“Terrorism” as an “International Crime” and “Terrorism” as a “Transnational

Crime”

Adrian Hunt

(Birmingham Law School, University of Birmingham, Occasional Paper Series

2019)

I. Introduction

This topic is principally concerned with (a) the extent to which “terrorism” already is
an “international crime”; and (b) whether it should be one.

This involves developing an understanding of what “international crimes” are: the

extent to which “acts of terrorism” are caught by those crimes; the regime for
investigating and prosecuting such international crimes and the role of the International
Criminal Court [ICC] and domestic courts in that regard; the distinction between
“terrorism” as an “international crime” and “terrorism” as a “transnational crime”; and
various debates about whether “terrorism” per se should be brought within the
jurisdiction of the ICC, or some other International Criminal Tribunal.

II. What is meant by an “international crime”?

Kittichaisaree notes that

In re list and others, the US Military Tribunal at Nuremberg defined an “international

crime” as follows

“An international crime is such act universally recognized as criminal, which

is considered a grave matter of international concern and for some valid reason
cannot be left within the exclusive jurisdiction of the State that would have
control over it under ordinary circumstances..”

It is the international community of nations that determines which crimes fall within
this definition in light of the latest developments in law, morality, and the sense of
criminal justice at the relevant time….It is correct to contend that what acts should be
characterized as international crimes depends on the machinery by which such acts are
to be dealt with. As generally understood, since the UN conference of Plenipotentiaries
for the Establishment of an International Criminal Court in June and July 1998,
international crimes are those prosecuted before an international criminal tribunal,
whether ad hoc or permanent.1

The inter-relationship between these factors at best is very complex, and at worst is
entirely unclear.

1
Kriangsak Kittichaisaree, International Criminal Law (Oxford, 2001) p. 1

1
 Behaviour/Acts universally recognised as criminal

Machinery for prosecution before an international

tribunal

Grave/serious crime of international concern

some valid reason cannot be left within

the exclusive jurisdiction of the state that
ordinarily would have jurisdiction

Conventionally, the crimes in question here are (i) War Crimes, (ii) Crimes Against
Humanity, and (iii) Genocide. These might be described as “classic international
crimes” or “core crimes”.2

The source of criminal liability in relation to these crimes is “international law”, not
domestic law. In some jurisdictions [e.g. the UK] a domestic legal measure [e.g.
legislation] is generally necessary to give domestic legal authority and effect to
prohibitions encompassed in such crimes so as to allow for prosecution in domestic
courts. However, strictly speaking, that is purely a consequence of domestic
constitutional arrangements for receiving “international law” into domestic law in the
jurisdiction in question. It does not change or alter the scope or substance of the
international law rule in question which imposes individual criminal responsibility on
persons who engage in the activity which constitutes the “international crime” as
defined/accepted in international law. So the ultimate definitive source of legal
authority for the existence of international crimes is “international law”, not domestic
law.

The “international crimes” mentioned above derive from two interrelated sources of
authority in International Law: treaties and customary international law. As regards

2
Not covered in the analysis here are ‘Crimes Against Peace’ commonly now referred to as “aggression”.
The contemporary version of this crime has only recently been defined for the purposes of ICC
jurisdiction in Article 8 bis of the Court’s statute as “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” [Art.8(1) bis Rome Statute]. An “act of aggression”
means “the use of armed force by a State against the sovereignty, territorial integrity or political
independence of another State, or in any other manner inconsistent with the Charter of the United
Nations” [Art.8(2) bis Rome Statute].

2
treaties, for instance, the Geneva Conventions set out various rules and prohibitions and
the Statute of the International Criminal Court [which is an international treaty
governing the jurisdiction of that court] builds upon the provisions of those
Conventions [and other sources] to define breaches of those rules as war crimes and
confers jurisdiction on the ICC in certain circumstances to prosecute persons for those
crimes.

As for customary international law, as distinct from “treaties”, as a source of law this
refers to rules and prohibitions recognised by “international custom as evidenced by
practice accepted as law”. Whether a particular customary rule or prohibition is binding
in customary international law can often be a matter of debate. Mere practice is not
enough. It must be practice as evidence of a legally binding custom. A practice may
well come to be recognised as having crystallised into legally binding custom quickly,
or over a long period of time. “Practice” as evidence of “legally binding custom” can
involve a whole range of things including the following: the inclusion of a crime in a
treaty itself; authoritative UN General Assembly Resolutions; Security Council
resolutions; consistent practice of national courts; and decisions of international
tribunals. As far as international criminal law is concerned, international criminal courts
and tribunals [since Nuremburg] have played a significant role in articulating and
formally acknowledging the importance of customary international law as a source of
international criminal law.

Most of the core elements of classic “international crimes” are recognised as being
crimes in customary international law, as well as being recognised in one way or
another through treaty.

For the purposes of the discussion which follows, we take the definitions of the crimes
(i) War Crimes, (ii) Crimes Against Humanity, and (iii) Genocide – as set out in Articles
6, 7, and 8 of the Rome Statute of the ICC [“The ICC Statute/”Rome Statute”], [and in
the case of War Crimes, various provisions of the Geneva Conventions and Additional
Protocols] as the basis for our discussion of the interrelationship between “international
crimes” and “terrorism.

III. Elements of “terrorism” encompassed by existing “International Crimes”

A. War Crimes

(i) Introduction

The commission of a “war crime” involves engaging in various conduct during an

‘armed conflict’ where that conduct is prohibited by what is referred to as the “Law of
Armed Conflict” or “International Humanitarian Law” [IHL], and regarded as a ‘war
crime’ by International Criminal Law. IHL is the body of law that applies to conduct
during an “armed conflict”. Sometimes people refer to this body of law as the “Laws
of War” or ‘jus in bello’.3 Many of the prohibitions are concerned with the protection
3
This body of rules governing conduct during an armed conflict is to be distinguished from another body
of legal rules governing recourse to armed conflict which regulates when states may use armed force,
and is traditionally referred to as ‘jus ad bellum’. That a state (or other party entitled to engage in armed
conflict) may lawfully have had recourse to armed force amounting to “armed conflict” does not absolve

3
of civilians, and other persons not taking active part in the conflict in question. Others
regulate the conduct of hostilities between parties to the conflict. Not every breach of
an IHL prohibition or rule constitutes a “war crime” and the question of which breach,
of which rules, in which context, constitutes a “war crime” is sometimes a matter of
legal and political debate.

Our concern here however is to consider the question of whether there are
circumstances in which actions typically associated with “terrorism” constitute “war
crimes” which in part involves considering whether there is an overlap between typical
conduct associated with “terrorism”, and various relevant prohibitions of IHL whose
breach is thought to be sufficiently serious so as to attract individual criminal
responsibility as a matter of International Criminal Law. This issue is considered in (iii)
below.

However we need to note that the conduct in question constituting a “war crime” must
be committed in the course of an “armed conflict” and therefore we must firstly briefly
consider the prior, threshold issue, concerning the meaning of “armed conflict”.

(ii) “Armed Conflict” – The Threshold Requirement for War Crimes

The ICTY in the Tadić case explained that

[a]n armed conflict exists whenever there is a resort to armed force between States or protracted
armed violence between governmental authorities and organized armed groups or between such
groups within a State.4

The reference to “resort to armed force between States” is a reference to “international

armed conflict” [IAC]. The reference to “protracted armed violence between
governmental authorities and organized armed groups or between such groups within a
State” is a reference to “non-international armed conflict”[NIAC]. It should also be
noted that as matter of treaty law at least,5 IAC is not confined to “resort to force
between states”. This is because Additional Protocol 1 to the Geneva Conventions [AP
1] provides that IAC includes

it of complying with the rules of IHL when engaging in the armed conflict in question. Recourse to armed
conflict, and conduct during armed conflict, are distinct issues. Thus, by the same token, that a state may
have had unlawful recourse to armed force does not in-and-of-itself render conduct in the course of any
ensuing armed conflict contrary to IHL. Actions taken in the course of that armed conflict have to be
judged by reference to applicable rules of IHL governing that conflict.
4
Tadić (IT-94-1-A R 72) Decision on the Defence Motion for Interlocutory Appeal on jurisdiction 2
October 1995, para. 70. The court further explained that ‘International humanitarian law applies from
the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general
conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.
Until that moment, international humanitarian law continues to apply in the whole territory of the warring
States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not
actual combat takes place there.’
5
Greenwood has observed that “Opinions differ as to whether Art. 1, para. 4 AP 1 can be regarded as
stating a rule of customary international law”, and suggests that although it may have some influence on
state practice, states do not regard it as declaratory of customary international law.” Christopher
Greenwood, “Scope of Application of Humanitarian Law”, Ch, 2 in Dieter Fleck (ed.) The Handbook of
Humanitarian Law in Armed Conflicts (Oxford, 1995) p. 43. The problem in answering the question
probably lies in the absence of clear state practice since AP1 has never actually been applied in the
situations set out in art. 1(4), and as Cryer et al (p . 234) note the “scant state practice make it prudent to
avoid any hasty pronouncements on that question in the abstract.”

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 armed conflicts in which peoples are fighting against colonial domination and alien occupation
and against racist régimes in the exercise of their right of self-determination, as enshrined in the
Charter of the United Nations and the Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the Charter of the United
Nations.6

Although there is not complete agreement on point, the prevailing view7 seems to be
that “[a]lmost any [intended] use of armed force by one state against another will bring
into effect an international armed conflict”.8

In contrast as far as NIACs are concerned, it is clear that the threshold is much higher.

As the quotation from Tadić noted above indicates

(1) armed violence must be protracted; and (2) the group(s) fighting with the state or
with each other must be organized.

As for (1) the “intensity of the conflict” requirement, i.e. the requirement that there be
“protracted armed violence”

This reflects the stipulation in Art 8 (2) (d) and (f) of the ICC statute that NIACs do not
include

“situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of
violence or other acts of a similar nature.”9

One authoritative source notes that

The following are indicative factors in assessing whether the requirement of intensity is
satisfied: the number duration and intensity of individual confrontations; the type of weapons
and other military equipment used; the number and calibre of munitions fired; the number of
persons and types of forces partaking in the fighting; the number of casualties; the extent of
material destruction; the number of civilians fleeing combat zones. 10

As for (2) - the requirement that the group(s) fighting with the state or with each other
must be "organized"

6
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol I), 8 June 1977, Art. 1(4).
7
Cyer et al p. 233 observe that issue is not “entirely settled” but “most authorities” support the view that
“any resort to force” by a state against another state is sufficient. Many authorities refer to the 1960
commentary of the ICRC in support of this view. See JS Pictet (ed.) The Geneva Conventions of 12
August 1949: Commentary III Geneva Convention Relative to the Treatment of Prisoners of War (ICRC,
1960) p. 23. Referring to that source, however, the International Law Commission observed that “it had
found little evidence to support the view that the Conventions apply in the absence of fighting of some
intensity” contending that “The violence must be organized and intense-even between sovereign states-
before the otherwise prevailing peacetime rules are suspended.” See Use of Force Committee of the ILA
Final Report on the Meaning of Armed Conflict in International Law (ILA, 2010) p. 2-3.
8
Dapo Akande, ‘Classification of Armed Conflicts: Relevant Legal Concepts” Ch 3 in Elizabeth.
Wilmshurst (ed.), International Law and the Classification of Conflicts (Oxford, 2012) 41.
9
Which in turn merely repeats the definition set out in Additional Protocol II Art 1.2
10
Jann K Kleffner “Scope of Application of International Humanitarian Law” Ch 2 in D. Fleck (ed.)
The Handbook of International Humanitarian Law (Oxford, 2013, 3rd edition) pp. 49-50

5
The same source explains that the following factors are relevant

The existence of a command structure and disciplinary rules and mechanisms within the group;
the existence of headquarters; the fact that the group controls certain territory; the ability of the
group to gain access to weapons and other military equipment, recruits and military training; its
ability to plan, coordinate and carry out military operations including troop movements and
logistics; its ability to define a unified military strategy and use military tactics; and its ability
to speak with one voice and negotiate and conclude agreements such as ceasefire and peace
accords.11

It is important to appreciate that the above are merely indicators relevant to

distinguishing between NIAC, on the one hand, and a situation of internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence or other acts, on the
other hand. However they serve to indicate the relatively high threshold required such
as to mean that certainly not all, and perhaps most campaigns of violence carried out
by groups, styled as “terrorist” by the governments they oppose might have
considerable difficulty in meeting them.

It is also important to note that the mere fact that a group is styled as “terrorist” by the
Government concerned does not mean that the conflict in question is not capable of
being an NIAC. The issue turns not on the “status” or characterisation of the group, but
on the intensity of the conflict and the organisation of the group which is to be assessed
by reference to the objective factors noted above.12

(iii) Prohibited Conduct – War Crimes

Article 8 of the ICC statute lists as war crimes:

(1) In the case of international armed conflict

- conduct expressly listed in Article 8 (2)(a) (i)-(viii) constituting “grave

breaches” of the Geneva Conventions;13 and
- “Other serious violations of the laws and customs applicable in
international armed conflict”, expressly listed in Article 8(2)(b) (i)-
(xxvi);

and

11
Ibid.
12
See further Prosecutor v Ljube Boškoski and Johan Tarčulovski (Judgement) IT-O4-82-T (10 July
2008)
13
Article 8(2)(a) which refers to “grave breaches” of the GCs does not expressly provide that it only
applies to “international armed conflict”. However as Schabas explains (An Introduction to the
International Criminal Court (2007, 3rd edition, Cambridge University Press) p. 120) “the context
suggests that this must necessarily be the case". This approach reflects what seems to be the generally
accepted position regarding the applicability of the “grave breaches” regime in the Conventions. See the
decision of the Appeals Chamber of the ICTY in Tadić (IT-94-1-A R 72) Decision on the Defence Motion
for Interlocutory Appeal on jurisdiction 2 October 1995, paras. 79-80. At any rate the “Elements of
Crimes” provisions for Article 8(2)(a) expressly mentions the requirement of an “international armed
conflict” for each of the crimes listed in Article 8(2)(a)(i)-(viii). Article 9 of the Statute expressly
establishes the “Elements of Crime” regime in order to “assist the court in the interpretation of” articles
6, 7, and 8, and Article 21(1) (a) lists the Elements of Crimes after the Statute itself in the hierarchy of
the law the Court shall apply.

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 (2) In the case of non international armed conflict

- conduct expressly listed in Article 8(2)(c)(i)-(iv), constituting “serious

violations” of common article 3 of the Geneva Conventions, the conduct in
question being committed “against persons taking no active part in the
hostilities, including members of armed forces who have laid down their
arms, and those placed hors de combat by sickness, wounds, detention or
other cause”; and
- “other serious violations of the laws and customs applicable” in the
context of an non-international armed conflict as expressly listed in Article
8(2)(e)(i)-(xii).

Thus both in the case of IACs and NIAcs, for example the ICC statute Article 8 (2)(b)(i)
[International armed conflict] and 8(2)(e)(i) [non-international armed conflict]
expressly provide that

Intentionally directing attacks against the civilian population/individual as such or against

individual civilian not taking active part in the hostilities.”

during an “armed conflict” constitutes a war crime within the jurisdiction of the ICC.
This will cover many “terrorist” type acts committed in the course of such a conflict.

However this merely speaks to the act, and does not include specific consideration of
the “motivation” for or “purpose” of committing the act which many might argue is
important in identifying “terrorism” from other forms of violence.

However we can look beyond Article 8 of the ICC statute here to note that Article 51
Additional Protocol I [API] and Article 13 of Additional Protocol II [AP II] to the
Geneva Conventions provides

Protection of the civilian population

1. The civilian population and individual civilians shall enjoy general

protection against dangers arising from military operations. To give effect to
this protection, the following rules, which are additional to other applicable
rules of international law, shall be observed in all circumstances.

2. The civilian population as such, as well as individual civilians, shall not

be the object of attack. Acts or threats of violence the primary purpose of
which is to spread terror among the civilian population are prohibited

So this “war crime” does not simply prohibit attacks on civilians; it expressly identifies
the mischief of attacking civilians with the primary purpose of spreading terror amongst
them, and therefore is quite close to popular understandings of “terrorism”.

The meaning and status of this crime was considered by the ICTY in Prosecutor v.
Galić.14 General Galić was charged inter alia with violations of the laws or customs of

14
(Case no. IT-98-29-T) (December 5, 2003).

7
war namely, acts of violence the primary purpose of which is to spread terror among
the civilian population, as set forth in Article 51 of Additional Protocol I to the Geneva
Conventions of 1949, under Article 3 of the Statute of the International Criminal
Tribunal for the Former Yugoslavia [ICTY]. The Tribunal held [at para. 133] that the
“crime of terror against the civilian population” during armed conflict included the
following elements

1. Acts of violence directed against the civilian population or individual

civilians not taking direct part in hostilities causing death or serious injury to
body or health within the civilian population.
2. The offender wilfully made the civilian population or individual civilians not
taking direct part in hostilities the object of those acts of violence.
3. The above offence was committed with the primary purpose of spreading
terror among the civilian population

The Tribunal found that General Galić was guilty of this crime as a consequence of his
involvement during an “armed conflict” in/direction of a campaign of sniping and
shelling attacks on the civilian population of Sarajevo, causing death and injury to
civilians, with the primary purpose of spreading terror among the civilian population
between September 1992 and August 1994.

Significantly, the trial chamber in its judgment held that this crime was a crime in
customary international law15, and the Appeal Chamber emphatically supported this
view.16

However we should note that the crime is not listed in Article 8 of the ICC Statute in
the list of crimes constituting war crimes over which the ICC has jurisdiction. So the
ICC does not have jurisdiction over this crime. Nonetheless, it is arguable that - in so
far as the ICTY has identified the crime [i.e. attacks on civilians committed with the
primary purpose of spreading terror amongst the civilian population] as an international
crime in customary international law, - states would have jurisdiction to try perpetrators
of the crime on the basis of universal jurisdiction before their own courts so long as the
threshold requirement of “armed conflict” was satisfied.

However the ICC does not have jurisdiction over this crime, since international
tribunals only have jurisdiction over crimes expressly mentioned in the relevant statute
(i.e. treaty) establishing the tribunal.

B. Crimes against Humanity

The relevant parts of Article 7 of the ICC Statute provides that

1. For the purpose of this Statute, "crime against humanity" means any of the following acts
when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement;
(d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation
of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape,
sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity; (h) Persecution against any identifiable group or

15
See para 19 of the Trial Chamber’s judgment.
16
Galic (IT-98-29-A) 30 November 2006 paras 98-90.

8
 collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3,
or other grounds that are universally recognized as impermissible under international law, in
connection with any act referred to in this paragraph or any crime within the jurisdiction of the
Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane
acts of a similar character intentionally causing great suffering, or serious injury to body or to
mental or physical health.

2. For the purpose of paragraph 1:

(a) "Attack directed against any civilian population" means a course of conduct
involving the multiple commission of acts referred to in paragraph 1 against any civilian
population, pursuant to or in furtherance of a State or organizational policy to commit such
attack;

(i) Elements of the offence of Crime Against Humanity

There are a number of elements to the offence of “crime against humanity”.

Actus Reus

(i) Any one of the acts listed in Article 7.1(a)- K [i.e. murder, extermination etc]
committed
(ii) as part of
(iii) a widespread or systematic
(iv) attack directed against any civilian population, where ‘attack directed
against any civilian population’ means a
1. course of conduct involving the multiple commission of actions
referred to in Article 7.1 against any civilian population;
2. Pursuant to or in furtherance of state or organizational policy to
commit such an attack

Mens Rea

(v) with knowledge of the attack referred to (iii) and (iv) of which it forms part.

ACTUS REUS

Any one of the acts listed in Article 7.1(a)- K, as part of a

“Widespread or systematic attack”

A disjunctive test – i.e. widespread OR systematic.

“Widespread”

In Tadić - ICTY - “widespread” refers to the “large-scale nature of the attack and the
number of victims”.

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Cryer et al explain that “No numerical limit has been set: the issue must be decided on
the facts 17 though in Blaškić the ICTY said there would need to be a “substantial number
of victims”

and that

‘widespread’ typically refers to the cumulative effect of numerous inhumane acts, or

the singular effect of an inhumane act of extraordinary magnitude.”

“Systematic”

Involves some kind of notion of repetition, or pattern, or the existence of some kind of
organisation/policy/plan underlying the attacks. Cryer et al point out that earlier
decisions set a rather high threshold in this respect. In Blaškić the ICTY identified 4
factors which might be required:

A plan or objective
Large-scale or continuous commission of linked crimes
Significant resources and
The implication of high-level authorities

In Nahimana the ICTR referred to “the organized nature of acts of violence and the
improbability of their random occurrence”.

“As part of” a widespread and systematic attack

Cryer et al point out that

“An ‘attack’ need not involve the use of armed force, and can encompass mistreatment of the
civilian population. It refers to the broader course of conduct, involving prohibited acts, of
which the acts of the accused form part”

attack directed” against the any civilian population

The requirement that the “attack” of which an accused person’s action forms part, “be
directed” against the any civilian population [as defined by Article 7.2] is explained by
Cryer at al in the following terms

“Crime, even on a “widespread” basis – for example a crime wave, or anarchy following a
natural disaster – does not of itself constitute a crime against humanity. The random acts of
individuals are not sufficient: some thread of connection between acts is needed so they can
accurately be described collectively as an attack directed against a civilian population.”

It is for this reason that Article 7.2 of the ICC statute requires that the “attack directed
against any civilian population” means a

“1. course of conduct involving the multiple commission of actions referred to in

Article 7.1 against any civilian population;

17
Cryer et al An Introduction to International Criminal Law and Procedure second edition(Cambridge University
Press, 2010 ) p 236

10
 2. Pursuant to or in furtherance of state or organizational policy to commit such an
attack.”

The reference to the fact that the attack be pursuant to or in furtherance of state or
organizational policy to commit such an attack” seeks to provide that thread since it
means that there must be a governmental or organizational policy that, Cryer et al point
out “directs, instigates or encourages” the crimes.

MENS REA

The “accused must be aware of the broader context in which his actions occur” –
namely the attack directed against a civilian population. Cryer et al explain that

“It is the context of the widespread or systematic attack against a civilian population that makes
an act a crime against humanity, and hence knowledge of this context is necessary in order to
make one culpable for a crime against humanity as opposed to an ordinary crime.”

SUMMARY

Cryer et al explain

“The rigorous requirement relating to the attack must be distinguished from the requirements
relating to the accused. With respect to the individual accused, what is required is that the
accused committed a prohibited act, that act objectively falls within the broader attack, and that
the accused was aware of this broader context

Only the attack, not the acts of the individual accused, must be widespread or systematic. A
single act by the accused may constitute a crime against humanity if it forms part of the attack
[or]The act of the accused may also constitute the attack, if it is of great magnitude, for example
the use of a biological weapon against a civilian population.

The accused need not be an architect of the attack, need not be involved in the formation of any
policy, and need not be affiliated with any state organization nor even share the ideological
goals of the attack….[nor need the acts of the accused] be of the same type as other acts
committed during]…”

(ii) Terrorism as a crime against humanity

Terrorist acts committed by individuals often involve murder or one of the actions listed
in article 7.1.a-k.

The actions of terrorist groups [considered collectively and/or individually may meet
either the

“widespread [cumulative effect of numerous inhumane acts, or the singular effect of an

inhumane act of extraordinary magnitude.”]

or systematic [A plan or objective, Large-scale or continuous commission of linked crimes,

Significant resources]

and be part of a course of conduct of multiple commission of such acts directed against
civilians in pursuance of an organizational policy.

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However, having said that it is by no means certain that all acts of terrorism would in
all circumstances necessarily fulfil the requirements of Article 7 of the ICC. Thus, for
instance, Banchik “The International Criminal Court and Terrorism” (2003) 3 Peace,
Conflict and Development pp 13-14. , argues

even if all attacks are carried out by the same group, it is possible that intervals in which they
occurred are much too broad to reveal a regular pattern. Most troubling, however, is that one
needs several attacks in order to prove such a regular pattern. It follows that the first few attacks
could not be tried as crimes against humanity, unless they meet the widespread criteria…….
Because a single attack causing a large number of victims could be described as widespread,
the September 11 attacks surely can be viewed as a crime against humanity. But what about
smaller terrorist attacks? Does the bombing in Saudi Arabia in 1995 constitute a crime against
humanity? “Only” seven people were killed then. Or what about the bombing of the U.S.S. Cole
in October 2000, when seventeen were killed and thirty-nine injured? Both these latter cases
clearly do not meet the high threshold test requiring a substantial number of victims and
therefore, could not be tried as crimes against humanity.

C. Genocide

Article 6 of the ICC Statute Provides

For the purpose of this Statute, "genocide" means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Terrorist acts may encompass many of the same elements that the ICC Rome Statute
proscribes under its definition of genocide, such as killing or causing serious bodily or
mental harm to members of a specific group of people.

However, the terrorist commits such atrocities to bring fear to that population, and to
gain attention to his cause. Generally, terrorists do not commit such acts with the intent
to destroy the target group, and this ulterior/specific intent is required to fit the
definition of genocide under the Rome Statute/customary international law. Moreover,
the sporadic nature of terrorism may mean that there would not be a sufficient number
of acts committed against any one group for such acts to be classified as genocide.

Having said that it has been argued that Islamic State [Daesh] has engaged in Genocide
in Iraq and Syria, and indeed in 2016 the House of Commons passed a resultion
declaring “

“That this House believes that Christians, Yazidis, and other ethnic and religious minorities in Iraq and
Syria are suffering genocide at the hands of Daesh; and calls on the Government to make an immediate
referral to the UN Security Council [SC] with a view to conferring jurisdiction upon the International
Criminal Court [ICC] so that perpetrators can be brought to justice”18

D. Some conclusions on “terrorism” and “international crimes”

18
See further R. Cryer “ International Criminal Law and Daesh” OUPBlog 21 April 2016
<http://blog.oup.com/2016/04/international-criminal-law-and-daesh/>

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1. These crimes are confined to specific situations

(a) War Crimes – there must be an international or non-international conflict

(b) Crimes against Humanity/Genocide involve questions of scale and
magnitude, systemisation, and organisation which might not catch every
manifestation of modern “international terrorism”

2. These crimes have not been designed to catch global terrorism in the form in
which it may more routinely manifest itself. [See below on “terrorism” as a
transnational crime”]

IV. “International crimes” and “Transnational Crimes” Distinguished

A. Transnational crimes

Treaties dealing with crimes such as drug-crime, human trafficking and smuggling in
human beings, international organized crime, and various manifestations of “terrorism”
such as hijacking, hostage-taking, bombing. The relevant treaties generally:

(a) require states to criminalize the acts covered and make them “punishable by
appropriate penalties which take into account the grave nature of those offences”;

(b) require states to establish jurisdiction over offences committed in certain contexts
and permit states to establish jurisdiction over offence committed in other contexts;

(c) require states to take alleged offenders into custody and make a preliminary factual
inquiry;

(d) require states to notify, either through the U.N. Secretary-General or directly,
certain potentially interested states of the actions taken;

(e) require states to submit the case for prosecution before their own courts if the state
does not extradite the alleged offender;

(f) require states to deem the offence to be an “extraditable offence” for the purpose of
any extradition treaty between states parties; and

(g) require states to assist each other in connection with criminal proceedings regarding
the offences covered.[“mutual legal assistance”]

(f) These treaties only apply to such behaviour when the behaviour in question
has actual or potential transborder effects.

B. Differences between “transnational crimes” and “international crimes”

(i) Transnational Crimes are not freestanding crimes in international law

(ii) Transnational crimes are not crimes of “universal jurisdiction”

For example, Article 6 of the International Convention for the Suppression of

Terrorist Bombings [1997] provides

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 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over
the offences set forth in [this Convention] when:
a. The offence is committed in the territory of that State; or
b. The offence is committed on board a vessel flying the flag of that State or an aircraft
which is registered under the laws of that State at the time the offence is committed;
or
c. The offence is committed by a national of that State.
2. A State Party may also establish its jurisdiction over any such offence when:
a. The offence is committed against a national of that State; or
b. The offence is committed against a State or government facility of that State abroad,
including an embassy or other diplomatic or consular premises of that State; or
c. The offence is committed by a stateless person who has his or her habitual residence
in the territory of that State; or
d. The offence is committed in an attempt to compel that State to do or abstain from doing
any act; or
e. The offence is committed on board an aircraft which is operated by the Government
of that State………

4. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction
over the offences set forth in article 2 in cases where the alleged offender is present in its territory
and it does not extradite that person to any of the States Parties which have established their
jurisdiction in accordance with paragraph 1 or 2 of the present article.

(iii) Transnational crimes require a transnational nexus

(iv) The ICC does not have jurisdiction over Transnational Crimes

V. Terrorism as a Transnational Crime

The relevant treaties are

Aviation

*Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on
14 September 1963.

*Convention for the Suppression of Unlawful Seizure of Aircraft, signed at the Hague on 16
December 1970; Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation, signed at Montreal on 23 September 1971.
*and Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International
Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation, signed at Montreal on 24 February 1988

Maritime
*Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done
at Rome on 10 March 1988.
* Protocol for the *Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on
the Continental Shelf, done at Rome on 10 March 1988.
* Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation [not yet in force]
* Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed
Platforms located on the Continental Shelf, 1988 [not yet in force]

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 Internationally protected persons
*Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on
14 December 1973.

Plastic Explosives
*Convention on the Marking of Plastic Explosives for the Purpose of Detection, signed at Montreal
on 1 March 1991.

Nuclear
*Convention on the Physical Protection of Nuclear Material, signed at Vienna on 3 March 1980.
*International Convention for the Suppression of Acts of Nuclear Terrorism, signed at New York
April 2005. [not yet in force]

Bombings
*International Convention for the Suppression of Terrorist Bombings, adopted by the General
Assembly of the United Nations on 15 December 1997.

Financing
*International Convention for the Suppression of the Financing of Terrorism, adopted by the
General Assembly of the United Nations on 9 December 1999.

In addition to these international treaties at UN/World level there is also a body of

transnational Regional Counter Terrorist Conventions/Measures which effectively
create obligations as between the parties to these Conventions in respect to particular
transnational manifestations of “terrorism”.

Europe
EU
The EU Framework decision on Terrorism [not a treaty]

Council of Europe
*European Convention on the Suppression of Terrorism Strasbourg January 1977 and Protocol
Strasbourg May 2003.
*Council of Europe Convention on the Prevention of Terrorism Warsaw May 2005.
*Council of Europe Convention on laundering, search, seizure and confiscation of the proceeds
from crime and on the financing of terrorism Warsaw May 2005.

Commonwealth of Independent States

*Treaty on Cooperation among States Members of the Commonwealth of Independent States in
Combating Terrorism Minsk June 1999.

Northern and Southern America [Organisation of American States]

*Organisation of American States Convention to Prevent and Punish Acts of Terrorism Taking the
Form of Crimes Against Persons and Related Extortion that are of International Significance
Washington, D.C. February 1971.
*Inter-American Convention Against Terrorism Bridgetown, March 2002

Africa
*Organisation of African Union Convention on the Prevention and Combating of Terrorism Algiers
on 14 July 1999 and
*the Protocol to that Convention, Addis Ababa July 2004. [as of 30 August 2005 the Protocol was
not yet in force]

South Asia
*SAARC Regional Convention on Suppression of Terrorism Kathmandu November 1987

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 *and the Additional Protocol to the Convention, Islamabad, January 2004 [As of 30 August 2005
not yet in force].
* Association of Southeast Asian Nations (ASEAN) Convention on Counter Terrorism (2007)

Other

*Arab Convention on the Suppression of Terrorism Cairo April 1998

*Convention of the Organization of the Islamic Conference on Combating International Terrorism
Ouagadougou on 1 July 1999

Most of these conventions and protocols require states to:

(a) criminalize the acts covered and make them “punishable by appropriate penalties
which take into account the grave nature of those offences”

(b) establish jurisdiction over offences committed in certain contexts and permit states
to establish jurisdiction over offence committed in other contexts;

(c) take alleged offenders into custody and make a preliminary factual inquiry;

(d) notify, either through the U.N. Secretary-General or directly, certain potentially
interested states of the actions taken

(e) submit the case for prosecution if the state does not extradite the alleged offender;

(f) deem the offence to be an “extraditable offence” for the purpose of any extradition
treaty between states parties; and

(g) assist each other in connection with criminal proceedings regarding the offences
covered.

As noted above, these conventions are confined to specific manifestation of terrorism

which have a transnational nexus, thus they provide generally

“This Convention shall not apply where the offence is committed within a single State,
the alleged offender is a national of that State and is present in the territory of that State
and no other State has a basis under [this Convention] to exercise [primary] jurisdiction
over the offence.”

These conventions do not, for the most part,19 contain a generic definition of terrorism
or comprehensively cover everything which might be treated as “terrorism” in the
domestic law of many jurisdictions. Rather they reflect a sectoral /topical/functional
approach in so far as they concentrate upon specific manifestations of terrorism. Thus
they deal with Hijacking, hostage taking etc on a sector-by-sector basis as it were.

19
The Financing convention, , and the 2005 Maritime Protocols, do include a mini definition of terrorism
in a generic sense, in so far as they refer to a “terrorist” motive of sorts, though they do not use the term
“terrorism” directly in connection with these generic formulations. See Art. 2. 1. b of the Financing
Convention; and Art. 5 of the 2005 Protocol to Convention for the Suppression of Unlawful Acts Against
Maritime Navigation. However these definitions are limited in so far as they are confined to applying within
the sectoral context in which the convention applies e.g. acts against ships etc. So they are not really “generic”
definitions in the sense that they are not comprehensive. Nor are they the same in the formulation employed.

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As a consequence it has been argued that this transnational counter-terrorist criminal
framework is both over and under inclusive in its coverage.

Under-inclusiveness,

While these international conventions and protocols are clearly of tremendous importance,
addressing terrorism in this topical fashion leaves obvious gaps in coverage. For example,
terrorist acts committed using biological, chemical or nuclear weapons, which are the subject
of another draft convention, currently are not covered by any multilateral terrorism convention.
The three conventions addressing airplane hijacking cover acts committed “in flight” and
destroying the aircraft, but do not appear to cover destruction and deaths caused on the ground.
Terrorist acts in civilian locations other than airports—for instance, a shopping mall or
restaurant—are not addressed, except to the extent a “protected person” happens to be present,
or the acts are covered by the convention on terrorist bombings. Addressing terrorism topically
is necessarily a responsive approach in that it responds to the types of terrorist methods currently
in use or used in the past, but fails to address new methods of terrorism. 20

And Scharf notes that

Attacks against diplomats and public officials are prohibited. Attacks or acts of sabotage by
means other than explosives against a passenger train or bus, or a water supply electric power
plant, are not covered; while similar attacks against an airplane or an ocean liner would be. Most
forms of cyber-terrorism are not covered by the anti-terrorism conventions. 21

As regards over-inclusiveness, in the case of most of the conventions, the offences

falling within their scope are not defined so that the prohibited acts must be carried out
with a ‘terrorist’ motive. Thus, for instance, Hijacking or Hostage taking for pure
financial gain as an act of “mere” “ordinary” criminality is caught.

One solution to the problems of over and under inclusiveness would be to agree a
Comprehensive Counter-Terrorism Convention which would include a comprehensive
“generic” definition of terrorism. A draft Comprehensive Convention is in existence;
however it has not been agreed, principally because of differences of opinion over how
to define “terrorism”.

VI. “Terrorism” per se as an “international crime”

A. Introduction

“Terrorism” per se as an international crime involves the notion that “terrorism,

[howsoever that may be defined] is or should be a discrete, freestanding “international
crime”.

There are two aspects to the issue of “terrorism per se” as an “international crime”.

20
Jennifer Trahan – “Terrorism Conventions: Existing Gaps and Different Approaches” (2002) 8 New Eng.
J. In’l & Comp. Law 215
21
Michael P. Scharf, “Defining Terrorism As the Peace Time Equivalent of War Crimes: A Case of Too
Much Convergence Between International Humanitarian Law and International Criminal Law?” (2001) 7
ILSA J. Int’l & Comp. L.. 391, at 393

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 First there is the question of whether “terrorism per se” is, as a matter of
customary international law, already an “”international crime”. There is some
debate about this.

Second, leaving aside that debate, there is the question of whether it ought to be
an “international crime”.

B. Is “terrorism” per se an International Crime?

We have seen above that customary international law can provide an authoritative basis
for treating certain behaviour as an international crime. We have also seen within that
context that the central question is whether that “practice” as evidence of “legally
binding custom” provides a basis for so concluding in relation to such behaviour.

i. Professor/Judge Cassese’s arguments

Some commentators have argued that practice as evidence of legally binding custom
indicates that “terrorism” is already an “international crime”.

Cassese’s Academic writings

In his textbook International Criminal Law and in other essays and articles Cassese
argues that the combination of the transnational conventions plus certain key UN
General Assembly resolutions, indicate/mean the “International Terrorism” per se is a
discrete international crime in customary international law.

The general ‘agreed’ notion of “terrorism” he argues, is comprised of three main

elements

“(i) the acts must constitute a criminal offence under most national systems (for
example assault, murder, kidnapping, hostage-taking, extortion, bombing, torture,
arson etc; (ii) they must be aimed at spreading terror (that is, fear and intimidation) by
means of violent action or threat thereof directed against a State, the public, or
particular groups of persons; (iii) they must be politically, religiously, or otherwise
ideologically motivated.”

However he further elaborates that not all acts fitting this criteria amount to
“international crimes”. Rather

“Terrorist acts, amount to international crimes when,

first they are not limited in their effects to one state solely, but transcend
national boundaries as far as the persons implicated, the means employed, and
the violence involved are concerned; and

secondly, they are carried out with the support or toleration, or the
acquiescence of the state where the terrorist organization is located or of a
foreign state.

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 This element of state promotion or state toleration or even state acquiescence due to
inability to eradicate the terrorist organisation seems crucial for elevating the offence
to the rank of international crime. This is so because it is at this stage that terrorism
stops being a criminal activity against which states can fight be bilateral or multilateral
cop-operation, to become (and this is third element) a phenomenon of concern for the
whole international community and a threat to peace.”

Judgement of the Special Tribunal for Lebanon

In February 2011 in a judgement of the Appeals Chamber of the United Nations (‘UN’)
Special Tribunal for Lebanon [STL], presided over by Professor Cassese, the Appeals
Chamber purported to identify an extant customary international crime of terrorism,
and applied it in interpreting domestic terrorism offences under Lebanese law. The
peace-time customary international-law crime of terrorism which the Appeals Chamber
identified was said to consist of three elements:

(i) the perpetration of a criminal act (such as murder, kidnapping, hostage-

taking,
arson, and so on), or threatening such an act;
(ii) the intent to spread fear among the population (which would generally entail
the creation of public danger) or directly or
indirectly coerce a national or international authority to take some action, or to
refrain
from taking it;
(iii) when the act involves a transnational element

ii. Controversy over Professor Cassese’s views

There are a range of different commentators who have not accepted Professor Cassese’s
arguments as set out in his judicial writings, as well as the reasoning now found in the
judgement of the STL.

It is arguable that the general agreement which Cassese says exists, does not in fact
exist.
- He refuses to treat disagreement over the status of actions of national liberal
movements as a disagreement over the definition of terrorism
- he is not right when he says that there is general agreement about the other
elements of the definition of terrorism. Some argue that for the purpose of an
international crime, “terrorism” must solely be confined to attacks on civilians,
and some international agreements reflect this view. There is significant
variation as to prohibited acts which might be contained in any definitions of
terrorism, as well as the approach to be adopted in defining the elements of the
ulterior intent (i.e. terrorist motive). We shall consider these specific debates in
due course.

US Court of Appeals for the Second Circuit in U.S. v. Yousef 327 F.3d 56 C.A.2
(N.Y.),2003 where the Court offered the view [at pp106-108]

Unlike those offenses supporting universal jurisdiction under customary international law--that is,
piracy, war crimes, and crimes against humanity--that now have fairly precise definitions and that have

19
achieved universal condemnation, "terrorism" is a term as loosely deployed as it is powerfully charged.
…

We regrettably are no closer now than eighteen years ago to an international consensus on the
definition of terrorism or even its proscription; the mere existence of the phrase "state-sponsored
terrorism" proves the absence of agreement on basic terms among a large number of States that
terrorism violates public international law. Moreover, there continues to be strenuous
disagreement among States about what actions do or do not constitute terrorism, nor have we
shaken ourselves free of the cliché that "one man's terrorist is another man's freedom fighter."
We thus conclude …that terrorism--unlike piracy, war crimes, and crimes against humanity--
does not provide a basis for universal jurisdiction.

Saul criticism of the STL decision

..the Decision is astounding because its conclusion has scant empirical grounding in state
practice, its reasoning is poorly substantiated, and it ultimately plays fast and loose with custom
formation.

The Decision …is an example of a judiciary transforming itself into a global legislature, creating
entirely new law and exceeding the accepted bounds of the judicial function. In a fit of disguised
legislative activism, it invented a new and post facto international criminal liability for
terrorism, resulting in the radical expansion of liability under Lebanese criminal law as it was
understood in 2005.

Along the way, the Appeals Chamber subjugated the human rights of potential defendants
(particularly freedom from retroactive criminal punishment) to its own moralizing conception
of what the law ought to be. The Appeals Chamber may well be right that the conduct it
identified should be an international crime. It may indeed be abhorrent that a wider net of
terrorist conspirators in Lebanon could otherwise get away with – on a positivist technicality –
assassinating a former Lebanese prime minister or killing many others. One might even argue
on grounds of natural law, channelling Nuremberg, that no competent person in Lebanon in
2005 could seriously have believed that only terrorist bombing was a terrorist crime, but using
a machine gun or knife was not. Even so, the lex ferenda should not be misrepresented by judges
as the lex lata, however compelling the moral case for punishing the wicked, and even where
the positive law then in force turns out to be deficient.

C. Should there be a freestanding “international crime” of” terrorism”?

This throws-up a range of questions as to how terrorism as an international crime would

be defined, and how to give effect to the desire to create a freestanding international
crime of “terrorism”?

As regards the former, it might be possible to adopt the definition set out by Professor
Cassese in his academic writings However,

- this fails to address differences of opinion about national liberation movements,

as well as other elements of difference about the definition of terrorism. –
- his definition of “terrorism” in his academic writings [as distinct from the
judgment of the STL] as an international crime narrows the scope of any
prospective offence in international criminal law to circumstances where there
is state promotion or state tolerance of the activity.

Therefore it might be suggested that the approach adopted by the STL to defining
terrorism as an international should be preferred to the one adopted by Professor
Cassesse in his academic writings since even the latter was adopted it would not go to

20
the heart of “international terrorism” as presently understood as providing a problem,
and whose existence has sparked much of the current debate about whether “terrorism”
per se should be an international crime.

Giving effect to a desire that terrorism per se be treated as an international crime seems
also inevitably to require that the crime, howsoever it be defined, be brought within the
jurisdiction of an international tribunal, such as the ICC. [See Kittichaisaree’s definition
above]. When the Rome Statute was in negotiation there was a body of opinion that
the crimes set out in the transnational criminal treaties, including those concerned with
manifestations of terrorism, be brought within the jurisdiction of that Court. As
indicated in a body of reading at the end of this handout, there are a range of arguments
made by writers supporting the inclusion of “terrorism” within the ICC’s jurisdiction.

Whilst those making such arguments make many persuasive points, [see reading] this
is a view which is not accepted by all as being sensible, particularly bearing in mind
factors apparent from the operation of the ICC since its establishment. Professor
Schabas argues

“As the judicial activities of the International Criminal Court begin, it becomes increasingly
evident that it will only be able to deal with a very limited number of cases. The Court has
already laid great emphasis on the gravity threshold in Article 17(1)(d), in effect insisting that
its precious resources are inadequate to address even the three core crimes..when cases are not
being prosecuted when because States are unwilling or unable. If it can handle only a handful
of the most serious cases of the most serious crimes committed by leaders and organisers, it
seems entirely unrealistic to think that new criminal paradigms, such as..terrorism, could be
added to the jurisdiction. States should appreciate that, even if [terrorism was] included in the
subject matter jurisdiction, there would almost certainly be no prosecutions because they would
fail the gravity test, when set alongside the egregious crimes of genocide, crimes against
humanity and war crimes.”22

So here he alludes to two points really. The first relates to the limited resources of the
Court, and the gravity threshold. Article 17(1)(d) of the Statute provides that

the Court shall determine that a case is inadmissible where: (d) The case is not of sufficient
gravity to justify further action by the Court.

So even if behaviour comes within the subject matter jurisdiction of the Court, [i.e. one
of the crimes within its jurisdiction], the particular circumstances of the case must meet
a gravity threshold. The Court’s prosecutor has already refused to initiate formal
investigative proceedings in respect of alleged war crimes committed by state parties
participating in the invasion of Iraq. He explained that the information available did
support a reasonable basis for an estimated 4 to 12 victims of wilful killing and a limited
number of victims of inhuman treatment, totalling in all less than 20 persons. However
he went on to explain that this on its own is not sufficient for the initiation of an
investigation by the International Criminal Court, since the Statute requires
consideration of admissibility before the Court, in light of the gravity of the crimes. In
examining this criterion explained

" The Office considers various factors in assessing gravity. A key consideration is the number
of victims of particularly serious crimes, such as wilful killing or rape. The number of potential
victims of crimes within the jurisdiction of the Court in this situation – 4 to 12 victims of wilful

22
William A. Schabas An Introduction to the International Criminal Court 3rd Edition (CUP, 2007) p 90

21
 killing and a limited number of victims of inhuman treatment – was of a different order than the
number of victims found in other situations under investigation or analysis by the Office. It is
worth bearing in mind that the [Office of The Prosecutor] is currently investigating three
situations involving long-running conflicts in Northern Uganda, the Democratic Republic of
Congo and Darfur. Each of the three situations under investigation involves thousands of wilful
killings as well as intentional and large-scale sexual violence and abductions. Collectively, they
have resulted in the displacement of more than 5 million people. Other situations under analysis
also feature hundreds or thousands of such crimes. Taking into account all the considerations,
the situation did not appear to meet the required threshold of the Statute."23

So the resources and gravity point is likely to support the analysis of the difficulties
noted by Professor Schabas.

However there is another substantive point which emerges here, since it seems pretty
obvious on the basis of this analysis that any act of terrorism which does not itself fulfil
the requirements of a crime against humanity, which is already within the Court’s
jurisdiction, should not in any event be regarded as an “international crime”. In addition
to being a principled approach this has the merit of not upsetting present understandings
of the nature, gravity and scale of offences which constitute international crimes. Such
an approach would also avoid the difficult process of having to agree a definition of
terrorism for the purposes of defining a freestanding crime of “terrorism” for
international criminal law purposes.

Professor Schabas also points to another matter which it is arguable is important to

consider in this regard. This focuses on the reasons why it is necessary to establish an
international tribunal such as the ICC to deal with particular forms of behaviour. He
argues

“The strongest argument for excluding such crimes [i.e. terrorism] is that they do not suffer
from a problem of impunity in a manner similar to that of [the core crimes]. Genocide, crimes
against humanity, war crimes…all become international crimes not so much because of their
scale of horror as because they were perpetrated by the governments themselves, or with their
complicity. For that reason they went unpunished. The courts of the jurisdiction that would
ordinarily prosecute would not assume such duties because they were part of the State that was
itself involved in the criminal acts. The same problem does not generally exist in relation to
terrorism…where the international dimension is essentially one of inter-State co-operation
rather than the reluctance of a State to prosecute. To the extent that there is impunity
for…terrorism, it is failure of law enforcement and mutual legal assistance, rather than the lack
of an appropriate national jurisdiction that is willing and able to prosecute.”24

This argument does not simply make a case for not bringing “terrorism” per se within
the jurisdiction of the ICC. It also serves to support the view that in so far as
international effort in terms of legal frameworks are necessary, this lies in the co-
ordination of “transnational” efforts of the sort addressed by the transnational counter-
terrorism treaty regime, discussed above. We have seen that there are criticisms
of/problems with that system of itself, and there is the overriding difficulty of agreeing
a Comprehensive Convention and in particular agreeing a definition of terrorism to act
as the basis for such a Convention. However it follows from Schabas’ view that that is

23
Luis Moreno-Ocampo Letter: Public Reply by the ICC Prosecutor outlining his conclusions in respect to allegations of
war crimes during the invasion of Iraq in March 20039 February 2006 < http://www.icc-
cpi.int/library/organs/otp/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf>
24
Schabas, n 21.

22
where effort or attention should focussed, rather than on whether “terrorism” per se
should be brought within the subject matter jurisdiction of the ICC. The argument is
that the ICC is empowered to deal with manifestations of “terrorism” which come
within the definition of “core crimes”, and it is arguable that the “transnational regime”
should be seen as the basis for dealing with manifestations of terrorism which do not.
© Adrian Hunt 2019

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