Terrorism and Universal Jurisdiction: Opening a Pandora's Box?

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 27 No. 2

Georgia State University Law Review‌‌‌‌

Volume 27

Issue 2 Winter 2011 Article 13

1-1-2011

Terrorism and Universal Jurisdiction: Opening a Pandora's Box?

Luz E. Nagle

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Recommended Citation

Nagle, Luz E. (2010) "Terrorism and Universal Jurisdiction: Opening a Pandora's Box?," Georgia State University Law Review: Vol. 27: Iss. 2, Article 13.

Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss2/13

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TERRORISM AND UNIVERSAL JURISDICTION: OPENING A PANDORA’S BOX?

Luz E. Nagle*

INTRODUCTION

The relationship between terrorism and international criminal law has provoked a good deal of discussion in the wake of the terrorist attacks of September 11, 2001 in New York City and at the Pentagon in Washington, D.C. A particularly challenging issue pertains to whether terrorism is an international crime or a transnational crime, and if and in what context offenders and offenses, to which we affix the label of terrorist and terrorism, should or can be subject to the limited jurisdiction of the International Criminal Court (ICC) and other international and national criminal tribunals.

While there are those who feel that terrorism should fall under the purview of universal jurisdiction, some scholars1 argue that even while the “international state of emergency”2 triggered by the events of September 11 generated worldwide, extensive, and severe legislation internationalizing a crime that is mainly “set deep within national borders,”3 acts of terrorism fail to merit ICC jurisdiction because the parameters of such acts remain undefined due to politics. The ICC “would be hard pressed to fulfill the goals of deterrence and

* Professor of Law, Stetson University College of Law. The author wishes to thank Ms. Aliza Hochmon and Graduate Research Assistant Sarah Moses for their valuable research and editing assistance in the drafting of this article. Ms. Moses, in particular, provided exceptional feedback and valuable editorial suggestions in the final drafting of the article. I am also grateful to international criminal law scholar Ms. Noelle Quenivet, who graciously provided important comments and recommendations during the writing of the article.

1. See, e.g., Naomi Norberg, Terrorism and International Criminal Justice: Dim Prospects for a

   Future Together, 8 SANTA CLARA J. INT’L L. 11 (2010). Crimes of terrorism can and should qualify “as crimes against humanity under the Rome Statute,” and the ICC should have jurisdiction over acts of terrorism. Vincent-Joël Proulx, Rethinking the Jurisdiction of the International Criminal Court in the Post September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity, 19 AM. U. INT’L L. REV. 1009, 1010 (2004).

2. Norberg, supra note 1, at 35.

3. Id. at 13.

   
   

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   justice for victims,”4 and in trying to do so some nations might respond to internal and external terrorist threats by erecting barriers to suppress fundamental rights “in the name of combating what seems to have become the ‘crime of crimes’ of the 21st century.”5

   The notion of adding terrorism to a similar level of universally recognized extreme crimes elicits several concerns. First, when we talk about terrorism, what are we talking about? Are we talking about actions of violence committed in different nations by the same group with the intent of terrorizing and scaring other nations who think they may be next? Or are we talking about terrorist groups confining their operations within a specific national territory, but having a presence and source of support in other nations, such as the Revolutionary Armed Forces of Colombia (FARC) that has long maintained a global network of cells committed to specific tasks and responsibilities for furthering its terrorist activities on Colombian soil? How the international community defines terrorism will have several ramifications for international justice.

   The aim of this article is to make the case that, contrary to the current opinions expressed by many influential international law scholars and practitioners, terrorism is not a suitable crime for universal jurisdiction. Supporting such a “minority” position requires looking carefully at the difference between international crimes and transnational crimes in the context of what constitutes crimes against humanity as recognized under international law and whether terrorism, absent a clear understanding of its definition, should be a crime subject to universal jurisdiction. We will first examine the distinctions between international crime and transnational crime, providing a context for a discussion of terrorism in both domestic and international manifestations. We will then look at how nations have responded to terrorism through the drafting of legislation and how that legislation has been correctly or incorrectly applied to crimes construed to be terrorist in nature and intent. We will also look at how immigration laws and procedures have been implemented to

   
   

   
   

4. Id. at 14.

5. Id.

   
   

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   combat terrorism and whether such measures taken to control terrorist acts provide a proper wall of protection. Finally, we will consider whether universal jurisdiction is the proper forum for prosecuting acts of terrorism and if so, whether domestic terrorist acts should also be subject to universal jurisdiction where it can be demonstrated that the acts committed constitute a transnational scope and rise to the level of violations of international humanitarian law and crimes against humanity.

   
   

   1. DISTINGUISHING BETWEEN INTERNATIONAL AND TRANSNATIONAL CRIMES

      
      

      1. The Nature of International Crimes

         
         

         If a society’s essential values drive it to designate a conduct as a crime, then criminal law is a barometer of those values and is applicable to both domestic and international acts that affront and disrupt the rule of law. Taken a step further, crimes construed to be so egregious as to shock humanity, such as genocide, crimes against humanity, and war crimes,6 became international crimes by consensus of the international community. As a result, such crimes became subject to the jurisdiction of limited international tribunals, such as those created by the world community to investigate and try horrific acts committed in Bosnia, Rwanda, Sierra Leone, Lebanon, Cambodia, and East Timor.7

         While international consensus on what constitutes crimes against the universality of mankind is paramount to the justification of tribunals endorsed and supported by an international authority and comprised of an international character, the reason for the international community to have reached such consensus compels a discussion of elements that seem at times taken for granted. First, international crimes are created by customary international law,

         
         

         
         

6. As defined in Articles 5–8 of the Rome Statute of the ICC, July 1, 2002, 2187 U.N.T.S. 90,

   available at http://untreaty.un.org/cod/icc/statute/english/rome_statute(e).pdf.

7. For an overview of current tribunals and special courts, see Global Policy Forum, International Criminal Tribunals and Special Courts, http://www.globalpolicy.org/international-justice/international- criminal-tribunals-and-special-courts.html (last visited Apr. 15, 2009).

   
   

   
   

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   resulting from the desire of nations to conform to a consistent practice of and respect for legal obligations.8 Customary law binds nations in the absence of a treaty or convention in such a manner that a “state cannot opt out of its duty to conform to a general international law.”9 It imposes upon all nations a moral imperative and a shared sense of deeply rooted values.10

   Second, the values of the international community have dictated that conducts violating basic human rights in ways that “shock the conscience of humanity”11 constitute international crimes. Such conduct violates the “inherent values and interest of the community of nations and therefore concerns the ‘international community as a whole.’”12 International consensus to criminalize such behavior is reached by virtue of the values protected and the interests threatened. The values and interests transcend individual goals, national borders, and sovereignty limitations because they are common to and affect all nations equally. Even if international crimes only occur in a few nations, their immediate and direct effect endangers the well being of the world as a whole and threatens the international peace and security of mankind.13 In such events, the international community, through the authority of the United Nations Security Council,14

   
   

   
   

8. See Theodor Meron, Customary Law, CRIMES OF WAR, http://www.crimesofwar.org/thebook/ customary-law.html (last visited Apr. 4, 2009).

9. See Holning Lau, Rethinking the Persistent Objector Doctrine in International Human Rights Law, 6 CHI. J. INT’L L. 495, 498 (2005–2006). It is important to note that a State may avoid their obligations under customary law if it has been a “persistent objector” to the norm. Id. The State’s objection must be consistent and prior to the norm’s emergence as customary law. Id.

10. See Meron, supra note 8.

11. The preamble to the Rome Statute of the ICC, states that the parties to the statute are “[m]indful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.” Rome Statute of the ICC, supra note 6.

12. Otto Triffterer, Security Interests of the Community of States, Basis and Justification of an

    International Criminal Jurisdiction Versus Protection of National Security Information’, Article 72 Rome Statute, in NAT’L...