IMO

INTERNATIONAL MARITIME LAW INSTITUTE Established under the auspices of the International Maritime Organization

A specialized agency of the United Nations

The Convention For The Suppression Of Unlawful Acts Against The Safety Of Maritime Navigation As A Key Element Of

International Law’s Framework Against Terrorism

A Dissertation submitted in partial fulfillment of the requirements for the award of the Degree of Master of Laws (LL.M.) at the IMO International

Maritime Law Institute

Submitted By: Lesther Antonio Ortega Lemus

(Guatemala)

Supervisor: Mr. Ruben Maceda

Academic Year 2007/2008

I dedicate this work to my mother Mayling Patricia

Table of Contents

Page

Introduction: International Peace and Security Breached ii Chapter I: International Law as an Answer to Stop Terrorism 1 1.1 First attempts 2 1.2 The “new wave”: aerial hijacking and hostage-taking 2 1.3 Nuclear material, explosives and bombings 5 1.4 Latest Trends 6 1.5 The global approach revisited 7 1.6 The UN Resolutions 8 1.6.1 The UNGA 8 1.6.2 The UNSC 9 Chapter II: The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 10

2.1 Historical background of SUA 1988 11 2.2 CSUA.1988 and PSUA.1988 features 15 2.3 Background to SUA 2005 19 2.4 SUA 2005 instruments features 24 Chapter III: International Framework against Terrorism and SUA: working seamlessly? 29

3.1 Elements to consider 30 3.2 The Offences 31 3.3 Jurisdiction 33 3.4 Cooperation and prosecution measures 34 3.5 Extradition, aut dedere aut iudicare and the prohibition to use the political offence exception 34

Conclusions 36 Annex 1 39 Bibliography 41

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Introduction International Peace and Security Breached Homo homini lupus…1 bellum omnium contra omnes…2

These two famous phrases described the nature of humankind towards itself, and can be applied perfectly to describe the horrors of war.

Conscious of the aforesaid, due to many historical and sociological factors, a movement away from the latter and towards a State of perpetual peace has always been present. It’s been described as a superior State of humanity by many celebrated authors like, inter alia, Kant, Saint Simon, and Rousseau. Thus, history witnessed how humanity struggled in wars, with very limited periods of relative peace among nations (Pax Romana, etc.). The arrival of the 20th century brought the most serious efforts until then to limit the recourse of war and hostilities among civilized nations. Those efforts were channeled through international law. An example of this argument can be found in the First and Second Peace Conferences held at The Hague, Netherlands in 1899 and 1907 and their most significant contribution: the setting up of the Permanent Court of Arbitration (PCA). However, the treaties talk about “…obviating, as far as possible, recourse to force in the relations between States…”3, not as the Kellogg-Briand Pact intended for “condemn recourse to war… …renunciation of war as an instrument of national policy”4, and certainly not proscription of it, as the Charter of the United Nations (UNCh) does: “All Members shall refrain in their international relations from the threat or use of force…”5 Jus ad Bellum and Jus in Bellum were also developed as legal concepts and codified by the Geneva Conventions6

, giving birth to the modern conventional International Humanitarian Law.

Today, the recourse to force among nations is regulated by the UNCh, especially by Articles 1,2, 24 and Chapter VII as a whole, giving global-wide

1 Plautus. Asinaria. 2 Hobbes, Thomas. De Cive. Ch.1_Sec.2. 3 http://www.pca-cpa.org/upload/files/1899ENG.pdf Convention for the Pacific Settlement of International Disputes. Done at The Hague 29 July 1899, entered into force 4 September 1900. 4 http://www.yale.edu/lawweb/avalon/imt/kbpact.htm Done in Paris 27 August 1928, proclaimed into force 24 July 1929. 5 http://www.un.org/aboutun/charter/index.html Charter of the United Nations. Concluded in San Francisco 26 June 1945, entered into force 24 October 1945. 6 Full texts of the 4 original Conventions, and the subsequent protocols available at: http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions

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powers to the United Nations Security Council (UNSC hereon), while preserving the individual right of self-defense in Article 51. Considering all the aforesaid, it is clear that violence among States is forbidden in principle and regulated if happens. Several problems arise though: what happens if a State is attacked, not by another State, but by individuals or groups of individuals? To whom might the victim direct its self-defense reaction? What happens if an International Organization, through its representatives, is the victim of the attacks? What if it’s only a threat of an attack? What if the threat or attack is used to compel the above to do or abstain to do something? While traditionally International Law recognized as its sole subjects States, and more recently International Organizations and other groups (only indirectly regarding individuals), international relations, peace and security have been affected seriously by other actors, regardless of not being recognized in this plain. Being conscious that the scope of the scenarios proposed at supra is wide, this paper will focus only on one: terrorism. The term still resists an internationally-accepted definition and has wandered in the political arena ambiguously qualified: “one man’s terrorist is another man’s freedom-fighter”7; therefore the following will be used as mere guidance for the reader, being “the threat or use of violence with the intent of causing fear in a target group, in order to achieve political objectives.”8 UNSC gave itself a “working definition”9 which characterizes terrorism as “…criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of an as defined in the international conventions and protocols relating to terrorism…”10

Even when the UNCh in its Chapter VII does not define what it means with “threats to the peace”, and at one time was considered to be limited to threats of military force emanating from a State11, it is now clear (some still doubt if it should apply to all acts of terrorism12

7 Jenkins, Brian Defense Against Terrorism Political Science Quarterly, Vol.101 No.5 (1986)P.779

) that international terrorism

8 Burchill, Richard et al International Conflict and Security Law. P.133-134 9 Saul, Ben Defining Terrorism in International Law P.9 10 UN Document S/RES/1566 (2004) 11 Greenwood, Christopher International Law and the ‘War against Terrorism’ International Affairs, Vol.78 No.2 (2002) P.306 12 Saul. Op.Cit. P.47

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acts are equated to threats to the peace, as shown in many of UNSC resolutions related to terrorism13

As a breach of international peace and security with growing effects, appropriate answers must be available in order to suppress it. In our civilized time, that answer should only be searched through international law.

.

Thus, attention will be placed on international community’s fight against terrorism through international law. Notwithstanding that an international general regime is until today absent, an atomized one has flourished since 1960, crystallized by the adoption of several international instruments that address specific facets of international terrorism, including that held at sea or against navigation. Although constructed in a sector-approach way, collectively they constitute the only international framework against terrorism that the international community can count on14

. Acting outside that framework would undermine the bases of international law and international relations.

Ultimately, the hypothesis that the author will try to demonstrate is that in the light of that fight against terrorism, the International Maritime Organization (IMO hereon), by means of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and the Protocol for the Suppression of Unlawful Acts against the Safety of fixed Platforms Located on the Continental Shelf, and their 2005 Protocols, namely the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and the Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf has collaborated to tighten that framework and expand it, making the above instruments fundamental pieces of the antiterrorism network of offences, jurisdictions and prosecution mechanisms.

13 Inter alia, Resolutions 748 (1992), 883 (1993), 1044 (1996), 1189 (1998), 1267, 1269 and 1333(1999), 1368, 1373 and 1377 (2001), 1390 (2002),1455 (2003), 1526 and 1535 (2004), 1611 1617 1618 1624 and 1636 (2005) 14 The full list of international instruments against terrorism available at http://untreaty.un.org/English/Terrorism.asp

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1. International Law as an answer to stop terrorism

1.1 First attempts

Terrorism is not a new phenomenon. Neglecting references to Sicarrii Zealots, Al-Assasins and Guy Fawkes15, it could be said that it first appeared in the 19th century with attempted and accomplished acts against heads of state and their families16 and with anarchists acts which were regarded as “the enemy of all Governments”17 The attempted assassination of Napoleon III in 1856 gave way for the first exclusion of an act of its kind as a political offence: the so-called “Belgian clause”. Thus, it was through the construction of bilateral or multilateral extradition treaties that the first acts of terrorism were addressed.18

The assassination of King Alexander of Yugoslavia and Louis Barthou, Minister of the French Republic at Marseilles on 9 October 1934 provoked the reaction of the Council of the League of Nations which passes a resolution stating that “the rules of international law concerning the repression of terrorist activity are not at present sufficiently precise to guarantee efficiently international co-operation in this matter” and decided for the preparation of a draft convention on the repression of conspiracies or crimes committed with a political and terrorist purpose.

19 The latter became the Convention of 1937 for the Prevention and Punishment of Terrorism, which was signed by 24 States but received one ratification only (India) and never came into force20

. It was the first incursion of coordinated international law against terrorism.

1.2 The “new wave”: aerial hijacking and hostage-taking

Contemporary terrorism21 is a consequence of political conditions and the technological advance experimented in the late 1960’s: guerrilla wars sponsored by the superpowers as an indirect confrontation, Mao’s doctrine on maximizing the perception of violence regardless of the actual physical damage inflicted22

15

, World War II concept of total war rendering every human aspect a legitimate target, mixed with modern technology, telecommunications and unlimited transport possibilities.

http://www.terrorism-research.com/evolution/ 16 McWhinney, Edward The September 11 Terrorist Attacks and the Invasion of Iraq in contemporary International Law P.19 17 Dugard, John International Terrorism: Problems of Definition International Affairs Vol.50 No.1 (1974) P.68 18 Ibid. P.67 19 Franck, Thomas & Bert Lockwood Jr. Preliminary Thoughts towards an International Convention on Terrorism AJIL Vol.68 No.1 (1974) P.69 20 Dugard. Loc cit. 21 For a comprehensive chronologic summary of terrorist attacks see http://www.state.gov/r/pa/ho/pubs/fs/5902.htm 22 Jenkins Loc cit P.776

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The next wave of terrorism appeared in the form of aerial hijacking as means for hostage-taking to compel for political gain or seek for financial ransoms. Terrorists took advantage of the lack of adequate security precautions in advance or during flights, its mobility and of the lapse where the plane is isolated in air.

Statistics show that between 1961 and 1972 there were 343 world-wide reports of successful and unsuccessful hijackings. The trends gathered also showed that although it began as “aerial piracy” (with regards of the “private-ends” requirement) it rapidly turned into an efficient political tool for guerrillas and terrorist groups.23

Advantageous was the fact that the air industry has been a global and sufficiently regulated one, with efficient of cooperation among the stakeholders and organizations (ICAO and IATA); ultimately, these conditions permitted to adopt a pragmatic, functional solution.

Three international instruments were drafted and entered into force in a decade-span to tackle the different aspects of aerial terrorism24

. Later on the last one was supplemented by a Protocol:

With the adoption of the fourth instrument, almost all of the possible scenarios of aerial terrorism were covered by international law solutions, providing for the three elements that the author considers essential in the antiterrorist framework: a defined scope of application, acts classified as offences, bases for exercising jurisdiction and mechanisms for prosecution.

23 Evans, Alona Aircraft Hijacking: What is being done AJIL Vol.67 No.4 (1973) P.641-671 24 Dugard. Loc cit. P.71

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But the incursion of terrorism into airspace brought more than one problem: aware of the world-wide mobility that jet travelling provides terror could be taken to and strike at any continent25

Following the above, hostage-taking came to the scene. Directed to high-profiled persons or to any vulnerable collectivity, hostage-taking had examples as Munich, Bangkok and Khartoum. Embassies and diplomats were among the preferred targets for terrorists. This gave way to the adoption of two instruments under the auspices of the UN:

.

Of relevance, and predating the above, the OAS also produced an instrument aimed at the terrorization of diplomats, which was actually taken into account by the ILC when preparing the draft convention of 1973. Although of a regional origin, by its Article 9 the Convention grants participation to “any other State that is a member of the United Nations or any of its specialized agencies, or any State that is a party to the Statute of the International Court of Justice, or any other State that may be invited by the General Assembly of the Organization of American States to sign it”26

ending up being a global-reach instrument:

25 Jenkins. Loc cit 26 http://www.oas.org/juridico/english/treaties/a-49.html

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1.3 Nuclear material, explosives and bombings

Meanwhile the instruments listed until know were direct reaction to concrete attacks, acknowledging the great risk to proceed in the same way with other possible types of terrorism, the international community decided not to take chances with nuclear-related acts, and concluded an instrument related to the protection of nuclear facilities, and materials27

:

Acting again on a reactive manner, after the 1985 Achille Lauro incident, the two SUA instruments, dealing with maritime terrorism, were concluded under the auspices of IMO. For being the central point of this paper, the next chapter will discuss their origin, features and evolution through the 2005 Protocols:

Until this point in time, the international regime against aerial hijacking was working fine. The incident of the 1988 Pan Am 103 flight brought to light that terrorism had to be addressed not only regarding the possible targets but also by its means.

27 http://www.iaea.org/Publications/Documents/Conventions/cppnm.html

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Explosives being the most relevant then and the weapon of choice for executing the aforesaid attack, two new instruments were devised in order to tackle this issue:

The latter has been used in recent dates when drafting new instruments related to terrorism28

.

1.4 Latest trends

The international community managed to cover the aforesaid areas in a span of almost 40 years, since the new wave of terrorism made its entrance to the international plane.

Although already treated by a tenth of international instruments, terrorism is far from ending. This was learnt the hard way with the 11 September 2001 events, together with the recent USS Cole, Limburg, Kenya and Nairobi Embassies attacks.

It has been obvious that from the continuance of the attacks regardless of the number of conventions available, still some doors have not been closed for terrorists.

Recognizing that terrorists needed substantial economical means in order to deliver their every-time-more-sophisticated attacks, to buy weapons, pay for travel and life undercover, training and intelligence, the next convention to be concluded aimed at the financing of terrorism:

28 IMO Work Undertaken by the IMO in an Effort to Prevent and Combat Terrorism Fifth Special Meeting on the Counter-terrorism Committee with International, Regional and Subregional Organizations, 29-31 October 2007, Kenya

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Following a draft document presented by the Russian Federation, after 7 years of debates, a new convention regarding nuclear terrorism has been agreed. Far from overlapping with the previous convention related to the protection of nuclear materials, this new-comer aims to suppress and prosecute terrorist attacks using nuclear devises or material as means of violence and terror:

If finally ratified by sufficient States (22), the latter will become the 13th anti-terrorism international instrument of the, until-now, sectoral approach29

framework.

1.5 The global approach revisited

As pointed out in herein, the only concluded international instrument addressing terrorism globally (at least nominally) has been the 1937 attempt, which as underscored at supra, failed.

The world has been tempted a few more times to take such approach.

One of those examples lays on the ILC 1954 Draft Code of Offences against Peace and Security of Mankind (Part I) where terrorism was expressly linked to the concept of aggression. The great ambiguity over the latter finally provoked the whole project to be postponed. A new attempt was made between 1982 and 199630

Another example of a global-reach attempt is the Draft Convention on the Prevention and Punishment of International Terrorism

which lead to the establishment of the International Criminal Court (ICC).

31, presented by the USA delegation in 1972 to the 6th Committee of the UNGA that, although didn’t adopted it, gave birth to Resolution 3034 (XXVII)32

Later on, but this time on a regional basis, the USA American Bar Association produced the so-called “Model American Convention on the Prevention and Punishment of Serious Forms of Violence” which was modeled after the European

of 18 December 1972 which established an Ad Hoc Committee on International Terrorism of 35 to study the problem and the views of the different observations that State-delegations produced therein.

29 http://www.un.org/News/briefings/docs/2005/Legal_Counsel_Briefing_050412.doc.htm 30 http://untreaty.un.org/ilc/guide/7_4.htm 31 UN Document A/C.6/L.850 32 UN Document A/RES/3034(XXVII)

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Convention on the Suppression of Terrorism33 of 1977. The OAS would not adopt another instrument regarding terrorism until the 2002 Inter-American Convention against Terrorism34

The latest of those global efforts, the so-called Comprehensive Convention on International Terrorism (CCIT), which draft was first submitted by India in 1996

.

35 to the 6th Committee, and was later on circulated as an informal revised draft36. It has been under discussion since 2000 at the Ad Hoc Committee created under UNGA Resolution 51/210 of 17 December 199637

.

1.6 The UN Resolutions

When referring to the relevance of the UN resolutions, both UNGA and UNSC, the author must first remind the reader that the majority of the above quoted antiterrorist international instruments are product of either the UNGA or one of the UN Agencies or the IAEA, latter which works under the UN system umbrella. Therefore the importance of the resolutions, declarations, drafts, working papers and other documents that have been circulated or emanated from any of its organs, agencies, related organizations, committees, departments, bureaus, etc, cannot be disregarded at all. Nevertheless, the author has to leave them out of this treatment due to spatial limits and methodology, therefore only a very superficial remark will be done in this regard.

1.6.1 UNGA The UNGA produced some early resolutions regarding terrorism. Those are Resolutions 3034 (XXVII) (quoted at supra), 31/102 of 15 December 197638, 32/147 of 16 December 197739, 34/145 of 17 December 197940, 36/10941 of 10 December 1981, 38/130 of 19 December 198342

33 Signed 27 January 1977, entered into force 4 August 1978

. One of great relevance for this paper is Resolution 40/61 of 9 December 1985, which was produced in the wake of the Achille Lauro incident.

34 http://www.oas.org/juridico/english/treaties/a-66.html Adopted 3 June 2002 Bridgetown, Barbados, entered into force 10 July 2003. 35 UN Document A/C.6/51/6 of 11 November 1996 36 UN Document A/C.6/55/1 of 28 August 2000 37 UN Document A/RES/51/210 available at http://daccessdds.un.org/doc/UNDOC/GEN/N97/761/65/PDF/ N9776165.pdf?OpenElement 38 UN Document A/RES/31/102 http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/302/85/IMG/NR030285.pdf? OpenElement 39 UN Document A/RES/32/147 40 UN Document A/RES/34/145 41 UN Document A/RES/36/109 42 UN Document A/RES/38/130

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Notwithstanding, the most important resolution with regards of terrorism, for being a landmark in the matter is UNGA Resolution 49/60 of 9 December 199443

Later on another declaration was made in order to supplement the aforesaid, by means of annexing it to UNGA Resolution 51/210 of 17 December 1996

, especially for the Annex therein: Declaration on Measures to Eliminate International Terrorism.

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By means of such declarations, some basic principles of general acceptance have been laid to build upon them. As it has been argued above, the ideological problem of terrorism casts a shadow over the inhuman atrocities that are committed, regardless of any possible justification given.

. An Ad Hoc Committee was established under the latter and its work has extended until today. To it the drafting of the latest antiterrorist conventions is owed. The discussion of the CCIT is currently being held by it as well.

1.6.2 UNSC

Of historical importance is Resolution 579(1985) for its relationship with SUA’s birth, and 1269 (1999) since the latter established the basic items that the UNSC resolutions would set forth in future resolutions.

The two crucial resolutions that the UNSC has issued regarding terrorism have been Resolutions 1368 (2001) and 1373 (2001), both in the wake of the 9/11 terrorist attacks.

Through them, the UNSC changed its language towards terrorism as a threat to international peace and security and imposed serious and extensive obligations on States regarding terrorism, its financing, movement of terrorists, etc., as well as the reiteration of becoming part of the universal instruments against terrorism.

43 UN Document A/RES/49/60 44 UN Document A/RES/51/210

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2. The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation

2.1. Historical Background of SUA 1988

It is well established that the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation45 (CSUA.1988 hereon) and the Protocol for the Suppression of Unlawful Acts against the Safety of fixed Platforms Located on the Continental Shelf46 (PSUA.1988 hereon), both adopted by the diplomatic conference held in Rome 10 March 1988, were born as the aftermath of the Achille Lauro incident, which took place on 7 October 1985, when the Italian-flagged cruise ship was taken over by members of Palestine Liberation Front (PLF), that boarded at the port of Genoa, posing as tourists, and held as hostages both crewmembers and passengers, threatening to kill them unless Israel liberated 50 Palestinian prisoners; if a rescue mission was attempted, they said, the ship would’ve been exploded. The seizers later on killed Leon Klinghoffer, a handicapped-Jew citizen of the USA47

Different authors and politicians debated on whether the event could be legally classified as a piracy or not

.

48. Those in favor of such qualification held that any act of unauthorized violence at the high seas was piracy49, regardless of the absence of the animus furandi50. Those against argued that for an act to be legally labeled as piracy it must comply with the elements established either in international customary or conventional law, and as far as those two stood in those days, it was required that the attack came from a second vessel or aircraft (the so-called ‘two-vessels’ requirement), that the attack was held in the high seas (the high seas requirement), and that private ends were the fuel of the attack (the ‘private-ends’ requirement). The Achille Lauro incident neither held the ‘two-vessels’ requirement nor the ‘private-ends’ one. Even the high seas requirement could be contested to some extent51

By that time, the world was facing a revival of piracy, which not so long before, was considered as an old-fashioned and eradicated criminal activity. Nevertheless, it was still held as the clearest example in customary international law of a crime over which universal jurisdiction was generally accepted, being the pirate hostis humani generis.

.

45 United Nations Treaty Series Vol.1678 P.222 46 Ibid. P.304 47 Halberstam, Malvina. Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety. AJIL Vol.82 Apr.1988 P.269 48 Ibid. P.270 49 Jesus, José Luis. Protection of Foreign Ships against Piracy and Terrorism at Sea: Legal Aspects. IJMCL Vol.18 Sept.2003 P.378 50 Ibid. P.377 51 It seems that it was never clear enough if the events started in Egyptian territorial waters or not, but certainly, the ship was later on held in the high seas. Cfr. Halberstam. Op.Cit. P.269 footnote 1

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International law regarding piracy was contained both in conventional law: in the Geneva 1958 Convention on the High Seas52 (GCHS.1958 hereon) and the adopted-but-not-yet-in-force United Nations Convention on the Law of the Sea of 198253 (UNCLOS hereon) as well as in customary law54

(1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

. Since the latter was described as not unequivocal and UNCLOS was not yet in force, the main tools to tackle events of piracy were the provisions of the former, contained in Articles 14-22. Article 15 envisaged piratical acts as:

(a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(3) Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or subparagraph 2 of this article.

It must be stated that UNCLOS regime against piracy was absorbed in toto from the GCHS.1958 articles and therefore under its provisions nothing at all would’ve been different. The image at infra explains the way that Article 15.1 of GCHS.1958 and Article 101 of UNCLOS characterize piracy:

52 United Nations Treaty Series Vol.450 P.11 Done at Geneva 29 April 1958. Entered into force on 30 September 1962. 53 United Nations document A/Conf.62/122. Concluded in Jamaica 10 December 1982. Entered into force on 16 November 1994. 54 See Harvard Research in International Law, Comment to the Draft Convention on Piracy, 26 AJIL Supp. 750 (1932)

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There were no more generally-accepted conventional rules at international level that could be used, and although the events of the Achille Lauro were typified by some states as piracy55

, the insufficiency of the norms was self-evident.

In this respect, the UN Security Council President made a statement on the 2628th meeting on 9 October 1985 in which, welcoming the news of the release of the hostages of the Achille Lauro “…resolutely condemn this unjustifiable and criminal hijacking as well as other acts of terrorism, including hostage-taking”. The text that has been highlighted shows that the act was qualified by the UN Security Council (UNSC hereon) as an act of terrorism, as a criminal hijacking but not as piracy.

At IMO’s 14th General Assembly, the issue of putting together measures to prevent and suppress unlawful acts against the safety of ships, their crews and passengers was raised by the USA delegation and it was included as item 10 (b) in the agenda. Resolution A.584 (14) was adopted under the title “Measures to prevent unlawful acts which threaten the safety of ships and the security of their passengers and crew”56

, which called upon Governments, port authorities and administrations, ship owners, operators, masters and crews to review and strengthen port and onboard security.

The issue was directed to the Maritime Safety Committee (MSC hereon) which was mandated to develop detailed and practical technical measures to be employed to ensure the security of all onboard ships, taking into account the work of the International Civil Aviation Organization (ICAO hereon). Finally, the resolution mandated the issuance of a circular that contained “information on the measures developed by the Committee to Governments, organizations concerned and interested parties for their consideration and adoption”57

.

By 9 December 1985, in its 108th plenary meeting, UN General Assembly (UNGA hereon)issued Resolution 40/61 Measures to prevent international terrorism which endangers or takes innocent human lives or jeopardizes fundamental freedoms and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes, in

55 The USA characterized the event as piracy. The Justice Department obtained arrest warrants with charges of hostage-taking, conspiracy and ‘piracy on the high seas’. See Halberstam, Op. Cit. P.270 56 Resolution A.584 (14) November 20 1985. International Maritime Organization, Assembly Resolutions and Other Decisions; Fourteenth Session 11-22 November 1985. P. 152 57 Ibid.

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which requested “…the International Maritime Organization to study the problem of terrorism aboard or against ships with a view to make recommendations on appropriate measures”.

The UNSC took a step further and issued its Resolution 579 (1985) on 18 December 1985, which urged “…the further development of international cooperation among States in devising and adopting effective measures which are in accordance with the rules of international law to facilitate the prevention, prosecution and punishment of all acts of hostage-taking and abduction as manifestations of international terrorism”.

Italy, the flag-state of the Achille Lauro called the attention of the international community on what it considered a lacuna in the legal framework against terrorism, and pointed to the necessity of adopting an international instrument on maritime terrorism58

.

Under the initiative of its legal advisor, Professor Ferrari Bravo, and joined by Austria and Egypt, proposed a draft convention on maritime terrorism to IMO, modeled on existing conventions developed for the security of civil aviation: the Hague Convention for the Suppression of Unlawful Seizure of Aircraft and the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, as well as the more general United Nations International Convention Against the Taking of Hostages.

The issue was addressed by IMO’s Council on November 1986 and agreed unanimously that it required urgent attention by IMO, and for the purpose of acceleration, it referred the latter to an Ad Hoc Preparatory Committee open to all States, instead of sending it to the Legal Committee, with the “…mandate to prepare, on a priority basis, a Draft Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation” using as basis the draft presented by Italy, Austria and Egypt59

.

The aforesaid Preparatory Committee met twice, first in London, in March 1987, and later in Rome in May of the same year. After the latter, the Committee agreed on a

58 Jesus. Op. Cit. P.388 59 Halberstam. Op. Cit. P.292

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final draft, leaving some issues of importance for a diplomatic conference to agree upon them. The referred diplomatic conference was decided by IMO’s Council at its 58th session in June 1987 and endorsed by the Assembly at its 15th regular session by Resolution A.633 (15) of 20 November 198760

.

The Government of Italy forwarded an invitation to host the said conference and once approved by the Council and endorsed by the Assembly, the Conference was held at the Headquarters of the Food and Agriculture Organization of the UN (FAO), in Rome, from 1 March to 10 March 1988.

The conference was attended by delegates of 76 States, observers of six more States and observers of different States, Organizations and NGO’s. The conference elected as its president Professor Ferrari Bravo, head of Italy’s delegation61

The conference adopted the text of both CSUA.1988 and PSUA.1988 at 10 March 1988. Both instruments came into force by 1 March 1992.

.

2.2. CSUA.1988 and PSUA.1988 features

It must be stated that both instruments are not constructed to be preventive in their nature62, in the sense that their provisions aim to ensure the prosecution and punishment of the perpetrators of any of the offences listed in Article 3, by applying the principle of aut dedere aut iudicare63

.

Scope of application:

According to Article 4.1 of CSUA.1988, the Convention is applicable, when one (or more) of the offences listed in Article 3 takes place, if the ship (ship being defined as any type of vessel, including hovering crafts and submersibles, as long as it’s not permanently attached to the sea-bed, it’s not a warship, a State-operated vessel in non-commercial uses, or it’s been withdrawn from navigation or laid up) is navigating or scheduled to navigate into, through or from waters beyond the outer limits (or lateral limits) of the territorial sea of a single State. Thus, it applies to all ships that

60 International Maritime Organization. SUA Convention 2006 Edition: Final Act of the International Conference on the Suppression of Unlawful Acts against the Safety of Maritime Navigation. P.1-5 61 Ibid. 62 Inter alia Halberstam. Op.Cit. P.292 63 Jesus. Op.Cit. P.391

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navigate or scheduled to navigate into, through or from the territorial sea of a State, but not to cabotage operations taking place within the waters of a single State, making “the territorial scope of the SUA as broad as possible.”64

Jurisdictional Bases:

According to Article 6.1, jurisdiction to prosecute (and previously claim extradition) an alleged offender may be established by State-parties when the offence is committed:

a) Against or on board a ship flying its flag; b) In its territory; or c) By one of its nationals.

By means of Article 4.2 if the alleged offender is found in the territory of any State-party, jurisdiction may also be established.

Article 6.2 provides for three other bases on which States can assert jurisdiction, notifying the Secretary-General of IMO65

a) By a stateless person habitually residing in its territory;

, being those when the offence is committed:

b) A national of that State is seized, threatened, injured or killed; and c) As an attempt to compel it to do or abstain from doing any act.

Thus, the Convention takes into account the five accepted bases for establishing jurisdiction in international criminal law: territorial, national, universal, passive personality and protective jurisdiction.

Offences:

CSUA.1988 establishes in its Article 3 the list of acts considered as offences by it. The obligation of State-parties is, according to Article 5, to make those offences appropriately punishable, taking into account the gravity of their nature. This has been held as one of the main differences between its regime and that one of piracy, “[w]hereas piracy is considered a truly international crime”66

64 Burchill, Richard et al. International Conflict and Security Law. P.279

, CSUA.1988 regime is a municipal-law-based one. The following graphic attempts to show the reader all the possible configurations of offences as considered by the aforesaid instrument:

65 According to para.11 LEG84/6, only Canada made that notification, and Egypt made a reservation on whole Article 6.2 66 Wolfrum, Rüdiger. Fighting Terrorism at Sea: Options and Limitations under International Law. P.10

17

b)

a shipits cargo

a device that shipa substance its cargo

f)

InjuriesKills

b)c)e)

Attepts to commit any of the offences set forth in paragraph 1

to commit any of the offeces set forth in paragraph I, subparagraphs

2

1 Any person commits an offence if that person:

Any person also commits an offence if that person:

physical

juridical

abets the commission of any of the offences set forth in paragraph 1 perpetrated by any personis otherwise an accomplice of a person who commits such an offence

Unl

awfu

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nd in

tent

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lly

a)

g)

c)

if that threat is likely to endanger the safe

navigation of the ship in question

threatens

with

without a condition

as is provided for under national law

aimed at compelling a personto do

refrain from doing

any act

d)

e)

Communicates information which he knows to be false thereby endangering the safe navigation of a ship

the offences set forth in subparagraphs a) to f)

ofin connection withany person the commissionattempted commission

seriously interfere with the operation of

destroysseriously damage navigational

facilities

If any such act is likely to endanger the safe navigation

of a ship

performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship

which is likely to cause damage to

destroy

causes damage todestroys

Placescauses to be placed

on a ship by any means whatsoever

threat thereofexercises control over

a shipSeizes

other form of intimidation

by force

which is likely to endanger the safe navigation of that ship

likely to endangerendangers the safe navigation of that

shipwhich

18

Another salient feature, as stated already, is that the Convention rests on the principle of aut dedere aut iudicare. For that purpose, once adopted, it affects all prior accepted extradition treaties making the list of offences extraditable under their provisions, obliges parties to include them in future extradition treaties and even works as an extradition treaty among State parties when there is none67. This feature was not unknown to the international community with regards to terrorism acts, being sometimes even qualified as “a general principle of international criminal law”68

In terms of cooperation, Article 12 states that the parties must afford each other the greatest measure of assistance in connection with criminal proceedings brought in respect of the list of offences of Article 3, while Article 13 provides for the prevention of the use of the territories of the parties to prepare or commit offences either in their own territory or outside them, as well as the exchange of information between them.

and found in all other instruments akin.

PSUA.1988 works on the basis of CSUA.1988 provisions making them applicable, mutatis mutandis, to fixed platforms, which it defines in Article 1.3 as “…an artificial island, installation or structure permanently attached to the sea-bed for the purpose of exploration or exploitation of resources or for other economic purposes.” The list of offences is set forth in Article 2, and the jurisdictional bases are in Article 3.

67 Article 11.3 CSUA.1988 68 Jesus. Op. Cit. P.392

b)

a devicea substance

InjuriesKills

Unl

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performs an act of violence against a person on board a fixed platform if that act is likely to endanger its safety

a fixed platform which is likely to endanger its safety

Seizes

other form of intimidation

by forcea)

e)

c)

d)

the offences set forth in subparagraphs a) to d)

ofin connection withany personthe commission

1 Any person commits an offence if that person:

attempted commission

which is likely to endanger its safety

destroy it

causes damage todestroys

Placescauses to be placed

on a fixed platform

by any means whatsoever

threat thereofexercises control over

a fixed platform

Any person also commits an offence if that person:

a)

b)c)

c)

abets the commission of any such offences perpetrated by any personis otherwise an accomplice of a person who commits such an offence

Attempts to commit any of the offences set forth in paragraph 1

2

b)

personto do any act if that threat is likely to

endanger the safety of the fixed platformwithout juridical refrain from doing

to commit any of the offeces set forth in paragraph I, th

reat

ens with

a condition

as is provided for under

national law

aimed at compelling a

physical

19

2.3. Background to SUA 2005: 11 September 2001 changed the way that the world envisaged the threat of terrorism. In the wake of those terrorist attacks against the USA, both the UNGA (Resolution 56/1 of 12 September 200169) and the UNSC (Resolution 1368 (2001) of 12 September 200170

) addressed the issue, condemning the attacks and calling for global cooperation for the suppression of terrorism.

Of special interest is UNSC Resolution 1368 (2001) due to the qualification that it makes of those acts as international terrorism, and states that all acts of that kind are “a threat to international peace and security.”71 In paragraph 4 it calls on the international community for “full implementation of the relevant international anti-terrorist conventions…”72

Those resolutions were followed up by UNSC Resolution 1373 (2001) of 28 September 2001

73 and UNGA Resolution 56/88 of 12 December 200174. The former is of utmost importance because it represents the first example of legislation by UNSC75

By then CSUA.1988 had been in force for almost a decade. Although since the time before its adoption many shortcomings were pointed out, a movement for its revision was not attempted. The events referred gave a new impetus on the purpose of expanding and strengthening the SUA instruments.

. With regards to terrorism, the Resolution imposed as obligations on all State-members of the UN to, inter alia, “take the necessary steps to prevent the commission of terrorist acts”, ensure that anyone involved in terrorist acts is brought to justice, prevent the movement of terrorists, etc. It also calls upon all States to become parties and implement the relevant antiterrorist instruments being those defined in para.6 of UNGA Resolution 51/210 of 17 December 1996, which includes both CSUA.1988 and PSUA.1988.

Having in mind the scenes of hijacked commercial aircrafts being used as weapons of mass destruction, it was only natural for the maritime sector to foresee a future event where the weapons to use could be ships.

69 http://daccessdds.un.org/doc/UNDOC/GEN/N01/475/00/PDF/N0147500.pdf?OpenElement UN Document A/RES/56/1 70 http://daccessdds.un.org/doc/UNDOC/GEN/N01/533/82/PDF/N0153382.pdf?OpenElement UN Document S/RES/1368 (2001) 71 Ibid. 72 Ibid. 73 http://daccessdds.un.org/doc/UNDOC/GEN/N01/557/43/PDF/N0155743.pdf?OpenElement UN Document S/RES/1373 (2001) 74 http://daccessdds.un.org/doc/UNDOC/GEN/N01/478/87/PDF/N0147887.pdf?OpenElement UN Document A/RES/56/88 75 See Talmon, Stefan The Security Council as World Legislature. AJIL Vol.99 Jan.2005 P.175-193

20

The utilization of a vessel as a weapon was not included in CSUA.1988, and only on a limited extent could deal with such a scenario, by way of the offence stated in Article 3.1 (c), as a willful and unlawful destruction of a ship, or by way of subparagraph (e), as destruction or damage maritime navigational facilities (e.g. thinking of a ship being rammed into a harbor facility). Nevertheless, those solutions would not cover the gravity of the crime adequately76

Taking the above into consideration, the Secretary-General of the IMO (SGIMO hereon) submitted a draft resolution to the 21st extraordinary session of the Council

.

77

In the view of the SGIMO the draft “addressed issues that had required a prompt response from IMO… IMO was determined to work with others to ensure that shipping did not become a target of terrorism”

, which was approved unanimously for submission to the 22nd Assembly for adoption. The paper was introduced as item 8 of the Agenda and was presented on 20 November 2001.

78 The “maritime community had a contribution to make o the world’s efforts to eradicate terrorism.”79

After receiving unanimous support by the Assembly, the document was referred to the Technical Committee and its result was Assembly Resolution A.924 (22) Review of Measures and Procedures to Prevent Acts of Terrorism which Threaten the Security of Passengers and Crews and the Safety of Ships

80

The Resolution makes it clear that it is founded on resolutions 56/1 of UNGA and resolutions 1368 and 1373 of UNSC. It also recalls Resolution A.584 and the circular adopted as its corollary (MSC/Circ.443). Finally it states the call that UNGA Resolution 55/7 of 30 October 2000

.

81

The operative paragraphs requested the MSC, the Legal Committee (LC hereon) and the Facilitation Committee (FAL hereon) to review on a high priority basis the security-related instruments of IMO

made upon all States to become parties to the SUA.1988 instruments.

82

76 Wolfrum. Op.Cit. P.6

with the view to consider new measures to prevent and suppress terrorism against ships and thus, ascertain whether there was a need to update those instruments or to adopt new measures, taking into account the work of other transport-related international organizations. Finally, it calls upon governments to accede to the SUA.1988 instruments.

77 IMO Document LEG 83/14 23 October 2001 78 IMO Assembly – 22nd Session: Summary Record of the 4th Plenary Meeting. Doc A22/SR.4 79 Ibid 80 Resolution A.924 (22) November 20 2001. International Maritime Organization, Assembly Resolutions and Other Decisions; Twenty-second Session 19-30 November 2001. P. 198-199 81 http://daccessdds.un.org/doc/UNDOC/GEN/N00/559/81/PDF/N0055981.pdf?OpenElement UN Document A/RES/55/7 82 All the maritime-security-related instruments are listed in Annex 2 of the IMO Document C 88/10 5 March 2002

21

Leaving aside the other consequences that that resolution had (i.e. SOLAS amendments, ISPS Code, etc), It triggered the revision of SUA.1988 instruments, which was placed by the LC on its agenda for the 2002 as item 683

Some examples of desired changes to CSUA.1988 were stated by SGIMO, being those

.

84

:

The USA delegation made its own review on what it identified as possible inclusions or changes (IMO Doc. LEG 84/6/1) having in mind what is shown below:

83 IMO Document LEG 84/6/1 Para.3 22 March 2002 84 IMO Document LEG 84/6 para.13 of 13 March 2002

Enlarging the scope of

application to cover domestic

cabotage

Making obligatory not to usethe political offence

exception in order to deny extradition requests

Revision and expansion of the offences in the

light of 9/11 events

Review of SUA keeping in mind the objective set forth in Resolution A.924 •Prevent and suppress

terrorism against ships•Improve security aboard and

ashore•Reduce the risk to crews,

passengers and port personnel

Noting UN's recongnition that terrorism now operates globally•Antiterrorism efforts should

expand from fragmented domestic or regional approaches into a global approach

Using the most recently adopted multilateral antiterrorism conventions as models•UN Convention for the

Suppression of Terrorist Bombings•UN Convention for the

Suppression of the Financing of Terrorism

22

AAAccccccooorrrdddiiinnnggg tttooo LLLEEEGGG 84/6/1

It used the UN International Convention for the Suppression of Terrorist Bombings85 (UNCSTB hereon) and the UN International Convention for the Suppression of the Financing of Terrorism (UNCSFT hereon) to draw a methodology for the review86

Some of the amendments to be considered are reflected in the graphics below:

.

It also proposed updating the SUA.1988 instruments to tackle other security-related issues:

85 UN Treaty Series Vol.2149 UN Document A/RES/52/164. Adopted in New York 15 December 1997 Entered into force 23 May 2001 86 LEG 84/6/1 Para.4-5

New SUA offences as Proposed

by USA

Release of harmful

substances (chemical,

biological & radiological)

Transportation of supplies and

other cargo that supports SUA

Offences

Transportation of items related

to WMD and means of delivery

Transportation of suspected

offenders under SUA or other

Terrorism Conventions

Using a Ship or its cargo as a

weapon against another vessel,

structure, facility or object

Act of an organizer or

director of any of the offences

Updates to reflect evolving multilateral anti-terrorist treaty concepts

Temporary transfer of persons in custody for purpose of

assistance under SUA

The list of offences will not be regarded as

political offences with regards of

extradition requests

23

By its 84th session the LC considered the possible amendments to SUA.1988 instruments, and agreed to task a formal Correspondence Group (SUACG hereon), under the USA leadership, to review those and report to the LC by the next session87. Annexed to LEG 84/1488

In the LC 85th session, USA submitted document LEG 85/4 which reported to the former the intersessional work of the SUACG. Inter alia, new provisions regarding boarding procedures were incorporated using articles 7-9 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime and the Agreement Concerning Co-operation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area, the political offence exception prohibition (derived from Article 14 of UNCSFT) and the “transference” provisions (ibid. Article 16). The broad list of new offences already included the non-proliferation and WMD provisions; the accomplice liability was clarified, etc.

the LC gave the SUACG terms of reference for the procedure of revising SUA.1988 instruments.

The work of revision continued, and further progress of such discussions can be found in the relevant documents of LC sessions 8689, 8790, 8891, 8992 and 9093. The last two sessions were reported by the LC Intersessional Working Group on the Revision of the SUA Convention and Protocol, which held two sessions, the first one on 12-16 July 2004 and, the second on 31 January to 4 February 2005. In the second, the work of reviewing was done and required, as planned, to call a diplomatic conference to be held in October 2005 to consider for adoption the draft SUA 2005 protocols94

The Conference was convened at IMO Headquarters on 10-14 October 2005. 74 State Parties to CSUA.1988 participated and 70 from PSUA.1988, plus 24 State-observers, representatives and observers from different international organizations and non-governmental organizations

.

95

Both instruments were adopted by the International Conference on the Revision of the SUA Treaties on 14 October 2005 and still have not entered into force.

. It elected as President Ambassador Giancarlo Aragona, head of Italy’s delegation.

87 IMO Document LEG85/4 17 August 2002 88 IMO Document LEG84/14 Annex 2 “Terms of Reference for the Correspondence Group Regarding the 1988 SUA Convention and the 1988 SUA Protocol” 7 May 2002 89 Inter alia LEG86/5 & LEG86/5/1 90 Inter alia LEG87/5 & LEG87/5/1 91 Inter alia LEG88/3 92 Inter alia LEG89/4 93 Inter alia LEG90/4 94 Supra Annex Para.2 95 Full list of participants at LEG/CONF.15/23 14 October 2005

24

2.4. SUA 2005 instruments features:

The Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation96 (PCSUA.05 hereon) and the Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf97

Trying not to repeat that what was not modified, the main features of PCSUA.05 are described below. The most relevant elements to take into consideration are the broadening of the offences, by introduction of new categories and lists (Articles 3, 3bis, ter and quater), criminal liability of corporate entities (Article 5bis), the boarding procedure (Article 8bis), the prohibition of using the political motive exception regarding prosecution and extradition of the offences, and the Annex.

(PPSUA.05 hereon) amend and widen their predecessors’ provisions. The consolidated versions of the instruments are referred as 2005 SUA Convention (CSUA.05 hereon) and 2005 SUA Fixed Platforms Protocol (PSUA.05 hereon).

Scope of application and Jurisdictional Bases:

Although when the review of SUA began, some showed interest to modify the scope of application (which was not the case with the jurisdictional criteria), these two items were not changed.

Offences:

The central debate and efforts to review SUA.1988 instruments were always focused on strengthening the list of offences. It was decided to take advantage of this opportunity and to tackle through it other security-related issues such as the non-proliferation of WMD, the usage of harmful substances, the transport of persons and devices in connection of any of the offences.

The offences set forth in article 3 basically remained unchanged and because of their nature are regarded as “terrorist offences”. Article 3bis incorporates, in Para.1 (a) more “terrorist offences”, whilst Para.1 (b) incorporates the so-called “transport offences” together with Article 3ter (which is complemented by the Annex). The so-called “inchoate offences” although present in CSUA.1988, were strengthen at Article 3quater.

The three graphics at infra show the categories of offences.

96 IMO Document LEG/CONF. 15/21 97 IMO Document, LEG/CONF. 15/22

25

b)

that shipits cargo

f)

Any person commits an offence within the meaning of this convention if that person:

performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship

Communicates information which that person knows to be false thereby endangering the safe navigation of a ship

which is likely to endanger the safe navigation of that ship

navigational facilities

If any such act is likely to endanger the safe navigation of a ship

Unl

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nd in

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a ship

a shipits cargo

on a ship

e)

destroysseriously damage

seriously interfere with the operation of

destroywhich

endangers the safe navigation of that shipcauses to be placed cause damage to likely to endanger

a devicea substance

c)destroys

causes damage to

d)Places by any

means which is likely to

1

a)Seizes by force

exercises control overthreat thereof

other form of intimidation

b)c)e)

Any person commits an offence if that person:

thre

aten

s to doany act if that threat is likely to

endanger the safe navigation of the ship

in question

to commit any of the offeces set forth in paragraph 1,

subparagraphswithout juridical refrain from

doing

2

witha

condition

as is provided for under

national law

aimed at compelling

a

physical

pers

on

against deathon

damage

oil deathLNG

damage

i)ii)iii)

uses

any in a manner

thati)

causes

likely to cause

serious injury

discharges from

iv) threatenswith

ii)

disc

harg

es

from

a sh

ip

serious injuryother

hazardous

death

serious injury

damage

iii)uses a ship in a

manner that causes

to commit an offence set forth in subparagraph a)

that

explosive

radioactive material

BCN weapon

Causes

likely to cause

without a co

nditi

on

as provided under national law

in su

ch a

a ship

quantity

concentration

government to doabstain from

doing

a)by its nature

context

is to

compel a international organization

when the purpose of

the act

Any person unlawfully and intentionally:

any act

intimidate a population

26

deathgovernment

damage

ii)

use production

equipmentmaterialssoftware

delivery

b)

unla

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ansp

orts

on

boar

d a

ship

:

Any person commits an offence within the meaning of this Convention if that person:

explosive

radioactive material

Any BCN weapon, knowing it to be a BCN weapon as defined in Article 1

iv) any

that significantly contributes

to the

designof a BCN weaponmanufacture

related technology

with the intention that it will be used for such purpose

a nuclear explosive activity

or in any other nuclear activity not under safeguards of

IAEA

knowing that it is intended to be used in

or prepared for

any

source materialspecial fissionale material

equipment

material

of special fissionable

material

iii)especially designed

the processing

as provided under national

law

serious injury

intimidating a population

compel a

to doany act

international organization

abstain from doing

for t

he

purp

ose

of

with

a co

nditi

on

without

knowing that it is intended to be used t

cause

in a threat to cause

i)

to evade criminal

prosecution

another person

Tran

spor

ts

unlawfully and intentionally

3ter Any person commits an offence within the meaning of this Convention if that person:

on board a ship

knowing that person

committed an offence

Article3, 3bis or 3 quater

under any treaty listed in the annex

intending to assist that

person

injureskills

Any person commits an offence within the meaning of this Convention if that person:

in the knowledge of the intention of the group to commit an offence set forth in article 3, 3 bis or 3ter

the criminal activitythe criminal purpose

of the group

where such activity or purpose involves the commission of an offence set forth in article 3,

3bis or 3 ter

unlawfully and intentionally

attempts to commit

Participates as an accomplice

organizesdirects others

Contributesto the commission of one or more offences set forth in Article 3,

3bis, 3ter or subparagraphs a) or b) of this article by a

with the aim of

i)

ii)

group of persons

acting with a common purpose

intentionally and either

d)to commit an of the offences set forth in Article 3, 3bis,

3ter or subparagraphs a) or b) of this article

e)

any of the offences set forth in Article 3.1, 3bis.1 i), ii) or iii), or subparagraph a) of this article

b)

in an of the offences set forth in Article 3, 3bis, 3ter or subparagraphs a) or b) of this article

c)

3quater

any personin connection

withany of the offences set forth in

Article 3.1, 3bis, or 3terthe

commission

a)

27

Boarding Procedure:

Trying to change the reactive nature of SUA, PCSUA.05 included in its provisions a boarding procedure that, as it was stated before, is modeled on recently concluded international instruments. It also gives the States the possibility to make a declaration granting authorization beforehand to board and search ships flying its flag or showing its marks if it doesn’t respond within four hours of acknowledgement of receipt of a request to confirm nationality. Certain safeguards have been added in order to protect the stakeholders.

Other novelties:

CSUA.05 counts with a stronger extradition and cooperation provisions, especially with the introduction of the prohibition to use the political offence exception. Such a provision was devised and subsequently used in all anti-terrorism instruments concluded in-between both generations of SUA, and since CSUA.05 is modeled on some of those, it was only natural to include it. The “transfer” of a detained person might be done under the provisions of Article 12bis. Cooperation is strengthened by means of the modified Article 13 and the new Article 14.

Definitions were introduced in order to clarify the meanings of the new offences related to hazardous substances and WMD. Exceptions and safeguards were also inserted to leave out military activities and authorized acts under the non-proliferation regime.

An annex was added, which works together with Article 3ter, in compliance with UNSC Resolution 1373 in its operative paragraph 2 g) Prevent the movement of terrorists, making it an offence to transport a fugitive that committed an offence under any of the annex-listed instruments.

28

PPSUA.05 and therefore PSUA.05 works as its predecessor, mutatis mutandis, on the basis of CSUA.05

29

30

3. International Framework against Terrorism and SUA: working seamlessly?

3.1. Elements to Consider

In the lines herein, the author tries to explain how the international framework against terrorism works together, tightly and seamlessly with SUA instruments, by way of:

a) The sharing and complementation of their respective list of offences, b) The complementation and identity of jurisdictional bases, c) The sharing and interconnection of measures of cooperation and

prosecution mechanisms, d) Through a network of extradition clauses, and finally e) On the homogenization of a concept of terrorism that finally will

crystallize on international law unequivocal.

The task will be handed by addressing each of the relevant and common elements between the sectoral framework and the SUA instruments. The instruments to take into consideration among this section as the international framework against terrorism should be those multilateral and universal conventions and protocols enlisted as such by the UN. In present day those are 13, including SUA and its Fixed Platforms Protocol. That list is maintained and updated in the website: http://untreaty.un.org/English/Terrorism.asp The logic to follow is that the framework, to be triggered needs first an offense to be identified, to establish jurisdiction under a treaty, to trigger the cooperation and prosecution mechanisms, to apply the aut dedere aut iudicare principle, to finally convict and punish any act of terrorism.

Application of the extradite or prosecute

rule to convict

Jurisdiction is established under the

treaty

Offense detected

among the list

31

3.2. The Offences:

The main discussion in the history of international community regarding terrorism is precisely what is terrorism? The ideological positions regarding what constitutes terrorism cast a shadow over the increasingly inhuman forms of terrorist attacks. Behind the argument of wars of “self-determination” and other justifications, State-sponsored terrorism shelters and play as a wolf disguised as a lamb. These discussions were more frontal and irreconciliable in the 1970’s and 1980’s due mainly to the movement of decolonization that the UNGA was fostering and endorsing through its policies and resolutions. Terrorism-related declarations, instruments and resolutions were looked at with suspicion as possible “legal but not legitimate” weapons against colonies and dependencies. Many reservations, declarations, warranties and safeguards beset terrorism-related instruments agreed upon back then. The magnitude of the latest atrocities has made the task of opposing firm and unequivocal declarations against terrorism in all its forms a very difficult one from a moral point of view. Nevertheless, a clear, single-interpretation and generally-agreed definition of terrorism has not come up yet. Books98 and articles99

have been written to describe the problem of defining terrorism, the utility of doing so and the more recent legal need.

The UNSC has come up with what is called a “working definition”, through a late 2004 resolution already quoted herein. Its insufficiency and little technicality need not to be discussed here but simply annotated. Therefore, what the world can rely on as a definition of a terrorist act is what the legal international framework against terrorism has enlisted and qualified as offences therein. Although the wide scope of the framework and the variety of possible targets protected make it very complicated to talk about model offenses repeated in every treaty (and also because of the evolution of the drafting , expertise and ideology), there are certain trends that can be rescued from the bulk of treaties. Using again the chronological and subject order displayed in Chapter I when enumerating the evolution of the instruments, the “gender” of offences by conventions is enlisted at infra, using a short name to refer to the instruments. 98 Saul. Op Cit. 99 Dugard. Loc. Cit.

32

Targets or offences Relevant Instruments

Aerial hijacking and related threats Offences committed on board aircraft Tokio.1963

Unlawful seizure of aircraft Hague.1970 Acts against safety of civil aviation Montreal.1971 Acts against safety of civil airports Montreal.1988

Hostage-taking Threat to internationally protected persons Diplomatic Agents.1973

Taking of hostages Hostage.1979

Nuclear-related Protection to nuclear material CPPNM.1979

Nuclear attacks UNCSNT.2005

CSUA.05 PSUA.05

Non-proliferation offences CSUA.05 PSUA.05

Explosives

Detection of plastic explosives CMPEPD.1991

Offences by means of bombing

UNCSTB.1997 Montreal.1971 Montreal.1988

CSUA.1988 PSUA.1988 CSUA.05 PSUA.05

Maritime threats

Acts against safety of maritime navigation

CSUA.1988 CSUA.05

Acts against safety of platforms in the Continental Shelf

PSUA.1988 PSUA.05

Finance

Provision or collection of funds to commit terrorist offences UNCSFT.1999

The table above is broad it is qualification, therefore the next one100

100 Annex 1

, that points out each specific type of criminal action characterized as terrorist offence, makes a precise comparison in terms of the most commonly regulated offences.

33

From both tables is possible for the reader to detect the coincidence and identity of a series of criminal acts that nowadays are part of the concept of terrorism, which still resists a formal definition. Most of the treaties enumerated work on the basis of domestic law, by means of making obligatory the regulation of such offences as municipal crimes, duly penalized, creating a network of legislative consequences for the perpetrators of those offences. In most of the cases, the instruments provide the possibility to deem the commission of the offences not only on the place where they actually happened but also where jurisdiction may be established in order to extradite or prosecute the perpetrators. The SUA instruments in this respect, work in close connection with all the antiterrorist international instruments, by means of the death/injury/damage offence, the threats offence, the blackmailing offences, the seizure and hostage-taking offences, the damages to infrastructure and transport facilities, and obviously those connected with attacks to transport, destruction of transport means, facilities, property (cargo). By way of its Annex, it extends to cover all cases of fugitives of the other antiterrorist international instruments pretending to escape by means of maritime transportation.

3.3. Jurisdiction

With regards to jurisdictional bases, the conventions have evolved from a restrictive way of purporting those, to a universal one. The most recently drafted instruments talk about universal jurisdiction invariably. The common bases to establish jurisdiction authorized by the international antiterrorist legal framework are:

a) Territorial; b) Nationality; c) Passive Nationality; d) Protective; e) Universal; and f) Target State.

In special matters, like aviation and navigation, the conventions talks about the country of registry or nationality of the vessel or aircraft.

34

All the conventions rest on the principle of the international transcendence of the acts regulated in them as offences, so domestic offences remain a domestic matter to deal with. In this respect, the SUA instruments work perfectly well, since the four of them recognizes all of the aforesaid criteria to establish jurisdiction by any State-party to them. With regards of jurisdictional bases and offences, the SUA instruments, especially on their 2005 versions, tend to overlap slightly with the UNCSTB.1997, due to the fact that the latter covers attacks on transport. Nevertheless, since both can apply and hold the same criteria to establish jurisdiction, it only makes a wider cover for this types of acts and might apply in this way to more countries, in cases of ambivalence or membership to only one of them.

3.4. Cooperation and prosecution measures

Without exception, all of the above listed instruments give way to cooperational mechanisms, either in fact-finding, transfer of information, sharing of intelligence resources, prevention of planning and executing offences from its territory to a third-State’s territory or nationals, reception of suspects turned in by Masters and Commanders, boarding procedures, aids in suppressing attacks, etc. In this sense, SUA brings up a new set of possibilities, especially with the procedures of boarding and collaboration among States. The transfer of detained people that collaborate with the catering of information or data is another salient feature, as was underlined on the previous chapter. Thus, the whole network of mechanisms of collaboration and cooperation among States is strengthen by SUA instruments, especially the 2005’s.

3.5. Extradition, aut dedere aut iudicare and the prohibition to use the political offence exception.

In the historical background herein provided, it was stated that extradition treaties were the first type of international instruments covering acts of terrorism. The extradition clause is indirectly or directly, expressly or tacitly included in all of the above mentioned treaties with substantial differences, mainly due to the evolution of drafting and perception of terrorism by the international community.

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Nowadays, only the oldest instruments do not have an extradition clause expressly stated and recognizing the extradite or prosecute principle. The case of the prohibition to use the political offence exception is different, since this inclusion has been rather recent. In the case concerning this paper, it was only introduced to SUA by its 2005 updates, which are not yet in force. This is a clear example that by 1988 the international community was still reluctant to let go the political offense exception, greatly on defense of the ancient asylum faculty granted towards them by many other international legal regimes, like humanitarian, human rights and refugee law. Nevertheless, after the impact that the post-2000 incidents have made in the collective mind, this has been displaced and now all of the newly drafted instruments reject the possiblitity to use such an exception. It has been included, in order to give a counter balance to that restriction, a safeguard to protect human rights and other discriminatory concerns such as gender, ethnic or religious persecution. SUA 2005 instruments have all of the above, making its regime comprehensive and all-encompassing. While it provides a strong extradition or prosecution regime, it also balances the formula by protecting human rights and avoiding harmful results by legal means against humankind. As a conclusion, it is evident the way how SUA instruments, especially the 2005 generation, work seamlessly with the rest of the international framework against terrorism. This has been the result of the maturity of the international community in accepting the threat that terrorism in all its possible expressions pose to humankind as a whole, and that only a globalized strategy will allow the world to take proper countermeasures that will grant the suppression and punishment of terrorist acts.

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1. Terrorism is an ancient act of violence that has accompanied humankind and acted against or in favor of it, depending on which side of the coin the observer is on.

2. Ideology and politics have made terrorism in contemporary times a very difficult to tackle problem, which nowadays is not only commonly treated violence, but it has international consequences.

3. Due to the last point made, terrorism is held as a threat to the peace and as a disruption of peace and security, thus triggering the international collective defense mechanisms.

4. However, until now, due to many factors, it has not been possible to define terrorism in an unequivocal single way. Most of the definitions given are questioned by at least one group of stakeholders.

5. The last problem has also been evident in the case of reaching a global regime against terrorism. All the attempts to come up with a convention that tackles the issue of terrorism globally have failed. It is still to be seen what will be the fate of the CCIT currently under discussion at the UN.

6. The latter gives the reasons on why today the world has to rely on a network of sectoral conventions that address one or more facets of international terrorism. Most of them have been created as a reaction or aftermath of terrorist events, and therefore have restrictive narrow views towards terrorism.

7. Only the latest instruments have a different approach, much broader and preventive. This new generation of instruments and modification to old regimes have brought the whole new agreements that the international community has reached only after the undeniable heinous nature of the latest terrorist attacks.

8. Among those instruments, the SUA Convention and Protocol of 1988 showed a good initiative to follow. This was done after the 9/11 events and its result was the SUA 2005 generation. Both new instruments have revitalized, strengthen and widen SUA reach and helpfulness.

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9. The whole set of antiterrorist instruments, although fragmented in nature and in principle, have been devised to not hamper each other, and actually work side to side, as bricks of a wall where terrorism will crash against, creating a network of provisions that criminalize terrorist conducts and acts, provide for establishment of jurisdiction by at least one State, puts at the States’ disposition a range of cooperational mechanisms and prosecution means, secures the final penalization of the individuals that committed the offences by the utilization of the aut dedere aut iudicare principle, and therefore creating a second level network of extradition clauses.

10. The latest events have strengthen even more the whole regime by nullifying the use of the political offence exception, commonly claimed in the past and frustrating the bringing of justice to terrorist. This is one of the major achievements of the community as a whole and demonstrates the maturity reached (by force though).

11. All of the above shows that the International Maritime Organization has made a formidable contribution to the fight against terrorism and to all mankind, by way of fostering and finally providing for the adoption of the SUA instruments and their latest updates at 2005 which, although still await for entering into force, promise to do so in a short lapse.

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International Instrument Short Name Death Body injure Kidnapping ThreatsIntimidate a population

Compel a government

Compel an Organization

Damage to property

Attack against premises

Attack against infrastructures

Good order onboard transport

Seizure of transport

means

Attack against transport

means

Destruction of transport

means

Attack against transport facilities

Explosion / detonations

Lethal or harmful

substances

Unlawful demand nuclear related

Unlawful possession of

radioactive material

Use of radioactive material or

device

Funding of terrorism

Damage to environment

AttemptsAccomplices, organizers, directors

Convention on Offences andCertain Other Acts Committed OnBoard Aircraft

Tokio.1963Yes (by penal law)

Yes (by penal law)

Yes (by penal law)

Yes (by penal law)

YES YES YES YES

Convention for the Suppression ofUnlawful Seizure of Aircraft Hague.1970 YES YES YES YES

Convention for the Suppression ofUnlawful Acts Against the Safety ofCivil Aviation

Montreal.1971 YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES

Convention on the Prevention andPunishment of Crimes againstInternationally Protected Persons,including Diplomatic Agents

Diplomatic Agents.1973

YES YES YES YES YES YES YES YES YES YES YES

Convention on the PhysicalProtection of Nuclear Material CPPNM.1979 YES YES YES YES YES YES YES YES YES

International Convention Againstthe Taking of Hostages Hostages.1979 YES YES YES YES YES YES YES YES YES

Protocol for the Suppression ofUnlawful Acts of Violence atAirports Serving International CivilAviation, Supplementary to theConvention for the Suppression ofUnlawful Acts against the Safety ofCivil Aviation

Montreal.1988 YES YES YES YES YES

Convention for the Suppression ofUnlawful Acts Against the Safety ofMaritime Navigation

CSUA.1988 YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES

Protocol for the Suppression ofUnlawful Acts Against the Safety ofFixed Platforms Located on theContinental Shelf

PSUA.1988 YES YES YES YES YES YES YES YES YES YES YES YES YES YES

Convention on the Marking ofPlastic Explosives for the Purpose ofDetection

CMPEPD.1991 YES

International Convention for theSuppression of Terrorist Bombings UNCSTB.1997 YES YES YES YES YES YES YES YES YES YES YES YES YES

International Convention for theSuppression of the Financing ofTerrorism

UNCSFT.1999 YES YES YES

International Convention for theSuppression of Acts of NuclearTerrorism

UNCSNT.2005 YES YES YES YES YES YES YES YES YES YES YES YES

Protocol of 2005 to the Conventionfor the suppression of unlawful actsagainst the safety of maritimenavigation

PCSUA.05 YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES

Protocol of 2005 to the Conventionfor the suppression of unlawful actsagainst the safety of fixedplatforms located on thecontinental shelf

PPSUA.05 YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES

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45

Convention on Offences and Certain Other Acts Committed On Board Aircraft

Tokyo, on 14 September 1963.

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Convention to prevent and punish the Acts of terrorism taking the form of crimes against persons and related extortions that are of international significance

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For each State at the date of deposit of its instrument of ratification

Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation

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20 February 1977.

European Convention on the suppression of terrorism

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4 August 1978

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8 February 1987.

International Convention Against the Taking of Hostages

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3 June 1983.

United Nations Convention on the Law of the Sea

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16 November 1994.

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6 August 1989.

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

Rome, on 10 March 1988.

1 March 1992.

Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf

Rome, on 10 March 1988.

1 March 1992.

Convention on the Marking of Plastic Explosives for the Purpose of Detection

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21June 1998.

International Convention for the Suppression of Terrorist Bombings

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23 May 2001.

International Convention for the Suppression of the Financing of Terrorism

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10 April 2002.

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June 2002 10 July 2003

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International Convention for the Suppression of Acts of Nuclear Terrorism

New York, on 13 April 2005.

Pending.

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London, on 14 October 2005

Pending

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London, on 14 October 2005

Pending

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