The Establishment of a Special Court against Terrorism

The possibility of establishing an International Court against Terrorism is not entirely new, and has been addressed by scholars. However, the idea has recently regained momentum as a result of a joint Romanian-Spanish initiative (summarised here). In a recent event held at the T.M.C. Asser Instituut organised by the authors of this post, this possibility was thoroughly discussed. While indubitably commendable on the political level, such effort will face some very challenging legal issues. The aim of this post is to give a succinct account of these issues.

To begin with, a Special Court against Terrorism (SCT) will be confronted with a major question concerning its jurisdiction ratione materiae. What are the acts that would fall under its jurisdiction? What are the constitutive elements of a terrorist act subject to the SCT’s jurisdiction? Indeed, this issue is connected with a vexed question of international law, namely the definition of terrorism. As is well known, there is no generally accepted definition of terrorism under general international law. The perpetration of terrorist acts during wartime is (at least in part) covered by the law of armed conflict. Those acts may amount to war crimes in case of serious violations of international humanitarian law. The rules applicable to terrorist acts perpetrated in times of peace are more uncertain. The numerous UN conventions on terrorism only apply if the conduct in question falls under the relevant sector covered (e.g. nuclear terrorism).

The most famous attempt to define terrorism in times of peace in a general manner has been made by the Special Tribunal for Lebanon (STL), with the late Professor Antonio Cassese sitting as both Judge Rapporteur and President of the Chamber. According to the STL decision, for an act to be considered international terrorism three conditions must be satisfied: a) a criminal act (i.e. murder, kidnapping, etc.) must be perpetrated or threatened, b) the intention of the perpetrator(s) must be that of spreading terror among civilians and/or coercing a national or international authority, and c) there must be a transnational element.

The STL decision has been so harshly criticised that the precedential value of the definition of terrorism that it proffered is doubtful to say the least (we refer readers to the existing literature). For the sake of this post, suffice it to note that the definition of terrorism ‘fabricated’ by the STL seems to be used as the starting point by the promoters of the Romanian-Spanish initiative, who refer to a ‘common-denominator approach’. According to this approach, the definition of terrorism would encompass the list of terrorist acts already ‘agreed upon in existing sectorial conventions’, and would take into consideration the ‘intent (was the act intended to spread fear or coerce authorities), as well as the crime’s gravity and international character’. The resemblance with the constitutive elements outlined in the STL’s definition is evident.

Additionally, it is not entirely clear whether the SCT’s jurisdiction would be limited to acts perpetrated in times of peace, or would extend to armed conflicts. In the latter case, the question concerning whether or not actions taken by a State’s armed forces can constitute terrorism (so-called State terrorism) would have to be addressed. This issue, which has proved to be one of the most contentious points in the ongoing debate, led to the current diplomatic deadlock surrounding the Comprehensive Convention on International Terrorism. However, the Romanian-Spanish initiative seems to refer exclusively to terrorist acts committed in times of peace. Such a solution would certainly make it less difficult for the initiative to succeed.

On the other hand, limiting the SCT’s jurisdiction to acts perpetrated in times of peace would make it more difficult to deal with some borderline situations, where the very existence of a conflict, and its legal nature, are not clearly identified. One may think of a situation similar to that of the Liberation Tigers of Tamil Eelam, which has already given rise to a number of domestic and EU law proceedings. Or, for that matter, to the Hamas case, which is currently awaiting a final verdict of the European Court of Justice (ECJ). In addition, if one takes the view of those countries, such as the United States, that claim to be involved in an armed conflict against Al Qaeda and ISIS, acts committed by these organisations might be excluded by the SCT’s jurisdiction.

A second major problem that the establishment of the SCT would face is its legal basis. There are only two options available: a binding act of the United Nations (UN), more specifically a Security Council resolution adopted under Chapter VII, or an international agreement. Both solutions have pros and cons. A Security Council resolution is somewhat less difficult to achieve but the overall legitimacy of the whole process would probably be weakened. The conclusion of an international agreement would – at the moment – perhaps be too burdensome a challenge for the international community but would significantly increase the political credibility of the SCT.

From a legal perspective the two options are not entirely equivalent. First, a Security Council resolution would be binding on all UN Members while an international agreement would only create obligations for the contracting parties. This circumstance would affect the question concerning who will have the obligation to actively cooperate with the SCT, and over whom the latter will have jurisdiction. Second, the choice of the legal basis would have consequences on questions concerning the immunity of individuals accused of terrorism, especially if the individual in question happens to be a head of state. Finally, the legal basis will affect the jurisdiction ratione temporis of the SCT. A court established by an international agreement will arguably only have prospective jurisdiction. A Security Council resolution could in principle confer jurisdiction over terrorist acts perpetrated in the past.

Retroactive jurisdiction over events that occurred prior to the court’s existence would, however, only be admissible if a customary rule of international law criminalising terrorism existed before the establishment of the SCT, in accordance with the principle nullum crimen. This issue points back to the question of whether terrorism is a crime under customary law, and ultimately to the already mentioned (lack of) definition of terrorism under general international law. At the current stage of development of international law it seems difficult to affirm the existence of such a customary rule criminalising terrorism in times of peace. However, the authors believe that at least the emergence of such a rule is clearly identifiable. To this end, a major international agreement may perhaps have the effect of crystallising such emerging rule.

As to the promoters of the Romanian-Spanish initiative, they seem to have a preference for a binding resolution. One has the impression that they are driven by considerations of a practical nature. This is certainly sensible. However an alternative, somewhat mid-way solution would be to establish the SCT by means of a Security Council resolution (for a limited period, say, 10 years), with a view to opening its constitutive treaty to ratification at a later stage. If an agreement will at some point be opened to ratification, it is recommended that international organisations be given the possibility of becoming parties.

Another issue that will have to be dealt with is the relation with domestic and other international courts (read ICC). The promoters of the initiative imagine the SCT as ‘complementary [ … ] to both national courts and the ICC, intervening only when domestic bodies were unable or unwilling to try a terrorism case or when the crimes committed were outside the ICC’s jurisdiction’. Complementarity with national courts can be (relatively) easily conceived, following the model already adopted by the ICC. One can envisage that the SCT could step in when the relevant acts and events have occurred in countries whose legal system is not adequately equipped (unable, as the promoters say). Or in countries that do not intend to cooperate in the fight against terrorism (unwilling). Provided, of course, that the presumed terrorist does not happen to find him/herself in the territory of any such country at the time the SCT exercises its jurisdiction.

As regards coordination with the ICC, cases in which the latter has no jurisdiction are also relatively easy to identify. Some interpretive problems may nonetheless arise. In particular, would the SCT only have jurisdiction where ICC jurisdiction is entirely ruled out by the Rome Statute? What would happen where the ICC has jurisdiction but does not exercise it in a specific case? Would the SCT be able to step in when the ICC does not act? This second scenario could give rise to situations of potential forum shopping, i.e. the referring State Party or Security Council may be tempted to choose the court of their liking. On the other hand, restricting the SCT’s jurisdiction to cases in respect of which the ICC is a priori excluded may significantly reduce the role of the SCT.

Finally, the creation of a SCT would raise questions as to the effectiveness of a court with no enforcement mechanism – an issue that the experience of the ICC (Omar al-Bashir, anyone?) has so spectacularly brought into the open. The promoters of the initiative refer to ‘the creation of a multinational police or security force able to act should a government be unable or unwilling to cooperate in securing evidence against the accused’. Frankly, this does not seem to be the most realistic ambition of the whole project, and leaves the observer with considerable doubts as to the potential success of the initiative.

However, and despite the legal obstacles that the promoters will face, we should not underestimate the merits of the project. If only because it is bringing to the forefront of the current international debate the idea of combating terrorism with the tools of law. That is praiseworthy in and of itself, especially at a time in which it seems that the main means adopted to face the growing security crisis is to derogate from our ordinary laws.