subject matter jurisdiction of the ICTY or of the ICC.²⁷The Statute of the International Criminal Tribunal for Rwanda ("ICTR"), and the Statute of the Special Court for Sierra Leone ("SCSL"), on the other hand, do include terrorism as a crime within the jurisdiction of those Tribunals.²⁸

III. LEGITIMATION OF ACTS OF TERROR VIOLENCE

Although the UN instruments referred to above were based on the obvious premise, that terrorism is a crime, there are also those who believe that acts of terror embarked upon for certain "noble causes" are legitimate and should therefore not be punished.²⁹It has thus been argued, somewhat obscurely, that law excludes the struggle for self-determination and independence from the concept of terrorism, even though some of the militant acts resorted to by freedom fighters might in themselves contain all the elements of terrorism.³⁰

This view is based on the assumption that the norm against terrorism is subordinate to the right to self-determination of peoples under colonial rule or foreign domination, which right must admittedly be exercised in accordance with the UN Charter and the Declaration on...