University of Amsterdam Master Thesis
How should terrorism be defined in order to be included as a crime in
the ICC Statute?
30 June 2020
Beatrice Simoni
Email: beatricesimoni07@gmail.com Student number: 12749680
LLM in International and Transnational Criminal Law Supervisor: mr. Vincent de Graaf
Abstract
Terrorism has been a global problem for many years and it is now regarded as a serious threat to peace and security. However, even if the crime is criminalised in national legislations, there is no agreement at international level on the definition of the offence, which is one of the reasons that has precluded the International Criminal Court from having jurisdiction over the crime of terrorism as an independent crime.
Analysing national provisions of three countries, the United States, the United Kingdom and the Netherlands, it is clear that some elements are recurrent, however differences regarding the purpose and intent requirements of the crime still persists.
At the international level, United Nations Resolutions have criminalised terrorism, however they failed to provide a comprehensive definition; the more recent Special Tribunal for Lebanon is an interesting instrument in regard to the fight against terrorism, however its statement that a customary international law definition of terrorism exists in peacetime is not to be regarded correct. With respect with the ongoing debate about the definition of terrorism, this paper highlights why and how terrorism should be included in the ICC Statute as an independent crime.
Table of Contents
Introduction……… 5
1. Definitional issue: how Terrorism is defined in the United States, United Kingdom and in the Netherlands……… 6
1.1 United States……… 7
1.2 United Kingdom………. 10
1.3 The Netherlands……… 12
2. Special Tribunal for Lebanon’s definition of terrorism and United Nations Resolutions………… 14
2.1 Special Tribunal for Lebanon……… 14
2.2 The UN’s approach……….. 18
3. ICC’s jurisdiction over terrorism: A suitable definition……….. 20
3.1 Drafting of the Rome Statute: reasons to exclude terrorism……… 20
3.2 Terrorism prosecuted as one of the already existing crimes in the ICC………. 22
3.2.1 Crimes against humanity……….. 23
3.2.2 War Crimes………. 23
3.2.3 Genocide and Crime of Aggression……… 24
3.3 Suitable definition and advantages………. 25
Conclusion……….. 27
List of Abbreviations AEDPA ICC RS STL UN UNC UK US
Anti-Terrorism and Effective Death Penalty Act International Criminal Court
Rome Statute
Special Tribunal for Lebanon United Nations
United Nations Charter United Kingdom United States
5
How should terrorism be defined in order to be included as a crime in the ICC
Statute?
Introduction
The International Criminal Court has jurisdiction over four core crimes: war crimes, crimes against humanity, genocide and crime of aggression. These crimes, included in the Rome Statute, have been agreed among all the parties to the statute. However, the Statute is not comprehensive, as it leaves out a number of crimes that are of particular importance at the international level, in particular terrorism.
Throughout the years, States have established that terrorism is a transnational crime; however, there is no agreement on the international nature of the crime. One of the main reasons for that is the lack of a general and established definition of the crime; every State presents a different definition which includes a variety of elements, rendering it difficult for States to agree on a universal, clear, comprehensive and well-balanced definition that can be included in the RS.
Nonetheless, terrorism is one of the main crimes that States have been facing in recent years; it has been argued that prosecution at national level has been successful and there is no need for an international court dealing with the crime, however the absence of international jurisdiction might leave a gap in the prosecution of this offence when it takes place in States that are unable or unwilling to prosecute the crime or when prosecution occurs but it is flawed due to breaches of fundamental human rights, as the right of a fair trial. As it stands currently, terrorism can be prosecuted in the ICC only if the acts satisfy the requirements to be deemed as one of the core crimes, it is later discussed that this possibility is extremely challenging and unlikely.
The research topic of this paper is focuses on how terrorism should be defined in order to be included as a crime in the RS. The attention is on whether terrorism can be included in the ICC Statute as a stand-alone crime, whether it is possible to find a worldwide accepted definition of terrorism and why it is important to find such definition, provided that terrorism is regarded an international crime.
In the first chapter, the issue of the definition of terrorism is dealt with a look at the national level, in particular the focus is on three States: United States, United Kingdom and the Netherlands. These States have been chosen because of their active participation in countering terrorism, the US and UK have been two of the most hit and involved western countries, whereas the Netherlands seems to have current issues with returning foreign terrorist fighters and it is an example of how terrorism is dealt in a civil law country. A critical analysis of the differences and discrepancies of their provisions is presented.
The second chapter covers the debated position of the Special Tribunal for Lebanon. The tribunal established that it has jurisdiction over the crime of terrorism finding that a customary definition of terrorism in peacetime exists. It must be remembered that the STL is a hybrid court, applying both Lebanese law and international law.; the practise of the tribunal has been highly criticised in regard
6 to the finding of the existence of a customary definition of the crime, but also for its costs, slowness, the trial in absentia and what seems to be its overall inefficiency. The aim of this chapter is to examine the practice of the tribunal, in order to establish whether it can actually be recognised and considered legitimate; the important issue at stake is also whether it can be included as it stands in the RS or whether it would cause some problems. This process will take place through the analysis of the elements of the crime found by the Tribunal and the Prosecution v Ayyash et al case. It is argued that the finding of the tribunal cannot be regarded customary international law due to the lack of universal acceptance of the elements of the crime. Lastly, the UN approach towards terrorism is mentioned, in particular observing how the UN Charter approached terrorism and questioning the validity and usefulness of the UN Resolutions dealing with the crime concerned, in particular whether States have actually implemented them, also with attention to human rights.
The last chapter promotes the use of the definition of terrorism in the Financing of Terrorism Convention as the basis for the development of the crime in the RS considering that it provides the most comprehensive definition available and the Convention has been signed or ratified by almost all the States parties to the ICC. Moreover, it presents an in-depth analysis of why the offence should be prosecuted internationally and how the ICC has currently jurisdiction over terrorism through the core crimes, highlighting the weaknesses of this approach. It further presents advantages of including the crime of terrorism as an independent crime, which focus on fair trial rights and victims’ rights.
1. Definitional issue: how Terrorism is defined in the United States, United Kingdom and
in the Netherlands
Terrorism is recognised as a worldwide problem; it is safe to say that the crime threatens peace and security globally, therefore requiring an actual response from States1. The term terrorism was first
used during the French Revolution, in relation to the state of terror spread by the Jacobins, however it was not until the 20th century that people started talking about the necessity to define terrorism
in order to properly criminalise it, previously it was not regarded as a legal term but merely a word commonly used among laypeople2.
Throughout the years, the UN Security Council has taken steps in order to bring States together to include the crime in their legislations, an example is the Resolution 13733, which asserts that States
are obliged to fight terrorism. However, it can be argued that these efforts represent a double ended sword: on the one hand, today most countries criminalise terrorism as a stand-alone crime, on the other hand because States were given no guidance in adding terrorism to their legislation and implement it, the absence of coherence in what amounts to an act of terrorism is a grave consequence, which, among other issues of a political nature, has rendered unachievable the
1 Bodgan Aurescu and Ion Galea, “Establishing an International Court against Terrorism” (2015) 2015 Rev Dr Const 105, 105
2 Danja Blocher, “Terrorism as an International Crime: The Definitional Problem” (2011) 8 Eyes on the ICC 107, 107-108
7 attempt to include it as one of the core crimes in the RS during the negotiations. Therefore, still to this day terrorism is not an independent crime in the ICC, terrorism can be prosecuted at the international level in restricted situations, as it is discussed in later chapters.
As previously mentioned, one of the major issues regarding terrorism is the absence of a universally accepted definition. It presents, among others, two main points of discrepancy that precludes States from agreeing on the definition: first whether States can commit acts of terrorism; and second whether the acts carried out by foreign fighters should be regarded as terrorist acts or whether these acts are justified because they are considered good actions for the protection of their country4.
Every State presents a different definition of terrorism. Nonetheless, it is possible to recognise some common elements. Always present and fundamental is an act of violence, which is targeted against civilians, with the intent to cause violence and with the purpose of causing fear, intimidating and spread terror; moreover, of vital importance is the presence of an aim, which can be political, religious, ideological, ethical etc.…5. Notwithstanding the fact of being generally accepted features
of this particular crime, these elements present issues; in particular some of them need further explanation, for example the meaning of “violence” needs to be established6 in order to understand
which acts can satisfy this requirement. It is necessary to establish whether only physical violence satisfies the requirement or other forms are admitted, as misleading messages, threats and false statements7. In regard to intent, as mentioned an intent to cause violence and fear in order to
coerce or intimidate the government or the enemy is generally accepted; the greatest issue is the use of the term fear, because it is not regarded as a legal term, it can be manifested in different way, therefore making it hard to define8. An example is found in the English case Rookes v Barnard9,
where the court stated that intimidation produces harm because it is an unlawful coercion.
In order to understand why there are so many discrepancies in the classification of terrorism that lead to the impossibility to find a generally admitted definition, an analysis of domestic definitions and legislation is essential; in particular the analysis focuses on the US, the UK as they are two of the most involved and hit western countries when it comes to terrorism, and the Netherlands, in order to have an example of how terrorism is criminalised in a civil law country.
1.1. United States
One of the main countries involved in the battle against terrorism is the US, after 9/11 the US have implemented various anti-terrorism bodies of law; however, the current law of terrorism still seems to be unclear, vague and leaves too much room for interpretation. This is due to the aim of catching all acts that could amount to terrorism through wide and general provisions, with the excuse that it provides a better solution in countering-terrorism.
4 Ben Golder and Williams George, “What is Terrorism - Problems of Legal Definition” (2004) 27 UNSWLJ 270, 271-272
5 Susan Tiefenbrun, “A Semiotic Approach to a Legal Definition of Terrorism” (2003) 9 ILSA J Int'l & Comp L 357, 361-362
6 Ibid, 362
7 Black's Law Dictionary 1484 (7th Ed. 1999), 1564
8 Susan Tiefenbrun (n. 5) 362 9 [1964] UKHL 1
8 It must be remembered that the US is formed by States that have an independent power to pass legislation, therefore the crime is defined differently in every state. What seems to be the connecting line among the multiple American classification of terrorism is that it is criminalised in every state and it is not regarded as a crime but as an act of war, which causes general confusion10.
This is due to the approach of the country more towards fighting terrorism, instead of methods of counter-terrorism. This approach has been justified on the basis that classifying terrorism as an act of war allows the military to intervene, therefore thanks to better equipment and no restrictions placed on the law enforcement, the military has wider powers in regard to acts of war than any other crime11. This position is reemphasised by Ron Suskind, that stated in his book that “even the
most minimal chance of a manifested terrorist activity must be acted upon as if it were of the greatest certainty”12. Furthermore, it is worth mentioning that the US has given the power to the
Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA) to fight terrorism, in particular overseas, expanding the law enforcement and giving even broader spectrum to terrorists’ acts, as these two agencies have their own definitions of terrorism which differs from the others. The US government has implemented various acts that deal with terrorism, each of them presents a different characterisation and elements of the crime.
First is the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA) arguably the most complete definition out of all the others, as it provides that terrorism amounts to:
“The unlawful use of violence against the United States, citizens of the United States or any other nation, outside the boundaries of the United States, apparently intended to intimidate or coerce a civilian population, influence government policy, or to affect the conduct of a government for political or social objectives”13.
It still presents some weaknesses: on one hand, it can be argued that it leaves too much room for interpretation as it does not present a concrete list of acts that can be regarded as terrorism, therefore giving rise to issues of political bias. On the other hand, it has been argued that the absence of such detailed list allows the inclusion of all the new technologies constantly used in new terrorists’ attacks, therefore there is no necessity of a continuous update on the modalities14. This
provision has been further criticised as it has been claimed that due to the broad definition, it would give to the Secretary of State the power to decide in what circumstances it is terrorism and in which it is not15. Moreover, the definition above allows the US to prosecute a terrorist based on
extraterritorial jurisdiction: the universality principle, the personality principle and the protective principle are all included. With the inclusion of “outside the boundaries of the United States”, the government highlights how prosecution is available in those cases where the act of terrorism
10 Susan Tiefenbrun (n.5) 363-365
11 Tyler Raimo, “Winning at the expense of law: the ramifications of expanding counter-terrorism law enforcement
jurisdiction overseas” (1999) 14 Am. U. Int’l. L. Rev. 1474, 1585
12 Ron Suskind, “The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11” (Simon & Schuster ed. 2006)
13 Anti-Terrorism Act and Effective Death Penalty Act 1996 14 Susan Tiefenbrun (n.5) 365
15 Jason Binimow & Amy Bunk, Annotation, “Validity, Construction, and Operation of "Foreign The executive branch has also not developed Terrorist Organization "Provision of Anti-Terrorism and Effective Death Penalty Act (AEDPA)”, (2002) 8 U.S.C.A. § 1189, 178 A.L.R. FED. 535
9 amounts to a serious crime and the perpetrator amounts to a threat to the world (universal jurisdiction); but also, when the act is regarded as a threat to national security, integrity or sovereignty16 even if it took place extraterritorially.
The United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (United States Patriot Act) presents a new definition of domestic terrorism: “involve acts dangerous to human life that are a violation of the criminal laws 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 within the territorial jurisdiction of the United States.”17
The Provision focuses on the mens rea of the perpetrator, it requires the acts to be calculated and aiming at influencing the practice of the government through intimidation or coercion. The definition presents multiple issues: mainly it is hard to identify whether an act can be regarded as terrorism only relying on the mental state of the perpetrator which is however softened by the inclusion of the world “appear to be intended”, as there could be too much leeway for interpretation and the decisions would be likely bias. Moreover, no explanation is given to the degree of violence needed to satisfy the provision and the only purpose which would encounter liability is the political one.
Furthermore, it can be argued that the existence of all these Statutes and definitions are underpinning confusion. In fact, it is hard to know which definition would be applied in a case of terrorism; for example, in the case Kasi v Commonwealth18 regular criminal law was applied to a case of terrorism, however in United States v Hammoud19, where Hammoud challenged his sentence for supporting a terrorist organisation, he was convicted under section 2339B of the AEDPA 1996.
As a consequence, an issue with the nullum crime sine lege principle arises, in fact it might be argued that a person committing a violent act would not know whether the action amounts to terrorism. It might be debated that a violent act is illegal in any circumstance, however it is not reasonable and objective leaving a person in the dark, not knowing if he could be prosecuted for terrorism if he perpetrates that act.
A direct consequence of this last issue is breach of human rights: leaving too much room for interpretation of the provisions and expanded powers can result in abuse of power and political bias in the decisions. If this happens, fundamental human rights would be triggered, as the right to a fair
16 Black's Law Dictionary 1396 (6th Ed. 1990) 17 USA Patriot Act 2001, sec. 802
18 Kasi v Commonwelth, 508 S.E.2d 57 (Va. 1998)
10 trial and right to liberty. A clear example is given by the United States Patriot Act, where under the law the authorities have the power to detain a person even with a mere suspicion that he might have carried out a violent act or in any way aided an organisation which has acted against the government with political purposes. Clearly, this would represent an abuse of power, as it would allow prosecution for association, moreover in case the subject in question is an immigrant, he could be denied entrance in the country for a mere speech not in line with the current political ideas20.
Thus, it is clear by the analysis above that there is a real struggle in finding a definition of terrorism that can fit all; the persisting problem is whether it is possible and if it will ever happen to find a universal definition for this crime when even within one country as the United States multiple definitions are used. It has to be emphasised that the US approach towards the definition of terrorism at the International level is inconsistent; on one hand, it is to be regarded negative as the country not only is not part to the RS but has also openly declared its hostility to the court, rejecting the application of international law. On the other hand, the State is party of the great majority of the International Anti-terrorism Conventions and Protocols21. This inconsistency is found in the US
claims in regard to the international criminalization of terrorism, in the statements concerning the Draft of the Comprehensive Convention on International Terrorism, in order for the convention to come into force, the US stated that there can be no justification for terrorism, in particular in regard to “freedom fighters” and it should not include State terrorism, criminalising only non-state actors carrying out acts of terrorism22. However, these issues do not undermine the importance that US
provisions have at international level as they can be taken into account for the development of a universal definition.
1.2. United Kingdom
The United Kingdom started developing anti-terrorism law as a response to the Irish republican terrorist attacks in the UK. The Terrorism Act 2000 sets out the definition of terrorism in the UK, it presents fundamental difference from those in the US, it has to be noted that the English provisions were developed based on international Conventions, as the 1997 International Convention for the Suppression of Terrorist Bombings and the 1999 International Convention for the Suppression of the Financing of Terrorism.
Section 1(1) of the Act states:
“Terrorism means the use or threat of action where the action falls within subsection (2) (i.e. violence, serious damage, endangering life, etc.) and (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause”23
The definition has been criticised for being extremely broad. It is important and interesting to make a comparison among the present definitions; a noteworthy point of distinction between the English
20 Susan Tiefenbrun (n. 5) 366
21 “Status of the Universal Anti-Terrorism Conventions and Protocols as well as other International and Regional Legal
Instruments related to Terrorism and Co-operation in Criminal Matters in the OSCE Area” (2018) <
https://www.osce.org/files/f/documents/5/8/17138_0.pdf > last accessed 25 June 2020
22 Ari Weil, “The challenges of defining terrorism in international treaty law” (2018) The King’s Student Law Review and Strife Journal 48, 50-54
11 definition and the US Patriot Act is the presence of an actual list of actions that are criminalised as terrorism in the UK; the most notable examples are biological terrorism, environmental terrorism and interestingly also computer hacking. It is key to emphasise this difference because the US decided not to include a list of acts in order to have a wider definition which can cover different crimes and most importantly can keep up with the constant innovation in technology that is regularly used in terrorist attacks. Moreover, the Terrorism Act criminalises also any kind of activity aiming to support terrorism, this includes providing financial support, money laundering and fund-raising24. It provides also a new range of offences, some of them present an international character,
thus the act provides extraterritorial jurisdiction and allows extradition in case of offences as incitement of overseas terrorism, financing overseas terrorism, recruiting and providing weapons for terrorist goals25. Furthermore, the presence of only one definition of terrorism is a better option
and does not pose problems with the nullum crime principle, as there can be no misunderstanding on which definition is being used making it fairer on the person who is investigated and possibly prosecuted for the crime.
In regard to proscription of terrorist offences, the 2000 Act already provided the government with the power to prohibit terrorist organisations, however the implementation of the new Terrorism Act 2006 permits the government to have a wider discretionary power in the sense that they are now allowed to ban those organisations that are believed to encourage and promote the crime26.
On these regards, it is interesting to note that in the US such provisions are not provided, therefore a person cannot be charged under the Patriot Act or any other terrorism provision for planning or encouraging terrorism. When individuals are found to be involved in encouraging terrorism of any sort, they have often been charged with other crimes which are not terrorism related, common examples are fraud or false statement; in addition, frequently used is also the charge of conspiracy to commit a criminal offence or defraud in the US27. These differences can be due to the different
aim of the Governments, the US is more focused on issues as financing terrorism, surveillance and immigration, but it has not criminalised the speech encouraging terrorism. The absence of such criminalisation is caused by the fact that it would be against the American Constitution. The distinctions between the two countries are therefore to be linked back to their historical and cultural background and constitutions28.
It is worth notice that the Terrorism Act 2006 came into force notwithstanding the overwhelming criticism surrounding it, but it has been restrictively used, probably because of the overwhelming critics and because the act does not criminalise every type of inciting speech29.Therefore, it could
be argued that the intent of the government was to have a wider power and control over the concerned crime of terrorism, but it seems like up until the present day they have failed to engage with it, probably due to the harsh consequences that a charge and conviction under this act would cause. Hence, it should be evaluated whether there is any objective positive outcome from the
24 Ben Brandon, “UK Legal Response to Terrorism: Past Lessons and Future Concerns” (2002) 27 Int'l Legal Prac 46, 47 25 Ibid, 47-48
26 Ibid, pt.2, ss. 21-22.
27 Ellen Parker, “Implementation of the UK Terrorism Act 2006 - The Relationship between Counterterrorism Law, Free
Speech, and the Muslim Community in the United Kingdom versus the United States” (2007) 21 Emory Int'l L Rev 711,
720
28 Ibid, 721-720 29 Ibid, 756-757
12 implementation of a statute that is clearly in breach of human rights, i.e. freedom of speech, and in order to avoid unpleasant consequences, it has been restrictively used. It might be argued that as current provisions are not widely used to prosecute terrorism, then there is no need for a further provision at the international level, however this should not be considered valuable as a provision at international level could close the gaps left by the national provisions and would guarantee the respect of human rights, which as previously said is not always guaranteed.
It can be argued that the definition of terrorism included in the Terrorist Act 200030 has a level of
abstraction, in terms of listing which crimes should be criminalised under the law; as a consequence, it would encompass a number of activities that would generally not be regarded as terrorism, for example civil disobedience, public protest and industrial action31.
The UK definition does not present an exception for the above-mentioned activities; therefore, it is simply requested that a terrorist carries out an act which put at risk a person’s life or causes damage to private property, in furtherance of a political, religious or ideological with the aim of influencing the government or intimidating the public. Thus, even non-violent groups without the aim to intimidate or coerce would be included32. The situation where a nurse’s industrial dispute could
amount to terrorism was discussed in the House of Commons33; the possibility of a long-running
nurse’s industrial dispute reducing the staff in the hospital could “create a serious risk to the health or safety” under section 1(2)(b)34. Moreover, if the strike was directed at the government, with the
aim of increasing the pay and conditions in public hospitals, then also the requirement of influencing the government and political cause in section 135 would be satisfied. The House of Commons
clarified that classifying the above stated situation as a terrorist act is wrong because it would not cause a serious risk and it is not politically motivated36. However, it cannot be denied that as it
stands, such situations might be covered37.
Admittedly, it looks like the United Kingdom law on terrorism might need to be revisited in some parts in order to be considered in the discussion for a universal definition of terrorism, because as seen it might include grave breaches of human rights, in particular regarding freedom of speech, therefore it would be hardly accepted at the international level.
1.3. The Netherlands
The Netherlands started introducing new laws regarding terrorism after the 9/11 and Madrid bombings attacks, in particular in 2004 the Wet terroristische misdrijven (Act on Terrorist Offence) came into force and it was followed by the Wet ter verruiming van de mogelijkheden tot opsporing
en vervolging van terroristische misdrijven (Broadening the possibilities for investigating and
prosecuting terrorist crimes), both these acts amended the Dutch Criminal Code.
30 Terrorist Act 2000
31 Ben Golder and Williams George (n.4) 289
32 Ibid
33 House of Commons, Standing Committee (2000) 31
34 Terrorist Act 2000, sec. 1(2)(b) 35 Ibid, sec. 1
36 House of Commons, (n.33)
13 The Dutch Government has adopted a position which aims at countering terrorism through criminal law, it decided to implement preventive measures based on criminal procedural law instead of national security law38. It implemented the 2002 EU Framework Decision on Combating Terrorism
through the 2004 Act, this decision, while it did not provide for a definition of the crime, envisaged the criminalisation of terrorism and the establishment of jurisdiction over the terrorist offences39.
Article 83 of the Act on Terrorist Crimes specifies the terrorist crimes which include serious offences against the security of the State40, like an attack carried out with the intention of taking the life or
liberty of the King or Queen41, and serious offences against Royal Dignity42. The amended Act
provides also for the definition of criminal intent under Article 83a:
“the intention to seriously frighten the population or part of the population, or by irregular means compel the government or an international organisation to do or not to do something or to endure something or to seriously disrupt or destroy fundamental political, constitutional economic or social structures of a country or an international organisation”43
This provision provides that common crimes as murder, forgery, manslaughter etc can be prosecuted as an act of terrorism when carried out with the intent to prepare and facilitate a terrorist crime44. The purpose has to be political, constitutional, economic or social, therefore
excluding religious purposes, arguably one of the most common intents in terrorist attacks. Moreover, this provision envisages higher and more serious sentencing when common crimes are carried out with terrorist intent45. The act also included the criminalisation for the preparation and
facilitation of terrorist act; it is also worth noting that participation in a terrorist organisation and conspiracy with a terrorist intent are criminalised under article 104a46.
The two new acts broaden the scope of criminalisation and prosecution. Whereas the Wet
terroristische misdrijven allows extradition47 and criminalises participation in terrorist organisation
and recruiting for the organisations, for example the Jihad48; the Wet ter verruiming van de
mogelijkheden tot opsporing en vervolging van terroristische misdrijven grants the prosecutor the
power to appoint a criminal investigator that investigates possible terrorist crimes falling within the scope of the above provision49. An interesting procedural amendment implemented with the Wet
terroristische misdrijven is that in Dutch law the universal jurisdiction principle applies to terrorist
crimes50, the universal jurisdiction on terrorist crimes is however not unusual as it applies also in
38 Marianne Hirsch Ballin, “Inside View of Dutch Counterterrorism Strategy: Countering Terrorism through Criminal
Law and the Presumption Innocence” (2008) 8 JIJIS 139,140-141
39 Council Decision 2002/475. 2002 O.J. (L 164) 3 40 Dutch Criminal Code 2004, arts.92-96
41 Ibid, art.92 42 Ibid, art 108(2) 43 Ibid, art. 83a
44 Helen Oosterom-Staples, “Using National Security and Public Policy to Combat Terrorism: The Case of the
Netherlands” (2008) 10 Eur J Migration & L 51, 56
45 Dutch Criminal Code 2004, arts. 114a, 120a, 120b, 130a, 176 a, 176b, 415a, 415b 46 Ibid, art. 104a
47 Ibid, art. 4A(2)
48 Ibid, arts 140a, 140b, 205
49 Dutch Code of Criminal Procedural Law, art. 138d 50 Dutch Criminal Code, arts 4(13), (14), (15)
14 the UK and US51. However, in the Netherlands universal jurisdiction is limited, the public
prosecutor’s office can start an investigation only when the suspected terrorist is within the territory of the country; this is the case of Ahmad Al-Khedr, a Syrian national that is been tried on counts of terrorism and war crimes in the Netherlands under universal jurisdiction, this has been possible because the suspect was on Dutch soil at the moment of his arrest52.
Based on the analysis above, it is clear how each country presents its own definition of terrorism, provides different powers to fight it and enables a variety of authorities to investigate or prosecute terrorist crimes. The comparison among these three States is an evident starting point to consider why there is no universal definition of such a common and dangerous crime as terrorism and why it is not an independent crime in the Rome Statute.
It is self-explanatory that, given the example of the United States, where there is no agreement on the definition of such crime even within one country at the international level it seems almost impossible to find a definition that is suitable and agreed on by every member of the ICC.
Moreover, some of the provisions of these States are severely flawed, as they do not include some really essential requirements, or they breach fundamental human rights, therefore they cannot be transplanted into a statute of an international tribunal or court, however it can be argued that they can be a starting point for the development of the universal definition, obviously with the needed adjustments and improvements.
2. Special Tribunal for Lebanon’s definition of terrorism and United Nations Resolutions
2.1. Special Tribunal for Lebanon
The Special Tribunal for Lebanon was created in 2007 as a response to the killing of the then-Prime Minister Rafik Hariri53. The tribunal distinguishes itself from other international tribunals, as it can
be better defined as an internationalised tribunal instead of an international tribunal. It was established by a UN Security Council Resolution under Chapter VII of the UNC54; however, it applies
Lebanese criminal law as the basis for the prosecution. Moreover, it is not concerned with the prosecution of war crimes or crimes against humanity, the subject matter jurisdiction of the tribunal includes only the crime of terrorism, as defined under Lebanese law, and other ordinary crimes, for example offences against life or personal integrity55.
51 UK Government, Universal Jurisdiction, < https://www.gov.uk/government/news/universal-jurisdiction > last accessed 1 June 2020; American Bar Association, Universal Criminal Jurisdiction, (2004) <
https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/human_rights_vol31_2004/ winter2004/irr_hr_winter04_universal/ > last accessed 1 June 2020
52 Lena Bjurström, “Syria: why Dutch prosecutors link terrorism and war crimes” (2020) <
https://www.justiceinfo.net/en/tribunals/national-tribunals/44620-syria-why-dutch-prosecutors-link-terrorism-and-war-crimes.html > last accessed 26 June 2020
53 Are Knudsen and Sari Hanafi, “Special Tribunal for Lebanon (STL): Impartial and Imposed International Justice” (2013) 31 Nordic J Hum Rts 176, 176
54United Nations Security Council Resolution 1757 (2007)
55 Nidal Nabil Jurdi, “The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon” (2007) 5 Journal of International Criminal Justice 1125, 1135
15 Terrorism is clearly defined in Lebanese Law, therefore the fact that the tribunal has jurisdiction over the crime of terrorism does not cause any issue in respect to the principle of legality. Thus, on the face of it, there is no breach of the principle that requires a person to be prosecuted only for an act or omission that constituted an offence at the time it was committed (nullum crime sine lege)56.
However, the STL Appeals Chamber decided to review and clarify the elements of the crime before the starting of the proceedings, this has been controversial and it has caused a lot of criticism as the Appeals Chamber stated that there has been a crystallisation of the definition of terrorism at the international level, therefore a customary international definition of terrorism exists, at least in peace time57. Moreover, the Appeals Chamber redefined the parameters of terrorism under
Lebanese Law.
In the order on preliminary questions addressed to the judges of the Appeals Chamber, the Appeals Chamber was faced with mainly three questions to answer regarding the law applicable:
I. Taking into account the fact that Article 2 of the Statute refers exclusively to the relevant provisions of the Lebanese Criminal Code in order to define the notion of terrorist acts, should the Tribunal also take into account the relevant applicable international law? II. Should the question raised in paragraph i) receive a positive response, how, and ac- cording
to which principles, may the definition of the notion of terrorist acts set out in Article 2 of the Statute be reconciled with international law? In this case, what are the constituent elements, intentional and material, of this offence?
III. Should the question raised in paragraph i) receive a negative response, what are the constituent elements, material and intentional, of the terrorist acts that must be taken into consideration by the Tribunal, in the light of Lebanese law and case law pertaining thereto?58
Addressing these questions, the Appeals Chamber first answered to the issue raised in the first question stating that the applicable law under article 2 of the Statute of the STL are only provisions of the Lebanese Criminal Code; treaties ratified by Lebanon or customary international law are not contained and need not be taken into account59. As a consequence, the second question became
moot.
Lastly the Appeals Chamber addressed the third and most controversial question, it was stated that international law and customary international law can be used as a guide to the interpretation of the Lebanese Criminal Code, therefore the idea is that the Tribunal is allowed to consider international law when applying the law of terrorism but only as an aid to the interpretation of the Lebanese Criminal Code60.
56 Nidal Nabil Jurdi, “The Crime of Terrorism in Lebanese and International Law” (1998) 2187 UNTS 90, 73-74
57 Ibid, 74
58 Order on Preliminary Questions Addressed to the Judges of the Appeals Chamber Pursuant to Rule 68, Paragraph (G) of the Rules of Procedure and Evidence (STL-11-01/I/AC/R176bis), Pre-Trial Chamber, 21 January 2011
('Preliminary Questions Order'), 12-15.
59 Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging (STL-11-01/I/AC/R176bis), Appeals Chamber, 16 February 2011 ('Decision'), s.44.
16 The Chamber analysed the definition of terrorism included in article 314 of the Lebanese Criminal code which states: “Terrorist acts are all acts intended to cause a state of terror and committed by means liable to create a public danger such as explosive devices, inflammable materials, toxic or corrosive products and infectious or microbial agents.”61 They concluded that the definition requires
an act, which can constitute or not an offence under the Lebanese Criminal Code, which has the aim to “cause a state of terror” and the use of means that can create a public danger62.
It was argued that in the available Lebanese case law, the last element regarding the means has been interpreted in a too restrictive manner and therefore the acts that can amount to terrorism under Lebanese law are only those included in article 314. The list in the article includes explosive devices, inflammable materials, toxic or corrosive products and infectious or microbial agents63; it
can be immediately noticed how this list is not exhaustive, in fact it does not include the use of guns or any other weapon which is arguably frequently used in terrorist attacks. Moreover, the use of one of these means has to cause a public danger; if the means and “creating public danger” requirements are not met, the criminal offence cannot amount to terrorism but the perpetrators could still be prosecuted and convicted for other offences included in the criminal code, for example homicide.
The Appeals Chamber found that the definition of terrorism included in the Lebanese Criminal Code was narrower than the definition of the offence incorporated in other international Statutes64; for
example, the Arab Convention for the Suppression of Terrorism65, to which Lebanon is a party, is
broader, it does not present a list of means that can be used to carry out the crime. However, it took a step further and declared that even though scholars, national and international provisions seem not to find an agreement on the definition of terrorism, there are still some elements that are common to all the provisions in treaties, UN Resolutions and legislative and judicial practice of the States66.
Notwithstanding the persistence of some differences in the various definitions, particularly regarding the motive of the attack (ideological, political, religious, racial, etc.), the Appeals Chamber concluded that state practice and opinion juris have set a definition of terrorism in peacetime in customary international law. This decision has been made following the judgement in the Nicaragua
case where it was stated that the presence of dissimilarities does not preclude the existence or the
rise of a customary international law norm, it is sufficient to show that there has been general practice in the application of the law67. Therefore, the Appeals Chamber perceived the application
of the Lebanese Law as the starting point, it was not considered the only applicable law in the Tribunal and as an international tribunal, it had the power to include international law when necessary68.
61 Lebanese Criminal Code 1943, art 314
62 Interlocutory Decision on the Applicable Law (n. 59) s. 49 63 Lebanese Criminal Code 1943, art 314
64 Manuel J Ventura, “Terrorism According to the STL's Interlocutory Decision on the Applicable Law: A Defining
Moment or a Moment of Defining” (2011) 9 J Int'l Crim Just 1021
65 Arab Convention for the Suppression of Terrorism 1998 66 Interlocutory Decision on the Applicable Law (n. 59) ss.83, 85
67 Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of
America) 1986 I.C.J. p. 88 para 186
17 The Chamber, therefore, established the following three elements to constitute the definition of terrorism in customary international law:
(1) The perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson and so on) or threatening of such an act
(2) The intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it
(3) When the act involves a transnational element
This definition has been, as already mentioned, extensively criticised, not only because the Court took the ambitious position to declare the existence of a customary definition of terrorism but also it was argued that this definition is under-inclusive and over-inclusive at the same time69.
On one hand, the definition retains the same subjective elements as the one incorporated in the Lebanese Criminal Code, in fact the means rea requirement is the intention to commit the underlying act and the special intent to cause the fear or coerce authority: intent to cause a state of terror.
On the other hand, the judges’ classification of terrorism is extremely controversial regarding the objective element.
The first issue that has to be highlighted about the above definition is the absence of the motive requirement, as already mentioned this element is the one that still differs in national but also international provisions, in fact ideological, political, religious or racial motives are not equally accepted in the provisions criminalising terrorism. The Chamber relied on a number of sources to get to this conclusion, arguing that many national systems include the purpose requirement, moreover the 1994 UN General Assembly Declaration on Measures against International Terrorism required the criminal act to be carried out with a political motive70. However, subsequent UN
Resolutions dropped the requirement of a motive. The Chamber justified the absence of such element in the Interlocutory Decision on the applicable law affirming that state practice and national and international instruments do not contain such element yet71. On the face of it, the
decision of the Chamber to exclude this element seems to be reasonable and correct, in fact the motive requirement is definitely not an element that can be said to have been established by state practice and opinion juris, therefore, it cannot be regarded as customary international law. However, it is not clear enough and it might be argued that this emphasises the precariousness of the claim that a customary law definition of international terrorism exists. The court defines terrorism as an international crime but omits the motive requirement which can be disputed to be the main element required to distinguish this offence from other offences and it characterises the nature of terrorism; when comparing the motive requirement with the other elements of the definition, it is not clear why the Chamber concluded that the motive requirement was not to be considered and established in the sources.
69 Gillet M. and Schuster M., “Fast-Track Justice: The Special Tribunal for Lebanon Defines Terrorism” (2011) 9 Journal
of International Criminal Justice 989
70 Annex to United Nations General Assembly Resolution 49/60 (1995), para 12 71 Interlocutory Decision on the Applicable Law (n.59) para 98
18 The second issue concerns the nullum crime sine lege principle, the principle is based on the notion that a person cannot be prosecuted and convicted for an act, which was not criminalized at the time it was committed72. The over-inclusive definition of terrorism presented by the Appeals Chamber of
the STL is contentious on this point. In fact, the possibility to include different means other than those stated in the Lebanese Criminal Code might allow arbitrary application of the law, a clear example can be presented in the situation when a person carries out a criminal act satisfying all the requirements of article 31473, however the means used is a gun. Arguably it would be unfair for an
individual to be prosecuted for the crime of terrorism because when he committed the crime, guns were not included as a means to carry out a terror attack; however, he could definitely be prosecuted for murder. As a consequence, it can be argued that the over-inclusion in the definition of the Appeals Chamber might be in breach of the nullum crime sine lege principle, as it would breach the defendant’s rights74.
Moreover, the Tribunal, until now, has not issued any (final) judgment on any case, therefore it will be interesting to see how the definition is going to be applied in practice.
In particular, the Ayyash et al case75, whose judgement is expected soon, is the most interesting
case, it concerns the attack that killed the former Lebanese Prime Minister Rafik Hariri and other 26 people on 14 February 2005. The accused Messrs Salim Jamil Ayyash, Hassan Habib Merhi, Hussein Hassan Oneissi and Assad Hassan Sabra are currently facing trail in absentia, and they are charged with, amongst other offences, conspiracy to commit a terrorist act pursuant to articles 188, 212, 213, 270, and 314 of the Lebanese Criminal Code, and Articles 6 and 7 of the Lebanese Law of 11 January 1958 on “Increasing the penalties for sedition, civil war and interfaith struggle”, and Article 3(1)(a) of the Statute of the Special Tribunal for Lebanon76.
Based on the analyses above, it can be argued that the conclusion of the Tribunal that a customary international law definition of terrorism is hardly acceptable. The definition found here cannot be regarded as customary because the tribunal erred in his assessment that some elements have crystalised in state practice, in fact there is evidence in national provisions, international conventions and state practice that there is a lack of consensus on the matter.
2.2. The UN’s approach
The Special Tribunal for Lebanon is not the only international body that has tried to classify terrorism; after September 2001, UN Security Council adopted various resolutions with the aim to oblige State Parties to combat terrorism77. The first Resolution 137378 concerns the prevention and
suppression of financing terrorism. It is regarded as a fundamental Resolution considering it imposes the obligations on States to declare terrorism a serious crime under domestic law, imposes cooperation to prevent and suppress the offence and oblige states to avoid safe heaven. However,
72 Prakash Puchooa (n. 69) 39 73 Lebanese Criminal Code 1943 74 Prakash Puchooa, (n.69) 39
75 Special Tribunal for Lebanon, Case No: STL-II-Ol/PT/PTJ, The Prosecutor V. Salim Jamil Ayyash, Mustafa Amine
Badreddine, Hussein Hassan Oneissi & Assad Hassan Sabra, 6 February 2013
76 Ibid
77 United Nations Security Council Resolution 1373 (2001), United Nations Security Council Resolution 1540 (2004), United Nations Security Council Resolution 1566 (2004)
19 the Resolution clearly presents a big flaw: it does not include a definition of terrorism. Therefore, the Resolution imposes on states an obligation to criminalise the crime of terrorism without providing any guidance on what the elements of this crime are.
Moreover, in the subsequent Resolution 1566, the Security Council reemphasised the importance of cooperation among States in order to defeat terrorism and promoted the ratification of treaties; the Resolution is extremely relevant because for the first time it regarded terrorism as a serious threat to peace and security79. The Security Council has tried to expand the prohibition and
prevention of terror attacks by imposing obligations upon State to deny safe haven to people inciting terrorism80; however, this Resolution 1624 is not adopted in the framework of Chapter VII81
and therefore it is not binding.
Furthermore, a comprehensive international definition of terrorism is needed in order to protect fundamental human rights. As seen, the Conventions are surrounded by a number of issues, an additional one is the fact that States implement the conventions into domestic law with some variations, causing a difference in the enjoyment of fundamental human rights which can lead to the abuse of the definitions of terrorism and of the counter-measures put in place82. In particular,
some Conventions as the Terrorism Financing Convention and the Bombing Convention provide for the fair treatment of people taken into custody, however it is also mentioned that the enjoyment of the rights are in conformity with the laws of the Country where the person is83. Therefore, the
protection granted by the Conventions can be considered merely symbolic as the human rights protection is put in place based on the human rights framework of the State84.
The gap left by the conventions on the implementation of human rights has given the States the opportunity to apply the terrorism legislation really broadly, this approach has caused selected accusation which has been extremely detrimental for ethnic minorities and it has been used to carry out political plans, for example counter-terrorism provisions have been used in order to stop political dissent, in Russia political opponents and activists have been labelled as terrorists85.
It seems evident from the above stated international provisions that the Security Council has failed to provide a clear definition of terrorism, in fact none of the Resolutions deliver a clear and comprehensive one; only Resolution 1566 provides for a number of criminal acts that if committed with the required intent, i.e. causing death or serious bodily injury, or taking hostages with the purpose of provoking a state of terror or compelling a government, can satisfy the requirements of the offence under anti-terrorism conventions86. It can be argued that the UN Resolutions and
anti-79 Resolution 1566 (n.77)
80United Nations Security Council Resolution 1624 (2005) 81 United Nations Charter 1948
82 Stella Margariti, “Defining international terrorism to protect human rights in the context of counter-terrorism” (2018) 29 Security and Human Rights 173, 181
83 International Convention on the Suppression of Financing Terrorism 1999, art.17; International Convention for the Suppression of Terrorist Bombings 1997, art 14
84 Stella Margariti (n. 82) 182
85 Human Rights Council, Report of the UN High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism (2014), para 27 < https://digitallibrary.un.org/record/791081 > last accessed 28 June 2020
20 terrorism conventions have created an uneven and confusing body of laws; as a consequence, since September 2001 there has been an inconsistency in the application of anti-terrorism law87.
The incapacity of the Security Council to provide a clear and comprehensive definition of terrorism within the Resolutions, the inconsistency within anti-terrorism conventions and the difficulties found by States in the terminating the Draft Terrorism Convention are all evident and unequivocal evidence that a rule of customary international terrorism has not developed88. Hence, it can be
argued that the finding of the Special Tribunal for Lebanon that a customary international definition of terrorism has developed at least in peace time is not satisfactory and suitable, the Tribunal failed to support this finding with reliable evidence regarding the international consensus on the scope of the international rule89.
3. ICC’s jurisdiction over terrorism: A suitable definition
As seen above, terrorism has been discussed in multiple international and regional conventions with the aim of fighting it and deterring. However, at present, terrorism is not included in the jurisdiction of the International Criminal Court, in particular it is not a stand-alone crime.
3.1. Drafting of the Rome Statute: reasons to exclude terrorism
During the drafting of the Rome Statute90, State Parties were unable to agree on multiple points
that led to the exclusion of the crime from the Statute. It is worth analysing what these elements were and whether they are still an issue nowadays in order to understand why terrorism should be prosecuted under the ICC. The rejection of the inclusion of acts of terror is based on six main reasons; firstly, the main obstacle that States found was the lack of a clear and universal definition of the crime, which as seen in the previous chapters is still a fundamental issue91, however it can be
argued that there have been attempts to solve the problem and maybe in the near future a comprehensive definition of terrorism can be found.
The second issue claimed by States is that terrorism cannot be regarded to be at the same level of the other core crimes included in the Statute, claiming that it does not represent a great concern and definitely not an international concern92. This claim is to be considered incorrect; in the
Preamble of the RS, it is stated that the ICC is concerned with crimes that threaten the peace, well-being and security of the whole world93. Moreover, it is stated that the most serious crimes are
87Van der Herik L. and Schrijver N., “Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting
the Challenges” (Cambridge University Press, 2013) 642
88 B. Saul, “Legislating from a Radical Hague: The United Nation Special Tribunal for Lebanon invents an International
Crime of Transnational Terrorism” (2011) 24 Leiden Journal of International Law 677, 694
89 K. Ambos, “Judicial creativity at the Special Tribunal for Lebanon: is there a crime of transnational terrorism under
international law?” (2011) 24 Leiden Journal of International Law 655
90 Rome Statute 1998
91 Statements made by the delegates of Syria, Official Records of the Rome Conference, U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an Int’l Criminal Court, 3d plen. mtg., 172
92 Statements made by the delegates of Slovakia, Official Records of the Rome Conference, U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an Int’l Criminal Court, 3d plen. mtg., 72
21 prosecuted in order to avoid perpetrators to go unpunished and to prevent the perpetration of these crimes94. In recent years the world has experienced the threat and seriousness of terrorism,
the most clear and straightforward example is 9/11. Besides, because of the engagement of States in the battle against terrorism, scholars have argued that perpetrators of acts of terror can be regarded as hostis humani generic95, therefore establishing terrorists on the same level of perpetrators of war crimes, crimes against humanity and genocide. In addition, as seen in the previous chapter, the Security Council has recognised in the Resolution 1373 the seriousness of the crime, declaring that terrorism is a threat to the international peace and security96.
The third reason for the exclusion of the crime is the States’ preoccupation to overburden the court and the need of a gravity threshold97. This concern is hardly justifiable, the overburden of the court
arises not only in the case of this specific crime but also with all the other core crimes; moreover, the Rome Statute presents mechanisms to avoid this problem, in fact, the court is only concerned with the “most serious crimes of international concern”98. It is also worth mentioning that the court
is complimentary to national courts, therefore the court mainly defers to national jurisdictions, which is a successful tool to avoid the presence of a high number of cases; the ICC exercises jurisdiction only when a State is unwilling or unable to investigate or prosecute99.
At the time it was assumed that the inclusion of such crime would make it harder for States to accept the Statute100. Clearly this does not represent an issue today as the Rome Statute has already come
into force and its widely ratified. Regarding this issue, it can be argued that the inclusion and implementation of the crime of terrorism would work the same way of the crime of aggression that has been recently included101; as a crime subsequently included in the Statute, States Parties have
the possibility to accept or deny the jurisdiction of the court over it. In fact, it is an amendment, therefore States are not automatically bound by it. In the case of the crime of aggression, it was included in the RS in 1998 without a definition, the agreement on the definition was found in the 2010 Kampala Conference and implemented through an amendment. Even though it entered into force in 2018, a large number of the States Parties have not accepted the jurisdiction of the court over the crime and decided not to ratify the amendment; notably, the Statute gives the possibility to opt out of the amendment at any time102.
During the drafting of the Statute, it was further argued that there was no necessity in adding the crime in the statute as it was already criminalised in international conventions, in particular counter-terrorism conventions, and therefore States had already put in place a system of cooperation based on the aut dedere aut judicare principle, which provides that a State either prosecutes or extradites
94 Ibid
95 Lucy Martinez, “Prosecuting Terrorists at the International Criminal Court: Possibilities and Problems”, (2002) 34 RUTGERS L.J. 1, 40-41
96 Resolution 1373 (n.77)
97 Statements made by the delegates of Ukraine, Official Records of the Rome Conference, U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an Int’l Criminal Court, 3d plen. mtg., 176
98 Rome Statute 1998, art. 1 99 Ibid, art.17
100 Statements made by the delegates of Italy, Official Records of the Rome Conference, U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an Int’l Criminal Court, 3d plen. mtg., 178
101 Aviv Cohen, “Prosecuting Terrorists at The International Criminal Court: Reevaluating an Unused Legal Tool to
Combat Terrorism” (2012) 20 Michigan State International Law Review 219, 226
22 the perpetrator of an act of terror103. This is not a good reason to deny jurisdiction under the ICC,
also because of the complementarity principle in place in the Court. As a matter of fact, war crimes were already established and criminalised in the Geneva Conventions, however this did not preclude the court from having jurisdiction over them104; the same reasoning applies for genocide
which was dealt in the Genocide Convention105.
Finally, terrorism was excluded from the Rome Statute because it was argued that the crime was too political106; the possibility of the ICC being involved in politics could and would have sparked
concern about its credibility, impartiality and legitimacy. Undoubtedly, terrorism is a political crime, as seen earlier the goal of terrorism is to influence the government; however, on the other hand, it can be argued that it would not be the first crime in the Rome Statute to have a political background. Arguably both the crime of aggression and genocide concern politics, in fact aggression mainly deals with the sovereignty of States, however States were able to find a definition of genocide suitable for the ICC, moreover in the Kampala Conference in 2010, States were able to find an agreement on the definition of aggression107. It might be argued that the issue with terrorism being too political
actually lies on the fear of State Parties’ leaders of being prosecuted for the crime, moreover as the ICC is based on the complementarity principle, States have a duty to prosecute the crime at national level.
Therefore, terrorism satisfies all the requirements to be added among the core crimes: it is regarded as one of the most serious crimes, it affects the peace and security of the whole world and it is definitely imperative to prosecute terrorists, in order to deter future attacks. However, one of the issues that persists involves the definition. The lack of the definition of the crime is arguably not an insurmountable issue, in fact as seen in the previous chapter the majority of Conventions and provisions contain the same elements: the crime involves the threat or the use of violence, the victims are randomly chosen but it is directed to civilians and the aim of the attack is to coerce the government or an organisation to do or not do something108. As previously argued in regard to the
STL statement, this is not to be regarded customary international law yet as practice differs but it is clearly a starting point.
3.2. Terrorism prosecuted as one of the already existing crimes in the ICC
The issue of the definition needs a long time to be resolved, nowadays the interest has slightly shifted to another discussion: the crime of terrorism can already be prosecuted by the ICC under one of the four core crimes. This statement is only partially correct, it is not straightforward and it would leave a large range of crimes unpunished.
103 Aviv Cohen (n.101) 227
104 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 1949; Geneva Convention relative to the Treatment of Prisoners of War 1949; Geneva
Convention relative to the Protection of Civilian Persons in Time of War 1949 105 Convention on the Prevention and Punishment of the Crime of Genocide 1948
106 Statements made by the delegates of Ghana, Official Records of the Rome Conference, U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an Int’l Criminal Court, 3d plen. mtg., 278
107 Keith A. Petty, “Sixty Years in The Making: The Definition of Aggression for The International Criminal Court”, (2008) 31 Hastings Int’l & Comp. L. Rev. 531, 532
