The Crimes of Terrorism

• Pages: 193-214
• Author: Beth Van Schaack,Ronald C. Slye

193

Chapter 7

THE CRIMES OF TERRORISM

Terrorism is a concept with a colloquial meaning that lacks a

consensus definition under international law. Although particular

terrorist acts are criminalized in a suite of multilateral treaties, an

omnibus definition of the crime of terrorism has eluded the

international community to date largely because of the now trite

adage: “One person’s terrorist is another person’s freedom fighter.”

Indeed, many international instruments condemning terrorism seem

to carve out exceptions for national liberation movements and groups

struggling for self-determination in the context of a history of

colonialism or oppression. For example, a 1991 U.N. General

Assembly Resolution denounced terrorism, but in virtually the same

breath, reaffirmed “the inalienable right to self-determination and

independence of people under colonial and racist and other forms of

alien domination and foreign occupation.”

1

Nor do such instruments

recognize a notion of state terrorism; rather, terrorism is seen as an

affront to the state’s monopoly on the deployment of “legitimate”

violence. As a result of this normative ambivalence, codification

efforts have yielded a number of multilateral treaties that require

states to criminalize only specific terrorist acts (such as aircraft

hijacking or attacks against internationally protected persons),

without defining the genus crime more broadly.

Due in part to these definitional challenges, the architects of the

International Criminal Court (ICC) excluded the crime of terrorism

from the Rome Statute altogether. However, ever since the

catastrophic attacks of September 11, 2001, and subsequent events,

countering the threat of terrorism has remained high on the agendas

of individual states, the Security Council, and other elements of the

international community. As such, terrorism has made various

appearances in ICL. For example, a unique hybrid court in Lebanon

was devoted to adjudicating terrorist crimes as defined by Lebanese

law, so long as they were related to the 2005 assassination of former

Prime Minister Rafik Hariri. The overlapping conflicts in Syria and

Iraq have led to a number of terrorism prosecutions in domestic

courts around the world, including against foreign fighters who

joined the fight but later returned to the comforts of Europe. And

some states continue to voice support for the crime’s eventual

inclusion in the ICC’s subject matter jurisdiction. For these reasons,

1

G.A. Res. 46/51, U.N. Doc. A/RES/46/51 (Jan. 27, 1992).

194

INTERSECTIONS

Pt. II

we include this category of crimes within the “canon” of international

criminal law (ICL).

After offering a brief history of the piecemeal codification of an

international prohibition against terrorism, this chapter endeavors

to identify the elements of terrorism that distinguish it from other

international crimes. It also considers the way in which the

phenomenon of terrorism at times implicates and intersects with

international humanitarian law (IHL) and the prohibitions against

war crimes. Finally, it explores the extent to which terrorism crimes

might be prosecutable before the ICC, notwithstanding that these

crimes were purposefully excluded from the Court’s subject matter

jurisdiction.

A. Terrorism Under Positive International Law

Although there have been efforts to codify a global prohibition

against terrorism under international law for decades, there is no

universal treaty or international instrument that defines the crime

of terrorism writ large. The League of Nations embarked on the first

major attempt in the modern era to prohibit the crime of terrorism

after the 1934 assassination by Croatian separatists of King

Alexander of Yugoslavia and others. The treaty—the Convention for

the Prevention and Punishment of Terrorism (1937)—defined

terrorism as follows: “All criminal acts directed against a State and

intended or calculated to create a state of terror in the minds of

particular persons or a group of persons or the general public.”

2

The

treaty attracted twenty-four state signatories; only India ultimately

ratified the Convention. The onset of World War II scuttled further

efforts to bring the treaty into effect. After the dissolution of the

League of Nations, the treaty was never revived.

From this abortive start, the international community has

proceeded in a disjointed fashion by criminalizing various

manifestations of terrorism (such as offenses committed on board

aircraft, crimes against internationally protected persons, hostage

taking, crimes involving maritime navigation or nuclear material,

terrorist bombing, and the financing of terrorism), often in response

to particular terrorist incidents. In addition to providing penal

definitions, many of these treaties obligate state parties to

incorporate the relevant prohibitions into their domestic criminal

codes, to treat enumerated acts of terrorism as extraditable offenses,

to grant mutual legal assistance in the investigation and prosecution

of proscribed acts, and to either extradite or prosecute offenders

pursuant to broad principles of extraterritorial jurisdiction, including

universal jurisdiction. In this regard, the efforts to address crimes of

2

Convention for the Prevention and Punishment of Terrorism, League of

Nations Doc. C.94.M.47.1938.V (1937).