Cryer, Robert --- "Terrorism and the International Criminal Court" [2003] ALRCRefJl 4; (2003) 82 Australian Law Reform Commission Reform Journal 14

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Reform Issue 82 Autumn 2003

This article appeared on pages 14 – 16 & 70 of the original journal.

Terrorism and the International Criminal Court

By Robert Cryer*

The attacks on the twin towers of the World Trade Center on 11 September 2001 were clearly crimes of the utmost severity. That the perpetrators and their accomplices are fully deserving of punishment seems obvious. But what should they be prosecuted for? And where?

In the United States and elsewhere, calls went up that the best approach to take for prosecuting those responsible would be to establish an international criminal tribunal with representatives from various parts of the globe, including the Islamic world. For example, Professor Anne-Marie Slaughter, the current president of the American Society of International Law and an influential international lawyer, suggested in a piece in the New York Times on 17 November 2001 that “al-Qaeda should be tried before the world.”

But don’t we already have such a court, the much-feted International Criminal Court (ICC)? Unfortunately not. At least not for the twin towers attacks. The reasons for this are related to the jurisdiction of the ICC. Although it is possible that the acts themselves might fulfil the definition of one or more of the crimes over which the ICC has jurisdiction, the structure of the ICC and its jurisdictional limits preclude it from acting in this case. I will attempt to explain this below, along with some other possible avenues for ensuring that those who planned or assisted in the perpetration of these attacks do not go unpunished. The direct perpetrators, of course, cannot be prosecuted as their mission was a suicidal one.

What form of crimes were the 11 September attacks?

Given that the events of 11 September were the trigger for the United States declaring a ‘war on terror’, it might be thought that the most appropriate crime would be a crime of terrorism. There are a number of complex treaties relating, for example, to aerial hijacking. It is possible, although because the planes’ tragic journeys began and ended in the United States not certain, that they would apply. Failing that, perhaps a more compendious offence of terrorism could be used. Not before the ICC. There were a number of attempts during the process that led to the negotiation of the ICC Statute to include terrorist offences within the jurisdiction of the ICC. The draft statute written in 1993 by the United Nations International Law Commission included treaties on terrorism in the ICC’s jurisdiction. Despite last minute attempts by some of the Caribbean states to revive the idea, terrorism, along with drug trafficking, was excluded from the ICC’s jurisdiction.¹

In the end, those states who wanted terrorism to be under the jurisdiction of the ICC had to make do with a rather vague promise in the Rome Conference’s final Act that the possibility of including it would be considered at a review conference. Ironically, the United States was one of the states who had specifically tried to ensure terrorism was not placed under the ICC’s jurisdiction. The refusal of the drafters of the ICC Statute to include terrorism was based partially on the absence of a widely accepted, internationally codified definition of terrorism, along with the fear that most acts of terrorism were not serious enough to warrant inclusion in the ICC Statute. The former concern is appropriate. After all, we need some definition of a crime prior to prosecution to live up to the requirements of the nullum crimen sine lege (no crime without law) principle. The second reason responds to an understandable fear of flooding the ICC with relatively minor cases, when it is meant to prosecute only the most serious offences of concern to the international community as a whole. The 11 September attacks, however, probably do fulfil that threshold requirement.²

This may give us an entry into a possible offence subject to the ICC’s jurisdiction that could cover the 11 September attacks. Pursuant to Article 5 of the ICC Statute, the ICC initially has jurisdiction over genocide, crimes against humanity and war crimes. It is possible that at least one of those crimes covers the attacks. Genocide is rather unlikely, as for that crime it has to be proved that the attacks were perpetrated with the intent to “destroy, in whole or in part, a national ethnic, racial or religious group, as such.”³ This is extremely hard to prove and excludes killings which are intended to wipe out a group defined on political grounds. War crimes are also not a simple prosecutorial proposition. The law of war (or as it is now called ‘International Humanitarian Law’ or ‘IHL’) bans terrorism, and especially the intentional targeting of civilians.⁴ However, it is not certain that there was an armed conflict in the legal sense between al-Qaeda or Afghanistan and the United States on 11 September. An armed conflict of some sort is necessary to trigger the applicability of IHL.⁵ The possibility of trying the 11 September attacks as war crimes depends on the resolution of the rather thorny question of whether those attacks began an armed conflict.

That limitation does not apply to what is the most promising option for prosecution, crimes against humanity. Crimes against humanity, as defined in Article 7 of the ICC Statute, include murders (and that is what the killings on 11 September were) “committed as part of a widespread or systematic attack directed against any civilian population”. Given al-Qaeda’s previous record of such attacks there is a fair possibility that this criterion could be fulfilled.⁶ Presuming that the attacks could amount to a crime against humanity, we should move along to see if the ICC could thus prosecute those responsible for the 11 September attacks.

Can the ICC prosecute the perpetrators?

Sadly not. Although the ICC Statute was negotiated in June-July 1998 a high number of parties (60) were required to ratify the treaty before it came into force. The ICC Statute came into force on 1 July 2002, after the 11 September attacks. Article 11 of the ICC Statute provides that the ICC has jurisdiction over offences committed after the entry into force of the Statute, thus the ICC could not try those responsible for 11 September. Even if the temporal problem could be overcome, the fact that the US has refused to ratify the ICC Statute would make jurisdiction problematic. The ICC only has jurisdiction over those who commit offences on the territory of a state who has ratified the ICC Statute or are nationals of such a state (Article 12).

The only possibility of overcoming these hurdles would be for the United Nations Security Council to issue a resolution effectively rewriting the Statute. There are two arguments against this course of action. First, the Security Council does not, as Kofi Annan recently reaffirmed, have the authority to do any such thing.⁷ Second, given the US hostility to the ICC it is extremely unlikely that it would attempt to pass jurisdiction to the ICC, owing to the fact that it would give considerable legitimacy to the ICC. Legitimacy is something the US is keen to deny the ICC.⁸

So, if something like 11 September were to happen today, it is possible that the ICC would have jurisdiction. However, the prospect of the ICC trying those responsible for those attacks is effectively nil. For analogous offences committed after 1 July 2002 the offence will still have to be committed in a state that has ratified the ICC Statute or be by one of its nationals. There are currently 87 states who have ratified the ICC Statute, so the ICC may be able to make a contribution to repressing terrorism for those states but only when they fall under the definitions of genocide, crimes against humanity or war crimes.

There is one other possibility for the ICC. Now the ICC Statute is in force, the Security Council can pass jurisdiction over those three offences to the ICC where it would not otherwise have it. It has the power to do this in the ICC Statute itself (Article 13(b)). However, with the current United States government’s opposition to the ICC this is again unlikely.

Conclusion

Returning to prosecution of the 11 September attacks, the United States has issued directives that suspects in its custody are to be prosecuted before military commissions set up by and in the United States.⁹ It has firmly rejected a multilateral approach such as a Security Council-created ad hoc tribunal like those for former Yugoslavia and Rwanda. The unilateral stance of the United States on this, as on other matters, is regrettable. Terrorism is a threat to all states and people, and prosecution before an international panel of judges would probably improve the legitimacy of such prosecutions in the eyes of, in particular, the Islamic world. Even though the United States is not obliged to take the multilateral route, by refusing to do so it may have damaged its reputation abroad. It is worth mentioning in this regard that concerns have been expressed about the fair-trial protections contained in the plans for the military commissions envisaged by the Bush administration.¹⁰

A good argument can be made that the ICC should not have jurisdiction over all acts of terrorism, as some are not sufficiently serious to warrant an international response. We should not seek to dilute the importance of international action by dealing with less serious offences in an international context. Domestic tribunals are normally adequate for those offences. Nonetheless, some acts of terrorism, such as the 11 September attacks, are clearly sufficiently heinous that they deserve condemnation at an international level. The ICC may be the most appropriate forum for such prosecutions, and the most serious manifestations of terrorism may fall under the definitions of crimes the ICC does have jurisdiction over. It is these that are of concern to the international community as a whole, and perhaps therefore should be tried before a global body.¹¹ This is especially the case when, as currently, the level of distrust between states could undermine concerted efforts to repress crimes that affect us all.

* Dr Robert Cryer is a lecturer in law at the University of Nottingham, UK, where he teaches international law and criminal law.

Endnotes

1. See N Boister, ‘The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism, Politics’ (1998) 3(1) Journal of Armed Conflict Law 27 and P Robinson, ‘The Missing Crimes’ in A Cassese et al (eds), The Rome Statute of the International Criminal Court, (2002), OUP, Oxford, 510-521.

2. See M Drumbl, ‘Judging the September 11 Terrorist Attack’ (2002) 24(2) Human Rights Quarterly 323, 323-324.

3. Article 6 of the ICC Statute.

4. See H-P Gasser, ‘Acts of Terror, ‘Terrorism’ and International Humanitarian Law’ (2002) 847 International Review of the Red Cross 547.

5. See Drumbl, ibid, 336.

6. Ibid, 336-338.

7. Letter dated 3 July from Kofi Annan to Secretary of State Colin Powell.

8. A very useful discussion of the United States position can be found in D Forsythe, ‘The United States and International Criminal Justice’ (2002) 24(4) Human Rights Quarterly 974.

9. Military Order, Detention, Treatment and Trial of Certain Non-Citizens In the War Against Terrorism, 66 Fed. Reg. 57,833 (16 November 2001).

10. For a useful set of opinions on these commissions see ‘Agora’ in (2002) 96(2) American Journal of International Law 320-358.

11. M Delmas-Marty, ‘Global Crime Calls for Global Justice’ (2002) 10(4) European Journal of Crime, Criminal Law and Criminal Justice 286.