The Challenge For The International Criminal Court: Terrorism
The Rome Statute came into effect on 1 July 2002, creating the world’s first permanent International Criminal Court (ICC). After the sixtieth ratification, the Statute entered into force, in accordance with Art. 126 (1). The Rome Statute, which was passed by 120 votes to seven against (with 21 abstentions), provides for jurisdiction over war crimes, crimes against humanity and genocide.
The Court does not have jurisdiction over international terrorism per se, but many scholars assert that some terrorist acts could be prosecuted as crimes against humanity. These dreadful terrorist attacks against the United States on September 11, 2001, have made it clearer than ever that the international community needs to cooperate and take actions against terrorism on an international level. Terrorism is not merely a domestic problem. In the future we will not be able to rely on domestic legislation only. It will be necessary to determine international concepts and approaches which tackle crimes of terrorism on an international level as well.
The purpose of this paper is to explore what role the International Criminal Court (hereinafter: ICC) might play in combating terrorism in terms of international law enforcement.
II. Jurisdiction of ICC
The jurisdiction of the court needs to be understood in three contexts:
# Jurisdiction rationae materiae, (“which answers the question of “which crimes can be tried before the ICC?”)
# Jurisdiction rationae personae, (“who can be judged?”)
# And jurisdiction rationae temporis (“when might the crimes have been committed?”)
With respect to Jurisdiction rationae material, Art. 1 of the Rome Statute states that “[the Court] shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern”. These crimes comprise genocide (Art. 6), crimes against humanity (Art. 7), and war crimes (Art. 8). After extensive debates, the negotiators agreed to also include the crime of aggression. However, the ICC will not exercise jurisdiction over the crime of aggression unless agreement is reached regarding how to define the crime and regarding the conditions for the court’s exercise of jurisdiction over it.
With respect to jurisdiction rationae personae, the Rome Statute provides that the ICC only has jurisdiction over natural persons (Article 25 of the Statute) at least eighteen years of age at the time the crime was allegedly committed(Article 26 of the Statute). Art.12 of the Statute contains the principle of territorial jurisdiction. The ICC may exercise jurisdiction over crimes committed in the territory of a state party irrespective of the offender’s nationality, Art. 12(2)(a). The offender will incur criminal responsibility even if the state of which he or she is a national is not a party to the Rome Statute. On the basis of nationality principle, the ICC exercises jurisdiction over individuals, who are nationals of state parties or of states which have accepted ICC-jurisdiction. Offenders can be tried whether or not a crime has been committed in the territory of a state party. However, since non-state parties are not bound by the Statute, they need not cooperate with the authorities of the ICC in case a national of a state party committed a crime in their territory.
Finally insofar as the jurisdiction rationae temporis is concerned the ICC has jurisdiction only for crimes committed after the entry into force of the Rome Statute. Furthermore, for the States which become party subsequently, the competence of the ICC only holds for the crimes committed after the statute comes into force for that State. But it would be suffice that either the crime was committed or that the nationality of the author of the crime be party to the Statute for the competence of the ICC to be acknowledged.
III. Terrorism as International Crime
Like no other event in recent history, the attacks against the United States on September 11, 2001 concentrated the world’s attention on the problems of terrorism. Among the many problems terrorism poses is a familiar crux of international law: the failure of attempts by the community of nations to find an acceptable legal definition of terrorism. The principle reason for this aporia is that the international community finds it difficult to distinguish between terrorism, national liberation movements and other movement that has or continue to use force to defend their right of self-determination. For this reason, the international law concerning terrorism has developed haphazardly and now consists of an unsystematic hodge-podge of treaties concerning specific modes of terrorism. Individual states have chosen which among these treaties they will ratify and incorporate into their domestic legal systems. Accordingly, prosecutions of acts of terrorism falling within the various treaties tend only to occur in domestic legal fora.
In S.C. Resolution 1373, adopted on September 28, 2001, the Security Council stated that the acts committed on September 11, 2001, “like any act of international terrorism, constitute a threat to the peace and security” of the international community. The dreadful terrorist attacks against the United States on September 11, 2001, have made it clearer than ever that the international community needs to cooperate and take actions against terrorism on an international level. In this sense, the role that can be played by the International Criminal Court is extremely important, owing to its nature as an international judicial body with universal jurisdiction and a specialized area of action (international crimes).
IV. International Terrorism and the Jurisdiction of ICC
Individual terrorists typically act independently of a state. For this, and other reasons, the prosecution of terrorists by the ICC raises some complex question of the interpretation as the crimes defined by the Rome Statute do not easily ‘fit’ the activities of many terrorist groups.
a) Terrorism as War Crime-
The Rome Statute of the International Criminal Court distinguishes between four types of war crimes, namely:
(a) Grave breaches of the Geneva Conventions of 12 August 1949;
(b) other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law;
(c) in the case of an armed conflict not of an international character, serious violations of Article 3, common to the four Geneva Conventions of 12 August 1949;
(d) other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law. (Article 8)
Terrorist acts will, however, amount to war crimes subject to prosecution before the Court only when they are committed “as part of a plan or policy or a part of a large scale commission of such crime”.
A significant impediment to prosecuting terrorists for war crimes before the ICC is the Elements of Crime that provides that war crimes are to be interpreted “within the established framework of the international law of armed conflict”. Under Article 8(a)(i), for example, the war crime of willful killing requires that:
• The Perpetrator killed one or more persons,
• Such person or persons were protected under one or more of the Geneva Convention of 1949.
• The Perpetrator was aware of the factual circumstances that established that protected status.
• The conduct took place in the context of and was associated with an international armed conflict.
• The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
These elements do not “fit” easily within terrorist acts. However, taking Al-Qaeda as an example, each of the elements might be satisfied on the facts; there is arguably an “armed conflict” between Al-Qaeda groups with a plan to kill Western business men and women and tourists in locations throughout the world; if an armed conflict is found to exist, the other elements are more readily demonstrated. Similarly, the terrorist acts of certain Palestinian and Israeli groups might be considered as part of an international armed conflict.
b) Terrorism as Genocide
Article 2, of the Genocide Convention defines genocide as:
[...] any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
For a crime of genocide to have been committed it is thus necessary:
(1) that one of the acts listed have been committed (i.e., killing members of a group, etc.);
(2) that the particular act has been committed against a national, ethnical, racial or religious group; and
(3) that the crime has been committed with the special intent to destroy, in whole or in part the group, as such. Of these elements, the third of "genocidal intent" is what really distinguishes genocide from other crimes. Also the second element - the special identity of the victim requirement - is special for genocide. From a terrorism perspective, it is difficult to regard genocide as a crime that would be very useful for prosecutions. In genocide, the perpetrator aims at destroying a community as such. Normally, it would be difficult for non- State actors to perform the underlying offences on a scale that implies genocidal intent.
However depending upon the evidence, terrorist attacks could be acts that fall within the definition of genocide. The attacks on Palestinian homes, Jewish settlements in occupied territories, us overseas embassies, major US cities, on international tourist destinations or civilian facilities provide examples of acts that could satisfy the definition. Conviction for such acts will, however, depend on whether the evidence of an intent to destroy certain groups in whole or in part is sufficient to meet the elements of the definition of genocide.
c) Terrorism as Crime against Humanity
The concept ‘crimes against humanity’ evolved under the rules of customary international law and was proclaimed for the first time in the Charter of the International Military Tribunal of Nuremberg. In the International Criminal Court Statute of 1998 - that is the latest and most authoritative international instrument - crimes against humanity are defined as "any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) murder; (b) extermination; (c) enslavement; (d) deportation or forcible transfer of population; (e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) torture; (g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender [...], or other grounds that are universally recognized as impermissible under international law [...]; (i) enforced disappearance of persons; (j) the crime of apartheid; (k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. [Article 7(1)].
In short, the Rome Statute of the International Criminal Court (and the draft elements of crimes adopted) and the case law of the Yugoslavia and Rwanda Tribunals suggest that the crimes against humanity have three essential elements:
(1) The perpetrator has taken part in the commission of an inhumane act causing great suffering, or serious injury to the body or mental or physical health, that is, the perpetrator has committed one of the enumerated acts/underlying offences;
(2) The underlying offence was committed as part of a widespread or systematic attack directed against a civilian population ("the contextual element"); and
(3) The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population ("mens rea relating to the contextual element")
In the International Criminal Court Statute an "attack directed against any civilian population" is defined as "course of conduct involving the multiple commission of acts referred to in [Article7] [...] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack"
A crime against humanity does, however, additionally envisage that a terrorist act amounts to such a crime if it is furtherance of an “organizational policy” that is not necessarily that of sovereign State. It could be argued that the acts of terrorist group further the organizational policy of their own or another non-state group. If so, the Court could determine that it has jurisdiction over such acts for the purpose of a prosecution for a crime against humanity.
A brief analysis of terrorist acts with the jurisdictional power of the ICC indicates the terrorism might be prosecuted as a crime against Humanity, war crime or possibly genocide. The emphasis of the Rome Statute lies with individual responsibility so there is no need to demonstrate that a State has been the perpetrator. Now that the category of offenders was extended to include terrorist organizations, the September 11 attacks could be theoretically viewed as crimes against humanity. Of the international core crimes, the crime against humanity is the one best suited to tackle terrorist crimes with. The central requirement of crimes against humanity is that the illegal act must be committed as part of a widespread or systematic attack directed against a civilian population. The state, or in this case the non-state actor, must not necessarily adopt a policy as the formal policy.
However, in my opinion, it would be beneficial to amend the ICC Statute with express provisions concerning terrorism. One has to keep in mind that terrorism is a separate category and as such deserves separate contemplation and prosecution. As already laid out earlier, not all terrorist acts meet the high threshold of crimes against humanity. Consequently, certain terrorists could escape ICC jurisdiction even though their act was vile and a serious crime of international concern.
The ICC is currently the only capable international institution that could fill the current gap in the law and serve as an ideal tool in the battle against terrorism by upholding justice. The important link between peace and prosecution by an impartial court should not be underestimated. With sufficient support of the international community, the ICC could be a powerful mechanism, and it could be an especially credible one by virtue of its transparency and commitment to the legal ideals respected by most domestic legal systems. It would be a serious setback if the Court were allowed to emerge stillborn.
1. William A. Schabas, An Introduction to International Criminal Court (Cambridge University Press, Published 2007).
2. Andrea Bianchi, Yasmin Naqvi, Enforcing International Law Norms Against Terrorism (Hart Publishing, Published 2004).
1. Gillian Triggs, ‘Challenges for the International Criminal Court: Terrorism, Immunity Agreement and National Trials’, Ustinia Dolgopal and Judith Gardam (eds.), International Humanitarian Law Series: The Challenge of Conflict, Martinus Nijhiff Publishers, 2006).pp. 315-330.
2. Olympia Bekou and Robert Cryer, ‘The International Criminal Court and Universal Jurisdiction: A Close Encounter?’, International and Comparitive Law Quarterly,
3. Mikaela Heikkila, ‘Holding Non-State Actors directly responsible for acts of International Terror Violence’, Institute for Human Rights, Abo Akedamy University, 2002, available at http://www.web.abo.fi/instut/imr/norta/mikaela.pdf
4. Mira Banchik, ‘International Criminal Court and Terrorism’, June 2003. available at http://www.tamilnation.org/terrorism/international_law/0306iccandterrorism.htm
5. Richard J. Goldstone & Janine Simpson, ‘Evaluating the Role of International Criminal Court as a Legal Response to Terrorism’, Harvard Law Journals, available at http://www.law.harvard.edu/students/org/hrj/iss16/goldstone.shtml
6. Salzburg Retreat, ‘ The Future of the ICC’, May 2006, Salzburg Law School on Int. Criminal law, Humanitarian law and HR Law (eds.), available at http://www.sbg.ac.at/salzburglawschool/Retreat.pdf
7. ‘AMICC: Terrorism and ICC’ available at http://www.amicc.org/docs/terrorism.pdf
8. ‘Terrorism as an international Crime’ available at http://www.counter_terrorism_law.org/internationallaw.pdf
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