Terrorism and the Nations - About the role of the International Crimes and the Place of Terrorism in it.

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The following is an essay done for "International Criminal Law" course in my University authored by myself.


Terrorism and the Nations - About the role of the International Crimes and the Place of Terrorism in it.
Pedro Ramón Vivanco Mata.
Universität Mannheim.

1. History of Terrorism.

In order to understand Terrorism on the legal sphere, we must understand what Terrorism is, its definition and history across the ages briefly.

The Cambridge Dictionary describes “Terrorism” as the actions or methods of terrorists. From that definition we can gather the need of two parts, an action or method, and a subject, a terrorist.

That same dictionary describes a “Terrorist” as a person who tries to frighten people or governments into doing what they want by using or threatening violence.

So, we can gather from both descriptions the following statement about terrorism:

- Terrorism is the action or methods used by the person who tries to frighten people or governments into doing what they want by the use or threat of violence.

There have been, for all intents, several actions in the past, so far as the 1st Century CE with the revolts of Jewish Zealots within the province of Judaea, to the famous Gunpowder Plot by Guy Fawkes, and to the current terrorist groups, such as ISIS.

These actions follow the definition we have set before, they are the actions from a person (or rather, group of people) with one goal in mind (for the romans to leave Judaea for the Zealots, England to become Catholic again for the Gunpowder Plot…) by the use or threat of violence (such as the killings of prominent collaborators of Rome and filling of the undergrounds of the Westminster Palace with barrels of gunpowder). (Chaliand & Blin, 2016)

We now know the definition, its stand in history since long ago, and now we go from the most general topic such as the definition and history, to its consequences on the legal world.

2. Terrorism as a crime in Penal Codes.

As one could describe it, the legal status of the things that surrounds us is a reaction to its existence, to its consequences, and from the point of view of the society, we ought to for all intents and purposes classify things in a logical system, mainly the legal one, which is fairly significant. And for the actions that the government deeds as not only harmful to its wellbeing, but to the well being of the citizens of such a society, the main organizative instrument is the Penal Codes.

The base of Criminal Law is that for something to be a crime, it must be typified, to be specified within a court rule or penal code. So, for it to be a crime, it must be considered as such. And that same essential key to legislate is needed in International Crime.

To view this from an International Criminal Law stand point, we have to look at the International Criminal Court as the current peak of International Law, and said codification is stablished in the Rome Statute of the International Criminal Law, stablished by the UN on the 17th of July 1998, to stablish said court.
Said statute, stablishes all what is needed about International Criminal Law, such as the establishment of the court, the composition, the general principles of criminal law and, most importantly for us, the Jurisdiction, admissibility and applicable law.

We find there, within the Article 5 of the Statute the Crimes within jurisdiction of the Court, but amongst them, we cannot find terrorism.

In these times, there is a growing scale of international tension, and a new branch of terrorism has appeared, considered international terrorism, which is the same definition as we have seen before, but with the transgression of the boundaries of a country, not being internal affairs anymore, but in an international scale. For that, as an example, we have the infamous attack on the United States of America on 11th of September 2001. And considering the weight of the United States within global affairs, I will be taking this point as our start.

3. Attempts to include Terrorism as an International Crime.

We must make clear the relationships between the United States of America and the International Criminal Court. Ever since its creation with its inspiration in the Nuremberg Trials of 1946, at the end of the Second World War, the International Criminal Court has served as a defence against the violations of fundamental human rights, with a mandate linked to the complementary principle.

However, the government of the United States of America was sceptic of the actions of said tribunal and the supposed goal of impartiality that is expected for all courts of justice. For the most part, the United States looked at the Court with suspicion for its own interest, as they feared that the ruling of said court would influence the decisions of the government regarding national security, considering it too much of a concession within national sovereignty.

It is for that reason that the Clinton administration wanted a special treatment to the country using the status of Forces Agreements of NATO for the armed forces of the United States to be excluded.

“Here,”, Steven C. Roach says, “Washington reasoned that certain vengeful states would refer bogus cases involving US military personnel to the International Criminal Court, thereby politicizing the Court. In response to this objection, International Criminal Court Officials pointed out that the International Criminal Law statute contained an important safeguard against such abuses: namely, the Pre-Trial Chamber’s duty to screen out any unsubstantiated evidence.”

In this display we can see the tense relationships between the American office and the United Nations’ office when regarding the role of the International Criminal Court to the point in which the Court “challenged US sovereignty as much as the International Criminal Law statute could take precedence over legal provisions of the US Constitution, including aa trial by jury.” (Roach, 2008)

We know that in 1990, on the forty second session of the International Law Commission of the United Nations, there was adopted in a provisional manner to the statute the article 16 regarding International Terrorism, and in 1995, terrorism was to be considered added to the statute, as the article 24th 3 of the final Treaty that would stablish the International Court.

However, as the commission in charge continued to dialogue, they were unable to include the terrorist crime as they expected in the final drafts of the treaty, which in the end, would not be signed by the government of the United States of America in the early 2000s, under the George W. Bush administration after the catastrophic attacks on the United States with the World Trade Center being struck with thousands of lives lost, in a patriotic euphoria with a declared war on terrorism, they sought to amend the wrongs by themselves, and not with the inclusion of the International Criminal Court.

4. The Freedom Fighter Paradox.

When talking about Terrorism, inevitably we ought to talk about the Freedom Fighter Paradox. Said paradox consists on the perception of an act as either destructive or revendicate, if it must be considered on aggression or if it’s considered to be a popular movement to claim liberties.

It cannot be struck with the same punishment those who do it in order to cause terror and take advantage and those who have freedom in mind, as context and reasons do matter in the end of the day, because the end goal of a legal system is to achieve justice, and justice depends on everything surrounding the matter.

And it’s that way we reach the paradox of the Freedom Fighter. For those who commit an act considered terrorist, but that it has an intent of achieving liberty. And that’s the reasoning behind the naming. Would they be considered terrorists, or people who fight for their freedom?

But is violence justified as well? Legally, it can be backed with certain exceptions, such as humanitarian intervention, self-defence, protection…

And that’s where the greatest question lies. When categorizing the different kinds of crimes that can happen within a statute, when reaching for justice, you ought to be careful, and mind the context behind the narrative in order not to reach an interested part, but a just part.

Of course, we have to define it as well. The Cambridge Dictionary defines a Freedom Fighter as a person who uses violent methods to try to remove a government from power. It is fairly similar to what the terrorist definition is, and that could come since for one person, a freedom fighter is a terrorist, and in the contraire, a terrorist can be a freedom fighter for another.

An example for a Freedom Fighter in a historic sense, and considering the practical birth of international criminal law in the Second World War, we can put an example of freedom fighter in the French Maquis, or in the Spanish Civil War, the Spanish Maquis, people who fight against an oppressive regime in a guerrilla style conflict in an armed resistance, using violence in order to reach the freedom they seek.

5. Challenges for the inclusion of Terrorism.

Within the current redaction of the Statute of Rome, we can find the Article Seven, titled as Crimes Against Humanity. There are many definitions for a Crime against Humanity, but the article on itself gives us the definition that bases this article, being “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”.

Amongst the second paragraph, we find a second definition, “Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”

In contrary to the next article, about war crimes, this article does not have nor require a nexus of war in order to be met, and “Common requirements are the commission of the crimes within the framework of a widespread or systematic attack, on the basis of a policy – be this state or non-state based – and against a civilian population” (Arnold, 2004)

As far as we are aware on the definitory conditions for terrorism and the definitions given within the statute, we could allegedly make a connection between the act of terrorism being done against civilians to further a policy, and it could be included. However, the United Nations decided not to add it as part of the Article (UN Doc. A/CONF.183/C.1/L 27)

However, that does not mean that terrorism may not be prosecuted, for within that same article we could prosecute it as, not terrorism, but as one sub category of crimes against humanity.

6. Where to adjudicate alleged terrorists.

The first provision we find is as clear as it could be as it consists on one single word: Murder. Commonly within legal systems, a murder and/or a homicide consists on the death on one person with direct correspondence or nexus with the actions of another person.

“Events like the 11th September attacks could be prosecuted under this heading. The acts were multiple and co-ordinated, causing the death of thousands of people, in furtherance of Al Qaeda’s terrorist policy against the United States.109 Thus, they were “systematic”” (Arnold, 2004)

As the analysis of Arnold continues, they were also widespread due to the fact of them targeting multiple objectives, and there were civilians involved within the victims, as we can see in the World Trade Centre attack.

But of course, terrorism does not only exist on the part of the group of persons who do not take part of the state, but there is one kind of terrorism that does, the so called State Terrorism.

We can define State Terrorism as the acts of terrorism performed by the state, and one crucial example of state terrorism being prosecuted among the International Criminal Court would be with the base of the International Military Tribunal, as within its carter it was considered a crime the internation and imprisonment of the German political opponents of the state regime in concentration camps, since not only is murder considered a crime, but also “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law”

“The case of the enforced disappearances organised by states to terrorise the internal political opposition is simpler as it occurred in relation to the Night and Fog Decree implemented by the Nazi regime during WWII and was condemned as a crime against humanity by the IMT” (Arnold, 2004). The following articles may also include the taking of hostages, which can also be included in part of a grand attack, and the torture or people is also criminalized. So, the place to prosecute such acts could perfectly be within the International Criminal Court.

7. Conclusions.

What could be defined as justice? For starters, the Cambridge dictionary defines it as “fairness in the way people are dealt with”. And what, following said definition, is the goal of Criminal Law? To achieve such justice, to amend the errors done and punish the punitive acts for the society and all of its members with the goal in mind of keeping fairness amongst the people who form it.

But how do we reach said justice, properly speaking? First, we as humans, in the dawn of societies, followed the rule of the strongest, and the Lex Talionis. An eye for an eye, as it is commonly known. But soon after, with the establishment of a stronger state and the role of the state as the ruler and administrator of society, for example with the rise of the Greek polis or the establishment of the Roman Republic and the senate within the entirety of the Italian Lacio, a new way of managing justice and to see how fairness can be achieved was put into motion, with a third person taking the parts in consideration and acting and making the others act in consequence, the birth of Courts, of the equilibrium not set by the strongest, but by the action, recognition of the parts and the formation of the situation, and the resolution of conflicts in a non violent way.

Violence has, however, existed from way before society did, with the rule of the stronger being the rule amonst the rest of animals, in which the one who kept control and power over the group was the one who could keep it by force, that could defend said title because nobody else can take it from them. And in consequence, violence has been also part of the society. And with the birth of politics, violence spurred in that methodology as well, with threats and violence, with the dawn of the new form of violence to meet a goal. Terrorism.

But of course, as we have advanced from a method of policy of the strongest, we have inherited another policy of the strongest within the struggle of the state versus the members of the society, in which the members can group up to tense the relationships against the state. And in response, as law is the reaction of the state and society to the actions of the same, the criminalization of these actions appear, against murders, against threats, and not only to protect the personal integrity, but also the integrity of the state.

Moving forwards in time and we find ourselves after the World Wars, in a world so interconnected and politicised that caused not one, but two wars that took place in the entire global sphere, and in order to ensure the security and continuing stability, accountability must be held for all of the atrocities committed in the span of 1939 to 1940 against the fundamental human rights in Europe, who saw the worst part of the human politics and the rise again of the shadow of violence that has been with us since the dawn of time.

The world has increased in connectivity ever since, as the political tensions of the Cold War brewed for people to strengthen allies and instead of the two blocks going to full war, a series of proxy wars and guerrilla groups and funding was stablished by each, and the famous arms and space race. And to not anger the two giants, a great political game was stablished in which both funded and alimented small groups against the other that caused violence and threats, growing, much similar to the state terrorism that was condemned before in the Nuremberg Trials.

But in an increasingly connected world, international structures begun to form from the ashes of the League of Nations, such as the United Nations, or the NATO4 (and the WTO5) with the goal in mind for the acts that caused so much pain to not be repeated, and the creation of a formal international court was begun, with the dislike of the United States who saw it with fear of loss of power.

Eventually, the Soviet Union was broken, the Warsaw Pact dissolved, but that was not the least of the problems. The discussions within the UN’s committees for the forming of an International Court had been trying to stablish Terrorism as a formal crime, but disagreeances among definitions, and the fear of mistaking acts with the Freedom Fighter Paradox ended up scraping said idea.

But that does not mean that it could not be prosecuted. Although it is not criminalized with the terminology, in theory and in practice, the acts that could be considered commonly as terrorism are included within the bases of International Criminal law, and most importantly, fundamental parts of said acts are already included within the codification of the crimes. There was no need for the addition of Terrorism, since it was already included, but in parts, as we have seen before.

We must keep in mind, however, that only those terrorist attacks who have a certain number of characteristics and an international outreach are ought to be processed by the International Criminal Court, for if it isn’t it must maintain itself within the confines of local jurisdictions in order to preserve the sovereignty of the nations.

Terrorism is already criminalized. On other terms, but it is.

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