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The Abu Sayyaf Attacks and the Bali Bombing

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The Abu Sayyaf Attacks and the Bali Bombing Washington International Law Journal Volume 12 Number 3 5-1-2003 Prosecuting International Terrorists: The Abu Sayyaf Attacks and the Bali Bombing Sarah E. Tilstra Follow this and additional works at: https://digitalcommons.law.uw.edu/wilj Part of the International Law Commons Recommended Citation Sarah E. Tilstra, Comment, Prosecuting International Terrorists: The Abu Sayyaf Attacks and the Bali Bombing, 12 Pac. Rim L & Pol'y J. 835 (2003). Available at: https://digitalcommons.law.uw.edu/wilj/vol12/iss3/10 This Comment is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington International Law Journal by an authorized editor of UW Law Digital Commons. For more information, please contact [email protected]. Copyright @ 2003 Pacific Rim Law & Policy Journal Association PROSECUTING INTERNATIONAL TERRORISTS: THE ABU SAYYAF ATTACKS AND THE BALI BOMBING t Sarah E. Tilstra Abstract: In May 2001, three Americans were kidnapped and held hostage by members of Abu Sayyaf, a guerilla group attempting to establish an Islamic state in the southern Philippines. Two of those Americans were later killed. In October 2002, a nightclub on the Indonesian resort island of Bali was destroyed in an explosion, killing over 200 people, 88 of whom were Australians. Members of the Islamic group Jemaah Islamiyah are suspected of masterminding the attack. The Abu Sayyaf suspects have yet to be caught, but Indonesia is preparing to prosecute some of the Bali bombing suspects beginning in May 2003. Using these two attacks as illustrations, this Comment explores the various options available for prosecution of individuals suspected of committing terrorist attacks: extradition, home prosecution, abduction or seizure, United Nations sanctions, the International Court of Justice, and the International Criminal Court. The viability of each option with respect to international terrorism situations depends on certain factors weighing in favor and against the use of each option. These factors create a multi-step balancing test to determine the best method of prosecution for suspects in future, similar attacks. The balancing test is then applied to the Abu Sayyaf and Bali situations. This Comment concludes that in situations similar to the Abu Sayyaf attacks, home prosecution is best for several reasons: the relationship between the countries involved, the relative strength of the Philippine judiciary, and the relatively low global interest in the crime. However, the best forum for prosecution of suspects involved in attacks similar to the Bali bombing is the International Criminal Court. This conclusion is based on the high level of international interest, the apparent instability of the Indonesian justice system, and the fact that the attacks are systematically directed towards a specific group of people. I. INTRODUCTION In May 2001, members of Abu Sayyaf, an Islamic group fighting to establish an Islamic state on the southern Philippine island of Mindanao,' kidnapped seventeen Filipinos and three Americans from a resort in the Philippines. 2 One of the Americans, Guillermo Sobero, was beheaded by Abu Sayyaf members in June 2001.3 The other two Americans, missionaries t J.D., expected 2004. The author wishes to thank Professor Joan Fitzpatrick and the Editorial Staff of the Pacific Rim Law & Policy Journal for their valuable assistance. The International Policy Institute for Counter-Terrorism, Abu Sayyaf Group (ASG), at http://www.ict.org.il/inter-ter/orgdet.cfm?orgid=3 (last visited Apr. 29, 2003) [hereinafter Policy Institute for Counter-Terrorism]. 2 U.S. DEPT. OF STATE, PATTERNS OF GLOBAL TERRORISM 2001, 88 (2002), available at http://www.state.gov/documents/organization/i 0319.pdf (last visited Apr. 29, 2003) [hereinafter PATTERNS OF GLOBAL TERRORISM]. 3 Guerillas Confirm Death, DAILY TELEGRAPH (Sydney), June 27, 2001, at 41, available at LEXIS, News and Business, Major World Publications File. PACIFIC RIM LAW & POLICY JOURNAL VOL. 12 No. 3 Martin and Gracia Burnham, were held hostage until June 2002, when Martin Burnham and others were killed in a military rescue operation. Only Gracia Burnham survived.5 On October 12, 2002, a nightclub on the Indonesian island of Bali was destroyed by a bomb, killing 202 people, 88 of whom were Australians.6 Jemaah Islamiyah, an Indonesian Islamist movement fighting to establish an Islamic state encompassing Indonesia, Malaysia, Singapore, and the southern Philippines, 7 is suspected of planning and executing the attack.8 Since September 11, 2001, the United States and other western countries have strengthened security at home. 9 However, as these two attacks indicate, citizens of western countries are also in danger of attacks leveled against them, and western interests,' 0 abroad. In the last several years, there have been many such attacks on western interests, making these attacks equally worthy of attention.'" Terrorist attacks like these present jurisdictional issues regarding where and by whom suspects should be tried. The suspects are nationals of the states where the attacks occurred,' 2 but the victims of the attacks are 4 For a newspaper article describing the event, see Richard C. Paddock & Al Jacinto, U.S. Hostage Dies in Shootout" Philippine Troops Rescue Wife from Rebels, Cmii. TRIB., June 8, 2002, at 1, available at LEXIS, News and Business, Major World Publications File. 5 Id. 6 Darren Goodsir, Bali Suspects May Face Separate Trials, SYDNEY MORNING HERALD, Feb. 24, 2003, availableat LEXIS, News and Business, Major World Publications File. 7 PATTERNS OF GLOBAL TERRORISM, supra note 2, at 122. 8 See, e.g., Jakarta Arrests 'Singapore J! Head,' CNN ONLINE, Feb. 4, 2003, at http://www.cnn.com/2003/WOPRLD/asiapcf/southeast/02/03/indonesia.singapore/index.htm. On December 14, 2001, the United Kingdom enacted the Anti-Terrorism, Crime and Security Act 2001. Anti-Terrorism, Crime and Security Act 2001, c. 24 (Eng.), availableat http://www.hnso.gov.uk/acts/acts200l/20010024.htm (last visited Apr. 29, 2003). The explanatory notes from the act indicate that it was passed in light of the events of September 11, 2001. Explanatory Notes to Anti-Terrorism, Crime and Security Act 2001, c. 24 (Eng.) (prepared Feb. 20, 2002), available at http://www.hmso.gov.uk/acts/en/2001en24.htm (last visited Apr. 29, 2003). Australia introduced a package of counter-terrorism legislation in March 2002, including the Security Legislation Amendment (Terrorism) Act 2002, No. 65, available at http://scaletext.law.gov.au/html/comact/l 1/6499/top.htm (last visited Apr. 29, 2003). " "Western interests" is used to mean westerners themselves, buildings or other fixtures built by or for westerners, places westerners tend to frequent, etc. Attacks on western interests can occur when westerners are the intended victims, regardless of whether they were the actual victims of the attack. 11 Some examples of these attacks include: the al-Qaida attacks on the US.S. Cole in Yemen in 2000 and on the U.S. embassies in Kenya and Tanzania in 1998; the Islamic Movement of Uzbekistan's kidnapping of four U.S. citizens in 2000; the Revolutionary Organization 17 November's murder of a British official in 2000; the Revolutionary Nuclei's three bombings of U.S. interests in Greece in 1999 and 2000; the Revolutionary People's Liberation Party/Front attempted attack on a U.S. consulate in Turkey; the AI-Jihad attempted attack on the U.S. embassy in Albania in 1998; and the AI-Gama'a al-lslamiyya killings of fifty-eight foreign tourists in Egypt in 1997. See PATTERNS OF GLOBAL TERRORISM, supra note 2, at app. B. Although some of the suspects of the Bali bombing are Malaysian, this Comment focuses solely on the Indonesian suspects. MAY 2003 PROSECUTING INTERNATIONAL TERRORISTS individuals of another nationality. In these cases, more than one state has an interest in seeing suspects of such attacks brought to justice. Several different options are available for resolving potential conflicts: extradition, home prosecution,' 3 abduction or seizure, United Nations ("UN") sanctions, the International Court of Justice ("ICJ"), or the International Criminal Court ("ICC"). This Comment uses the Abu Sayyaf and Bali attacks as vehicles to examine the alternatives for prosecuting suspects of terrorist attacks who have victimized nationals of another state on the suspects' home soil. Although the attacks have some similarities, there are significant differences between their circumstances and the relationships between the various countries involved. It is these differences that make such an analysis useful. Using these two attacks to assess the benefits and drawbacks of using each prosecution method yields some essential factors that must be considered. These factors include: strength and independence of the home country's judiciary, global interest in the crime, the relationship between the countries involved, the interest of the requesting state, and the nature of the crime. These factors help articulate a test for determining under what circumstances different prosecution options should be applied to future attacks. This Comment concludes that home prosecution is the best option for attacks similar to the Abu Sayyaf attacks, while prosecution in the ICC is preferable for attacks similar to the Bali bombing. Part II of this Comment gives a background of Abu Sayyaf and Jemaah Islamiyah, outlining the recent attacks and explaining why these two examples of international terrorism are useful to illustrate prospective options for prosecution. After briefly summarizing relevant extradition law, Part III examines the application of extradition to the two situations, and explores situations in which extradition would be a viable and desirable option. Part IV examines the option of home prosecution and assesses the factors that make home prosecution desirable. Part V examines abduction or seizure of the terrorist by the western country as a possible alternative and explores the desirability of choosing this route. Part VI looks at the possibility of intervention and/or trial by an independent body as a solution.
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