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Home Archive for category "Terrorism" (Page 4)

Some Reflections on the Legal Treatment of Terrorism: Marking the 11th Seminar of the Latin American Study Group on International Criminal Law

At its last seminar, which took place in Lima from 27 to 29 October 2014, the Latin American Study Group on International Criminal Law (Link KAS/Link CEDPAL) discussed the complex phenomenon of terrorism in its Latin American context. Taking group members’ presentations as its starting point, the debate focused on how this phenomenon is being dealt with in some Latin American states and the transnational and international issues arising in consequence. The following main problems were identified: the lack of conceptual clarity in the definition of terrorism as a criminal offence, the flexibilisation of the principle of legality, the disproportionality of punishments, forms of procedure that seem dubious from the perspective of the rule of law, and a populist, warlike discourse (“guerra al terrorismo”). The most important conclusions were included in the so-called Declaration of Lima, which is printed at the end of this brief report.

Over and above aspects of criminal law in a narrower sense, the fight against terrorism challenges states from a criminological and socioeconomic point of view, as well as from the perspective of criminal policy. Furthermore, the political populist discourse on terrorism has influenced the way terrorism is treated in criminal law. This topic’s complexity starts with the lack of conceptual and terminological clarity concerning what is actually to be understood as terrorism and accordingly what is to be prosecuted and punished. The lack of a definition of terrorism that has been mutually agreed upon at an international level has led to (the possibility of) very different acts – ranging from social protest to the undifferentiated use of weapons of great destructive power – being called terrorist.

In the Declaration of Lima, the study group explicitly acknowledges that terrorism is a serious crime; however, this does not free the states in question from their obligation to observe the boundaries set by the rule of law. This is why it is necessary to create a very precise legal definition of the relevant punishable conduct and observe the principle of proportionality when determining the extent of the punishment and the concrete sanction to be applied. Furthermore, no special jurisidiction may be created. In addition, the principles and rules of fair trial under the rule of law must apply in the same way they do to other criminal offences. Read the rest of this entry…

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Not Only a Matter of Lex Specialis: IHL, the European Union and Its Two Definitions of Terrorism

Published on December 1, 2014        Author: 

These times of foreign fighters who travel from Europe to Iraq and Syria have revived the debate on how the definition of terrorism relates to armed conflict. The recent judgment of the EU first instance judicial body, the General Court, in the Tamil Tigers case highlights that different approaches are possible even within a single polity, the European Union. This post discusses the underlying rationale and the implications of the decision’s conclusion on the relationship between terrorism and armed conflict, which appears to have gone unnoticed in legal circles. Other relevant findings of the Court (for instance, the validity of a judgment of an Indian court as a basis for the listing of the group) will not be addressed here.

The EU has been one of the main supporters of current Article 3 of the Draft Comprehensive Convention on International Terrorism (former article 18), according to which the definition of terrorism excludes ‘international law applicable in armed conflict, in particular those rules applicable to acts lawful under international humanitarian law’ (paragraph 4). To advance the present version of the convention, the EU has signed partnership agreements with Iraq and South Korea that include reciprocal agreement to support it. As is well known, Article 3 is the main cause of deadlock in the negotiations. It is not by chance that the United Nations Security Council has been operating for years without a definition of terrorism.

Despite its support for Draft Article 3, the EU itself is not alien to the tensions preventing the provision’s adoption. The recent judgment of the General Court has demonstrated that, even within the EU, the relationship between IHL and terrorism is unsettled. For the sake of discussion, I will assume that the EU is bound by customary IHL in the exercise of its competences, which implies inter alia a duty to interpret EU law in accordance with customary IHL (as AG Mengozzi claimed in Diakité, paras. 23-27). Read the rest of this entry…

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Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part II

Published on November 21, 2014        Author: 

This is Part II of a two-part post. Read Part I here.

Res. 2178 is no basis for criminal sanctions

Resolution 2178 is not in itself the basis for criminalising the behaviour it seeks to suppress. On the contrary, it resembles the classic suppression conventions, i.e. international treaties imposing the obligation on contracting parties to prohibit individual forms of conduct in their national law and, where applicable, to criminalise and punish them.

So no foreign fighter-suspect could be tried and sentenced on the legal basis of Res. 2178 alone. But the reason is not, I submit, that a Security Council resolution could never – from the perspective of international law − function as a “lex” in the sense of the principle nulla poena sine lege. The reason is that the “lex” here does not in itself explicitly establish the crime, but on the contrary explicitly asks states to do to, through their domestic criminal law. Res. 2178 makes it amply clear in its wording that it does not intend to establish the criminal offence directly. It may well be that under the domestic law of some countries, the understanding of nulla poena is stricter. However, if we want to uphold a functioning system of global governance, states and scholars must develop an “internationalised” principle of legality that need not consist only in the lowest common denominator but which is informed by values of global constitutionalism.

Previous Security Council resolutions directly addressing individuals

Resolutions combatting terrorism and piracy

Previous Security Council resolutions had not imposed any obligations on terrorists or terror-suspects as such; they addressed only states (for instance, res. 1624 (2005), para. 1(a); res. 1540 (2004) on weapons of mass destruction). The same is true of all UN Security Council resolutions on piracy (e.g., UNSC res. 1838 (2008)). Read the rest of this entry…

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Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part I

Published on November 20, 2014        Author: 

This is Part I of a two-part post. Read Part II here.

Introduction

At a summit meeting of 24 September in which over 50 government representatives were heard, the Security Council unanimously adopted Resolution 2178 (2014) which foresees measures to contain the travel of and support for persons intending to participate in terror acts, notably against the background of the rise of the group “Islamic State in Iraq and the Levant” (ISIL) and the Al-Nusra front and other affiliates of Al-Qaida.

Resolution 2178 “reaffirms” what previous resolutions since 9/11 had found, namely that “terrorism [normally committed by natural persons] … constitutes one of the most serious threats to international peace and security” (preamble first indent; see previously, e.g., UNSC res. 1368 (2001)). In preamble indent 12, the Council defines a “new threat”, namely the “foreign terrorist fighter threat” which “includes, among others, individuals supporting acts or activities of Al-Qaida and its cells”.

Most paragraphs of the res. 2178 are, in their structure, not novel. They oblige states to adopt measures, and “ensure in their domestic laws” (para. 6) to suppress, combat, prosecute, and penalise the recruiting, organising, transporting, and equipping of individuals travelling for the purpose of perpetrating terrorist acts, e.g. in paras 2, 5, 6, 8. The obligations to criminalise certain behaviour seem, however, quite far reaching as also pointed out by Kai Ambos.

One interesting feature of res. 2178 is that it directly addresses individuals: Operative para. 1 “demands that all foreign terrorist fighters disarm and cease all terrorist acts and participation in the conflict”. The three interrelated questions discussed in this post are whether res. 2178, firstly, creates binding international legal obligations for individuals themselves; secondly, whether (some of) the resolution’s provisions are directly applicable in the domestic order of the UN Member states; and thirdly, whether the non-observance of these individual obligations constitute a crime by virtue of the resolution itself.

International individual obligations flowing from Res. 2178?

The question is whether Res. 2178 is able to impose legally binding international obligations on the individuals addressed. Is the resolution itself the legal basis for an obligation of “foreign terrorist fighters” to desist from forging identity papers, to desist from travelling to the combat field of ISIS, to recruit volunteers, and of course to refrain from committing terrorist acts, and the like? Read the rest of this entry…

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Our terrorists, your terrorists? The United Nations Security Council urges states to combat “foreign terrorist fighters”, but does not define “terrorism”

Published on October 2, 2014        Author: 

The aim of Resolution 2178 of the UN Security Council, which was passed unanimously on 24 September, is laudable in principle: to combat the growing jihadi “terror tourism”, coming from France, Germany, the UK and other Western states, in a comprehensive manner, not just through criminal and police laws. In its preamble, the eight-page Resolution explicitly recognises that international terrorism cannot be defeated through military and other repressive measures alone. However, it does not define terrorism, its key object of reference, instead speaking vaguely of “terrorism in all forms and manifestations”. Its operative paragraphs (paras. 2 ff.) refer to “terrorists”, “terrorist groups”, “individuals” and “person[s]” travelling abroad to fulfil a terrorist “purpose”, making no distinction between them. This terrorist purpose supposedly consists of the perpetration or preparation of terrorist acts, or the participation in terrorist acts or terrorist training. UN member states must prosecute the persons in question. Furthermore, they must make any financing of such journeys and assistance in carrying them out, including the recruitment of “terrorist” fighters, subject to criminal sanctions and prosecution. Finally, the listing of the persons in question – famously called a ‘civil death penalty’ by Dick Marty, the former chairman of the Legal Affairs and Human Rights Committee of the Council of Europe – is also provided for (para. 7).

But how is all of this to work under the rule of law if the phenomenon to be combatted is not defined? The Resolution remains silent on this issue, referring only to fighters belonging to ISIL, ANF and other groups deriving from Al-Qaida (para. 10), without, of course, presenting this as a definitive list. One wonders why the Resolution did not adopt para. 3 of Security Council Resolution 1566. This paragraph defines terrorist acts as acts (1) committed with the intent to cause death or serious bodily injury, or taking of hostages, (2) 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 (3) constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism. This is, in essence, the definition of international terrorism recognised by customary international law, which also forms the basis for a UN draft treaty of 2010 and is referred to in international jurisprudence, such as the famous jurisdictional decision (15 Feb. 2011) of the UN Special Tribunal for Lebanon, mainly authored by the late Antonio Casesse.

Unfortunately, Resolution 2178 ignores all of these definitions and thus ultimately leaves it up to each UN member state to apply the measures called for to those individuals defined as “terrorist” by that respective state itself. Read the rest of this entry…

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Filed under: Security Council, Terrorism
 

UK House of Commons debate on the use of force in Iraq, 26 September 2014

Published on September 25, 2014        Author: 

On September 26th, the UK House of Commons will debate a Parliamentary motion which seeks to authorise:

Her Majesty’s government, working with allies, in supporting the government of Iraq in protecting civilians and restoring its territorial integrity, including the use of UK air strikes to support Iraqi, including Kurdish, security forces’ efforts against ISIL in Iraq.

The motion expressly states that it does not endorse air strikes in Syria, the authorisation for which would require a separate vote in Parliament, and that the government will not deploy UK troops in ground combat operations. The text of the motion is here. The UK government’s legal position is that there is “a clear and unequivocal legal basis for deployment of UK forces”.  A summary of this position is here.

So what do you think?

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UN Security Council Adopts Resolution 2178 on Foreign Terrorist Fighters

Published on September 24, 2014        Author: 

The Security Council, in a special sitting in which most members were represented by their heads of state or government and chaired by President Obama, has just unanimously adopted resolution 2178 (2014) on foreign terrorist fighters. Full text available here and here. The resolution is one of the most important quasi-legislative efforts of the Council since resolution 1373 (2001). Adopted under Chapter VII, it requires states to take a series of measures to prevent the movement and recruitment of foreign terrorist fighters. Some of the key operative paragraphs include:

5. Decides that Member States shall, consistent with international human rights law, international refugee law, and international humanitarian law, prevent and suppress the recruiting, organizing, transporting or equipping of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, and the financing of their travel and of their activities;

6. Recalls its decision, in resolution 1373 (2001), that all Member States shall ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice, and decides that all States shall ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense:

a) their nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training;

b) the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to finance the travel of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training; and,

c) the wilful organization, or other facilitation, including acts of recruitment, by their nationals or in their territories, of the travel of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training;

7. Expresses its strong determination to consider listing pursuant to resolution 2161 (2014) individuals, groups, undertakings and entities associated with Al-Qaida who are financing, arming, planning, or recruiting for them, or otherwise supporting their acts or activities, including through information and communications technologies, such as the internet, social media, or any other means;

8. Decides that, without prejudice to entry or transit necessary in the furtherance of a judicial process, including in furtherance of such a process related to arrest or detention of a foreign terrorist fighter, Member States shall prevent the entry into or transit through their territories of any individual about whom that State has credible information that provides reasonable grounds to believe that he or she is seeking entry into or transit through their territory for the purpose of participating in the acts described in paragraph 6, including any acts or activities indicating that an individual, group, undertaking or entity is associated with Al-Qaida, as set out in paragraph 2 of resolution 2161 (2014), provided that nothing in this paragraph shall oblige any State to deny entry or require the departure from its territories of its own nationals or permanent residents;

The measures are far-reaching. Martin Scheinin has an important post on Just Security on the potential for abuse inherent in some of the provisions of the resolution, especially since it finds that all forms of terrorism (and not just international terrorism, however exactly defined) are a threat to international peace and security and subject to the measures set out in the resolution. It is entirely possible that some governments will use this resolution to justify repressive measures. We can certainly expect a wave of domestic legislation which may go even further beyond the requirements of the resolution. On the other hand, many of the resolution’s paragraphs expressly invoke international human rights law or other rules of international law, as did many of the delegations in the Council in their statements, including President Obama. This at least will serve to blunt overly extravagant arguments relying on the primacy clause in Article 103 of the UN Charter (cf. para. 102 of the European Court of Human Rights’ Al-Jedda judgment). But there can be no doubt that we will be dealing with this resolution for many years to come.

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Refusing to Negotiate Can Have Tragic Consequences

Published on September 9, 2014        Author: 

bellish2Jon Bellish is the Project Development Manager at the One Earth Future foundation and a fellow at the Ved Nanda Center for International & Comparative Law at the University of Denver Sturm College of Law.

On August 19, the Islamic State in Iraq and Syria (ISIS) released a video showing the beheading of American journalist James Foley, after the United States government refused to pay a nine-figure ransom. Foley’s execution prompted a debate about the propriety of paying ransoms:  on the one hand, paying can save the life of the captured hostage; on the other hand, paying ransoms fuels the very activity that gave rise to the need to pay a ransom in the first place.

Earlier this week, ISIS released another video, this one claiming to show the beheading of another American freelance journalist, Steven Sotloff. The video depicting Mr. Sotloff’s murder also showed another hostage, thought to be a British national, which has led to pressure on the U.K. government to negotiate with ISIS for his release. British Prime Minister David Cameron continues to remain faithful to the U.K.’s 40 year-old policy of not making concessions.

The United States also has a no-concessions policy and will not negotiate with hostage takers, and also encourages its citizens not to. Other countries have paid ransoms and secured the safe release of their citizens, including other journalists held by ISIS.

Which policy is the better one?  There appears to be momentum towards a ban on paying ransoms.  Because of the rise in kidnapping for ransom as a means of financing terrorism in recent years, in January 2014, the United Nations Security Council unanimously adopted a Resolution calling on states to refuse to pay ransoms to terrorists and also work with the private sector to respond to terrorist kidnappings without paying ransoms. On August 15, 2014, the Council issued Resolution 2170 directly addressing the various threats posed by ISIS. That Resolution expressed the Council’s determination to secure the safe release of hostages taken by terrorist groups without the payment of ransoms. Read the rest of this entry…

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The ECtHR Finds the US Guilty of Torture – As an Indispensable Third Party?

Published on July 28, 2014        Author: 

The recent rulings by the European Court of Human Rights in two cases concerning secret detention in Poland are remarkable, not the least because their bold approach in respect of human rights violations committed by a third party, in this case the United States of America. Of course, the US is not a party to the European Convention on Human Rights and was not a participant in the proceedings. In both cases Poland was found to have violated a number of ECHR provisions, including articles 3 and 5, by hosting a CIA black site and by otherwise participating in the US programme of secret detention and extraordinary renditions.

In paragraph 516 of Al Nashiri v. Poland (Application no. 28761/11, Chamber Judgment of 24 July 2014), the Court concludes:

In view of the foregoing, the Court concludes that the treatment to which the applicant was subjected by the CIA during his detention in Poland at the relevant time amounted to torture within the meaning of Article 3 of the Convention (…).

The same conclusion appears in paragraph 511 of Husayn (Abu Zubaydah) v. Poland (Application no. 7511/13, Chamber Judgment of 24 July 2014). Immediately after the finding on torture by the US, the Court makes its finding in respect of Poland (Al Nashiri para. 517).:

Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory …

One may ask whether the ECtHR through its formulations in paras. 516-517 created a situation where the US was an indispensable third party, to the effect that the finding in respect of the lawfulness of conduct by the US was a prerequisite for a conclusion in relation to Poland, even if the Court obviously did not consider the US participation in the proceedings (or consent to its jurisdiction) to be indispensable.

Read the rest of this entry…

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The Legality of Turkey’s Possible Self-Defence Action against ISIS: A Response to Ashley Deeks

Published on June 25, 2014        Author: 

SinaSina Etezazian is a PhD Candidate at Monash Law School.

In a recent blog post at Lawfare, Professor Ashley Deeks analyses the manner in which Turkey may lawfully protect the Turks taken hostage by the jihadist group ISIS (the Islamic State in Iraq and Syria).  She contends that ‘if the Maliki government loses total control of the country, Turkey almost certainly would be legally justified in using force in Iraq to rescue its nationals’ in accordance with Article 51 of the UN Charter.  She also takes the view that the forcible protection of citizens abroad may be equated with permissible self-defence when:

(1) the nationals in question face imminent threat of (or have suffered actual) injury;

(2) the host state is unwilling or unable to protect or rescue them; and

(3) the action of the intervening state clearly is limited to the goal of rescuing its nationals – that is, it is not engaging in pretextual intervention.

However, Deeks is on shaky legal ground concerning the ‘unwilling or unable’ and ‘last resort’ requirements. I do not aim here to consider the legal status of the protection of nationals abroad; I have discussed it elsewhere  (and it has also been addressed in length on this and other blogs and forums since the Russian intervention in Crimea). Instead, I want to explore a distinction that can be drawn between forcible responses to territorial and non-territorial attacks with respect to the ‘unwilling or unable’ and ‘last resort’ tests, clarifying why – contrary to what Deeks asserts – Turkey might not be allowed to undertake unilateral forcible measures to protect its nationals in Iraq on the basis of the right of self-defence.

The ‘Unwilling or Unable’ Test and a Distinction between Responses to Territorial and Extraterritorial Attacks

The point that Deeks makes regarding the ‘unwilling or unable’ test can hardly be said to reflect existing law, as it is founded on the claim that ‘unwilling or unable’ extends to the protection of nationals abroad, which is itself a very controversial issue in modern jus ad bellum. Let us suppose for the sake of argument that ‘unwilling or unable’ qualifies as a new norm of customary international law that allows for the exercise of the right of self-defence against non-state actors when the host state is unwilling or unable to prevent its territory being used as a base for launching attacks against the victim state’s soil. Even allowing that position, it is extremely unlikely that its scope has been so widened as to include the military rescue of nationals threatened extraterritorially.

It is true that the ‘unwilling or unable’ test has attracted some level of support from the international community since 9/11, especially when the attack has been directed against the territory of the victim state (as was apparent from states’ reaction to the September 11 attacks). Nonetheless, the most recent trend in state practice clearly demonstrates that the argument for ‘unwilling or unable’ would be uncertain at best in scenarios where Article 51 has been invoked to rescue nationals allegedly at risk outside their territory. Read the rest of this entry…

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