Tuesday, March 3, 2009

WHETHER THE CRIME OF TERRORISM COULD BE PROSECUTED AT THE ICC?

[This article is dedicated to my friend for whom i have written]

Though the prodigy of Terrorism has been existent from many decades, but it has gained international recognition after the dreadful attack of terrorist on world trade center on 11h September 2001. From then, the activities of terrorist has gained in frequency and the various groups of terrorist has proven that by operating on a network basis it can spread terrorists around the globe to undertake attacks in various parts of the world. So now terrorism is not merely a domestic problem and in the future we will not be able to rely on domestic legislation only. It is necessary to determine international concepts and approaches which tackle crimes of terrorism on an International level as well.
After the sixtieth ratification, the Rome statute entered into force, in accordance with Article 126(1) and created the world’s first permanent International Criminal court with a seat at The Hague. Article 1 of the Rome statute states that “(the court) shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern”; these crimes comprise Genocide (Art.6), Crimes against Humanity (Art.7) and War Crimes (Art.8). After extensive debates, the negotiators agreed to also include the crime of aggression. However, the ICC will not exercise jurisdiction over the crime of Aggression unless agreement is reached regarding how to define the crime and regarding the conditions for the court’s exercise of jurisdiction over it.
At the heart of current debate, I am here to explore what role the international criminal court might play in combating terrorism in terms of international law enforcement. In 2009, a review conference will take place to consider whether the Rome statute should be amended and the crimes of Terrorism should be prosecuted at ICC?
However many scholars assert that some terrorist acts could be prosecuted as crimes against humanity, but this is not a favorable condition, a more explicit jurisdiction over the crimes of terrorism would be beneficial because terrorism is really a separate category of crimes and it mandates separate prosecution.
The concept of ‘Crimes against humanity’ is defined under Art.7 of ICC statute, which as follows, “[Crimes against Humanity] is describes such an attack, a course of conduct involving the multiple commission of Acts…and condemns widespread systematic attacks targeted at any civilian population” Hence, all Al-Qaeda attacks considered indicate a systematic policy which aims to target and destroy American symbols or facilities like the World Trade Center or American lives. But what about the previous attacks? How many such single attacks have to occur in order to count as ‘systematic’ in terms of crimes against Humanity? Even if all these attacks are carried out by same group, one could argue that intervals in which they occurred are much too broad to reveal a regular pattern. It follows that the first few attacks could not be tried as crimes against Humanity, unless they met the ‘widespread’ criteria. However, in order to get the criteria of ‘crimes against Humanity’, it could be carried as massive, frequent, large scale action, collectively with considerable seriousness and directed against a multiplicity of victims. Then, does the bombing in Saudi Arabia in 1995 constitute crimes against Humanity? Only seven people were killed then or the bombing of the USS Cole in October 2000, where seventeen were killed and 39 injured? Both these latter cases clearly do not meet high threshold criteria, and therefore could not be tried as crimes against Humanity. Consequently, terrorists would escape ICC prosecution. There needs to be an opportunity to prosecute terrorists without having to prove that terrorist’s acts are parts of a systematic or widespread attack. By including crimes of Terrorism in Art.7 of the ICC statute certain terrorist could not be prosecuted by the ICC.
The fact that several anti-terrorist conventions already exist should facilitate the formulation of a provision concerning crimes of terrorism. Certain delegates of the preparatory committee for the Rome conference opposed the inclusion of treaty based crimes as it can overburden the ICC. They also alleged that the court had limited financial and personnel resources, it could run the risk of danger of financial deficit and other general acceptance. However, according to the ‘Complementarily principle’, ICC will only exercise jurisdiction if a state is not already doing so genuinely, it exercise its jurisdiction only if state is not able to prosecute the terrorist due to some personal reasons.
The advantage of prosecuted the crime of Terrorism in the ICC gives a benefit at large as smaller states will particularly benefit because of their lack the financial resources to prosecute terrorists. Colombia, for example has been faced with this dilemma time and again. An international concerted effort against terrorism will be efficient only and if the claims of all states will be taken seriously.
Secondly, as the ICC is a neutral forum for prosecution in the international level. The neutrality of the ICC could contribute to a more effective prosecution of terrorists. It could help avoid the possibility that terrorists seek shelter in states that distrust the judicial system of the victimized state, do not want to extradite for political reasons or are simply unwilling to prosecute. And it would potentially minimize the risk of states acting in violation of international law and against international concerns by refusing to extradite or prosecute. And ICC on the contrary, consisting of an international and geographical equitable selected panel of judges, in an unbiased forum.
In a concluding way, it is important to amend the ICC statute with an express provision concerning crimes of terrorism. One has to keep in mind that terrorism is a separate category and as such deserves separate contemplation and prosecution. Therefore, the ICC should not charge terrorists with already existing crimes like crimes against Humanity or War crimes. As I have already mentioned above that not all terrorists’ acts meet the high threshold of crimes against humanity. Consequently certain terrorists could escape ICC jurisdiction even though there act was extremely disgraceful or a serious crime of international concern.
The ICC is currently the only capable international institution that could fill the gap b/w terrorist and prosecution and with sufficient support of international community, the ICC could be a powerful mechanism to deal with it. It would be serious setback if the court would allow prosecuting the crimes like terrorism.


- MOHAMMED FARHAN KHAN

4 comments:

ajitha here 4 law said...

rightlyly said Farhan..... kudos....Amendment in this regard is the need of the hour

Priyanka Choudhary said...

thnx farhan.......

MOHAMMED FARHAN KHAN said...

Ajitha - yeah in actually there is great need. Thanx for the praise and appreciation.

priyanka - its ok dear, u only told me to write on this subject.

The Thinker - just a human... said...

rightly said mate...there has to be modifications and amendments....