Abstract
The answer of international law to terrorism has been, for a long time, very weak. Consequently, until recently, neither interest nor attention has been paid by the international community to victims of terrorism. Proof of this is the fact that until the 1993 Vienna World Conference on Human Rights the relationship between terrorism and human rights did not attract the attention of the United Nations. Since 1994, the UN General Assembly’s resolutions concerning terrorism appear under the title “human rights and terrorism.” At the same time, the resolutions adopted on the matter are characterized by the affirmation “that the most essential and basic human right is the right to life”, as well as General Assembly’s concern “at the gross violations of human rights perpetrated by terrorist groups.” They also declare the General Assembly’s solidarity with victims of terrorism and request the Secretary-General of the UN to seek the views of Member States on the possible establishment of a United Nations voluntary fund for victims of terrorism as well as the ways and means to rehabilitate the victims of terrorism and to reintegrate them into society.
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Notes
- 1.
From 1972 to 1991, the General Assembly examined this matter under the title: “Measures to prevent international terrorism which endangers or takes innocent human lives or jeopardizes fundamental freedoms and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes.”
- 2.
The starting point was A/RES/49/185 of 23 December 1994.
- 3.
There are a lot of General Assembly resolutions qualifying terrorism as a violation of human rights, see A/RES/48/122 of 20 December 1993; A/RES/49/185 of 23 December 1994; A/RES/50/186 of 22 December 1995; A/RES/52/133 of 12 December 1997; A/RES/54/164 of 17 December 1999 and A/RES/56/160 of 19 February 2001. See Fernández de Casadevante Romani and Jiménez García (2005), 116 et seq.
- 4.
The UN Commission on Human Rights has also qualified terrorism as a violation of human rights (see resolutions 1994/46, 1995/43, 1996/47, 1997/42, 1998/47, 1999/27, 2000/30, 2001/37, 2002/35 and 2003/37). Also, the Sub-Commission on the Promotion and Protection of Human Rights (see resolutions 1994/18, 1996/20 and 1997/39). In 1993, the Sub-Commission had even condemned “the violations of human rights by the terrorist groups Sendero Luminoso and Movimiento Revolucionario Tupac Amaru” in Peru (resolution 1993/23).
- 5.
Doc. E/CN.4/Sub.2/2001/31 of 27 June 2001, 46. The Special Rapporteur drafted a preliminary report (Doc. E/CN.4/Sub.2/1999/27 of 7 June 1999), a progress report (Doc. E/CN.4/Sub.2/2001/31 of 27 June 2001), a second progress report (Doc. E/CN.4/Sub.2/2002/35 of 17 July 2002), an additional progress report with two addenda (Doc. E/CN.4/Sub.2/2003/WP.1 and Add.1 and 2 of 8 August 2003) and a final report (Doc. E/CN.4/Sub.2/2004/40 of 25 June 2004). In fact, a lot of rights are infringed by terrorism: the right to liberty and security, the right to family life, the right to movement, the right to information, the right to a fair trial, etc.
- 6.
Doc. E/CN.4/2002/18 of 27 February 2002, paras 3 and 4.
- 7.
Ibid., paras 2 and 5.
- 8.
Cf. P. Kirsch, “Terrorisme, crimes contre l’humanité et Cour pénale internationale”, in: SOS Attentats, see note 6, 111.
- 9.
The High Commissioner on Human Rights states that terrorism is a crime against humanity in para. 4 of his Report to the General Assembly according to Resolution 48/142 entitled “Human rights: a unity framework report” (Doc. E/CN.4/2002/18 of 27 February 2002).
- 10.
This is the case, for example, when the crime of terrorism has been amnestied or has been prescribed according to domestic law and the prescription has taken place as a consequence of the passivity of the State to investigate the crime or in the instruction of the indictment. Impunity also takes place, e.g. in case of failed States. The causes are many and all lead to impunity.
- 11.
See Bou Franch and Fernández de Casadevante Romani (2009).
- 12.
For example, in resolutions 2002/35 and 2004/44 about “Human Rights and Terrorism” and in resolutions 2003/68 and 2004/87 about “Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.”
- 13.
So, for example, in resolutions 2002/35 and 2004/44 entitled “Human Rights and Terrorism” and in resolutions 2003/68 and 2004/87 about “Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.” see ut supra note 4.
- 14.
Ibid.
- 15.
The attention of the Council of Europe to victims of terrorism is specified in its Guidelines on the Protection of Victims of Terrorist Acts adopted by the Committee of Ministers on 2 March 2005. It contains measures and services that are granted independent of the identification, arrest, prosecution or conviction of the perpetrator of the terrorist act. They concern emergency and continuing assistance, investigation and prosecution, effective access to law and to justice, administration of justice, compensation, protection of the private and family life of victims of terrorist acts, protection of the dignity and the security of victims of terrorist acts, information for victims of terrorist acts, specific training for persons responsible for assisting victims of terrorist acts and the possibility for states to increase protection of this category of victims (Council of Europe, Committee of Ministers-CM/Del/Dec(2005)917).
- 16.
Contrary to the silence of the UN with regard to victims of terrorism, it has frequently—and correctly—pointed out the obligation of states to respect human rights when combating terrorism. In this line, the Commission on Human Rights on 21 April 2005 appointed, for a period of 3 years, a Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while countering terrorism. This shows a clear and concrete endorsement by Member States of the need to make the honouring of human rights commitments an integral part of the international fight against terrorism, http://www.un.org/spanish/terrorism/terrorismhr.shtml.
- 17.
See ut supra page 11, note 22.
- 18.
See resolution 2003/37 of the Commission on Human Rights adopted on 23 April 2003 and related to the establishing of an International Fund to compensate victims of terrorist acts.
- 19.
Without the intervention of the ICC, most victims of terrorism would lack, de facto—as is the situation today—their right to justice because its effective exercise depends upon the correct functioning of state structures and presently many states affected by terrorism are either failed states or states in which the effective exercise of this right is impossible because of the weakness of the existent state structures. In such conditions, the right to redress is also impossible. As a consequence, many victims of terrorism lack basic human rights.
- 20.
Among them, the effective right to justice or the right to redress. This is the case of situations described in the preceding footnote. They all lead, de facto, to deny victims of terrorism their effective right to justice and, as a consequence, their right to redress.
- 21.
Regarding this question, See Bou Franch and Fernández de Casadevante Romani (2009).
- 22.
Vid. UN General Assembly, Promotion and protection of human rights and fundamental freedoms while countering terrorism, 18 August 2011, (A/66/310, para. 20, 5)
- 23.
Ibid., 6.
- 24.
Ibid.
- 25.
Ibid.
- 26.
Ibid., para. 21, 6.
- 27.
Ibid.
- 28.
Ibid., para. 23, 7.
- 29.
- 30.
- 31.
UN General Assembly, Promotion and protection of human rights and fundamental freedoms while countering terrorism, op. cit., para. 24, 7.
- 32.
Ibid., para. 24, 7. Italics are mine.
- 33.
Ibid., para. 25, 7.
- 34.
OJEC L 164 of 22 June 2002.
- 35.
Article 10 para. 1, ibid.
- 36.
Council of Europe, Committee of Ministers-CM/Del/Dec(2005) 917.
- 37.
These persons are considered victims for the purposes of these Guidelines. The Guidelines make option for a broaden concept of victim.
- 38.
OJEU L 164 of 2 June 2002.
- 39.
OJEU L 330 of 9 December 2008.
- 40.
Regarding this question, see Bou Franch and Fernández de Casadevante Romani (2009).
- 41.
This aspect is also underlined by the Report of the High Level Panel on Threats, Challenges and Change. Again, it was stated that practically all forms of terrorism are prohibited by the thirteen international conventions on terrorism actually existent as well as by customary international law, the Geneva Conventions or the ICC Statute, see Press Release SG/SM/8891 of 23 September 2003.
- 42.
In this regard, see arts 27, 33 and 34 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949. As an example, article 33 states: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is prohibited. Reprisals against protected persons and their property are prohibited.” See also article 51 para. 2 of Additional Protocol I to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts of 8 June 1977, and arts 4 and 13 of Additional Protocol II to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non International Armed Conflicts of 8 June 1977.
- 43.
So, for example, article 51 para. 2 of Protocol I, which states, “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” Also, article 13 para. 2 of Protocol II.
- 44.
I.C.J. Reports 1949, 22. This statement was recalled in the Case concerning Military and Paramilitary Activities in and against Nicaragua, Merits, ICJ Reports 1986, 114, para. 218.
- 45.
Security Council Resolution S/RES/1377 (2001) of 12 November 2001 obliges states to rapidly ratify these treaties.
- 46.
- 47.
International legal doctrine and jurisprudence agree on this matter. In this line also, the president of the ICC, ut supra p. 62 et seq. In Spain, the non-prescription of crimes of terrorism has been recently ruled by a bill (Ley Orgánica) modifying the Criminal Code. It concerns terrorist offences with result of death or serious injuries.
- 48.
Kirsch, see note 8 of the present chapter. In practice, only some acts of terrorism are excluded from the jurisdiction of the ICC, e.g. those committed in time of peace which do not fulfil the constitutive elements of the qualification of a crime against humanity. Doucet (2005), 271 et seq.
- 49.
See Doucet (2005).
- 50.
Article 24 states: “1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf”. Article 25 adds: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”.
- 51.
In the opinion of L.M. Hinojosa Martínez, this definition is not technically precise, see his work Hinojosa Martínez (2008), 604.
- 52.
Even though there is no express reference to military personnel, it can be included since resort to terrorism is prohibited in International Humanitarian Law, see ut supra p. 69 et seq. See also article 4 para. 2 lit. d of Additional Protocol II, according to which acts of terrorism against “all persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted”, are and shall remain prohibited at any time and in any place whatsoever.
- 53.
Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons of 14 December 1973; International Convention against the Taking of Hostages of 17 December 1979; Convention on the Physical Protection of Nuclear Material of 3 March 1980; 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 Aviation of 24 February 1988; Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf of 10 March 1988 and its Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf of 14 October 2005; Convention on the Marking of Plastic Explosives for the Purpose of Detection of 1 March 1991; International Convention for the Suppression of Terrorist Bombings of 15 December 1997; International Convention for the Suppression of the Financing of Terrorism of 9 December 1999; International Convention for the Suppression of Acts of Nuclear Terrorism of 13 April 2005.
- 54.
That constitutes the subject of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971, UNTS Vol. 974 No. 14118.
- 55.
That constitutes the subject of the Convention on the Marking of Plastic Explosives for the Purpose of Detection, see note 175. Its object is to control and limit the use of unmarked and undetectable plastic explosives (negotiated in the aftermath of the 1988 Pan Am flight 103 bombing). With this aim, States Parties are obliged within their respective territories to ensure effective control over “unmarked” plastic explosives.
- 56.
See article 2 para. 1 lit. a of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons of 14 December1973, UNTS Vol. 1035 No. 15410.
- 57.
Article 1 para. 1 of the International Convention against the Taking of Hostages of 17 December 1979, UNTS Vol. 1316 No. 21931.
- 58.
Article 2 para. 1 of the International Convention for the Suppression of Terrorist Bombings of 15 December 1997, UNTS Vol. 2149 No. 37517.
- 59.
Article 2 para. 1 of the International Convention for the Suppression of Acts of Nuclear Terrorism of 13 April 2005. This Convention includes as an offence the threat to commit the offences quoted here (see article 2 para. 2).
- 60.
Article 7 para. 1 of the Convention on the Physical Protection of Nuclear Material of 3 March 1980, UNTS Vol. 1456 No. 24631.
- 61.
Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons of 14 December 1973; International Convention against the Taking of Hostages of 17 December 1979; Convention on the Physical Protection of Nuclear Material of 3 March 1980; Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation of 24 February 1988, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 10 March 1988; Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf of 10 March 1988 and its Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf of 14 October 2005; International Convention for the Suppression of Terrorist Bombings of 15 December 1997.
- 62.
Article 2 para. 1 of the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999, UNTS Vol. 2178 No. 38349.
- 63.
See article 3 of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 10 March 1988, UNTS Vol. 1678 No. 29004.
- 64.
See the Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 14 October 2005.
- 65.
See article 2 para. 1 of the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf of 14 October 2005, UNTS Vol. 1678 No. 29004.
- 66.
Cf. Hinojosa Martínez (2008), 60.
- 67.
Cf. Council of Europe, The Commissioner for Human Rights, Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to Spain and the Basque Country 5–8 February 2001 for the Committee of Ministers and the Parliamentary Assembly, Strasbourg, 9 March 2001, CommDH (2001) 2. In this respect, see Fernández de Casadevante Romani (2006). Also, Lozano Contreras (2001–2002), 17 et seq.
- 68.
According to article 1 of the Council Framework Decision 2002/475/JHA, “Each Member State shall take the necessary measures to ensure that the intentional acts referred to below in points (a) to (i), as defined as offences under national law, …”.
- 69.
Article 4 also envisages the fact of inciting or aiding or abetting an offence referred to in article 1 para. 1 and in articles 2 or 3.
- 70.
From the perspective of Spain, some criminal acts present in the terrorist acts of the Basque terrorist nationalist organization ETA remain outside this catalogue. This is the case with political prosecution (which can lead to exile). Extortion is covered by the revision by the Council Framework Decision 2008/919/JHA of 28 November 2008.
- 71.
Paragraph 7 of its preamble, OJEU L 330 of 9 December 2008.
- 72.
See Article 1.2 in https://www.unodc.org.
- 73.
Article 1 defines both“terrorist act”and“terrorist offence”ibid.
- 74.
See Article 1.2, ibid.
- 75.
See Article 1.3 of the Convention. ibid.
- 76.
See Article 1 of both treaties. ibid.
- 77.
It does not contain a definition of terrorism and makes a remission to the international treaties on terrorism.
- 78.
In Article 1.e). In Article 1.f), it also envisages the attempt and the conspiracy to commit such acts. ibid.
- 79.
They are annexed to Security Council Resolution S/RES/1566 (2004) of 8 October 2004.
- 80.
The same is the case of the Security Council Resolution 1566 (2004) (S/RES/1566), of Council Framework Decisions (2002/475/JHA) of 13 June 2002 and (2008/919/JHA) of 28 November 2008, and of the international treaties existing in the different international regional systems.
- 81.
The Convention of the Organization of the Islamic Conference on combating international terrorism of the 1st July 1999, adopted in the frame of the Islamic Conference Organization; the Regional Convention on Suppression of Terrorism of 4 November 1987, adopted in the frame of the South Asian Association for Regional Cooperation (SAARC); the ASEAN Convention on Counter Terrorism of 13 January 2007, in the frame of the Association of South East Asian Nations (ASEAN) and the Inter-American Convention Against Terrorism, of 2002, adopted in the frame of the American regional system.
- 82.
Because all these norms require that states take the necessary measures to ensure that the international acts referred into become punishable as criminal offences in domestic law.
- 83.
European Commission, Brussels 18.5.2011, SEC(2011) 580 final. About this Proposal for a Directive cf.Pemberton and Groenhuijsen.
- 84.
OJ, L 82, of 22 March 2001.
- 85.
- 86.
Its title is clear: Proposal for a Directive of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime.
- 87.
- 88.
European Commission, Brussels 18.5.2011, SEC(2011) 275 final, 17.
- 89.
Article 18 only considers as vulnerable victims “due to their personal characteristics” the following: Children and Persons with disabilities. On point 2 it states: “For the purposes of this Directive, the following categories of victims are considered to be vulnerable due to the nature or type of crime to which they have fallen victim: (a) Victims of sexual violence; (b) Victims of human trafficking.”
- 90.
General character because it only envisages victims of crime. That is, all kinds of crime.
- 91.
European Commission, Brussels 18.5.2011, SEC(2011) 275 final, 4.
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de Casadevante Romani, C.F. (2012). Special Reference to the Victims of Terrorism. In: International Law of Victims. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-28140-2_3
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