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  • ZaRV 64 (2004), 979-1000


    The Prosecution of Terrorism as a Crime Against Humanity

    Roberta Arnold*

    The 9/11 attacks led to a US military campaign without precedents. The concept of war against terrorism was coined by politicians to justify the use of military force to track down terrorist suspects. The legal argument used to support this new strategy was every states inherent right to self-defence. It is beyond the scope of this paper to discuss the legality of this new type of war. However, this had sev-eral implications under the laws of armed conflict and, in particular, international criminal law. The focus of this paper will be on the question whether terrorism, the prosecution of which seems to have been quite unsuccessful under the existing anti-terrorism conventions, may be prosecuted as a crime against humanity. This approach, as it will be discussed later, presents several advantages, particularly from a procedural point of view.

    The paper, therefore, will be structured as follows. The first part will discuss whether there is a working definition of terrorism. The second part will examine the definition of crimes against humanity under existing international law. The third part will consider the international jurisprudence on terrorism as a crime against humanity. The fourth will look at the possibility of prosecuting terrorism under the heading of crimes against humanity contained in the Statute for an Inter-national Criminal Court (ICC). The fifth and final part will draw the conclusions.

    * Dr. jur., LLMM, Legal adviser, Swiss Dept. of Defence, Laws of Armed Conflict Section. The

    views expressed in this paper are the authors solely and do not necessarily reflect those of the Swiss Dept. of Defence. A detailed analysis of the issues dealt in this paper is undertaken in R. A r n o l d , The ICC as a New Instrument for Repressing Terrorism, New York 2004. 2004, Max-Planck-Institut fr auslndisches ffentliches Recht und Vlkerrecht

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    A. A Working Definition of Terrorism

    There is no universally accepted legal definition of terrorism, yet.1 In some peo-ples view, this is due to the fact that terrorism is a subjective notion, which e x -i s t s i n t h e m i n d o f t h e b e h o l d e r , d e p e n d i n g u p o n o n e s p o l i t i -c a l v i e w s a n d n a t i o n a l o r i g i n s .2 However, when the media and the poli-ticians use this term, the average people seem to think of a violent and intimidating act usually directed against innocent targets aimed at coercing a government or a community to comply with the perpetrators political requests. The issue is whether this common understanding may provide the basis for a universal l e g a l definition of terrorism. In a different forum3 it was discussed whether interna-tional humanitarian law (IHL) may provide for one. The conclusion was that acts of terrorism referred to in Article 33 IV Geneva Convention of 1949, Article 51(2) Additional Protocol I of 1977 and Article 3 and 14 Additional Protocol II of 1977, indicate an act of violence in breach of the principles of military necessity, proportional-ity and distinction, which is primarily aimed at spreading fear among the civilian popula-tion.4 The outcome was that the notion provided by IHL contains the same elements of the definition used in the common language: the element of innocent victims (civilians), a violent act and the existence of a political end which, however, does not justify the means, because of their disproportionality. Thus, since the four Geneva Conventions of 1949 amount to customary law, it could be argued that the meaning of terror under Article 33 IV GC could be used universally. However, the focus of this paper is not on the definition of terrorism. The one just being referred to will be simply adopted as a working definition to assess whether so-called terrorist acts may be prosecuted as crimes against humanity.

    B. The Definition of Crimes Against Humanity

    1. The IMT Charter of 1945

    The first prosecutions for crimes against humanity were based on the Charter of the International Military Tribunal of Nuremberg (IMT), 1945.5 The idea was that

    1 E. C h a d w i c k , Self-determination, Terrorism and the International Humanitarian Law of

    Armed Conflict, The Hague 1996, at 2; A. Z i m m e r m a n n , Commentary to Article 5: Crimes Within the Jurisdiction of the Court, in: O. Triffterer, Commentary on the Rome Statute of the In-ternational Criminal Court, 1st ed., Baden-Baden 1999, 97-106, at 99.

    2 R.A. F r i e d l a n d e r , Terrorism, in: R. Bernhardt (ed.), Encyclopedia of Public International

    Law, Instalment 9, Amsterdam 1981, 371-376, 372. 3 R. A r n o l d , The ICC as a New Instrument for Repressing Terrorism, New York 2004, at 69 et

    seq. 4 Ibid., at 71 et seq.

    5 Charter of the International Military Tribunal (IMT), in: Agreement for the Prosecution and

    Punishment of the Major War Criminals of the European Axis (London Agreement), August 8, 1945, at . See A r n o l d , supra, note 3, at 204 et seq. 2004, Max-Planck-Institut fr auslndisches ffentliches Recht und Vlkerrecht

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    the breach of fundamental aspects of the human being should be repressed i n d e -p e n d e n t l y from the n a t i o n a l i t y of the victim. The nationality criterion had in fact been a major hurdle for the prosecution of the acts committed by the Nazis against the German population as war crimes. Article 6(c) IMT Charter defines crimes against humanity as:

    Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.6 This illustrative list of crimes7 can be divided in:

    - Murder type crimes (murder, extermination, enslavement, deportation and other in-human acts committed against any civilian population, before or during the war)

    - Persecution on political, racial, or religious grounds. The nexus to the war requirement was introduced to limit the tribunals juris-

    diction.8 Everyone may be a perpetrator.9 The victims, however, can only be mem-bers of the civilian p o p u l a t i o n . With regard to the numeric issue, the ICTY in Ta-dic held that:

    The emphasis is not on the individual victim but rather on the collective, the individ-ual being victimised not because of his individual attributes but rather because of his membership of a targeted civilian population. This has been interpreted to mean, as elaborated below, that the acts must occur on a widespread or systematic basis, that there must be some form of a governmental, organizational or group policy to commit these acts and that the perpetrator must know of the context within which his actions are taken, as well as the requirement imported by the Secretary-General and members of the Security Council that the actions be taken on discriminatory grounds.10 This definition was restated11 in Article 5 ICTY Statute and Article 3 ICTR Stat-

    ute. The two UN ad hoc tribunals jurisprudence helped to clarify the elements of these crimes.

    6 Nuremberg Trial Proceedings, Vol. 1, at . 7 See Arnold, supra, note 3, at 210 et seq.

    8 United Nations War Crimes Commission, History of the United Nations War Crimes Commis-

    sion and the Development of the Laws of War (London: His Majestys Stationery Office) (1948), at 196.

    9 E. G r e p p i , I crimini di Guerra e Contro lUmanit nel Diritto Internazionale, Turin 2001, at

    111. 10

    Prosecutor v Tadic, TC Judgement of May 7, 1997, Case IT-94-1, para. 644. 11

    Prosecutor v Blaskic, TC Judgement of March 3, 2000, Case No. IT-95-14, para. 188. 2004, Max-Planck-Institut fr auslndisches ffentliches Recht und Vlkerrecht

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    2. The ICTY and ICTR Statutes

    a. The actus reus

    Article 5 ICTY Statute reintroduces the nexus criterion, which is no longer required under customary law.12 This, however, may have been simply done to re-strict the tribunals jurisdiction to the conflict in the Former Yugoslavia.13 For ex-ample, in Tadic the AC held that:

    The attack on the civilian population is here equated to the armed conflict. The two concepts cannot, however, be identical because then crimes against humanity would, by definition, always take place in armed conflict, whereas under customary interna-tional law these crimes may also be committed in times of peace ...14 The Kunarac Case15 stated that the following elements need to be met under the

    ICTY Statute: - There must be an attack. - The acts of the perpetrator must be part of the attack. - The attack must be directed against any civilian population. - The attack must be widespread or systematic.

    The ICTR Statute the jurisprudence of which is nevertheless limited to cover armed conflicts of a non-international character requires similar elements:16

    - the act must be committed as part of a widespread or systematic attack; - the act must be committed against members of the civilian population; - the act must be committed on one or more discriminatory grounds, namely, national,

    political, ethnic, racial or religious grounds; - the act must be inhumane in nature and character, causing great suffering, or serious

    injury to body or to mental or physical health. However, the ICTR does not require a nexus with an armed conflict. Moreover,

    the acts or at least the attack must have been committed on d i s c r i m i n a t o r y g r o u n d s . According to the Kunarac Case, an attack is:

    A course of conduct involving the commission of acts of violence. The Trial Cham-ber in the Tadic case stated that: The very nature of the criminal acts in respect of which competence is conferred upon the International Tribunal by Article 5, that they be di-


    Prosecutor v Tadic, AC Judgment of July 15, 1999, Case IT-94-1, para. 78. 13

    F. L a t t a n z i , Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, in: H. Fischer et al. (eds.), International and Na-tional Prosecution of Crimes Under International Law, Berlin 2001, 473-504, at 473.

    14 Prosecutor v Tadic, AC, supra, note 12, para. 251; Prosecutor v Mladen Naletilic, TC Case IT 98-

    34, Judgement of March 31, 2003, para. 233. 15

    Prosecutor v Kunarac et al., IT-96-23T and IT-96-23/1-T, February 22, 2001, para. 410; Prosecu-tor v Mladen Naletilic, TC, supra, note 14, para. 232.

    16 Prosecutor v Akayesu, TC, Judgment of September 2, 1998, para. 578; Prosecutor v Rutaganda,

    TC Judgement of December 6, 1999, Case ICTR-96-3, para. 66; Prosecutor v Musema, TC Judgement of January 27, 2000, Case ICTR-96-13, para 201. 2004, Max-Planck-Institut fr auslndisches ffentliches Recht und Vlkerrecht

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    rected against any civilian population, ensures that what is to be alleged will not be one particular act but, instead, a course of conduct.17 This is not to be confused with an armed conflict.18 An attack, in fact:

    may also encompass situations of mistreatment of persons taking no active part in hostilities, such as someone in detention. However, both terms are based on a similar as-sumption, namely that war should be a matter between armed forces or armed groups and that the civilian population cannot be a legitimate target.19 The underlying offences do not need to constitute the attack itself. It is sufficient

    that they form p a r t o f i t or that they c o m p r i s e p a r t o f a p a t t e r n o f w i d e s p r e a d a n d s y s t e m a t i c c r i m e s d i r e c t e d a g a i n s t a c i v i l i a n p o p u l a t i o n .20 The ICTR went further, in stating that an attack indicates an:

    unlawful act of the kind enumerated in Article 3(a) to (I) of the Statute, like murder, extermination, enslavement etc. An attack may also be n o n v i o l e n t in nature, like imposing a system of a p a r t h e i d , which is declared a crime against humanity in Article 1 of the Apartheid Convention of 1973, or exerting pressure on the population to act in a particular manner, may come under the purview of an attack, if orchestrated on a mas-sive scale or in a systematic manner.21 Thus, unlike under the UN Charter, pursuant to the ICTR Statute the attack

    does not need to be armed. However, it must have been directed against the civil-ian population. According to the TC in Akayesu, the latter is formed by:

    People who are not taking any active part in the hostilities, i n c l u d i n g m e m b e r s o f t h e a r m e d f o r c e s w h o l a i d d o w n t h e i r a r m s and those p e r s o n s p l a c e d h o r s d e c o m b a t by sickness, wounds, detention or any other cause.22 This is important, since combatants are not generally protected from acts of ter-

    ror, under the laws of war. According to the TC in Kayishema, the notion of ci-vilian population must be interpreted broadly. In a context s h o r t o f a n a r m e d c o n f l i c t , it should be read as including all persons, except those en-trusted with the maintenance of order and those possessing legitimate means to ex-ercise force. For instance, non-civilians would include members of the police23 and other representatives of the executive power. In Bagilishema, however, which re-ferred to the ICTYs Blaskic Case, the ICTR Trial Chamber held that it depends


    Prosecutor v Kunarac et al., TC Judgement of February 22, 2001, Case No. IT-96-23, para. 415; Prosecutor v Tadic, Case IT-94-1-A, Decision on the Form of the Indictment, November 14, 1995, para 11.

    18 Prosecutor v Tadic, AC, supra, note 12, para. 251; Prosecutor v Kunarac, Case IT-96-23, AC

    Judgment of June 12, 2002, para. 86. 19

    Prosecutor v Kunarac, TC, supra, note 17, para. 416. 20

    Prosecutor v Kunarac, supra, note 17, para. 417; Prosecutor v Tadic, AC, supra, note 12, paras. 248 and 255.

    21 Prosecutor v Akayesu, TC, supra, note 16, para. 581; Prosecutor v Musema, TC, supra, note 16,

    para. 205; Prosecutor v Rutaganda, TC, supra, note 16, para. 70. 22



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