International Law and Maritime Terrorism

The death of the Islamic State’s (IS) leader (27 October 2019), Abu Bakr al-Baghdadi, in a US operation in Syria has again put international terrorism at the centre stage. Precisely, this blog post discusses a manifestation of international terrorism: maritime terrorism. As evidenced below, analyses of maritime terrorism are relevant in international law and policy. Yet, maritime terrorism has received limited attention, arguably because most terrorist attacks take place on land or aircrafts. This post aims to draw attention to this key and topical issue and has two parts: a discussion on the need to create a category of maritime terrorism as an international crime, and an analysis of difficulties related to the definition of maritime terrorism as an international crime. Despite its focus on maritime terrorism, the post also applies to international terrorism at large.    

Urgency of creating a category of maritime terrorism as an international crime

Two reasons arguably demand the crafting of maritime terrorism as an international crime. A first reason is that international terrorist groups such as the IS and, sometimes, allegedly state-sponsored individuals have committed a number of maritime terrorist attacks during the last decades, leading to related state and international practice. For instance, on 23 September 2019, a group affiliated with the IS in the Philippines aboard two pump boats ambushed and seized three fishermen off the coast of East Sabah (Malaysia). Indeed, maritime terrorist activities in the Malacca and Singapore Straits have prompted The Philippines, Indonesia and Malaysia via a Trilateral Cooperative Agreement (2017) and ASEAN to act. There is also a bilateral agreement between the Philippines and India (October 2019) aimed to strengthen their ties to ensure maritime security, particularly as for maritime terrorism. Earlier this year (May 2019), four Saudi oil tankers, one bound for the US, were attacked following warnings that Iran or proxies could target shipping although the Security Council (SC) fell short of blaming Iran. These examples illustrate the current relevance of analyses of maritime terrorism under international law. It was indeed a maritime terrorist attack that prompted the adoption of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) (1988). The Achille Lauro, an Italian-flag cruise ship, was seized by Palestine Liberation Front members (October 1985). They held the ship’s crew and passengers as hostages, threatened to kill them, and demanded Israel to release 50 prisoners to spare the hostages. In the post 9-11 era, a number of maritime terrorist attacks have occurred, including Al-Qaida attacks against the US destroyer Cole in Yemen (2000), a French oil tanker in Limburg (2002), and an offshore oil terminal in Iraq (2004), as well as an IS-affiliated group’s attack on an Egyptian vessel in the Mediterranean Sea (2015).

A second key reason is that international terrorism, maritime terrorism included, arguably constitutes an international crime sensu stricto based on the following. First, the SC via inter alia its Chapter VII Resolutions has strongly condemned international terrorism. For instance, Resolution 579 (1985) referred to the Achille Lauro attack as: ‘offences of grave concern to the international community’. Since then, the SC has consistently pointed out that international terrorism is criminal, unjustifiable and one of the most serious threats to international peace and security, which requires cooperation and enforcement mechanisms to suppress it, e.g. Resolution 2462 (2019). Second, by invoking inter alia treaties on maritime terrorism, the Special Tribunal for Lebanon (STL)-Appeals Chamber in Ayyash et al. (16 February 2011) concluded that: ‘a number of treaties, UN resolutions, and the legislative and judicial practice of States evince the formation of a general opinio juris in the international community, accompanied by a practice consistent with such opinio, to the effect that a customary rule of international law regarding the international crime of terrorism, at least in time of peace’ (para. 83). Third, other international organs/organizations have paid attention to maritime terrorism as a serious threat to international security. In 1985, the General Assembly (Res 40/61) requested the International Maritime Organization (IMO): ‘to study the problem of terrorism aboard or against ships with a view to making recommendations on appropriate measures’ (para. 13). The IMO’s activities have included diverse actions: from a pivotal participation in the drafting of international instruments on maritime security to issuance of reports and guidelines. Fourth, international treaties on maritime terrorism/international terrorism have high numbers of ratifications/adhesions. There are also an increasing number of legislations on international terrorist offences, maritime terrorism included, and over which universal jurisdiction may be exercised. This state practice includes diverse legal traditions and regions, e.g., the United Kingdom, Dominican Republic and Serbia. Finally, although not concerning maritime terrorism per se, there is increasing state practice in international adjudication concerning events that (seriously) affect maritime security, e.g., ‘Enrica Lexie’ Incident (Italy v. India) provisional measures at the International Tribunal for the Law of the Seas (ITLOS) and the Artic Sunrise incident (European Court of Human Rights / ITLOS).

Difficulties arising from providing constitutive elements for maritime terrorism as an international crime

There are difficulties to construe a comprehensive definition of international terrorism, including maritime terrorism. First, endless discussions on the meaning of terrorism have characterized international law. The negotiations of the Comprehensive Convention on International Terrorism (CCIT) have been deadlocked due to important differences over a legal definition of terrorism which is both consensual and fully consistent with the principle of legality. Since 2002, the Draft CCIT (Article 2(1)) provides this definition: ‘Any person commits an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally, causes [underlying criminal conducts] when the purpose of the conduct, 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’. Offences under counter-international/maritime terrorism treaties were considered during the International Criminal Court (ICC) Statute’s travaux préparatoires. However, the said lack of consensus was decisive not to include international/maritime terrorism in the ICC Statute. Although the SC in Resolution 1566 (2004) provided a comprehensive definition of international terrorism, the SC is a political body. In turn, the STL-Appeals Chamber in Ayyash et al. has identified customary defining elements, based on inter alia maritime terrorism instruments: ‘(i) perpetration of a criminal act […] or threatening such an act; (ii) the intent to spread fear among the population […] or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element’ (paras. 83 and 85). Nevertheless, this is a jurisprudential rather than a multilateral treaty definition. Moreover, this definition has been criticised in academia due to inter alia the partial lack of precision of its objective (actus reus) and subjective (mens rea) constitutive elements. Finally, the EU’s Framework Decision on Combating Terrorism definition (2002) and amending decision (2008) are only binding regionally.

Second, compared to the core international crimes, i.e., genocide, crimes against humanity, war crimes and aggression, the legal definition of international/maritime terrorism is not yet consolidated in international law. Indeed, there is a plethora of specific treaties on maritime terrorism such as the SUA’s Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Maritime Platforms Located on the Continental Shelf (1988) and the 2005 Protocol to the SUA Convention or treaties directly related to maritime terrorism such as the International Convention for the Suppression of the Financing of Terrorism and the UN Convention on the Law of the Sea (UNCLOS). This has contributed to fragmented or diverging rather than unified or converging approaches to maritime terrorism. As for the other major maritime offence, namely, piracy, there is a sharp contrast. The customary definition of piracy has been widely accepted and is reflected in the UNCLOS (Article 103), which is one of the most widely ratified/adhered multilateral treaties. In any event, a key difference between piracy and maritime terrorism is that whereas the former needs to be committed ‘on the high seas’ or ‘in a place outside the jurisdiction of any State’ (UNCLOS, Article 103), the latter can be committed in any maritime zone.                

Conclusion and potential ways ahead    

The most serious manifestations of international terrorism, including maritime terrorism, may arguably be considered as a core international crime in light of international and state practices which have addressed a series of maritime terrorist attacks in the last decades. However, there are difficulties to accurately construe the definition of maritime terrorism. Lex ferenda, in addition to the adoption of the CCIT, the incorporation of international/maritime terrorism in the jurisdictions of the ICC and ITLOS via amendment respectively of the ICC Statute and UNCLOS may help to rectify the above-mentioned deficit. Thus, these courts could exercise jurisdiction over maritime terrorism and determine individual criminal liability (ICC) and state responsibility (ITLOS) – the latter if there is some state involvement. They can crucially develop jurisprudence which clarifies diverse elements and dimensions of the definition of maritime terrorism. And this may/should ideally lead to judicial cross-fertilization between them and vis-à-vis the International Court of Justice, which can already exercise jurisdiction over inter-state disputes concerning the SUA, etc. Another prospective development could be specialised international/regional and/or national court(s) with jurisdiction over maritime terrorism/offences. The SC has actually considered this as a potential option, e.g., Resolutions 1918 (2010) and 2442 (2018).