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To what extent terrorist offences can qualify as an international crime under the jurisdiction of the International criminal court?

Terrorism is without doubt an atrocity that is on the rise. In 2000, Alexander reported an increase in frequency of 300 recorded attacks in 1970, to over 5,000 in 1999 . The increase is as a result of a clear utilization of this form of aggression for various conflicts. Examples include Northern Ireland and the IRA, for which an official end to the violent campaign was only announced on July 28th 2005 as well as Palestine and Israel for which the Gaza strip was just emptied of its settlers as recently as August 15th and 16th of August, 2005 and many countries contain terrorist groups that their governments have tried to combat, including Turkey, Spain and Columbia. During the timeframe of the above statistic, there took place huge atrocities that remain etched in the minds of those who are able to remember them, and they include the Lockerbie Disaster, the Oklahoma Bombing, Bloody Sunday, the Omar Bombing and many others. Since 1999, there has been even more suicide bombing in Israel, the London Bombings that killed over fifty people on July 7th 2005, the Madrid Bombing and, by far the greatest atrocity of terrorism, September 11th. It is clear that terrorism, as a global threat to civil societies, requires to be dealt with under the framework of a workable international jurisdiction.

In 1998, proposals were made to create a new International Criminal Court that would tackle the greatest of human atrocities but it was largely inspired by the acts of Genocide in Rwanda and Yugoslavia , as well as the crimes against humanity in Yugoslavia, for which the UN had established ad hoc Criminal Courts to deal with the crimes committed by Slobodan Miloševic, among others. The Rome Statute on the International Criminal Court was therefore signed by UN States on July 17th 1998 to establish a permanent seat in the Hague and came into force on July 1st 2002 .

This paper will examine the extent to which terrorist offences can qualify as an international crime under the jurisdiction of the International Criminal Court (ICC) by first of all, in part one, analysing the jurisdiction of the ICC under the Rome Statute of the International Criminal Court. Part two will provide a detailed analysis that will ascertain the provisions and the extent of the Rome Statute's ability to account for terrorism within the existing wording of the ICC's relevant jurisdictional headings. Part three will provide a counter-analysis to identify the limitations and inadequacies of construing current ICC jurisdiction and, in doing so, will provide arguments for amendment of the Rome Statute to include express inclusion of terrorist offences.

Part One - The definition of terrorism compared with the Jurisdiction of the ICC under the Rome Statute

A. Is there a definition of Terrorism?

Since the 1960s terrorism has been an active part of our vocabulary but its definition and regulation under international law have been shaped into a non static mould by virtue of the changing nature of terrorism in the last forty years. Terrorism, as a generic act therefore does not exist but is regulated at the international level within the context of specific acts such as, among others, plane hijacking , hostage taking , public places and the financial assistance of terrorism .

The result of this breakdown of terrorist activity into specific acts is unsatisfactory from the point of view that methods of terrorism are constantly changing in terms of both simplicity and devastation. An example was given in an article in the magazine, New Scientist , which stated that one method of hitting the US beef economy in Texas would be to simply travel to a foot and mouth ridden country, wipe a wet rag on the tongue of an animal suffering from the condition and simply rinse out the same rag in the drinking trough of a Texan ranch. This article was of course written in the aftermath of the foot and mouth outbreak in the United Kingdom and the terrorism slant was motivated by the devastation of September 11th. The infestation of foot and mouth in Texas was perceived as a potential act of Terrorism from the point of view that it would constitute a political attack against Capitalism that would devastate the economy of Texas.

A clear conclusion that can be drawn from the nature of acts that may constitute acts of terrorism is that there is at least a mutual recognition of acts of violence or sabotage carried out as a result of a political unrest, and this could at least form the basis of a definition of terrorism that would therefore be able to keep up with the evolution of forms of terrorist offences.

A counter argument to this is that the heading of terrorism is not necessary and such acts as those described here above are instead able to fall under existing headings under international law. Such headings are present under the jurisdiction of the International Criminal Court (ICC) and are described below.

B. The jurisdiction of the ICC

Jurisdiction, Admissibility and Applicable law of the ICC are set out in Part two of the Rome Statue. Article 5(1) stipulates four categories of crime which are genocide , crimes against humanity , war crimes and the crime of aggression .

1. Genocide

This is defined as any one of five acts that are committed against a national or religious, ethnical or racial group with the intent to wholly or partially destroy. These acts are, firstly, the murder of members of the group, the causing of serious bodily or mental harm, the infliction of substandard conditions for living that will cause destruction, the direct or indirect prevention of procreation and the forced transfer of children to another group.

The above definition clearly shows that genocide is an act which is targeted at a specific category of people with the intent of reducing or wholly eradicating their existence. This can be construed under certain circumstances to cover acts of terrorism but it would be confined to instances where the attack was for the intentional destruction of a specific group and would have to represent a hard hit of that group in its isolation or have been one of a number of terrorist style targets of one group, with a combined, clear intention to hit members of that group.

Such instances would therefore include a systematic attack on a number of Christian churches during service on Sunday, with the intention to kill the congregation, or destruction of a single territory such as the Vatican. In addition an attack with biological warfare targeted against a specific group, that would either sterilize or destroy them would also constitute a terrorist attack that could fall under the definition of genocide.

2. Crimes Against Humanity

(a) Article 7(1)

This crime is defined under Article 7 of the Rome Statute and is wider than that of genocide in that it covers a 'widespread or systematic attack' against 'any civilian population.' In addition the nature of the acts committable that may constitute a crime against humanity are a much wider number of acts for which there is a non-exhaustive list of abhorrent atrocities that were introduced at the time of the Nüremberg trials in 1947 and includes murder , extermination enslavement , deportation , imprisonment , torture , rape , persecution , enforced disappearance and apartheid .

(b) Article 7(2)

This section of the Article that defines crimes against humanity provides definitions of the wording under Article 7(1). For the crime of terrorism the relevant definition is that of the, 'attack directed against any civilian population,' which is described as:

'a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack… '

There are two key features that can be used to tie in a terrorist offence with that of the crime against humanity. The first is the notion of the commission of multiple acts, which are characteristic of terrorism and the second is the notion of an organizational policy, such as a government or those espoused by terrorist groups such as al Qaeda, Islamic Jihad, Hamas and Moudjahidin . As stated above, a review conference will be held in accordance with Articles 121 and 123 of the Rome Statute, for the purpose of discussing expansion of the Rome Statute and many hope that this will involve discussion of amending the Rome Statute so as to provide for express jurisdiction of terrorists. Until this time, it is however necessary to construe the existing provisions but the adequacy of this route is currently an issue of much debate. Part two will analyse the detailed extent to which the heading of 'crime against' humanity can be used in relation to terrorism and part three will analyse counter arguments.

3. War Crimes

An act may only constitute a war crime where the act itself results in a breach of the Geneva Convention of 12 August 1949 but the jurisdiction of this convention only applies within the course of armed conflict. Any act which does not take place within the course of armed conflict cannot therefore constitute a war crime and this would include terrorism offences. It is however perfectly acceptable to allow acts of terrorism to constitute war crimes where armed conflict is taking place . However, this is the limit of the applicability of war crimes to terrorism and Sailer argues this by stating that terrorism is simply too random to constitute either Genocide or a War Crime .

4. Aggression

Currently aggression has not been defined under the Statute but, in accordance with Article 121(1), a conference will be held in 2009 for the purpose of possibly applying terrorism to the definition of aggression. Further to this and pursuant to Article 123, the jurisdiction of the ICC may also be extended to cover new crimes, in addition to aggression, and this is another avenue for the express inclusion of terrorism within the ICC's jurisdiction under the Rome Statute. For now, aggression is a dormant provision and terrorism must be construed under the definition of 'crimes against humanity'.

5. When will the ICC intervene?

In addition to the nature of the crimes being committed, there are a number of considerations of sovereignty that must operate in order to determine when the ICC should intervene to prosecute offenders. There are three key principles upon which the ICC must operate, which are, territory, nationality and complementarity.

(a) Territory under Article 12(2)(a)

The territorial aspect of the ICC's jurisdiction indicates that the ICC will assume control of the legal prosecution of individuals regardless of their nationality, who have committed acts under the Rome Statute within signatory States .

(b) Nationality under Article 12(2)(b)

States are also governed by the nationality jurisdiction of the ICC, regardless of the signatory status of the territory in which they commit an act under Article 5 of the Rome Statute .

Complimentarity protects the sovereignty of signatory states by setting ground rules for the intervention of the ICC in the prosecution of crimes under its jurisdiction. These rules are set out under Article 17 of the Statute and stipulate that the ICC will only intervene where the state in which the crime was committed is either unable or unwilling to prosecute. Additionally, where there is reason to believe that the course of justice would be compromised through corruption at national level or where the judicial system of the signatory state where the act took place has collapsed , the ICC will take over.

(d) Who may initiate referral to the ICC?

Further to this there are three parties who have the power to refer cases to ICC jurisdiction. Firstly, in accordance with Article 13(a) a State may refer the case to the ICC Prosecutor for them to investigate the crime and the number of perpetrators . Secondly, the Security Council also has such power under Article 13(b) and, lastly, the ICC Prosecutor may begin investigations under Article 13(c).

Part Two - The extent of 'Crimes Against Humanity' as the umbrella heading for jurisdiction of the ICC for terrorist offences.

A. The elements of 'Crimes Against Humanity'

The ICC Explanatory document explains the full context in which crimes against humanity may be constituted and there are five key elements stated under the explanatory document, as well as two types of action that are applicable to acts of terrorism.

1. Compatibility of the Elements with Terrorism

Firstly, the act that constitutes the crime against humanity must concern the International Community as a whole and this ties in with the above consideration of territory that the ICC must take into account before adopting jurisdiction. Secondly, the nationality aspect of the ICC's jurisdiction manifests for Crimes Against Humanity in the form of the requirement for the crime to warrant and entail individual responsibility. This is especially important given that the nationality principle will allow the ICC to extend jurisdiction to citizens of signatory States, regardless of status of the location of perpetration.

Thirdly, the act must not be permissible under the auspices of International Law that are recognized by the leading legal jurisdictions of the world. There is however no guidance as to whether the prohibition may be either civil or criminal but the foot and mouth example of New Scientist remains safe by virtue of committal of the crime of 'Argoterrorism, '

Fourthly, the actus reus of the crime that will satisfy a crime against humanity is that there must be at least participation in the act. The positive aspect of this is that all those who physically perpetrate the act are caught by the definition of crime against humanity under the Rome Statute. With regard to mens rea, there must be knowledge of the defined act as a 'widespread or systematic attack against a civilian population' although in the case of Prosecutor v. Dusko Tadic it was made clear that a fully comprehensive understanding of all that is going on is not entirely necessary, only that there is adequate awareness of the connection between the single attack and the widespread attack that is motivated by organisational policy that elevates the crime to that of a 'crime against humanity' .

It is very simple to attribute many acts of terrorism to this requirement as virtually all acts of terrorism are intended to be widespread and/or systematic. This was certainly true for the London bombings that took place in four separate locations, thereby satisfying the 'widespread' concept. The repetitiveness also adequately accounts for the requirement for a 'systematic' approach.

Fifthly, the definition of 'attack directed against a civilian population' is defined under Article 7(1) of the Rome Statute as the multiple commission of acts against any civil population, pursuant to or in furtherance of a state or organizational policy to commit such an attack. The two crucial considerations for this notion are that the attack need not be military and that the said 'policy to commit such an attack' is a requirement for the State or organization which is demonstrated by the encouragement of widespread or systematic attack against the civilian population .

Terrorism can be either military, as was the case with the Irish Republican Army, or non military as was the situation for the recent London bombings that involved civilian suicide bombers with homemade explosive devices. In addition, the civilian population is a random set of individuals that are picked out by virtue of circumstance and the multiplicity of the acts is indicative of a number of examples of terrorist attacks such as bombings. Finally, the requirement of an organizational policy is more than satisfied by the widespread teachings of Al Qaeda, Hamass, the Mugahadin and Islamic Jihad, which form terrorist networks that are said to support one another . For example, Osama bin Laden is said to run casual and informal relationships with other Sunni Islamic terrorist groups all over the globe . These affiliations to Al Qaeda include Jamaat al Islamiyya, who run operations in the Far East and Egyptian Islamic Jihad.

2. Compatibility of the types of act with acts of terrorism

In accordance with Article 7(1) of the Rome Statute, there are eleven headings under which a crime against humanity may be committed, of which two are compatible with the concept of terrorism. The first is relatively easy as it is murder under Article 7(1)(a) of the Rome Statute. The actus reus requirements for satisfying murder are simply that the perpetrator killed or caused the death of one or more individuals as part of the requisite widespread or systematic act against the civilian population. With regard to the mens rea, it is merely necessary that there was knowledge of or intention by the perpetrator that the act constituted a said widespread or systematic attack against the said population.

In the event that the terrorist attack does not cause death, it may also fall under the heading of Article 7(1)(k), which is a crime against humanity for other inhumane acts. Here, in order to satisfy the actus reus of the crime, it is only necessary that the perpetrator inflicted great suffering or serious injury to the body, mental or physical health by means of an inhumane act. It is also a requirement that the nature and gravity of the act must fall within the context of the elements as described under Article 7(1). The mens rea element is satisfied where the perpetrator was aware of the factual circumstances that were to establish the character of the act. In addition and, once again, the act must constitute a widespread or systematic attack on a civilian population and the perpetrator is to have known of this.

Conclusion to Part two

There are a great number of acts that are terrorist by nature and would fall under the jurisdiction of the International Criminal Court as either an act of murder that constitutes a Crime Against Humanity under Article 7(1)(a) or an inhumane act under Article 7(1)(k). The essential criteria are for the act to have been part of a multiple of widespread or systematic attacks acts against a civilian population with the intent to constitute just such an attack, which is promoted by an organizational policy. There are a wide number of situations in which these provisions will catch terrorist activity and this is most noticeably with the classic image of the bombing or willful destruction of a public place or mode of transportation that is carried out in the name of an Organization that promoted violence.

Part Three - Difficulties of construing 'crimes against humanity' with acts of terrorism - possible solutions.

A Difficulties

While the above analysis illustrated compatibilities of the Rome Statute under Article 7 with terrorist offences, there are a number of offences that would not be caught by the definition and set parameters of 'Crimes Against Humanity' and these are listed as follows.

1. Acts that are not inhumane or do not result in death

While it is clear that the Foot and Mouth example of the New Scientist magazine is an inhumane act, other acts that can sabotage the economies of other States should also be deemed as acts of terrorism. An example would be the disruption of electricity supplies to major metropols, as did occur in New York and the Canadian State of Ontario, but with the sole purpose of disrupting manufacturing and trade in and out of those areas. Such an act would not constitute a crime against humanity for the simple reason that there would be no serious injury to mental health other than the stress of lost revenue but it would be extremely difficult to construe 'great suffering' from such an experience.

2. Isolated, non widespread or unsystematic attacks

Many suicide bombings that have not been acknowledged by organizations such as Al Qaeda could well be part of a very informal, non organizational rogue action on the part of individuals, with the result that they would fall far short of the definition of 'systematic attack' that was produced by the International Criminal Tribunal for Rwanda (ICTR). Here it was stated that a 'systematic attack' must be:

"…thoroughly organised and following a regular pattern on the
basis of a common policy involving substantial public or private resources. "

With regard to the notion of 'widespread', it was held by the ICTR that this:

"…may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims. "

Once again, rogue suicide bombers would not fall under such jurisdiction.

3. Acts not against a civilian population

An assassination does not fall under the jurisdiction of a crime against humanity but the nature of many assassinations is such that it becomes the trigger for serious unrest whereby the absence of the charismatic leader sparks political feuds that lead to uprising and even war. This was the result of the assassination of the Emperor of the Austro-Hungarian empire, Franz Ferdinand and his wife which led to the outbreak of the First World War and the death of over fifteen million people . Put in even simpler terms, common sense clearly dictates that the ICC ought to have jurisdiction over the assassination of a world leader by a terrorist organization such as Al Qaeda.

4. Acts not promoted by a state or organizational policy

A primary example of such attacks are those that were committed by Timothy McVeigh, who lead a single handed campaign as the Oklahoma Bomber. A further example is found in cases where terrorist organizations do not come forward and claim responsibility for an atrocity . An example of this is an event that occurred in March 2003, where a suicide bomber blew up a bus in Haifa in Israel but no terrorist organization came forward . These are defined as 'leaderless resistances' which are infinitely more difficult to apprehend

It is more than clear that future perpetrators of non organizationally promoted terrorist offences should not be ruled out as a result of a mere technicality of organization.

B. Is there a need for improvement - possible solutions?

1. The need for improvement

There are clear limitations to the reach of Article 7 of the Rome Statute. However, before suggesting solutions to combat the evident lack of full encompassment of the extent to which terrorist offences are covered under the umbrella of 'Crimes Against Humanity', it is necessary to ask whether all acts of terrorism really ought to have automatic international jurisdiction. The answer is yes in so far as there continues to be motivational organizations that, as well as implementing their own widespread and systematic attacks are sources of inspiration to rogue suicide bombers and amateur sub groups. This argument is especially backed by the resultant difficulty of locating the key members of global terrorist networks whereby a system that differentiates between organizational onslaught and the individual amateur would pervert the cause of justice by creating unnecessary hearings to establish jurisdiction that would get in the way of the process of justice.

2. Solutions

As shown above, the author regards acts of terrorism as far wider creatures than those accounted for under the jurisdiction of Article 7 but a generic definition of terrorism is required in order to remove the uncertainty that is generated by the constant innovation of new forms of terrorism. Further to this, the definition ought to be introduced into the provisions of the Rome Statute following the imminent review conference in 2009 under Articles 121 and 123 of the Statute and form part of an express jurisdiction for the ICC over terrorist offences.

Conclusion

Despite the generic nature of Crimes Against Humanity, the nature of this Article 7 heading is both too severe and narrow to fully account for the myriad of acts that may constitute an, as of yet, undefined creature that is terrorism. The unique aspect of terrorism is that each act, regardless of its severity, motivates another and thus breeds the constant threat of an international atrocity that must be fully guarded against under International Law. With this in mind, it is necessary to both define terrorism in the Rome Statute and install express measures to include this crime within the jurisdiction of the ICC.

Bibliography

Legislation
International Criminal Tribunal for Rwanda (ICTR) [Online] At: http://www.ictr.org/
International Criminal Tribunal for the former Yugoslavia (ICTY) [Online] At: http://www.ictr.org/
Rome Statute of the International Criminal Court 37 I.L.M. 999 (1998).
Convention on Offences and Certain other Acts Committed on Board Aircraft, 1963
Convention for the Suppression of Unlawful Seizure of Aircraft, 1970
Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 1971
International Convention Against the Taking of Hostages, 1979
International Convention for the Suppression of Terrorist Bombings, 1998
Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, 1988
International Convention for the Suppression of the Financing of Terrorism, 2000
Geneva Convention of 12 August 1949 U.N.T.S. No. 973, vol. 75

Case Law
Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T

Text Books
Bassiouni. M. C, 1999, Crimes Against Humanity in International Criminal Law 9, Kluwer Law International 2nd edition, London
Keegan. J, 1998, The First World War, Hutchinson, London,

Articles
Alexander, Y, 2000, Terrorism in the Twenty-First Century: Threats and Responses, 12 DePaul Bus. L.J. 59, 75
BBC News, 2005, IRA Says Armed Campaign is Over, [Available Online] At: http://news.bbc.co.uk/1/hi/northern_ireland/4720863.stm
Coghlan. A, March 3, 2001, Virus on the rampage, New Scientist Magazine, Issue 2280, London
Gross. E, 2002, Trying Terrorists - Justification for Differing Trial Rules: The Balance Between Security Considerations and Human Rights, 13 Ind. Int'l & Comp. L. Rev. 1, 83
Sailer. T.M, 1999, The International Criminal Court: An Argument to Extend Its Jurisdiction to Terrorism and a Dismissal of U.S. Objections, 13 Temp. Int'l & Comp. L.J. 311, 320
Segarra. A.E. Congress Report, July 17, 2002, Agroterrorism: Options in Congress, Order Code RL31217 [Available Online] At: http://www.au.af.mil/au/awc/awcgate/crs/rl31217.pdf
Robinson. D, 1999, Developments in International Criminal Law: Defining "Crimes against Humanity" at the Rome Conference, 93 A.J.I.L. 43, 52
Schweitzer. Y, 2001, Denying Responsibility and Liability (October 4, 2001) [Available Online] at: http://www.ict.org.il
BBC News, 25th February, 2005, Israel's History of Bomb Blasts, [Available Online] At: http://news.bbc.co.uk/1/hi/world/middle_east/1197051.stm

Web Resources
Council of Foreign Relations in Cooperation with the Markle Foundation, Terrorism [Available Online] At: http://www.terrorismanswers.com/groups/jamaat.html

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