EDITOR'S NOTE: This article was originally published in print under the title, "Prosecution of Terrorism: Utilizing Domestic Court Systems to Address the Shortcomings of International Criminal Law" in the The Criminal Law Practitioner Volume XII, Issue I.
ABSTRACT
Without first agreeing to a universal definition of terrorism, it is difficult for the international community to develop a consistent system through which States may prosecute terrorism. However, from 1936 to 1981, the international community proposed, and rejected, at least 109 definitions of terrorism. Moreover, no proposed definition complies with the principle of legality and avoids inadvertently including national liberation movements. Consequently, because of this failure to create a universal definition of terrorism, the international community cannot consistently and extensively prosecute acts of terrorism.
This article first argues that, without a universal definition of terrorism, neither prosecution of terrorism within the International Criminal Court nor prosecution within domestic courts using universal jurisdiction are tenable solutions for consistent, widespread prosecution. The article then argues that, to guarantee prompt and consistent prosecution, States should prosecute the underlying acts of terrorism under existing, well-known, and commonly accepted criminal law—i.e., murder, kidnapping, hijacking, and so forth. States should then consider the intent of the perpetrator to commit an act of terrorism as an aggravating factor during sentencing, which would increase the punishment for the defendant. Through this system, the international community would avoid violating the principle of legality and inadvertently including national liberation movements in a definition of terrorism. As a result, scholars could retire the cliché phrase “one man’s terrorist is another man’s freedom fighter” as States would instead be consistent in prosecuting anyone who has violated criminal law.
I. INTRODUCTION
According to United States Ambassador Francis X. Taylor, “small cells of terrorists have become true transnationalthreats—thriving around the world without a single state sponsor or home base.”[1] However, the inability of States, or even academics, to agree on a universal definition of terrorism has severely impaired the international community’s efforts to develop international rules addressing terrorism.[2] For some, the solution to this issue is to use an international criminal tribunal, such as the International Criminal Court, to prosecute the crime of terrorism. For others, the solution is to adopt national legislation allowing universal jurisdiction to prosecute individuals suspected of terrorism—regardless of whether there is a nexus between the crime, the perpetrator, and the prosecuting State.
This article argues that, because there is no universally accepted definition for terrorism, many of the proposed solutions—such as prosecution through international criminal tribunals or prosecution via domestic courts based on a domestic definition of terrorism—are ultimately untenable solutions for widespread prosecution of the crime of terrorism. In the interest of prompt prosecution, rather than creating different prosecutorial regimes based on State-specific definitions of terrorism, States should prosecute the acts of terrorism under existing, commonly accepted criminal law—such as murder, kidnapping, hijacking, etc.—and consider the intent of the perpetrator to commit an act of terrorism as an aggravating factor during sentencing.
Lastly, considering that terrorism within the context of armed conflict is governed by the rules of international humanitarian law, this article will focus on analyzing terrorism outside of the context of armed conflict within the meaning of the Geneva Conventions.[3]
II. BACKGROUND
A. Definition of Terrorism
The task of creating a universal definition for terrorism is so elusive that it has been described as “resembl[ing] the Quest for the Holy Grail.”[4] Between 1936 and 1981, the international community proposed, and subsequently rejected, at least 109 possible definitions of terrorism.[5] The oft-quoted cliché “one man’s terrorist is another man’s freedom fighter”[6]is, unfortunately, a fairly accurate description for the issues faced by the international community when attempting to adopt a universally accepted definition of terrorism.
1. International legal instruments pre-9/11
One of the earliest attempts to produce a general definition of terrorism occurred in 1937 when the League of Nations created the Convention for the Prevention and Punishment of Terrorism (“1937 Convention”), after a Macedonian nationalist assassinated Alexander I of Yugoslavia.[7] Under this convention, terrorism was defined as: “[a]ll criminal acts directed against a State and intended or calculated to create [a] state of terror in the minds of particular persons or a group of persons or the general public.”[8] However, despite successfully formulating a definition of terrorism,[9] the 1937 Convention never entered into force.[10]
The next significant attempt to define terrorism occurred in 1972 when an ad hoc committee of the United Nations (UN) General Assembly was tasked with creating a Draft Comprehensive Convention that would include a universal definition of terrorism.[11] However, the committee was ultimately unable to complete this task, and instead produced a report that highlights the significant issues involved in drafting a universal definition.[12] The most controversial of these issues was whether “national liberation movements” (“NLMs”)[13] would be included within the universal definition of terrorism.[14] Consequently, instead of producing a definition, the committee opted for creating a framework of conventions addressing specific forms of terrorism on which international consensus could be reached.[15]
With the end of the Cold War and Apartheid in the 1990s, the resulting shift in global politics led to a breakthrough in the quest to create a universal definition of terrorism: the 1994 Declaration on Measures to Eliminate International Terrorism (“1994 Declaration”).[16] Though non-binding, the resolution strongly condemns terrorism and reiterates that “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.”[17] Scholars have subsequently interpreted this language as defining terrorism in a manner that “divorc[es] the condemnation of terrorism from the value judgment about the reasons that may underpin it.”[18]
Considering this breakthrough, the UN General Assembly once again established an ad hoc committee tasked with creating a Draft Comprehensive Convention.[19] Nevertheless, the committee again failed to fulfill this mandate; however, it indirectly led to the creation of the 1999 Convention for the Suppression of Financing of Terrorism (“1999 Financing Convention”).[20]
2. International legal instruments post-9/11
The events of 9/11 spurred an unparalleled consensus in the condemnation of international terrorism, which resulted in the adoption of a series of significant regulatory documents. For instance, the UN Security Council passed resolution 1373 (2001), which calls upon Member States to cooperate to prevent and suppress the financing, preparation, and commission of “terrorist acts”; however, it provides no definition or clarification regarding what would be classified as a “terrorist act.”[21] The Security Council also passed resolution 1566 (2004), which recalls that:
[C]riminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, 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 constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature.[22]
Despite the unparalleled international consensus, the efforts to create a universal definition for the UN Draft Comprehensive Convention were fraught with the same divisions that impeded prior efforts. The Convention includes an informal definition: “unlawful and intentionally causing (a) death or serious bodily injury to any person; (b) serious damage to public and private property, including a State or government facility; or (c) other such damage where it is likely to result in major economic loss” provided that “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.”[23] Even so, this definition has been criticized for its “breadth and vagueness of terms,”[24] as well as its potential application to NLMs.[25]
B. Customary Elements of Terrorism
Nevertheless, while there is no State consensus on a universal definition of terrorism, various international legal documents have addressed specific types of terrorism or created general legal tools that can be used to address conduct that would commonly be classified as “acts of terrorism.”[26] Further, in 2011, the Appeal Chamber decision of the Special Tribunal for Lebanon (“STL”)[27] controversially concluded that there is, in fact, a definition of terrorism under customary international law.[28] However, scholars and legal experts widely disagree with this conclusion.[29]
Despite the lack of consensus, elements for the crime of terrorism can be identified through various sources. For example, since 1994, various resolutions of the UN General Assembly have defined terrorism as “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable.”[30] Consequently, the elements that can be identified are: (1) the conduct of the accused; (2) the purpose or motive of the act; (3) who or what is targeted by the conduct; (4) a transnational element to the conduct; and (5) classification of the accused.
1. Conduct
The conduct of the accused, also known as the actus reus or material element of the offense, varies widely.[31] In the above General Assembly definition, this is encompassed within the provision, “criminal acts.” The UN Security Council further elaborated on this element in resolution 1566, which adds within its limits those acts “which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism.”[32] In some treaties—such as the 1994 Declaration—any “criminal act” is sufficient to fulfil this element.[33] Further, other treaties—such as the European Council Framework Decision on Combating Terrorism[34]—“inchoate” offenses[35] are considered sufficient to fulfill this element.[36] However, in another subset of treaties—such as the 1999 Financing Convention—this element is very restrictive: only acts that cause death or serious bodily injury are sufficient for the element to be fulfilled.[37]
2. Purpose or motive
Unlike other crimes, terrorism generally involves at least two subjective layers, meaning it is a dolus specialis crime.[38]First, the accused must have the intent to commit the underlying act—i.e., intent to bomb, intent to hijack, or intent to cause death or serious bodily harm.[39] Second, the accused must intend that his or her actions will cause broader effects, such as creating a state of terror in a population or compelling a government or organization to act—or refrain from acting—in a specific manner.[40] In compliance with the general principles of criminal law, personal motive is irrelevant.[41] In the above General Assembly definition, this element is encompassed within the provision, “intended or calculated to provoke a state of terror.” Further, the double intent is embodied in UN Security Council resolution 1566, which defines this element as acts “committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror, … intimidate a population or compel a government or an international organization to do or to abstain from doing an act.”[42]
3. Targeted “victims” of the conduct
In the above General Assembly definition, this element is encompassed within the provision, “in the general public, a group of persons, or particular persons for political purposes.”[43] However, depending on which source is referenced, definitions will differ on who, or what, must be the target of the conduct. According to the 1937 Convention, the conduct must target a State.[44] However, according to the 1999 Financing Convention, any conduct targeting civilians or other persons not directly participating in armed conflict is sufficient.[45] An even broader scope of activities is sufficient according to the failed UN Draft Comprehensive Convention, wherein any injury or damage occur to any person or property, whether public or private, is sufficient.[46] One criticism of the definition provided by the Appeals Chamber of the STL is that it did not include this element, and therefore applied a similarly broad definition as was included in the failed UN Draft Comprehensive Convention.[47]
4. Transnational element
As noted by the Appeals Chamber of the STL, the transnational element “will typically be a connection of perpetrators, victims, or means used across two or more countries” but it may also involve “a terrorist attack that is planned and executed in one country” which “threaten[s] peace and security, at least for neighboring countries.”[48] However, the exception to this requirement is non-international conflict—which may be a war crime under international law—and “international terrorism” as defined in regional terrorism instruments—which do not normally require this element be met.[49] The above General Assembly definition does not include a provision that encompasses this element.
5. Classification of the accused
This is the most contentious element.[50] As the Special Rapporteur for Terrorism and Human Rights explained, “the term ‘terrorism’ carried almost always the flavour[sic] of some (subjective) moral judgment: some classes of political violence are justified whereas others are not.”[51] In reviewing the action of the General Assembly and the Commission on Human Rights, as well as various other documents, the Special Rapporteur concluded that “as this issue has progressed, [the discussions] reveal that a certain degree of consensus has been obtained on some of the elements of conduct that comprise terrorism, but not on who can use terrorism.”[52] Specifically, the international instruments differ in their inclusion of (a) State-sponsored terrorism;[53] (b) State conduct as constituting terrorism;[54] and (c) conduct of NLMs as constituting terrorism.[55]
Because of the contentious nature of the above three categories, States and scholars alike have found it almost impossible to agree on which should be included or excluded from the scope of a universal definition of terrorism. Nevertheless, because the above General Assembly definition contains the provision “for political purposes,” it could be argued that this element is addressed by outlawing any political justification for terrorism—no matter who commits it. This element was not, however, included in the customary definition provided by the Appeals Chamber of the STL.[56]
C. State-specific Definitions of Terrorism
Particularly after 9/11, multiple States outlawed “terrorist acts” within their domestic criminal code.[57] Most of the definitions use in these domestic criminal codes include a majority of the identified customary elements of terrorism. For example, under current United States (US) domestic law, “international terrorism” is defined as:
activities that—(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the [US] or of any State, or that would be a criminal violation if committed within the jurisdiction of the [US] or of any State; (B) appear to be intended—(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the [US].[58]
In another example, under current domestic law in the United Kingdom (UK), terrorism is defined as:
the use or threat of action where—(a) the action [involves serious violence against a person; involves serious damage to property; endangers a person’s life, other than that of the person committing the action; creates a serious risk to the health or safety of the public or a section of the public; or is designed seriously to interfere with or to seriously disrupt an electronic system], (b) the use or threat is designed to influence the government or an international governmental organization or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious, racial, or ideological cause.”[59]
The most significant issue with the above definitions, as well as the definitions used by other States, is the potential applicability to peaceful protestors or other NLMs.[60] For example, in China, under the guise of combatting terrorism, the Chinese government has repressed and imprisoned peaceful Xinjiang Uighur separatists.[61] Similar exploitation has occurred in Russia with the Chechnian separatists; in Uzbekistan with the independent Islamic congregations and followers, who the government claims are part of the Islamic Movement of Uzbekistan; and in Malaysia with political dissidents.[62]
Indeed, the issue is so dangerous that the International Commission of Jurists recommended that “States should not use the fight against terrorism as a pretext to adopt measures which unlawfully restrict the rights to freedom of expression, religion, opinion and belief, nor the rights of minorities.”[63] Moreover, any anti-terrorist laws which have the potential to infringe upon “human rights and civil liberties should be considered carefully by legislative bodies,” taking account of the relevant requirements established by international human rights law and the relevant jurisprudence.[64]
D. The Principle of Legality
Another vital consideration for the prosecution of terrorism is the principle of nullum crimen sine lege—“no crime without law”—also known as the principle of legality. This principle is codified in Article 15 of the International Covenant on Civil and Political Rights (ICCPR), which reads “nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”[65] The purpose of this general principle is to “prevent the prosecution and punishment of a person for acts which were reasonably, and with knowledge of the laws in force, believed by that person not to be criminal at the time of their commission.”[66] Stated differently, the principle prevents a person from being prosecuted for an act which was not criminal at the time the act was committed, or which was ambiguously criminalized.[67]
In practice, the principle of legality requires that “penal statutes must be strictly construed,” and clarifies that the “paramount duty of the judicial interpreter [is] to read into the language of the legislature, honestly and faithfully, its plain and rational meaning and to promote its object.”[68] Moreover, when a criminal statute contains an ambiguous provision, the benefit of the doubt is given to the subject—and against the legislature, which has failed to properly explain itself.[69]
In the context of prosecution for terrorist activity, the principle of legality complicates the prosecution of individuals due to ambiguity in the definition of terrorism.[70] Consequently, while many States and international documents outline the elements of terrorism, it is possible that many of these definitions may not comply with the principle of legality, effectively rendering them null and void.[71]
III. ANALYSIS
A. Prosecution via an International Criminal Tribunal
Within international criminal law, there are two ways to prosecute terrorism outside of domestic courts: (1) create an ad hoc international criminal tribunal with the mandate of prosecuting terrorism; or (2) utilize the existing International Criminal Court (ICC) to prosecute terrorism. However, for several reasons outlined below, neither of these options are feasible for the widespread prosecution of acts of terrorism.
1. Prosecution using a new ad hoc international criminal tribunal
International criminal tribunals are responsible for prosecuting crimes which qualify as a grave breach of international law, meaning the crime is so heinous and repugnant that all States may exercise jurisdiction to punish the perpetrators.[72]However, international criminal tribunals have rarely addressed the crime of terrorism, or inciting terror against a civilian population, outside of the context of armed conflict.[73] Of the many ad hoc tribunals, only one—the STL[74]—had the jurisdiction to try the crime of terrorism, and this was due to the incorporation of the domestic Lebanese crime of terrorism as found in the Lebanese Criminal Code.[75] This is largely because there is no universal definition for terrorism.[76]
In order to create an ad hoc international criminal tribunal, the UN Security Council would need to pass a resolution under its Chapter VII powers.[77] This would require two things: (1) the existence of a threat to international peace and security;[78] (2) the cooperation of all five of the permanent members in the Security Council.[79] With respect to the first element, it is likely that the Security Council will consider terrorism a threat to peace and security.[80] However, in respect to the second element, it is improbable that all five permanent members will either vote “for” or “abstain” on a resolution creating a new ad hoc tribunal because there is no universal definition and existing definitions are highly contentious.[81] As a result, it is unlikely that the permanent five members will agree on either the creation of an ad hoctribunal to prosecute terrorism, or a universal definition that the tribunal would apply when prosecuting accused terrorists. Consequently, this is an infeasible option for prosecuting terrorism.
2. Prosecution within the International Criminal Court
In order to prosecute a case in front of the ICC, a series of different criteria must be met,[82] out of which two are most important when determining whether the Court may prosecute an act of terrorism. First, the Court must be able to exercise jurisdiction over the perpetrator. Second, the crime must qualify as at least one of the four crimes for which the Court has substantive jurisdiction.
In order to exercise jurisdiction over a perpetrator, at least one of the following pre-conditions to jurisdiction must be met: (1) the accused is a national of a State Party to the Rome Statute—i.e., the nationality principle, (2) the crime occurred on the territory of a State Party to the Rome Statute—i.e., the territorial principle; (3) the case is referred to the ICC by the UN Security Council, which allows the Court to investigate a non-State Party without first obtaining their consent; (4) anon-State Party accepts the jurisdiction of the Court via an ad hoc declaration permitting the ICC to exercise jurisdiction over their territory for a certain period of time.[83]
Should the above criteria be fulfilled, the international community faces a second hurdle: the ICC only has substantive jurisdiction over four crimes—crimes against humanity, war crimes, genocide, and crimes of aggression.[84]Consequently, in order to use the ICC to prosecute the crime of terrorism, the Assembly of States Party would need to amend the constitutive document of the Court—the Rome Statute—to include the crime of terrorism,[85] or the Office of the Prosecutor would need to prosecute an act of terrorism as one of the existing crimes for which the Court has jurisdiction. Unfortunately, each of these methods has significant drawbacks which make their widespread application unlikely.[86]
i. Amending the Rome Statute to include the crime of terrorism
During the Rome Conference, in which 160 States met to create the ICC, the drafters considered adding terrorism as a crime for which the ICC would have jurisdiction.[87] Regrettably, “no generally acceptable definition of the crimes of terrorism and drug crimes could be agreed upon for the inclusion, within the jurisdiction of the Court.”[88] Nevertheless, scholars have continued to debate the merits of extending the Court’s mandate to include the prosecution of terrorism.[89]
As noted above, there are identifiable elements to the crime of terrorism within customary international law. However, despite the existence of these elements—and their repeated recognition by scholars—States have continued to disagree on the proper permutation of the elements that would form a universal definition. Consequently, it is improbable that States can draft a non-contentious article providing the criteria for the prosecution of terrorism.[90] More importantly, once the article is drafted, it must then be adopted by the Assembly of States Party, which has already failed to find an agreed upon definition, and then ratified by a sufficient number of States Party. It is therefore unlikely that terrorism will be added to the Rome Statute as a crime for which the Court has jurisdiction.
ii. Prosecuting terrorism as a Crime Against Humanity
Depending on jurisdiction and context, international criminal tribunals have defined a crime against humanity differently.[91] However, under article 7 of the Rome Statute, a crime against humanity is the commission of one of the enumerated acts “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”[92] Further, while a crime against humanity should be in furtherance of a State or organization policy to attack a civilian population, it does not have to be attributable to a State.[93] Consequently, the act of terrorism’s degree of scale is the determinative factor for whether or not the act will qualify as a crime against humanity.[94] This would be established through evidence that the act, or series of acts, are committed as part of an identifiable plan or policy.[95] For instance, if the act of terrorism is sporadic or random—such as the 2019 London Bridge stabbing[96]—it is unlikely to meet the required element of “sufficiently widespread or systematic.”[97] Nevertheless, a single act of immense magnitude—such as the 9/11 attacks—may qualify as a crime against humanity due to its mass scale.[98]
Considering the above, it is possible that an act of terrorism may fulfill the substantive criteria necessary to be prosecuted in the ICC as a crime against humanity.[99] However, such prosecution would be highly situation and fact dependent. As a result, while it may be a supplemental means for prosecution in special circumstances, this is not a practical method for the international community to rely on for the widespread prosecution of terrorism.
iii. Prosecuting terrorism as a War Crime
Both the International Criminal Tribunal for Yugoslavia and the STL have found that acts of terrorism may constitute war crimes.[100] However, in order for an act to constitute a war crime within the ICC, an international or non-international armed conflict must exist.[101] As a result, the rules of international humanitarian law apply.[102] Analyzing the applicability of prosecution under this offense is therefore outside of the scope of this article.[103]
iv. Prosecuting terrorism as a crime of Genocide
Under the Convention on the Prevention and Punishment of Genocide, the crime of genocide requires the commission of one of the enumerated acts “committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”[104] The enumerated acts are limited to (a) the killing of members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicted on the group conditions of life calculated to bring about its physical destruction, in whole or in part; (d) imposing measures intended to prevent births within the group; or (e) forcibly transferring children of the group to another group.[105] This formulation was adopted in article 6 of the Rome Statute.[106]
Consequently, while it is theoretically possible that an act of terrorism could be prosecuted as an act of genocide, two fundamental conditions must first be satisfied. First, the terrorist act must qualify under one of the five categories of enumerated acts. Second, the prosecution would have to prove that the perpetrator committed the enumerated act with the intent to destroy a national, ethnical, racial, or religious group.[107] As a result, similar to prosecuting an act of terrorism as a crime against humanity, prosecution as an act of genocide would be highly situation and fact dependent. It should therefore be considered a supplemental method to be used in special circumstances, rather than as a common method to prosecute terrorism.[108]
v. Prosecuting terrorism as a Crime of Aggression
The crime of aggression was added to the jurisdiction of the ICC during the 2010 Review Conference, and it did not come into force until July 17, 2018.[109] However, scholars doubt whether the crime of aggression will be prosecuted soon because of how narrow it is defined.[110] Article 8bis defines the crime of aggression as
the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”[111]
Consequently, to prosecute an individual for the crime of aggression: (1) the perpetrator must be a member of the senior leadership; (2) the crime must be a manifest violation of the UN Charter, as determined by its character, gravity, and scale; (3) the crime must be committed by one State Party against another State Party, unless the crime was referred to the ICC by a UN Security Council resolution; and (4) the States involved must both have ratified the amendment adding article 8bis.[112] The only acts of terrorism which would fall under the jurisdiction of the crime of aggression would therefore be those acts committed by a State against another State, provided that both have ratified the amendment.[113] That would exclude all acts of terrorism by non-State actors, which constitute a majority of terrorist acts.[114] Further, the only individuals who could be prosecuted would be those in senior leadership. As a result, this is not a practical method through which the international community could pursue the widespread prosecution of terrorism.
B. Prosecution within Domestic Courts
While international criminal law allows for the prosecution of terrorism through international criminal tribunals, States may also prosecute terrorism within domestic courts.[115] States may do so in several circumstances, the most common of which are: (1) when the State is party to a treaty outlawing the acts committed by the accused terrorists; (2) when the State invokes one of the five justifications for jurisdiction—territorial, passive personality, active personality, the protective principle, or the universal principle; or (3) when the State prosecutes the perpetrator based on the violation of common domestic criminal law, such as murder, assault, etc.[116] While the first two circumstances are viable options for prosecution, both involve serious issues in their implementation—most importantly, violations of the principle of legality, and inconsistent implementation because there is no universal definition for “terrorism.” The third circumstance, on the other hand, circumvents these serious issues. Through the third circumstance, States may implement domestic legislation in which the domestic court treats the second layer of intent for terrorism—“intent to cause broader effects”—as an aggravating factor during sentencing.
1. Prosecution under existing treaties
A subset of treaties allows for the exercise of jurisdiction based on customary grounds[117]—meaning, if the crime falls within the prescribed conditions, the State is capable of exercising jurisdiction.[118] Under another subset of treaties, the State is required to “prosecute or extradite” (aut dedere aut judicare)—meaning, whether or not the State has jurisdiction under customary grounds, the State must either prosecute the accused or extradite the accused to a State that will prosecute.[119]
However, two significant issues make widespread reliance on prosecution using the law established in existing treaties untenable. First, if a State is party to a treaty that prohibits the conduct committed, the State is required to implement laws which can be used to prosecute the offender.[120] However, if the State is not party to the treaty, the State is not bound to do so.[121] This results in inconsistent application of treaty provisions within the international community as a whole. Second, because there is no universal definition of terrorism, most international legal instruments either address a component of terrorism[122] or include a variation on the definition of terrorism.[123] This results in inconsistent application of the rules regarding prosecution for acts of terrorism, dependent not on the acts but rather on the treaty to which the State is party, and further impedes consistent application of criminal law within the international community. Consequently, this is not the best method through which the international community should pursue the widespread prosecution of terrorism.
2. Exercising jurisdiction over an act of terrorism
For a State to bring a criminal case against an individual, the State must have jurisdiction over the crime.[124] There are three categories of jurisdiction: (1) jurisdiction to prescribe, meaning the ability of the State “to make its laws applicable to persons, conduct, relations, or interests;” (2) jurisdiction to adjudicate, meaning the ability of the State “to subject persons or things to the process of its courts or administrative tribunals;” and (3) jurisdiction to enforce, meaning the ability of the State “to induce or compel compliance or to punish noncompliance with its laws or regulations.”[125] Under customary international law, a State must have the jurisdiction to prescribe in order to bring a case against an individual.[126] Such jurisdiction would exist provided one of the following customary grounds for jurisdiction applies: (1) territorial principle; (2) the active personality principle; (3) the passive personality principle; (4) the protective principle; or (5) the universality principle.[127]
i. Territorial Principle
Under the territorial principle, a State may exercise jurisdiction to prosecute a crime if the act was wholly or partially committed on the territory of the State; had a substantial effect on the State’s territory; or was intended to have a substantial effect on the State.[128] This is the most common basis for jurisdiction.[129] For example, the territorial principle is one of the four methods through which the ICC may exercise jurisdiction.[130] Consequently, States will often use this basis for jurisdiction to prosecute those accused of terrorism within their domestic courts.
ii. Active Personality Principle
The active personality principle, also known as the “nationality principle,” permits jurisdiction when the perpetrator is a national of the State prescribing or prosecuting undesirable conduct.[131] It is one of two justifications that are ratione personae, meaning the jurisdiction is exercised “by reason of the personality involved.”[132] As with the territorial principle, this form of jurisdiction is commonly accepted; for example, the active personality principle is the second of the four methods through which the ICC may exercise jurisdiction.[133]
This principle relies on the concept of nationality—i.e., by virtue of an individual’s nationality, he or she is entitled to a series of rights granted by the State,[134] as well as being subject to a series of obligations[135].[136] However, because international law does not prescribe the conditions through which nationality may be granted, it is up to the State to determine how to grant nationality.[137] There are three generally accepted situations where a State will grant nationality: (a) the individual’s parents are nationals of the State (jus sanguinis); (b) the individual was born within the territory of the State (jus soli); or (c) the individual completed a naturalization process to become a national of the State.[138]
While many States will exercise jurisdiction over their nationals for crimes committed on foreign territory, many others restrict such jurisdiction to only the most serious crimes.[139] Nevertheless, due to the heinous nature of acts of terrorism, a domestic court would likely be able to prosecute a national of their State perpetrates such acts. Consequently, this basis of jurisdiction may be used to prosecute acts of terrorism within domestic courts.
iii. Passive Personality Principle
Under the passive personality principle, a State may prosecute the perpetrator of a crime committed on foreign territory when the crime has, or will, affect nationals of the State.[140] It is the second of the five justifications that is ratione personae.[141] However, this is a controversial basis for jurisdiction.[142]
The passive personality principle was first used by Mexico in the Cutting Case (1887), where a Mexican national sued a US citizen for allegedly libeling the Mexican national in the US.[143] Later, it was used in the S.S. Lotus (1927) case, when Turkey prosecuted a French national for the collision of a French and Turkish vessel on the high seas which resulted in the death of Turkish nationals.[144] In both cases, the States of the accused strongly protested the exercise of jurisdiction over their nationals; however, neither case resolved the issue of whether passive personality jurisdiction is valid.[145] There is continued controversy over the principle, with the Restatement (Third) of Foreign Relations Law claiming that the passive personality principle has not been generally accepted for ordinary torts or crimes.[146]
All this being said, the passive personality principle “is increasingly accepted as applied to terrorist . . . attacks on a State’s nationals by reason of their nationality, or to assassinations of a State’s diplomatic representatives or other officials.”[147] Under the International Convention against the Taking of Hostages, jurisdiction may be established based on the nationality of the hostage “if [the State of nationality] considered it appropriate.”[148] A similar approach is taken in the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons[149] and the Convention against Torture.[150]
Further, following the 1986 Achille Lauro terrorist attack, the US adopted the Omnibus Diplomatic Security and Anti-Terrorism Act, which allowed for jurisdiction over homicide or physical violence against a US national, regardless of whether the violence occurred in US territory.[151] More recently, in United States v. Yunis (No. 2),[152] the US federal court prosecuted a Lebanese national suspected of hijacking a Jordanian airline outside of the territorial US, based on the fact that the airplane had several American nationals onboard.
As ICJ Judges Higgins, Koojimans, and Buergenthal noted in their joint separate opinion in the Congo v. Belgium (Arrest Warrant) case, while the passive personality principle was previously widely unaccepted, “today [it] meets with relatively little opposition.”[153] As a consequence, States are likely to assert this means of jurisdiction in order to try perpetrators of terrorism within their domestic courts.
iv. Protective Principle
This is another controversial base for jurisdiction.[154] Under the protective principle, a State may assert jurisdiction over the conduct of nationals and non-nationals, committed outside of the State’s territory, due to the fact that the act was directed against critical State interests or functions and therefore affected—or was intended to affect—the prosecuting State’s security or vital interests.[155] Such crimes may include currency counterfeiting, drug trafficking, and human trafficking.[156] The justification for this form of jurisdiction is the protection of a State’s interests, considering that the crime committed may not be an offense under the laws of the perpetrator’s nationality or of the territory in which the offense was committed.[157] Treaties which provide multiple grounds for jurisdiction over particular offenses will often include the protective principle.[158]
Considering the globalized nature and impact of terrorist attacks on the national security of States—and the international community as a whole—acts of terrorism will often fall within the category of applicable crimes.[159] Consequently, this basis of jurisdiction may be exercised to try the perpetrator of an act of terrorism who is not a national of a State and the act was not committed on the territory of the State, but the act did—or would have—affected the interests and security of the State.[160]
v. Universal Jurisdiction
Under universal jurisdiction, also known as “the universal principle,” when an accused commits acts which are particularly offensive and/or threaten the international community as a whole, any State may define and prescribe punishment for the conduct, whether or not there is a nexus between the perpetrator, the crime, or the prosecuting State.[161] Historically, universal jurisdiction was limited under customary international law to situations where crimes “(1) are universally condemned by the community of nations; and (2) occur either outside of a State, or where there is no State capable of punishing, or competent to punish, the crime (as in a time of war).”[162] However, the Restatement (Third) of Foreign Relations Law included “universal jurisdiction,” defining it as the ability to “define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern.”[163] The Restatement further provides examples of these offenses: piracy, slave trade, genocide, war crimes, attacks on or hijacking of aircraft, and possibly certain acts of terrorism when the State otherwise lacks the jurisdiction to prescribe.[164] Other crimes that may also fall into this category include torture and crimes against humanity.[165] Nevertheless, despite the inclusion of terrorism within the Restatement, the expansion of the classic understanding of universal jurisdiction to include terrorism is heavily debated.[166]
Courts in the UK, Spain, Belgium, Switzerland, France, and Germany have invoked universal jurisdiction as a means through which to try cases.[167] However, the ability to prosecute via universal jurisdiction is not automatic; States must enact national laws allowing for the regulation of conduct abroad by non-nationals against non-nationals.[168] Three conditions must be met for universal jurisdiction to apply: (1) there is specific grounds for universal jurisdiction; (2) there is a clear and precise definition of the crime and of its constitutive elements; and (3) there is a national mechanism through which the judiciary of the State may exercise jurisdiction over the crime.[169] Especially after the adoption of the Rome Statute, an increasing number of States have implemented universal jurisdiction legislation.[170] Further, in 2001, a group of international scholars and jurists attempted to clarify the principles of universal jurisdiction by developing the Princeton Principles on Universal Jurisdiction.[171] However, the Princeton Principles’ practical effect is unclear.[172]
Crimes may also be subject to “universal jurisdiction” based on international treaties or agreements.[173] For instance, some treaties create a “prosecute or extradite” (aut dedere aut judicare) regime—essentially creating universal jurisdiction through provisions of the treaty.[174] However, under a “prosecute or extradite” regime, a State must have physical possession of the accused.[175] Consequently, such a regime is not the same as “pure” universal jurisdiction, which does not require that the prosecuting State have possession of—or any other nexus to—the accused.[176]
Universal jurisdiction has been vital in prosecuting crimes that would otherwise have gone unpunished.[177] However, universal jurisdiction is subject to several limitations, including the potential for abuse.[178] For example, the lack of a universal definition for terrorism means States with opposing interests to NLMs could attempt to prosecute foreign individuals for crimes committed during civil unrest in foreign States.[179] Further, after adopting legislation authorizing expansive universal jurisdiction, public pressure has caused some States to amend the legislation to limit jurisdiction.[180] Lastly, considering the backlash to “pure” universal jurisdiction statutes, it is unlikely that such jurisdiction could be used to prosecute a perpetrator unless some form of nexus exists between the perpetrator, the crime, and the prosecuting State.[181]
3. The issue of state-specific definitions
As seen above, there are a myriad of different methods through which a domestic court may exercise jurisdiction over a perpetrator. Nevertheless, as Judge Cassese says, “however imperfect and incomplete, a common working definition is necessary so all concerned may agree on the target of their repressive action: how can states work together for the arrest, detention or extradition of alleged terrorists, if they do not move from the same notion?”[182] Unfortunately, no such common definition exists.
Instead, each State adopts within its domestic legislation different definitions for terrorism, which each come with their own issues. For one, such definitions are subject to abuse.[183] For another, such definitions may inadvertently encompass peaceful protests and NLMs.[184] Lastly—and possibly most importantly—variations on the definition of terrorism have repeatedly been criticized for failing to fulfill the principle of legality.[185] Consequently, while States may exercise jurisdiction based on any of the above customary grounds, the lack of a universal definition for terrorism will cause inconsistent prosecution, depending upon which definition the specific State has adopted. Therefore, this is not a preferable method through which the international community should pursue the widespread prosecution of terrorism.
C. Prosecution using terrorism as an aggravating factor
One solution to the problem of State-specific definitions for terrorism is the use of commonly existing domestic criminal statutes to prosecute the underlying act committed by an accused terrorist. Once a defendant is found guilty, the Court may then use the secondary layer of intent to commit a terrorist act as an aggravating factor during sentencing.
In regards to the objective element of terrorism under customary international law, the act or conduct that is often enumerated as illicit is conduct which is already criminalized under any domestic criminal law—such as murder, bombing, assault, money laundering, hijacking, and so forth.[186] Further, the illicit act is committed against victims, which may be private individuals, state or international officials, law enforcement officers, or even the civilian population as a whole.[187] In regards to the “transnational” element under customary international law, if an act of terrorism lacks a transnational component, it would fall exclusively within the jurisdiction of the domestic courts of the State.[188]Consequently, for virtually every act of terrorism, the domestic court of at least one State will maintain jurisdiction[189]to prosecute the act under their existing criminal law.
In regards to the subjective element of terrorism under customary international law, terrorism maintains two layers of intent—the intent to commit the underlying act; and the specific intent to compel an entity to act, or refrain from acting, in a specific way.[190] Consequently, rather than drafting a statute specifically criminalizing terrorism, States can prosecute the perpetrator of an act of terrorism for the underlying criminal act (murder, assault, hijacking, etc.) based on the first layer of intent—i.e., the intent to commit the underlying act. The State may then use the second layer of intent—i.e., the specific intent to compel an entity to act or refrain from acting—as an aggravating factor which increases the sentence of the perpetrator, should he or she be convicted.
Through this regime, States would avoid several issues implicated in the other options for prosecuting terrorism. First, because the courts would utilize existing criminal law, there would be no specific definition of terrorism that could inadvertently apply to peaceful protestors or NLMs. Second, prosecution through this regime would not require States to create or adopt an international treaty; instead, States would only be required to pass legislation which classifies “intent to commit a terrorist act” as an aggravating factor to be considered during sentencing. Third, the principle of legality would not be implicated as the criminal conduct with which individuals would be prosecuted is widely known to be illegal. Fourth, States would be on the same page as to what conduct is “the target of their repressive action”[191] as the States would prosecute conduct which is already outlawed in virtually all domestic criminal codes.
1. Practical Implications for Practitioners: Canada and the US
This regime is not theoretical; in fact, it is currently used in several countries. For example, under the Canadian Anti-Terrorism Act,[192] rather than creating a crime of “terrorist activity,” the Canadian Criminal Code incorporates “terrorist activity” as an aggravating factor to be considered during the sentencing of regular crimes.[193] As a result, if an individual is convicted and found to have committed the act in pursuit of “terrorist activity,” the individual may be sentenced to life imprisonment.[194] Consequently, prosecutors in Canada may utilize the regime proposed in this article, wherein defendant’s sentences may be increased if the aggravating factor of “pursuing terrorist activity” is proven to the court.[195]
In contrast, the US combines a series of different approaches. The US Code both prohibits acts of terrorism[196] and defines the “federal crime of terrorism.”[197] Additionally, the Federal Sentencing Guidelines add the “federal crime of terrorism” as an aggravating factor to be considered at sentencing.[198] The US therefore utilizes both the regime proposed within this article—i.e., treating the pursuit of “terrorist activity” as an aggravating factor—and the regime rejected by this article—i.e., specifically defining and outlawing an act of “terrorism” within the State’s criminal code.[199] Thus, in order for practitioners in the US to best utilize the system proposed by this article, the US Code would need to be amended[200] to focus on the underlying illicit act committed by the defendant—instead of providing an explicit definition of “terrorist act” under which a defendant can be prosecuted.[201]
Two other points are important to note for practitioners in the US—first, under US Constitutional law, any facts that increase the penalty for a crime beyond the statutory maximum, or cause the imposition of a mandatory minimum sentence, must be proven by a jury beyond a reasonable doubt.[202] Second, due to the above legal precedent, facts that are considered under both federal and state mandatory sentencing guidelines must be found by a jury beyond a reasonable doubt.[203] As a result, federal sentencing guidelines are now considered advisory; therefore, judges must give valid consideration to the federal sentencing guidelines but they are not bound to follow the guidelines directly.[204]Consequently, in order to increase a defendant’s sentence using the regime proposed in this article, prosecutors in the US must prove to a jury beyond a reasonable doubt that the defendant committed an act in pursuit of “terrorist activity”.
2. Practical Implications: Non-Compliant States
Because this regime is already in practice in various countries worldwide, States have a model on which they can base their legislation—and proof of the success of this regime. There is, however, a drawback to the regime. If the States with customary grounds to exercise jurisdiction are unwilling or unable to prosecute the perpetrators of a terrorist act, it may be difficult for practitioners to hold the accused accountable.
However, in such a case, practitioners could utilize the ICC to hold the perpetrator accountable. The ICC may be able to exercise jurisdiction as it may fall into the “special circumstances” in which the ICC should prosecute the perpetrators for the crime of genocide, or crimes against humanity. Consequently, while this proposed regime is not perfect, it could be applied widely, and the other methods of prosecution could be utilized as supplemental means to redress those cases not encompassed within it.
IV. CONCLUSION
As this article has demonstrated, it is difficult—perhaps even impossible—to make terrorism an international crime without first creating—and agreeing to—a universal definition. Further, prosecution within the ICC using the existing bases for substantive jurisdiction is possible, but not tenable for the widespread prosecution of acts of terrorism. Because there is no universal definition for terrorism, it is also difficult to adopt a universally accepted regime through which States may prosecute suspected terrorists within their domestic courts. Moreover, no existing definition can both comply with the principle of legality, and avoid inadvertently including peaceful protesters or other forms of protected speech.
Consequently, rather than expanding the use of universal jurisdiction, it would be better for States to prosecute the underlying acts of terrorism using the already existing, well-known, and commonly accepted domestic criminal law. States may then classify terrorism as an aggravating factor in their respective domestic criminal law regimes, in order to increase the sentence for individuals who commit other crimes in the pursuit of terrorism. In such a system, the international community would be able to avoid the issues raised by the other prosecutorial methods, while also addressing acts of terrorism in a widespread manner. As a result, scholars could retire the cliché phrase “one man’s terrorist is another man’s freedom fighter” as States would instead be consistent in prosecuting anyone who has violated criminal law.
[1] Ambassador Francis X. Taylor, Coordinator for Counterterrorism, Address to the Institute for National Strategic Studies, National Defense University: The Global War Against Terrorism: The Way Ahead (Oct. 23, 2002). [2] Richard G. Stearns, An Appropriate Legal Framework for Dealing with Modern Terrorism and WMD, in Intel. & Hum. Rts. in the Era of Glob. Terrorism 78, 86 (Steve Tsang ed., 2006). [3] See generally Daniel O’Donnell, International treaties against terrorism and the use of terrorism during armed conflict and by armed forces, 88 Int’l Rev. Red Cross 853, 853-80 (2006). [4] Geoffery Levitt, Is terrorism Worth Defining?, 13 Ohio N.U. L. Rev. 97, 97 (1986). But see Gilbert Ramsay, Why terrorism can, but should not be defined, 8 Critical Stud. Terrorism 211, 211 (2015) (concluding that the debate regarding the definition of terrorism is obscuring the real issue, which is what exactly comprises an act of terrorism—“in other words, how is it that we continue to know terrorism when we see it?”). [5] Kalliopi K. Koufa (Special Rapporteur), Terrorism and Human Rights: Progress report prepared by Ms. Kalliopi K. Koufa, Special Rapporteur, U.N. Doc. E/CN.4/Sub.2/2001/31, ¶ 24 n15 (June 27, 2001). [6] For a discussion on the issues with this phrase, see, e.g., Conor Friedersdorf, Is One Man’s Terrorist Another Man’s Freedom Fighter?, Atlantic (May 16, 2012), https://www.theatlantic.com/politics/archive/2012/05/is-one-mans-terrorist-another-mans-freedom-fighter/257245/ (concluding that a more accurate description would be: “As a descriptor, terrorist is almost never applied rigorously and consistently to describe the tactics a group is using - rather, it is invoked as a pejorative to vilify the actions only of groups one wishes to discredit. People who agree with the ends of the very same groups often don't think of them as terrorists, the negative connotation of which causes them to focus on what they regard as the noble ends of allies they're more likely to dub freedom fighters”); cf. Stearns, supra note 2, at 79-81 (concluding that grouping all “terrorists” into one category is a faulty solution because motivations behind different “terrorist” groups vary significantly). [7] James D. Fry, Terrorism as a Crime Against Humanity and Genocide: The Backdoor to Universal Jurisdiction, 7 UCLA J. Int’l L. & Foreign Aff. 169, 179-80 (2002). [8] Convention for the Prevention and Punishment of Terrorism art. 2 ¶ 1, League of Nations Doc. C.546M.383 1937 V. (1937) (never entered into force). [9] Later scholars have suggested that the reason the 1937 Convention never entered into force may actually have been because of the difficulty in getting States to ratify a document which included an explicit definition of terrorism. SeeHelen Duffy, The ‘War on Terror’ and the Framework of International Law 19 (2005). [10] Convention for the Prevention and Punishment of Terrorism, supra note 8. [11] Duffy, supra note 9, at 19. [12] Measures to eliminate international terrorism (Agenda item 108), https://www.un.org/en/ga/sixth/70/int_terrorism.shtml (last visited Feb. 5, 2021). [13] Cf. Martin Wälisch, Liberation and Resistance Movements, Oxford Bibliographies (May 29, 2019), https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0186.xml (providing a background on liberation and resistance movements). See generally Lucia Aleni, Distinguishing Terrorism from Wars of National Liberation in the Light of International Law: A View from Italian Courts, 6 J. Int’l Crim. Just., 525, 525-39 (2008) (explaining the difference between NLMs and terrorist organizations). [14] Duffy, supra note 9, at 19; see Jonathan Hafetz, Terrorism as an International Crime?: Mediating between Justice and Legality, 109 Am. Soc’y Int’l L. Proc. 158, 159 (2015) (“The definitional impasse has traditionally centered on the application of a crime of terrorism to two situations: first, to NLMs resisting foreign occupation and seeking self-determination; and second, to violence committed by state officials against their own citizens.”); see also Stearns, supranote 2, at 83-84, 86-87 (explaining that the issue of NLMs continues to be a problem today. For instance, in response to the Belsan school massacre in 2004, Russia proposed a draft resolution which defined terrorism as “any act intended to cause death or serious injury to civilians or taking of hostages with the purpose to provoke a state of terror, intimidate a population, or compel a government or an international organization to do or abstain from doing an act.” However, similar to other proposals, the definition was criticized for not defining what “any act” meant, and for potentially encompassing the actions of NLMs.). [15] Duffy, supra note 9, at 19, 23-25 (explaining that, rather than defining terrorism, such conventions address specific conduct that may fall under the purview of what would commonly be referred to as “terrorist activity” and subsequently provide a framework of obligations for State Parties based on these activities); G.A. Res. 50/53, at 1-2 (Dec. 11, 1995); G.A. Res. 51/210, at 2-7 (Feb. 20, 1997). [16] Duffy, supra note 9, at 19. [17] G.A. Res. 51/210, supra note 15, at ¶ 2. [18] Duffy, supra note 9, at 20. [19] G.A. Res. 51/210, supra note 15, at ¶ 9. [20] Duffy, supra note 9, at 20. The 1999 Financing Convention also contains a generic definition of terrorism: “any other act intended to cause death or serious bodily injury to a civilian, or to any person not taking an active part in hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population or to compel a government or an international organization to do or to abstain from doing any act.” Additionally, terrorism under the convention is the conduct covered by specific conventions addressing particular forms of terrorism. International Convention for the Suppression of the Financing of Terrorism art. 2, Dec. 9, 1999, 2178 U.N.T.S. 197 (entered into force Apr. 10, 2002). [21] The resolution was adopted under the Ch. VII power of the UN Security Council and is binding upon States. States are also obligated to prevent terrorism or terrorist safe havens on their territory; to share information with other governments regarding potential terrorist activities; to refrain from actively or passively encouraging terrorism; and to become States Party to existing international legal instruments related to terrorism, if they have not already done so. S.C. Res. 1373, ¶ 3 (Sept. 28, 2001). [22] S.C. Res. 1566, ¶ 3 (Oct. 8, 2004). [23] Rohan Perera, Measures to Eliminate International Terrorism: Report of the Working Group, 16, U.N. Doc. A/C.6/56/L.9 (Oct. 29, 2001) [hereinafter “Measures to Eliminate International Terrorism”]. [24] Duffy, supra note 9, at 21. [25] Measures to Eliminate International Terrorism, supra note 23, at 34. [26] Duffy, supra note 9, at 18. [27] See Beth Van Schaack & Ronald C. Slye, Int’l Crim. Law and Its Enforcement 761-63 (4th ed. 2020) (providing a background on the creation of the STL, and the subsequent prosecution within the STL). [28] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I/AC/R176bis, Decision of the Appeals Chamber, ¶ 85 (Feb. 16, 2011) [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 lime of peace, has indeed emerged. This customary rule requires the following three key elements: (i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) 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. [29] See Matthew Gillett & Matthias Schuster, Fast-track Justice: The Special Tribunal for Lebanon Defines Terrorism, 9 J. Int’l Crim. Just. 989, 1005-08 (2011) (addressing the controversy of the Court’s conclusion, and noting that the presiding judge, Antonio Cassese, had previously written a paper concluding that a customary rule of international terrorism had evolved); see also Antonio Cassese, The Multifaceted Criminal Notion of Terrorism in International Law, 4 J. Int’l Crim. Just. 933, 935 (2006). [30] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, at ¶ 88. [31] See Duffy, supra note 9, at 32. [32] S.C. Res. 1566, supra note 22, at ¶ 3. [33] G.A. Res. 49/60, Measures to Eliminate International Terrorism (Dec. 9, 1994). [34] It should be noted that this treaty is no longer in force. It was implicitly repealed in 2017 by Directive (EU) 2017/541. Directive 2017/541, of the European Parliament and of the Council of 15 March 2017 on combatting terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA, 2017 O.J. (L 88) 6, ¶ 6. [35] “Inchoate offenses” are acts in which no actual result occurs. Examples include threats of action, or failed action. SeeGerhard Werle, Individual Criminal Responsibility in Article 25 ICC Statute, 5 J. Int’l Crim. Just. 953, 971-73 (2007) (analyzing inchoate crimes in the international criminal law system); Craig Forcese, National Security Law: Canadian Practice in International Perspective 281-82 (2007) (explaining section 2 of the Canadian Criminal Code, which includes criminalization of the offense of attempt, conspiracy, counselling, and accessory to a crime—all of which are “inchoate” offenses). [36] Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on Combating Terrorism, 2008 O.J. (L 330) 21, ¶ 10, art. 4. [37] International Convention for the Suppression of the Financing of Terrorism, supra note 20. [38] Duffy, supra note 9, at 32-34 (“Beyond the normal requirement of intent in respect of the conduct (e.g., the bombing, murder, etc.) the person responsible will usually intend his or her acts to produce broader effects, namely spreading a state or terror and/or compelling a government or organization to take certain steps towards an ultimate goal.”); Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I/AC/R176bis, ¶ 109 (Feb. 16, 2011) (“[T]he subjective element of the crime under discussion is twofold, (i) the intent or dolus of the underlying crime and (ii) the special intent (dolus specialis) to spread fear or coerce an authority.”). [39] Duffy, supra note 9, at 32. [40] Id. [41] Id. at 34. [42] S.C. Res. 1566, supra note 22, at ¶ 3. [43] G.A. Res. 49/60, supra note 33, at ¶ 3. [44] Convention for the Prevention and Punishment of Terrorism, supra note 8. [45] International Convention for the Suppression of the Financing of Terrorism, supra note 20. [46] G.A. Res. 51/210, supra note 15, at ¶ 9. [47] Gillett & Schuster, supra note 29, at 1008-09. [48] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I/AC/R176bis, ¶ 90 (Feb. 16, 2011). [49] Duffy, supra note 9, at 34. [50] See Koufa, supra note 5, at ¶¶ 32-33 (finding that there is no degree of consensus regarding who can be considered an author of terrorism). [51] Id. at ¶ 32. [52] Id. at ¶ 33. [53] Id. at ¶¶ 51-61. [54] Duffy, supra note 9, at 35-37. [55] Id. at 36; see also Robert A. Friedlander, Terrorism and National Liberation Movements: Can Rights Derive from Wrongs?, 13 Case W. Res. J. Int’l L. 281 (1981) (analyzing whether the acts of NLMs should be excluded from a definition of terrorism). [56] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I/AC/R176bis, ¶ 85 (Feb. 16, 2011). [57] But see Stearns, supra note 2, at 88-89 (arguing that inherent difficulties in treating terrorism as a purely domestic criminal matter have led to “the collapse of several significant terrorism prosecutions in Europe and the United States” because prosecutors failed to adequately “satisfy courts with the quality of evidence gathered through confidential intelligence sources”). [58] 18 U.S.C. § 2331(1) (2018); see also § 2331(5) (providing a definition for domestic terrorism). [59] Terrorism Act 2000, c. 11, § 1 (UK), https://www.legislation.gov.uk/ukpga/2000/11/section/1. It is important to note that the learned experiences during the conflict in Northern Ireland with the Irish Republic Army (IRA)—a NLM—most likely affected how this crime was formulated. See Jessie Blackbourn, The evolving definition of terrorism in UK law, 3 Behav. Sci. Terrorism Pol. Aggression 131 (2010) (analyzing the evolution of the definition of terrorism in the UK, in order to advance the academic understanding of the debate over a universally accepted definition of terrorism). [60] See supra note 11 to 15 and accompanying text. [61] People’s Republic of China: China’s Anti-Terrorism Legislation and Repression in the Xinjiang Uighur Autonomous Region, Amnesty Int’l (Mar. 22, 2002); Lindsay Maizland, China’s Repression of Uighurs in Xinjiang, Council Foreign Relations (June 30, 2020), https://www.cfr.org/backgrounder/chinas-repression-uighurs-xinjiang ("Following the 9/11 attacks, the Chinese government started justifying its actions toward Uighurs as part of the Global War on Terrorism.”). [62] Central Asia: No Excuse for Escalating Human Rights Violations, Amnesty Int’l (Oct. 11, 2001); In the Name of Counter-Terrorism: Human Rights Abuses Worldwide, Hum. Rts. Watch (Mar. 25, 2003); Malaysia’s International Security Act and Suppression of Political Dissident, Hum. Rts. Watch (May 13, 2002); Malaysia: Human Rights under Threat – the Internal Security Act (ISA) and other restrictive laws, Amnesty Int’l (Oct. 24, 2001). [63] International Bar Association, Int’l Terrorism: Legal Challenges and Responses: A Report from the Int’l Bar Ass’n Task Force on Int’l Terrorism, at xxiii (2003). [64] Id.; cf. United Nations Off. on Drugs & Crime, Handbook on Crim. Just. Responses to Terrorism (2009) (providing a best practice guide for the prosecution of acts of terrorism within a domestic criminal justice system). [65] See Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I/AC/R176bis, ¶ 132 (Feb. 16, 2011) (under this article of the ICCPR, “no breach of the nullum crimen principle exists when the act was criminal ‘under national or international law, at the time when it was committed’”). [66] Prosecutor v. Galić, Case No. IT-98-29-T, Trial Judgement, ¶ 93 (Int’l Crim. Trib. for the Former Yugoslavia Dec. 5, 2003). [67] Matija Kovač, International Criminalisation of Terrorism, 14 Hrvatski ljetopis za kazneno pravo i praksu 267, 269 (2007). [68] Prosecutor v. Delalić, Case No IT-96-21-A, Appeal Judgment, ¶ 413 (Int’l Crim. Trib. for the Former Yugoslavia Feb. 20, 2001). [69] Prosecutor v. Galić, at ¶ 93. [70] Cf. Keiran Hardy & George Williams, What is Terrorism – assessing domestic legal definitions, 16 UCLA J. Int’l L. & Foreign Aff. 77 (2011) (using the principle of legality to analyze the legal definitions of terrorism in Australia, Canada, India, New Zealand, South Africa, the UK, and the US). [71] Duffy, supra note 9, at 40. [72] Joshua Ruby, Comment, An Evolutionary Theory of Universal Jurisdiction, 14 UCLA J. Int’l L. & Foreign Aff.567, 583-85 (2009); see also Prosecutor v. Erdemović, IT-96-22-T, Sentencing Judgement, ¶ 65 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 29, 1996) (“[T]he International Tribunal sees public reprobation and stigmatization by the international community, which would thereby express its indignation over heinous crimes and denounce the perpetrators, as one of the essential functions of a prison sentence for a crime against humanity.”); Att. Gen. of Israel v. Eichmann, 56 Am. J. Int’l L. 805, 814 (Dist. Ct. Jerusalem 1961) (it is “the moral duty of every sovereign state . . . to enforce the natural right to punish, possessed by the victims of the crime, whoever they may be, against criminals whose acts have ‘violated in extreme form the law of nature or the law of nations’”). [73] In Prosecutor v. Galić, the International Criminal Tribunal for Yugoslavia (ICTY) addressed whether the court had jurisdiction over crime of “terror against the civilian population as a violation of the laws or customs of war.” However, the Court explicitly limited its determination to whether an offense of terror in a specific sense—meaning the killing and wounding of civilians, during a time of armed conflict, with the intent to inflict terror on the civilian population—falls within the jurisdiction of the Tribunal. The ultimate holding of the Court is therefore outside of the scope of this discussion. Prosecutor v. Galić, at ¶ 87 n150. [74] See supra note 27 (providing more information on the STL). [75] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I/AC/R176bis, 29-30 (Feb. 16, 2011); Gillett & Schuster, supra note 29, at 1000. However, the above authors also note that the STL Appeals Chamber did “not apply[] international law on the crime of terrorism” but rather “us[ed] international law to interpret (and broaden) the established Lebanese definition of the crime of terrorism.” Id. at 998-1002. [76] See United Nations Off. on Drugs & Crime, Manual on Int’l Coop. in Crim. Matters Related to Terrorism 13-23 (2009) (providing an list of the many regional and international instruments, each of which define elements of terrorism rather than providing a singular definition of terrorism); cf. Duffy, supra note 9, at 45 (“[W]ithout reaching an acceptable international definition of the term terrorism one can sign any declaration or agreement against terrorism without having to fulfil one’s obligations as per the agreement.”). [77] Van Schaack & Slye, supra note 27, at 68. [78] Without a threat to international peace and security, the issue would not be within the mandate of the Security Council. See U.N. Charter art. 39, 41-42 (providing the scope of the Security Council’s jurisdiction). [79] When voting on a resolution, each member of the Security Council may either vote “for,” “against,” or “abstain.” The permanent five members of the Security Council are China, France, Russia, the UK, and the US. These five members maintain veto power within the Security Council, meaning if any of the five vote “against” on a resolution, it will not pass. However, veto power does not apply when these members vote “abstain” on a resolution. U.N. Charter arts. 27, 30; Provisional Rules of Proc., https://www.un.org/securitycouncil/content/rop/chapter-7 (last visited Feb. 7, 2021). [80] See S.C. Res. 1373, supra note 23, at preamble ¶ 3 (“Reaffirming further that such acts, like any act of international terrorism, constitute a threat to international peace and security”). [81] David P. Forsythe, The UN Security Council and Response to Atrocities: International Criminal Law and the P-5, 34 Hum. Rts. Q. 840, 842-55 (2012); see Security Council draft resolution 562, U.N. Doc. S/2015/562 (2015) (proposing an ad hoc tribunal to investigate and try those responsible for the downing of Malaysia Airlines Flight 17; Russia vetoed the resolution); U.N. SCOR, 70th Sess., 7498th mtg., U.N. Doc. S/PV.7498 (July 29, 2015) (providing the comments by various council members criticizing Russia’s veto of the resolution as denying justice to the victims of the crime for political reasons); Michael Ramsden, “Uniting for Peace” in the Age of International Justice, 42 Yale J. Int’l L. Online1 (2016) (proposing the motivation of Russia’s veto of resolution 562 was the allegation that Russian separatists shot down the aircraft); cf. Jennifer Trahan, Legal Limits to the Veto Power in the Face of Atrocity Crimes, Int’l Ctr. Transitional Just. (Apr. 11, 2019), https://www.ictj.org/news/legal-limits-veto-power-face-atrocity-crimes (arguing that the UN General Assembly should seek an advisory opinion from the International Court of Justice regarding whether “unrestrained veto use while genocide, crimes against humanity, and/or war crimes are ongoing [is] consistent with international law”). [82] See Int’l Crim. Ct.: How the Ct. Works, https://www.icc-cpi.int/about/how-the-court-works (last visited Feb. 7, 2021) (explaining the different stages that must be fulfilled before a case may be heard in front of the Court). [83] Rome Statute of the International Criminal Court art. 12, 2187 U.N.T.S. 3 (July 17, 1998) (entered into force July 1, 2002) (hereinafter “Rome Statute”); cf. Cóman Kenny, Prosecuting Crimes of International Concern: Islamic State at the ICC?, 33 Utrecht J. Int’l Eur. L. 120, 122-30 (2017) (analyzing the jurisdictional methods through which the Islamic State may be prosecuted at the ICC, and concluding that referral from the UN Security Council is most likely the best method to exercise jurisdiction). [84] Rome Statute, supra note 83, at arts. 6-8bis. [85] See Aviv Cohen, Prosecuting Terrorist at the International Criminal Court: Reevaluating an Unused Legal tool to Combat Terrorism, 20 Mich. St. Int’l L. Rev. 219, 236-37 (2012) (explaining the amendment procedure for the Rome Statute). [86] Contra Lucy Martinez, Prosecuting Terrorists at the International Criminal Court: possibilities and Problems, 34 Rutgers L.J. 1 (2002) (arguing that the ICC is capable of prosecuting some acts of terrorism as a war crime or crime against humanity, as long as the elements of the crime are met). [87] United Nations Office on Drugs & Crime, supra note 76, at 41. [88] Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, annex 1 ¶ E, U.N. Doc. A/CONF.183/10 (July 17, 1998). [89] Compare Cohen, supra note 85, at 219 (providing an extensive examination of the benefits and detriments to including terrorism within the mandate of the ICC), with Hafetz, supra note 14, at 160-61 (concluding that prosecuting terrorism as an international crime would weaken international criminal law’s “capacity to fulfill its commitments to legality”). [90] Contra Cohen, supra note 85, at 239 (proposing an “Article 8ter: Crime of Terrorism,” which adopts a similar definition as that included in the 1999 Financing Convention). [91] United Nations Office on Drugs & Crime, supra note 76, at 42. [92] Rome Statute, supra note 83, at art. 7. [93] United Nations Office on Drugs & Crime, supra note 76, at 43; Fry, supra note 7, at 187. [94] Id. [95] Id. [96] Megan Specia, Police Shoot Man on London Bridge, Calling Case a ‘Terrorism Incident’, N.Y. Times (Nov. 29, 2019), https://www.nytimes.com/2019/11/29/world/europe/london-bridge-shooting.html?searchResultPosition=1. [97] United Nations Office on Drugs & Crime, supra note 76, at 43. [98] Id.; Vincent-Joël Proulx, Rethinking the Jurisdiction of the Criminal Court in the Post-September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity?, 19 Am. U. Int’l L. Rev. 1009, 1058-83 (2003) (applying the requirements of a crime against humanity under the Rome Statute to the facts of the 9/11 attack). [99] Id. [100] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I/AC/R176bis, ¶ 104 (Feb. 16, 2011); Prosecutor v. Galić, Case No. IT-98-29-T, Trial Judgement, ¶¶ 91-138 (Int’l Crim. Tri. for the Former Yugoslavia Dec. 5, 2003); Prosecutor v. Galič, Case No. IT-98-29-T, Appeals Chamber Judgement, ¶¶ 81-104 (Int’l Crim. Tri. for the Former Yugoslavia Nov. 30, 2006). [101] Rome Statute, supra note 83, at art. 8. [102] Cohen, supra note 85, at 246. [103] See generally id. at 246-49 (analyzing the applicability of prosecuting an act of terrorism as a war crime within the ICC); Kenny, supra note 83, at 131-32 (analyzing the likelihood of prosecuting the Islamic State for war crimes within the ICC). [104] Convention on the Prevention and Punishment of the Crime of Genocide art. 2, 78 U.N.T.S. 277 (Dec. 9, 1948) (entered into force Jan. 12, 1951). [105] Id. [106] Rome Statute, supra note 83, at art. 6. [107] United Nations Office on Drugs & Crime, supra note 76, at 43. [108] But see Fry, supra note 7, at 190 (concluding that terrorism should be prosecuted within the ICC as either a crime against humanity or an act of genocide. Moreover, the author argues it would be easier to prove genocide because it has fewer elements). [109] International Criminal Court Assembly of States Parties, Review Conference of the Rome Statute of the International Criminal Court, U.N. Doc. RC/11, 18 (May 31-June 11, 2010); Alex Whiting, Crime of Aggression Activated at the ICC: Does it Matter?, Just Security (Dec. 19, 2017), https://www.justsecurity.org/49859/crime-aggression-activated-icc-matter/. [110] Whiting, supra note 109. [111] Rome Statute, supra note 83, at art. 8bis. [112] Malcolm N. Shaw, Int’l Law 326-27 (8th ed. 2017); Whiting, supra note 109. [113] As of February 7, 2021, only 40 States have ratified the Amendment adding the crime of aggression to the jurisdiction of the ICC. Amendments on the crime of aggression to the Rome Statute of the Int’l Crim. Ct., https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-b&chapter=18&lang=en (last visited Feb. 7., 2021). [114] Martinez, supra note 86, at 50. [115] See Madeline Morris, Terrorism and Unilateralism: Criminal Jurisdictions and International Relations, 36 Cornell Int’l L.J. 473, 489 (2004) (arguing that the preferrable method to prosecute acts of terrorism is prosecution within domestic courts). [116] See Edward M. Wise, International Crimes and Domestic Criminal Law, 38 DePaul L. Rev. 923 (1989) (examining the overlap between international criminal law and US domestic criminal law). [117] The customary grounds for jurisdiction are explained further infra, “Exercising jurisdiction over an act of terrorism.” [118] The following treaties each provide for the exercise of jurisdiction based on customary grounds and are nearly identical in their substance: the International Convention for the Suppression of Terrorist Bombings, art. 6; the 1999 Financing Convention, art. 7; the European Convention on the Suppression of Terrorism, art. 13; and the 1994 Convention on Nuclear Safety, art. 9. See Hafetz, supra note 14, at 159 (“Rather than providing for universal jurisdiction, anti-terrorism treaties generally require States to criminalize conduct, establish extraterritorial jurisdiction over it, and cooperate either by prosecuting or extraditing offenders.”). [119] Examples of such treaties include the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, art. 4, 7, and 8; the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, art. 5, 7, and 8; the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents, art. 3, 7, and 8. See Alexander Orakhelashvili, Akehurt’s Mod. Introduction to Int’l Law 222 (8th ed. 2019) (providing more examples, including the 1949 Geneva Convention on the Laws of War; the 1973 International Convention on the Suppression and Punishment of the Crime of “Apartheid,” and the 1984 Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment); see also Lori Fisler Damrosch & Sean D. Murphy, Int’l Law: Cases and Materials 790-92 (6th ed. 2014) (providing a basic overview of the concept of aut dedere aut judicare). See generally Int’l Law Comm’n, The obligation to extradite or prosecute (aut dedere aut judicare) U.N. Doc. A/68/10, at 108-10 (2014); Int’l Law Comm’n, The Obligation to Extradite or Prosecute (aut dedere aut judicare), U.N. Doc. A/CN.4/612 (Mar. 26, 2009) (providing government comments and observations on the obligation to extradite or prosecute); Questions Relating to the Obligation to Prosecute or Extradite (Belg. v Sen.),Judgment, 2012 I.C.J. 422, ¶¶ 94-95 (July 20) (analyzing the concept of aut dedere aut judicare). [120] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I/AC/R176bis, ¶ 71 (Feb. 16, 2011) (“States are duty bound by international law to adopt the necessary implementing legislation once they become parties to international treaties (that is, when such legislation is needed to give effect to international rules at the domestic level).”). [121] United Nations Off. on Drugs & Crime, Frequently Asked Questions on Int’l Law Aspects of Countering Terrorism 26-30 (2009). [122] Examples include hijacking, hostage taking, violence against internationally protected persons, terrorist bombing, and financing terrorism. [123] See supra notes 7 to 25 and accompanying text (explaining how international conventions often contain different variations of a definition of terrorism). [124] The State is responsible for setting rules that identify the persons and property over which the State maintains jurisdiction and the procedures through which the State may enforce its laws. Shane Sibbel, Universal Jurisdiction and the Terrorism Acts, 3 Cambridge Student L. Rev. 13, 13 (2007). [125] Am. Soc’y Int’l L., Jurisdictional, Preliminary, and Procedural Concerns, in Benchbook Int’l L. § II.A, IIA.1(Diane Marie Amann ed., 2014), www.asil.org/benchbook/jurisdiction.pdf. [126] Id. at IIA-2. [127] Id. [128] Shaw, supra note 112, at 488-93; Sompong Sucharitkul, Terrorism and International Law, Golden Gate U. Dig. Commons 33-34 (1987), https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1527&context=pubs. [129] Shaw, supra note 112, at 488-90; cf. Sucharitkul, supra note 128, at 31-32 (arguing that the territorial principle is the “most cogent and solid foundation for the exercise of jurisdiction” and therefore should take precedence over the other bases of jurisdiction). [130] See supra note 83 and accompanying text. [131] In some States, residence within the State or the assertion of a claim of nationality may be sufficient to assert grounds for jurisdiction. Shaw, supra note 112, at 493-94, 494 n61, 498; see Sibbel, supra note 124, at 17 (describing the UK law on active personality jurisdiction, which allows for jurisdiction based on the above conditions). [132] Sucharitkul, supra note 128, at 34. [133] See supra note 83 and accompanying text. [134] For example, the ability to vote; the ability to obtain a passport; and the diplomatic protection of the State. [135] For example, the obligation to comply with the laws of the State, the obligation to vote (for some States), or the obligation to participate in the military (for some States). [136] Shaw, supra note 112, at 493-94. [137] Id. at 494. [138] Id. at 495-96. [139] Id. at 496. [140] Id. at 497; see Sibbel, supra note 124, at 17 (describing the UK law allowing for passive personality jurisdiction). [141] Sucharitkul, supra note 128, at 34. [142] Sibbel, supra note 124, at 17. [143] John Bassett Moore, 1906 Digest of International Law, vol. II, at 228; Shaw, supra note 112, at 497. [144] 1927 P.C.I.J. (ser. A) No. 10, at 92 (Sept. 7). [145] Shaw, supra note 112, at 497. [146] Restatement (Third) of Foreign Relations Law of the United States, § 402, comment g. (AM. L. INST. 1987). [147] Id. [148] International Convention against the Taking of Hostages art. 9, Dec. 17, 1979, 1316 U.N.T.S. 205 (entered into force June 3, 1983) [hereinafter 1979 Hostages Convention]. [149] Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents art. 3(1)(c), Dec. 14, 1973, 1035 U.N.T.S. 167 (entered into force Feb. 20, 1977). [150] United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 5(1)(c), Dec. 10, 1984, 1465 U.N.T.S. 85. [151] Omnibus Diplomatic Security and Anti-Terrorism Act of 1986, Pub. L. No. 99-399, 100 Stat. 853, 896. [152] 681 F. Supp. 869 (D.D.C. 1988). [153] Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgement, 2002 I.C.J. Rep. 3, 63, 76-77 (Feb. 14) (joint separate opinion by Higgins, J.; Koojimans, J.; & Buergenthal, J.) [154] Shaw, supra note 112, at 499. [155] Id.; Sibbel, supra note 124, at 17. [156] Sibbel, supra note 124, at 17 (describing the UK law allowing for active personality jurisdiction). [157] Shaw, supra note 112, at 499. [158] See, e.g., 1979 Hostages Convention, supra note 147; Convention on the Safety of United Nations and Associated Personnel, Dec. 9, 1994, 2051 U.N.T.S. 363. [159] See John F. Murphy, The Impact of Terrorism on Globalization and Vice-Versa, 36 Int’l L. 77 (2002) (describing the impact of globalization on terrorism in light of the expansion in global economic flows; political engagement and interest; and the mobility of people, information, and ideas). [160] Contra Sibbel, supra note 124, at 17 (“[I]t is unlikely that all or even most cases of terrorist bombing and financing in the world may be characterised as affecting the vital interests of the UK.”). [161] Restatement (Third) of Foreign Relations Law of the United States, § 404; Curtis A. Bradley, Universal Jurisdiction and U.S. Law, 2001 U. Chi. Legal F. 323, 324 (2001); see also Polyukhovich v. Commonwealth, (1991) 172 CLR 501, ¶ 24 (Austl.) (suggesting that universal jurisdiction “is based on the notion that certain acts are so universally condemned that, regardless of the [location, for the purposes of determining jurisdiction,] of the offence[sic] and the nationality of the offender or the victim, each state has jurisdiction to deal with the perpetrators of those acts”). [162] United States v. Yousef, 327 F.3d 56, 105 (2d Cir. 2003). [163] Restatement (Third) of Foreign Relations Law of the United States, § 404. [164] Id. [165] Orakhelashvili, supra note 119, at 221. See generally The Scope and Application of the Principle of Universal Jurisdiction (Agenda Item 85), Gen. Assembly of the United Nations, https://www.un.org/en/ga/sixth/71/universal_jurisdiction.shtml (last visited Feb. 9, 2021) (providing details of the UN Sixth (Legal) Committee’s work on clarifying the principle of universal jurisdiction). [166] Compare Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 Tex. L. Rev. 785 (1988) (arguing in favor of the expansion of universal jurisdiction to include terrorist acts) and Pinochet v. Bartle, UKHL 17, ¶ 316 (1999) (noting the decision from Eichmann wherein universal jurisdiction was determined to have been “an independent source of jurisdiction derived from customary international law, which formed part of the unwritten law of Israel, and which did not depend on the statute”), with Henry Kissinger, The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny, Foreign Aff. (July-Aug. 2001) (arguing that universal jurisdiction should be limited, not expanded) andYousef, 327 F.3d at 106-08 (holding that—unlike piracy, war crimes, and crimes against humanity—universal jurisdiction does not apply to acts of terrorism under US law). [167] Cases include Att.-Gen. of Israel v. Eichmann, 56 Am. J. Int’l L. 805, 814 (Dist. Ct. Jerusalem 1961); Jorgic v. Germany, app. no. 74613/01, 13-20 (2007); Matter of Extradition of Demjanjuk, 612 F. Supp. 544, 555-58 (N.D. Ohio 1985); Pinochet, at 9, 55-57, 65. See Fry, supra note 7, at 177-78 (providing more examples of cases, and concluding “the principle of universality is a well-recognized basis for jurisdiction”); see also Bradley, supra note 161, at 325 (noting the “growing support for extending the universal jurisdiction theory to certain acts of terrorism”). [168] The US Congress, for instance, has adopted various legislation authorizing jurisdiction on the basis of the universality principle. See 18 U.S.C. § 1651 (2006) (outlawing piracy under the law of nations); 18 U.S.C. § 1091 (2006) (outlawing genocide); 18 U.S.C. § 2340A (2006) (outlawing torture); and 18 U.S.C. § 2441 (2006) (outlawing war crimes). See generally M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int’l L. 81 (2001) (providing a background on the application of universal jurisdiction); Universal Jurisdiction: A Preliminary Survey of Legislation Around the World, Amnesty Int’l (2012), https://www.amnesty.org/download/Documents/24000/ior530192012en.pdf (analyzing the universal jurisdiction statutes of different States); Int’l Humanitarian Law Nat’l Implementation Database, https://ihl-databases.icrc.org/ihl-nat (last visited Feb. 7, 2021) (collection of the different national legislation allowing for universal jurisdiction); Stephen Macedo, Universal Jurisdiction: Nat’l Cts. and the Prosecution of Serious Crimes under Int’l Law (2004) (analyzing the implementation of universal jurisdiction in domestic courts). [169] Kesab Prasad Bastola, Universal Jurisdiction and its Applicability, 9 NJA L.J. 105, 110 (2015). [170] This may be due to the preamble of the Rome Statute, which—while not requiring that States adopt national legislation—“recalls” that it is “the duty of every State . . . to exercise criminal jurisdiction over those responsible for international crimes.” Damrosch & Murphy, supra note 119, at 790-92. [171] Princeton University Program in Law and Public Affairs, The Princeton Principles on Universal Jurisdiction(2001). See generally Bastola, supra note 169, at 111-13 (summarizing the Princeton Principles and their application to State jurisdiction). [172] Compare G. John Ikenberry, Princeton Principles on Universal Jurisdiction, Foreign Aff. (Jan/Feb 2002) (reviewing the Princeton Principles and concluding that, at a minimum, the principles have created a guideline for how to apply universal jurisdiction in order to prevent abuse) and Barbara Crossette, Guide Proposed for Trial of Rouge Leaders, N.Y. Times (July 23, 2001) (concluding that the principles provide necessary guidance on how to apply universal jurisdiction) and Laura Sector, The Year in Ideas: A to Z: Justice Without Borders, N.Y. Times (Dec. 9, 2001) (concluding that the principles may be vital in preventing abuse of universal jurisdiction), with Dephne Eviatar, Debating Belgium’s War-Crimes Jurisdiction, N.Y. Times (Jan. 25, 2003) (concluding that, in practice, the Princeton Principles have been unhelpful in resolving judicial disputes regarding the application of universal jurisdiction). [173] Orakhelashvili, supra note 119, at 222. [174] See supra note 122 and accompanying text. But see Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgement, 2002 I.C.J. Rep. 3, 63, ¶ 41 (Feb. 12) (joint separate opinion by Higgins, J.; Koojimans, J.; & Buergenthal, J.) (concluding that aut dedere aut judicare is “an obligatory territorial jurisdiction over persons, albeit in relation to acts committed elsewhere,” and is therefore not a form of universal jurisdiction). [175] Sibbel, supra note 124, at 18. [176] Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgement, 2002 I.C.J. Rep. 3, 35, 39-44 (Feb. 12) (separate opinion by Guillaume, Pres.) (concluding aut dedere aut judicare creates a “subsidiary universal jurisdiction” as opposed to “true universal jurisdiction”). [177] For example, the US Alien Torts Claims Act of 1789 was used in Filartiga v. Peña-Irala to allow one Paraguayan to sue another for an alleged tort committed in Paraguay. The plaintiff would not have been able to seek relief had the US courts not been able to exercise jurisdiction. 630 F.2d 876 (2d Cir. 1980); see also Katherine Gallagher, Universal Jurisdiction in Practice, 7 J. Int’l Crim. Just. 1087, 1100-14 (2009) (examining the legal justifications for, and ultimate result of, prosecutions via universal jurisdiction in Spain, Germany, and France). [178] Bradley, supra note 161, at 325 (“There is . . . no assurance that the prosecuting nations will apply fair standards of criminal procedure in adjudicating these cases. And there is a danger that the prosecution of foreign citizens under this concept—especially foreign leaders—will undermine peaceful international relations.”). [179] See supra note 11 to 15 and accompanying text. [180] For example, Belgium adopted an expansive universal jurisdiction law in 1993, which provided for the protection of victims of war crimes, genocide, and crimes against humanity. Unfortunately, however, the law was politicized and ultimately repealed in 2003. United Nations, Observations by Belgium on the scope and application of the principle of universal jurisdiction 13-14 (2010), https://www.un.org/en/ga/sixth/65/ScopeAppUniJuri_StatesComments/Belgium_E.pdf; see also Eviatar, supra note 172(providing a history of the Belgian universal jurisdiction statute); cf. Oscar Schachter, Int’l Law in Theory and Practice268 (1991) (addressing whether the limitation of reasonableness has caused a movement towards limiting existing universal jurisdiction statutes). [181] Contra Douglass Cassel, Universal Criminal Jurisdiction, 31 Hum. Rts. 22, 22-23 (2004) (identifying the issues with universal jurisdiction, but concluding nevertheless that it is necessary for the prosecution of heinous crimes which would otherwise be left in impunity). [182] Cassese, supra note 29, at 934. [183] See supra note 61 to 64 and accompanying text. [184] See supra note 11 to 15 and accompanying text. [185] See supra note 65 to 71 and accompanying text. [186] Kovač, supra note 67, at 271. [187] Id. [188] Id. [189] This jurisdiction will most likely be based on the territoriality principle, though it may also be based on active personality, passive personality, or the protective principle. While universal jurisdiction could apply, considering the evolving nature of universal jurisdiction statutes, this article does not argue in favor of widely applying this basis for jurisdiction. [190] Id. [191] Cassese, supra note 29 and accompanying quote by Antonio Cassese. [192] See About the Anti-Terrorism Act, https://www.justice.gc.ca/eng/cj-jp/ns-sn/act-loi.html (last visited Feb. 5, 2021). [193] Canadian Criminal Code, R.S.C. 1985, c. C-46, § 718.2(a)(v) (“[A] sentence should be increased or reduced for any relevant aggravating or mitigating circumstances relating to the offense or the offender,” including the aggravating factor of “evidence that the offense was a terrorism offense”); Forcese, supra note 35, at 282-83 (explaining section 2 of the Canadian Criminal Code which includes the offense of attempt, conspiracy, counselling and accessory to a crime). [194] Id. [195] See generally Michael Nesbitt, Robert Oxoby & Meagan Potier, An Empirical and Qualitative Assessment of Terrorism Sentencing Decisions in Canada since 2001: Shifting Away from the Fundamental Principle and Towards Cognitive Biases, IZA DP No. 12255 (Mar. 2019), http://ftp.iza.org/dp12255.pdf (conducting an in-depth analysis of terrorism sentencing decisions in Canada since September 2001, and how Criminal Code section 718.2(a)(v) has affected this sentencing). [196] 18 U.S.C. § 2332b(a)(1) (2018). [197] § 2332b(g)(5). [198] Federal Sentencing Guidelines Manual § 3A1.4(a) (2018) (“If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism [as defined by 18 U.S.C. § 2332b(g)(5)], increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.”). [199] See, e.g., United States v. El-Mezain, 664 F.3d 467 (2011) (appealing defendant’s conviction of conspiracy and substantive offenses for providing material aid and support to Hamas, a designated terrorist organization, and their sentencing using 18 U.S.C. § 2332(g)(5) and Federal Sentencing Guideline § 3A1.4). [200] But see Peugh v. United States, 569 U.S. 530, 533, 548-49 (2013) (holding that changes in sentencing guidelines that are advisory are not retroactive, and therefore the ex-post-facto non-retroactivity doctrine applies to both mandatory and advisory guidelines). [201] However, such an amendment could be unconstitutional under the Due Process clause. See Johnson v. United States, 576 U.S. 591, 597, 605-06 (2015) (holding that void for vagueness and fair notice protections apply to criminal sentencing statutes). But see Beckles v. United States, 137 S. Ct. 886, 890, 892 (2017) (“[A]dvisory Guidelines are not subject to vagueness challenges under the Due Process Clause”). [202] Apprendi v. New Jersey, 120 S. Ct. 2348, 2355-60 (2000) (holding that any fact which increases the penalty for a crime beyond the statutory maximum becomes an element of the offense under the Due Process clause and the Sixth Amendment, and therefore must be submitted and found by a jury by proof beyond a reasonable doubt); Alleyne v. United States, 570 U.S. 99, 103 (2013) (extending the holding in Apprendi to apply to facts that cause the imposition of a mandatory minimum). [203] Blakely v. Washington, 542 U.S. 296, 301-05, 313 (2004) (applying Apprendi to state sentencing guidelines; therefore, mandatory state sentencing guidelines that allow judges to enhance sentences beyond the prescribe statutory maximum based on facts not reviewed by a jury violate the Sixth Amendment right to a trial by jury); United States v. Booker, 543 U.S. 220, 233-34, 243-44 (2005) (extending Blakely to mandatory federal sentencing guidelines, thus invalidating the provision that made the federal sentencing guidelines mandatory and mandating that federal sentencing guidelines must be advisory). [204] Gall v. United States, 552 U.S. 38, 46-49 (2007) (holding that, in accordance with the precedent set in Booker, “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. . .. The Guidelines are not the only consideration, however. . . . [The judge] must make a reasonable individualized assessment based on the facts presented.”). See generally Federal Sentencing Guidelines, https://www.law.cornell.edu/wex/federal_sentencing_guidelines (last visited June 24, 2021).
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