Anthony Aust. Handbook of International Law

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14 Terrorism

Terror is the feeling which arrests the mind.

Aust, Implementation Kits for the International Counter-Terrorism Conventions, Commonwealth

Secretariat, London, 2002

Lambert, Terrorism and Hostages in International Law, Cambridge, 1990

Higgins and Flory (eds.), International Law and Terrorism, London, 1997

Shaw, International Law, 5th edn, Cambridge, 2003, pp. 1048–53

www.un.org/terrorism/

The so-called War on Terror may have begun on 11 September 2001, but terrorism has been

practised for centuries. The international struggle against it started in the early part of the last

century, and in 1937 the League of Nations concluded a Convention on the Prevention and

Punishment of Terrorism.

But a world war intervened and it never entered into force.

Terrorist crimes are ordinary crimes even if they are carried out for political, ideological or

religious reasons, and so can be prosecuted where they are committed. However, once a criminal has

fled abroad, extraditing him may not be easy,

and if he cannot be extradited the state of refuge may

not have jurisdiction over the crime.

When the crime is committed abroad, the person’s state of

nationality would have to exercise extra-territorial jurisdiction in order to try him, although that is

not usually possible for common law states. Nor do they normally assert criminal jurisdiction on the

ground that one of their nationals was a victim.

And it is unusual for states to have jurisdiction

under their law over crimes committed abroad by foreign nationals against foreign nationals.

1. James Joyce, A Portrait of the Artist as a Young Man, 1916, Ch. 5.

2. Includes detailed commentaries on the ten universal conventions and model bills by Nalin Abeyesekere:

see www.thecommonwealth.org (click on ‘What we do’, then ‘Law’, then ‘Documents’). Copies are also

obtainable from the Legal and Constitutional Affairs Division, Marlborough House, London SW1Y 5HX.

3. The book goes much wider than hostage-taking and examines in detail the previous counter-terrorism

conventions.

4. Hudson (ed.), International Legislation, vol. , pp. 862 and 878.

5. See p. 264 above.

6. See p. 44 above.

7. See p. 45 above.

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However, it is now well established in customary international law that since piracy, slavery, war

crimes and crimes against humanity are so terrible and affect the peace and security of all states, any

state has the right to try persons for these crimes, irrespective of their nationality or where the crime

was committed. This is known as universal jurisdiction.

But terrorism is not yet quite in that

category, one reason being the lack of international agreement on a comprehensive definition of

terrorism. Instead, universal treaties adopted by the United Nations or UN specialised agencies and,

more recently, Chapter measures of the UN Security Council, have been the means by which

international law contributes to the struggle against terrorism.

But first certain terms need explanation.

Definitions

‘State terrorism’

This is a term for terrorist acts by one state against another or its nationals, such as the holding

hostage of US diplomats in Iran in 1979–81, and done either by the state or commissioned or

adopted by it. The term is also used to describe widespread acts of cruelty committed by a state

against its own people by Hitler, Stalin, Pol Pot, Saddam Hussein, et al.

‘State-sponsored terrorism’

This was a particular feature of international life in the last decades of the twentieth century,

although perhaps less so now. It consists of a state sheltering, training, financing or supplying arms

to enable terrorists, often foreign, to attack another state or its nationals. As surrogate warfare, it is

cheap and deniable. As the Friendly Relations Declaration 1970 makes clear, states are prohibited

from aiding terrorism in any way.

Universal terrorism conventions

No international definition of terrorism

There is still no internationally agreed comprehensive definition of terrorism.

Only the elements of

the use or threat of force and seeking to create

8. See p. 45 above.

9. UNGA Res. 2625 ( ); ILM (1970) 1292.

10. See Lambert, Terrorism and Hostages in International Law, Cambridge, 1990, pp. 13–23; G.

Guillaume, ‘Terrorism and International Law’ (2004) ICLQ 537–47. Schmid and Jongman, Political

Terrorism, Amsterdam, 1988, identified merely 109 definitions.

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a climate of fear seem to be generally agreed. When acts like hijacking or hostage-taking are done

for personal reasons or gain, they are regarded as terrorism because of the fear it produces in those

directly or indirectly affected. The victims are not concerned with the motives of the terrorist, just

that they might die. Following the murder of Israeli athletes by Black September at the 1972 Munich

Olympic Games, UNGA Resolution 3034 ( ) established an Ad Hoc Committee on Terrorism.

But that and later UNGA resolutions included wording that suggested that national liberation

movements (NLMs)

might be justified in using terrorism because of the violence and repression

of colonial, occupying and racist regimes, and that these ‘underlying causes’ merited equal attention.

Hence the hackneyed saying, ‘one person’s terrorist is another’s freedom fighter’.

The law of armed conflict prohibits members of an armed force deliberately attacking civilians or

committing acts of terror. But resistance to occupation is not prohibited by international law, and

‘organised resistance movements’, belonging to a party to the conflict, are recognised by the Geneva

Conventions, provided they fulfil certain conditions and conduct operations in accordance with the

law of armed conflict. This category was enlarged by Additional Protocol to the Geneva

Conventions to cover also irregular forces, such as members of NLMs, who do not identify

themselves by distinguishing marks, provided they are under proper command and carry arms

openly when attacking or when visible to the enemy while deploying to attack.

Thus terrorists are

unlikely to be covered, their secretive organisation and modus operandi (exemplified by the suicide-

bomber) being such as not to bring them within the scope of the law of armed conflict, so remaining

subject to ordinary criminal law.

In 1987, Syria proposed an international conference to define terrorism, which has never been

convened. But a slight advance was made in 1994 with a UN Declaration on Terrorism (UNGA Res.

49/60), which included the following statements:

11. See p. 14 above.

12. See p. 253 above.

13. The UK reservation to Articles 1(4) and 96(3) of Additional Protocol I to the Geneva Conventions is to

the effect that the UK would only consider itself bound by a declaration of adherence to the Protocol (see

Article 96(3)) made by a body that has been expressly recognised by the UK as genuinely representing a

people engaged in a liberation conflict: see UKTS (1999) 29. See also p. 286 below on the links between

the terrorism conventions and the law of armed conflict, and C. Greenwood, ‘War, Terrorism and

International Law’ (2003) Current Legal Problems 505.

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terrorism was unequivocally condemned as ‘criminal and unjustifiable, wherever and by

whomever committed’;

‘criminal acts intended or calculated to provoke a state of terror in the general public, a group

of persons or particular persons for political purposes are in any circumstance unjustifiable

whatever political, philosophical, ideological, racial, ethnic, religious or any other nature that

may be invoked to justify them’; and

states must refrain from any association with terrorist acts.

There being no express exception for NLMs, the Declaration recognised that terrorism (not defined)

is a criminal act that cannot be justified, whatever the motive, and this is reflected in UNSC Res.

1566 (2004), paragraph 3. For regional conventions, motive is also irrelevant,

although there is an

express NLM exception in the Arab Convention 1998 (Article 2(a)), the Islamic Conference

Convention 1999 (Article 2(a)) and the Organization of African Unity Convention 1999 (Article

3(1)).

The nearest approach to a comprehensive definition of terrorism is to be found in the International

Convention for the Suppression of the Financing of Terrorism 1999.

Since its purpose is to deal

with the financing of terrorism, a definition of terrorism was essential. Article 2 therefore lists the

offences defined in the nine previous counter-terrorism conventions, and is followed by a kind of

mini-definition of terrorism:

Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not

taking an active part in the hostilities in a situation of an armed conflict, when the purpose of such act, by

its nature or context, is to intimidate a population, or to compel a government or an international

organisation to do or to abstain from doing any act.

(Emphasis added)

But the definition is only for the purposes of the convention. It does not create an international crime

of terrorism, and so there is still no universally agreed legal definition of terrorism.

Instead, the

problem has been approached piecemeal.

The sectoral, segmental or incremental approach

14. See n. 28 below

15. 2178 UNTS 229 (No. 38349); ILM (2000) 268; UKTS (2002) 28; 2002 ATS 23. See A. Aust,

‘Counter-Terrorism – A New Approach’ (2001) Max Planck YB of UN Law 285 at 288–94.

16. The definition of ‘terrorism’ in the UK Terrorism Act 2000 is for the purpose of proscribing terrorist

organisations, in relation to its provisions on terrorist funding, and in connection with police investigations.

The Act does not create an offence of ‘terrorism’. See also the complex and uncertain definition in the EU

Framework Decision on Combating Terrorism of 13 June 2002, No. 2002/475/JHA.

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All the universal conventions deal with certain categories of terrorism that are so manifestly wicked

that, unlike some regional treaties, they have no NLM exception. They apply irrespective of where

the crime was committed, the nationality of the accused or the motivation. Ten

universal

conventions were concluded between 1970 and 1999:

Convention for the Suppression of Unlawful Seizure of Aircraft 1970 (‘Hijacking

Convention’);

Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971

(‘Montreal Convention’);

Convention on the Prevention and Punishment of Crimes against Internationally Protected

Persons, including Diplomatic Agents 1973 (‘Diplomats Convention’);

Convention on the Physical Protection of Nuclear Material 1979 (‘Nuclear Convention’);

International Convention against the Taking of Hostages 1979 (‘Hostages Convention’);

Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International

Civil Aviation supplementary to the Montreal Convention 1988 (‘Montreal Protocol’);

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation

1988 (‘Rome Convention’) and Protocol for

17. The United Nations regards the Convention on Offences and Certain Other Acts Committed on

Board Aircraft 1963 (‘Tokyo Convention’) (704 UNTS 219 (No. 10106); UKTS (1969) 126) as a

terrorism treaty because it includes one Article, albeit ineffective, on hijacking, and parts of the

Convention were drawn upon when drafting the later conventions. The United Nations also treats as

a terrorism treaty the Convention on the Marking of Plastic Explosives for the Purpose of Detection

1991 (ILM (1991) 726; UKTS (2000) 134) because of its practical importance, but it has no

jurisdictional provisions.

18. The texts of the twelve conventions are at http://untreaty.un.org/English/Terrorism.asp and in

International Instruments Related to the Prevention and Suppression of International Terrorism,

UN, 2001. For detailed commentaries on them, see A. Aust, Implementation Kits for the

International Counter-Terrorism Conventions, Commonwealth Secretariat, London, 2002.

19. 860 UNTS 105 (No. 12325); UKTS (1972) 39.

20. 974 UNTS 177 (No. 14118); ILM (1971) 10; UKTS (1974) 10.

21. 1035 UNTS 167 (No. 15410); ILM (1974) 41; UKTS (1980) 3.

22. 1456 UNTS 101 (No. 24631); ILM (1979) 1419; UKTS (1995) 61.

23. 1316 UNTS 205 (No. 21931); ILM (1979) 1460; UKTS (1983) 81. See also Lambert Terrorism

and Hostages in International Law, Cambridge, 1990, generally.

24. ILM (1988) 627; UKTS (1991) 20; 1990 ATS 39.

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the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the

Continental Shelf 1988 (‘Rome Protocol’);

International Convention for the Suppression of Terrorist Bombings 1997 (‘Bombings

Convention’);

International Convention for the Suppression of the Financing of Terrorism 1999 (‘Financing

Convention’).

(For the status of these and the regional treaties,

see the UN Secretary-General’s annual report on

Measures to Eliminate International Terrorism.

The ten universal conventions vary in their terms, but generally share certain basic elements.

‘International’ terrorism

The conventions do not apply to offences that are solely internal. The way this is formulated varies

according to the subject, but generally the conventions will not apply if the offence is committed

within one state, the alleged offender and any victims are nationals of that state, the alleged offender

is found in its territory and no other state has a basis to exercise jurisdiction. But all these conditions

have to be met if the convention is not to apply.

25. 1678 UNTS 222 (No. 29004); ILM (1988) 672; UKTS (1995) 64; 1993 ATS 10. See Lambert,

Terrorism and Hostages in International Law, Cambridge, 1990, pp. 4, 26–7 and 115–16.

26. 2149 UNTS 284 (No. 37517); ILM (1998) 251; UKTS (2001) 31; 2002 ATS 17.

27. 2178 UNTS 229 (No. 38349); ILM (2000) 268; UKTS (2002) 28; 2002 ATS 23. For an account of its

negotiation and a commentary on it, see A. Aust, ‘Counter-Terrorism – A New Approach’, (2001) Max

Planck YB of UN Law 285–306.

28. Inter-American Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes

Against Persons and Related Extortion that are of International Significance 1971, 1438 UNTS 195 (No.

24381); European Convention on the Suppression of Terrorism 1977, 1137 UNTS 93 (No. 17828); ILM

(1976) 1272; UKTS (1978) 93 (now updated by a 2003 Protocol); SAARC (South Asian) Regional

Convention on Suppression of Terrorism 1987; Arab Convention on the Suppression of Terrorism 1998;

Commonwealth of Independent States Treaty on Cooperation in Combating Terrorism 1999; Islamic

Conference Convention on Combating Terrorism 1999; OAU Convention on the Prevention and

Combating of Terrorism 1999. For all these texts, see http://untreaty.un.org/English/Terrorism.asp, or

International Instruments Related to the Prevention and Suppression of International Terrorism, UN,