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International Law and Maritime Terrorism

Published on November 19, 2019        Author: 

 

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). Read the rest of this entry…

Filed under: Terrorism
 

JASTA Keeps Saudi Arabia on Trial for 9/11 Terror Attacks: The US and its Foreign Sovereign Immunity Issue

Published on April 17, 2018        Author:  and

In its decision of 28 March 2018 the US District Court for the Southern District of New York denied Saudi Arabia’s motion to dismiss a high-profile lawsuit for its alleged involvement in the September 11 terror attacks, In Re Terrorist Attacks on September 11, 2001 (03-MDL-1570(GBD)) (“the Decision”). In doing so, the Court applied the Justice Against Sponsors of Terrorism Act, 28 USC §1605B (“JASTA”), for the first time since it was passed by the US Congress on 27 September 2016.

The JASTA created, inter alia, a new exception to the Foreign Sovereign Immunity Act, 28 USC §1602 (“FSIA”), to the effect that sovereign immunity under the FSIA is waived:

“in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by –

(1) an act of international terrorism in the United States; and

(2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless of where the tortious act or acts of the foreign state occurred.” (“JASTA exception”)

The Bill generated significant debate both within and outside the US, and whilst under consideration by Congress, Victor Grandaubert warned in a well-reasoned post on this blog that if passed the JASTA would “entrench the isolated and unlawful position of the US in this area”. We take the opportunity of this first application of the Act to provide an update on the recent developments. The post will examine first the Decision, and will then move to address the position of the US in relation to customary international law on sovereign immunity. Read the rest of this entry…

Filed under: Terrorism
 
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A Plea Against the Abusive Invocation of Self-Defence as a Response to Terrorism

Published on July 14, 2016        Author: 

The use of force in self-defence against terrorist groups is one of the most controversial issues in the field of jus contra bellum today. Particularly since 9/11, several States have supported a broad reading of the right to use force in self-defence, as allowing them to intervene militarily against terrorists whenever and wherever they may be. A consequence of that conception is that any State could be targeted irrespective of whether that State has ‘sent’ the irregular (in this case terrorist) group to carry out a military action or has been ‘substantially involved’ in such an action, to use the terms of Article 3g) of the Definition of Aggression (annexed to GA Res 3314 (XXIX)) considered by the ICJ as reflecting customary international law. However, an even more substantial number of States do not seem to subscribe to this broad reading of the right to self-defence. The Non-Aligned Movement, for example, representing some 120 States, has regularly expressed its clear reluctance to adhere to this view. Thus, in February 2016, in an open debate before the UN Security Council on ‘Respect for the principles and purposes of the Charter of the United Nations as a key element for the maintenance of international peace and security’, the Non-Aligned Movement reaffirmed that ‘consistent with the practice of the UN and international law, as pronounced by the ICJ, Article 51 of the UN Charter is restrictive and should not be re-written or re-interpreted’ (S/PV.7621, 15 February 2016, at 34).

But what about international lawyers? The reaction on their part has been equivocal. Some have supported a broad interpretation of Article 51 of the UN Charter, focusing on the possibility to invoke self-defence against terrorists. Others argue in favour of a more ‘restrictive’ and classical reading of the Charter. Following this second line of reasoning, a plea against the abusive invocation of self-defence as a response to terrorism has been drafted by a group of scholars (available here). The aim of this post is to (i) explain in what context and how this plea was conceived, and (ii) briefly describe its main characteristics. Read the rest of this entry…