Forging International Rules Against Terrorism
Forging International Rules Against Terrorism
Forging International Rules Against Terrorism
Since the 1930s there has been an effort to compile international rules against terrorism. Despite the good intentions of the nations to end the threat terrorism poses to the world, there have been obstacles in the path of international agreement, such as the failure to define "terrorism," determining jurisdiction, reserving the right to rebel against oppressors, and the right to self-determination. As the global community responds to the terrorist attacks of September 11, 2001, an intensified effort, and an aggressive resolution, have attempted to force this difficult issue.
- As soon as one identifies a political element in a criminal's behavior, it is very likely that some nation somewhere will sympathize with its perpetrators. This sympathetic nation will then work to prevent mistreatment of the criminal and block the approval of treaties that might criminalize his or her actions. When the goal of the international community is to draft a universally accepted standard of conduct, it only takes one country to block it.
- There was a significant change in the forms of terrorism after the end of the Cold War in the late 1980s. Democracy in many long-embattled regions replaced guerrilla or terrorist warfare. By the mid-1990s, the terrorist groups that remained tended to be more vicious and uncompromising than in the past. Those groups fanatically committed to preserving cultural and social institutions on the basis of a rigid interpretation of religion or ideology seemed to allow no possibility of dialogue or compromise.
[T]he horrifying terrorist attack against the United States sent shock waves throughout the [United Nations] … triggering an unprecedented outpouring of sympathy and support for the city and the country, a torrent of condemnation for the conspirators and a groundswell of resolve to bring them to justice. But if the outcry was unprecedented, it was also wholly consistent with the UN's longstanding campaign to amass a legal arsenal in the fight against terrorism … (UN News Center, October 6, 2001).
Diplomats and professional staff at the United Nations tend to think that most of the world's problems can be solved by bringing countries together to agree to a common set of rules. Whether it be cleaning up the environment, preventing weapons sales to revolutionaries, or keeping exchange rates stable, many hope that all that is needed is a commitment to create and keep treaty agreements. So it is no surprise that efforts have been made to formulate rules about terrorism.
As far as terrorism goes, this is easier said than done, however. Efforts to put together an international convention against terrorism began in the 1930s, when several countries agreed to a treaty that was only ratified by one of them—the Netherlands—meaning that it was not the "law of the land" anywhere but in the Netherlands. Another attempt was made in the 1970s, only to fail due to disagreements between rich and poor countries. In the 1990s the prospects for another agreement seemed good. After five years, however, disagreements on fundamental issues remain—in spite of the events of September 11 and the "groundswell of resolve" mentioned in the UN quote above—raising the questions: What seems to be holding things back? Why does there not yet exist an international convention on terrorism? Does it matter?
Criminals and Terrorists
Crime is an essentially domestic matter, and many international rules prevent governments from imposing on each other a particular criminal code. For example, Switzerland has numbered bank accounts and strict rules on depositor confidentiality, much to the consternation of other countries. Meanwhile, the United States carries out death sentences with regularity even though they have been abolished elsewhere in the world.
Where crimes cross international boundaries, as with smuggling and drug trafficking, countries often coordinate their policing efforts. In particular many countries have signed so-called extradition treaties with each other that list crimes for which one country will surrender a suspect to another. So long as the criminal codes of both countries are fairly consistent with each other, these treaties are relatively easy to conclude. Thus, a suspect in a theft or murder in Canada who has fled to New Zealand will likely be turned over to the Canadian government by the New Zealand government.
In many extradition treaties, however, there is an escape clause known as the "political exception" provision. This exempts any crime that is inherently political, such as treason. Crimes are considered political when they only affect the power of one state and represent no real threat to any other. In fact, in some cases the other states may feel sympathy for the suspect if he or she opposes a government with which they have poor relations. For example, rather than return a treason suspect to the Soviet Union during the Cold War, the United States might well have granted him political asylum and treated him as a hero.
The same was true until recently when it came to U.S. relations with Great Britain (Britain, the United Kingdom, or UK). Many American judges interpreted the political exception provision of the U.S.-UK extradition treaty to mean that suspected members of the Irish Republican Army (IRA)—a terrorist group by British standards—need not be returned to Britain. From the British point of view, the United States was harboring terrorists.
Take a classic international crime—piracy. Until the late 1980s piracy was defined as a "private act" aimed at seizing a vessel or money and jewelry from its passengers. Politically motivated piracy was set apart as a separate problem, even if the actions were identical to those that were motivated by greed, according to Malvina Halberstam's American Journal of International Law article "Terrorism on the High Seas" (April 1988).
Which brings one to the basic problem of terrorism and international law. In spite of current efforts to treat all terrorism as merely an aggravated form of crime, the fact is that there would be no need for the term "terrorism" if it was merely criminal activity. (The reader may recall how important it was to law enforcement officials to know that the villains in the film Die Hard were merely sophisticated thieves and not the terrorists they claimed to be.) Terrorism is universally understood as violent actions intended to instill fear or create havoc with the ultimate aim of changing government policies. Consider the similarity of these definitions of terrorism gleaned from various U.S. government and academic sources, as cited in René Louis Beres's 1995 article "The Meaning of Terrorism: Juris-prudential and Definitional Clarifications," published in the Vanderbilt Journal of Transnational Law:
- "The unlawful use of force against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives … "
- "Premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents … "
- "The unlawful use or threat of violence against persons or property to further political or social objective. It is generally intended to intimidate or coerce a government, individuals or groups or to modify their behavior or policies … "
In most cases terrorism is the act of an organized and politically or ideologically motivated group that is expressing its profound dissatisfaction with the order of things, whether it be the occupation of territory by a foreign power, rule of a country by a racial minority, despotic government by a dictatorial regime, or something else. Even where terrorists engage in garden-variety criminal activities, such as theft and drug running, it is oftentimes done to finance their political agenda.
Governments have long treated terrorists differently from criminals. For example, if a terrorist group becomes powerful enough, it might be necessary for a government to negotiate certain concessions, such as granting home rule to an oppressed ethnic group or releasing prisoners from jail. It is hard to imagine a government publicly carving up a piece of its territory and officially turning it over to an organized crime syndicate or street gang (not that it has not happened informally). Most important, if the terrorist group is sincere in its political demands, for example, it is conceivable that it may one day be appeased and cease terror activities. Patrick Henry, Moshe Dayan, Nelson Mandela, and Gerry Adams are among the statesmen who could have been described as terrorists in their earlier days. At this writing, the IRA has agreed to disarm and cooperate with the new joint Catholic and Protestant government of Northern Ireland. The United States has formally endorsed the creation of a Palestinian state, which, if it comes to fruition, will likely be governed by a former terrorist, Yasser Arafat.
Terrorists and Their Allies
As soon as one identifies a political element in a criminal's behavior, it is very likely that some nation somewhere will sympathize with its perpetrators. This sympathetic nation will then work to prevent mistreatment of the criminal and block the approval of treaties that might criminalize his or her actions. If the goal of the international community is to draft a universally accepted standard of conduct, it only takes one country to block it. Thus the problem becomes more clear.
It is important to understand some of the types of terrorist organizations that have received international support and why. Ironically, although some groups are supported simply because they are fighting against a country's enemy, there are also good legal reasons to support terrorist groups.
To begin, during the Cold War many terrorist groups had radical ideological motivations and could therefore count on sympathy from the Soviet Union. The Japanese Red Army Brigade, the German Baader-Meinhoff Gang, and other Marxist/Maoist groups were able to receive diplomatic and logistical support from Soviet bloc countries. For that matter numerous guerrilla groups throughout the third world received direct support and training from both the United States and the Soviet Union. This is not to say that the terrorist acts of these groups were always considered legal. On the contrary, the support was more often than not provided secretly so that the sponsors could deny any link.
Other groups of terrorists found that international law was at least partly on their side. This was the case for groups that were fighting for the liberation of their country from foreign domination—particularly if the foreigners were from across the sea. As early as 1919, self-determination was part of international law. U.S. President Woodrow Wilson convinced the victors of World War I (1914-18) to accept the notion that each nationality should be able to govern itself without outside interference. This contributed to the dismantling of the Austro-Hungarian and Ottoman empires and the creation of such new states as Hungary, Lithuania, Bulgaria, and Syria. It also led to the "mandates" system of the League of Nations whereby colonial powers agreed to work for the eventual independence of their colonial holdings. The organization, however, ultimately failed.
By the time the United Nations Charter was drafted in 1945, the principle of self-determination had risen to the level of a fundamental right, although it was not always clear what this implied. By the 1960s most Western powers had agreed to begin the systematic dismantling of their overseas empires, and during this decade most of the Asian and African colonies achieved independence peacefully. In 1960 the UN General Assembly passed a resolution entitled the Declaration on the Granting of Independence to Colonies, Countries and Peoples, in which it affirmed the right of all nations to self-determination. Furthermore, it declared that it is the obligation of all states, whether colonial powers or not, to accommodate the will of the people in all circumstances and prohibits the use of force to prevent their independence, if sought. In 1965 a slim majority passed an even stronger resolution, calling upon all states to provide "material and moral assistance to the national liberation movements in colonial territories." Needless to say, this statement went much farther than Western countries were willing to go.
In 1971 the Declaration of Principles of International Law Concerning Friendly Relations Between States included a specific set of provisions on self-determination that garnered near-unanimous approval. Although reiterating the obligations and rights spelled out in the 1960 declaration, the new statement does not specifically allow oppressed groups to use force, nor does it disallow colonial states to utilize force to maintain order. The declaration prohibits states from providing support for groups engaged in civil strife or terrorist acts. By now, however, the door was open for the creation of a special case for violence committed in the name of self-determination. Gradually, that exception was expanded to cover those struggling against foreign occupation (such as the Palestinians) and apartheid (such as the racial segregation system in South Africa).
Taking the Politics Out of Terrorism?
During the 1960s the number of terrorist incidents increased dramatically, involving not only organizations based in the West, but also groups from developing regions operating outside their territorial base. Airplane hijackings and bombings were becoming a common occurrence, culminating in the Black September attack on Israeli athletes at the Munich Olympic Games in 1972.
Even as the debate over the political exceptions to terrorism raged, many nations sought to take whatever steps they could to combat the danger terrorists groups posed. Two key concerns preoccupied these diplomats: how to convince countries to extradite wrongdoers regardless of ideology and politics, and how to ensure their prosecution in the absence of extradition.
Gradually, a strategy evolved centered on identifying specific acts of violence commonly perpetrated by terrorists. Efforts were made to address actions that raised questions of jurisdiction. In international law there were four well-established justifications for a country arresting, prosecuting, and convicting a suspect. First, if the crime was committed in the territory of a particular state, that state could prosecute the suspects, regardless of the nationality of either the suspect or the victim. Thus, a Palestinian attack on Israeli citizens in Germany could be tried by the German government. This is known as the "territoriality principle."
Second, if the suspect is a citizen of a particular country, that country has jurisdiction to try him or her, regardless of where the crime occurred or the nationality of its victims. When a crime takes place in the country of which the suspect is a citizen, there is no international debate. This "nationality principle," however, typically applies when the crime occurs outside the country of which the suspect is a citizen, and therefore requires his or her extradition, as in the case of Irish Republican Army (IRA) terrorists seeking refuge in the United States for crimes committed in Northern Ireland.
Third, the "protective principle" means that when a crime occurs outside of a country's territory, but was intended to disrupt the political stability of that country, then it can request extradition to prosecute the suspects. For example, the apartheid government in South Africa regularly asked neighboring states to hand over African National Congress leaders who had taken refuge there on the grounds that the ANC was planning the overthrow of the Pretoria regime. It should be noted that most of these states responded by giving ANC leaders political asylum, meaning that they were treated as special guests of the state and sheltered from criminal prosecution.
Finally, some crimes are of such character that no clear jurisdiction can be established, or else the crime is of such magnitude that it violates the basic principles of civilization. In either case, it may be possible for a state to prosecute a suspect on the basis of the "universality principle." For example, where a crime occurs on the high seas—where no state has territorial jurisdiction—states may allow the country best equipped to respond to arrest and try the perpetrators. Thus, piracy was one of the first crimes to come under this principle. Most international conventions against terrorism address crimes committed outside ordinary territorial jurisdiction, such as the conventions against airplane hijacking and attacks on oil platforms on the continental shelf. (See sidebar on International Conventions on Terrorism).
After World War II (1939-45), the concept of "crimes against humanity" was established and formed the basis for the prosecution of German Nazis. Since then, any individual suspected of crimes against humanity (most of which occurred in connection with the Holocaust) can be arrested and tried anywhere in the world.
In spite of this variety of coverage, a gap still existed in the rules regarding prosecution. It was determined that new treaties on terrorism should provide jurisdiction to the nation of which the victims of an attack are citizens. This principle was first enshrined in a series of treaties on airplane hijacking that were concluded in the 1960s and 1970s under the auspices of the International Civil Aviation Organization. In article 4 the 1963 Tokyo Convention declares: "A Contracting State … may … interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offense committed on board … in the following cases: … b) the offense has been committed by or against a national or permanent resident of such State …"
Since then, it has become commonplace for states to take action against terrorists if their own nationals are in danger. The most dramatic example of this is the 1976 Israeli commando raid in Entebbe, Uganda, to rescue Israelis held hostage by Palestinian terrorists. In the case of the bombing by Osama bin Laden's al-Qaeda organization of U.S. embassies in Africa in 1998, local authorities and foreign governments cooperated by capturing and extraditing the suspects to the United States. They were tried in a New York federal court, convicted of numerous offenses, and sentenced to multiple life sentences in 2001. It is likewise generally understood by foreign governments that any Taliban or al-Qaeda operatives captured in Afghanistan in connection with the events of September 11, 2001, can be legitimately prosecuted by U.S. authorities.
Over time, treaties have been concluded on a wide range of terrorist offenses without much effort given to either define terrorism or consider the root causes of the grievances. As of September 11, 2001, treaties had been concluded on three types of topics: those involving international transportation (maritime conventions, aircraft conventions), those involving specific types of attacks (hostage-taking, bombings, attacks on diplomats, and attacks on nuclear materials), and those involving the means used by terrorists to carry out their attacks (financing and plastic explosives). They fill the gaps often found in extradition treaties that make it difficult for countries to persuade other states to hand over suspects. In most cases the extradition rules of the conventions supersede existing bilateral extradition treaties—in other words, agreements between two states take a back seat to these multilateral agreements.
Domestic Laws v. International Law
A second focus of international antiterror conventions has been filling gaps in domestic law. In some countries actions that might be considered crimes overseas are not criminal. For example, U.S. laws on criminal conspiracies are not found in other countries. Since extradition treaties generally require that the offense in question be a crime under both states' laws, this gap has allowed some suspects to find refuge in spite of extradition treaties.
Antiterrorism treaties often require signatories to change their criminal code to incorporate the offenses listed. For example, under the 1988 Rome Convention on Maritime Navigation, Article 5 states: "Each State party shall make the offenses set forth in Article 3 punishable by appropriate penalties which take into account the grave nature of those offenses." Article 3 lists not only direct acts of violence against ships, but also the provision of false information aimed at endangering the ship, threatening a ship's safety with intent to intimidate, or providing assistance to anyone who does any of the above.
When a state ratifies a convention, it typically takes the steps necessary at that time to alter its domestic law to bring it into compliance with the international rules. Thus, a general provision to alter the criminal code will likely be carried out by the signers even though this may seem to be a lot to ask. As illustrated in the table entitled Status of International Conventions Pertaining to International Terrorism, a very large number of states have signed and ratified most of the antiterrorism conventions—particularly those relating to airplane safety.
With these two gaps plugged it is possible to demand that all states adopt an "extradite or prosecute" policy with respect to terrorists. Essentially, this means that a state harboring a suspected terrorist will not be able to hide behind the lack of an extradition treaty or a gap in domestic law. The hope is to extend a network of such "extradite or prosecute" commitments across topics and across countries until there is no safe haven left.
The Convention on Terrorism
The only thing that remains is to draft a treaty that is comprehensive in its scope in order to cover any terrorist acts that are not mentioned in the existing treaties. As mentioned earlier, this has proved to be extremely difficult.
During the 1970s a serious attempt was made at the UN to draft a comprehensive convention on terrorism. From 1973 until 1979, an ad-hoc committee of the General Assembly gathered periodically to review draft texts and negotiate language. The culmination of the process was a report that demonstrated a profound disagreement on the scope of terrorist crimes. Specifically, a number of states argued that terrorism was inherently political and carried with it important legal justifications in some circumstances. A concerted effort was made to exempt Palestinians fighting Israeli occupation. They hoped to include the type of language that made its way into the Hostage Convention's Article 12: " … [T]he present Convention shall not apply to an act of hostage-taking committed in the course of armed conflicts … in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination … "
This language is limited by the rules of the Geneva Conventions, which allow prosecution of war criminals (including hostage-takers), but represents the high-water mark of the supporters of national liberation movements, says Wil D. Verwey in the January 1981 American Journal of International Law article, "The International Hostages Convention and National Liberation Movements." Although the language was permitted in the Hostages Convention, the West objected to including it in an all-encompassing terrorism convention, and after a time the best the delegates could do was to agree to disagree.
Second, many developing countries have wanted to include state-sponsored terrorism as it pertains to repressive acts by governments against minorities or indigenous populations. Their argument is that far greater violence is done in the world in the name of existing states by soldiers and policemen than is done by terrorists in the name of political movements. Needless to say, the West has never wanted to include this type of behavior in conventions, mostly on the ground that humanitarian law already prohibits abuse of legal authority (note the treaties on genocide, torture, civil and political rights, and so forth).
In addition, many countries wanted to force other states to provide a once-and-for-all definition of "terrorism" in the hope that this would open up a debate on the causes of terrorism and the nature of justice in the world. Again, the West was not interested in such an exercise, which would consume a tremendous amount of time and was more than likely doomed to failure. Thus, no formal treaty was concluded.
International Resolutions and the End of the Cold War
During the next few years, the UN General Assembly passed a number of resolutions on terrorism. Although not treaties, these statements give some indication of the mood and opinion of the body and may ultimately guide the development of new laws. Common to these new resolutions was an agreement to criminalize terrorism and to specifically prevent terrorists from using political motive as an excuse, according to Ross Schreiber in his 1998 Boston University International Law Journal article "Ascertaining Opinio Juris of States Concerning Norms Involving the Prevention of International Terrorism."
It is a bit unclear why these resolutions were successfully passed, since they were approved by countries that have since opposed this language. It is clear that international conditions and principles were evolving. The Soviet Union reversed its policy of supporting national liberation movements beginning in 1986, and by 1987 was openly critical of them. This left numerous groups without a key outside sponsor. In addition, as the Cold War climate began to thaw, it became possible for the United States to withdraw from many parts of the developing world where it had supported guerrillas and terrorists, including Central America, Afghanistan, and much of Sub-Saharan Africa. The result was the isolation of many terrorist groups, on the one hand, and the gradual emergence of democratic regimes on the other.
Where grievances had some legal basis, many groups began to find they could use the ballot rather than the bullet to achieve their ends. Note for example, the Contra guerrillas, operating in and around Nicaragua with U.S. support, disbanded as part of the Central American peace process and turning instead to campaigning in the next election, which they won. Likewise, the IRA has gradually turned away from terrorism with the loss of Soviet sponsorship and instead has pursued a negotiated settlement, culminating in the Good Friday Accords in 1998, and the establishment of a joint Catholic and Protestant government. The IRA finally announced its decision to disarm in late 2001. Most significant was the conclusion of the 1993 Oslo Accords through which Yasser Arafat and the Palestine Liberation Organization officially renounced terrorism and recognized the right of Israel to exist in peace. This led to the agreement on Israel's part to withdraw troops from numerous parts of the occupied West Bank and Gaza Strip and yield control of a few towns to the newly created Palestinian Authority. While the peace process has encountered very serious obstacles since then, the fact of the matter is that the PLO is no longer considered a terrorist organization. Finally, with the collapse of the Soviet Union, dozens of nationalities were able to secure their own state, thus resolving long-standing grievances in several regions. The number of non-self-governing territories had dwindled to a mere handful.
Terrorists of the 1990s
By the mid-1990s the terrorist groups that remained tended to be more vicious and uncompromising than in the past. Some were still traditional guerrilla-type movements with aspirations to power, such as the various groups operating in Kashmir to overturn Indian rule or the Maoist Shining Path guerrillas in Peru that hoped to overthrow that regime in time. Still others are more clearly criminal in nature, such as the "narco-terrorist" groups in Colombia that operate like oversized street gangs.
Some groups are fanatically committed to preserving cultural and social institutions on the basis of a rigid interpretation of religion or ideology, and there appears to be no possibility of dialogue or compromise with them. Islamic extremists, in particular, have gained notoriety not only for their acts of violence and political destabilization but also for the attacks they have made against Western targets all over the world. Various extremist groups have been responsible for the assassination of Egyptian president Anwar Sadat (1918-81), ethnic cleansing in Afghanistan, bombings in Africa, and (apparently) the attacks on the United States in New York City and Arlington, Virginia, on September 11, 2001. The threat these groups pose to both developed and less-developed states has contributed to an increase in international cooperation to fight terror.
At the close of the Fifty-first General Assembly session in 1996, a resolution was passed that created a committee of all the UN's members to draft a convention on terrorism. At that time, proposals were put forward to draft treaties on four topics: financing of terrorism, terrorist bombings, preventing nuclear terrorism, and a general antiterrorism convention. Various countries drew up draft agreements, and within two years the UN negotiators were able to agree on language on the first two topics. A convention on nuclear weapons was also nearly completed, although the negotiations stalled on whether to address the question of states' use and possession of nuclear material. This treaty is still not complete.
India's 1997 Draft Text
Meanwhile, India put forward a draft text for the comprehensive convention on terrorism in 1997 in an effort to push things forward. The draft is inspired by what was becoming common language across the four conventions. In particular, it includes a now-standard phrase: "Reaffirming their unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomever committed…" (Pre-amble: India draft) Article 5 states:
Each State Party shall adopt such language as may be necessary, including, where appropriate, domestic legislation, to ensure that criminal acts within the scope of this Convention are under no circumstances justifiable by considerations of a political, philosophical, racial, ethnic, religious or other similar nature.
Such language is designed to force governments to commit to the criminalization of acts of terrorism once and for all—a high priority for Western countries in particular. It should be noted that India has a special concern for this topic because of its struggle against violent Kashmiri separatists, whom it brands terrorists.
Article 2 of the draft convention lists the crimes covered under the scope of the convention. They include the infliction of bodily injury or death to people, as well as damage to government property or public facilities, "when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act." In addition, as seen in other treaties, anyone who attempts but fails to commit such an act, or aids and abets someone else in committing such an act, is guilty of terrorism.
This sweeping language seems to be exactly what the West is seeking, and, based on author interviews with UN diplomats in October 2001, the convention is in fact very popular among most governments (based on author interviews with UN diplomats, October 2001). Article 11, for example, provides for the "extradite or prosecute" rule whereby the suspect must face justice. Article 14 makes it clear that states may not apply the "political exception" rule when deciding whether to extradite someone. Article 18 clearly exempts the armed forces from prosecution under the terrorism convention on the grounds that other treaties already cover their actions.
The convention has not yet passed muster with most Arab states. In an effort to appease them, but without losing the support of Western powers, the Indian delegation inserted a number of carefully worded escape clauses. For example, Article 15 allows a government to refuse to extradite a suspect if it has a reasonable fear that the individual will be treated unfairly on the basis of his or her race, religion, political opinion, and so forth. Pakistan, for example, knows the whereabouts of many Kashmiri rebels, but chooses not to arrest or extradite them to India on these grounds. This is similar to the granting of political asylum. Most important, however, is the wording of Article 21 of the draft:
Nothing in the Convention shall affect other rights, obligations and responsibilities of States and individuals under international law, in particular the purposes of the Charter of the United Nations, international humanitarian law and other relevant conventions.
As the Indian diplomat who crafted the draft explained to the author, this article was designed to provide special treatment, if so desired, for those who are fighting for self-determination, since this right is enshrined in numerous UN conventions and treaties. Such is the subtlety of international law!
The Process Stalls
As it turns out, the device did not work. At a session in early 2001, countries representing the Organization of the Islamic Conference (OIC) submitted a proposal to add a clause similar to Article 12 of the Hostages Convention. The proposal found very little support, but quickly became a "deal breaker" for the OIC, meaning that none of its members would approve the convention without the language in question being added. They also sought to remove the exemption for organized military forces. They stated, as did one Arab diplomat to the author, that those who live in occupied territories should be allowed to take up arms under an inherent right of rebellion just as the French did when under Nazi occupation during World War II. If the soldiers of the occupying army commit atrocities, why should this not be considered terrorism, and why shouldn't the foreign soldiers be prosecuted?
Numerous other minor amendments—over thirty in all—were on the agenda by the time the Fifty-sixth UN General Assembly was scheduled to open—on September 12, 2001.
Recent History and the Future
September 11, 2001, and International Law
On September 11, 2001, the terrorist attacks that took place in the United States "shook the United Nations" as well as the United States. New York's World Trade Center was less than three miles from UN headquarters, and most UN diplomats have many friends and acquaintances throughout the city. Many were personally affected by the tragedy. Secretary-General Kofi Annan labeled the event an attack on all humanity, and said that as such all humanity had a stake in finding the terrorists and bringing them to justice.
The September 11 attacks created a brand-new political climate. Both the Security Council and the General Assembly suspended business in order to issue a condemnation of the attack in the strongest language. The Security Council passed a resolution that described the attack as an act of aggression and authorized the United States to take whatever measures it saw fit to retaliate. In the days following the attack, members of the Council assured the United States that its plans to launch an attack against the Taliban regime and al-Qaeda organization in Afghanistan were consistent with the meaning of that resolution. The attack also prompted Syria, the Palestinian Authority, Iran, and other some-time supporters of terrorism to issue a formal condemnation.
It was in this environment that the United States moved to draft and pass the little-noticed Security Council resolution 1373 on September 28, 2001. It is no doubt the most powerful legal instrument on terrorism ever, and its passage represents one of the most deft diplomatic maneuvers ever executed by the United States.
Resolution 1373 targets terrorism quickly and unflinchingly. It ignores the question of defining terrorism or even terrorist acts, let alone considering political motives. It simply declares that any act like the September 11 bombings is a "threat to international peace and security" activating "the inherent right of individual or collective self-defense." This means that terrorism is an act of war and any state can retaliate militarily. Furthermore, the resolution requires all countries, under penalty of un-spoken sanctions, to fight terrorism by ferreting out suspects and cutting off their funds and protection, not to mention ratifying all existing anti-terror treaties, all within ninety days. To ensure that these measures were carried out, a small committee was quickly established to monitor compliance.
In the following week, nearly every country took the microphone to speak about terrorism during a special UN meeting. Governments either specifically endorsed 1373 or were simply silent. Although a few complained later that there should have been wider consultation, only Zimbabwe expressed strong doubts about the resolution's legitimacy. Privately, most governments expressed relief that the United States was taking on al-Qaeda and the Taliban and only feared that it would stop short of completing the job.
A well-known principle in international law states that so long as no one objects to a legal claim, the claim stands. With respect to new international rules, the lack of objection also gives the rule prima facie (true at first appearance) validity. Beres notes that it is also true that in spite of the diplomatic support given to national liberation fronts in principle, there has always been a sense that certain violent actions against innocent victims could not be justified by any political motivation.
In early 2002 it seems the new rule was having a dramatic effect. Fidel Castro recently announced Cuba's intent to ratify all existing anti-terrorism conventions, in accordance with UN injunctions. Syria has made a similar pledge. China, Russia, and the United States are seeing a renaissance; their usually strained relationships with one another improved thanks to unity on the terror issue. The vast majority of countries is moving quickly to comply with resolution 1373. As a gesture of good will, the United States is paying all of its back dues to the UN. It would seem a new day has dawned.
Interestingly enough, the ad-hoc committee tasked with drafting the comprehensive antiterrorism convention held its meetings in October 2001. It was clear that all the delegates felt a sense of urgency about the task at hand. Many delegations simply withdrew their earlier suggestions for amendment of the India draft on the grounds that the concerns were not significant. It is likely that they, as well as the UN staff members overseeing the negotiations, recognized that much of the work of the committee had been mooted by the Security Council's action. Because Resolution 1373 is binding, it takes on a legal status similar to a ratified convention for the UN's members. Because the subject matter of 1373 overlaps the draft conventions, many delegations felt there was simply no point in haggling over the details the treaty.
This was not the case with the OIC, however, whose members have persisted in their insistence that national liberation fronts and those fighting foreign occupation have special recognition. In spite of appeals from the secretary-general and almost all UN members, the OIC blocked adoption of a consensus document. The result is that the treaty has been simply forwarded to the General Assembly as a report. The debate has been carried over to the year 2002.
Implications and Unanswered Questions
How does all of this reflect on the war on terrorism and the place of international law? Fundamentally, it has become clear that, as former Speaker of the House Tip O'Neill used to say, "it's hard to take the politics out of politics." Terrorism is a concept, much like "assassination," that is meaningful because of its political dimension. While it is relatively easy to draft conventions to facilitate international regulation of purely criminal actions, as soon as there is a political element, there is often also someone for whom the language of a treaty is a matter of great importance—even a matter of national survival.
The West has been successful recently in persuading other states to accept the criminalization of terrorism. It has been aided in this by the end of the Cold War, decolonization, democratization, and the changing face of terror. This said, it is clear that in spite of this, the basic principle of self-determination is alive and well. This is clear even in the way the anti-Taliban or anti-al-Qaeda coalition has been formed. Since September 11, both India and Russia have been unable to achieve global support for labeling their long-time enemies—the Kashmiris and Chechens, respectively—as terrorists, but instead have been urged to negotiate a political settlement that honors their rights. In the Middle East, the United States and the rest of the world have put increasing pressure on Israel to withdraw from occupied territories as part of concerted drive to a lasting peace in the region. The North Atlantic Treaty Organization (NATO) and the United Nations continue to maintain a presence in such areas as Kosovo and East Timor precisely to protect the rights of the inhabitants to self-government against the wishes of larger neighbors.
It is unlikely that the UN will ever be given the task of apprehending terrorists directly. At this point the only part of the UN that deals with terrorism is a very small UN Terrorism Prevention Branch based in Vienna, Austria, that was formed in 1999. It has roughly ten professional staff members and is devoting its time to collecting suggestions from governments on what has worked for them. It is significant that the antiterrorism unit is a part of the Center for International Crime Prevention since this reinforces the criminalization model.
It has been said that the fight for peace and the fight for justice are rarely fought in tandem. That is to say, one can maintain injustice by force and thereby create the illusion of peace, but more often than not the oppressed will find it necessary to violate the peace in order to achieve justice. You, the reader, may want to ask yourself which should come first.
Annan, Kofi. "Fighting Terrorism on a Global Front," New York Times, A27, September 21, 2001.
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Crenshaw, Martha. Terrorism and International Cooperation.New York: Institute for East-West Security Studies, 1989.
Dean, Benjamin P. "Self-Setermination and U.S. Support of Insurgents: A Policy-Analysis Model," Military Law Review 122 (1988): pp. 149-220.
Halberstam, Malvina. "Terrorism on the High Seas: The Aquille Lauro, Piracy and the IMO Convention on Maritime Safety," American Journal of International Law 82, no. 2 (April 1988): pp. 269-310.
Morris, Virginia, and M.Christiane Bourloyannis-Vrailas. "The Work of the Sixth Committee at the Fifty-Third Session of the UN General Assembly," American Journal of International Law 93 (July 1999): pp. 722-732.
Paust, Jordan J. "Human Rights and Human Wrongs: Establishing a Jurisprudential Foundation for a Right to Violence," Emory Law Journal 32 (Spring 1983): pp. 545-581.
Petersen, Antje C. "Extradition and the Political Offense Exception in the Suppression of Terrorism," Indiana Law Journal 67 (Summer 1992): pp. 767-795.
Phillips, R. Stuart. "The Political Offense Exception and Terrorism: Its Place in the Current Extradition Scheme and Proposals for Its Future," Dickinson Journal of International Law 15 (Winter 1997): pp. 337-359.
Rosenstock, Robert. "The Declaration of Principles of International Law Concerning Friendly Relations: A Survey," American Journal of International Law 65, no. 4 (October 1971): pp. 713-735.
Schreiber, Ross. "Ascertaining Opinio Juris of States Concerning Norms Involving the Prevention of International Terrorism: A Focus on the UN Process," Boston University International Law Journal 16 (Spring 1998): pp. 309-330.
Szasz, Paul C. "The Irresistable Force of Self-Determination Meets the Impregnable Fortress of Territorial Integrity: A Cautionary Fairy Tale About Clashes in Kosovo and Elsewhere," Georgia Journal of International and Comparative Law 28 (Fall 1999): pp. 8,955-8,961.
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Kendall W. Stiles
1937 The League of Nations diplomats sign the Convention for the Suppression of Terrorism.
1960 The UN General Assembly passes a resolution entitled the Declaration on the Granting of Independence to Colonies, Countries and Peoples (1514/XV).
1963 Diplomats in Tokyo sign the Convention on Offenses and Certain Other Acts Committed On Board Aircraft.
1965 The UN General Assembly passes Resolution2105/XX, urging all states to support movements of national liberation.
1970 Diplomats in the Hague sign the Convention for the Suppression of Unlawful Seizure of Aircraft.
1971 Diplomats in Montreal sign the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, and the UN General Assembly approves the Declaration of Principles of International Law Concerning Friendly Relations Between States.
1972 The United States submits a Draft Convention for the Prevention and Punishment of Certain Acts of International Terrorism to the UN.
September 5, 1972 The "Black September" terrorist group attacks Israeli athletes at the Olympic Games in Munich.
1973 UN diplomats sign the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents.
1976 Israel carries out a commando raid on an airport in Entebbe, Uganda.
1979 UN diplomats sign the International Convention against the Taking of Hostages.
1979 Diplomats in Vienna sign the Convention on thePhysical Protection of Nuclear Material.
1988 UN diplomats sign the Protocol for theSuppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (supplementary to the Hague Convention), while diplomats in Rome sign the Protocol 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.
1991 Diplomats in Montreal sign the Convention on the Marking of Plastic Explosives for the Purpose of Detection.
1993 A group associated with Ramzi Yousef carries out the first World Trade Center attack.
1996 The UN passes resolution 51/210, establishing four ad-hoc committees to draft international treaties on terrorism.
1997 Suspects in the World Trade Center bombing are convicted in a New York federal court.
1997 UN Diplomats sign the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of Financing of Terrorism.
1998 The Good Friday accords on Northern Ireland are concluded.
August 7, 1998 U.S. embassies in Kenya and Tanzania are bombed.
September 11, 2001 Terrorists attack sites in New YorkCity and Arlington, Virginia, near Washington, DC, killing more than three thousand people.
2001 The UN Security Council passes Resolution 1373, requiring member states to stop any support or harboring of terrorists and urging states to ratify existing antiterrorism conventions.
2001 A UN General Assembly debate on a new convention on terrorism remains mired in disagreements over scope.
2001 Suspects in the African embassy bombings are tried and convicted in New York.
2001 The IRA agrees to disarm in Northern Ireland.
Status of International Conventions Pertaining to International Terrorism as of September 11, 2001
|1963 Tokyo Convention||41||171|
|1970 Hague Convention||77||173|
|1971 Montreal Convention||60||174|
|1973 Convention on Internationally Protected Persons||25||107|
|1979 Hostage Convention||39||95|
|1979 Vienna Convention||45||69|
|1988 Protocol to the Hague Convention||69||107|
|1988 Rome Convention on Maritime Navigation||41||52|
|1988 Protocol on Fixed Platforms||39||48|
|1991 Plastic Explosives Convention||51||66|
|1997 Convention on Terrorist Bombings||59||24|
|1997 Convention on Financing of Terrorism||43||3|
United Nations Support in the Wake of September 11
On the day after the heinous September 11 terrorist attacks in Washington and New York, the General Assembly of the United Nations, by consensus of the 189 member states, called for international cooperation to prevent and eradicate acts of terrorism and to hold accountable the perpetrators and those who harbor or support them. That same day, the United Nations Security Council unanimously determined, for the first time ever, any act of international terrorism to be a threat to international peace and security. This determination laid the foundation for Security Council action to bring together the international community under a common set of obligations in the fight to end international terrorism.
On September 28, 2001, the Security Council unanimously adopted resolution 1373 under Chapter VII of the Charter of the United Nations. This historic resolution established a body of legally binding obligations on all UN member states. It defined the common core of the new international campaign to deal with international terrorists, their organizations, and those who support them.
Its provisions require, among other things, that all member states prevent the financing of terrorism and deny safe haven to terrorists. States will need to review and strengthen their border security operations, banking practices, customs and immigration procedures, law enforcement and intelligence cooperation, and arms transfer controls. All states are called upon to increase cooperation and share pertinent information with respect to these efforts. Resolution 1373 also mandated that each state report on the steps it had taken, and established a committee of the Security Council to monitor implementation. The committee will highlight best practices, identify gaps, and help coordinate advice and assistance to states that need it.
Full implementation of resolution 1373 will require each UN member state to take specific measures to combat terrorism. Most states will have to make changes in their laws, regulations, and practices. Those with the capacity to assist in these changes will be needed to help those who lack the expertise and resources to achieve full implementation.
"Report to the United Nations Security Council Counterterrorism Committee pursuant to paragraph 6 of Security Council resolution 1373 of 28 September 2001 Implementation of UNSCR 1373." December 19, 2001. Available online at http://www.fas.org/irp/threat/unsc.html (cited February 1, 2002).