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Newsletter of the Lawyers’ Committee on Nuclear Policy
Fall 2001 Vol. 13, No.2

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Crime(s) of Terror:
Developing Law and Legal Institutions

by Saul Mendlovitz


Selected Articles :

September 11:
A Rule-of-Law Response
by John Burroughs
War: Metaphor into Reality
by Peter Weiss
Crime(s) of Terror: Developing Law and Legal Institutions
by Saul Mendlovitz

Reactions to September 11, 2001
UN Resolution re: September 11

Disarmament:
Disarmament Also Needs Coalitions
by Jim Wurst
Congress and the Fate of the ABM Treaty
by John Burroughs and Robert Boehm
Small Arms Conference
by Jim Wurst

Notable Books:
Losing Control - Global Security in the Twenty-First Century
by Janet Bloomfield
Lethal Arrogance: Human Fallibility and Dangerous Technologies
by Jackie Cabasso

Hiroshima Reflections:
Hearing the Hibakusha in Light of September 11
by Anabel Dwyer


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WTC.jpg (17082 bytes)
"Ground Zero", September 18
(UN/DPI photo by Eskinder Debebe)


There is no agreed upon general definition of terrorism. To be sure, there are 12 conventions dealing with certain acts which are generally recognized as terrorism. In 1963 a convention was adopted concerning acts affecting safety aboard aircraft. Two conventions in 1970 and 1971 also dealt with aircraft, criminalizing hijacking or violent acts aboard aircraft. Since then, other conventions have been adopted covering the protection of diplomats, the taking of hostages, the protection of nuclear material, the safety of maritime navigation, the safety of fixed platforms on continental shelf, violent acts in airports, the marking of plastic explosives for the purpose of detection, terrorist bombings, and financing of terrorism.

Only one treaty, the 1999 instrument on financing, has not yet entered into force. Several of the conventions have virtually universal adherence (170-plus state parties), and most have at least substantial numbers of parties. The United States has ratified all but the two most recent conventions on bombings and financing, and the Bush administration in the wake of September 11 submitted those two to the Senate for advice and consent. Afghanistan is a party to the first three conventions relating to aircraft.

In its September 28 resolution, the Security Council, employing its Chapter VII powers under the UN Charter, made instant law, among other things requiring all states to take immediate steps to suppress financing of terrorist operations and to deny "safe haven" to terrorists and their supporters.

Currently on the agenda at the United Nations are a convention on nuclear terrorism, and a comprehensive convention that would at least consolidate and rationalize the existing instruments and perhaps do more. In a September 21 "informal briefing" of the Security Council, UN legal counsel Hans Corell noted that there are serious difficulties in achieving a comprehensive convention. He identified three vexing elements: the issue of the definition of terrorism; the issue of the relationship of the proposed convention to existing and future instruments on international terrorism; and the issue of differentiating between terrorism and the right of people to self-determination and to combat foreign occupation.

A central problem of definition is whether to include state terrorism, as proposed by many over the past three decades. For example, according to Ernesto Garzon, the Spanish judge who instituted proceedings against Pinochet: "State terrorism is a political system whose rule of recognition permits and/or imposes a clandestine, unpredictable, and diffuse application, even regard-ing clearly innocent people, of coercive means prohibited by the proclaimed judicial ordinance. State terrorism obstructs or annuls judicial activity and transforms the government into an active agent in the struggle for power." Another problem, alluded to by Corell, is the profound political divide captured by the cliche that one person’s terrorist is another person’s freedom fighter, or as in the present circumstance, holy warrior.

While it would be desirable to have a general definition of terrorism, it is not clear that these difficulties can be overcome in the near term. Perhaps what will occur is more of the same: the specific acts like hijacking or nuclear terrorism which the states of the world find threatening will produce a steady growth of treaties addressing those acts.

One of the major objectives of the existing conventions is, of course, the prosecution of individuals who engage in the proscribed acts. The attempt here is to move towards universal jurisdiction. All states who are party to a convention have the obligation to apprehend the perpetrator of the acts. Beyond that, their duty is to prosecute or extradite. Such a requirement exists in most of the conventions already noted with extradition being the most likely and preferred outcome. This has sometimes produced ad hoc arrangements as in the recent trial of two Libyan citizens for destroying a civilian aircraft over Lockerbie, Scotland. Libya agreed to extradite the suspects on the basis that the trial, while presided over by Scottish judges, would be held in The Hague.

What is needed at this juncture is the establishment of a global legal regime dealing specifically with terrorism. Some large-scale acts of terror, like the September 11 attacks, appear to fit under crimes against humanity as defined in the Statute of the International Criminal Court, but many others of lesser scale or where no "organization" is involved would not. A crime or crimes of terrorism could be added to the Statute to address future events (the Statute has not yet entered into force, and when it does will only deal with crimes committed thereafter). However, given the Statute’s amendment provisions, that process could take a decade or more. Another approach would be the establishment of a specialized permanent inter-national tribunal on terrorism. A third possibility is to continue to rely on the system of national courts and the prosecute or extradite require-ment and further develop through international lawmaking the definition(s) of terrorism. Under all three approaches, an accom-panying development, which may in part just evolve, would be a system of global policing involving at least a very high degree of coordination and collaboration among national police forces. Eventually, this could - and should - lead to the establishment of a global police force.

Saul Mendlovitz is Dag Hammarskj÷ld Professor of International Law at Rutgers-Newark School of Law.

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