And International Criminal Responsibility

TERRORISM, VICTIMS AND INTERNATIONAL CRIMINAL RESPONSIBILITY

Collective work realized by S.O.S. Attentats, S.O.S. Terrorism

Under the editorship of Ghislaine Doucet

With financial support from

the European Commission GROTIUS II Programme the French minister of Foreign Affairs the French Région Ile de France

in partnership with

The Irish Centre for Human Rights of Galway (National University of Ireland) & The International Institute of Higher Studies in Criminal Sciences of Syracuse (Italy)

Book available in English and French

Web versions in Spanish and Italian

www.sos-attentats.org

 Abstract  Table of Contents  Order Form  Forum

ABSTRACT

What are the new threats of terrorism nowadays? How to punish authors, silent partners and financers of terrorist acts, while respecting both the rights of victims as well as those of defenders? What is the real degree of cooperation against terrorism at the European and universal level? What are the statute and the role of victims in the various domestic legislation of the European Union Member States? Who is accountable for the decisions or lack of position that have led to the oblivion of victims and impunity of rulers? What kind of solution can be suggested, knowing that participation to trials is a major step for the reconstruction of victims? Those are some of the questions that 34 experts in International Relations or International Criminal Law are answering in this book. This common book being a follow up to the Livre Noir published by SOS Attentats, SOS Terrorism in 2002, in introduction to the International Symposium on Terrorism and International Criminal Responsibility, held in Paris, on February 5, 2002; comprises various points of view. Among them, SOS Attentats, SOS Terrorism assertion that "in front of terrorism globalization, we have to harmonize the judicial response"; which appears like one of the main objectives. An international crime such as terrorism cannot be kept out from the International Criminal Court jurisdiction. With this book, SOS Attentats, SOS Terrorism aims at providing European and International leaders, with possible solutions as well as reaching an effective recognition to victims’ rights, in full respect with the rule of law.

TABLE OF CONTENTS

PREFACE, Françoise Rudetzki

FOREWORD, M. Cherif Bassiouni

CHAPTER I : LAW IN FRONT OF TERRORISM

Section 1: Terrorism, current threats

 Risk, terrorism and society: new issues Patrick Lagadec, Director of Research at the Ecole Polytechnique (Paris). Member of the Governing Council of the European Crisis of the Management Academy  Terrorism and weapons of mass destruction Corinne Lepage, French attorney and member of the Paris Bar; Former Minister; Professor, Institut d'Etudes Politiques; President, CAP 21  Terrorism and religion: continuity and change in political violence Jean-François Mayer (Historian, Lecturer at the University of Fribourg (Switzerland), Editor of the web sites terrorisme.net & religioscope.info  Islam, secularism and terrorism: justifying the use of force in the name of Islam Abdoullah Cisse, Professor and Dean of Faculty of Law and Political Sciences, Dakar  The state of the Islamist terrorist threat Jean-François Ricard Senior Investigating Judge, Tribunal de grande instance de Paris

Section 2: Punishing terrorism, a challenge for the 21st century

1. Sanctions and International Cooperation

 European Cooperation Denise Sorasio, Director, Justice and Home Affairs - External Relations and Enlargement, Directorate General for Justice and Internal Affairs European Commission  The judicial cooperation within the European Union in the fight against Terrorism Frédéric Baab, Liaison Magistrate in Berlin, Attached to the French Ministry of Foreign Affairs  The United Nations and the fight against terrorism: legal and criminal aspects Jean-Paul Laborde, Chief, Terrorism Prevention Branch, United Nations Office on Drugs and Crime  Terrorism: legal framework in the African Union Roch Gnahoui David, Senior lecturer, holder of an Agregation of the Department of Law of the UCAD – Dakar, Senegal

2. Security Aspects and Human Rights: a fair balance between the Victim's Rights and the Defense's Rights

 What criminal procedure should govern terrorist offenses: ordinary or special rules? William A. Schabas & Clémentine Olivier, respectively Professor of Human Rights Law, National University of Ireland, Galway; Director, Irish Centre for Human Rights and Doctoral candidate, National University of Ireland, Galway; Irish Centre for Human Rights; Fellow of the Irish Research Council for the Humanities and Social Sciences  International recognition of Victims’ Rights Cherif Bassiouni Professor of Law, President of the International Human Rights Law Institute, De Paul University, College of Law - Chicago, United States, President of the International Institute of Higher Studies in Criminal Sciences - Syracuse, Italy, President of the International Association of Penal Law  French Nationals detained at Guantanamo Bay: legal black hole William Bourdon, French Attorney, member of the Paris Bar  Inter arma silent leges Eileen Servidio-Delabre, President and Professor, American Graduate School of International Relations and Diplomacy, ‘Maitre de conférences’ University of Cergy-Pontoise

CHAPTER II: PLACE OF TERRORISM AND OF THE VICTIMS IN THE CRIMINAL LEGISLATIONS OF THE EUROPEAN STATES AND IN THE INTERNATIONAL CRIMINAL JUSTICE

Section 1: Condition of the national criminal legislation of the European Union Member States

 Terrorism, putting European criminal procedure to the test Jean Pradel Professor Emeritus, Faculty of Law, University of Poitiers, France; President of the Association française de Droit Pénal  Legislation in France and the contribution of SOS Attentats Françoise Rudetzki, Founder and General Delegate, SOS Attentats, SOS Terrorism  Initiatives undertaken by the Paris Prosecutor’s Office in the fight against Terrorism Yves Bot, Public Prosecutor - Procureur de la République, Tribunal de grande instance de Paris - France  Italian Anti-Terrorist Legislation Giovanni Pasqua, Director of the International Institute of Higher Studies in Criminal Sciences - Syracuse, Italy  Spanish Anti-Terrorist Legislation José Luis de la Cuesta, Professor of Criminal Law, Director of the Basque Institute of Criminology; Deputy Secretary General of the International Association of Penal Law; Member of the Board of Directors of the International Society of Criminology  Victims’ rights in German criminal trials Stéphan Maigné, Member of the Berlin Bar - Germany  Irish Anti-Terrorist Legislation William A. Schabas & Clémentine Olivier, respectively Professor of Human Rights Law, National University of Ireland, Galway; Director, Irish Centre for Human Rights and Doctoral candidate, National University of Ireland, Galway; Irish Centre for Human Rights; Fellow of the Irish Research Council for the Humanities and Social Sciences  United Kingdom Anti-Terrorist Legislation William A. Schabas & Clémentine Olivier, respectively Professor of Human Rights Law, National University of Ireland, Galway; Director, Irish Centre for Human Rights and Doctoral candidate, National University of Ireland, Galway; Irish Centre for Human Rights; Fellow of the Irish Research Council for the Humanities and Social Sciences  The state of anti-Terrorist legislation in the other Member States of the European Union (Austria, Belgium, Denmark, Finland, Greece, Luxembourg, Netherlands, Portugal, Sweden) William A. Schabas & Clémentine Olivier, respectively Professor of Human Rights Law, National University of Ireland, Galway; Director, Irish Centre for Human Rights and Doctoral candidate, National University of Ireland, Galway; Irish Centre for Human Rights; Fellow of the Irish Research Council for the Humanities and Social Sciences

Section 2: The trial: the victims’ essential reparation

 Testimonies of Victims  Terrorism and Victims’ Rights Robert Cario, Professor of Criminology, Co-Director of the Jean Pinatel Unit for Comparative Criminology, University of Pau and Pays de l’Adour - France  Victims’ access to the International Criminal Justice System Claude Jorda Judge, International Criminal Court; Former President of the International Criminal Tribunal for the former Yugoslavia

CHAPTER III: INTERNATIONAL CRIMINAL RESPONSIBILITY FOR TERRORISM

Section 1: International criminal law: between evolution and hesitations

1. Terrorism: which qualification?

 Terrorism and Resistance Stéphane Hessel, Ambassador of France  Is terrorism a crime against Humanity? William A. Schabas & Clémentine Olivier, respectively Professor of Human Rights Law, National University of Ireland, Galway; Director, Irish Centre for Human Rights and Doctoral candidate, National University of Ireland, Galway; Irish Centre for Human Rights; Fellow of the Irish Research Council for the Humanities and Social Sciences  Terrorism: search for a definition or liberticidal drifting? Ghislaine Doucet, Doctor of Law, International Law Advisor

2. Criminal Responsibility and Immunity for Rulers: between Justice and Diplomacy

 The Responsibility of Government Leaders for International Crimes of the State Alain Pellet, Professor, University of Paris X-Nanterre - France; Member and former Chairman of the International Law Commission of the United Nations  The contribution of ad hoc International Tribunals to the prosecution of terrorism Cécile Tournaye, Legal Officer with the International Criminal Tribunal for the former Yugoslavia  The issue of immunity of foreign Heads of State in light of the March 13, 2001 decision of the French Cour de Cassation and the February 14, 2002 decision of the International Court of Justice Eric David, Professor, Université Libre de Bruxelles - Belgium  Customary international law: a reappraisal? Emmanuel Decaux, Professor, Panthéon-Assas Paris II University - France  The principle of Universal Jurisdiction in light of the Belgian experience: the Pendulum Swings Back Damien Vandermeersch, Deputy President and Investigation Judge, Tribunal de première instance, Lecturer at Louvain Catholic University - Belgium  Immunity and Impunity: separated by a mere consonant? Criminal Immunity of Heads of State: between custom and change Thierry Cretin, Public prosecutor seconded to the European Commission

Section 2: How to answer terrorism?

 A criminological and victimological approach to terrorism Reynald Ottenhof, Professor Emeritus; Vice President of the International Association of Penal Law; Vice President of the International Institute of Higher Studies in Criminal Sciences - Syracuse, Italy  Terrorism and international criminal responsibility Ahmedou Ould Abdallah, Special representative of the U.N. Secretary General for West Africa  War on terrorism, its legal foundations and thoughts on the road ahead Yves Sandoz, Member of the ICRC, Lecturer at Geneva and Fribourg Universities - Switzerland  International Humanitarian Law and the War on Terrorism Michel Veuthey, Doctor of Law, Adjunct Professor, Fordham University School of Law; Academic Director, Center for International Health and Cooperation - United States

CONCLUSION  The need for a universal criminal law response to terrorism Ghislaine Doucet, Doctor of Law, International Law Advisor

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Quelle est, selon vous, le principal intérêt de ce livre ?

- le point sur les législations pénales internes des Etats membres de l'Union européenne ? - la présentation de ce livre en 4 langues ? - autres ……

Vos réactions sur :

- terrorisme et résistance - légitimité du principe d'immunité des dirigeants en exercice ? - terrorisme : crime contre l'humanité ? - terrorisme, nouvelle forme de guerre ?

Que pensez-vous de : - l'harmonisation des législations pénales européennes en matière de terrorisme ? - l'idée d'inclure le crime de terrorisme dans la compétence de la cour pénale internationale ? - l'harmonisation du statut des victimes du terrorisme sur le plan international ? - l'application pleine du principe de compétence universelle en matière de terrorisme ? - la place des victimes dans le procès pénal ?

PREFACE

Françoise Rudetzki

Founder and General Delegate of S.O.S. Attentats, SOS Terrorism

In every criminal proceeding initiated in France by SOS Attentats on their behalf, the victims of terrorism have been reminded that the obstacles they face are still too numerous - in spite of apparently good intentions - and that such obstacles not only slow the wheels of justice, but also allow the guilty to go free.

Diplomatic and strategic hesitation on the part of States often leads to failure to enforce the sentences that are handed down, as in the case of the six Libyan senior civil servants behind the attack carried out on September 19, 1989 on the UTA DC 10 flight, who were tried and convicted by the French Cour d'assises. This kind of balking on the part of policymakers, combined with judicial timidity, also explains the ruling issued by the French Cour de cassation on March 13, 2001, in the suit filed by SOS Attentats against Colonel Qadhafi. In its decision, the Court held that "le crime dénoncé, qu’elle qu’en soit la gravité ne relève pas des exceptions au principe de l’immunité de juridiction des chefs d’Etat étrangers en exercice1 ". So that justice would be done for the victims, and with the aim of setting an example, SOS Attentats applied to the European Court of Human Rights, claiming a denial of justice. At the same time, the organization provided the lawyers of seven American families whose relatives lost their lives in this attack with the entire French trial record, enabling them to file suit against Libya in Washington D.C. federal district Court. This judgment also inspired SOS Attentats to solicit the opinions of internally recognized experts. Compiled in the Livre Noir, their contributions served as the basis for an international symposium held at the French Assemblée Nationale on February 5, 2002, organized by SOS Attentats. Since that event, the war on terrorism has become a top priority for decision-makers at the international, national and regional levels. Often showing little regard for human rights the current battle continues to deprive victims of vital recognition through the Courts, excluding them from a debate in which they nonetheless occupy a central role. Admittedly, the creation of the International Criminal Court (ICC) must be viewed as a significant step forward. The ICC Statute unequivocally denies immunity to the perpetrators, accomplices and instigators of the international crimes within its purview, regardless of their position or title. But it also excludes terrorist crimes. Is this a double standard? Should terrorism continue to be viewed in isolation from other international crimes? Can its perpetrators be denied basic human rights or, on the contrary, bask in total immunity, depending only on who they are?

1 "However, in so ruling, despite the fact that, regardless of how serious it is, under international law the offense charged is not one of the exceptions to the rule that incumbent foreign Heads of State are immune from jurisdiction" ( translation, Aspen Traduction) SOS Attentats wanted to continue the debate that began in 2001 and has worked hard to establish genuine legal cooperation between all States, so that measures aimed at preventing and punishing terrorism can be aligned and greater harmony can be achieved between systems designed to compensate victims of all kinds, whoever and wherever they may be. In cooperation with the European Commission, which supported SOS Attentats in the project, the organization solicited 38 original contributions from 34 experts. This group effort reflects SOS Attentats’ ongoing commitment to justice, which must never be confused with a desire for vengeance. In its work, SOS Attentats respects all of the rights and principles that apply in the area of human rights. Its sole objective is to ensure that States live up to their duty to prevent and punish terrorism.

SOS Attentats was recently granted a consultative status at the UN’s Economic and Social Council, a position that will enable the organization to present the views of all victims of terrorism at an international level. Our aim is to have the crime of terrorism added to the ICC’s jurisdiction, the status and compensation of victims harmonized, and to ensure that every single one of them can play his or her role in criminal proceedings.

Terrorism has gone global. To respond effectively, we need to harmonize international law and clarify all the rules of criminal liability, without exception.

FOREWORD

M. Cherif Bassiouni

Professor of Law, President of the International Human Rights Law Institute (Chicago, USA) President of the International Association of Penal Law (Paris, France) President of the International Institute of Higher Studies in Criminal Sciences (Syracuse, Italy)

Terrorism is a strategy of violence that targets innocent people in the pursuit of political aims. The strategy may be carried out by individuals, groups of individuals, or representatives of the State. It may target public or private individuals and property, with the immediate aim of creating a climate of terror in civil society and the ultimate aim of demonstrating that the State is incapable of protecting civilians and maintaining law and order.

Whether the strategy is adopted by the State or by individuals, acting of their own accord or on behalf of a group of individuals, civilian populations – or certain elements thereof – generally suffer the brunt of the impact. Those who resort to this type of violence, often indiscriminately, hardly give a moment’s thought to the consequences of their act. The reason they have decided to use violence is justification enough in their view. The act itself, like its consequences, is confounded with values and aims that its perpetrators consider more important than the harm and loss it causes. In a way, this is akin to the perverse reasoning whereby the end justifies the means – a worldview in which human consequences simply do not enter into the balance. It is precisely for this reason that our focus is on protecting the innocent. In all its major branches and throughout its history, law has been a testament to the fact that all civilizations founded on the notion of a state of laws have endeavored to base responsibility on the act and its consequences rather than on its political justification. It is from this perspective, therefore, that we must measure the nature of the crime, even if the perpetrator justifies the act by appealing to higher values, for the latter could not survive the state of anarchy that would result from this crime rationale. Consequently, our civilization must refuse the idea of violence against the innocent, in all shapes and forms and regardless of who commits such acts, unless we want to fall into a state of barbarism, where brute force prevails over human values. More than anything else, the battle against terrorism is an affirmation of human values, which are protected by rules that govern all conflicts, whether they be international, internal, or merely represent a struggle for power. The challenge we face today is multi-faceted. It encompasses the duties and obligations that stem from the limitations that humanitarian law places on international, regional and internal armed conflict of all kinds. This challenge, as well as the international duties related to safeguarding human rights, concerns the means employed by those intent on toppling a regime from the inside as well as those who seek to maintain power within society. It is the law, as a national and international institution of law and order, which must rise to this challenge by establishing effective means of prevention and coercion, while respecting the rule of law. This work raises a number of these issues by examining the many facets of this complex issue, including the legal definition of the crimes grouped under the term terrorism, the resources used by those who resort to terrorism to meet political ends, and the methods used by organizations charged with protecting civilians against those who target them through acts of terror. In addition, these essays reflect the difficult tradeoff between prevention and punishment, and between abiding by the rule of law and obtaining results by stepping outside of it. Finally, the question of victims is ever present. How should they be treated, what are their rights, how can we alleviate - and to some extent compensate them for - their suffering?

In this age of globalization, the broader backdrop against which these questions must be viewed is more likely international than domestic. Consequently, new elements of international law are brought to the fore: barring immunity claims for Heads of State and other forms of immunity; the recognition and enforcement of the notion of universal jurisdiction; above all, the set of obligations derived from the maxim aut dedere aut judicare. Like other forms of international crime, terrorism can no longer benefit from the impunity provided and maintained by certain States in the name of realpolitik. Following in the footsteps of civil society, the international community is demanding an end to the impunity enjoyed by those who have committed the most heinous crimes of the twentieth century. The verdict of the international community was handed down when World War Two ended: “plus jamais ça” (“Never again”). Unfortunately, this promise has never been kept. It is our duty to do so, not only to show our support for the victims of international crimes, but also out of respect for our own humanity and for the sake of those who could, in the future, fall victim to terrorism because we failed to do enough to reduce the threat. If we forget the mistakes of the past, we are - alas - condemned to repeat them.

This publication is intended to serve as an individual and a universal reminder. I would like to conclude by expressing my gratitude to SOS Attentats, for the significant efforts it continues to make in defense of victims.