The status of the prohibition of terrorism in international law: recent developments.

Author:Weatherall, Thomas
 
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  1. INTRODUCTION II. DEFINITIONS OF TERRORISM IN INTERNATIONAL LAW A. The Domestic Crime of International Terrorism B. The War Crime of Terrorism C. The International Crime of Terrorism III. U.S. JURISPRUDENCE AND THE PROBLEM OF UNCERTAINTY A. The D.C. Circuit B. The Second Circuit IV. TOWARD AN INTERNATIONAL CRIME UNDER CUSTOMARY INTERNATIONAL LAW A. Interlocutory Decision on the Applicable Law [STL 2011] B. Regina v. Gul [England Court of Appeal 2012] C. Reunion Aerienne v. Libya [France Court of Cassation 2011] V. A METHODOLOGY OF JUS COGENS A. Formal Sources B. Legal Effects 1. Individual Criminal Responsibility 2. Obligations Owed to the International Community (Erga Omnes) 3. Universal Jurisdiction 4. Collective Action VI. CONCLUSION I. INTRODUCTION

    Terrorism is a tactic that--in both war and peace--shocks the conscience of humanity. It has been suggested that terrorism "is a term without legal significance," because it is merely "shorthand to allude to a variety of problems with some common elements, and a method of indicating community condemnation for the conduct concerned." (1) On the contrary, however, terrorism has emerged in international law as a term of great legal import. It has been observed that "terrorism has achieved the status of almost universal condemnation, as have slavery, genocide, and piracy, and the terrorist is the modern era's hosti humani generis--an enemy of all mankind." (2) This language, from the U.S. District Court for the District of Columbia, (3) is evocative of the doctrine of jus cogens, which constitutes norms accepted and recognized by the international community of states as a whole from which no derogation is permitted. (4) Norms belonging to this category--such as the prohibitions of slavery, genocide, and torture--reflect the universal condemnation by the international community of certain definable categories of acts, and implicate particular legal consequences. (5) This Note explores the status of the prohibition of terrorism in international law and the extent to which it has emerged as a freestanding peremptory norm of international law, separate and apart from any armed conflict.

    To identify peremptory norms, the International Law Commission (ILC) proposed looking to "State practice and in the jurisprudence of international tribunals." (6) Following that guidance, this Note focuses on the emergence of a norm of customary international law prohibiting terrorism, and international judicial opinion indicating that this norm belongs to jus cogens. While the jus cogens status of a norm is a function of its subject matter, confirmation of the existence of a peremptory norm by international judicial organs provides the most authoritative indication of its emergence. Determining the extent to which the prohibition of terrorism carries with it legal effects peculiar to jus cogens will reinforce or weaken evidence in customary international law and international judicial opinion that the norm belongs to jus cogens. This methodology informs the focus of this Note.

    Section II of this Note presents a brief history of the prohibition against terrorism in international law. Section III assesses U.S. jurisprudence in the D.C. and Second Circuit Courts of Appeals to highlight the perils of uncertainty with respect to the legal status of terrorism. Section IV contemplates the crystallization of terrorism as an international crime under customary international law. The final section, Section V, considers the emergence of this crime in the context of the formal source of peremptory norms under Article 53 of the Vienna Convention on the Law of Treaties and considers the extent to which the legal effects of peremptory norms are evidenced in the contemporary law of terrorism. Finally, this note concludes with some final thoughts on the international crime of terrorism.

  2. DEFINITIONS OF TERRORISM IN INTERNATIONAL LAW

    The international community has historically struggled to articulate a common definition of terrorism. In 1937, the League of Nations drafted the Convention for the Prevention and Punishment of Terrorism, to which was annexed a Convention for the Creation of an International Criminal Court with jurisdiction over individuals for crimes of terrorism. (7) The inability of states to reach an agreement on a definition of terrorism prevented the Convention from entering into force and has stifled subsequent efforts to draft a comprehensive international convention on the prohibition of terrorism. (8) This definitional issue prevented inclusion of the crime of terrorism in the Rome Statute, which established the International Criminal Court and the crimes of genocide, crimes against humanity, war crimes, and aggression as falling within its competence. (9) While these impediments have not been absolute, the historic absence of a common definition is reflected in the disparate criminalization of terrorism in three domains: domestic law, the law of war, and international law.

    1. The Domestic Crime of International Terrorism

      Virtually every nation in the world has adopted domestic legislation criminalizing international terrorism. (10) This practice has been viewed as indicative of the "international criminalization of terrorism," a crime that generally constitutes three elements under domestic law: (1) an illegal violent act, (2) intended to terrorize or coerce, (3) of an international nature. (11) U.S. law exemplifies this trend, defining "international terrorism" as activities that:

      (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;

      (B) appear to be intended

      (i) to intimidate or coerce a civilian population;

      (ii) to influence the policy of a government by intimidation or coercion; or

      (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping; and

      (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum. (12)

      Under the U.S. Code, domestic terrorism is defined in identical terms, with the exception of a "locus" element, (C), which is substituted with the qualification that the acts in question "occur primarily within the territorial jurisdiction of the United States." (13) Under such a definition, the actus reus and mens rea of terrorism are constant in terrorism of either a domestic or international nature. These elements of the crime of international terrorism in U.S. law, which are representative of domestic law provisions more broadly, (14) illustrate the domestic approach to criminalizing international terrorism.

    2. The War Crime of Terrorism

      The international law of war prohibits terrorism as a specific protection of civilians in times of armed conflict. Terrorism is prohibited under the Geneva Conventions, (15) and is defined as a war crime within the jurisdiction of the International Criminal Tribunal for Rwanda (ICTR) (16) and the Special Court for Sierra Leone (SCSL). (17) Although not expressly defined in the Statute for the International Criminal Tribunal for the former Yugoslavia (ICTY), the ICTY prosecuted terrorism as a war crime; a "specific prohibition within the general prohibition of attack on civilians." (18) In Prosecutor v. Galic, the ICTY Trial Chamber convicted Stanislav Galic, commander of Serbian forces that carried out a protracted sniping and bombing campaign on the city of Sarajevo, (19) of the war crime of terrorism. (20) The Trial Chamber distilled the elements of the crime of terrorism as:

      1. Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population.

      2. The offender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence.

      3. The above offence was committed with the primary purpose of spreading terror among the civilian population. (21)

      On appeal, the Appeals Chamber was required to determine whether or not terrorism had emerged in customary international law as an international crime with sufficient precision to uphold Galic's conviction. (22) The Appeals Chamber determined that the prohibition of terrorism enshrined in the Additional Protocols to the Geneva Conventions belongs to customary international law, (23) that this prohibition imposes individual criminal liability as per the standard set out in the Prosecutor v. Tadic Jurisdiction Decision, (24) and endorsed the elements applied by the Trial Chamber. (25) The Appeals Chamber further affirmed the Trial Chamber's conclusion that the mens rea of the crime of terrorism is the specific intent to spread terror among the civilian population by threats or acts of violence. (26) Finding that Galic satisfied these elements and was on sufficient notice at the trial level of these elements of the war crime of terrorism, the Appeals Chamber sustained the conviction. (27) In its decision, the Trial Chamber went so far as to postulate that the prohibition against terrorism constitutes "a peremptory norm of customary international law." (28)

    3. The International Crime of Terrorism

      In the absence of a comprehensive convention addressing international terrorism, (29) fourteen multilateral "sectoral" conventions have been concluded regarding specific acts of terrorism. (30) In addition, every region of the world has concluded a multilateral treaty combatting terrorism. (31) The definition of international terrorism found in the International Convention for the Suppression of the Financing of Terrorism (1999), ratified by...

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