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.

The national or international institutions that create the regulations in question must possess democratic legitimacy. In this regard, doubts arise regarding the activities of the UN Security Council in the field of terrorism legislation in particular. In addition, these international institutions or organisations often do not possess the detailed knowledge necessary to evaluate the necessity, suitability and proportionality of a particular sanction in a given state. Thus the phenomenon of terrorism in Spain has a different emphasis than terrorism in Colombia or Mexico, for example, and measures of criminal law and criminal procedure need to take this into account. The more or less automatic adoption of international provisions on terrorism, without taking the socioeconomic, political, legal institutional and economic context of the receiving country into consideration, can lead to friction with national legal systems and encourage state abuse. Accordingly, item six of the Declaration of Lima reminds us that states implementing these international regulations are not allowed to disregard the basic rights guaranteed by their constitution and by international law.

This is not to deny the important role played by international legal instruments, organisations and courts in the protection of human rights against authoritarian governments. In Latin America in particular, the norms of international law and the respective case law can prove to be guarantors of the protection of human rights on the level of domestic law. This is important above all in cases where, as acknowledged in item five of the Declaration of Lima, the “fight” against terrorism serves as an excuse to suppress social protest and political dissidents and to restrict or even abolish procedural rights.

Item four of the Declaration is concerned with the appropriateness of the widespread rhetoric of war used in the fight against terrorism. The use of this terminology to characterise state countermeasures contradicts international humanitarian law (IHL) or the law of armed conflict – formerly referred to as “the law of war”. Using this language requires the presence of armed conflict, but terrorism also occurs in what IHL would define as times of peace; accordingly, there cannot be any “war” under these conditions. And even when terrorist acts occur within the context of armed conflict (“war”), this still does not entail lawlessness; the rules of IHL still apply to the parties of the conflict. IHL itself does not contain terrorism as an autonomous crime, but (only) prohibits terrorist acts (e.g. Art. 13(2) of Additional Protocol II of the 1949 Geneva Conventions) as these violate important IHL principles such as differentiating between combatants and civilians (principle of distinction), proportionality and the principle of precaution. Above and beyond these legal considerations, the use of war terminology always threatens to pave the way for the use of warlike instruments in actual peace.

Statement of the Latin American Study Group on International Criminal Law on the legal treatment of terrorism

Declaration of Lima

The Latin American Study Group on International Criminal Law issued the following statement at its eleventh seminar, which took place from 27 to 29 October 2014 in Lima:

 I.  Terrorism is a serious crime. Actions taken against it must comply with the rule of law.

II.  Terrorism’s punishable conduct must be defined with the greatest precision in the law, and its punishment must observe the principle of proportionality.

III.  Criminal proceedings for terrorism must not be made subject to special jurisdiction. The principles and rules of fair trial that apply to other criminal offences are equally applicable.

IV.  The rhetoric of a “war” on terrorism is inappropriate.

V.  States must not abuse the fight against terrorism to suppress social protest or political dissidents.

VI.  When implementing international standards in the field of the fight against terrorism, states must not disregard the basic rights guaranteed in their constitutions and in international law.

Lima, 29 October 2014

The authors are grateful to Margaret Hiley, M.A., Ph.D., for her invaluable assistance in the preparation of this English version.