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The Interaction of the International Terrorism Suppression Regime and IHL in Domestic Criminal Prosecutions: The UK Experience

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Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies

Abstract

This chapter explores the interaction between terrorism suppression and international humanitarian law in the context of domestic terrorism prosecutions. The chapter sketches the relevant terrorism suppression treaty regime and explores the possible interpretations, which should be given to regime interaction clauses therein. In particular, this chapter argues that the interaction between terrorism suppression and international humanitarian law dictated by treaty results in both a floor and a ceiling on the exercise of domestic criminal jurisdiction—creating international law limitations on the right of State Parties to criminalise acts of war as ‘terrorism’.

Kimberley N. Trapp is Lecturer in International Law, University College London, Faculty of Laws.

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Notes

  1. 1.

    See Saul 2006, p. 4.

  2. 2.

    See e.g. summary record of the 5th meeting of the Ad Hoc Committee on International Terrorism, UN Doc. A/AC.160/SR.5 (1977), [10] (Algeria); summary record of the 8th meeting of the Ad Hoc Committee on International Terrorism, UN Doc. A/AC.160/SR.8 (1977), [35] (Tanzania).

  3. 3.

    See generally UNGA 56th Session, 12th meeting, UN Doc. A/56/PV.12 (2001), 3; Report of the Ad Hoc Committee established by General Assembly Resolution 51/210 of 17 December 1996, UN Doc. A/59/37 (2004), Annex I, [15]–[17]. See in particular proposals that self-determination be excluded from the definition of terrorism, UNGA, Sixth Committee, UN Doc. A/C.6/55/SR.27 (200), [41]–[45] (Qatar and Egypt); UNGA, Sixth Committee, UN Doc. A/C.6/55/L.2 (2000), Annex III, [30] (Malaysia). See also UNGA, Sixth Committee, UN Doc. A/C.6/60/L.6 (2005), Annex, [2]–[17]; Reports of the Ad Hoc Committee established by General Assembly Resolution 51/210 of 17 December 1996, UN Doc. A/61/37 (2006), Annex I, [2]; UN Doc. A/62/37 (2007), Annex, [5] and [11]–[21]; UN Doc. A/63/37 (2008), Annex I, [5]–[6]; UN Doc. A/64/37 (2009), [6]; UN Doc. A/65/37 (2010), [3] and [11].

  4. 4.

    Conflicts in which a people are fighting in exercise of their right of self-determination have long been recognized as armed conflicts to which humanitarian law applies. Article 1(4) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (‘API’) incorporates factually non-international armed conflicts in which a people is fighting in exercise of their right of self-determination into the legal definition of international armed conflict. The circumstances under which a non-international armed conflict will amount to an international armed conflict because a people is fighting in exercise of a right of self-determination, as envisioned in Article 1(4) of API, is not defined clearly in API, but the Commentary suggests (rather optimistically) that it is a question of ‘common sense’. See Sandoz et al. 1987, p. 56.

  5. 5.

    See Trapp 2011, Sect. 6.4, for a discussion of efforts to define terrorism as a crime committed uniquely by State agents.

  6. 6.

    EWCA Crim 280 (22 February 2012). The Supreme Court granted permission to appeal on 13 June 2012 (www.supremecourt.gov.uk/docs/PTA-1206.pdf).

  7. 7.

    League of Nations, Convention for the Prevention and Punishment of Terrorism, 16 November 1937 (never entered into force), reprinted in Ferencz 1980.

  8. 8.

    League of Nations, Convention for the Creation of an International Criminal Court, 16 November 1937 (never entered into force), reprinted in Ferencz 1980.

  9. 9.

    League of Nations, Records of the Seventeenth Ordinary Session of the Assembly, Plenary Meetings (1936), reprinted in Friedlander 1979, Volume 1, p. 135. See also Hudson 1938, pp. 553–554.

  10. 10.

    Lambert 1990, p. 29.

  11. 11.

    Article 2(6) of the Draft Code adopted in 1954 defined the offence of terrorism as “[t]he undertaking or encouragement by the authorities of a State of terrorist activities in another State, or the toleration by the authorities of a State of organized activities calculated to carry out terrorist acts in another State.” Report of the International Law Commission covering the work of its sixth session, UN Doc. A/2693 (1954), 151.

  12. 12.

    See UNGA Resolution 36/106 (1981).

  13. 13.

    See generally Evans 1978.

  14. 14.

    There are currently 13 international conventions and protocols addressing various manifestations of terrorism (including hijackings, shipjackings, hostage takings, crimes against internationally protected persons, terrorist bombings and acts of nuclear terrorism). A full list of the international terrorism suppression conventions and protocols can be found at http://www.un.org/terrorism/instruments.shtml, and are referred to in this chapter as the ‘Terrorism Suppression Conventions’ or ‘TSCs’. This chapter will focus on the International Convention on the Suppression of Terrorist Bombings, 15 December 1997, UN Doc. A/RES/52/164 (1997) (‘Terrorist Bombing Convention’) and will also have regard for the International Convention against the Taking of Hostages, 17 December 1979, 1316 UNTS 205 (‘Hostages Convention’).

  15. 15.

    See Report of the International Law Commission on the work of its forty-fifth session, UN Doc. A/48/10 (1993), 28, [105]; Report of the International Law Commission on the work of its forty-eighth session, UN Doc. A/51/10 (1996), 16, [46]. See further Trapp 2011, Sect. 6.4.2.

  16. 16.

    See Report of the International Law Commission on the work of its forty-sixth session, UN Doc. A/49/10 (1994), Article 20(e) and Appendix II.

  17. 17.

    Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, done at Rome on 17 July 1998, UN Doc. A/CONF.183/10 (1998), Resolution E.

  18. 18.

    There are of course hybrid international / domestic courts which have been created purely for the purposes of prosecuting acts of terrorism, but these are exceptional. See for instance the Special Tribunal for Lebanon, http://www.stl-tsl.org/en.

  19. 19.

    Supra note 14 and accompanying text.

  20. 20.

    See Mills 2012.

  21. 21.

    See Article 75(2)(c), API; Article 3(1)(b), Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12 1949, 7 UNTS 287 (‘GCIV’).

  22. 22.

    Report of the Ad Hoc Committee on the drafting of an International Convention against the Taking of Hostages, Proposal by Lesotho, Tanzania, Algeria, Egypt, Libya and Nigeria, UN Doc. A/AC.188/L.5 (1978), [11]. See also Tanzania’s comment “[t]he oppressed peoples and colonial peoples who were held in perpetual bondage could not be stopped from taking their oppressors hostage, if that became inevitable.” Report of the Ad Hoc Committee on the drafting of an International Convention against the Taking of Hostages, UN Doc. A/32/39 (1977), Annex, [28–29]. See further Report of the Ad Hoc Committee on the drafting of an International Convention against the Taking of Hostages, UN Doc. A/33/39 (1978), 58.

  23. 23.

    Article 34 GCIV and Article 1(4) API.

  24. 24.

    Despite the shift in NAM’s objective, from legitimising hostage taking in the context of struggles for self-determination to shifting the source of condemnation, some commentators have nevertheless interpreted Article 12 of the Hostages Convention as legitimising hostage takings committed in furtherance of a struggle for self-determination. See Wardlaw 1982, p. 113; Aston 1982, p. 156.

  25. 25.

    Article 19(2), Terrorist Bombing Convention, supra note 14.

  26. 26.

    See Pictet 1958, p. 35; ICRC 1960, p. 51.

  27. 27.

    Article 43(1), API. The principal effect of the expanded definition of ‘armed forces’ was on combatant status, and therefore entitlement to prisoner of war treatment. On the compromise reached in regard to these issues during the negotiation of Protocol I, see Greenwood 2007, pp. 216–18.

  28. 28.

    ICRC 2005, Vol. I, Rule 4, 14–17. See also ICRC 2005, Vol. II, 86–100. Article 43 of API goes on to stipulate that ‘[s]uch armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict’. Article 44(3) of API further provides that ‘[w]hile all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war’. Article 44(3) of API strongly suggests that the mention of compliance with international humanitarian law in the Article 43 of the API definition of ‘armed forces’ is not an element of that definition, but rather a statement of the obligations by which such armed forces are bound.

  29. 29.

    See Report of the Ad Hoc Committee established by General Assembly Resolution 51/210 of 17 December 1996, UN Doc. A/65/37 (2010), [5].

  30. 30.

    Article 2(1), Terrorist Bombing Convention, supra note 14.

  31. 31.

    Article 147, GCIV.

  32. 32.

    Articles 50(4), 52(2), and 85(3)(b), API.

  33. 33.

    Article 147, GCIV; Articles 50(4), 52(2), and 85(3)(b), API.

  34. 34.

    See Article 51(2), API.

  35. 35.

    While bombings which are grave breaches of API can be prosecuted on a universal basis as a matter of right under customary international law, the question of whether States are obliged to exercise such jurisdiction (or to extradite or prosecute) absent a treaty obligation to that effect is still much debated. See Report of the International on the work of the sixty-fourth session, UN Doc. A/67/10 (2012), [211]: “It was suggested by some members that the main stumbling block in the way of the progress on the topic had been the absence of basic research on whether or not the [aut dedere aut judicare] obligation had attained customary law status.”

  36. 36.

    8 June 1977, 1125 UNTS 609 (‘APII’). While there is increasing evidence that states claim a right to prosecute breaches of IHL committed during NIACs (see Graditzky 1998), there is as of yet no customary international law obligation to exercise universal jurisdiction or to extradite or prosecute war crimes committed in the context of non-international armed conflicts. See Tadić (ICTY-94-1-A), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, [48]; Zegveld 2002, p. 175; Moir 2002, p. 235; Moir 2009.

  37. 37.

    Emphasis added, R v. Mohamed Gul, supra note 6, [6].

  38. 38.

    Terrorism Act 2000 c. 11, available at http://www.legislation.gov.uk/ukpga/2000/11.

  39. 39.

    R v. Mohamed Gul, supra note 6, [5].

  40. 40.

    R v. Mohamed Gul, supra note 6.

  41. 41.

    R v. Mohamed Gul, supra note 6, [19].

  42. 42.

    This element of the definition of terrorism is referred to as a ‘terrorist purpose’. Terrorist purpose is expressly excluded from the definition of an act of terrorism where that act of terrorism “involves the use of firearms or explosives”. Terrorism Act, supra note 39, s. 1(3).

  43. 43.

    Terrorism Act, supra note 39, s. 1(2).

  44. 44.

    The CA notes that “the definition [of terrorism] in Sect. 6.1 is clear. Those who attacked the military forces of a government or the Coalition forces in Afghanistan or Iraq with the requisite intention set out in the Act are terrorists.” R v. Mohammed Gul, supra note 6, [60].

  45. 45.

    Infra note 50.

  46. 46.

    R v. Mohammed Gul, supra note 6, [49].

  47. 47.

    R v. Mohammed Gul, supra note 6, [47].

  48. 48.

    Emphasis added. R v. Mohammed Gul, supra note 6, [49].

  49. 49.

    The UK signed the Terrorist Bombing Convention before adoption of the Terrorism Act 2000 (on 12 January 1998) and the Act clearly gives effect to obligations under the Terrorist Bombing Convention. In particular, s. 62 of the Terrorism Act (establishing universal jurisdiction over terrorist bombings) gives effect to obligations under Article 6(4) of the Terrorist Bombing Convention, and the definition of terrorism under the Act (which excludes the requirement of a terrorist purpose from the definition of terrorism as it applies to bombings, supra note 43) gives effect to the broader definition of terrorism (which has no terrorist purpose element) under the Terrorist Bombing Convention. See also the Home Secretary’s comments regarding ss. 60–61 of the Terrorism Act: “I want to emphasise that clauses 60 and 61 will enable the United Kingdom to ratify the United Nations convention on the suppression of terrorist bombings and, therefore, to meet our international obligations.” HC Deb 14 December 1999, vol. 341, col. 230.

  50. 50.

    See Salomon v. Commissioners of Customs and Excise [1967] 2 QB 116.

  51. 51.

    Fleck 2008, §312.

  52. 52.

    See Article 43(2), API, which reflects customary international law, to the effect that members of the armed forces are combatants and have “the right to participate directly in hostilities.”.

  53. 53.

    While there remains some academic controversy over the qualification of the conflicts in Afghanistan and Iraq as non-international, the Secretary of State’s certificate “was accepted by the appellant as highly persuasive”. R v. Mohammed Gul, supra note 6, [22]. The Court of Appeal’s provisional view was that the certificate was conclusive on the matter, but the appellant had also argued that the qualification of the conflict was a question of fact for the jury. As a result, the Court of Appeal held that “it was unnecessary […] to express a final view” on whether the certificate was conclusive or not, but proceeded with its decision on the basis of the Secretary of State’s non-international armed conflict designation. Ibid., [22–23].

  54. 54.

    8 June 1977, 1125 UNTS 609 (APII).

  55. 55.

    State parties to APII available at http://www.icrc.org/ihl.

  56. 56.

    Article 13(2), APII.

  57. 57.

    ICRC 2008, p. 28.

  58. 58.

    Emphasis added. ICRC 2010.

  59. 59.

    ICRC 2008, pp. 28–29.

  60. 60.

    UN Declaration on Friendly Relations, UNGA Resolution 2625 (1970).

  61. 61.

    R v. Mohammed Gul, supra note 6, [49].

  62. 62.

    Supra note 36.

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  1. Faculty of Laws, University College London, London, UK

    Kimberley N. Trapp

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  1. School of Law, University of Texas, Austin, Texas, USA

    Derek Jinks

  2. Law, University of Manchester, Manchester, Lancashire, United Kingdom

    Jackson N. Maogoto

  3. Dickson Poon School of Law, King's College London, London, United Kingdom

    Solon Solomon

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Trapp, K.N. (2014). The Interaction of the International Terrorism Suppression Regime and IHL in Domestic Criminal Prosecutions: The UK Experience. In: Jinks, D., Maogoto, J., Solomon, S. (eds) Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-008-4_6

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