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1 Introduction
The Islamic State of Iraq and Syria (ISIS) has caused considerable loss of life, bodily injury, and destruction of property and infrastructure in the Middle East since its emergence in 2013.1 Indeed, the Office of the United Nations High Commissioner for Human Rights estimates that between January 2014 and October 2015, 18,802 civilians were killed and more than 36,245 civilians were injured by ISIS and its associated groups in Iraq alone.2 The threat posed by ISIS has caused major upheaval for other states as well.3 Faced with ongoing terrorist attacks by ISIS militants returning from fighting in Syria and Iraq, the United Kingdom has elevated its terrorist threat level from ‘substantial’ to ‘severe’ and has also put additional security measures in place.4
In June 2014, the United States launched Operation Inherent Resolve in Iraq and Syria in an attempt to curb the threat posed by ISIS and also immobilise its de facto headquarters, access to territory and vital resources.5 Although the cumulative expenditure on this operation has exceeded $14.3 billion so far,6 the US administration believes that this is the most pragmatic approach to deal with the threat posed by ISIS considering the highly deterritorialised and decentralised nature of their activities.7 So when it was alleged that former detainees of the US detention centre in Guantánamo Bay joined ISIS upon their release, major criticism arose not only about the capacity of states to protect civilians from harm but also their ability to prosecute members of these groups for alleged crimes.8 Such concerns reflect the dilemma that states such as the United States and the United Kingdom face when determining how best to deal with attacks by transnational terrorist groups and also raises questions whether international criminal law (ICL) could overcome any of these challenges.
Of course, the United States and the United Kingdom are not the only states facing serious threats by transnational terrorist groups. States such as Afghanistan, Australia, Belgium, Bulgaria, Cameroon, France, India, Kenya, Lebanon, Malaysia, Nigeria, Pakistan, the Philippines, Spain, and Turkey have all had to deal with the tragic consequences of terrorist attacks.9 In particular, the National Consortium for the Study of Terrorism and Responses to Terrorism in the United States estimates that attacks by transnational terrorist groups in 2016 killed approximately 34,676 people worldwide.10 In contrast to terrorist groups of the 1960s, 1970s, and 1980s, the contemporary terrorist group is a looser, more fragmented entity, which mirrors developments in technology and has the capacity to exert considerable global reach and influence.11 Modern technology not only provides transnational terrorist groups with the capacity to conduct attacks in more than one state, it also enables them to disseminate their ideology and messages of terror and intimidation on a worldwide stage.12 In November 2015, for example, it was with great horror that the international community watched the Paris attacks unfold on the television and internet.13 As a result, transnational terrorist groups can utilise modern technology not only to increase the impact of their attacks and instil fear in civilian populations that further attacks will occur but also to disseminate their ideology and recruit new members.14
Transnational terrorist groups also constitute a polymorphic threat because they have the capacity to carry out both large-scale attacks and more isolated strikes.15 Members are often indistinguishable from the civilian population and function autonomously in network-based cells. This in turn poses a challenge for states with limited resources to investigate their activities and bring them to justice.16 So the question arises about what role, if any, ICL can play in bringing members of these groups to justice especially since transnational terrorist groups egregiously subvert the law. Transnational terrorist groups also complicate the interconnection between the state and the individual upon which the Westphalian concept of international law is based.17 As a result, they are able to perpetrate far-reaching violence across state borders while also evading responsibility.18
In many states, there is a swift and impressive response by law enforcement authorities to such attacks.19 The incidents are investigated; suspects are charged and subsequently prosecuted before the courts.20 However, a small number of states have not been as effective in bringing members of these groups to justice for their role in the planning and perpetration of alleged terrorist attacks.21 For instance in states, such as Libya,22 Mali,23 Yemen,24 Afghanistan,25 and Nigeria,26 the authorities have faced challenges due to widespread corruption or armed conflict, in regulating the activities of transnational terrorist groups and putting their members on trial for alleged criminal acts. Consequently, these states are not in the position to effectively investigate the alleged criminal behaviour of transnational terrorist groups or initiate criminal proceedings against them. The lack of an effective criminal justice system in some of these jurisdictions means that victims of attacks by transnational terrorist groups have no legal redress and the civilian population is left vulnerable to further attacks.
On the other hand, states which have tried to hold members of transnational terrorist groups accountable have faced insurmountable challenges in doing so.27 For example, the United States has faced criticism for failing to observe the due process rights of suspected members of transnational terrorist groups during trial while others have been disparaged for adopting other mechanisms other than the criminal justice system to deal with terrorist attacks such as prolonged detention of suspects without trial.28 Moreover, states that have a well-functioning legal system have faced logistical challenges in trying defendants accused of terrorist offences.29 Assembling the evidence necessary to achieve a conviction from locations outside the state’s jurisdiction is only achieved with the cooperation of the international community.30 Not all states are willing to cooperate with such requests and some states are not able to offer any assistance whatsoever for a variety of reasons including the lack of a functioning justice system and limited financial resources to carry out investigations and bring prosecutions.31
This is not the first time the international community has recognised the fundamental challenges in holding members of transnational terrorist groups accountable for terrorist attacks. In the aftermath of the assassination of King Alexander I of Yugoslavia and Mr Louis Bathou, the Foreign Minister of the French Republic, in Marseilles on 9 October 1934, by Yugoslav militants operating from Hungary, the League of Nations drafted a Convention for the Prevention and Punishment of Terrorism which provided the international community with its first global approach, and corresponding legal framework, for responding to terrorist attacks.32 The Convention required states to criminalise and prosecute acts of transnational terrorism but also provided the possibility of prosecuting such acts before an international criminal court.33 The creation of an international criminal jurisdiction was meant to ensure that there was no impunity for terrorist attacks even in situations where the state in which the terrorist attack occurred was unable to prosecute. However, due to the political situation in Europe in the 1930s, the League of Nations Convention on the Prevention and Punishment of Terrorism never came into force.34 International efforts to repress terrorism through the development of an international criminal mechanism were quickly forgotten with the arrival of the Second World War and the dissolution of the League of Nations itself.35
Following the completion of the Nuremberg Trials, terrorism was for a second time included as a crime in the Draft Code of Offences against the Peace and Security of Mankind.36 However, between 1954 and 1981, work on the Draft Code was impeded due to deadlock on a definition of aggression.37 In the interim, the international community’s concern about terrorism grew following an upsurge in terrorist attacks in the 1960s and 1970s.38 In an effort to address this activity, states ratified a number of international treaties in an attempt to suppress terrorist attacks. These international treaties compelled states to criminalise terroristic activity and to extradite or prosecute alleged offenders.39 The purpose of such measures was to ensure that transnational terrorist groups could not manipulate the limitations of any one state’s jurisdictional boundaries and sought to ensure that suspects were brought to justice.40 The treaties sought to fill the jurisdictional loophole that an international criminal court might have filled.41 However, as this book will elaborate, international treaties have not been entirely successful in responding to transnational terrorist groups due to their failure to keep pace with the continuously evolving methods utilised by them to carry out attacks.42
When the Draft Code was resuscitated in the 1990s, terrorism was again left on the sideline because of continuing wrangling on a general comprehensive definition of terrorism and whether it should include the behaviour of non-state actors, state actors, or both.43 Nevertheless, the International Law Commission (ILC) in its draft statute for an international criminal court in 1994 included terrorism as a crime within the subject matter jurisdiction of the international criminal court.44 In order to sidestep continuing debate on state-sponsored terrorism and self-determination, the ILC included certain terrorism offences in its draft statute and utilised the approach adopted by international treaties on terrorism to define both the actus reus and the mens rea of the proposed crime.45 However, in doing so it circumvented the challenging issue of a comprehensive definition of terrorism.46
Locating attacks by transnational terrorist groups within the expansive framework of ICL – especially with its special emphasis on crimes perpetrated in armed conflict situations – would make certain that prosecutions of suspected members of transnational terrorist groups take place in a setting that is appreciative of the interaction between the criminalisation of transnational terrorism and international law. It would also ensure that individuals suspected of terrorist offences would be prosecuted where states were unwilling or unable to do so. Thus, the International Criminal Court (ICC) could have a deterrent effect on future potential terrorist attacks. However, prosecutions for transnational terrorism have thus far been left to the purview of domestic courts. Even though the ILC’s proposal to prosecute terrorism before the ICC has not been fully abandoned, the current situation remains that states shoulder the primary responsibility to curb transnational terrorist attacks by prosecuting suspects through their domestic courts.47
The international treaties which require states to prosecute members of transnational terrorist groups are broadly based on the League of Nations Terrorism Convention 1937 and tackle a specific manifestation of terrorism and address the criminal law enforcement duties of states.48 However, the methods utilised by transnational terrorist groups to carry out attacks have continued to evolve despite the international community’s best efforts to suppress their activities through international instruments. As a result, international instruments have only been able to prohibit specific types of terroristic activity and have failed to address the ever-changing methods utilised by transnational terrorist groups to carry out attacks.
ICL still has a key role to play in suppressing terrorism where states are unwilling or unable for whatever reason to bring suspected members of transnational terrorist groups to justice. Impunity is in conflict with the preamble of UN General Assembly Resolution 64/2010 which ‘stress[es] the need to ensure accountability for all violations of international humanitarian law and international human rights law in order to prevent impunity’.49 In particular, authoritative non-binding international instruments assert that states have an obligation to prosecute individuals suspected of carrying out terrorist acts.50 Most notably, UN Security Council Resoluti...
