International Cooperation in Counter-terrorism

The United Nations and Regional Organizations in the Fight Against Terrorism

Giuseppe Nesi

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317114307
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This volume provides a timely analysis of global and regional responses to international terrorism. The work assesses the role of the United Nations and its various organs, particularly the General Assembly and the Security Council, and discusses the key legal issues. The second part of the book examines the activity of regional organizations both in their own right as well as their interaction with the UN. The volume concludes with a discussion of whether, to what extent and how the fight against terrorism has encroached upon fundamental rules of international law such as the international protection of human rights or the use of force among states. The volume is the latest in a series drawing on the presentations of high ranking scholars, diplomats and representatives of international organizations. The result is a stimulating and thought-provoking book which will be of interest to researchers and policy-makers alike.

PART I
The United Nations and the Fight Against International Terrorism

Chapter 1

The UN Conventions on the Prevention and Suppression of International Terrorism

ANDREA GIOIA1

The 1937 Geneva Convention on the Prevention and Punishment of Terrorism

The first attempt to articulate a definition of terrorist acts for the purposes of international criminal law is represented by the Geneva Convention on the Prevention and Punishment of Terrorism,2 which was adopted, on 16 November 1937, on the initiative of the League of Nations (LN), the predecessor of the United Nations, following the assassination in Marseilles, on 9 October 1934, of the King of Yugoslavia and of the French Minister of Foreign Affairs by a Croatian exile. The 1937 Convention was intended, inter alia, to oblige parties thereto to establish as offences in their national criminal legislation certain specific acts listed in Article 2 thereof, as well as to prosecute, or extradite, the alleged offenders if certain conditions were met.3 Without going into unnecessary details, it may be interesting to recall that the acts listed in Article 2 of the convention were: (a) intentional acts directed against the life, bodily integrity, health or freedom of Heads of State, or members of their families, or other persons exercising governmental functions; (b) intentional acts resulting in the destruction of, or in damage to, foreign state property; (c) intentional acts of a nature to endanger human life through the creation of a collective danger; (d) attempts to perform any such acts; (e) the manufacture, acquisition, detention or transfer of arms, ammunition, explosive products or noxious substances with a view to committing in any country any such acts.

However, the acts in question were only covered by the convention if they were directed against a party thereto and, more crucially, if they constituted ‘acts of terrorism’. Article 1, paragraph 2, of the convention gave a general definition of ‘acts of terrorism’ as ‘criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or groups of persons, or the general public’ (emphasis added). Thus, at least the English text of the convention appeared to make it clear that what turned the acts therein listed into terrorist acts was the existence of a special intent on the part of the offender; in other words, that of creating a state of terror.

On the other hand, if the French text of the convention is examined, the picture appears to change: acts of terrorism are therein defined as ‘faits criminels dirigés contre un Etat et dont le but ou la nature est de provoquer la terreur chez des personnalités déterminées, des groupes de personnes ou dans le public’ (emphasis added). It may well be that the drafters’ intention was, indeed, to signify that, whereas some acts can only be regarded as terrorist acts if there is a specific intent on the part of the offender, others can in themselves be so regarded, irrespective of such intent.4 The fact that this is, in principle, a reasonable assumption has, indeed, been confirmed by later practice. However, there is little guidance in the 1937 Convention as to which of the offences specifically covered in Article 2 are in themselves of a terrorist nature.

The conventions adopted under the auspices of UN specialized agencies and other world organizations

The 1937 Convention never entered into force, partly as a result of the outbreak, only two years after its adoption, of the Second World War.5 Although it undoubtedly served as a model for later conventions dealing with the prevention and suppression of terrorism, most of these conventions were adopted on the basis of a different approach; this so-called ‘sectoral’ approach aimed at identifying offences which were seen as belonging to the activities of terrorists and working out treaties in order to deal with specific categories thereof.

This step by step approach has been followed, in the first place, by the UN specialized agencies. The way was opened by the International Civil Aviation Organization (ICAO), under whose auspices a number of conventions have been adopted dealing with acts directed at, or undermining, the safety of civil aviation, a phenomenon which had not been envisaged by the drafters of the 1937 Convention and which became of special concern to the international community as from the 1960s. These conventions are:6 the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft;7 the 1970 Hague Convention for the Suppression of the Unlawful Seizure of Aircraft;8 the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation;9 and the 1988 Montreal Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation.10

The conventions dealing with aerial terrorism – more particularly, the 1970 Hague Convention and the 1971 Montreal Convention – served as models for the adoption, under the auspices of the International Maritime Organization (IMO), of the 1988 Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation,11 following the seizure, in October 1985, of the Italian cruise ship Achille Lauro by a group of Palestinian terrorists. At the same time, the 1988 Rome Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf12 was adopted also.

Another specific sector which had certainly not been envisaged by the drafters of the 1937 Geneva Convention is that of acts of ‘nuclear’ terrorism. In this field, one important treaty adopted under the auspices of the International Atomic Energy Agency (IAEA) has to be recalled: the 1980 Vienna Convention on the Physical Protection of Nuclear Material,13 which deals with offences relating to nuclear material both in international transport and in domestic use, storage, and transport.

The UN conventions following a ‘sectoral’ approach

But the ‘sectoral’ approach followed by these specialized organizations has also been followed, until recently, within the United Nations. Three important conventions have so far been adopted under the auspices of the United Nations: the 1973 New York Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons;14 the 1979 New York Convention Against the Taking of Hostages;15 and the 1997 New York Convention for the Suppression of Terrorist Bombing.16 In addition, although it is not usually listed among the anti-terrorist conventions,17 mention must be made of the 1994 Convention on the Safety of UN and Associated Personnel.18 On the other hand, as will be explained later, the 1999 New York Convention for the Suppression of the Financing of Terrorism falls into a different category, and requires separate consideration, since it contains a general, if indirect, definition of terrorist acts.19

The Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, was opened for signature in New York on 14 December 1973; it entered into force on 20 January 1977 and has at present20 147 Parties, including all Permanent Members of the UN Security Council. Under Article 2, the Contracting Parties are obliged to criminalize under their domestic law the intentional commission of a murder, kidnapping or other attack upon the person or liberty of an ‘internationally protected person’,21 a violent attack upon the official premises, the private accommodation or the means of transport of such a person likely to endanger his person or liberty, as well as a threat or an attempt to commit any such attack and an act constituting participation as an accomplice in any such attack.

Whereas the 1973 Convention is principally designed to suppress attacks against diplomatic agents and certain other persons which enjoy a similar status under international law, the more recent Convention on the Safety of United Nations and Associated Personnel – which, however, does not exclusively deal with issues of international criminal law and procedure22 – obliges the Contracting parties to criminalize similar attacks when committed against forces performing non-combat peace-keeping operations.23 This latter convention was adopted by the General Assembly on 9 December 1994 and entered into force on 15 January 1999; it has at present 74 Parties, including the Permanent Members of the Security Council, but its scope is currently under review within an Ad Hoc Committee established by the General Assembly in 2001.24

The International Convention Against the Taking of Hostages was adopted by the General Assembly on 17 December 1979; it entered into force on 3 June 1983 and has at present 138 Parties, including all Permanent Members of the Security Council. Under Article 1, any person commits the offence of ‘taking of hostages’ within the meaning of the Convention if he (or she) ‘seizes or detains and threatens to kill, to injure or to continue to detain another person … in order to compel a third party, namely, a state, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for their release of the hostage’; moreover, the attempt to commit hostage-taking, as well as the participation as an accomplice in such an act (or attempt thereto) are also considered as offences.

Finally, in the aftermath of the deadly truck bombing attack on US military personnel in Dharam, Saudi Arabia, on 25 June 1996, it was realized that existing anti-terrorist conventions did not deal with the problem of attacks in public places such as the Dharam bombing and similar acts in the mid-1990s. Thus, the International Convention on Terrorist Bombing was adopted by the General Assembly on 15 December 1997; it entered into force on 23 May 2001 and has at present 123 Parties, including all Permanent Members of the Security Council. Under Article 2(1), ‘any person commits an offence within the meaning of the Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility: (a) with the intent to cause death or serious bodily injury; or (b) with the intent to cause extensive destruction of such a place, facility or system, where such destruction results or is likely to result in major economic loss’. In addition, ancillary offences are very comprehensively defined in Article 2(2) and (3) as including, in addition to the attempt to commit the principal offence and the participation as an accomplice in its commission, the fact of organizing or directing others to commit such offence or ‘in any other way’ contributing to its commission by a group of persons acting with a common purpose.25

The merits of the ‘sectoral’ approach

All of these ‘sectoral’ conventions follow, with minor variations, a common normative standard for the prevention and punishment of the various acts they contemplate, based, at least in part, on the 1937 Geneva model: more specifically, the punishment of such acts is based on the Parties’ obligation to establish them as offences in their national criminal legislation, to establish their jurisdiction over such offences in specified cases, and to prosecute or extradite the alleged offender (on the basis of the well-known principle aut dedere aut judicare).26 There are, moreover, obligations relating to international cooperation in the investigation and prosecution of these offences.

As for the criminal acts therein contemplated, it is often underlined that all of these conventions exclusively deal with conduct that has an international element, such as where the perpetrators and victims are from two different countries. But in fact that is not always the case and, at least as far as the obligation to prosecute or extradite is concerned, it must be stressed that, even where all elements of the criminal conduct are purely domestic, it is sufficient that the perpetrator has escaped from the country where the conduct took place and is located in another Contracting Party in order to trigger the application of these conventions.

Moreover, it seems interesting to point out that the earlier treaties do not even refer to the need to suppress ‘terrorism’ or ‘terrorist acts’ as (one of) the motive(s) leading to their adoption. Even the later treaties which do make that reference, in their title and/or preamble, confine themselves, in their operative p...

Table of contents

• Cover
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• List of Participants
• Foreword
• Preface
• Acknowledgements
• Part I The United Nations and the Fight Against International Terrorism
• Part II Prevention and Suppression of International Terrorism in the Regional Framework
• Part III Terrorism, International Security and the Use of Force
• Relevant International Documents by Marco Pertile
• Bibliography by Valeria Santori
• Index