International Law Enforcement: Bottlenecks in prosecution of Terrorism

1. INTRODUCTION

The 2015 global terrorism index (GTI) highlights that there is 80 per cent rise in terrorism-related deaths in 2015 from 2014. The significant majority of these deaths and over 78 per cent occurred only in five countries; Iraq, Nigeria, Afghanistan, Pakistan and Syria. There is a 120 per cent increase in the number of countries that recorded over 500 terrorism related deaths. There is a continuous trend of an increase in terror attacks with more and more countries experiencing terrorist attacks and death each year.[1] Absence of a general definition of terrorism has added further obstacles to the identification of offenders and pursuit of this terrible crime. A weak state, weak judicial system and insufficient laws and a corrupt enforcement agency significantly inhibit the pursuit of offenders of terrorism.

In this paper, we shall attempt to define terrorism through its structural element and analyse if terrorism is already a crime under the Rome Statute though not explicitly included. After that, we analyse the problems and difficulties in the legal enforcement of the crime of terrorism and problems of investigation and evidence gathering. Lastly, this paper discusses the role of ICC in prosecuting and preventing terrorism and the jurisdiction to prosecute heads of the state even when they enjoy sovereign immunity.

2. “TERRORISM”- A PROBLEM OF DEFINITION

Terrorism was first defined in the Convention for the Prevention and Punishment of Terrorism (1937) which only included acts creating terror in minds as having definitional element. Today terrorism has earned many faces and dimensions. Given the practicalities of our lives in the 21st Century, the definition of 1937 is certainly not the right fit, because terrorism today has manifested in chimerical ways. However, there have been many treaties and conventions which defined act of terrorism considering the situational element. Indeed, the definition based on the situational element is not universal and does not give any general definition of crime. Article 4 of Addition Protocol II to Geneva Conventions of 1949 prohibits an act of terrorism against civilians. U.N. Security Council Resolution 1566 (2004) defines terrorism from the perspective of an offence which has already been committed, but excludes preparatory acts and intention to commit such acts as a crime. Article 2 of The Draft Comprehensive Convention against International Terrorism provides the most comprehensive definition which is inclusive of many different facets of the crime of terrorism but has still not come to fruition.

However, the definition of terrorism does have a specific structural element which makes it an international crime within an existing framework of laws. We will attempt to understand terrorism based on these elements, which constitute the crime as it intersects with international humanitarian law (IHL) and the prohibitions against war crimes.

3.DEFINITION: ANALYSIS, CONTENT AND CHARACTER

What legitimises violence? Is it the difference between an act of crime and self-defence and a question of its legitimacy? Instances are galore where states secretly harness, support and empower terrorist groups for national agenda, like Syrian support for the Kurdish PKK, Iran’s support to Palestinian Hamas, Pakistan’s support to terrorist groups in Kashmir. For many States, terror is war by other means.[2] Therefore, if terrorism has to have one universal definition as an international crime, any attempt to define it cannot distinguish between the State or non-state actor in perpetrating the crime of terrorism. On the other hand, if terrorism is an individual outrage to repressive state policy, should the retaliation be categorised as a terrorist act or self-defence? All violent revolutions of past which were against state security were classified as terrorist acts. If we resort to unlawful violence as terrorism, then today the foundation of democracy and freedom stands on the legs of such individual and collective perpetration of violent acts which are now perceived as freedom struggles to overthrow oppressive regimes of past. The nature of oppression can be physical, economic, psychological, induced by discrimination or inequality or sometimes non-action of the world community and can be very subtle in the 21st Century. Thus, a crime against a government or its security agency cannot distinguish terrorism from legitimate freedom struggle against an oppressive regime; in other words, it does not cease to be the legitimate effect of a cause. The definition of terrorism provided by the European Union and the United States legal code rest on the identity of the perpetrator and not the victim. Exclusion of State from the definition, which is the fundamental reason for its universal non-acceptability, remains a regional phenomenon applicable to states given its unique circumstances and suffer from a deficiency of elemental perspectives in defining it.[3] The Supreme Court of the United Kingdom in the case of R v Gul[4] answered the following question of law in affirmative:

“Does the definition of terrorism in section 1 of the Terrorism Act 2000 operate so as to include within its scope any or all military attacks by a non-state armed group against any or all state or intergovernmental organisation armed forces in the context of a non-international armed conflict?”

It indicates that courts have not excluded terrorism from the definition of crime based on the fact that act committed was not during armed conflict. Terrorism is a crime even in a non-armed conflict since there is nothing in international law which prevents the court from including the conduct of non-state actors within the definition of terrorism.[5]

The second characteristic of the definition is the declared intent or motive and its connection with a political objective and psychological harm it causes, in addition to loss or damage to property and body. Criminological theories like frustration-aggression theory conclude that thwarting an individual expected goal attainment, leads to a heightened emotion which can direct an individual to take aggressive action in the form of violence. Robert Angew’s (2010) General Strain Theory (GST) argues that both “strain” and “grievances” are the primary basis of terrorism. Strain theories of terrorism attribute terrorists act to various grievances associated with relative economic deprivation, religious and socio-cultural issues relating to modernisation, neo-imperialism and neocolonialism; hatred over national, financial and military supremacy of western world and inter-religious and racial disputes etcetera. Most studies agreed that strain plays a significant part in the creation of terrorist organisations. Strain could be caused by historical inequality in the distribution of power and resources in society or a conflict of interest between the two groups. [6] Thus terrorism has been the method of attaining specific objectives by violent means without direct use of states armed forces and can be nihilist, aimless and lacking in identifiable political objective as also inspired by vengeance, anger and vindictive behaviour, born of the feeling of injustice and inequality caused by states policies. It must be defined by examination of factors which cause such intent and feeling. International terrorism is, therefore, the result of a failure of national and foreign law enforcement agencies to bring justice and equality in the sphere of equal opportunity, economic development, foreign policy, interference with the nationality of other states, insufficient civil rights within a state and a failure to provide a conducive habitable environment to practice the pursuit of peace and happiness. Thus, any attempt to define terrorism cannot be concerning the effects, but the outcome of the action adopted in addition to effect must bear a distinct correlation with the cause and origin of action. Terrorism can only be defined in terms of the nature, aim and causation of the act, rather than with reference to the agent or consequences ensuing.

Is terrorism a war by other means? It is essential to know this answer since if terrorism is a war than international rules concerning the behaviour of belligerents towards means and methods of warfare, protection of civilians, breach of treaties, humanitarian laws will come into effect. The question answers how can we bring international law enforcement to non-state actors?

War can no longer be defined as only a conflict between States, as War on Terror is an actual war, perhaps a war sui generis, where there is lawful combatant under the authority of State on the one hand and illegal combatants like Al-Qaeda on the other. There is no international obligation to declare a war for war to exist. However, some organisations issue fatwa declaring jihad; even without such declaration, a war can exist like the legitimate act of the U.S. action on Al-Qaeda in Afghanistan under the U.N. Sanctions.[7] Geneva Conventions does not require any party to a war to be a State, and hence Geneva Conventions apply to terrorist organisations and States equally. How then can we ensure that civilians are not targeted, or illegal combatants do not use nuclear weapons or how terrorist organisations be made to follow laws of war; these are the problems of international law enforcement. There is an urgent need to divert the attention from redressing merely effects, to address the cause by negotiation, prevention strategies and deradicalisation. Therefore looking at the definition of terrorism only from the view of the effect it causes will undermine removal of the fundamental basis of its cause, and avert the attention of international community from terrorism practised by political organisations, nationalistic and religious groups, armies, intelligence services and police. Despite this character of terrorism, for several years, U.N. documents have emphasised that terrorism cannot and should not be associated with any religion, nationality or civilisation. Thus, the definition of terrorism can only reflect the elemental properties of its cause and not only the effect in the form of terror, so as to qualify the definition as acceptable to States.

4. IS TERRORISM AN INTERNATIONAL CRIME?

Terrorism is an act of violence, is axiomatic. The definition of terrorism as derived from the practice of States in their domestic legislation includes planning, assisting, funding, training, intending and committing an act of violence to result in terror, torture, endangering human life, causing bodily or mental harm, bringing about the physical destruction of the life or a government or civilian population by whatever means and whether intended or not. When compared with Article 6, Article 7 and Article 8 of Rome Statute, many of the categorisations of violence committed under the umbrella of terrorism overlaps with these provisions, which are grave crimes in international law. Article 8 (2) c of Rome Statute includes offences committed during armed conflict of a non-international character like violence, murder, torture, taking hostages etc. as a war crime. The first difference between war crime and terrorism primarily lies in the absence of non-state armed conflict. Thus, terrorism may or may not be practised during armed conflict, and even in the absence of armed conflict, an act of terrorism can be committed, unlike war crime which presupposes the existence of an armed conflict of an international or non-international character.[8] The second difference is that it can involve an act of a single person with or without an organisation. The third aspect is the presence of transnational crime element either in the form of funding or logistic supply of arms and explosives. The fourth element of the crime of terrorism is planning and intent with or without attaining any definite objective. Thus, apart from specific acts of violence committed on the property or person in air, water or land, these four elements always remain the inseparable part of the act of terrorism. If an attempt is made to understand terrorism in the contemporary times following the domestic legislations of different States, the consequences or the result of causing an act of terrorism brings out the elements of a crime as defined under the Rome Statute. Thus, if multiple facets of terrorism are deconstructed and if a crime is measured through consequences of acts simpliciter, then terrorism along with a combination of various characteristics enumerated above is crime against humanity. Article 25 of the Rome Statute mandates trial against an individual, and Article 27 makes official capacity irrelevant to individual acts of crime. Interestingly Article 28 of the Rome Statute does not distinguish between a crime committed by an individual and military commander and other superior officers of legitimate armed forces of the State.

Thus, ICC has sufficient subject matter jurisdiction to try terrorism as a crime under Rome Statue, however with the exception of preparing to commit crime or intending to join a terrorist organisation for training, planning, intending or assisting to commit crime which is not even indirectly covered by the Statute. Thus, Rome Statute only contemplates trying of an individual for a completed crime and the act of planning, assisting or intending are left to the national jurisdictions of the States under domestic laws by invoking the principle of universal jurisdiction.

5. PROBLEMS OF LAW ENFORCEMENT

The first problem for law enforcement is threat assessment and identification of the terrorist groups. In cases where terrorist individually carries out violent crimes, identification of assailants is considerably difficult. Identification of an assailant is a technique associated with crime prevention. Therefore, policies must be adopted to bring about some kind of coordination and command structure within the terrorist groups to prevent individuals from carrying out terrorist attacks outside the organisational structure. The second issue is of international monitoring and policing to ensure that States do not fund, train, promote or employ individual terrorists or terrorist organisations to carry out national agendas. The third problem of law enforcement is the solution to finding by experts that terrorism is a political phenomenon and springs from countries which lack civil rights[9] and hence strengthening the civil rights of citizens in emerging or economic weaker states becomes a collective responsibility of world community. The fourth problem of law enforcement is strategy and treatment of individuals for deradicalisation, and for preventing radicalisation.

The first strategy of counter-terrorism employed is to develop a body of binding international conventions aimed at coordinating and strengthening domestic criminal law response to specific terrorist acts. That nineteen universal anti-terrorism Conventions related to different spheres of activity like aviation security, maritime security, nuclear terrorism, protected persons and hostages, explosives and bombings, and financing, constitutes a legal framework for countering terrorism. These treaties and conventions distinctly define various crimes and require states to assimilate these crimes within their domestic law. These international conventions distinctly and clearly define the crime of terrorism and facilitate extradition by declaring that the crimes will not be considered political offences. The treaties also bring about an obligation to cooperate in matters of preventing terrorism, intelligence sharing and facilitating investigation and prosecution of terrorism offences. They also create a framework for due process, and fair trial. States have under universal jurisdiction tried this offence in domestic courts. Thus any state can apprehend and prosecute the offender for crimes committed in other states despite absence of territorial or nationality link to the crime with the trying State. These treaties concerning limited applicability to combat international terrorism in only some specific sphere of their applicability and are deficient in framework to avert commission of a crime. These conventions are not comprehensive to include under the jurisdiction of the domestic law of the States such activities which though not a crime may culminate as being a step in the act of preparing for one. These conventions do not make acts which may converge into terrorism as an offence. The comprehensive draft Convention on Terrorism is attempting to establish two legal regimes, the first involving states obligation under Convention against terrorist bombings, the Convention against the financing of terrorism and nuclear terrorism. It establishes a penal regime having an international dimension. The second regime is more limited and applies to acts which are domestic and within the territories of states; they include acts that lack an international dimension. The latter includes the duty of the state parties to prevent the use of their territory for acts aimed at the commission of offences in other states; the duty to cooperate with other states in obtaining evidence; the duty not to consider acts of terrorism as political offences for purposes of extradition; certain obligations concerning the human rights of persons suspected of direct or indirect links with terrorism.[10] The newer treaties against terrorism also provide members of armed forces with a degree of immunity for certain acts.[11]

That various U.N. Security Council resolution has also created a framework of cooperation, information sharing and bringing troops contributing countries under the central command of the Security Council for better compliance of International Law. The Resolution 1373 (2001) achieves a significant milestone in this direction by establishing Counter-Terrorism Committee Executive Directorate (CTED). The Security Council Resolution 1566 (2004) achieves another milestone by defining individual criminal acts as terrorism, obligates states to deny haven or support to facilitate such acts and obligating states to cooperate fully in measures to be imposed upon individuals and groups involved in terrorist activities. The most import development in resolution is delinking of terrorism with any religion, nationality or civilisation, and imposing obligation on the States to prevent individuals from participating in terrorist acts. The Security Council Resolution 2178 (2014) recognised and obligated states to observe international human rights law, international refugee law and international humanitarian law while dealing with terrorism. It further enumerates that human rights, fundamental freedoms and the rule of law are effective counter-terrorism measures and failure to observe them has contributed to increased radicalisation and fosters a sense of impunity. Recognition, prevention and deradicalisation of Foreign Terrorist Fighters (FTF) by the exchange of operational information, preventing movements, adequate border controls and controls on issuance of identity papers and travel documents is a state responsibility and effective counter-terrorism measure. It has given rise to soft-law and international obligation of states to make domestic legislation and employ effective local law enforcement to cooperate with Interpol and other transnational police networks.

There is increasing evidence that regular criminal law provisions may be sufficient to secure a conviction in terrorism cases which may criminalise participating and cooperating in the training of terrorism or acts involving preparatory acts for murder. Netherland encountered its first case where a person tried for attempting to travel to Syria for Jihad was found not guilty for preparatory acts of terrorism but was convicted for preparatory acts of murder.[12] After UNSC Resolution 2178(2014) in many cases, preliminary or preparatory offences like providing material support, willingness to be trained for terrorism as well as membership charges, dissemination of material inciting to commit a crime, participation in a terrorist organisation, recruitment for ordinary crimes with terrorist intent is being used in place of principal offences for convicting the suspects of terrorism.[13]

6. CHALLENGES OF INVESTIGATION AND EVIDENCE GATHERING

Collecting evidence for prosecuting terrorists is difficult and poses a grave security risk. Battlefield evidence referred to as military evidence is one of the options but rarely used. Besides evidence coming from combat zones, internet-based evidence like Facebook or photographs, evidence gathered by inter-state cooperation, telecommunications intercepts, undercover agents, evidence obtained from seized computers are widely used.[14] In 2018, the GCTF which is a multilateral counter-terrorism network of states adopted Abuja Recommendations “The Collection, Use and Sharing of Evidence for purposes of Criminal Prosecution of Terrorist Suspects and The Hague Good Practices”, on the nexus between transnational organised crime and terrorism. It provides policy and operational guidance to the states and prosecutors on criminal justice responses to linkages between terrorism, transnational organised crime and international crime.[15] It provides guidance to the admissibility of evidence before the court. FBI has used online forums and social media to lure jihadists and far-rightists into sophisticated plots before arresting them.

Additionally, utilisation of human intelligence and a mixture of reactive and proactive strategies have remained relatively the same in investigating terrorism plots. The modal investigatory response to terrorism in the U.S. involves federally-led investigations that stem from public tips, information and intelligence findings. Thus public awareness campaigns like “if you see something, say something” and fostering healthy relationships with members of the Muslim American community is crucial, as past research findings indicate that Muslim Americans are vital contributors to reporting suspected terrorist activity.[16] The public and communities are stakeholders and partners in countering terrorism; they include partnership over a wide range of actors and are locally driven. Community policing and police-public partnership can make a tangible and durable contribution to the broader strategic effort to counter-terrorism.[17] Hence local law enforcement can play a vital role in uncovering terrorist plots and developing the system of rewarding confidential informants to effectively investigate and collect evidence to counter-terrorism and bring offenders to justice.

7. ROLE OF INTERNATIONAL CRIMINAL COURT AND CHALLENGES OF COOPERATIVE NORM

Article 1 of the U.N. Charter enunciates a legal norm of collective measure for the prevention and removal of the threats to the peace and international cooperation in solving the problem of an international humanitarian character. These principles, along with the norm of protection from slavery, racial discrimination, the prohibition of torture, preventing genocide, the prohibition of the use of force and humanitarian law, have acquired the status of Jus Cogen norms. ‘Soft law’ norms like Responsibility to Protect (R2P) create State obligations. The role of International Criminal Court (ICC) in contributing to prevention or deterrence lies in its core function of investigating, prosecuting and punishing the international crimes as defined in the Rome Statute. Additionally, its goal is also to prevent crime by introducing a system of international accountability and deterrence that crime will not go unpunished.

The first function of ICC is to bring about international cooperation in the investigation of crimes by encouraging the exchange of information and intelligence between States. It explores the presence of indicators of crime which is likely to manifest later in the form of international crime. For example, lack of respect for human rights norms is a significant indicator for possible future international crimes. According to broken windows theory, broken windows in a neighbourhood show neglect of law enforcement authorities. Human rights are broken windows. Research has broken down these indicators into various categories to give warning signals to the international community.[18]

The threat to act coercively is another effective preventative strategy. International criminal tribunals are an agent of deterrence. The effect of deterrence through these tribunals is indirect because it is mediated and enforced through transnational networks of governmental and non-governmental actors engaged in promoting and enforcing respect for international criminal justice.[19] According to a research report, the first case of International Criminal Court (ICC) in the ‘Democratic Republic of Congo’ involving the prosecution of Thomas Lubanga Dyilo with the war crime of enlisting children to participate in hostilities as child soldiers, indicates that ICC has potential deterrent effect in preventing the commission of severe violations of recruiting children, though mitigated by numerous factors. [20]

The jurisdiction of ICC is not universal. ICC is the court of last resort and jurisdiction is invoked on failure to prosecute crime by national courts. This phenomenon of allowing the national courts to prosecute crime first with ICC assuming jurisdiction only upon failure to prosecute nationally is known as complementarity principle. Rome Statute recognises the primacy of national prosecutions. Article 15 confers jurisdiction on Prosecutor to investigate proprio motu and request authorisation from Pre-Trial chambers for its formal investigation. International Criminal Court considers admissibility of the case before it in the circumstances when states do not genuinely carry out the investigation, State is unwilling to prosecute or there is an unjustified delay in the proceedings or if the State is shielding the person or proceedings were not conducted independently or impartially. In all such cases, ICC may hold the case, to be admissible for investigation and trial before it. Article 18 confers considerable power to the Prosecutor to pursue investigative steps undertaken nationally. It may call for a report from the States on the progress of investigations and subsequent prosecutions as well as cause preservation of evidence. Thus, Prosecutor oversees the State investigation to assess if conditions for invoking the jurisdiction of ICC are met. Thus, the Rome Statute acts as a supranational framework for prosecution of criminals guilty of serious crimes with the power of overseeing the investigation and national prosecutions.

Under Article 58 of the Rome Statute, the court may issue a warrant of arrest or in the alternative summons to appear. The arrest warrant is executed by making a request to the custodial state for provisional arrest.[21] The accused can apply to the competent authority in custodial state for interim release. The dependence of ICC on the States for the execution of an arrest warrant issued by it has severe limitations on the exercise of its jurisdiction as criminals cannot be prosecuted in their absence. Part 9 of the Rome Statute and Article 86 to Article 99 pertain to international cooperation by states with the court in investigation and prosecution of crimes. The court can request assistance to any state party to Rome Statute and a non-party State based on an ad hoc arrangement or an agreement with such State. Article 88 gives a mandate for changes in the national law as may be required for practical assistance to ICC. Upon request of the court to arrest or surrender, the state party shall consult with the court, and convey difficulty in the arrest of the person. The court is entitled to make a request for provisional arrest when request under Article 91 is pending. Article 93 empowers ICC to request for various forms of cooperation like identification and whereabouts of a person, questioning of any person, protection of victims and preservation of evidence etc. Upon failure of a state to cooperate, ICC can refer the matter to the assembly of States or Security Council to carry out appropriate action to execute the process of the court and allowing it to exercise its jurisdiction.

In the case of arrest of Ahmad Al-Bashir who visited the Hashemite Kingdom of Jordan on March 28, 2017, to attend Summit of Arab League in Amman, Pre-Trial Chamber issued a warrant for the arrest of Omar Hassan Ahmad Al-Bashir the President of Sudan on July 12, 2010, and all states were notified including Jordan with requests for the arrest. Upon Jordan’s failure to execute the warrant, Pre-Trial Chamber ordered a referral to Assembly of State Parties and the U.N. Security Council. The Appeals Chamber held that Pre-Trial Chamber erred in giving the finding that Jordan had not sought consultations with the court and hence exercise of discretion was not judicious, and it set aside referral to Assembly of States.[22] Thus Rome Statute also safeguards states from judicial imperialism.

Though offence of terrorism was excluded from the purview of Rome Statute before its adoption, nevertheless ICC will continue to hold mandate to prosecute terrorists when the crime is of the nature of the crime against humanity and other international crimes defined in Rome Statute. Besides ICC creates an international legal framework for prosecution (without characterisations), and preventing crime by deterrence. It also injects the norm of state to state cooperation, which creates a certain synergy in exchange of information and intelligence sharing between States.

8. CONCLUSION

The crime of terrorism, when broken into its elemental characteristics, various components of offence (though prosecution of some components having evidential dependence on the former may be problematic) may constitutes an international crime under Rome Statute, and ICC can prosecute offence of terrorism even in the absence of specific inclusion of the crime under the Statute. Want of universal general definition of terrorism and various attempt of United Nations and other states to define it, has not considered its elemental characteristics mainly when even states or international organisations, non-governmental organisations are capable of executing their policy through armed militia or terrorist training of individuals or creating terrorism in numerous other ways either by corruption, hunger as a tool etc. This deficiency, in definition, has also contributed to the failed foreign policies in Governments as a preventive strategy. As jurisprudence of international criminal court is taking shapes like in immunity case, ICC will have an enlarged role in bringing about state cooperation and the building foundation of the norms of state responsibility in matters of criminal justice. The complementarity principle in Rome Statute accords respect to national tribunals but not at the cost of allowing offenders to get away from crime with impunity. It thus legitimises justice delivery internationally. More and more international and domestic legislation on terrorism is likely to generate state practice, and such practices will attain the status of customary international law. “Soft law” obligations in the form of General Assembly resolutions and ILC report do also contribute towards expanding jurisprudence of the international criminal justice system. Thus more and more states must legislate anti-terrorism laws domestically, and centralised international body must be constituted (Like UNCITRAL in international arbitration) which must draft model laws for states to assimilate by way of national legislation with suitable modification to suit its contextual and historical problems. This ultimately will boost customary international law norm gradually and finally will result in evolution of universally accepted definition of terrorism as a distinct norm drawn from common concepts in definition of States universally.