Dominika Dróżdż

Terrorism in the 21st century in the light of law

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© Copyright by Dominika Dróżdż 2018

ISBN 978-83-7564-550-7

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Preface

This book explorers the most recent trends in terrorism in the 21th century. A central theme of this book is the in-depth analysis of the West with the risk from the Islamic State and Al-Quaida that could be seen for example in Paris and Brussels attacks; their strength is also seen in the ISIS territory. The Islamic State and Al-Quaida can loose their role in the war, but it seems that Al Quaida and Islamic State are expanding their role through Internet that provides to “do-it-yourself” terrorism. Many younger could be radicalised in this way. At the same time North Korea can have nuclear weapon. It should be remembered to be balanced between the States and the work of many agencies and officers dealing with these problems. It should be remembered comprehensive convention on International terrorism in the UN legal committee which is still under consideration and the proposal to include International terrorism as International crime within the jurisdiction of ICC. This essential and up-to-date analysis helps us to make sense of the most recent trends in terrorism and helps us to find ways to prevent this. I would strongly recommend this book.

Dr. S. Rama Rao

The delegate in all UN ICC meetings from its Ad hoc Committee to PrepCom to Rome Diplomatic Conference;

a Director of World Intellectual Property Organization (WIPO) at the UN headquarters, New York from 1998 to 2013;

the adjunct Prof. in Columbia University and Pace Law School in New York, 2015;

a visiting Prof. in the NALSAR University in India.

1. Preliminary Considerations

The content of the concept of terrorism in the 21st century differs from that, which influenced the understanding of this concept several decades earlier. Terrorism, after all, is not a new phenomenon. These differences result from new opportunities, growing technology, the internet. Regardless, however, of the above, the rules still seem to be similar. Analogies as to how to combat it can be problematic.

The word “terror” appeared as a result of the French Revolution. The notion of terror invoked by A. Kaplan¹, and K. Indecki², means the use of force by the ruling power in order to evoke fear. Nazi Germany is often mentioned as a contemporary example of a terror state³. It can be said that this is a special way of exercising power – when the power uses terror as a method of governing⁴. The notion of “terrorism” derives from the concept of “terror”.

However, until now it has not been possible to build a legal definition of the concept that would be recognised by all states. National and international attempts were made to address specific situations of defining this concept. However, there was no universal definition – there was no agreement between the countries in this matter. An attempt to define this concept will be taken in this study, taking into account the changes that appeared in the Statute of the International Criminal Court. Concepts such as “National State” and “Democracy” are concepts appropriate for the West, not for populations created for centuries by nomadic groups not based on sovereignty⁵.

The term terrorism, as mentioned, was first emerged during the French Revolution. Terrorism was linked then with the notion of state-instigated terror “unleashed on a state’s own population as a mechanism of control”⁶.

In 1926, in Brussels, under the auspices of the International Association of Penal Law, numerous efforts were made to define international terrorism. It was supposed to be an unlawful act of violating the international order. This offense was to be prosecuted regardless of the place where it was committed. During subsequent conferences in the field of criminal law, it was confirmed that the definition of terrorism was to belong to universal competence. The responsibility was extended to other forms of intermittent cooperation, to participation in relationships aimed at committing a terrorist act. It was not supposed to be a manifestation of political activity. The act of terrorism was to be a criminal act aimed at evoking a state of terror in the minds of individuals, groups of people or communities⁷.

Germany was the example of a state of terror of the time⁸. Later, murders of celebrities in Russia or France became the basis for the creation in 1934 of a preliminary draft of the convention for the League of Nations adopted in the project on ensuring repression and cooperation in counteracting the committing of crimes “with political and terrorist aim”⁹.

The interwar period was not assessed as significant in the subject’s literature for the development of works on terrorism in its legal aspects. There was an increased interest in the problem on the part of representatives of science. It was the subject of many conferences. As it was said, on November 10, 1934, the League of Nations adopted a draft international convention on ensuring retaliation and cooperation in counteracting committing crimes with a political and terrorist aim. Works carried out under the League of Nations focused on the possibility of adopting a general ban on the terrorists acting in political circles on the territory of the League of Nations member states and their commitment to preventive and repressive actions against the manifestations of terrorism. This convention was considered to be the cause of international tensions due to over-ambitious targets regarding the fight against terrorism and the lack of consent to the definition of terrorism. The crowning achievement of these works was the Convention of 1937 Convention on the Prevention and Punishment of Terrorism¹⁰. This convention was treated as the cause of international tensions.

In the first intent that the International Community wanted to made to have an International Court in 1937, where terrorism was defined as “all criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public¹¹”. While the Statute was never ratified and the Court never entered into existence, this first attempt at creating a definition is an important precedent and clear evidence that it was of interest to many states to have a permanent international tribunal that would claim jurisdiction over the crime of terrorism¹².

Soon after the World War II no one came back to the topic of terrorism in a meaningful way¹³. The later, second stage can be linked to national movements (the Abu Nidal Organization and then the PLO – Palestine Liberation Organisation) and the Olympics in Munich, which contributed to the signing of international UN conventions on, inter alia, civil aviation and maritime safety. Only in the seventies of the twentieth century did The United Nations broaden its efforts to reduce the phenomenon of terrorism¹⁴.

The third stage could be the activities of the Taliban, Al Qaeda, ISIL, ISIS, etc. This has led to the formulation of a UN convention on protection of nuclear materials, prevention of unlawful acts against the safety of maritime shipping on the labelling of plastic explosives for the purpose of their detection, and on combating terrorist bomb attacks.

UN conventions include¹⁵:

Convention on Offences and Certain Other Acts Committed On Board of Aircraft ¹⁶;

Convention on combating the unlawful seizure of aircraft¹⁷;

Additional Protocol to the Convention on combating unlawful seizure of aircraft¹⁸;

Convention on the Suppression of Unlawful Acts against the Safety of Civil Aviation¹⁹;

Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons²⁰;

International Convention against the Taking of Hostages²¹

Convention on the Physical Protection of Nuclear Material²²

Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation²³

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation²⁴

Additional Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation²⁵

Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf²⁶

Additional Protocol to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf²⁷.

Convention on the Marking of Plastic Explosives for the Purpose of Detection²⁸

International Convention for the Suppression of Terrorist Bombing²⁹

International Convention for the Suppression of the Financing of Terrorism³⁰;

International Convention for the Suppression of Acts of Nuclear Terrorism³¹;

Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation³².

We can find more informations in The Declaration attached to SC Resolution 1456, adopted unanimously on 20 January 2003, that explicitly affirms that acts of terrorism “are to be unequivocally condemned, especially when they indiscriminately target or injure civilians”³³. Later, Resolution 1566 of 8 October 2004 renewed the emphasis on the unacceptability of terror violence directed against civilians³⁴.

Starting with considerations related to terrorism, one can distinguish after K. Indecki³⁵ general definitions, partial definitions and mixed concepts of terrorism.

Within the first group, terrorism is recognised as a kind of criminal act serving the use of violence to achieve specific strategic goals³⁶.

General definition of A. Schmidt depicts terrorism as a method of combat, in which rare or symbolic victims are the instrumental target of violence. Such instrumental sacrifices belonging to a group or class are the basis for their characterisation for the purposes of victimisation. By the prior use of violence or the credible threat of its use, other members of this group or class are introduced into a state of chronic fear (terror). The target of terror is a group or class, in which the sense of security of its members is disturbed. Victimisation of the target of violence is perceived as extranormal by the majority of observers being recruited from witnesses based on their sense of threat (period of peace) or a place (not a battlefield) of victimisation, or contempt for the rules of combat accepted in conventional warfare. The intensity of violence places the attentive audience beyond the goal of terror; individual segments of such an indirect method may alternate with the main object of manipulation. The goal of such an indirect method of struggle is both to demobilise the target of terror – to create confusion and / or submission, as well as to mobilise successive targets of attention (e.g. government) or targets of attention (e.g. public) to change attitudes or behaviour, taking into account short or long-term interests of those using such methods of struggle³⁷.

The second method is “structural approach to the analysis of terrorism based on partial descriptions of its varieties, specified from the point of view of different criteria and for different needs, including typological ones. The descriptions refer to political, individual, group, international, white, red, black, air, internal and many other kinds of terrorism”³⁸.

The third method is, according to K. Indecki³⁹, most often used in international documents. K. Indecki calculated the frequency of occurrence of particular elements:

Violence, force;

Political character;

Fear, emanation of terror

Threat;

Psychological results and anticipated reaction;

Diversity of victim-purpose;

Expediency, planning, regularity, organised action;

Method of combat, strategy, tactics;

Extranormality in breaking the accepted rules, without humanitarian limitations;

Coercion, extortion, evoking submission;

Public aspect;

Arbitrariness; impersonality, random character;

Civilians, not engaged in combat, neutral;

Intimidation;

Focusing on innocent victims;

Group, movement, organisation, as the perpetrator;

Symbolic aspect;

Incalculable, unpredictable, unexpected appearance of violence;

Secret, hidden nature;

Repeatability, serial or campaign nature of violence;

Criminality;

Damage caused to third parties.

The world is changing, so is technique and concepts related to terrorism. Therefore, terrorism is also subject to evolution. The concept of “new terrorism”⁴⁰ emerged, which was introduced in 1986 by researchers from the Institute for the Study of Conflict⁴¹. This meant the “network nature of the organisation”. This change leads to a departure from the classic hierarchical structure – from an unambiguous, permanent location to the non-territoriality. This departure from the hierarchy, in favour of people cooperating with one another, led to communication with each other only through the network⁴².

The UN’s Security Council required states to withhold operations with weapons of mass destruction⁴³, or to identify and implement measures to prevent acts of terrorism⁴⁴. Excessive wording was also noted by J. Alvarez, who wrote that “the problem of human rights was associated with the list of suspected terrorists and their helpers created by the UN’s Security Council, which begins to attract the attention of ‘global opinion, including legal representatives’”. He gave an example of a fictitious Mohamed who, as a result of the actions of the UN’s Security Council, may lose his job, income, similarly his wife and children, because they have been identified as terrorism-related persons⁴⁵.

It was said that it was the “dark side” of the Security Council⁴⁶.

Notes

¹A. Kaplan, The Psychodynamics of Terrorism, [in:] Y. Alexander, J. M. Gleason [ed.] Behavioral and Quantitative Perspective on Terrorism, New York 1981, p. 36, 37 after: K. Indecki, Prawo karne wobec terroryzmu i aktu terrorystycznego, Wydawnictwo Uniwersytetu Łódzkiego 1998, p. 1-2.

²K. Indecki, Prawo karne wobec terroryzmu i aktu terrorystycznego, Wydawnictwo Uniwersytetu Łódzkiego 1998, p. 1-2.

See: D. Dróżdż, Interwencje humanitarne a suwerenność. Realizowanie utopii – usprawiedliwianie użycia siły zbrojnej poprzez interwencje humanitarne, Szczecin 2016, p. 17, D. J. B. Trim, “If a Prince use tyrannie towards his pe ople”: Interventions on behalf of foreign populations in early modern Europe, [in:] B. Simms, D. J. Trim, Humanitarian Intervention. A History, Cambridge University Press 2011, p. 29-30.

³K. Indecki, Prawo karne wobec terroryzmu…, p. 2-4.

⁴Ibidem, p. 17.

⁵See: L. di Monteforte, Why we are under attack, Al. Qaeda, The Islamic State and the “Do-It-Yourself” Terrorism, July 2017, p. 26.

⁶T. Stephens, International Criminal Law and the Response to International Terrorism, University of New South Wales Law Journal 27, no. 2, 2004, p. 457. This concept has been evolving over time and currently three categories of terrorism can be identified: (i) state instigated policies of terror applied domestically; (ii) domestic or internal terrorism carried out by private individuals or groups; and (iii) international terrorism, including state-sponsored acts of transnational violence. Ibidem. M.C. Hoyos, Including the Crime of Terrorism Within the Rome Statue, Global Politics Review, vol. 3, no 1, p. 30.

⁷K. Indecki, Prawo karne wobec terroryzmu…, p. 15.

⁸Ibidem, p. 26.

⁹Ibidem, p. 62.

¹⁰Ibidem, p. 63.

¹¹L. Martinez, Prosecuting Terrorists at the International Criminal Court: Possibilities and Problem, Rutgers Law Journal 34, no. 1 (2002), p. 3.

¹²M. C. Hoyos, Including the Crime of TerrorismWithin the Rome Statue, Global Politics Review, vol. 3, no 1, p. 30.

¹³ K. Indecki, Prawo karne wobec terroryzmu…, p. 70.

¹⁴K. Indecki, Prawo karne wobec terroryzmu…, p. 65.

¹⁵UNIC, ONZ wobec terroryzmu, UNIC Home Page,

http://www.unic.un.org.pl/terroryzm/konwencje.php.

¹⁶Convention on Offences and Certain Other Acts Committed On Board of Aircraft (1963). http://treaties.un.org/doc/db/Terrorism/Conv1-_english.pdf.

¹⁷Convention for the Suppression of Unlawful Seizure of Aircraft (1970). http://treaties.un.org/doc/db/Terrorism/Conv2-_english.pdf

¹⁸Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft (2010). http://legacy.icao.int/DCAS2010/restr/docs/beijing_protocol_multi.pdf.

¹⁹Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971). http://treaties.un.org/doc/db/Terrorism/Conv3-_english.pdf.

²⁰Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (1973). http://treaties.un.org/doc/db/Terrorism/english-_18-_7.pdf.

²¹International Convention against the Taking of Hostages (1979).

http://treaties.un.org/doc/db/Terrorism/english-_18-_5.pdf.

²²Convention on the Physical Protection of Nuclear Material (1980),

http://treaties.un.org/doc/db/Terrorism/english-_18-_5.pdf.

²³Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Avation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1988).

http://treaties.un.org/doc/db/Terrorism/Conv7-_english.pdf.

²⁴Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988). http://treaties.un.org/doc/db/Terrorism/Conv8-_english.pdf.

²⁵Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (2005). https://www.unodc.org/tldb/en/2005\Protocol2Convention\Maritime\%20Navigation.html.

²⁶Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (1988); http://treaties.un.org/doc/db/Terrorism/Conv9-_english.pdf.

²⁷Additional Protocol to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf; http://cil.nus.edu.sg/2005/2005-_protocol-_to-_the-_1988-_protocol-_for-_the-_suppression-_of-_unlawful-_acts-_against-_the-_safety-_of-_fixed-_platforms-_located-_on-_the-_continental-_shelf/

²⁸Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991);

http://treaties.un.org/doc/db/Terrorism/Conv10-_english.pdf.

²⁹International Convention for the Suppression of Terrorist Bombing (1997) http://treaties.un.org/doc/db/Terrorism/english-_18-_9.pdf. In December 1997, the UN General Assembly adopted the Convention on the Suppression of Terrorist Bombings. The United States was its initiator.

Many of the provisions of the Convention are aimed at capturing and judging the perpetrators of terrorist activities. This is to be served by solutions found in earlier agreements, i.e. recognition of offenses listed in the convention as non-political and non-extraditable (Articles 5 and 9). The Convention also requires, according to the principle of aut dedere, aut judicare, that the state should attempt to judge the perpetrator if it refuses to extradite him. The convention introduces a solution which has not been applied so far – in a situation where the perpetrator is a citizen of the issuing state (and the rule is in this case the refusal to extradite, it may be issued to the applicant state, provided that a possible sentence will be issued in the issuing state (article 8). It is also important that the Convention imposes on states the obligation of extensive cooperation for preventive purposes, including, inter alia, preventing the activities of groups that have already committed crimes in the past in the light of this convention, research and development of methods for detecting and marking explosive devices, as well as technology transfer, equipment, etc.

³⁰International Convention for the Suppression of the Financing of Terrorism (1999) http://treaties.un.org/doc/db/Terrorism/english-_18-_11.pdf.

³¹International Convention for the Suppression of Acts of Nuclear Terrorism (2005); http://treaties.un.org/doc/db/Terrorism/english-_18-_15.pdf.

³²Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (2010); UNIC, ONZ wobec terroryzmu, UNIC Home Page,

http://www.unic.un.org.pl/terroryzm/konwencje.php (28.08.2017 r.).

³³The Secretary General, addressing the Council before it discussed and voted on the draft resolution, underlined the necessity for the UN to issue ‘a clear message on the unacceptability of acts of violence targeting civilians’: see Doc S/PV.4688, at 2. During the debate, many states, usually on opposite sides when treating the controversial topic of terrorism, signifi cantly converged in identifying a common feature of absolutely ‘unacceptable‘ terrorism; for example, indiscriminate attacks against the lives or physical integrity of innocent civilians: see the statements of Colombia (Doc S/PV.4792, at 27); Iran (Doc S/PV.4710, at 31); Israel (Doc S/PV.4710, at 9); Lebanon (Doc S/PV.4845, at 31); Pakistan (Doc S/PV.4734, at 20); South Africa (Doc S/PV.4845, at 26); Uganda (Doc S/PV.4792, at 26; Doc S/ PV.4845, at 16); USA (Doc S/PV.4688, at 18).

³⁴Para. 3 of the Res and the statements made by the US, the Philippines, and Benin during the relevant meeting of the Security Council (Doc S/PV.5053 of 8 Oct. 2004, at 6 – 8).

³⁵K. Indecki, Prawo karne wobec terroryzmu i aktu terrorystycznego, Wydawnictwo Uniwersytetu Łódzkiego 1998, p. 19-23.

³⁶A. Grześkowiak, Prawnokarne środki walki z terroryzmem we Włoszech, Przestępstwa na świecie 1982, t. XV, p. 14 after: K. Indecki, Prawo karne wobec terroryzmu i aktu terrorystycznego, Wydawnictwo Uniwersytetu Łódzkiego 1998, p. 19.

³⁷A.P. Schmidt, [in:] A. P. Schmidt, A. J. Jongman, Political Terrorism, A New Guide to Actors, Authors, Concepts, Data Basis, Theories and Literature, New Brunswick 1988, p. 1-2. after: K. Indecki, Prawo karne wobec terroryzmu i aktu terrorystycznego, Wydawnictwo Uniwersytetu Łódzkiego 1998, p. 2-4.

³⁸K. Indecki, Prawo karne wobec terroryzmu i aktu terrorystycznego, Wydawnictwo Uniwersytetu Łódzkiego 1998, p. 22.

³⁹Ibidem, p. 22-24.

⁴⁰T. R. Aleksandrowicz, Nowy terroryzm, [in:] Współczesne zagrożenia terroryzmem oraz metody działań antyterrorystycznych, red. J. Szafrański, Szczytno 2007, p. 52-53

⁴¹Concept of “new terrorism” was worked through century thanks to RAND Corporation.

⁴²U. Beck, Władza i przeciwwładza w epoce globalnej. Nowa ekonomia polityki światowej, Wyd. Naukowe Scholar, Warszawa 2005, p. 31. T. R. Aleksandrowicz, Nowy terroryzm, [in:] J. Szafrański (ed.), Współczesne zagrożenia terroryzme oraz metody działań antyterrorystycznych, Szczytno 2007, p. 52-53.

⁴³S.C. Res. 1540 (2004)

⁴⁴S.C. Res. 1624 (2005). E. S. Podgor, R. S. Clark, Undestanding International Criminal Law, second edition, Metthew and Benders 2008. p. 67.

⁴⁵J. Alvarez, The “Dark Side” of the UN’s War on Terrorism, [in:] A. Sajo, Ed. The dark side of Fundamental Rights 163, 2006, p. 172-173. S.C. Res. 1267 (1999) concerns sanctions against Taliban

⁴⁶E. S. Podgor, R. S. Clark, Undestanding International Criminal Law, second edition, Metthew and Benders 2008. p. 67.