Developing International Anti-Terrorism Laws

Introduction

Terrorism, which is by no means new to the global society, shares a very intimate yet disconnected relationship with the existing body of international criminal law.[1] The intimacy arises from the fact that no one questions the relevance of international criminal law to terrorism. In other words, it is always agreed that terrorism is a crime which ought to be penalised by the tenets of criminal law. However, the disconnection from international criminal law arises from the fact that there is considerable dispute as to whether terrorism ought to be elevated to the ranks of serious international crimes such as crimes against humanity, war crimes and genocide.[2]

The reason for such calls of inclusion arises from the fact that domestic criminal laws have largely proven to be ineffective in dealing with the notion of terrorism.[3] When domestic laws fail to deal with such crimes, then the solution has been believed to be internationalising the problem, so that the more open laws of international criminal law could deal with this phenomenon. Given that terrorism has always been painted to be an international rather than a local problem, the idea behind seeking to internationalise this crime is that it would be garner more support from the international community to readily devise creative legal solutions to deal with this issue.[4]

This is made evident from the fact that after the terrorist attacks against the United States in 2001, even the European Union which lacks official delegated criminal law powers immediately developed comprehensive programs of police and judicial cooperation regarding criminal matters.[5] This was made possible from the fact that the purported international nature of terrorism managed to unite the various Member States in devising collective measures to protect themselves against the onslaught of terrorism. The internationalisation of the issue also helped the EU gain acceptance to several previous rejected measures pertaining to the broadening of police powers with regards to terrorism cases.[6] After the September 11 attacks, and since the adoption of Security Council Resolutions 1373[7] and 1624,[8] several harsh international legislations have been passed in order to curb the advent of international terrorism.

Despite all these, the threat of terrorism still looms large. This is made evident when one considers the case of the Islamic State of Iraq and Syria (ISIS hereafter) and their recent terror attacks. To begin with, ISIS has been prominently using both audio and visual material on lethal ideas and has disseminated such material in a way that large parts of the population will be mobilised in order to execute those ideas.[9] In relation to real physical attacks, the infamous list is considerably long. It is worth considering that in April 2013, ISIS conducted nearly 40 attacks across 20 cities in Iraq, comprising of car bombings and shootings. This left around 75 people dead and over 350 people injured.[10] Similarly, in the same April of 2013, during the Hawija clashes, ISIS engaged in four continuous days of shootings and bombings when the Iraqi army tried to arrest certain protestors. This attack left 331 people dead and over 600 people injured grievously.[11]

In October 2016 alone, ISIS has executed 58 people as part of the Mosul Offensive, where the group crushed a coup plot by one of the commanders of the group. The commander had attempted to turn over secrets to the government forces so that they could take over and crush ISIS and reclaim the lost cities in Iraq. However, ISIS managed to uncover this plot and undertook executions of 58 people involved in this plot.[12] In August 2016, in the Democratic Republic of Congo, the Allied Democratic Forces had reportedly massacred 60 to 100 people in the City of Beni as part of their terrorist attack.[13]

All of these incidents, which are but mere examples of the ongoing extent and seriousness of terror attacks around the world, prove two things. Firstly, they prove that terrorism is not merely an attack orchestrated by a religious or freedom fighting group in the Middle-East/Africa against a Western country. Rather, terrorism is truly global in that even the cities and countries which are suspected of being in cahoots with terrorists seem to be suffering from terror attacks. Secondly, both the international nature of the crime, and the seriousness of the crime adjudged by the manner and number of people who have been killed in such attacks, prove that terrorism is indeed a very serious crime which cannot be dealt with under the normal tenets of criminal law, even if it is international law.

This is where the argument of elevating terrorism as a gross international crime on the level of genocide and crimes against humanity arises. The argument is that unless the crime is elevated to such a distinguished level, then it would not be possible to properly deal with it and prosecute the people who have committed such gross acts of terrorism and taken the lives of tens/hundreds/thousands.[14] The principal issue here then is one of gravity, and the question is whether the crime of terrorism is grave enough that it could be classified along with the other international crimes mentioned. Such a question carries serious implications for the tenets of international criminal law and the manner in which it regulates crimes.

Yet, the counter argument is that terrorism is a crime where there is a lack of consensus as to a precise definition and other possible exceptions to it.[15] Moreover, when one issues calls to regulate the crime under the auspices of the International Criminal Court, the problem here is that there is a risk of politicising that court and causing it to depart from its stated objectives. The goal of the Court is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole.[16] In so doing, the Court seeks to provide justice to the victims of these crimes.

In essence then, mechanisms such as the International Criminal Court serve as instruments of the United Nations in protecting human rights, and prosecuting violations of these rights on a widespread scale. Therefore, in order for the violations to occur on a widespread scale, the crime perpetrated has to be so serious such as genocide and crimes against humanity. This does not mean that terrorism is not a serious crime – it is indeed a very serious crime which affects the international community.[17] However, the main point raised here is that despite its internationalisation, the occurrence of terrorism is seen as events which are for the most part set deep within the national borders of countries. Hence, terrorism does not affect the entirety of the international community and humanity in the way the other stated crimes do. In such a case then, having the International Criminal Court prosecute these crimes of terrorism would seek to lead it away from its main purpose of ensuring that widespread violations of human rights are prohibited and prosecuted.[18]

Having briefly outlined the arguments on both sides of the coin, this paper seeks to analyse these very points. The primary purpose of this paper is to study the role and place of terrorism today in international law. It then specifically seeks to study the manner in which terrorism has influenced and affected international criminal law today, and thereby seeks to analyse whether the impact is serious enough that the International Criminal Court ought to include terrorism within its jurisdiction and thereby prosecute terrorists. These are the two focal points of this paper, and shall be contextualised by references to both major and recent waves of terrorism.

In order to achieve the stated goals, this paper seeks to adopt the following structure. In Chapter 1, the paper shall consider the case of ISIS and outline some of its major terror attacks and its modus operandi. Next, the paper will also consider other incidents of terrorism such as 9/11 and other recent attacks. Then, the paper will briefly consider the potential implications which such gross terror attacks have for international criminal law. In Chapter 2, the paper shall seek to study terrorism and international criminal law directly. In doing so, the first part shall outline some definitions of terrorism in international legal quarters. Next, the paper shall consider how terrorism constitutes an individual crime. After which, the paper shall study how terrorism could constitute as a crime against humanity and how terrorism in practice is developing as an international crime under customary international law.

Chapter 3 of the paper shall study international crimes and terrorism. This will first comprise of an analysis of how terrorism could be interpreted as a crime a crime against humanity. Next, it will study how terrorism could be interpreted as a crime of aggression. This chapter will consider in more detail how the outlined terror attacks have impacted upon international criminal law. Chapter 4 shall consequentially consider whether the International Criminal Court could prosecute terrorism. This chapter shall consider both sides of the argument – it will study both the reasons for including terrorism within the jurisdiction of the International Criminal Court, and consider arguments against it. Following which, a critical analysis of the position shall be undertaken so that a prescriptive solution could be devised by the author.

Chapter 1. Overview of Recent Terror Attacks

This Chapter shall seek to contextualise the paper by outlining both how terrorism is still very much an ongoing problem and how grossly devastating terrorism can be. This Chapter will therefore outline selected terrorist attacks, rather than exhaustively dealing with this topic.

1.1 Development of ISIS and Selected Terror Attacks

1.1.1 Development of ISIS

ISIS has its roots in the Sunni/Baathist-dominated Iraqi army of Saddam Hussein, which was purportedly one of the biggest armies in the world prior to the Iraqi invasion in 2003.[19] After the defeat of this army during the Iraqi war, members of the Baathist were banned from taking up any roles in the administration and the army of the Iraq. This led to these members feeling subjugated under the US forces, and eventually under the Shi’ite-dominated Iraqi government under Prime Minister Nouri al Maliki. This eventually led to these Baathist members engaging in a drawn-out rebellion against the Iraqi regime, whereby these rebels and insurgents adopted the moniker of “Al-Qaeda in Iraq”, subsequently changing the name to “Islamic State of Iraq”.[20] At the same time, protests which had been launched against the Assad regime in 2011 in Syria had spiralled out of control into a full-blown civil war by 2014. This gave the ISI a rare opportunity to capture Middle-Eastern territory across the border from Iraq.[21]

Hence, in 2014 the ISI established its headquarters in the Syrian town of Al-Raqqah (which it had captured during the takedown of Syria), and eventually rechristened its name to the “Islamic State of Iraq and Syria”, by which it is known today.[22] This strategic location of its headquarters facilitated an ISIS capture of the Syrian oil wells and refineries nearby, thereby endowing the faction with vast financial resources which helped fund its terror activities across the continent and the Western world. The availability of these resources meant that ISIS was able to capture several cities in both Syria and Iraq easily. Another main reason for the growth of the terror group in the Iraqi region was the fact that the Maliki government continued to suppress the Iraqi Sunnis, which meant that ISIS was able to take over these cities and regions without any form of resentment from the Sunnis who just wanted escape from the ruling regime.[23]

By this time, ISIS’ decision makers were all deemed to be former members of the Saddam Hussein’s intelligence, army and security forces.[24] However, by 2014, ISIS was attracting as many as 10,000 fighters from various countries in the Arab world and Western Europe, who were drawn towards the group’s continuous military successes and stringent and fundamentalist ideology.[25] It is this fundamentalist nature of the group’s ideology which truly makes the terrorist nature of this group morally shocking. Most terror groups are either motivated by notions of freedom or some form of revenge against the Western powers.

However, the very name of Islamic State establishes the will of the group to establish a strong Islamic caliphate in the Arab world. This is further made evident from the fact that in the areas which it already controls, ISIS has sought to implement strong repressive edicts upon the inhabitants of these regions. This is in a way very similar to the Taliban’s former rule in Afghanistan. It is the motivation of such a strong and ambitious goal that has pushed the ISIS to engage in its string of terror attacks, aside of its militaristic campaigns in Iraq and Syria. For instance, in order to uphold its goal of establishing the Islamic Caliphate, ISIS has to date beheaded thousands of Kurds, Shi’ites and Christians.[26] This is deemed to be one of the most horrific acts of terrorism in the modern world today, for it has reverted back to the days of the sword and slow killing, as compared to the quick death resulting from suicide bomber explosions. Another prominent element of ISIS’ terrorism which distinguishes it from the previously most infamous terror group of Al-Qaeda is that while the latter only focused on attacks against the Western powers, the former is focused on using terrorism as a means to capturing and controlling territory in both Syria and Iraq.

For example, after capturing Mosul in August 2014, ISIS proceeded to killing thousands of men in the Sinjar area which was populated by a Kurdish minority also known as the Yazadis.[27] This forced nearly 30,000 Yazadis to take refuge in Mount Sinjar. The ISIS then categorically cut off their means of egress from the mountain.[28] Even though the Iraqi regime had yet to grant the US permission to undertake airstrikes to save these people, the Obama administration went ahead with the airstrikes in order to prevent a categorical massacre of tens of thousands of people by the ISIS.[29] This brings up a very crucial point regarding the type of terrorism which ISIS is involved in, and the way terrorism itself has evolved today from the times of September 11.

It shows that terrorism is no longer sudden in the sense that it seeks to take out a few civilians in a surprise manoeuver. Such attacks are still on-going – but the main point is that ISIS has developed terrorism in a unique way where the effects could easily be considered to be that of massacre and a war crime. Essentially then, such acts of terrorism could easily be defined as genocide today.[30] This is made evident from the fact that ISIS has engaged in manoeuvres which would have left 30,000 civilians dead, and has used tactics such as beheading which are otherwise deemed to be features of a war crime previously.[31] Not only are the actions of ISIS targeted predominantly against civilians, their actions clearly constitute severe and gross violations of human rights which carry serious implications for international law.[32]

Another feature of modern terrorism, as established by the ISIS’ membership, is that terrorist factions are able to replace operatives easily. The US-led coalition has conducted over 5,500 airstrikes on ISIS targets in Syria and Iraq, thereby leading to the death of over 15,000 ISIS fighters.[33] Despite such strong claims of success, ISIS’ forces have swelled to over 31,500 during this very same time of bombing and air strikes. This indicates that terrorism, unlike previously, is a very exposed and growing problem, whereby it would be hard to deal with terrorism without treating it as a more superior crime as compared to previously where operations were covert and factions did not attract this many numbers so openly. This once again calls for the necessity of a change in international laws and in particular a change in the international criminal laws which seek to deal with terrorism.

1.1.2 Selected Terror Attacks of ISIS

Even though ISIS has developed terrorism to be more of a war rather covert operations, it is also important to highlight certain key terror attacks which ISIS has involved in, and the level of casualties involved, so as to highlight the nature of the problem. On 31 October 2015, ISIS bombed a Russian jetliner in the Sinai desert, thereby leading to the death of 224 passengers.[34] This was an orchestrated and covertly planned operation, as opposed to ISIS’ takedown of various cities across Iraq and Syria. Similarly, ISIS planned and perpetrated a gross attack against a rock concert and a sporting event in Paris on 13 Nov 2015, which led to the death of 130 people and which grievously injured over 368 people.[35] While there are several more terror attacks which could be mentioned, suffice it to say that these two attacks caused a huge furore in the international political and legal scene. This is verified from the fact that on 2 December 2015, the UN Security Council unanimously adopted and enacted Resolution 2249.[36] This Resolution sought to establish ISIS as a global threat to the peace and security of the international community, thereby authorising all necessary measures to destroy the safe haven of ISIS which was established in Syria.

1.2 Other Incidents of Terrorism around the World: September 11 Attacks

It is also important to consider the September 11 attacks when seeking to study the impact which terrorism has had for international criminal law. On September 2011, three civilian planes flying into the United States had been hijacked by terrorists and were made to crash against the Pentagon in Washington DC and the twin towers of the World Trade Centre in New York.[37] A fourth airliner which had been hijacked had been diverted by the civilians and crashed in Pennsylvania. All of these combined attacks led to the death of thousands of civilians, which arguably might be the highest number of civilians killed in a single terrorist attack (barring the development of ISIS and the proliferation of mass violence through terrorism).

The terrorists had initially been suspected of having Middle Eastern origins, and the Bush Administration had blamed Osama Bin Laden of perpetrating these attacks. Osama Bin Laden at that point in time had been known for orchestrating terror attacks against American embassies in Africa.[38] The Bush Administration, though initially had desired to have Osama Bin Laden captured dead or alive, eventually followed the plan of capturing Osama dead at all costs. The Bush Administration made it clear that any party and country which seeks to harbour these terrorists knowingly would also be held responsible for the attacks against the US, thereby directly referring to the Taliban regime in Afghanistan at that point in time.[39] The Taliban regime had been ordered by the US and the UK to shut down all of its Al-Qaeda training camps and to hand over Osama Bin Laden. When the Taliban regime failed to adhere to these orders, the US and the UK launched a war against Afghanistan on 7 October 2001, thereby escalating the situation to a global level.

The implications for international law is clear when one considers that the very next day after the September 11 attacks, the UN Security Council had strongly condemned the terrorist attacks. In Resolution 1368,[40] the UN Security Council expressed readiness to take all necessary steps to curb the threat of terrorism, for it constituted a grave threat to the peace and security of the international community. While this had been willingly misinterpreted by the US administration as an authorisation for the use of force, thereby leading to the Afghanistan war, the reality is that even the Security Council had begun to realise that terrorist attacks could turn out to be very devastating and grave. The point which the author wishes to make through an illustration of the well-known September 11 attacks is that it was the watershed moment in international criminal law where widespread speculation as to whether terrorism ought to be interpreted as one of the core international crimes had properly commenced.[41]

1.3 Potential Legal Implications for International Criminal Law

Terrorism in the aforementioned form carries several legal implications for international criminal law, all of which cannot be dealt with adequately under this Chapter, and shall be dealt with subsequently in the paper. However, this section seeks to highlight some of the important and preliminary legal implications, which also highlight the very issue which this paper seeks to explore.

A first difficulty and legal implication for international criminal law is that there is a need for a proper legal definition of terrorism. There are notorious difficulties in defining terrorism as per international law. One might ask whether there is any necessity for formulating a single universal definition of terrorism, given that all of the events established above seem to be quite distinct from one another, and yet everyone would agree that they are relate to terrorism. However, when one seeks to impose international criminal law upon the crime of terrorism, the core requirement of international criminal law is that the principle of legality, otherwise known as nullum crimen sine lege, has to be satisfied.[42] This is because no crime can exist without some form of law outlawing certain conduct. In other words, it is not ‘possible to talk about the suppression of a criminal act by the exercise of criminal jurisdiction if the act in question is not properly defined’.[43] When one considers the efficiency argument which is unanimously supported and propagated by the international community, then the outcome is that a definition of terrorism is not only necessary but is also strongly desirable.[44] Thus, the first legal implication for international criminal law is that terrorism ought to have some form of definition if this body of law were to ever apply to the crime of terrorism.

Secondly, as made obvious from the various forms of terrorist activities outlined above, the international community has witnessed a horrific evolution of the crime of terrorism, and has led to unique implications for international criminal law. On the one hand, condemnation of this crime has been largely based upon pre-existing customary and treaty rules of international law. This means that the pre-existing body of law sought to deal with and classify the various acts of terrorism and what elements constitute these acts. On the other hand, there have been calls for the development of a completely new set of laws and rules which govern this crime. Such calls have indeed been successful to an extent where a wide array of legal instruments have been developed, though these deal with sectoral parts of the international terrorism rather than dealing with it collectively.

This reveals a very interesting conundrum for the applicability of international criminal law to the crime of terrorism. On the one hand, the issue seems to be that pre-existing bodies of law only identify certain elements of the crime of terrorist, rather than recognising it as a whole. On the other hand, even attempts to formulate instruments dealing with terrorism only seem to deal with it partially, for the pre-existing bodies of law do not adequately deal with terrorism and therefore do not provide sufficient scope to introduce a completely new set of law for dealing with terrorism. This means that the only way to apply international criminal law to the case of terrorism is to modify the old set of laws in such a way that terrorism is given the same legal force and import as crimes such as genocide and crimes against humanity. Another reflection of this angle is that terrorism could be framed within the existing categories of crime itself, so as to make it possible for these crimes to be prosecuted under international criminal law.

Thirdly, a related implication or rather conundrum for international criminal law is that there are several questions of criminal liability for terrorism, matters of jurisdictions, obligations of States and the scope of international cooperation in criminal affairs which need to be considered when seeking to internationally criminalise terrorism. One can argue that terrorism at present constitutes a treaty crime, rather than a customary international law crime.[45] This means that some crimes are by particular treaties removed from the jurisdiction of a Member State which would normally have control over them, do not give rise to international criminal responsibility, although they are demonstrably grave matters of international concern.[46]

The effect of these treaties which treat terrorism as a treaty crime is that States ought to deal with terrorism through the tenets of their own national laws, and should only cooperate with other States when it comes to investigating such crimes and finding the criminals. This means that at present, there is no necessary force in international criminal law which proscribes these terrorist activities as crimes entailing international criminal liability.[47] This also establishes the point then that terrorism is at present dealt with as a Treaty crime as per international law, despite its graveness and seriousness. In other words, the potential legal implication for international criminal law is that terrorism will have to be re-interpreted as per the tenets of international law as one of the core crimes rather than a treaty crime, so as to attract the full force of international criminal law in prosecuting these crimes.

Chapter 2. Terrorism and International Criminal Law

This Chapter shall seek to study the place and interpretation of terrorism in the framework of international criminal law. It will seek to produce potential definitions for terrorism so that terrorism could be duly considered by the ambits of international criminal law. Next, it will study the two competing interpretations of terrorism as an individual crime and terrorism as an interpretation of existing crimes. This will help to contextualise terrorism in the framework of international criminal law.

2.1 Defining Terrorism in International Law

As mentioned previously, terrorism has suffered from an abject lack of consensus on what it actually constitutes, even though virtually everyone would agree with activities such as bombing, hijacking and the taking of hostages as valid and visible acts of terrorism.[48] Given that it has been previously established in this paper that there is a necessity for terrorism to be legally defined before any discussion of criminalising terrorism could continue, this section shall set out some of the key elements which need to be present in any and all definitions of terrorism.[49]

By highlighting the commonly present elements of terrorism to formulate a working definition of terrorism, this will ensure that the key activities of terrorism are rigidly covered by this definition, while there will be an ongoing openness of the definition to include evolved forms of terrorism. Firstly, terrorism will have to involve the use or the threat of use of force.[50] Secondly, the purported act of terror has to be inherently indiscriminate in the sense that those affected by the actual attacks are products of a random selection and do not serve as the ultimate targets of that act.[51] Thirdly, the violence resulting from the terror attacks have to have been intentionally focused upon civilians and non-combatants, rather than being targeted towards legally recognised combatants. Fourthly and finally, the principal purpose behind the purported attack has to be to force a government/organisation to either engage in something or refrain from engaging in something.[52] It is important to leave out the international nature of terrorism from this definition, for as ISIS has proved, terrorism today has been dramatically evolved that it equally applies within the domestic borders. Hence an open element permitting terrorism to be international when a transnational element is present would best suit a definition of terrorism today.[53]

It is worth noting that the Appeal Chamber of the Special Tribunal for Lebanon (ACSTL) has also identified a definition for international terrorism as per the tenets of customary international law.[54] The ACSTL seemed to conclude that there indeed exists a crime of terrorism under the tenets of customary international law.[55] This definition framed by the ACSTL also prominently is underpinned by the four main elements identified above, thereby lending support to the view that this could indeed prove to be a starting point and a working definition of terrorism under international criminal law.

The problems with defining terrorism up until now have been owing to the fact that most individual countries seem to frame their own domestic definitions under national law. Similarly, the United Nations Security Council has adopted several Resolutions (as noted above) relating to terrorism, and have dealt with terrorism in a somewhat descriptive manner – they have not provided any concrete definition of terrorism, thereby permitting such State level definitions of the activity.[56] However, as the ACSTL has correctly pointed out, even though many of these descriptions and Resolutions seem to be divergent in the way terrorism is dealt with, in reality, they all share some common elements such as those mentioned above. It is in light of such a proclamation that this paper strongly and confidently adopts this working definition of terrorism, and thereby illustrating the first impact modern terrorism has had upon international criminal law.

2.2. Terrorism as an Individual Crime

One way terrorism could be interpreted in the present ethos of international criminal law is that it could be interpreted as an individual and independent crime on its own. In other words, keeping in mind the primary question of this paper as to whether terrorism ought to be included within the jurisdiction of the International Criminal Court, one main way this could be achieved is interpreting terrorism as an independent crime. This could be achieved by introducing a completely new crime within the Rome Statute,[57] such that the general elements of the definition above could be put together to frame the crime. Moreover, reference to offences already existing under international counter-terrorism Conventions could also be made, so as to take advantage of all the existing research in this field thus far. This could easily lead to the criminalisation of the terrorist activities of ISIS under international law, for the heads of the operations could directly be held responsible for the terrorism.

However, it has to be noted that such a role of viewing terrorism as an independent crime is already present in the realms of international criminal law. The Financing Convention[58] has already achieved this to a very considerable extent, whereby formally recognising terrorism as an independent crime within the scope of the International Criminal Court would not achieve anything novel apart from the fact that it has been newly adopted. Indeed, of the 114 State parties of the International Criminal Court, approximately 108 parties are already parties/signatories to the Financing Convention.[59] The six exceptions refer to Timor Leste, Saint Lucia, Chad, Gambia, Zambia and Suriname.[60] Statistically speaking then, more than 90% of the existing State parties to the International Criminal Court have recognised in one way or another that terrorism today definitely falls within the definition adopted in the Financing Convention, and this consequentially means that terrorism is already given great import by the international community. In other words, developing terrorism as an international crime is certainly a possibility which is already occurring.

A model formulation of the offence of terrorism which could be included in the Rome Statute is produced as follows:

Article 8: Crime of Terrorism

1. The Court shall have jurisdiction over acts of terrorism.

2. For the purpose of this Statute, “terrorism” includes, but is not limited to:

a. An offense according to [specified international counter-terrorism conventions]

b. 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 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 organization to do or to abstain from doing any act.[61]

However, the principal problem with this route is that a State party to the existing Rome Statute might not permit and accept any amendments enacted to the Statute to include terrorism as a fifth crime which the Court could prosecute. Certainly, one cannot argue that the Assad regime in Syria could accept such an amendment, for it could lead to a criminalisation of the Assad forces as well as the ISIS, thereby questioning the sovereign authority of Assad here. Indeed, the reason which these countries have signed up or ratified the Financing Convention is because it does not establish a central judicial function which deals with the crime of terrorism, thereby taking away their own sovereign right to domestically resolve these crimes through the national courts. In other words, what this means is that even though State parties have agreed that terrorism could constitute as an independent crime, there are doubts as to whether they would agree to the extent of permitting this crime to be tried under the auspices of the International Criminal Court.

2.3 Towards an International Crime under Customary International Law

Another major impact which terrorism has had upon international criminal law is that it is increasingly being recognised as being an international crime under customary international law. This carries strong implications for prosecuting terrorism, for it denotes that terrorism is no longer merely treated as a crime alone, but rather is treated as one under customary international law. This denotes that terrorism has obtained an elevated stature within the ambits of customary international law. In proving that terrorism has developed into such an international crime, this section will refer to three seminal decisions in order to illustrate this point.

2.3.1 ACSTL Decision on the Applicable Law (2011)

The United Nations Security Council had set up the ACSTL as per its authority under Chapter VII in 2007, whereby the purpose of the Tribunal was to prosecute the criminals responsible for the killing of the former Lebanese Prime Minister Rafiq Hariri and twenty others in the 2005 bombings.[62] The raison d’etre  of the Tribunal was to prosecute the crime of terrorism.[63] After having conducted its own judicial analyses and reasoning, the ACSTL stated that given the advent of terrorism today and the novel way in which it had evolved, a customary rule of international law criminalising the act of terrorism had become relevant and prevalent today.[64]

In so reaching such a conclusion, the ACSTL substantially backed up its decision by referring prominently and widely to the elements of opinio juris and relevant State practice today.[65] This prominently notes that customary international law in itself has undergone a serious shift in the last few decades, owing to the way in which crimes have been occurring and owing to the way in which States have been responding to such crimes and activities. Historically speaking, customary international law refers to the customary and uniform State practice, whereby only when such a rule was established could a rule be considered to be a part of customary international law.[66]

Yet, the ACSTL prominently departed from such a view by stating that it had identified a ‘belief of States that the punishment of terrorism responds to a social necessity (opinio necessitatis), and is hence rendered obligatory by the existence of the rule requiring it (opinio juris)’.[67] This decision therefore means that the very manner in which customary international law, at least pertaining to the issue of terrorism, has changed because of the way in which there is a strong social need to respond to terrorism differently than the law had previously envisaged. Given that the ACSTL has adopted such a definition by using the terms of customary international law clearly shows that terrorism has impacted upon international criminal law today in a mammoth and unprecedented way, whereby it has been given an exalted status.[68]

2.3.2 R v Gul[69] [2012]

Following the decision by the ACSTL, the Court of Appeal in the UK adopted the exact same conclusion of the ACSTL with regards to the place of terrorism in international criminal law, and its status as per customary international law norms which prohibit terrorism. The case in itself concerned a Libyan-born citizen of Britain who had uploaded several videos to the internet, whereby these videos included footage of insurgency attacks against the Coalition forces in both Afghanistan and Iraq – the uploader seemed to be of strong praise of these attacks, and had included captions which seemed to encourage more of such attacks.[70] However, as per the Terrorism Act 2006,[71] such publications and dissemination of material entailed a crime and the offender could be sentenced to five years in prison. Having been convicted on this basis, the offender sought to appeal to the Court of Appeal on the basis that the definition of terrorism under the tenets of international law did not include those who are fighting against the government which has attacked the armed forces of the local government.[72]

However, the Court of Appeal relied on the ACSTL decision and firstly confirmed that in the way terrorism has evolved and has become rampant today, it is imperative to note that customary international law today recognises an international crime of terrorism.[73] While the decision of the Court of Appeal seemed to extend well beyond this proclamation, this is the most important part of the judgment which is pertinent to our analysis. This case and the decision shows that not only international criminal tribunals have recognised that terrorism today has impacted international law such that it is considered a crime under customary international law, but even domestic courts have begun to espouse and establish such a position. This case therefore is testimony of the fact that terrorism is indeed a crime which could be prosecuted by international criminal law, albeit the manner in which it should be done remains confusing at present.

Another point which is worth noting from this case is the fact that the Court of Appeal also noted that ‘customary law has not yet developed so as to make such attacks on civilians in time of armed conflict the international crime of terrorism’.[74] This means that the Court of Appeal does indeed recognise that while terror attacks on civilians during armed conflict could indeed constitute terrorism, this has yet to be recognised under the tenets of customary international law.[75] This shows that the law is still developing in this regard and terrorism has not yet reached a full and completely defined status within the tenets of international criminal law. This poses as a difficulty for prosecuting terrorism, such as the recent activities of ISIS, as an international crime, for it is unclear as to what exactly could be contained within this crime when it is still in its developmental phase.

2.3.3 Re’union Ae’rienne v Libya[76] [2011]

Weeks after the ACSTL had given its decision in the Lebanese investigation, the French Court of Cessation sought to consider the limits the jurisdictional immunity which States enjoy under international law,[77] in the specific case where the State has harboured and promoted terrorists and terror attacks. In this case, the context concerned the bombing over Niger of a French airliner which was being transported from Brazzaville to Paris in 1989, thereby leading to the death of over 170 people.[78] Six Libyan nationals had been convicted by a Paris court in this regard. This case arose when the insurance companies which had to pay out in insurance for the airlines and the people travelling on it sought to claim reimbursement from the six Libyan nationals who had been convicted. Their primary argument had been that the actions conducted against Libya were inadmissible on the legal basis of State immunity.

The French Court of Cessation in this case seminally stated that terrorism could be elevated to a level even beyond customary international law, and held that the prohibition on acts of terrorism today could be considered a jus cogens norm of international law.[79] In doing so, the Court of Cessation broadly referred to acts of terrorism rather than focusing on specific acts of terrorism. The Court of Cessation held that:

Whereas, assuming that the prohibition on acts of terrorism can be ranked as a jus cogens norm of international law, which takes precedence over other rules of international law and can constitute a legitimate restriction on jurisdictional immunity, such a restriction would in this case be disproportionate in the light of the aim pursued, given that the proceedings against the foreign State are not founded on the commission of acts of terrorism but on its moral responsibility.[80]

This acceptance of the crime of terrorism as one of a jus cogens stature is clearly a strong implication which modern forms of terrorism have had upon the notion of international criminal law. While previously it was doubtful as to whether even the crime of terrorism could be prosecuted under international criminal law, this ruling of the French judiciary, though not international and universal, is of firm standing that international law has developed to accept that terrorism and the prohibition against terrorism could indeed be given the exalted jus cogens status. The implication for this paper then is that it is clear that such acceptance has only borne out of the various terror activities which the ISIS, Al-Qaeda, and other popular and unknown factions have carried out across the world today. The manner in which they have evolved, and the level of violence which they carry, have firmly led to the crime occupying a very crucial position in the ambit of international criminal law, thereby facilitating its prosecution under the same.  

2.4 Analysis

This chapter has established two very important points. Firstly, it has shown that the international community is ready to accept the crime of terrorism as an independent crime in itself, perhaps even at the level of other grave crimes such as genocide and crimes against humanity. This could not have become possible unless the level and extent to which terrorism occurs today has proliferated in such a dangerous manner that almost every single State in the world has something to gain from recognising terrorism in this fashion. The implication clearly then is that unlike before, terrorism clearly plays a staunch role in the framework of international criminal law, thereby facilitating its prosecution under the same.

Secondly, this chapter has established that the international community has clearly and firmly perceived the prohibition against terrorism as a rule of customary international law. More importantly, it even seems to be possible that this rule is a peremptory norm of customary international law, whereby the French judiciary have clearly accepted this rule as being one of jus cogens norms in nature. This carries strong implications for prosecuting the crime of terrorism. Not only is terrorism recognised by the international community as an independent and individual crime, now it has also been recognised that prohibitions against terrorism form a part of customary international law. Once again, there is no doubt that such a development has only become possible because of the horrors associated with terrorism today, and the rate at which terrorism is growing and spreading today. Unless strong measures are implemented against such a growth, it becomes impossible to adequately deal with this issue.

However, when the prohibition against terrorism is recognised as being a rule of customary international law, then this not only makes it easy for the crime of terrorism to be prosecuted internationally, but rather demands this. It has become a necessity now that the international crime of terrorism is properly dealt with by the body of international criminal law. This then carries implications for this paper where it makes it clear that in one way or another terrorism has to be dealt with by international criminal law. Therefore, this section concludes with the point that this is the biggest impact which terrorism has had upon international criminal law – while previously not even recognised owing to a lack of uniform definition, today, owing to the gross acts of terrorism, it has become possible and in fact necessary that the same body of law prosecutes the crime of terrorism.

Chapter 3. International Crimes and Terrorism

This Chapter will predominantly seek to discuss the manner in which the crime of terrorism could be interpreted by the tenets of international criminal law. It has already been established that while terrorism is indeed developing as an independent crime,[81] it is not possible at present to use this development to prosecute terrorism. This is mainly owing to the fact that States might not react positively when terrorism is recognised as an independent crime within the jurisdiction of the International Criminal Court.[82] There are several problems involved in, for example, prosecuting ISIS under the auspices of the International Criminal Court in this manner.[83] There are several limitations to the jurisdiction of the ICC, whereby including the crime of terror within its jurisdiction might seem to defeat the purposes of the International Criminal Court.[84] Therefore, this Chapter seeks to study whether international terrorism could be interpreted within the existing categories of crime which the International Criminal Court deals with.[85] This would help establish whether or not the International Criminal Court could indeed deal with the crime of terrorism without having to create a completely new set of crime within its jurisdiction.

3.1 Terrorism Interpreted as a Crime against Humanity

One of the two prominent crimes which shall be considered in this Chapter is the crime against humanity.[86] The crime against humanity in itself would require little alteration in order to accept the crime of terrorism within its ambits.[87] Indeed, the crime of terrorism could be easily prosecuted under crimes against humanity, which are currently found in Article 7 of the Rome Statute. The strong possibility of dealing with the crime of terrorism in this way is owing to the openness of Article 7 and the definition of crimes against humanity contained therein. There is no requirement whatsoever that the crime against humanity ought to be conducted during the context of a war.[88] Thus, by the very openness in the way in which crimes against humanity are defined, the crime of terrorism could also be considered a crime against humanity.

It is important to note here however that Article 7(1) of the Rome Statute contains a few elements which comprise of crimes against humanity. Firstly, the committed act needs to be one of the eleven acts listed under Article 7(1). Secondly, there is a requirement that the commission of the act needs to comprise as a part of a largescale and well-planned attack. Thirdly, the committed attack ought to have been perpetrated against civilians. Finally, the person committing the crime ought to be aware of the attack which he is committing.[89] Hence, it is necessary that the crime of terrorism ought to be able to meet all four of these requirements before the International Criminal Court could seek to prosecute crimes of terrorism under this head.

Firstly then, crimes of terrorism ought to be compliant with one of the purported acts listed under Article 7(1). While it would not be necessary to analyse the complete list in this paper, suffice it to say that crimes of terrorism could fit the acts of torture, murder, persecution and imprisonment and deprivation of liberty.[90] In the aforementioned attacks of ISIS and the September 11 attacks, it is clear that if not anything, these attacks could clearly constitute the heading of murder. In such a case, there should be no difficulty for crimes of terror to actually satisfy the first element of crimes against humanity.

To further strengthen this position, it is worth noting that under Article 7(1)(k), the 11th purported act is an open phrase which is meant to apply to those acts which do not fall within the ambits of the previous 10 acts. This provision reads as ‘other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’.[91] It is once again clear that regardless of the manner in which terrorist acts are perpetrated, they always culminate in causing physical and potentially mental harm to the body of people. Therefore, once again, if not anything, the crime of terrorism could seemingly be satisfied under the 11th purported act found under Article 7(1).

However, at this stage, it is also necessary to consider the fact that the crime against humanity historically was developed in the backdrop of war crimes, even though the phraseology does not mention this specifically.[92] In this case then, despite a lack of physical wording to that effect, it is clear that the concept of crime against humanity has been well established to only constitute crimes committed during times of war. Nevertheless, for the purposes of this paper and for the purposes of practicality, such a technical argument could be rejected on the basis that terrorism in itself has evolved in such a manner that such technical arguments should no longer protect these terrorists from being properly prosecuted under the tenets of international criminal law. Hence, the argument is submitted here that this element of the crime against humanity could be moderately tweaked so as to accept the crime of terrorism within its ambits.

The second element making up the crime against humanity is the fact that the attack ought to constitute a part of a larger attack being planned. Such an element could prove somewhat tricky for the crime of terrorism, whereby it would be hard to furnish proof to this effect.[93] There is no doubt that individual terrorist attacks usually form a part of a larger plan of a terrorist faction to achieve its goal. For instance, in the case of ISIS, the perpetration of the beheading of people is to ensure that it is able to establish a pure Islamic Caliphate in the Arab world. Hence, even though individual attacks might not in themselves seem to be achieving much, as a part of a larger set of orchestrated attacks, they would serve this purpose.

The problem however arises when one needs to draw this link specifically between attacks and the larger goals. For instance then, it is not easy to establish that despite the tirade of terrorists against the Western world, every single attack orchestrated by a Muslim seeks to serve this purpose.[94] There is no clarity as to what exactly ought to be proved with regards to this element where sometimes the time between two attacks by the same group could be long and tedious. In such cases then, proving that the crime of terrorism is a crime against humanity might fail on such a technical ground that it makes it impossible to be certain that the crime of terrorism could always be prosecuted. However, once again, such an obstacle could be overcome in the sense that more often than not, terrorist factions which engage in terror attacks almost always make it clear as to why they are doing so and why they have undertaken that particular attack. In other words then, the terrorists themselves make it easy for this element to be satisfied, thereby ensuring that more often than not the crime against terrorism could be prosecuted under the head of crimes against humanity. Where there might be disparities, allowing the International Criminal Court to develop a coherent set of precedence would solve such a problem.

The third element of the crime against humanity demands that attacks ought to be orchestrated against the civilians rather than combatants.[95] Article 7(2)(a) provides guidance on this requirement, stating that the act committed ought to be a part a policy of the organisation undertaking such attacks. This simply means that terrorist factions will have to have it as their policy to attack civilians so as to satisfy this element of crimes against humanity. This element is very easily satisfied by terrorist factions, for by their very notion of existence they wish to perpetrate attacks against civilians so as to achieve their political or religious goals, and seek influence the authorities. More importantly, such a policy also seeks to further the organisational goals of the factions. Hence it is arguable that the crime of terrorism clearly satisfies both parts of the third element of crimes against humanity.

The fourth and final requirement of crimes against humanity is that the perpetrator of the terrorist act clearly has knowledge of the act he is committing and has knowledge of the larger scheme of things within which such an attack takes place.[96] Once again, when such a requirement is applied to terrorist factions, this can be very easily satisfied once the connection between an attack and a terrorist organisation has already been verified and established.[97] The benefit of crimes against terrorist and the involvement of terrorists is that terrorists usually declare that they have undertaken a specific terror attack. They easily claim responsibility to terror attacks, and usually do so almost immediately after such attacks. This means that it would be virtually impossible to argue that terrorist factions did not have knowledge of the attacks which they wished to perpetrate against the civilians. Moreover, given that virtually all terror factions exist to undertake and perpetrate such attacks, it would once again be impossible to mount the argument that these people were not aware of what the terrorist faction had intended them to do. Therefore, a lack of knowledge will almost never be a defence for terrorist factions to escape being prosecuted under such a heading, unless the crime of terrorism is not mounted in the same terms.

One more important point is the requirement of organisational policy under Article 7(2)(a) of the ICC Staute,[98] which traditionally has been taken to mean that in the absence of a State policy which mimics terrorism, an organisation which is almost State-like must undertake the terrorist policy in order to fulfil this provision.[99] Such a requirement would however make it for most terrorist factions to qualify, as despite their terror activities, they can almost never function as extensively and comprehensively as a traditional State can.[100] Nevertheless, one can argue that the ISIS would certainly meet this requirement, for not only does the ISIS ultimately envisage its own Islamic State, it indeed seems to operate with the comprehensiveness of a traditional State.[101]

At the same time, one must also take into account that a majority of scholars have argued that the organisational policy must not be understood as per the formal nature of the group and the level of its organisation.[102] Indeed, the ICC is of the opinion that the defining quality should be whether a group has the capability to perform acts which infringe upon the fundamental human values.[103] When one adopts such a purposive approach,[104] it becomes immediately apparent that terrorist factions such as the ISIS can indeed qualify as organisations as per the organisational policy requirement. It is only in defining such an element of a violation of fundamental human rights should other elements of the organisation be taken into account.[105] Thus, it is argued that this element too satisfies the possibility of including terrorism within the ambits of a crime against humanity.

The aforementioned analysis therefore proves that it is highly possible that crimes of terrorism could be categorised with crimes against humanity and interpreted in these terms. This would mean that the International Criminal Court will be able to prosecute crimes of terrorism so long as the purported acts fit the definition of terrorism outlined above, and satisfy the four elements mentioned above comprising crimes against humanity. It is also clear that this is potentially the most probable manner in which crimes of terrorism in their present format can be prosecuted. Until they have grown further into crimes which are deemed to be so grave that all States are of the opinion that the International Criminal Court should deal with this crime on a separate basis altogether, this seems the most practical way of interpreting crimes of terrorism.

At the same time, there only seems to be one practical hurdle to the achievement of such an objective. This lies with the fact that more often than not it might be hard to prove that terrorist attacks are linked to a larger objective and are part of a grander plan. As mentioned above, this is largely owing to the irregular manner in which terror attacks are orchestrated, thereby making it hard to draw each and every attack to the main goal of the terrorist faction involve. At the same time however, it is argued that given that this is the best possible way to prosecute the crime of terrorism in international criminal law, and the crime of terrorism has already been elevated to a rule found in customary international law, it is submitted that the such a rigid requirement of proving a link could be somewhat relaxed by the International Criminal Court when it comes to prosecuting crimes of terrorism. This further seems to be possible given that the International Law Commission has recently adopted further articles on crimes against humanity.[106] This proves as much as it is possible to expand the concept of crimes against humanity, the relevant interpretations could also be tweaked such that the crime of terrorism could be easily interpreted as a crime against humanity.

3.2 Terrorism Interpreted as a Crime of Aggression

The second category of international crime which is considered in this Chapter is that of the crime of aggression.[107] The Review Conference held in 2010 led to the adoption of a definition of the crime of aggression.[108] This definition refers to the crime of aggression as follows:

The planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.[109]

This definition raises several issues for considering the crime of terrorism as a crime of aggression. Firstly, it can be noted that the crime of aggression ought to be the act of a State.[110] In order for particular criminals to be tried for the crime of aggression, the act itself ought to be attributable to the State on whose behalf the individual had been acting. Disregarding other points of contention arising from this, it is clear that the definition does not seek to enforce the crime of aggression upon individuals of non-State factions, which clearly includes terrorist organisations.[111] Henceforth, a substantial number of terrorist attacks would be incapable of being prosecuted under this heading if one were to interpret crimes of terrorism as crimes of aggression, where the incident involved the use of aggression against Benin.[112]

However, one might argue that in a prominent occasion previously, the United Nations Security Council has considered a non-State actor as an aggressor. Moreover, several prominent commentators have sought to argue that crimes of aggression ought not to be restricted to the acts of States, but rather they should apply to all such crimes which are carried out by entities which are similar to those of States.[113] The argument here is that unless such an expansive interpretation of the crime of aggression is undertaken, it would not be possible to truly apply this crime to all of the instances where aggressive crimes have been undertaken. Thus, if such an expansive interpretation is legally permitted, then one might be able to bypass the issue of terrorist factions not being States when perpetrating attacks.

However, if one were to be practical, these disparate incidents and arguments alone cannot serve to expand the interpretation of which actors could be prosecuted for crimes of aggression. There is therefore a high possibility that terrorist attacks would not be able to be properly interpreted under this heading of an international crime. Clearly all of the attacks perpetrated by the ISIS, and the September 11 attacks, cannot be tried for under the crime of aggression heading, for these attacks were not orchestrated by a State but rather by a non-State actor. Hence, even though there are other elements which could be interpreted in favour of interpreting crimes of terrorism as a crime of aggression, given that  such a crucial factor cannot be satisfied, it is therefore not necessary to apply the rest of the definition to the crime of terrorism at this stage.

3.3 Interpretation to be adopted

It is clear from a consideration of the two most probable international crimes above that despite the criminalistics nature of terrorism, it is hard to be properly interpreted within one of the existing ambits of international crimes. At the same time, one ought to re-establish the view that it is not only possible but rather it has become necessary that international criminal law prosecutes and properly deals with the crime of terrorism. Such a necessity therefore has to be the focal point behind any discussion of how best to adopt the crime of terrorism within the existing branches of international crimes. Such an understanding would also facilitate any way in which the existing frameworks could be slightly amended in order to accommodate the crime of terrorism.

Having established this, it becomes clear that despite certain difficulties, it is not only possible but rather in fact necessary that the crime of terrorism is interpreted as a crime against humanity, in order to be properly dealt with by international criminal law. This is also possible given that recent terror attacks such as those conducted by the ISIS in Syria, Iraq and surrounding regions have led to hundreds and thousands of deaths of civilians, aside from the numerous deaths of combatants. The horrific manner in which these attacks have been carried out, such as the burning people to death within cages so that their movement when being burned alive is restricted, clearly constitute crimes against humanity in the moral and social sense of the crime. Therefore, in such a context then, it once again becomes possible for the crime of terrorism to be interpreted as a crime against humanity. This ensures that pressing necessity for the prosecution of terror attacks are satisfied, while at the same time ensuring that the International Criminal Court is not burdened with the creation of a completely new crime which could cause it to depart from its stated objectives.

Chapter 4. Terrorism and the International Criminal Court

Having established that it is necessary and possible to interpret terrorism as a crime against humanity, this final Chapter seeks to study whether the International Criminal Court ought to undertake such prosecutions anyway.[114] This Chapter does not dispute the necessity of prosecuting the crime of terrorism. Rather, having established that it is the International Criminal Court which ought to prosecute the crime of terrorism,[115] this Chapter seeks to analyse the pros and cons of the Court doing so.[116] Therefore, this Chapter will study the advantages and disadvantages of the International Criminal Court prosecuting crimes of terrorism, and will thereby conclude on whether it ought to do so or not.

4.1 Advantages of Prosecuting Terrorism under the Jurisdiction of the ICC

There are numerous advantages of the ICC prosecuting terrorism. The first principal advantage is that prosecuting the crime of terrorism under the International Criminal Court is that the legal procedures under this Court are very straightforward and well protected.[117] The legal bases of the Court’s procedure are its foundational treaty, the Statute (ICC or Rome Statute),[118] and the Rules of Procedure and Evidence (RPE).[119] The procedure applies across the range of crimes within the jurisdiction of the Court, which guarantees the consistent application of the law.[120] The Statute defines the procedure of the Court mainly in its Part 5 entitled “Investigation and Prosecution” and in its Part 6 on “The Trial”, although the provisions of Part 1 on the exercise of the Court’s jurisdiction and on the admissibility of cases are important as is Part 9 of the Statute that deals with cooperation between the Court and the States parties. The Statute’s provisions are complemented by the RPE[121] and the Regulations of the Court. The RPE spell out many procedural questions that were left to judge-made law under the regime of the ad hoc Tribunals. The RPE of the ad hoc International Criminal Tribunals were the first international procedural and evidentiary codes ever adopted and they had to be amended gradually. Under the ICC Statute such judicial rule-making is only marginally possible. The RPE may be proposed by the Court but must be adopted by the Assembly of States parties (article 51 of the ICC Statute).

Unlike those regimes where the acts of terrorism take place, such as in Syria and Iraq, where the legal fora are not deemed to be very trustworthy and neutral, the International Criminal Court has already established itself as one of capability and integrity to the majority however it has faced some scrutiny in more recent times. Regardless, such a forum is much better placed to prosecute the crime of terrorism, as compared to any other legal forum in the world.[122] At the same time, when prosecuting crimes of terrorism, it is possible that the criminals might be mishandled and treated very badly, and their own rights to a fair legal process might be considered to be waived off in lieu of their participation in mass and horrific killings. In 2005, a lawyer for eight accused terrorists said the NSW Government should act to prevent the mistreatment of some of the men. When their case came before Central Local Court, defence lawyer Adam Houda told Magistrate Allan Moore his clients were “caged in inhumane conditions” and that he was having “tremendous” difficulty contacting them.[123] However, when a prosecution for terrorism is brought under the auspices of the International Criminal Court, the rights of the criminals would also be duly secured in such a manner that they are tried properly as per the legal procedure and any convictions raised against them are well-founded, given the seriousness of the crime of terrorism.[124]

At the same time, the International Criminal Court’s procedures operate in such a manner that victims are usually permitted to play a strong and crucial role in the proceedings, as compared to other proceedings in domestic courts where victims are only called upon to give evidence.[125] Such a possibility when prosecuting crimes of terrorism, which widely and immediately affect a large number of people, would make it highly appealing for the crimes of terrorism to be tried within the auspices of the International Criminal Court, as compared to any other domestic tribunal or court. The permission of a high level of victim participation would be very useful in bringing legitimacy to the prosecution of the terrorists as well. Moreover, it would serve the psychological purpose of making the victims feel like they have played a direct part in judicially judging these criminals and sentencing them, thereby bringing a sense of justice to them. Victim participation has to do with having those most affected by the crimes have a say, an independent voice on the trials unveiling what happened to them, their families, and their communities. Victim participation is also justified by victims’ central interest for justice to be done. It is only fair that victims are fully involved and that their voice be heard with respect to the prosecution, trial, and conviction of those who victimized them.[126] This is a strong advantage and reason to prosecute crimes of terrorism in the International Criminal Court.

Secondly, when one considers the issue from the standpoint of the State parties, the advantage of having crimes of terrorism prosecuted under the International Criminal Court is that this Court provides a neutral forum which will help the State parties to remove any politicisation of the trials.[127] Moreover, it also helps to avoid those situations where the domestic court would have otherwise have found it impossible to undertake such a trial owing to political deadlocks whereby other countries are seeking to prohibit or prevent the trials from being undertaken in a certain jurisdiction. On the point of the jurisdiction, a certain terrorist faction such as the ISIS might be wanted for attacks which it has perpetrated in various jurisdictions. In such a case then, the difficulty arises as to in which jurisdiction should this terrorist faction be tried for crimes of terrorism. In such a situation, the International Criminal Court is best placed to avoid such an impasse and permit the prosecution of such terrorists within its forum.

This could be treated as one of the most important advantages of undertaking prosecutions of terrorism at the International Criminal Court. Terrorism in its very nature seems to be trans boundary today, and more often than not, it involves terrorists either getting refuge in certain States or they choose to hide themselves in certain States.[128] In such cases, the issue of national borders would pose several troubles for the prosecution of these terrorists even when they are caught. One main problem is that the home-States of these terrorists might be uncomfortable with these States facing justice in other countries, where their rights might be unduly infringed so as to satisfy the social and political hunger of showing to people that the administration has achieved justice by punishing the terrorists. Therefore, the existence of a neutral and international forum in the form of the International Criminal Court enables for such situations to be averted. It also ensures that the terrorists could still face justice without inviting the trouble of jurisdictional issues.[129]

The third advantage of undertaking prosecutions of the international crime of terrorism lies in considering the issue from the standpoint of counter-terrorism. The scope of the International Criminal Court has the authority of being applicable even to those people who hold very powerful positions within a country’s political setup. In other words, even if a terrorist was featuring in a very prominent position in the local government, the authority of the International Criminal Court will make him triable under the rules of the Court.[130] This is an important advantage of having terrorist crimes tried under the Court for there is a strong chance that the national courts of these individuals might not have sufficient independence to deal with such members with strong political clout.

A fourth advantage of trying international crimes of terrorism in the International Criminal Court lies in the manner in which Article 25 of the Rome Statute is formulated.[131] Article 25(3) of the Rome Statute states that:

In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission…[132]

As per this Article, the International Criminal Court could exercise jurisdiction over the accomplices of the main perpetrator of the crime. In other words then, along with main perpetrator of the crime, the accomplices and the others who were involved in various stages of the crime could also be prosecuted by the International Criminal Court.[133] In the context of terrorism, such an authority on the part of the Court is deemed to be indispensable and absolutely crucial. This is because a number of terror attacks today are perpetrated through suicide bombings. The immediate implications of suicide bombings are that the perpetrator of the crime, the suicide bomber, is already dead, and therefore cannot be prosecuted for the crime. This might make it seem that all such terror attacks can never be prosecuted owing to this legal loophole. However, when the International Criminal Court could still prosecute the accomplices of the main perpetrator,[134] this means that the crime of terrorism in the case of suicide bombings would still be triable. The Court could try those people who had planned the attack for him, facilitated the attack for him, or had incited him to undertake such an attack.

A fifth advantage of undertaking prosecutions of terrorism in the International Criminal Court is that such a move could have the effect of strengthening the way in which counter-terrorism measures are imposed domestically.[135] It is evident that within a short time of its inception, the International Criminal Court had had the effect of coercing and convincing State parties to undertake more stringent measures to prohibit and prevent those crimes which the International Criminal Court had been authorised to prosecute.[136] This is also owing to the fact that in prosecuting crimes of terrorism in a somewhat universal basis, the International Criminal Court would be setting the standard of cohesiveness which it expects from the State parties. This could essentially lead to a more uniform legal prohibition of terrorism in all of the State parties, and could thereby serve as a viable legal solution to the problem of terrorism today.

Finally, the International Criminal Court’s jurisdiction over the crime of terrorism would also have the effect of sending a clear message across the international community that terrorism is deplorable and strongly condemned in any and all instances.[137] It has been noted that in the case of the September 11 attacks, the Taliban regime in Afghanistan had been harbouring the terrorists who had perpetrated such an attack. In other words, the government seemed to condone such forms of terrorism, so long as they were projected and perpetrated against a certain class of people. By including the crime of terrorism within the jurisdiction of the International Criminal Court, this would have a strong impact upon such regimes in sending the signal that terrorism and harbouring such terrorists is condemnable in any and all such instances. Moreover, from the perspective of international human rights, the International Criminal Court represents a crucial symbol and executor of peace in its role of serving as an impartial court.[138] Thus, by including terrorism within the scope of crimes which the International Criminal Court would rule over, this sends an undeniable message about the seriousness with which terrorism would be tackled here onwards. This therefore would have a positive impact in the fight against terrorism.

4.2 Disadvantages of Prosecuting Terrorism under the Jurisdiction of the ICC

At the same time, one has to consider the negative points of including terrorism within the scope of triable offences of the International Criminal Court. There are a few practical disadvantages which need to be considered, whereby the disadvantages arise from the reality of the political world and how various State parties interact with each other and the intentions behind such interactions, which thereby dilutes the efforts to properly deal with the ICC.

The first disadvantage is that the International Criminal Court does not enjoy its own police force – it depends on the State parties in order to undertake its duties. For instance, the Court requires support from the State parties for intelligence, the apprehension of the suspects and the execution of orders.[139] Therefore, when State parties are required to undertake all of these steps in arresting and producing terror suspects, there does not seem to be much incentive for the State parties which have been through so much trouble to just prosecute that terror suspect as per their own national laws. Hence, there is a very strong procedural weakness in the system of the International Criminal Court, whereby it does not have the resources to adequately deal with and enforce its will upon the Member States when they have to undertake all the rigorous work in arresting terror suspects. Thus, it does not seem to serve the interests of a Court which is already severely restrained in terms of resources, to include trials over a new crime which otherwise the Court cannot undertake to prosecute adequately.[140]

Secondly, a major problem with undertaking such a mode of prosecuting terrorists in the International Criminal Court is that the United States at present is not a member of the International Criminal Court.[141] This is problematic because the United States is the most prominent State party combating terrorism, and is in fact doing so around the globe.[142] Thus, it is highly likely that the United States would be apprehending some of the most dreaded and wanted terrorists around the world. Given that it is not a member of the International Criminal Court, there is no obligation placed upon the United States to produce these terrorists to the Court for trials. In such a case then, it seems to be a waste of resources to permit the International Criminal Court to prosecute crimes of terrorism, as it would only be able to deal with very few cases in actual practice.

This also creates difficulties for State parties which are both members of the International Criminal Court and are allies to the United States’ campaign against terrorism.[143] For instance, if one of the third State parties manage to apprehend a wanted terrorist, whereby both the International Criminal Court needs to prosecute this terrorist, and the United States has placed a demand for this terrorist, then this creates a confusing situation for the third State party.[144] In other words then, the unique place of the United States with regards to the International Criminal Court would have the effect of defeating any attempts to prosecute terrorists in the International Criminal Court, for it would create multiple routes through which such terrorists could be dealt with, even though the entire point of permitting the International Court to prosecute terrorism is to create a single route to justice.

4.3 Analysis and Direction to be adopted in the Future

It is clear that there are both advantages and disadvantages of having the International Criminal Court to prosecute crimes of terrorism.[145] It can be noted that there are far more advantages than disadvantages in permitting such a mode of prosecution. However, at the same time, it is important to note that the two disadvantages listed above have the effect of completely undoing the objectives behind permitting the Court to prosecute crimes of terrorism. Indeed, where there is no practical advantage to be obtained from permitting the Court to prosecute crimes of terrorism, it seems to be implausible that such a move is considered to be the best move forward for international criminal law.

However, at this stage, the author wishes to raise a strong moral point which ought to be given far more legal respect than the disadvantages (and advantages for that matter) mentioned above. In essence, given that terrorism has clearly outstripped traditional comprehensions and has grown into something highly dangerous and morally gross today, it is necessary to undertake some form of active measures to prosecute terrorism. From the aforementioned analysis, the author has concluded that the best way forward is to interpret crimes of terrorism as crimes against humanity and having the International Criminal Court prosecute these crimes.

As stated, there are disadvantages which might defeat this entire system. At the same time, the very gravity of the situation demands that doing something and attempting some form of universal prosecution, and failing, is far superior to that of doing nothing at all for fear of failure.[146] The justice that is borne out of this process might seem to be minimal and inconsiderable. Yet, the very fact that terrorism is being prosecuted at some form of measure in a neutral and universal fashion would prove to be a very encouraging start which would then have the effect of snowballing into a probable and viable solution in the near future. On this note, the author argues that the advantages and the moral considerations outstrip the disadvantages of having the International Criminal Court deal with the issue of terrorism, and therefore argues that the Court ought to prosecute this crime of terrorism.

Conclusion

In summary, this paper set out to study the impact and role of terrorism in the framework of international criminal law. It sought to undertake this study in the context of the terror attacks orchestrated by the ISIS and other prominent attacks such as that of September 11, and sought to analyse the manner in which these incidents have shaped and impacted upon international criminal law today. Furthermore, the paper sought to study whether the International Criminal Court ought to deal with and prosecute the crimes of terrorism, and if so, what is the best way to do so. The first conclusion which this paper has reached is that the modern evolution of terrorism, especially owing to the attacks of ISIS, have dramatically reshaped the way international criminal law dealt with and deals with the crime of terrorism. the second conclusion reached in this paper is that the International Criminal Court must indeed intervene and prosecute crimes of terrorism, and the best way to do so is to ensure that the crimes of terrorism are interpreted as crimes against humanity.

In reaching these conclusions, the paper first outlined and studied the manner in which international terrorism has evolved today. It showed that the advent of ISIS, and the manner in which ISIS developed into the faction it is today, has taken terrorism to a completely new context whereby the casualties from terror attacks are far more in number, and the manner in which these people are killed are also much more horrific than merely bombing them. Such an evolution clearly then has altered the way in which States respond to and deal with such terror crises. The effect then is that State practice, upon which international law is truly based, had been altered in such a fundamental fashion that the pertaining law also had to be changed.

This is where the paper studied the impact of such terror attacks on the body of international criminal law. It has become clear that such gross acts of terrorism have clearly led to State parties increasingly and strongly agreeing that terrorism is an international crime on its own today. While the State parties have not agreed that it is a crime on par with crimes such as genocide, the gravity of the crime has clearly become apparent to all parties involved. This is made evident from the fact that from previously not even being adequately recognised by international criminal law, prohibitions against terrorism today have escalated to a situation where they are considered to be rules of customary international law. More importantly, given the gravity of the crimes involved, there is even strong judicial support that terrorism is today deemed to be such a crime that prohibitions against terrorism is considered to be a jus cogens norm. Therefore, both of these points in togetherness establish the first conclusion of the paper that terrorism has impacted upon the notion of international criminal law in a fundamental way today.

At the same time, such an impact has established the necessity to prosecute such crimes, whereby the important point is that only the International Criminal Court is best placed in dealing with such a crime. Having established that, the paper concluded that it would not be appropriate to consider the crime of terrorism as a standalone crime, for several State parties which are members of the International Criminal Court might not agree to this and might even leave the membership behind. Therefore, in view of practicality, the crime of terrorism has to be interpreted through one of the existing crimes which the International Criminal Court has authority to rule over. Having established that the crime against humanity heading and crime of aggression heading are the best suited crimes through which the crime of terrorism could be interpreted, the paper then proved that the crime of aggression is not of help here owing to its requirement of a State party.

Therefore, the only possible way to deal with the idea of crime of terrorism is to interpret as a crime against humanity. Even though the crime of terrorism does not fit the elements of this crime perfectly, it is arguable that the seriousness and dangerousness of the crime of terrorism today should warrant slight modifications of the elements of the crime against humanity, such that it should be interpreted under this heading.

Having established this, the paper considered the advantages and disadvantages of prosecuting the crime of terrorism within the auspices of the International Criminal Court. While there were considerable advantages of doing so, the disadvantage of the structural weakness of the International Criminal Court, coupled with the lack of membership of the United States, seek to threaten the very attempt of prosecuting terrorism in the this Court. Yet, even disregarding the considerable advantages to be achieved, the author has argued that there is a strong moral reason in permitting the Court to undertake such a prosecution. Therefore, even if the level of success is limited, the paper reaches the second conclusion that not only should the crime of terrorism be interpreted as a crime against humanity, it ought to be prosecuted under the auspices of the International Criminal Court.

Bibliography

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Table of Journal Articles

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Table of Books

Bantekas I and Nash S, International Criminal Law (Routledge, 2009)

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Roland P, The Nuremberg Trials: The Nazis and their Crimes         Against Humanity (Arcturus Publishing, 2010)

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Table of Web Resources

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Griffis M, ‘Iraq’s Bloody Monday: 75 Killed, 356 wounded’, [15 Apr 2013] Antiwar (online), available at: < http://original.antiwar.com/updates/2013/04/15/iraqs-bloody-monday-75-killed-356-wounded/> (Accessed 15 Nov 2016)

Griffis M, ‘Protest clashes and random attacks leave 111 killed, 233 wounded across Iraq’, [23 Apr 2013] Antiwar (online), available at: < http://original.antiwar.com/updates/2013/04/23/protest-clashes-and-random-attacks-leave-111-killed-233-wounded-across-iraq/> (Accessed 15 Mar 2017)

Grono N, ‘Role of the ICC’, [Nov 2006] online, available at: < http://www.ippr.org/files/images/media/files/publication/2011/05/Role_of_ICC_1583.pdf?noredirect=1> (Accessed 22 Mar 2017)

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MacFarquhar N and Thomas M, ‘Russian Airliner Crashes in Egypt, killing 224’, [31 Oct 2015] online, available at: http://www.nytimes.com/2015/11/01/world/middleeast/russian-plane-crashes-in-egypt-sinai-peninsula.html (Accessed 17 Nov 2016)

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Scharf M P, ‘How the War against ISIS changed international law’, [2016] online, available at: (Accessed 15 Dec 2016)

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Footnotes

[1] I Bantekas and S Nash, International Criminal Law (Routledge, 2009) 196.

[2] A Bianchi and Y Naqvi, Enforcing International Law Norms Against Terrorism (Hart Publishing, 2004) 222.

[3] M D Marty, Les forces imaginantes du droit: Tome 1, Le Relatif et I’Universel (Seiul, 2004).

[4] C Walker, Terrorism and the Law (Oxford University Press, 2011).

[5] See J Wouters, ‘Of Arrest Warrants, Terrorist Offences and Extradition Deals* An Appraisal of the EU’s Main Criminal Law Measures against Terrorism after ‘11 September’’, [Jun 2004] online, available at: https://www.law.kuleuven.be/aap-bap/iir/nl/onderzoek/wp/WP56e.pdf (Accessed 15 Nov 2016).

[6] P P Craig and G D Burca, The Evolution of EU Law (Oxford University Press, 2011) 293.

[7] United Nations Security Council Resolution 1373, 28 Sep 2001, S/RES/1373.

[8] United Nations Security Council Resolution 1624, 14 Sep 2005, S/RES/1624.

[9] M E Badar, ‘The Road to Genocide: The Propaganda Machine of the Self-Declared Islamic State’, [2016] 16(3) International Criminal Law Review 361.

[10] M Griffis, ‘Iraq’s Bloody Monday: 75 Killed, 356 wounded’, [15 Apr 2013] Antiwar (online), available at: < http://original.antiwar.com/updates/2013/04/15/iraqs-bloody-monday-75-killed-356-wounded/> (Accessed 15 Nov 2016).

[11] M Griffis, ‘Protest clashes and random attacks leave 111 killed, 233 wounded across Iraq’, [23 Apr 2013] Antiwar (online), available at: < http://original.antiwar.com/updates/2013/04/23/protest-clashes-and-random-attacks-leave-111-killed-233-wounded-across-iraq/> (Accessed 15 Nov 2016).

[12] W Worley, ‘ISIS ‘execute 58 suspected rebels in Mosul by drowning’’, [15 Oct 2016] online, available at: < http://www.independent.co.uk/news/world/middle-east/isis-execute-rebels-mosul-drowning-iraq-offensive-turkey-erdogan-militias-a7362436.html> (Accessed 15 Nov 2016).

[13] Aljazeera, ‘Scores ‘hacked to death’ in machete attack in DR Congo’, [15 Aug 2016] Aljazeera (online), available at: < http://www.aljazeera.com/news/2016/08/scores-hacked-death-machete-attack-dr-congo-160814133550565.html> (accessed 15 Nov 2016).

[14] A S Galand, ‘The situation concerning the Islamic State: Carte Blanche for the ICC if the Security Council Refers?’, [27 May 2015] EJIL: Talk (online), available at: < http://www.ejiltalk.org/tag/isis/> (Accessed 15 Nov 2016).

[15] N Norberg, ‘Terrorism and International Criminal Justice: Dim Prospects for a Future Together’, [2010] 8(1) Santa Clara Journal of International Law 11, 13.

[16] S Wharton, ‘Redrawing the line? Serious crimes of concern to the International Community Beyond the Rome Statute’, [2014] 129 Canadian Yearbook of International Law 1.

[17] See for example S Kumar, International Tourism and Hospitality in the Digital Age (IGI Global, 2015) 143.

[18] See S E Shahed, ‘Prosecuting ISIS poses challenge to International justice’, [28 Aug 2014] Al Arabiya (online), available at: < http://english.alarabiya.net/en/perspective/analysis/2014/08/28/Prosecution-of-ISIS-poses-challenge-to-intenational-justice.html> (Accessed 15 Nov 2016).

[19] B Smith, ‘ISIS and the Sectarian Conflict in the Middle East’, [19 Mar 2015] House of Commons Library (online), available at: http://researchbriefings.files.parliament.uk/documents/RP15-16/RP15-16.pdf (Accessed 15 Nov 2016).

[20] Ibid.

[21] Ibid.

[22] T Cassis, ‘A brief history of ISIS’, [21 Nov 2015] The Week (online), available at: http://theweek.com/articles/589924/brief-history-isis (Accessed 15 Dec 2016).

[23] (n19).

[24] L Sly, ‘How Saddam Hussein’s former military officers and spies are controlling ISIS’, [5 Apr 2015] The Independent (online), available at: http://www.independent.co.uk/news/world/middle-east/how-saddam-husseins-former-military-officers-and-spies-are-controlling-isis-10156610.html (Accessed 15 Dec 2016).

[25] (n19).

[26] See for example M Chastain, ‘Report: Syrian Christians Cry ‘Jesus!’ before ISIS mass beheading’, [5 Oct 2015] Breitbart (online), available at: http://www.breitbart.com/national-security/2015/10/05/report-syrian-christians-cry-jesus-isis-mass-beheading/ (Accessed 15 Dec 2016).

[27] M P Scharf, ‘How the War against ISIS changed international law’, [2016] online, available at: (Accessed 15 Nov 2016).

[28] H Siddique, ’20,000 Iraqis besieged by ISIS escape from Mountain after US air strikes’, [10 Aug 2014] The Guardian (online), available at: http://www.theguardian.com/world/2014/aug/10/iraq-yazidi-isisjihadists-islamic-state-kurds (Accessed 15 Nov 2016). 

[29] H Cooper and M D Schear, ‘Militants seize of mountain in Iraq is Over, Pentagon says’, [14 Aug 2014] NY Times (online), available at: http://www.nytimes.com/2014/08/14/world/middleeast/iraq-yazidirefugees.html?_r=0 (Accessed 15 Dec 2016).

[30] Human Rights Council, ‘”They came to destroy”: ISIS Crimes against the Yazidis’, [15 Jun 2016] online, available at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/A_HRC_32_CRP.2_en.pdf (Accessed 15 Dec 2016).

[31] Amnesty International, ‘Syria: ‘Beheading’ of US Reporter a War Crime that Highlights ‘Chilling’ Risk to Journalists’, [20 Aug 2014] online, available at: https://www.amnesty.org/en/press-releases/2014/08/syria-beheading-us-reporter-war-crime-highlights-chilling-risk-journalists/ (Accessed 15 Dec 2016).

[32] United Nations Human Rights Office of the High Commissioner, ‘Widespread human rights violations and killings of civilians continue unabated in Iraq – UN Report’, [13 Jul 2015] online, available at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16229&LangID=E (Accessed 15 Dec 2016).

[33] J Michaels, ’15,000 killed, but ISIS persists’, [30 Jul 2015] USA Today (online), available at: http://www.usatoday.com/story/news/world/2015/07/29/air-campaign-kills-15000-isis-militants-pentagon-iraq-syria/30750327/ (Accessed 15 Nov 2016).

[34] N MacFarquhar and M Thomas, ‘Russian Airliner Crashes in Egypt, killing 224’, [31 Oct 2015] online, available at: http://www.nytimes.com/2015/11/01/world/middleeast/russian-plane-crashes-in-egypt-sinai-peninsula.html (Accessed 17 Dec 2016).

[35] R Callimachi, ‘ISIS Operative suspected in Paris and Brussels Attacks is Identified’, [22 Nov 2016] NY Times (online), available at: http://www.nytimes.com/2016/11/22/world/europe/isis-paris-brussels-attacks.html?_r=0 (Accessed 22 Dec 2016).

[36] United Nations Security Council Resolution 2249, 20 Nov 2015, S/RES/2249.

[37] M L Dudziak, September 11 in History: A Watershed Moment? (Duke University Press, 2003).

[38] P L Bergen, The Osama Bin Laden I Know: An Oral History of Al Qaeda’s Leader (Simon and Schuster, 2006) 220.

[39] A Safty, ‘International Criminal Law and the September 11 Events’, [2001] 9(2) Marmara Journal of European Studies 103, 111.

[40] United Nations Security Council Resolution 1368, 12 Sep 2001, S/RES/1368.

[41] L May and Z Hoskins, International Criminal Law and Philosophy (Cambridge University Press, 2010) 154.

[42] C Bassiouni, Introduction to International Criminal Law (Transnational Publishers, 2003) 63.

[43] A Bianchi, Enforcing International Law Norms Against Terrorism (Hart Publishing, 2004) 227.

[44] M Kovac, ‘International Criminalisation of Terrorism’, [2007] online, available at: < file:///C:/Users/raman_000/Downloads/09Kovac.pdf> (Accessed 18 Dec 2016).

[45] E J Husabo and I Bruce, Fighting Terrorism through Multilevel Criminal Legislation (BRILL, 2009) 468.

[46] (n42).

[47] S Marks and A Clapham, International Human Rights Lexicon (Oxford University Press, 2005) 226.

[48] C Walter, ‘Defining Terrorism in National and International Law’, [2003] online, available at: https://www.unodc.org/tldb/bibliography/Biblio_Terr_Def_Walter_2003.pdf< (Accessed 21 Jan 2017).

[49] J D Fry, ‘The Swindle of Fragmented Criminalization: Continuing Piecemeal Responses to International Terrorism and Al Qaeda’, [2009] 43 New England Law Review 377, 393.

[50] J N Maotogo, ‘Countering Terrorism: From Wigged Judges to Helmeted Soldiers—Legal Perspectives in America’s Counter-Terrorism Responses’, [2005] 6 San Diego International Law Journal 243.

[51] C C Rausch, ‘Fundamentalism and Terrorism’, [2015] 6(2) Journal of Terrorism Research 1.

[52] Prosecutor v. Brima, Case no. SCSL-04-16-T, Judgment of Trial Chamber II, ¶ 670.

[53] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I, ¶ 89, Feb. 16, 2011.

[54] Ibid, at [83].

[55] Ibid, at [85]86].

[56] See B Hoffman, Inside Terrorism (Columbia University Press, 2006).

[57] Rome Statute of the International Criminal Court 1998.

[58] International Convention for the Suppression of the Financing of Terrorism 1999.

[59] L N Sadat, Forging a Convention for Crimes against Humanity (Cambridge University Press, 2011) 270.

[60] O S Stokke and O B Thommessen, Yearbook of International Cooperation on Environment and Development (Routledge, 2013) 176.

[61] A Cohen, ‘Prosecuting Terrorists at the International Criminal Court: Reevaluating an Unused Legal Tool to Combat Terrorism’, [2012] 20(2) Michigan State International Law Review 219, 239.

[62] S.C. Res. 1757, para. 1, U.N. Doc. S/RES/1757, at 2 (May 30, 2007).

[63] (n53).

[64] (n53), at [44]; P Puchooa, ‘Defining Terrorism at the Special Tribunal for Lebanon’, [2011] 2(3) Journal of Terrorism Research 1.

[65] For a judicial requirement of this rule, see Military and Paramilitary Activities in and Against Nicaragua, (Nicar. v. U.S.),
1986 I.C.J. 14, 98 (June 27).

[66] M P Scharf, Customary International Law in Times of Fundamental Change (Cambridge Unviersity Press, 2013) 91.

[67] (n53), at [102].

[68] M J Ventura, ‘Terrorism According to the STL’s Interlocutory Decision on the Applicable Law: A Defining Moment or a Moment of Defining?’, [2011] 9(5) Journal of International Criminal Justice 1021.

[69] R v Gul [2012] EWCA Crim 280.

[70] A Guttry et al, Foreign Fighters under International Law and Beyond (Springer, 2016) 244.

[71] Terrorism Act 2006.

[72] D Jinks et al, Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies (Springer, 2014) 7.

[73] R McCorquodale et al, British Influences on International Law (BRILL, 2016) 419.

[74] (n69), at [36].

[75] C McLachlan, Foreign Relations Law (Cambridge University Press, 2014) 6.69.

[76] Re´union Ae´rienne v. Socialist People’s Libyan Arab Jamahiriya, Cour de cassation Cass.] [supreme court for judicial matters] 2e civ, Mar. 9, 2011, Bull. Civ. II, No. 09-14743 (Fr.), 150 I.L.R. 630 (2012)

[77] Vienna Convention on the Law of Treaties art. 53, opened for signature May 22, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980).

[78] X Yang, State Immunity in International Law (Cambridge University Press, 2012) 332.

[79] T Weatherall, Jus Cogens: International Law and Social Contract (Cambridge University Press, 2015) 250.

[80] (n76), 634.

[81] A V M Leong, The Disruption of International Organised Crime (Routledge, 2016) 83.

[82] R Pati, Due Processes and International Terrorism: An International Legal Analysis (BRILL, 2009) 127.

[83] M Kersten, ‘The ICC and the ISIS: Be Careful What you Wish For’, [11 Jun 2015] online, available at: < https://justiceinconflict.org/2015/06/11/the-icc-and-isis-be-careful-what-you-wish-for/> (Accessed 21 Feb 2017); P Kroker and A L Kather, ‘Justice for Syria? Opportunities and Limitations of Universal Jurisdiction Trials in Germany’, [12 Aug 2016] EJIL: Talk (online), available at: < http://www.ejiltalk.org/justice-for-syria-opportunities-and-limitations-of-universal-jurisdiction-trials-in-germany/> (Accessed 21 Feb 2017).

[84] S Sayapin, ‘A “Hybrid” Tribunal for Daesh?’, [4 May 2016] EJIL: Talk (online), available at: < http://www.ejiltalk.org/a-hybrid-tribunal-for-daesh/> (Accessed 21 Feb 2017).

[85] D Akande, ‘The jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits’, [2003] 1(3) Journal of International Criminal Justice 618.

[86] D Robinson, ‘Defining “Crimes against Humanity” at the Rome Conference’, (1999) 93(1) The American Journal of International Law 43.

[87] T Stephens, ‘International Criminal Law and the Response to International Terrorism’, [2004] 27 University of New South Wales Law Journal 454.

[88] R J Goldstone and J Simpson, ‘Evaluating the Role of the International Criminal Court as a Legal Response to Terrorism’, [2003] 16 Harvard Human Rights Journal 13, 14.

[89] C Byron, War Crimes and Crimes Against Humanity in the Rome Statute of the International Criminal Court (Oxford University Press, 2013) 193.

[90] L Martinez, ‘Prosecuting Terrorists at the International Criminal Court: Possibilities and Problems’, [2002] 34 Rutgers Law Journal 1, 18.

[91] Rome Statute, Article 7(1)(k).

[92] P Roland, The Nuremberg Trials: The Nazis and their Crimes Against Humanity (Arcturus Publishing, 2010).

[93] P A Mazandaran, ‘An International Legal Response to an International Problem: Prosecuting International Terrorists’, [2006] 6 International Criminal Law Review  503, 533.

[94] See A Cassese, ‘The multifaceted criminal notion of terrorism in International Law’, [2006] 4(5) Journal of International Criminal Justice 933.

[95] F Z Ntoubandi, Amnesty for Crimes against Humanity under International Law (Martinus Nijhoff Publishers, 2007) 61.

[96] R Arnold, ‘The prosecution of terrorism as a crime against humanity’, [2004] online, available at: http://www.zaoerv.de/64_2004/64_2004_4_a_979_1000.pdf (Accessed 22 Feb 2017).

[97] V Proulx, ‘Rethinking the Jurisdiction of the International Criminal Court in the Post-September 11th Era: Should Acts of terrorism Qualify as Crimes Against Humanity?’, [2004] 19 American University of International Law Review 1009, 1034.

[98] D Luban, ‘A Theory of Crimes Against Humanity’, [2004] 29 Yale Journal of International Law 85.

[99] D Robinson, ‘Essence of Crimes Agqainst Humanity Raised at ICC’, [2011] Blog of the European Journal of International Law (online), available at: < http://www.ejiltalk.org/essenceof-crimes-against-humanity-raised-by-challenges-at-icc> (Accessed 16 Apr 2017).

[100] C C Jalloh, ‘What makes a Crime against Humanity a Crime against Humanity’, [2013] 28(2) American University International Law Review 381.

[101] J E McCollough, ‘It’s time to treat ISIS like a State’, [27 Aug 2015] Havok Journal (online), available at: < http://havokjournal.com/world/time-treat-isis-like-state/> (Accessed 17 Apr 2017).

[102] The Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, para. 33.

[103] Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation Into the Situation in the Republic of Kenya, 31 March 2010, para. 90

[104] M. Holvoet, ‘The State or Organisational Policy Requirement within the definition of crimes against humanity in the Rome Statute: An Appraisal of the Emerging Jurisprudence and the Implementation practice by ICC States Parties’, [Oct 2013] International Crimes Database (online), available at: < http://www.internationalcrimesdatabase.org/upload/documents/20131111t105507-icd%20brief%20%202%20-%20holvoet.pdf> (Accessed 17 Apr 2017).

[105] M D Filippo, ‘Terrorist Crimes and International Co-operation: Critical Remarks on the Definition and Inclusion of Terrorism in the Category of International Crimes’, [2008] European Journal of International Law 567.

[106] International Justice Resource Center, ‘International Law Commission adopts New Articles on Crimes Against Humanity’, [1 Jul 2016] online, available at: http://www.ijrcenter.org/2016/07/01/international-law-commission-adopts-new-articles-on-crimes-against-humanity/ (Accessed 22 Feb 2017).

[107] M Politi, ‘The ICC and the Crime of Aggression’, [2012] 10(1) Journal of International Criminal Justice 267.

[108] Review Conference of the Rome Statute of the International Criminal Court, Kampala, Uganda, May 31-June 11, 2010, Official Records, Doc. RC/11.

[109] K Heller and G Simpson, The Hidden Histories of War Crimes Trials (Oxford University Press, 2013) 427.

[110] R Cryer, An Introduction to International Criminal Law and Procedure (Cambridge University Press, 2010) 318.

[111] F M Muhammadin, ‘Terrorism and the Crime of Aggression under the Rome Statute’, [2015] 27(1) Mimbar Hukum 128.

[112] S.C. Res. 405, U.N. Doc. S/RES/405 (Apr. 14, 1977).

[113] B B Ferencz, ‘Enabling the International Criminal Court to Punish Aggression’, [2007] 6 Washington University Global Studies Law Review 551, 562.

[114] N Norberg, ‘Terrorism and International Criminal Justice: Dim Prospects for a Future Together’, [2010] 8(1) Santa Clara Journal of International Law 11.

[115] Also see E Creegan, ‘A permanent Hybrid Court for Terrorism’, [2011] 26(2) American University International Law Review 237.

[116] L Prosperi, ‘A Closer Look: Prosecuting ISIS Under International Law: Pros And Cons Of Existing International Justice ‘, [13 Apr 2015] Progressive Lawyer (online), available at: < http://www.progressivelawyer.com/international-criminal-law/a-closer-look-prosecuting-isis-under-international-law-pros-and-cons-of-existing-international-justice-mechanisms/> (Accessed 22 Mar 2017).

[117] See V Tochilovsky, ‘Rules of Procedure for the International Criminal Court: Problems to Address in Light of the Experience of the Ad Hoc Tribunals’, (1999) 46(3) Netherlands International Law Review 343.

[118] Rome Statute of the International Criminal Court, Doc. A/CONF.183/13

[119] Rules of Procedure and Evidence, Doc . NCONF.183/13 Vol. II.

[120] And thus , under a classic reading of this formula : N . Luhmann, Das Recht der Gesellschaft, 1993, 214 – 238.

[121] See article 51 (4) (5) of the Statute. The Explanatory Note to the RPE specifies that, “The Rules of Procedure and Evidence are an instrument for the application of the Rome Statute of the International Criminal Court, to which they are subordinate in all cases…. Direct references to the Statute have been included in the Rules, where appropriate, in order to emphasize the relationship between the Rules and the Rome Statute …. In all cases, the Rules of Procedure and Evidence should be read in conjunction with and subject to the provisions of the Statute “.

[122] N Boister, ‘Treaty Crimes, International Criminal Court?’, [2009] 12 New Criminal Law Review 341, 348.

[123] Accused terrorists mistreated: lawyer, [2005], http://www.smh.com.au/news/national/accused-terrorists-mistreated-lawyer/2005/12/05/1133631183568.html (Accessed 22 Mar 2017).

[124] K Maloney-Dunn, ‘Humanizing Terrorism Through International Criminal Law: Equal Justice for Victims, Fair Treatment of Suspects, and Fundamental Human Rights at the ICC’, [2010] 8 Santa Clara Journal of International Law 69, 74.

[125] W A Schabas, An Introduction to the International Criminal Court (4th edn, Cambridge University Press, 2011) 171.

[126] Mariana Pena, Victim Participation at the International Criminal Court: Achievements Made and Challenges Lying Ahead Victim Participation in the International Criminal Court, 497

[127] S M H Nouwen, ‘Doing justice to the political: The International Criminal Court in Uganda and Sudan’, [2010] 21(4) European Journal of International Law 941.

[128] M Lippman, ‘The New Terrorism and International Law’, [2003] 10 Tulsa Journal of Competition and International Law 297, 354.

[129] See M Morris, ‘Terrorism and Unilateralism: Criminal Jurisdiction and International Relation’, [2004] 36 Cornell International Law Journal 473.

[130] E Bales, ‘Torturing the Rome Statute: The Attempt to Bring Guantanamo’s Detainees within the Jurisdiction of the International Criminal Court’, [2009] 16 Tulsa Journal of Competition and International Law 173, 188.

[131] G Werle, ‘Individual Criminal Responsibility in Article 25 ICC Statute’, [2007] 5(4) Journal of International Criminal Justice 953.

[132] Rome Statute, Article 25(3).

[133] Z Sanikidze, ‘The Level of ‘Contribution’ Required Under Article 25 (3) (D) of the Rome Statute of the International Crimnal Court’, [2012] 83 Revue internationale de droit penal 221.

[134] C Damgaard, Individual Criminal Responsibility for Core International Crimes (Springer Science & Business Media, 2008) 168.

[135] L Herik and N Schrijver, Counter-terrorism strategies in a Fragmented International Legal Order (Cambridge University Press, 2013).

[136] See N Ali, ‘The Effects and Effectiveness of the International Criminal Court: A Game-Theoretic Analysis’, [Aug 2014] online, available at: < https://ueaeprints.uea.ac.uk/53357/1/2014AliNPhD.pdf> (Accessed 22 Mar 2017).

[137] V Held, How Terrorism is Wrong: Morality and Political Violence (Oxford University Press, 2008) 29.

[138] N Grono, ‘Role of the ICC’, [Nov 2006] online, available at: < http://www.ippr.org/files/images/media/files/publication/2011/05/Role_of_ICC_1583.pdf?noredirect=1> (Accessed Mar 2017).

[139] T Baudet, The Significance of Borders: Why Representative Government and the Rule of Law require Nation States (Martinus Nijhoff Publishers, 2012) 104.

[140] F McKey, ‘US Unilateralism and International Crimes: The International Criminal Court and Terrorism’, [2004] 36 Cornell International Law Journal 455.

[141] M A Fairlie, ‘The United States and the International Criminal Court Post-Bush: A Beautiful Courtship but an Unlikely Marriage’, [2011] 29(2) Berkeley Journal of International Law 528.

[142] D McGoldrick et al, The Permanent International Criminal Court (Hart Publishing, 2004) 437.

[143] J Beckman, Comparative Legal Approaches to Homeland Security and Anti-Terrorism (Routledge, 2016) 158.

[144] (n61).

[145] D F Vagts, ‘Which courts should try persons accused of terrorism’, [2003] 14(2) European Journal of International Law 313.

[146] S Brinkley, ‘Accountability for Crimes in Syria: Lessons Learned from the Field of International Justice’, [24 Aug 2015] Newsdeeply (online), available at: < https://www.newsdeeply.com/syria/community/2015/08/24/accountability-for-crimes-in-syria-lessons-learned-from-the-field-of-international-justice> (Accessed 23 Apr 2017).