A Role for the International Criminal Court in the Fight against Terrorism? potx

If, however, on the one hand, the custodial state is an involved or affected state, but, on the other hand, either the terrorist crimes do not qualify as criminal offenses underits crimi

K.U Leuven Faculty of Law

Institute for International Law

Working Paper No 26 - August 2002

A Role for the International Criminal Court

in the Fight against Terrorism?

Kris Verdoodt

The Institute for International Law of the K.U.Leuven groups the teaching and

research in public international law and the law of international organisations at theFaculty of Law of the University of Leuven The Institute also organises colloquia,seminars, workshops and lectures which bring current issues of international law to thefore

The working paper series, started in 2001, aims at a broader dissemination of the results

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website of the Institute for International Law on www.internationallaw.be

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Tel +32 16 32 51 22 Fax +32 16 32 54 64

Prof Dr Jan Wouters, Director

A Role for the International Criminal Court in the

Fight against Terrorism?

Kris Verdoodt

TABLE OF CONTENTS

I THE PROTRACTED PROCESS OF NEGOTIATING THE STATUTE 4

1 General 4

2 Terrorism 6

II ARGUMENTS IN SUPPORT OF INCLUDING TERRORISM 8

1 General 8

2 Arguments in support of including internal terrorism 9

a) Structural impunity – affected nation in state of political anarchy 10

b) Political context warranting a transfer of jurisdiction to the ICC 11

3 Arguments in support of including international terrorism 16

a) Impunity - custodial state neither prosecutes nor extradites 18

b) Political context warranting a transfer of jurisdiction to the ICC 26

III ARGUMENTS AGAINST INCLUDING TERRORISM 28

1 Arguments against the establishment of the ICC as such 28

a) The principle of national sovereignty 29

b) Politically biased or lenient Prosecutors and judges 30

c) No guarantees for a strict observation of due process requirements 43

d) Ineffective investigation due to conflicting national security interests 45

e) Jeopardizing highly delicate political balances 47

2 Specific arguments against including terrorism 49

a) The risk of overburdening the Court 49

b) The risk of politicizing the Court 50

c) The risk of trivializing the role of the Court 50

IV AMENDMENTS TO THE STATUTE REQUIRED? 51

V CONCLUSION 53

1 On July 1, 2002, the International Criminal Court (hereinafter referred to as the

“ICC” or the “Court”) will become operative The ICC will have subject matter

jurisdiction over crimes of genocide, war crimes and crimes against humanity TheCourt will have jurisdiction over the crime of aggression as soon as agreement can bereached on a definition of that crime Crimes of terror are not included in the subjectmatter jurisdiction of the Court It is the purpose of the present thesis to assessarguments in favor and arguments against such inclusion of crimes of terror, and, ifthe arguments in favor are found to outweigh the arguments against inclusion, also toexamine to what extent the statute governing the ICC should be amended

I The protracted process of negotiating the Statute

1 General

2 In December 1990, Trinidad and Tobago suggested to the General Assembly of the

United Nations (hereinafter referred to as the “UN General Assembly”) to initiate an

exploratory probe into a possible establishment of an international criminal court.Trinidad and Tobago found the structural weakness of the criminal justice system in anumber of nations to be a major problem in the fight against international drugtrafficking, which led them to conclude that an international criminal court would be

an adequate and even indispensable tool in an effective combat against powerful

3 Pursuant to the initiative of Trinidad and Tobago, the UN General Assembly

instructed the International Law Commission (hereinafter referred to as the “ILC”) to

develop a tentative set of rules governing the composition, jurisdiction and

1 See website of the united Nations on the ICC, http://www.un.org/icc/overview.htm.

functioning of the ICC The ILC came up with a first report on its activities in 19902,and adopted a first draft statute for the ICC in 1993 (hereinafter referred to as the

number of national governments, which led the ILC to adopt an amended draft statute

4 The larger part of the international community considered the 1994 ILC Draft to be amuch more acceptable basis for further discussion than the 1993 ILC Draft For thefirst time, also the United States signaled its willingness to engage in constructive

UN General Assembly established an ad hoc committee (hereinafter referred to as the

“Ad Hoc Committee”), which was instructed to further develop some controversial

issues already addressed by or deliberately left out of the 1994 ILC Draft The Ad

General Assembly established a preparatory committee (hereinafter referred to as the

“Preparatory Committee”), instructing it to further elaborate the 1994 ILC Draft

based on the report issued by the Ad Hoc Committee The draft statute to bedeveloped by the Preparatory Committee was intended to serve as a basis for finalmulti-lateral negotiations of a statute for the ICC The Preparatory Committee

adopted a new draft statute in April of 1998 (hereinafter referred to as the “Prep.

2 Report of the International Law Commission on the work of its forty-second session, U.N GAOR, 45th

Sess., Supp No 10, at 36, U.N Doc A/45/10; Rupa Bhattacharyya, Establishing a rule-of-law international criminal justice system, 31 Tex Int´l L.J 57, 61 (winter 1996).

3

Report of the International Law Commission on the work of its forty-fifth session, U.N GAOR, 48th

Sess., Supp No 10, at 258, U.N Doc A/48/10; G SLUITER, “An International Criminal Court is hereby established”, Netherlands Quarterly of Human Rights 1998, (413) 414, Rupa Bhattacharyya, Establishing a rule-of-law international criminal justice system, 31 Tex Int´l L.J 57, 61 (winter 1996).

4 Report of the International Law Commission on the work of its forty-sixth session, U.N GAOR, 49th

Sess., Supp No 10, at 29, U.N Doc A/49/10; C VAN DEN WYGAERT and G STESSENS (eds.), International criminal law A collection of international and European instruments, The Hague, Kluwer

Law International, 1996, 477-498.

5 T.L.H MC CORMACK and G.J SIMPSON, “A new international criminal law regime?”, Netherlands International Law Review 1995, (177) 203-204.

6 Report of the Ad Hoc Committee on the establishment of an International Criminal Court, U.N GAOR,

50th Sess., Supp No 22, U.N Doc A/50/22.

7

Report of the Preparatory Committee on the establishment of an International Criminal Court,

http://www.un.org/icc/prepcom.htm.

Com Draft”)7 A special multi-lateral diplomatic conference was convened in Rome,

between June 15 and July 17, 1998 (hereinafter referred to as the “Diplomatic

Conference”), at which a final text of the statute was vigorously negotiated The final

statute (hereinafter referred to as the “Statute”) was voted and adopted by the

5 The Statute provides that it will enter into force on the first day of the month after thesixtieth day following the day of the deposit of the sixtieth instrument of ratification

ratification was deposited on April 11, 2002, and the Court will therefore be

2 Terrorism

6 Article 20 of the 1994 ILC Draft granted subject matter jurisdiction to the Court withrespect to the following crimes : -

“ (a) the crime of genocide;

(b) the crime of aggression;

(c) serious violations of the laws and customs applicable in armed conflict;

(d) crimes against humanity;

(e) crimes, established under or pursuant to the treaty provisions listed in the Annex,

which having regard to the conduct alleged, constitute exceptionally serious crimes of international concern.”

7 The crimes referred to under section (e) are generally referred to as “treaty-basedcrimes” The “annex” referred to in section (e) was a list of existing treaties attached

to the 1994 ILC Draft, all of which treaties required states parties to those treaties to

8 See Rome Statute of the International Criminal Court, at http://www.un.org/law/icc/statute/romefra.htm

9 Art 126 Statute.

10

See website of the Coalition for the International Criminal Court, consulted on June 3, 2002, at

http://www.iccnow.org/html/pressrelease20020411.html

incriminate, through national criminal legislation, certain acts, such as drugtrafficking, hijacking, torturing and terrorist activities.

8 The list of crimes included in the subject matter jurisdiction of the ICC by article 20

of the 1994 ILC Draft reflected the three functions the Court could conceivably be

“serious violations of the laws and customs applicable in armed conflict” in thesubject matter jurisdiction of the ICC would render the Court an instrument forhuman rights and humanitarian law enforcement Granting the Court jurisdiction overthe crime of aggression would make it a tool for dispute resolution between states AnICC with jurisdiction over treaty-based crimes would be a tool for crime fighting inareas of long-standing international concern

9 Trinidad and Tobago conceived of the Court as a tool for crime fighting in areas oflong-standing international concern, with a specific focus on the battle againstincreasingly powerful cartels of international drug trafficking Although the 1994 ILCDraft, in its article 20 (e), still endorsed the view of the spiritual fathers of the ICC, anumber of delegates in the Preparatory Committee seriously questioned thedesirability of allocating to the Court jurisdictional powers over treaty-based crimes,expressing the need to avoid overburdening the limited financial and personnelresources of the Court or trivializing its role and functions, and to avoid jeopardizing

opinion emerged within the Preparatory Committee that the Court’s jurisdictionshould initially be limited to “a set of core crimes that are of concern to theinternational community as a whole”, including genocide, war crimes and crimes

the Preparatory Committee focused on the facilitation of broad acceptance of the

11 See also Lara A Ballard, The Recognition and Enforcement of International Criminal Court Judgments

in U.S Courts, 29 Colum Human Rights L Rev 143, 150 (1997).

12 Molly McConville, A global War on Drugs : why the United States should support the Prosecution of

Drug Traffickers in the International Criminal Court, 37 Am Crim L Rev 75, 92 (2000).

13

Jelena Pejic, “Creating a permanent International Criminal Court : the obstacles to independence and

effectiveness, 29 Colum Human Rights L Rev 291, 311 (1998).

Court and the containment of start-up costs, thereby implying that including

10 Eventually, at the Diplomatic Conference, the treaty-based crimes were not included

in the Statute As a compromise, a resolution was passed by the DiplomaticConference, confirming that “terrorist acts, by whomever and wherever perpetratedand whatever their forms, methods or motives, are serious crimes of concern to theinternational community”, and recommending that the states parties to the Statute

(hereinafter referred to as the “States Parties”) consider reaching agreement on a

definition and including terrorism (and also drug trafficking) at a future review

provides that 7 years after the entry into force of the Statute, a Review Conferenceshall be convened by the Secretary-General of the United Nations to consider anyamendments to the Statute Therefore, inclusion of terrorism in the list of crimesfalling within the subject matter jurisdiction of the Court, should not be expected tooccur at any time prior to 2009

II Arguments in support of including terrorism

1 General

11 For the purpose of assessing arguments pro and contra an inclusion of acts of

terrorism in the subject matter jurisdiction of the Court, it is convenient to make ascholarly distinction between “internal” terrorism and “international” terrorism

14 Jelena Pejic, “Creating a permanent International Criminal Court : the obstacles to independence and

effectiveness, 29 Colum Human Rights L Rev 291, 311-312 (1998).

15 See Resolution E of the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the establishment of an International Criminal Court, done at Rome, on 17 July 1998, at

http://www.un.org/law/icc/statute/finalfra.htm

12 The concept of “internal” terrorism, as used in this paper, is intended to refer to anyand all acts of terror that involve or affect citizens or interests of only one country,including therefore only acts of terror that are perpetrated by nationals of a certainstate, on the territory of that state, targeting material or other interests or citizens ofthat state, and, to the extent that they are politically inspired, stemming from aconflict between the responsible terrorist group and that state “International”terrorism, as used in this paper, is intended to refer to any and all acts of terror thatinvolve or affect citizens or interests of more than one country.

13 The physical destruction caused by acts of internal terror, and, if any such conflictexists, the underlying political conflict from which these acts of terror originate, areprimarily confined and related to one particular country, whereas the origin andimpact of acts of international terrorism directly involve and affect the internationalcommunity as a whole Therefore, arguments proffered in support of or against theinclusion of acts of internal terrorism in the subject matter jurisdiction of the Courtwill not run entirely parallel with arguments proffered in support of or againstinclusion of acts of international terrorism At first blush, one could perhaps evenexpect it to be easier to conceive of persuasive arguments in support of including acts

of international terrorism than it would be to convincingly argue in favor of includingacts of internal terrorism The fact that crimes of international terrorism have a directimpact on the international community makes it easier to support a response on aninternational level Acts of internal terrorism lack any such direct impact on theinternational community and are, as such, more often viewed as concerning solely thestate affected by them : an intervention of the international community in response tointernal terror would therefore more easily be dismissed as an inappropriateinterference with the internal affairs of the affected state

2 Arguments in support of including internal terrorism

14 The alternative to having perpetrators of acts of internal terrorism prosecuted andtried by the ICC, is to leave prosecution and trial up to the criminal justice system ofthe affected state This is how crimes of internal terrorism are currently beinghandled, and under certain circumstances, it may indeed provide an appropriate andadequate response to internal terrorism.

15 However, for a variety of reasons, crimes of internal terror sometimes remainunpunished Pursuing the elimination of such impunity is one argument in favor ofgranting the ICC subject matter jurisdiction over crimes of internal terror.Furthermore, when crimes of internal terror would not remain unpunished but wouldindeed be prosecuted and tried by the affected state, prosecution and trial by the ICCcould nevertheless be the appropriate way of dealing with these crimes, if prosecutionand trial by the affected state would take place in an undesirable political context

16 Paragraphs 20 up to 27 will elaborate the instances in which and the various reasonswhy the present day deference to the national criminal justice system of the affectedstate may lead either to (a) a situation of structural impunity, or (b) effectiveinvestigation, prosecution and trial, in a political context that could arguably warrant

a transfer of jurisdiction to the ICC

a) Structural impunity – affected nation in state of political anarchy

17 The affected state may be structurally unable to investigate, prosecute and tryperpetrators of acts of internal terrorism Currently, Somalia would probably be anexample of a country where the rule of anarchy would render investigation,prosecution and trial of internal terrorists structurally impossible The same couldprobably be said of the present day political situation in Afghanistan : if the Talibanand Al Qaeda would start to use terrorist attacks on Afghan territory to fight thenewly installed Afghan government as from tomorrow, it would be doubtful whether

the Afghan authorities could provide for effective investigation, prosecution and trial

as from the day after tomorrow

18 The ICC obviously has an important role to play in dealing with acts of internalterrorism targeting a state in political anarchy Inactivity of the internationalcommunity would necessarily imply a morally unacceptable situation of structuralimpunity, which should in itself be sufficient to warrant intervention by the ICC

19 In as far as a moral argument would not be sufficient to grant jurisdiction to the ICCover crimes of internal terror that would otherwise remain unpunished, there is also

an argument of self-interest that can be made to support ICC jurisdiction After theattacks on the World Trade Center and the Pentagon on September 11, 2001

(hereinafter referred to as the “September 11 Events”), the international community

should have come to understand that an unacceptable political situation within asovereign state, seemingly affecting only that state, can dramatically “spill-over” toaffect other states Suppose once more that the Taliban and Al Qaeda would start tofight the newly installed Afghan government through terrorist attacks on Afghanterritory and that the Afghan criminal justice system does not bring Taliban and AlQaeda terrorists to justice because it is structurally incapable of doing so : such asituation of structural impunity could possibly allow Al Queda to destabilize theAfghan government and regain power on parts of the Afghan territory, enabling it toset up new training camps that can be used to prepare recruits for terrorist attacksaround the globe

b) Political context warranting a transfer of jurisdiction to the ICC

(i) Affected nation faces severe retaliation

20 Of course, only very few countries currently face a situation of apparent politicalanarchy : most countries, including most countries affected by internal terrorism,

have in place a criminal justice system, capable of acting with some degree ofefficiency.

21 However, some countries are challenged by internal terrorist groups which, whenmeasured against the strength of the police and military forces of the affected state,exert considerable military power Colombian terrorist groups – notably paramilitaryorganizations united under the umbrella of the “United Self Defense Group ofColombia” (“Autodefensas Unidas de Colombia”, or “AUC”), the left-wing guerrilla

“Revolutionary Armed Forces of Colombia-People’s Army” (“Fuerzas ArmadasRevolucionarias de Colombia-Ejercito del Pueblo”, or “FARC-EP”) have suchmilitary “leverage” These groups have made it life-threatening to fight internal terrorfor Colombian investigators, judges and politicians, numerous of which have beenkilled.16

22 The political situation in Algeria presents similar problems For more then a decade,governmental security forces and radical Islamist groups have been waging a bloodybattle Frequently, crimes of terror are inflicted upon civilian population and targets.The death toll of a decade of political violence, which has gone well over onehundred thousand casualties, is a clear indication of the strong military position of themain Islamist groups – the “Armed Islamic Group” (“Groupe Islamique Armé”, or

“GIA”) and the “Front Islamique du Salut” (or “FIS”) The 1999 Civil Harmony Actprovided amnesty or reduced sentences to Islamic groups that would accept a truce.Although the Civil Harmony Act provides that persons who have taken part inkillings or rape are disqualified from amnesty or reduced sentences, apparently mostsuch persons remain unpunished Fear for new retaliatory outbursts of violence could

16 Steven W Krohne, The United States and the World need an International Criminal Court as an Ally in

the War against Terrorism, 8 Ind Int’l & Comp L Rev 159, 180 (1997) For a more detailed report of the political situation in Colombia, see HUMAN RIGHTS WATCH, World Report 2002, 132-141.

17

For this and more detailed information on the political situation in Algeria, see HUMAN RIGHTS

WATCH, World Report 2002, 406-414.

23 When the risk of severe retaliation is high, the affected state will often see itselfcoerced not to prosecute If the affected state does nevertheless prosecute, it may soprovoke violent retaliation which it is incapable of preventing Neither a coerceddecision not to prosecute nor a retaliated decision to prosecute can be an acceptableresponse under this threatening political situation, which therefore calls for a differentforum to prosecute and try the crimes of terrorism at issue.

24 The ICC seems to be a good alternative judiciary forum, since prosecution and trial

by the ICC may be expected to provoke less or less severe retaliation Two argumentsjustify this expectation First, the Court is an institution established by theinternational community, located in far-away The Hague As a practical matter, this

will render retaliation on the prosecuting and trying justice system itself, i.e the ICC,

substantially more difficult Second – and this argument applies particularly to crimes

of internal terror that stem from a political conflict between responsible terrorists andthe affected state – the ICC is a politically neutral judicial body, established by theinternational community This will make terrorist groups targeted by the ICC lesssuspicious about their prosecutors’ and the judges’ political neutrality than theywould be about the political neutrality of their own national criminal law enforcementsystem This will probably be an important disincentive to retaliate against the Court

or against their own national government : terrorist groups might be less inclined toresort to strong retaliation when they feel that their case is submitted to adisinterested, “sterile” international body in stead of to investigators, prosecutors orjudges who in their opinion represent the enemy

25 In a threatening political context like this, ICC jurisdiction over crimes of internalterror would not only be in the best interest of the affected state in the sense that itwould eliminate the dilemma of either letting terrorists go unpunished or prosecutingthem at the risk of severe retaliation : it would also serve the interests of the entireinternational community, because, as already argued above, the September 11 Eventsshould have made everyone aware of the fact that structural impunity of internalterrorists can spill over to affect other countries Again, the hypothetical example of

the Taliban and Al Qaeda is very apposite : if Al Qaeda would start to fight the newlyinstalled Afghan government through terrorist attacks on Afghan territory and theAfghan criminal justice system does not bring Taliban and Al Qaeda terrorists tojustice because it fears it cannot prevent retaliation against its investigators,prosecutors and judges, such a situation of structural impunity could allow Al Queda

to destabilize the Afghan government and regain power on parts of the Afghanterritory, enabling it to set up new training camps that can be used to prepare recruitsfor terrorist attacks around the globe

(ii) Affected nation cannot provide for politically neutral forum

26 A number of nations affected by internal terrorism do not face political anarchy orthreats of violent retaliation Nonetheless, the ICC may also have an important role toplay in the fight against crimes of internal terrorism directed against those countries

27 The mere fact that a state has in place a relatively orderly and stable system of publicadministration, does not necessarily imply that its criminal justice system, whendealing with crimes of internal terror, operates strictly within the limits of due processrequirements, nor does it imply that every officer within the criminal justice systemobserves the legal and deontological standards governing their profession Principles

of due process and the legal and deontological standards of police officers,prosecutors and judges, risk to be jeopardized whenever a country faces terroristassaults perpetrated by politically inspired organizations seeking to obtain from thecentral government some type of political independence or recognition for an ethnic,religious or other group they claim to represent Police officers, prosecutors andcriminal judges accounting for criminal law enforcement in such countries, aretypically no members of the minority group at issue and are often severely pressured

by the nation’s majority group to deal firmly with these crimes of political terror Thismay induce them to do away with the legal and deontological standards governingtheir profession, which may result in police officers and prosecutors manipulating theresults of their investigative efforts, or in criminal judges not observing the standards

of due process or the requirement of impartiality and independence imposed uponthem by law.

28 This risk is imminent not only in countries that are generally thought of as being lessdemocratic or less adhering to the rule of law, but also in western rule-of-lawdemocracies For example, Northern Irish catholic persons accused of crimes of terrorcommitted by the IRA, faced biased or prejudicial proceedings on more than one

“Guilford Four” appeared to have been coerced into confession of terrorist attacksthrough severe beating In the case of the Guilford Four, it was also revealed thatinvestigators committed perjury and withheld exculpatory evidence to further a

29 Obviously, the incidence of politically charged treatment of people accused ofterrorist assaults, is a reason to support ICC jurisdiction over these people Thequestion whether a political bias with investigators, prosecutors and judges of statesaffected by political terror indeed exists, and the question whether this political bias

in fact systematically or occasionally leads to unfair criminal proceedings, are noteven all that relevant in the debate about whether the ICC should be grantedjurisdiction Regardless of whether a criminal justice system is in fact pressured intopolitically charged treatment of alleged terrorists, the system is almost always

perceived by the minority group to be politically inclined against it For instance,

members of ETA or the IRA, but also a substantial part of the population in BasqueCountry and the catholic population of Northern Ireland view the Spanish and Britishcriminal law enforcement systems as fundamentally hostile to their cause andtherefore strongly biased against any alleged terrorists prosecuted or tried by the

18 Steven W Krohne, The United States and the World need an International Criminal Court as an Ally in

the War against Terrorism, 8 Ind Int’l & Comp L Rev 159, 172 (1997).

19 Bryan F MacPherson, An International Criminal Court : applying world law to individuals, 13 (1992).

20

Bryan F MacPherson, An International Criminal Court : applying world law to individuals, 13-14 (1992).

system21 If we want justice not only to be done, but also to be seen to be done, thisperception of a fundamental lack of political neutrality of the system, should in itself

be a persuasive argument for affected states to have alleged terrorists tried by theICC

3 Arguments in support of including international terrorism

30 The alternative to having persons accused of acts of international terrorismprosecuted and tried by the ICC, is to have them prosecuted and tried by the nationalcriminal justice system of one the states involved in or affected by the terrorist attacks

at issue, i.e the state of which the accused is a national, the state on whose territory

the acts have been committed, or the state or states of which the interests or citizenshave been targeted This is how crimes of international terror are currently beinghandled

31 Sometimes, the state on whose territory the alleged terrorist is staying (hereinafter

referred to as the “custodial state”) will be one of the involved or affected states In

that event, the terrorist acts at issue are very likely to constitute a criminal offenseunder the criminal laws of the custodial state, and the national criminal courts of thecustodial state are likely to have criminal jurisdiction over those terrorist acts underthe criminal jurisdiction laws of the custodial state

32 If, however, on the one hand, the custodial state is an involved or affected state, but,

on the other hand, either the terrorist crimes do not qualify as criminal offenses underits criminal laws or its criminal jurisdiction laws do not allow for its national criminalcourts to exert jurisdiction over those terrorist crimes, then the alleged perpetrators of

http://www.contrast.org/mirrors/ehj/index.html

those crimes can only be brought to justice if the custodial state decides to extraditethe accused to an involved or affected state that does allow for its national criminalcourts to exert jurisdiction over the crimes.

33 When the custodial state is not an involved or affected state, the criminal jurisdictionlaws of the custodial state would have to grant to its national courts so called

“universal” jurisdiction over the terrorist assaults at issue in order for those national

state will very rarely grant universal jurisdiction over acts of international terror to itsnational courts Therefore, the custodial state will almost always be legally incapable

of prosecuting the relevant terrorist crimes, which means, once more, that the allegedperpetrators of those crimes can only be brought to justice if the custodial statedecides to extradite the accused to an involved or affected state that does allow for itsnational criminal courts to exert jurisdiction over the crimes

34 Usually, the custodial state and the involved or affected state that requests theextradition of alleged international terrorists (hereinafter referred to as the

“requesting state”) have entered into a multi-lateral or bi-lateral treaty, by virtue of

which the custodial state is bound by an “aut dedere aut iudicare” obligation with respect to acts of terror An “aut dedere aut iudicare” obligation requires the

custodial state to either extradite persons accused of acts of international terror or tohave the accused prosecuted by its own criminal justice system If the custodial state

is not bound by such “aut dedere aut iudicare” obligation vis-à-vis the requesting

state, the custodial state is not legally required to extradite or prosecute and candecide to extradite or decline to extradite at its own unrestricted discretion

35 In a perfect world, crimes of international terrorism would never remain unpunished,because the custodial state will either have the perpetrators of those crimes prosecuted

by its internal criminal law enforcement system, or, if the custodial state is legally

incapable of or deliberately refrains from prosecution, it will extradite the accused to

an involved or affected state as a gesture of political goodwill or as a matter of

compliance with an “aut dedere aut iudicare”-obligation However, in a less than

perfect world such as ours, international terrorists will remain unpunished if thecustodial state neither genuinely prosecutes nor extradites them

36 Obviously, the fight against impunity of international terrorists is a strong argument

in support of its inclusion in the subject matter jurisdiction of the ICC Nonetheless,

as it will be argued hereinafter, the Court could conceivably also play an importantrole in dealing with acts of international terror that would not remain unpunished inthe absence of jurisdiction of the ICC Paragraphs 37 up to 60 will elaborate theinstances in which and the reasons why the present day system of deference to trial by

the custodial state or by any involved or affected state, premised as it is on “aut

dedere aut iudicare”-treaties or on the political goodwill of the custodial state, may

lead either to (a) impunity, or (b) prosecution and trial in a political context thatwarrants prosecution and trial by the ICC

a) Impunity - custodial state neither prosecutes nor extradites

37 When the custodial state is politically unwilling to or legally incapable of prosecutingalleged international terrorists, it may proffer a variety of reasons for refusing toextradite the alleged terrorists to involved or affected states requesting their

extradition (thereby breaching its obligations under an “aut dedere aut

iudicare”-treaty, or, in case the custodial state is not bound by any such obligation vis-à-vis therequesting state, declining a call on its political goodwill) The custodial state mayrefuse to extradite because it (i) fears that the requesting state cannot provide for apolitically neutral forum to prosecute and try the alleged terrorists, (ii) fears thatextradition will not be accepted by the population of the custodial state, or lead to

22 The criminal courts of a particular state are said to have “universal” criminal jurisdiction over certain crimes, if those courts can try these crimes irrespective of whether any particular nexus exists between that state and those crimes.

retaliation from targeted terrorist groups or from other countries, or (iii) simplywishes to shield the alleged terrorist from prosecution.

38 Under headings (i) through (iii), the various reasons for a refusal to extradite and theensuing impunity will be further elaborated, and it will then be assessed to whatextent each of these reasons could lead a custodial state to also refuse extradition ofinternational terrorists to the ICC Paragraph (iv) will elaborate the negative effects ofthe various actions of “self-help” a requesting state may undertake when faced with acustodial state’s rejection to extradite, and will assess to what extent measures of

“self-help” and their negative effects can be avoided when it becomes possible toextradite international terrorists to the Court

(i) Reason to refuse extradition : requesting state does not provide for politically neutral

forum

39 In many cases, the stated reason for a refusal to extradite persons accused of crimes ofinternational terror are related to concerns within the government of the custodialstate that the accused will not get a fair trial in the requesting state An appositeexample of a situation in which a custodial state refused to extradite alleged terroristsfor the stated reason that the accused would not get a fair trial in the requesting state,

is provided by the Lockerbie-case On December 21, 1988, Pan Am flight 103 wasbombed over Lockerbie, Scotland Three years after the tragic events, two Libyanintelligence agents were indicted, but Libya refused to extradite the accusedintelligence agents to the United States or the United Kingdom, because it feared that

in the aftermath of the September 11 Events, one of the reasons for the Talibanregime not to extradite Osama bin Laden to the United States, was probably theTaliban’s belief that Osama bin Laden would not get a fair trial in the United States

23 Steven W Krohne, The United States and the World need an International Criminal Court as an Ally in

the War against Terrorism, 8 Ind Int’l & Comp L Rev 159, 181-182 (1997); Bryan F MacPherson, An

International Criminal Court : applying world law to individuals, 16 (1992) For more detailed information

on the Lockerbie-case, see http://www.thelockerbietrial.com

40 Allocating criminal jurisdiction over international terrorism to the ICC – a politicallyneutral judicial body, established by the international community, located on neutralterritory at The Hague, and consisting of prosecutors and judges who can be expected

to be far more politically disinterested than the prosecutors and judges of an involved

or affected state – may be an effective solution to impunity resulting from a statedfear for unfair treatment When the custodial state has a good faith belief that theaccused might not get a fair trial in the requesting state, the custodial state may beexpected to be sufficiently reassured when the ICC would try the accused and hencealso be willing to extradite the accused to the Court

41 Libya’s behavior in the aftermath of the Lockerbie-case is probably a good example

of how a custodial state, which refused to extradite the suspects of a crime ofinternational terror for the stated reason that they would not be given a fair trial ineither of the requesting states, eventually ended up extraditing the suspects to aneutral international tribunal Libya no longer asserted that it feared unfair treatment,once it had been suggested that the suspects be tried by a Scottish court, located onneutral Dutch territory – quite a physical and psychological distance away from anypressure from UK or US government or public opinion –, which would try the

(ii) Reason to refuse extradition : custodial state pressured by its own population, other

countries, or the threat of severe retaliation

42 In some cases, the custodial state is reluctant to extradite alleged internationalterrorists to a particular requesting state, because the custodial state fears thatextradition to that requesting state will be strongly disapproved by its own

43 Many examples can be given of reported or likely refusals to extradite for suchreasons Most Arab countries are likely to be very reluctant to extradite any allegedterrorist to the United States, because they fear they could not justify this decision to apopulation that is deeply frustrated with American foreign policy in the Middle East.Another example is Colombia, where crimes of international terror occasionally havebeen targeted at American civilians, but where it is politically impossible for theColombian government, not only to prosecute perpetrators of these crimes in

44 Pressure not to extradite alleged terrorists to particular requesting countries does notnecessarily have to originate from the custodial state’s own population Custodialstates might be so pressured by powerful other countries also For instance, Lebanon,which is traditionally strongly influenced and pressured in its policy by its powerfulneighbor Syria, would probably not extradite alleged terrorists to the United States, ifthe Syrian government would disagree with that, even if the Lebanese governmentwould be willing to extradite in the absence of Syrian pressure

45 Sometimes, extradition would not only lead to disapproval among the population ofthe custodial state or with the government of powerful other countries, but would alsotrigger violent retaliation from targeted terrorist groups This risk is especiallyimminent, whenever the organization responsible for the terrorist assault at issueexerts considerable military power and political support in the custodial state If, forinstance, at some time in the future, Palestine would obtain the status of anindependent nation, and Hamas would continue to inflict acts of terror upon Israelitargets, the Palestine authority might be very reluctant, not only to have allegedterrorists prosecuted by Palestinian criminal courts, but also to extradite them to

Steven W Krohne, The United States and the World need an International Criminal Court as an Ally in

the War against Terrorism, 8 Ind Int’l & Comp L Rev 159, 181-182 (1997).

Israel Extradition to Israel would indeed be fiercely disapproved by a majority of thePalestinian population, but furthermore, the Palestinian authority might also fear thatextradition to Israel would trigger violent retaliation from the powerful and influentialorganization of Hamas against the official Palestinian authorities, or perhaps evenlead to an armed conflict between more radical and more moderate Palestiniansgroups.

46 In all of the circumstances described under paragraphs 42 through 45, awardingjurisdiction to the ICC over crimes of international terror may induce custodial states

to extradite alleged terrorists to the ICC, where they would otherwise refrain fromextraditing to the requesting state, leaving terrorists unpunished When the custodialstate has a good faith belief that extradition would run counter of the resentment andopinion of its own population or of powerful other countries or would even triggerviolent retaliation, the custodial state may be expected to be sufficiently reassuredthat an extradition will not be as strongly disapproved or will have no such adverseimpact, if extradition is to the ICC

(iii) Reason to refuse extradition : custodial state wishes to shield the accused from

prosecution

47 Often, the custodial state refuses to extradite alleged terrorists simply because itwishes to shield the suspects from criminal prosecution Typically, fear for unfairtreatment or outside pressure not to extradite, are used to conceal the custodial state’sgenuine intention to protect the accused

48 In some cases, allowing the ICC to prosecute and try international terrorists will notalter the custodial state’s decision not to extradite However, in many cases, theoption of extraditing to the Court may eventually induce the custodial state toextradite, in spite of its attempts to protect the alleged terrorists It will be virtuallyimpossible for the custodial state to make a credible argument that alleged terroristswould not be tried in a fair manner or that various sources of political pressure or

threats of retaliation preclude it from extraditing alleged terrorists, even if extraditionwould be for trial by the ICC If the custodial state nonetheless continues to invoke itssham reasons not to extradite, its true motives will be revealed to the entireinternational community Few custodial states will be able to resist stronginternational pressure likely to result from such exposure of obstructive intent Thisstrong international pressure to extradite would be especially hard to resist, when thecustodial state would also be threatened with economic or other sanctions.

(iv) “Self-help” as a response to a refusal to extradite

49 Quite often, whenever a custodial state cannot or does not genuinely want toprosecute international terrorists staying on its territory, a state whose request forextradition of those terrorists is rejected by the custodial state, will not merely acceptsuch rejection for a fact Depending on whether the custodial state and the requestingstate are, in general, on friendly or more tense terms with one another, and also on therelative superiority of the requesting state over the custodial state in terms of militaryforce and intelligence gathering, the requesting state will resort to actions of “self-help” in order to assure that, in spite of the custodial state’s initial refusal to extradite,the targeted international terrorists will nonetheless be tried by its own criminalcourts

50 Actions of “help” can take a variety of forms The most “efficient” action of help is political abduction : the requesting state sends special agents to the custodialstate, who will breach the territorial sovereignty rights of the custodial state to abductthe alleged international terrorists from the territory of the custodial state and to bringthem over to the territory of the requesting state where they will be tried US agentshave committed or assisted in political abductions on more than one occasion

self-Furthermore, in Ker v Illinois and Frisbie v Collins, the US Supreme Court developed the Ker-Frisbie doctrine, which held that an American court cannot be

denied personal jurisdiction over a suspect for the sole reason that this suspect has

51 Other, less “efficient” forms of self-help are designed to force the custodial state tooverturn its initial refusal to extradite The most extreme way of pressuring thecustodial state into a policy shift, is to use military force against the custodial state.This was the exact response of the United States to Libya’s refusal to extradite thesuspects of the bombing of Pan Am flight 103, and to the Taliban’s refusal toextradite Osama bin Laden for his alleged responsibility for the September 11 Events.More moderate ways of pressuring the custodial state can range from weaponembargo’s, over economic sanctions to diplomatic isolation

52 Apart from the fact that resort to self-help rarely accomplishes the goal it is aimed at,

i.e actual extradition of the alleged international terrorists, it sometimes raises legal

problems and it almost always leads to adverse political consequences In spite of the

Ker-Frisbie doctrine, the lawfulness of actions of self-help under existing rules of

international law is highly questionable Although this paper does not intend toprovide an in-depth analysis of the consistency of each conceivable action of self-helpwith existing principles of international law, many political abductions are likely toconstitute a breach of the territorial sovereignty of the custodial state, and the use ofmilitary force which is not backed by a resolution of the Security Council of the

United Nations (hereinafter referred to as the “UN Security Council”) under chapter

VII of the UN Charter, will often not be justifiable as a proportionate act of defense under article 51 of the UN Charter

self-53 Furthermore, the resort to self-help almost always leads to frustration and generaldisapproval Obviously, it will cause resentment and frustration with the population

of the custodial state Widespread feelings of resentment and frustration are likely tospill over into actual retaliation, such as new terrorist assaults or abductions of

28 For an explanation of the holdings in Ker v Illinois and Frisbie v Collins, see Peter S McCarthy, United States v Verdugo-Urquidez : extending the Ker-Frisbie doctrine to meet the modern challenges posed by

citizens of the state resorting to self-help For example the US bombings ofAfghanistan in response to the September 11 Events, the transfer of captured Talibanand Al Quada fighters to Guantanamo Bay and the refusal to give these prisoners thestatus of “prisoner of war”, caused a fair deal of resentment amongst the part of thePakistani population that sympathizes with the Afghan Taliban regime The recent

was probably in part a direct result from this widespread resentment

54 The political effects of self-help will not be limited to the population of the custodialstate Often, the entire international community will disapprove of actions of self-help

as a “unilateral”, “non-concerted” and “arrogant” response to a problem that isfundamentally one that concerns the global community as a whole As a result, aresort to self-help will lead to a significant loss of political goodwill with a substantialpart of the international community, also with countries that fully endorse the point ofview that the custodial state should extradite when it is not willing or able toprosecute by itself The worldwide frustration with unilateral resort to self-help will

be particularly deep, whenever military force is used without the backing of a UNSecurity Council resolution under chapter VII of the UN Charter

55 A high incidence of unilateralist measures of self-help, is likely to create some sort ofprecedent in the international community and lead to a worldwide increase in the useself-help measures, especially against countries that do not refrain from undertakingsuch measures themselves, or as Justice Brennan stressed in his opinion dissenting

from the Supreme Court’s holding in United States v Verdugo-Urquidez (in which the Court again endorsed and even expanded the Ker-Frisbie doctrine), “unlawfulness

the international drug trade, 27 New Eng L Rev 1067, 1071-1072 (1993).

29 For an overview of events in the kidnapping and murder of Daniel Pearl, see

http://www.cnn.com/2002/WORLD/asiapcf/south/02/21/pearl.timeline/ (consulted on June 3, 2002).

30

Molly McConville, A global War on Drugs : why the United States should support the Prosecution of

Drug Traffickers in the International Criminal Court, 37 Am Crim L Rev 75, 85-87 (2000).

56 As discussed in paragraph 46, granting subject matter jurisdiction to the ICC overcrimes of international terror, can be expected to reduce the number of cases in whichthe custodial state refuses to extradite international terrorists to the requesting state.This, in turn, will significantly reduce the incidence of requesting states resorting tomeasures of self-help as a reaction to the rejection of their request for extradition Ifincluding acts of international terrorism in the jurisdiction of the Court can beexpected to reduce the incidence of measures of self-help that are questionable underinternational law, this in itself should be a conclusive argument to support ICCjurisdiction over international terror Of course, even though observations ofinternational “realpolitik” do not undermine the scholarly persuasiveness of thisinternational rule-of-law argument, the argument is not very likely to induce statesthat frequently resort to self-help to henceforth denounce self-help actions and toembrace the ICC as their long-awaited alternative, and this for the simple reason thatthose states are not always as concerned with the lawfulness of their actions as theyshould be.

57 However, a reduced incidence of measures of self-help will not only foster respect forthe international rule-of-law, but also reduce frustration in the custodial state and theinternational community, which will, in turn, reduce the incidence of retaliatoryresponses and eliminate the opportunity for other countries to refer to some sort ofestablished practice of self-help measures to justify any self-help measures theywould resort to in the future This argument is not merely a “conceptual” rule-of-lawargument but is related to self-interests of states, and therefore it should be morelikely to have persuasive appeal to the protagonists of international “realpolitik”,including even the most vigorous defenders of a cynical isolationist, unilateral andself-interested international policy

b) Political context warranting a transfer of jurisdiction to the ICC