LEGAL RESPONSES TO TERRORISM WITH SPECIAL REFERENCE TO THE POSITION OF KUWAIT
By
THAQAL SAAD AL-AJMI (LL. B - KUWAIT UNIVERSITY - LL. M - TEMPLE UNIVERSITY)
A thesissubmitted in fulfillment of the requirementsfor the degreeof
Doctor of Philosophy
University of Wales (Aberystwyth)
April 2003 DECLARATION
This work has not previously been accepted in substance for any degree and is not being concurrentlysubmitted in candidaturefor any degree
ThaqalAl-Ajmi
STATEMENTl
This thesis is the result of my own investigations, except where otherwise stated.
Other sources are acknowledged by footnotes giving explicit references. A bibliographyis appended.
Thaqal Al-Ajmi
STATEMENT2
I hereby give consent for my thesis, if accepted, to be available for photocopying and
for inter-library loan, and for the title and summary to be made available to outside
organizations.
II ACKNOWLEDGEMENTS
All thanks are due to God for helping me in completing this study. Also, I owe a great debt of gratitude to my mother for her endlessprayers for me to finish this study successfully. Gratitude should be expressedto my brother for being there when
I neededanything from my country, Kuwait. Another person that I do not think I will ever be able to thank is my dearest wife who sacrificed every comfort of hers and never stoppedencouraging me to finish this study.
In the Law Department,I am indebtedto many people: firstly, a special thanksshould go to ProfessorChristopher Harding, my supervisor,who helpedme and guidedme on my researchof this terrible crime of terrorismthat hasplagued the world in our times. It was he who stoodby me from the beginningof this studyuntil the end. Also, I would like to thank ProfessorRyszard Piotrowicz for his helpful commentsgiven me concerningthis study.
Moreover,I would like to thankall thosewho work at the Hugh OwenLibrary as well as thosewho work in the Law Library for being friendly andhelpful. Among them,I would to give a specialappreciation to Lillian who neverrefused any request for help but insteadhas done more than was requested.
Among my colleaguesin the school,I would to thank Abdullah Alhayan for introducingme to the universityand helpingme to settlea lot of thingswhen I came to Aberystwythfor the first time. Lastly, I need to thank Reyad Belhoal and
AhmedAlmansoori for helpingin subjectsof commoninterest.
III ABSTRACT
This thesisis intendedto servetwo objectives:The first objectiveis to discuss the various responsesthat can be taken against terrorism which range from the criminalizationof someterrorist actsby the internationalcommunity to the practical measuresStates in the real world are taking againstterrorism on one hand and from peacefulmeasures and coerciveones on the other hand. The questionthen will be whetherthese responses are effectivein deterringterrorism. Had thesedifferent types of responsesworked properly and if the answeris negativewhy not? In otherwords, a critical evaluationof theseresponses will be providedby this thesis.
The second objective will be concernedwith Kuwait's perspective on
terrorism. However,the discussionthis time will be narrower. It will be concerned
with someof the regionalmeasures Kuwait and other Statesin the region resortedto,
to counterterrorism. Questionslike: what are thesemeasures; how effectivethey are
in suppressingterrorism; and is there any noticeable difference between these
measuresand those taken at the global level will be researched.Moreover, discussion
about the approachKuwait had used at the national level againstterrorism will be
considered.
It must be mentionedthat until the momentof this writing there is not any
major study that discussesKuwait's ways of dealing with terrorism. More
significantly, as an Islamic and Arabic country Kuwait may hold a position or an
understandingwith respectto the issue of terrorism different from other countries,
especiallythose from the West. Thus,this thesiswill discernsuch a position andan
understandingthat may not be well known to manypeople.
IV TABLE OF CONTENTS
TABLE OF CONVENTIONS, PROTOCOLS, DRAFT CONVENTIONS, RESOLUTIONS,DECISIONS, AND CONFERENCES IX ...... TABLE OF CASES xii ...... TABLE OF STATUTES;ACTS, AND LAWS x1v ...... TABLE OF ABBREVIATIONS xv ......
CHAPTER 1. INTRODUCTION ......
CHAPTER 2. TERRORISM: DIFINITION, CAUSES, AND TYPOLOGIES 9 ...... 2.1. DEFINITIONOF TERRORISM ...... 9 2.1.1.Global Efforts ...... 14 2.1.2.Regional Efforts ...... 22 2.1.3.National Efforts...... 24 2.1.4.Academic Efforts ...... 28 2.2.CAUSES OF TERRORISM 34 ...... 2.3. TYPOLOGIES OF TERRORISM 42 ...... 2.3.L International DomesticTerrorism 42 and ...... 2.3.2.Individual State-SupportedTerrorism 44 and ......
CHAPTER 3: THE INTERNATIONAL CRIMINALIZATION OF TERRORISM.. 54
3.1. ANTI-TERRORISM INSTRUMENTS 55 ...... 3.1.1.Conventions Adopted by InternationalCivil Aviation Organization 56 ...... 3.1.2.Convention Adopted by InternationalAtomic EnergyAgency 65 the ...... 3.1.3.Conventions Adopted by InternationalMaritime 69 the organization...... 3.1.4.Conventions Adopted by UnitedNation General Assembly 74 the ...... 3.2. THE EFFECTIVENESS OF THE ANTI-TERRORISM CONVENTIONS 86 ...... 3.2.1. The Features the Anti-Terrorism Conventions 86 of ...... 3.2.2. The Shortcomings Anti-Terrorism Conventions 93 of the ...... 3.2.3. Enumerative Vs. Eliminative 98 ...... 3.3. THE USE EXTRADITION IN THE CONTEXT OF TERRORISM 101 ...... 3.3.1. Political Offence Exception 104 ...... 3.3.1. L States' Judicial Practices of What Constitutes a Political Offence Vis-a-vis Acts of Terrorism 107 ...... 3.3.1.LL United Kingdom 107 ...... 3.3.1.1.2. United States 110 ......
V 113 3.3.1.1.3.Switzerland ...... 3.3.1.1A. France ...... -115 3.3.1.2. 116 TreatyPractice ...... 3.3.1.2.1.Multilateral Treaties 116 ...... 3.3.1.2.2.Regional Treaties 117 ...... 3.3.1.2.3.Bilateral Treaties ýt.120 ...... 3.3.1.3. Exceptions Exception 123 to the ...... 3.3.2. Humanitarian Exception 124 ...... 3.3.3.Nationality Exception 125 ...... 3.3.4.Death Penalty Exception 126 ...... 3.3.5. Health Age Exception 127 and ...... 3.3.6. Extradition's Failure Possible Outcomes 129 ...... 3.4. INTERNATIONAL CRIMINAL COURT 132 ......
CHAPTER 4. PEACEFUL AND PRACTICAL RESPONSESTHAT CAN BE TAKEN AGAINST INTERNATIONAL TERRORISM 140 ...... 4.1.ASYLUM, 143 BORDERSAND TRAVELDOCUMENTS ...... 4.2.TERRORIST FUND RAISING 147 ...... 4.2.1.International Convention for Suppression Terrorism 148 the of theFinancing of ...... 4.3.EXCHANGE OF INFORMATION 159 AND INTELLIGENCE......
CHAPTER S. THE USE OF MILITARY FORCE ABROAD TO COUNTER INTERNATIONAL TERRORISM 166 ...... 5.1.PEACEFUL RESPONSES FIRST 167 ...... 5.2. LEGAL JUSTIFICATIONSFOR THE INTERNATIONALUSE OF MILITARY 169 FORCEIN COMBATTINGINTERNATIONAL TERRORISM ...... 170 5.2.1.Self-Defence ...... 170 5.2.1.1.Individual Self-Defence ...... 187 5.2.1.2.Collective Self-Defence ...... 5.2.2. 188 Reprisal...... 192 5.2.3.Protection of One's Own Nationals ...... 198 5.2.4.Invitation ...... 5.3. US AIRATTACK AGAINST SUDAN AND AFGHANISTAN:UNDER WHAT CONTEXT? 200 ...... 202 5.3.1.Factual Uncertainty ...... 208 5.3.2.Legal Justifications ...... 5.4.THE EFFICACYOF THE USE OF MILITARY FORCEABROAD IN DETERRING TERRORISM 219 INTERNATIONAL ......
vi CHAPTER 6. THE KUWAIT'S INTERNATIONAL AND REGIONAL POSITION ON TERRORISM 228 ...... 6.1. MEMBER OF THE NATIONS 229 AS A UNITED ...... CONFERENCE 241 6.2.AS A MEMBER OF THE ORGANIZATIONOF THE ISLAMIC ... 6.2.I. Conventionof theOrganization of theIslamic Conference on CombatingInternational Terrorism 246 ...... 6.3. AS A MEMBER OF THE LEAGUE OF THE ARAB STATES 265 ...... 6.3.1.The Arab Convention for Terrorism 268 theSuppression of ...... 6.4. AS A MEMBER OF THE GULF COOPERATIONCOUNCIL 276 ...... 6.4.1.The GCC Convention On Security States 279 BetweenMember ...... 6.5. CONCLUSION 289 ......
CHAPTER 7. KUWAIT'S NATIONAL PERSPECTIVE ON TERRORISM...... 298 7.1. THE NATIONAL LAW 298 ...... 7.1.1. Statute 6/1994 On Crimes Relating To The Safety Of Aircraft And Air Navigation 301 ...... 7.1.2. State Security Court 311 ...... 7.2. CASESAND RESPONSES ...... 315 7.3.CONCLUSION ...... 322
CHAPTER 8. CONCLUSION 325 ......
BIBLIOGRAPHY 347 ...... APPENDIXA: REGIONAL CONVENTIONSAND RESOLUTIONS 363 ...... - Conventionof the Organizationof the Islamic Conferenceon Combating IntemationalTefforism, (1999).
- The Arab Conventionon the Suppressionof Terrorism,(1998). - The Gulf CooperationCouncil on SecurityBetween Member States, (1994). - Organizationof Islamic ConferenceResolution 53/8-P (IS), On Conveningof an InternationalConference Under the Auspices of the United Nations to Define Terrorism and Distinguish It From Peoples' Struggle for National Liberation,(Dec., 1997). Organization of Islamic Conference Resolution 54/8-P (IS), On Follow-up of the Code of Conduct for Combating International Terrorism, (Dec., 1997). Organization of Islamic Conference Resolution 55/8-P (IS), The Strengthening of IslamicSolidarity in CombatingHijacking, (Dec., 1997).
Vil B: NATIONAL STATUTES 398 APPENDIX ...... Relating Safety Aircraft Air - Statute 6/1994 On Crimes to the of and Navigation. Statute26/1969 On the Establishmentof the State Security Court. Law Decree 10/1991 On the Amendment of Some Provisions of Statute 26/1969 On the Establishmentof the State Security Court. - Statute55/1995 On the Abolishing of State Security Court.
vili TABLES OF CONVENTIONS, PROTOCOLS, DRAFT
CONVENTIONS, RESOLUTIONS, DECISIONS, AND
CONFERENCES
Conventions, Treaties and Protocols:
1937the Leagueof Nations' GenevaConvention for the Preventionand Punishmentof Terrorism. - 1945the Charterof the UnitedNations. - 1951Geneva Convention Relating to the Statusof Refugees. . 1958Geneva Convention on the Law of the High Seas. - 1963Convention on Offencesand CertainOther Acts CommittedOn Board Aircraft (Tokyo Convention). - 1970Convention for the Suppressionof Unlawful Seizureof Aircraft (Hague Convention).
1971 Conventionto Preventand Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that Are of InternationalSignificance (OAS Convention). 1971Convention for the Suppressionof Unlawful Acts Againstthe Safetyof Civil Aviation (MontrealConvention).
1973 Convention on the Preventionand Punishmentof Crimes Against InternationalProtected Persons, Including Diplomatic Agents (New York Convention).
- 1977Europe Convention on the Suppressionof Terrorism. . 1979 Agreementon the Application of the EuropeanConvention for the Suppressionof Terrorism(Dublin Agreement). - 1979 Conventionon the Physical Protectionof Nuclear Material (Nuclear MaterialsConvention). 1979 International ConventionAgainst the Taking of Hostages(Hostages Convention). 1986the United States-UnitedKingdom Supplementary Extradition Treaty. 1988Protocol for the Suppressionof Unlawful Acts of Violence at Airports Serving International Civil Aviation (extends and supplementsMontreal Convention).
ix 1988 Convention for the Suppressionof Unlawful Acts Against the Safety of Maritime Navigation (Rome Convention).
1988 Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf. 1991 Convention on the Marking of Plastic Explosives for the Purpose of Identification. 1994 the Gulf Cooperation Council Convention On Security Between Member States(Tbe GCC Convention).
1997 International Convention for the Suppressionof Terrorist Bombing. - 1988 Rome Convention for the Establishment of a Permanent International Criminal Court (The ICC).
- 1998 The Arab Convention on Combating Terrorism. - 1999 Convention of the Organization of the Islamic Conference on Combating International Terrorism (The OIC Convention).
- 2000 International Convention for the Suppression of the Financing of Terrorism.
Draft Conventions:
- US Draft Conventionfor the Preventionand Punishmentof CertainActs of InternationalTerrorism (1972).
- Arab LeagueDraft Convention. - GCC Draft Convention. - OIC Draft Convention - Draft Articles on Responsibilityof Statesfor InternationallyWrongful Act (ILC, 2001).
Resolutions,Decisions and Declarations: Arab LeagueResolution 4654/1987. Arab LeagueResolution 4781/AC/1989. Bonn Declaration(1978). Declarationon Principlesof InternationalLaw ConcerningFriendly Relations and CooperationAmong Statesin Accordancewith the Charterof the United Nations(1972).
x Organization of Islamic Conference Resolution 53/8-P (IS) On Convening Of An International Conference Under The Auspices Of The United Nations To Defte Terrorism And Distinguish It From Peoples' Struggle For National Liberation (The 8h Summit, Dec. 1997).
Organization of the Islamic Conference Resolution 54/8-P (IS), On Follow-Up Of The Code Of Conduct For Combating International Terrorism (The gh Summit, Dec. 1997). (IS), The - Organization of the Islamic Conference Resolution 55/8-P StrengtheningOf Islamic Solidarity In Combating Hijacking (T'he 8thSummit, Dec. 1997).
- UnitedNations General Assembly Resolution 2551 (1969). - UnitedNations General Assembly Resolution 2645 (1970). - UnitedNations Security Council Resolution 268 (1970). - UnitedNations General Assembly Resolution 3034 (1972). - UnitedNations General Assembly Resolution 3314 (1974). . UnitedNations General Assembly Resolution 34/145 (1979). - UnitedNations Security Council Resolution 487 (1981). . UnitedNations General Assembly Resolution 37/43 (1982). . UnitedNations General Assembly Resolution 3314 (1984). - UnitedNations General Assembly Resolution 40/61 (1985). - UnitedNations General Assembly Resolution 42/519 (1987). - UnitedNations General Assembly Resolution 44/29 (1989). - UnitedNations Security Council Resolution 731 (1992). . UnitedNations Security Council Resolution 748 (1992). - UnitedNations Security Council Resolution 883 (1993). - UnitedNations Security Council Resolution 1267 (1999). - UnitedNations Security Council Resolution 1269 (1999). . UnitedNations Security Council Resolution 1333 (2000). - UnitedNations Security Council Resolution 13 63 (2001). . UnitedNations General Assembly Resolution 5611 (200 1). . UnitedNations Security Council Resolution 1368 (200 1). - UnitedNations Security Council Resolution 13 73 (2001).
xi Summitsand Conferences: . 1978Bonn Summit. . 1986Tokyo EconomicSummit. - 1987Venice Economic Summit. - 1996Lyon Summit. - 1996Sharm AI-Sheikh Peace Makers Summit in Egypt.
TABLE OF CASES
At the National Level: Brifish Cases:
- In re Castioni (189 1) . In re Meunier (1894) - Regina v. Governor of Brixton Prison, Ex Parte Kolezynki (1955). . R. v. Governor of Brixton Prison, Ex Parte Schtraks (1964). . Reg. V. Governor of Pentonville Prison, Ex Parte TzuTsai Cheng (1973). - R. v. Home Secretary,Exparte Chahal (1995). . T. v. Home Secretary(1996). - The Queen v. The Secretary of the Home Department, Ex Parte Pinochet (1999).
. R. Bow Street Metropolitan, Ex Parte Pinochet (1999).
American Cases:
. In re Ezeta,(N. D. Cal., 1894). - Artukovic (9h Cir., 1957) . In re Gonzalez(S. D. N. Y., 1963) . In re Mcmullen(N. D. Cal., 1979) (S.D. N. Y., 1981) - In re Mackin Wilks (7h Circ., 1981). . Eainv. (S.D. N. Y., 1984). . In re Doherty (9h Circ., 1985). . Quinnv. Robinson
xii (1992). - United Statesv. Alverez-Machain
SwissCases: Wassilieff (1908). Watin Case (1964)
French Cases:
- In re Holderand Kerkow (1971). - Croissan(1978)
Irish Cases:
- Demont Fincane and Jame Clarke (1990).
At the International Level: - S.S. Lotus Case(IPCJ, 1927). - Portuguese-GermanArbitration Decision of the 1914 Naulile Incident in PortugueseAngola (1928).
. Corfu Channel(ICJ, 1949). . United Statesv. Iran, CaseConcerning United StatesDiplomatic and Consular Staff in Tehran(ICJ, 1979).
- Nicaragua v. United States of America, Case Concerning Military and ParamilitaryActivities in andagainst Nicaragua (ICJ, 1984). Application the - Libya v. US and UK Concerningthe Interpretationand of MontrealConvention (10,1992). Advisory Opinion on the Legality of the Threat or the Use of Nuclear Weapons(10,1996). Todic Case(ICTY, 1999).
xill TABLE OF STATUTES, ACTS AND LAWS
Kuwait.
- Kuwait Constitution 1961. - Martial Law Statute22/1967. - Statute16/1969. - Statute26/1969. - Statute31/1970. Statute - Law Decree 10/1991, on the Amendment of Some Provisions of the 26/1969 on the Establishmentof the State Security Court. - Statute 6/1994 on Crimes Relating to the Safety of Aircraft and Air Navigation - Statute55/1995 to Abolish the State Security Court.
UnitedKingdom: Preventionof Terrorism(Temporary Provisions) Act 1974. British CriminalJustice (Terrorism and Conspiracy) Act 1998,Chap. 40.
Others: AlgerianStatute 93-3. BelgianExtradition Law of 1833. US ForeignIntelligence Surveillance Act of 1978.
x1v TABLE OF ABBREVIATIONS
Art Article
CIA Central Intelligence Agency
DSI Defense System,Inc
ETA Basque Fatherland and Liberty
FA TF Financial Action Task Force
FIS Islamic Salvation Army
FISA Foreign Intelligence Surveillance Act
FLN Algerian Revolutionary Group
FSF Financial Stability Forum
GA General Assembly
GCC Gulf Cooperation Council
IAEA International Atomic Energy Agency
ICAO International Civil Aviation Organization
ICC International Criminal Court
ici International Court of Justice
ILU International Legal Materials
1UO International Maritime Organization
INTERPOL International Criminal Police Organization
IRA Irish Republican Army
NPA New People Army
NPD National Democratic Party
OAS Organization of American States
OECD Organization for Economic Cooperation and Development
OED Oxford English Dictionary
xv Oic Organization of Islamic Conference
OPCW Organization for the Prohibition of Chemical Weapons
Para Paragraph
PIRA Provisional Irish Republican Army
PKK Kurdistan Workers' Party
PLO PalestinianLiberation Organization
RAF Red Army Faction
Res. Resolution
SC Security Council
UK United Kingdom
UN United Nations
UN Doc. United Nations Documents
UNGA UnitedNations General Assembly
UNGARes. UnitedNations General Assembly Resolution
UNSC UnitedNations Security Council
UNSCRUnited Nations Security Council Resolution
us United States
USDept. United StatesDepartment of State
USSR Union of SovietSocialist Russian
WWI World War I
xvi CHAPTER 1. INTRODUCTION
'With advancedtechnology and a smaller world of porous borders, the ability to unleash mass sickness, death and destruction today has reached a far greater order of magnitude. A lone madman or a nest of fanatics with a bottle of chemicals, a batch of plague-including bacteria, or a crude nuclear bomb can threaten to kill tens of thousands of people in a single act of malevolence. These are not far-off or far-fetched scenarios. They are real - here and now'.
(William Cohen-US FormerSecretary of DefenseDepartment- Proliferation: Threat and ResPOnse, Nov. 1997).
'We.. havethe ability to makeand use chemicals and poisonous gas. And these gasesand poisonsare madefrom the simplestingredients, which are available in the pharmaciesand we could, as well, smugglethem from one country to anotherif needed. And this is for use againstvital institutionsand residential populationsand drinking watersources and others'.
(RarnziAhmed Yousef -a convictedterrorist- (US v. RarnziAhmed Yousef,Government Exhibit 528- T) -26 Aug. 1998).
'The threat of terrorism, both international and domestic, lies beyond its objectiveimpact in numbersof peoplekilled or injured or property damaged. Terrorism,among all forms of violent crime, is a peculiarevil, sinceit inspires fear and creates disruption far beyond the direct casualties it inflicts. Traditionally,that has beenthe essenceof terrorismand the,goal of terrorists- to createfeae.
(Philip Wilcox, Coordinator for Counterterrorism, US State Department- Statement given to House Transportation and Infrastructure Committee- 25 Jan. 2000).
I From time immemorial terrorism or terrorist crimes are still among the few words that can be heard on the news on an almost daily basis. The manifestationsthat terrorism has taken are changing from time to time reflecting changes in the world.
Whenever a new technology that advancesthe world material state is invented a new form of terrorism appears. For example, the great prosperity and evolution that accompanied the use of airlines was faced by a great revolution in hijacking.
Moreover, in response to the extraordinary development in computer science a new form of cyber-terrorism, as some may call it, is now dominating the world
In an attemptto underestimateterrorism as a greatthreat to the world, some arguethat war is the only enormousthreat to the world becausein a war hundred thousands,if not millions of peoplemay be killed in a very short time. Therefore, they maintain, all resourcesand studiesshould be channeledto addresswar and preventthe existenceof anyhostility betweenStates that might leadto it.
Although, it is true that war is a great danger to internationalpeace and security and must not be allowed to happen,that does not mean terrorism is a worthlesssubject and shouldbe ignored. The following are someof the differences betweenwar and terrorismthat illustratethe fact that terrorism,if not more important thanwar, is, at least,of equalsignificance:
Firstly, in war there is a beginning and an end, whereasin terrorism the beginning cannot be easily identified and can be endless. Secondly,in war only
belligerentStates, are exposedto dangerand neutralsmay, usually, not be targeted,
whereasin terrorism,violence can spilloverall countriesand doesnot confineitself to
2 particular States, this is becauseterrorism recognizes no international boundaries and the whole world could be its theatre. Thirdly, in war, in all cases the number of belligerent States will be limited, whereas in terrorism this number could be equal to
millions of people. This is becausein war those who have the capability to declare it
are from the two hundred States existing on the globe, whereas in terrorism 1hereare
hundreds, if not thousands, of individuals who can turn into a terrorist. This, also,
implies that in war a peacefulend could be reachedif the few policyrnakerswho are
engagedin war decidedto stop it, whereaswith terrorismsuch a peacefulend would
have to be agreedby too many people. Fourthly, war is a very expensivetactic and
only few Stateswho can afford it may wage it againstothers, whereas terrorism is
very cheapand basically easily affordableto any personin the world. Fifthly and
finally, althoughwar is a destructiveact, its partiesmust, however, abide by all of its
internationalgoverning bodies of law and will, generally,be held responsibleif they
fail to do so,whereas terrorists abide by no laws.
Others,also for the purposeof undervaluingthe dangerof terrorism,say that
car accidentsare evenmore seriousthan terrorismbecause the numberof peoplewho
die in road accidentsis higher than thosewho die as a result of terrorist attacks. For
example,in Kuwait it had beenreported that in the year 2000 more than 300 people
werekilled by car accidentsin this very small countrywith a populationof nearlytwo
million, whereasnot a singleperson is died in a terroristattack.
This argument, as the previous one, focuses only on numbers of victims and
omits an important fact, that terrorism victimizes all people at the same time, not only
its immediate victims, by making them feel insecure any where and at any time
3 whether they are driving, flying, working, sitting, or even sleeping and whether they are at home or abroad. This reality about terrorism is the most distinctive component of terrorism that makes it a considerable threat to the whole world which must be prevented before mushrooming.
However, if terrorism emergeda long time ago, as statedearlier, certainly
sincethe conclusionof the United NationsCharter until this time, and if terrorismis
so grave that it could threatenworld stability, one may simply ask why is it so
persistentand is there any effective remedy to such an act? Did the international
communitytake any actionto confrontterrorism and prevent its perils?
In answeringthis crucial inquiry, this paperwill, as its first objective,study
most of the prominentresponses, especially international ones that havebeen taken or
can be taken to counterinternational terrorism. Someof the questionsthat will be
answeredin this studyare: what are theseresponses; how lawful; how effectivethey
are in preventingterrorism or how well they are in combatingterrorism; and what are
the practicaldifficulties, if thereare any, that precludethese responses from achieving
their desiredgoals?
Nonetheless,it must be mentionedthat not all aspectsof law and terrorism
will be addressedby this study becausesuch an endeavorwill be far-reaching,
thereforecould not be appropriatelycovered in one thesis. Instead,this studywill be
concernedabout those responsesthat are now in use by Statesand have been
controversialin their successin dealingwith terrorism.
4 Of equal importance, this study will, as its second objective, examine, but this time more narrowly, Kuwait's perception of terrorism and that will include the stand,
if there is any, Kuwait took in the various types of membership it has in many
international, regional, or sub-regional organizations that have dealt with the issue of
terrorism. Also, how Kuwait has dealt with terrorism at the national level will be
addressed.
The reason for studying Kuwait 's ways of dealing with the issue of terrorism
is the fact that until the moment of writing this thesis there is not any major study of
this country in relation to terrorism, therefore its position with respect to this issue
may not be well known to many people. Moreover, as an Islamic and Arabic country
Kuwait may provide a good example of how a State, not from the West, is dealing
with terrorism at the regional and national level. And more importantly is the
question of whether Kuwait's handling of the problem of terrorism at these levels
differs from the global one.
Logically this study will begin searching for any definition of terrorism that is
accepteý,by the international community. Then, this study will demonstrate the
reasonsand causesthat give rise to this phenomenon.The final part of this chapter
will be devotedto the typologiesand classificationsand this will include explaining
the relationbetween States and terrorism.
Next, someof the internationalresponses that hadbeen taken against terrorism
include the criminalization of some aspects of terrorism by the international
communitywhich manifesteditself in the adoptionof many conventionsor treatiesin
5 order to combat terrorism, whether these conventions or treaties were concluded directly under the auspice of the United Nations or under any of its specialized
agencies. After highlighting some of the important provisions of these anti-terrorism
conventions, the question then will be how effective these instruments are in deterring
terrorism. Also, extradition as a criminal process that can be taken against fugitive
terrorists will be included in this chapter. Moreover, the idea of furnishing the
International Criminal Court with jurisdiction over terrorism will be considered.
Subsequently, some of the common practical responsesthat States can take
against terrorism will be discussed. However, since practical responses can be
coercive or peaceful, this chapter will be concerned with the peaceful responsesand
these will include: firstly, discussion will be about restricting the rules of asylum in
order to prevent terrorists from abusing this legitimate right; secondly, the issue of
tackling terrorism by drying up their financial sourceswill also be talked about in this
chapter; and thirdly, the importance of the exchange of information as a practical
measure against terrorism will be studied and whether such an exchange of
information on terrorism is required by international law.
In addition,the use of military force againstterrorism, which is consideredto
be one of the most controversialthemes in internationallaw, will be includedin this
discussion.The question,then, will be when suchan actioncan legitimatelybe taken
by a Stateagainst terrorists or terroristorganizations based in anotherState? The use
of military force by the United Statesagainst Sudanand Afghanistanwill be the
subsequentcase study of that chapter. In the final part of this chapterthe subjectwill
be whethersuch an armedaction preventsterrorism from reoccurring? The reason
6 why the last part will be included in this chapter, though it is more political in nature than legal, is becauseof the seriousnessof such a response which proves to be very
contentious Thus, this section is meant to searchthe effectivenessof such a response
even in situations where it is legally justified.
Needlessto saythe discussionof most of theseresponses will be applicableto
all States,including Kuwait, becauseof these responses'international nature and
becauseinternational law obligationsare applicableto all States. Therefore,when
talking aboutKuwait's perspectiveon terrorism,there will be no needto reiteratethe
discussionabout these responses unless it is necessaryfor betterunderstanding.
Discussionabout Kuwait's position with respectto terrorismwill be divided
into two parts:the first part will includethe following: firstly, Kuwaif s attitudein the
United Nations when facing the issue of terrorism; secondly,as a memberof the
Organizationof the Islamic Conference,Kuwait and other membersmay have their
own understandingof what constitutesterrorism. Also, measuresthat have been
taken by this regional organizationagainst terrorism will be considered;thirdly,
anotherregional organization,that is the Arab Leaguein which Kuwait is member
will be includedin this discussionas well; fourthly and finally, the Gulf Cooperation
Councilwhich is the smallestregional organization consisting only of six membersin
which Kuwait is party will alsobe studied.
The secondpart will be concernedabout the approachKuwait used when
dealing with terrorism but this time from a local point of view. Firstly, how did
Kuwait regulateterrorism at the nationallevel will be pointedout in this chapter;and
7 secondly, some of the terrorist attacks that had been committed against Kuwait and the measures it resorted to in response is another important issue that will be
addressed. However, it should be noted that accessto the transcripts of the trials of
these terrorist attacks in order to know how the law has been applied and interpreted
by the national courts is not possible. Hence, these cases of terrorist attacks will be
obtained form foreign sourcessuch as Keesing Record of World Events.
It is hoped that this study will provide the readers with a critical evaluation of
the various responses States may contemplate when confronting terrorism. More
importantly, this study will be the first to discuss Kuwait's perspective on terrorism.
New documents, like the Organization of the Islamic Conference Convention on the
Suppressionof Terrorism and Arab Convention for the Suppressionof terrorism, are
among those instrumentsthat will be discussedin this study for the first time.
8 CHAPTER 2. TERRORISM: DEFINITION, CAUSES, AND
TYPOLOGIES
As an introduction this Chapter will start by discussing a basic question, that is, what is meantby terrorism? Thus the searchwill begin to find if there is any definition acceptedby the internationalcommunity before talking aboutthe various responsesthat havebeen taken against terrorism. And if thereis no suchdefinition, exampleswill be mentionedof the definitionsthat are popular,to a certainextent, amongmany writers, which if they do not cover all of the terrorism's aspects, would at leastcover most of them. Then in Section2, attentionwill be givento the causesthat give, in general,the appearanceof sucha phenomenon.This is a very importantand inevitablepart in any discussionabout terrorism. What triggersthis phenomenonbefore searchingfor an effective remedy? Finally, in Section 3,
discussionwill be aboutthe typologiesor classificationsof terrorismand this with
include discussionof State involvement in terrorism and the types of such
involvementwill be identified. This last sectionwill explain,as will be discussed
later, why a State that had been victin-dzedby terrorism took an action against
anotherState because of its involvementin terrorism.
2.1. DEFINITION OF TERRORISM
Currentlythe conceptof terrorismhad becomeso elasticthat thereseems to
be no limit to what could be describedas terrorism. Here are someexamples of the
unlimited usesof this term. When criminals tried to extort money from the food
manufacturesby threateningto put brokenglass, tacks, or any otherharmful objects
in the baby foodjars in the supermarket,it was labelledby the mediaas "consumer
9 terrorism". ' Also, the phenomenon of anonymous obscene phone-calls has been described as "telephone terrorisnes,2 especially in the United States. An academic text analysedrape as a "terrorist institution". 3 "Economic terrorism" was the term used to describe the speculation against the currency of the country that financed the Argentinean presidential election in 1989. The Iraqi ambassadorto the United
States also used it in October 1990 when he accused Kuwait of sabotaging his country's economy.5 This expanding use of the term led Brian Jenkins (one of the prominent specialists in terrorism) to declare that 'terrorism can mean just what those who use the term (not the terrorists) want it to mean, almost any violent act by 6 any opponent'.
In practice,the terms'terrorism andterrorists' have been used by politicians as a labelto pin on their enemies,and this is one of the reasonsthat makespeople's judgementof what constitutesterrorism vary from time to time and from one country to another,what is terrorism today will be heroism (FreedomFighters) tomorrow. As RichardBaxter, professor of law at HarvardUniversity and Judgein the InternationalCourt of Justice,pointed out 'we havecause to regretthat a legal concept of terrorism was ever inflicted upon us, the term is imprecise, it is ambiguous,and above all, it servesno operativelegal purpose'.7
Beforestarting the searchfor an accepteddefinition, one might ask why it is
A. Guelke, The Age of Terrorismand International Political System, (Tauris AcademicStudies, 1995),1. 2Ibid. 3Ibid. 4 Ibid. 5Ibid. 6 W. Laqueur,The Age of Terrorism,(Weldenfeld & Nocolson,1987), 1. 7 J. F. Murphy, StateSupport of International terrorism: Legal, Political and EconomicDimensions, (Mansell,1989), 3.
10 important to define terrorism. In other words, is the existence of such a definition necessary? Boaz Ganor answered this question by surnmarising the benefits that canbe obtainedby definingterrorism, 8 which arethe following:
1) Legislation and Punishment: No laws or regulations can be enacted to combat terrorism and the type of punishment of the individuals involved in this act, or things used by them, unless there is a clear definition of terrorism that distinguished it from other crimes.
2) InternationalCo-operation: In order to formulate and ratify a new conventiondealing with terrorism, an internationally accepted definition of terrorism is required, otherwise the controversieswill continue,and Stateswill continuedef ining terrorismaccording to their own understanding,which could be wrong in some casesand more significantlythis differentunderstanding may causeconflict betweenthese States. This is very importantand it explainsthe reasonwhy the internationalcommunity had adoptedmany anti-terrorismconventions instead of one, as will discussed later. In otherwords, how could onecombat something one does not know?
3) StateSponsoring Terrorism: SomeStates sponsor terrorist organizationsfor many reasons(this issuewill be discussedlater in section 5 of this chapter) and will continue doing this. Therefore,unless the actions of these Stateshave been proscribedby a broad definition of terrorism accepted by the international community, no measures without the support of the international community can be taken against such States.
4) OffensiveAction:
To ensureinternational support for Statesstruggling againstterrorism - which shouldretain the initiative in combatingterrorism -, and perhapseven for a joint offensive, an internationally accepteddefinition of terrorism is required, to
8 B. Ganor, 'Defining Terrorism: Is One Man's Terrorist Another Man's Freedom Fighter?'
5) Attitudes of the Population Supporting Terrorism: People supporting terrorism because they do not know that these acts should be called terrorist acts for whatever reasons,will change their attitudes, if there is a clear definition of terrorism and this will risk any terrorist organization that depends on the assistance (recruitment resource) of a sympathetic civilian population from losing its legitimacy in the eyes of this population.
6) Public Relation:
The public relationsbetween States have been at risk many times becauseof controversyover what constitutesa terrorist act. For example,the US and the Arab countries over the activities of the PLO (Palestinian Liberation Organization).9 This point as well as the others implies the urgent need for a criterion that distinguishesterrorism from people's armed struggle for self- determination. As in the exampleabove the Arab countriesconsider the activities of the Palestinianliberation movementsas lawful acts of self-determination, whereasthe US in concertwith Israel considersthese acts as acts of terrorism. Thus, this could, as will be discussedlater in more details, causethe public relationsbetween these States to becomevery fragile and strainedas a result of their differentinterpretations of what constitutesterrorism.
At the beginning,it would be helpful to trace the terrn,i. e., terrorism,back to
its first use without delving too deeplyinto all terrorist incidents,because searching
the history of violence,is searchingthe history of humanbeings. Accordingto the
Oxford EnglishDictionary (OED), the termsterrorism and terrorists were first usedin
the English Languagein 1795, in responseto the "Reign of Terroil' in past
Ibid.
12 France' 0 this is the that times revolutionary , and reason until recent some governments confmed the definition of terrorism to State actions. Terror and actions by individuals that today would be described as terrorism were subsumed under different labels; e.g.,
'assassination' of (the head of State) which only recently has been treated as a terrorist act
Moreover, in the Wh century, the terms were applied to the violence of the agrarian agitation against landlords and their agents in Ireland. However, by the end of that century, the term had been linked to the strategy of political assassinationemployed by Narodnaya Volya "people's will" against Tsarist regime, particularly the assassinationof Tsar Alexander II in March 1881.11
Nevertheless,most specialistsin terrorism emphasisedthat the use of the termsterrorists and terrorism, as appliedto individuals,became more frequent since what they called"the age of terrorism",12 which startedin the late 1960s,and they linked the onsetof terrorismwith specificevents during that time, mostparticularly the defeatof Arab Statesby Israel in the Six-Day war of June 1967,the deathof
Che Guevarain October 1967, and the studentrevolt in France in May 1968.
However,Andrian Guelkeargued that two eventsshould be. added to this list; the clash betweenpolice and civil rights demonstratorsin Londonderryin October
1968,that markedthe start of NorthernIreland's most recenttroubles, and perhaps
somewhatless satisfactorily,the failure of the NationalDemocratic Party (NPD) to
'0 This had beenknown as the Jacobin" Reign of Terror" in 18th century in France,in which 300,000 peoplewere arrested,about 17,000people were officially executedand many othersdied in prison without trials. 11See, Guelke, note I at 3. 12Ibid. at 52.
13 gain parliamentary representation in the West German Federal Election of 1969 afterits earliersuccess at Statelevel. 13
There have been hundreds of efforts exerted at all levels to find an accepted definition to this phenomenon in order to prevent its occurrence and to punish its perpetrators,which can not be done without finding a definition that all States,or at least most of them, agree about. Seeking this objective, there have been global, regional, national, and academicefforts, which will be discussedin sequence:
2.1.1. Global Efforts
Urged by the assassination at Marseilles on October 9,1934, of King
Alexander of Yugoslavia and Louis Barthou, Foreign Minister of the French
Republic, the League of Nations seriously seized the matter and drafted the
Conventionfor the Preventionand Punishmentof Terrorism. This Convention
broadly definedterrorism to include,'all criminal actsdirected against a Stateand
intendedor calculatedto createa stateof terror in the minds of particularpersons,
or groupof personsor the generalpublic'. 14
However,this definition is very wide on one hand and very narrow on the
other. It is very wide becauseit speaksof all criminal acts without requiring that
the committingof suchacts to be terrorismwhen they were committedfor political
objectivesand satisfied the otherelements of this definition.
On the otherhand, this definitionis very narrowbecause; firstly, it only
13 Ibid. 14Murphy, note 7 at 5. 14 applies to the actions committed by people, but does not apply to actions committed by the State against its own people. This is becausenot only individuals who can commit acts of terrorism but State can do so even in more severeand anxious ways than those of individual terrorists. States can, and they already did, commit acts of terrorism against their own people, whether the entire population or a certain segment thereof (such as a minority community or political opposition or the population of an occupied country). States can do that by means such as torture, masskilling, and arrest, etc.
Describing these acts by States as acts of terrorism is consistent with the international community's depiction of what constitutes an act of terrorism, which is not confmed only to those acts committed by individuals but to States' actions as well. An example of this view by the international community is the United
Nations General Assembly Resolution 44/29 (1989), which stated, in part, that the
General Assembly is 'deeply disturbed by the world-wide persistence of acts of
international terrorism in all its forms, including those in which States are directly
' 5 or indirectly involved, which endangeror take innocent lives.. '.
An exampleof such an act of terrorism committedby a State was the
unprecedentedmass murder of thousandsof Kurdish peopleby the Iraqi regimein
the northernpart of Iraq in the late 1980sby the using for the first time in history
chemicaland biological weaponson an indiscriminatemanners killing all people
who were in the reachof thoseweapons. These acts of terrorismagainst the Kurds
were meant to silence those people from claiming their rights of political
expression.
15UNGA Res. 44/29 (72"' plenarymeeting 4 December1989). 15 Secondly, this definition requires such criminal acts to be intended or calculated to create a state of terror, thus it does not apply to actions that terrify without intention, i. e., the terror and fear was a by-product of such acts but not intended. Apart from any criticism that Convention never came into force because of the outbreak of the World War II.
Although reaching an agreement at that time would have been relatively
easier than doing so at this time because the number of the States who were
members of the League of Nations was very small compared to the number of
members of the United Nations now. At that time most of the member Stateswere from Europe, but now the majority are from continents other than Europe with different traditionsand understanding with respectto terrorism. In any event,since Convention that was not listed amongthe treatiesand conventionsfor which the League was a depositoryand with respectto which the United Nations had taken
any responsibility,the conventiondoes not exist anymore.
After that, the United Nationsmade no attemptto replaceit with one of its
own. However,in 1954the InternationalLaw Commissionbroadly approached the
problemin its Draft Code of Offencesagainst the Peaceand Securityof Mankind
and addedthe conceptof Statesponsorship of terrorism,which will be discussed
later in this chapter.
In 1972the United States,trying to alleviatethe concernof somemember
Statesthat the conventionit is proposingwas directed againstwars of national
liberation, introduceda Draft Conventionfor the Preventionand Punishmentof
16 Certain Acts of International Terrorism.16 The coverage of this Draft Convention was limited to 'any person who unlawfully kills, causes serious bodily harm or kidnaps another person', providing that these acts met four separate conditions before the provisions of the convention applied: firstly, the act had to be committed or take effect outside the territory of a State of which an alleged offender was a national. Secondly, the act had to be committed or take effect outside the State against which the act was directed, unless such acts were knowingly directed against a non-national of that State, (accordingly an armed attack in the passenger lounge of an international airport would be covered.) Thirdly, the act must not be committed either by or against a member of the armed forces of a State in the course of military hostilities. And fourthly, the act had to be intended to damage the interest 7 of or obtain concessionsfrom a State or an international organization!
However,some member States criticised this Draft Convention,especially the broadloophole in the first conditionabout the identity of the allegedoffender's
State. Becausethis provisionwill excludefrom the scopeof the Conventionmost terrorist attacksin Latin America and elsewhereagainst business personnel and facilities.
Insteadof the desiredoutcome, the first and the secondcondition stated
abovemay excludea clear act of terrorismfrom the coverageof this convention.
For example,when nationals of oneState committed acts of violenceagainst their
16This Draft Conventioncame after the kidnappingand killing of Munich on September6,1972, of elevenIsraeli Olympic competitorsby membersof Black September(Palestinian Organisation), for fall text seeII LLM. 1972at 1182. 17Murphy, note 7 at 6. 17 own government in the territory of the latter. These acts will, according to these conditions, not be consideredacts of terrorism.
Furthermore, it was also criticised by giving the States apprehending the
offender of terrorist acts the sole discretion to make a decision either to prosecuteor
to extradite.18 This criticism is also said with regard to the other multilateral anti-
terrorism conventions as will be discussedlater.
Nonetheless, instead of adopting the US Draft Convention, the General
Assembly on Dec. 1972 adopted Resolution 3034, which came to it by the Sixth Committee of the General Assembly by the initiative of Algeria. The Resolution deep expresseda concern over the proliferation of international terrorism and called
States upon all to co-operate and to take national measures to eliminate it. However, the Resolution's primary focus was on finding just and peaceful 19 solutions to the underlying causeswhich give rise to such acts of violence. Also, it emphasisedthe inalienable right to self-determination and independenceof all
people under colonial and racist regimes and other forms of alien domination, and
upheld the legitimacy of their struggle.20
Despitethe fact that the US Draft Conventionwas the last attemptto define
internationaltefforism into a binding internationallegal instrument,nations have
achieveda modestdegree of co-operationin dealing with certain aspectsof the
problem. For example,most nations have signed and generally abided by the
various internationalconventions against hijacking and sabotageof aircraft, or of
18Ibid. 19UNGA. Res. 3034 (Dec. 1972). 20Ibid.
18 airports serving international civil aviation, and have signed the convention on the prevention and punishment of crimes against internationally protected persons, taking of hostages,theft of nuclear materials, and unlawful acts against the safety of
maritime navigation. All of these conventions criminalized any act that violated
any provision, regardless of its description (whether it could be described as
terrorist act or not), its motives (either political motive or not), and they obliged the
State apprehending an alleged offender in its territory either to extradite him or
submit the case to its own authority for the purpose of prosecution. (More details
on theseanti-terrorism conventions will be covered on the next chapter).
An important developmentwith respectto the finding of a definition of
terrorism was reachedby the General Assembly on December9,1985, by a
resolutionthat had beendescribed by the US Ambassadorto the United Nations,as
'a The defined 'which symbol of a new time'.21 resolution terrorism as acts endangeror take innocent human lives, jeopardize fundamentalfreedoms, and
seriouslyimpair the dignity of human beings'. It 'unequivocallycondemns, as
criminal, all acts, methodsand practicesof terrorismwherever and by whomever
committed, those which jeopardize friendly relations among States and their
security'.22 The resolution also called upon all States to take all appropriate
measuresand harmonize their domesticlegislations within the existinginternational
conventions,fulfil their obligations,prevent the preparationand organizationin
their respectiveterritories of actsdirected against other States,and to refrain from
organizing, instigating or participating in terrorist acts in other states, or
acquiescingin activitieswithin their territorydirected towards the commissionof
21 Murphy, note 7 at 8. 22UNGA. Res. 40/61 (1985).
19 such acts, inviting all States to become party to the existing antkerrorism
conventions and co-operate with one another by the exchanging of information
related to such acts and the apprehension, and prosecution or extradition of the ?3 perpetrators It also provided that the struggle of national liberation movement
must be conducted in accordancewith the purposesand principle of the Charter and
of the Declaration on Principles of International Law Concerning Friendly
Relations and Co-operation Among States in accordance with the Charter of the
United Nations.24
The reasons for not reaching a generic definition of international terrorism
at the United Nations had been summarised by Levitt as: one reason is that there
were many States that were about to become targets of national liberation
movements, hence they wanted to subscribe to a definition of terrorism that would
criminalize broad areasof conduct usually resorted to by such movements. Another
reason is that those governments at the same time were reluctant to subscribe to a
definition that would criminalize their own use of force in response to these
movements.25
Thesereasons are very importantand must be kept in mind at all times.
SomeStates want to criminalizeall the acts of violencecommitted against them
eitherby their own people,who are not happywith their policies,or by otherswho
are foreign to theseStates, which occupiedtheir territoriesor hannedthem in any
way. Therefore,these States are desperatefor any definition that would criminalize
theseacts and classify them as acts of terrorism.
23Ibid. 24Ibid. 25G. Levitt, 'Is TerrorismWorth Defining? ', 97 Ohio NorthernLaw Review(1986), 109.
20 However, these States are in fear that such a definition would, if they subscribedto it, criminalizc their own actions which they took against thosepeople, either their own people or foreigners as mentioned above. Thus, these Statesprefer the situation to stay as it is in which they can take action regardlessof its gravity or meansagainst the perpetratorsof these violent acts againstthem.
Also, a significant reason,not mentionedby Levitt, is the fact that some
Statesfear that if they subscribeto an accepteddefinition of terrorism,they may outlaw their own conduct,indirectly taken in certainsituations. For example,the acts they took in supportof groupsor movementsthey believedfought for self- determination,especially if thesegroups or movementsused terrorist tactics in their operations.
Moreover, Jenkins also pointed to anotherreason why, especiallyThird
World governments,did not want to outlaw terrorismby not agreeingwith most of
the definitionsthat havebeen advanced. He statedthat thesegovernments did not
want to outlawthese irregular methods of warfare,because they lackedthe tools for
conventionalwarfare and becausemost of the leadersof thesecountries used to be
insurgent chiefs, therefore they wanted to exclude the means they had once
employed,or are being now employedby otherson their behalf for causesthey
support,from the definition.26
Although the first reasoning by Jenkins makes sense, the other may not.
This is becausethose leaders,conversely, want and are willing to outlaw any action
26 B. M. Jenkins, 'International Terrorism: The Other World War', in C. W. Kelgley (ed.), InternationalTerrorism: Characteristics, Causes, Controls, (Macmillan, 1990),27,3 1.
21 or method, even if they had been used before, if they feel insecure about groups using these actions or methods which may cause them to lose their power.
Therefore, they prefer to eliminate these actions and methods in order to protect their seats.
2.1.2. Regional Efforts
On the regional level there have been many conventions that were adopted in order to combat international terrorism. These include the Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Personsand
Related Extortion that Are of International Significance (OAS Convention),27 the 28 Europe Convention on the Suppressionof Terrorism (European Convention), and the Agreement on the Application of the European Convention for the Suppression
of Terrorism (Dublin Agreement).29
However, none of these conventions attempted to define international
terrorism, rather, like the other anti-terrorismconventions concluded under the
auspicesof the UnitedNations and its specialisedagencies, which will be discussed
later; these conventions focused on particular actions and the protection of
particulartargets from attack. This fact is very significantbecause it showshow
complicatedit is even at the regional level to reach an agreementon a broad
definition of terrorism. Therefore,not as suggestedby manywriters, the failure of
the internationalcommunity to cometo an accepteddefinition of terrorismwas the
27 Conventionto Preventand Punishthe Acts of TerrorismTaking the Formof CrimesAgainst Persons andRelated Extortion That Are of InternationalSignificance, Feb. 2,1971. IOLL. M. 1971. 28European Convention on the Suppressionof Terrorism(1977), 15 I.L. M 1272(1977). 29 AgreementConcerning the Applicationof the EuropeanConvention on the Suppressionof Terrorism Amongthe MemberStates, Dec. 4,1979,19 I.L. M. 325 (1980).
22 result of the position taken by developing countries. Even European countries could not solve this issue among themselves.
Nonetheless,the League of Arab Nations, representedby the Arab Interior
Ministers had in their meeting in Tunis in 1989 arrived at the following definition:
'Terrorism is a very organized act of violence or threatening by violence that causes terror and fear, such as killing, assassination,kidnapping of hostages, airlines or 30 ships, and the use of bombing, aimed at achieving political objectives'. This definition, by stating that terrorism is an organized act of violence, excludes any act of violence that is of immediate reaction. That means, although most of the
terrorist acts are organized acts in term of the time to attack, and the real targets of
their attacks, those who carry out these attacks, and even more importantly the
objectives they seek to achieve, terrorism can be just an immediate action to a
specific event. For example, if the result of an important election was just declared
and some people were not happy with such a result and they immediately,
afterward, violently attacked the supporters of the result, such an act would not be
terrorism according to this definition becauseit was not an organized crime rather a
spontaneousone, though such an action may in future turn into organized attacks if
continued. Nonetheless, it should be noted that this definition was not part of a
legally binding document, rather it was part of a resolution adopted by the Arab
League. There is, however, a legally binding instrument that includes such a
definition of terrorism, which will be discussedmore fully in Chapter 6.
30 R. Paz,'The Arab Ministers of Interioron terrorism'
It could be said that what applies to global and regional efforts could apply to national efforts. Most Statesrefrained from defming terrorism in their criminal statutes, instead prosecuting terrorist crimes under statutes covering murder, kidnapping, explosives, and so on. The reason for not doing so even at the national level, especially in States of totalitarian regimes in which such a definition of terrorism can be imposed with no debateover it, is perhaps due to the complexity of the subject.
More importantly, some Statesare hesitantto define terrorism in such a
broad mannerbecause they fear that such a definition would outlaw their own
conductin certainsituations. Or they fear that sucha broad definition of terrorism
would criminalizethe activitiesof somemovements or groupswhom theseStates
support.
Also, someStates, e. g., SanMarino, do not regulateterrorism because they
have not been subjectto any terrorist attack. Thus, they believe that there is no
need to regulatean act or adopt measuresagainst it. This argumertcannot be
acceptedfor the following reasons:
First of all, whether to take national measures,including the adoptionof
domesticlaw prohibiting certaintypes of terrorist activities,or not is not an option
for Statesanymore. All Statesare obliged to do so in order to implementan
internationalduty imposedthe customaryinternational law to combatinternational
terrorism. Suchan internationalduty had manifesteditself more clearly in the post-
September11,2001, SecurityCouncil resolutions. For example,in the Resolution
24 1373 (2001), the Security Council stressedthat acting under Chapter VII of the UN
Charter, i. e., must be observed and implemented by all States even by States not member to the UN. In the pertinent part, the Resolution assertedthat all States shall:
(a) Prevent and suppressthe financing of terrorist acts; (b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; (c) Freeze without delay funds and other financial assets or economic resourcesof persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generatedfrom property owned or controlled directly or indirectly by such persons and associatedpersons and entities; (d) Prohibittheir nationalsor any personsand entitieswithin their territories from making any funds, financial assetsor economic resourcesor financialor otherrelated services available, directly or indirectly, for the benefit of personswho commit or attemptto commit or facilitate or participate in the commissionof terrorist acts, of entities owned or controlled,directly or indirectly, by such personsand of personsand entitiesacting on behalfof or at.the directionof persons; 2. Decidesalso that all Statesshall: (a) Refrainfrom providingany form of support,active or passive,to entities or persons involved in terrorist acts, including by suppressing recruitmentof membersof terroristgroups and eliminatingthe supplyof weaponsto terrorists; (b) Take the necessarysteps to prevent the commissionof terrorist acts, including by provision of early warning to other Statesby exchangeof information;
25 (c) Deny safe haven to those who finance, plan, support, or commit terrorist acts,or providesafe havens; (d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens; (e) Ensure that any person who participates in the financing, planning, preparationor perpetrationof terroristacts or in supportingterrorist acts is brought to justice and ensurethat, in additionto any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflect the seriousnessof such terrorist acts; (emphasisadded) (f) Afford one another the greatestmeasure of assistancein connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistancein obtaining evidence in their possessionnecessary for the proceedings; (g) Prevent the movementof terrorists or terrorist groups by effective border controls and controls on issuanceof identity papersand travel documents, and through measuresfor preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents?'
The secondreason is that not being yet victimized by terrorism doesnot meanyou are immunefrom it the future. Finally, terrorists,in many cases,commit
their crimes in one country and flee to another. Thus these Stateswill find *
themselveswithout any effectivemeans of dealingwith terroristsin their territory.
However, there are some exceptions,some Stateshave tried to define
terrorism. For example, in the United Kingdom, the British Prevention of
TerrorismAct of 1974stated that for the purposeof this legislation,terrorism is the
'use of violencefor political endsincluding the use of violencefor the purposeof
31 UNSCRes. 1373 (4385th meeting, 28 September200 1).
26 putting the public or any section of the public in fear. 32 Nonetheless, this definition is very wide and could apply to a great many other manifestations of violence other than terrorism, for example, mass violence in the form of riots, violent demonstrations,street battles or civil war ?3 Another criticism that has been directedto a similar definition is the fact that this definition is only concernedabout the actual use of violence and does not give any considerationto the threat of 34 violence. Also, violenceis not vital to terrorismin all cases,therefore all terrorist actsthat dependon the useof chemicalor biological substances,like the nervegas and the anthrax,will be excludedfrom this definition becauseterrorism, according to this definition, is not presentedunless terrorists committed an act of violence which doesnot include the above-mentionedexamples. Moreover, this definition doesnot requirethat the use of violence is to be unlawful, thus it may apply to legitimateacts conductedby the Statelegal authority such as the punishmentand deterrenceof criminals.35
Another example that could be mentioned is the United States. The US is one of the countries that is expected to have much legislation that deals with terrorism, because, according to a CIA report in 1981,40 percent of all transnational terrorism occurred in Western Europe or North America and that 44
involved the US 36 percent .
In the United Statesthere are many statutes that dealwith terrorismat both
32Prevention of Terrorism(Temporary Provisions) Act 1974,Section 14(l). 33 Laqueur,note 6 at 145. 34 W. C. Mullins, A Sourcebookon Domesticand International Terrorism.An Analysis of Issues. Organizations,Tactics and Responses,(Charles Thomas, 1997), 13. 35J. Teichman,'How to DefineTerrorism', in C. Gearty(ed. ), Terrorism,(Darthmouth, 1996), 7. 36 Martin, 'The Media's Role in InternationalTerrorism', in C. W. Kelgley (ed.), International Terrorism:Characteristics, Causes, Controls, (Macmillan, 1990),158,160.
27 State and federal levels. An example of such a federal statute is the Foreign
Intelligence Surveillance Act (FISA), which was enactedby Congressin 1978. In a pertinent part, it provides:
International terrorism meansactivities that:
(1) Involve violent acts or acts dangerousto human life that are a violation of the criminal laws of the United Statesor of any State,or that would be a criminal violation if committedwithin thejurisdiction of the United Statesor any State. (2) Appear to be intended:
(A) to intimidate or coerce a civilian population; (B) to influence the policy of a government by intimidation or coercion; or (C) to affect the conduct of a governmentby assassinationor kidnapping; and (3) Occur totally outside the United States,or transcendnational boundaries in terms of the means by which they are accomplished,the person they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek 37 asylum.
2.1.4. Academic Efforts
In 1983,a study by Alex Schmidcompiled 109 definitions of terrorism,39
thus one may say that now after many yearsof trying to resolvethe dilemmaof
finding a comprehensivedefinition of terrorism,the numberof definitionsthat have
beenproposed is probablyso high as to make it almostimpracticable to go through
themall in orderto discussthem one by one.
Nonetheless, there seemsto be a general agreementthat terrorism involves
the threat or use of violence, seeksto create a climate of fear, often relies on
publicity, and has a political objective. Firstly, terrorism, in many cases,involves
the threator useviolence. Terroriststry to employviolence as much as they can in
37 ForeignIntelligence Surveillance Act of 1978,Section 10 1 (c). 38 J. Lambert,Terrorism and Hostages in InternationalLaw, (GrotiusPublications Limited, 1990),13. 28 order to put people in fear of them and cause the governmentsto become outraged and recourse to indiscriminate repressive measures, which may cause these governments to be seen by people as illegitimate as the terrorists alleged.
Therefore, this would explain the reason why the use of violence by terrorists has been described as cruel and brutal. Secondly, terrorists seek to create a climate of fear, and this is what distinguishes terrorism from other violent actions. Terrorism is intended to terrorize when other actions just happened to terrify. For example, muggers may terrify the population of a large urban area, but they produce terror as 9 a by-product of their crimes, their objectives are wallets and watches, not alarm?
Thirdly, terrorists often rely on publicity to achieve their objectives. Unlike other
crimes where criminals, most of the time, want to be anonymous, terrorists always
leave letters or messagesbehind them claiming responsibility for the act. As a
result they often claim responsibility, even for acts which they did not commit (a
detailed discussion about publicity as a causeof terrorism will be given in Section 3
of this chapter). Finally, terrorists seek to achieve political goals. Even though
some might argue that in some cases,terrorism may be used for personal objectives.
This is undoubtedly true in some cases,but the concern of this research is about
terrorist acts that aim to achieve political goals, becauseit is the political nature of
this act that endows it with a special quality of generalized menace. Other acts of
violence for other reasonsmay cause fear. However, when such acts are conducted
with a mindful defiance of the existing political structure in order to impose the
terrorists' political agenda, they acquire an added sinister weight. Hence, it could
be against anybody at anytime in any place.
39 Jenkins,note 26 at 27,28 - 29. 29 In their never ending circle of efforts to find an accepted definition of terrorism, some scholars argue that the problem could be resolved by replacing the loaded term (terrorism) with more neutral phrases, such as political low-intensity conflict. However, this argument proved to be unacceptable since this term may include activities not normally regarded as terrorism and because it excludes one of the most important elements in terrorism, which is that it seeks to create a climate of fear. 40
In addition to the reasons mentioned above on the international community'sfailure to comeup to an accepteddefinition of terrorism,one may add the following dilemma, which is applicable to all the efforts discussed earlier to defi.ne terrorism. That is, whether such a definition of terrorism should exclude from its scopeall acts,however violent, if committedto achievea legitimateend, e.g., liberation from occupation. In other words, can the endsjustify the means; in which casethe actors cannot be called terrorists?
The Afro-Asian Statesof the UN seem to answer this question in the affirmative, especiallywhen such use of violence was for self-determinationand independence.Hence, they continuallystress the needto 'reaffinn the unalienable right to self-determinationand independenceof all peoplesunder colonial andracist regimes and other forms of alien domination and foreign occupatiolf and the
importanceof upholdingthe legitimacyof such struggles. Therefore,any attempt
to define terrorismas politically motivatedviolence aiming to influencethe policy
40 Sic, 'The Political Underpinningof Terrorism', in C. W. Kelgley (ed.), International Terrorism: Characteristics,Causes, Controls, (Macmillan, 1990),51,53.
30 of a government by intimidation and/or coercion has had no chance of successin many States,41 if such a definition outlaws such struggles.
Such arguments led to the rise of clichds such as "One man's terrorist is 43 another man's freedom fightee942or "Terrorism is the poor man's atom bomb".
These clichds imply that terrorism is either the only technique available or the only effective technique available for those who fight a rich and strong freedom oppressor,foreign occupier or alien dominant.
However, such an argument is totally rejected by most Western countries, which maintain that legitimate ends can never justify the unlawful means. Such legitimate goals should and must only been pursued by lawful means. These two arguments represent the two trends dominating the UN when debating over the adoption of any anti-terrorism convention. Therefore, any attempt to find an accepted definition of terrorism should start consolidating these two trends by creating an atmosphere of common understanding between States on the issue of terrorism.
Despite all of the uncertaintiesand disagreementsbetween scholars and
writers on this subject, there are some definitions of terrorism, which seem
reasonablein someways as they, to a certain extent,bridge the gap betweenthe
different points of views. One of thesedefinitions is Schmid'sdefinition, which
definedterrorism as: 0-
41 P. Chalk, West European terrorism and Counter-Terrorism: The Evolving Dynamic, (Macmillan, 1996), 10. 42 p. Wilkinson, 'Pathways out of Terrorism for Domestic Societies', in P. Wilkinson & A. Stewart (eds.), Contemporary Researchon Terrorism, (Aberdeen University Press, 1987), 456. 43 Teichman, note 35 at 13.
31 'A method of combat in which random or symbolic victims serve as instrumental targets of violence. These instrumental victims share group or class characteristics, which form the basis for their selection for victimisation. Through previous use of violence or the credible threat of violence other members of that group or class are put in a state of chronic fear (terror). The group or class, whose members' senseof security is purposively undermined, is the target of terror. The victimisation of the target of violence is considered extra-normal by most observersfrom the witnessing audience on the basis of its atrocity; the time (e.g., peacetime) or place (not a battlefield) of victimisation or the disregard for rules of combat accepted in conventional warfare. The norin violation createsan attentive audiencebeyond the target of terror; sectors of this audience might in turn form the main object of manipulation. The purpose of this indirect method of combat is either to immobilize the target of terror in order to produce disorientation and/or compliance, or to mobilize secondary targets of demands (e.g., a government) or targets of attention (e.g., public opinion) to change the attitude or behaviour favouring the short or long-terrn interestsof the users of this methods of combat'.44
Thus, accordingto this definition, the hijacking of an aircraft only for the solepurpose of gettingto a destinationother than the intendedone, is not terrorism becauseaccording to this definition, there is not a "target of terror", i.e. the act of violencehas a more immediateand direct purposeand doesnot intend to createa stateof fear or panic. An exampleof the abovehypothesis was the caseof Ex Parte
KoIczynki (1955) in which the British Court deniedthe extraditionrelying on the political offence exception(as will be discussedin Chapter3 in more details) of sevenPolish sailors who took control of their fishing boat by force, brought the ship to Englishport, and soughtasylum claiming that they fled becauseof their fear of beingpunished for reasonsof the political expression.45
44 Lambert,note 38 at 18. 45EX Parte Kolcz)ynki, [ 1955]1 Q. B. 540.
32 Moreover, the same could be said with regard to the assassinationof a political figure only for the purpose of eliminating that person. Also, this definition does not mention the violence againstthings (e.g., property), as opposedto violence against people. However, this defmition is one of the best definitions and one of the reasonsthat many scholars prefer this definition to others, is that it objectively defmed terrorism by the quality of the act, but not by the identity of the perpetrators or the nature of their causes. Therefore, terrorists could be either individuals (or groups) or State actors no matter for what motives. Another reason is that this definition, by stating that terrorists when employing violence, have no regard for the rules of combat accepted in conventional warfare, is meant as a reply to the
terrorists' claim that they are not criminal, but soldiers of war, who have a legal
defence if they kill a soldier of a hostile State in battles otherwise their action will
be considered as unlawful in accordance with the internal law of war which
providedagainst the killing as an objective.
In addition,another definition that hasbeen described as comprehensiveand
simpleis the oneproposed by the US Departmentof State:it definedterrorism as 'a
premeditated,politically motivated violence perpetratedagainst norý-combatant
targets by sub-nationalgroups or clandestineState agents,usually intended to
16 influence , Accordingly, be but it an audience. theremust a political motivation, doesnot favour onepolitical causeover another. Also, this definition applieseither
to individual terroristsor Stateterror. Nonetheless,by describingthe perpetrators
of Stateterror as clandestineState agents, it subjectedthis definition to a subjective
judgement,which renderedit unclear.
46 Pattemof GlobalTerrorism 2000, US Dept. of State, )00/index.cfin? d(nid=-2419>(-visited 25 March, 1999). 33 Nevertheless,this definition does not require a target of terror as Schmid's definition does, so the hijacking and assassinationin the above-mentionedexamples would constitute terrorist acts. Furthermore, by using norl-combatants as the description of the targets of terrorism, instead of civilians or innocents, as most of the definitions did, it would not be confined to terrorist acts perpetrated against civilians because non-combatant targets could be either civilians or unarmed military personnel, even more broadly those military personnel who are not on duty when attacked as the US Department of State affirmS.47 Therefore, the attack on the USS Cole on the coast of Yemen, where seventeenUS armed and on duty military personnel were killed, would be excluded from this definition becausethe victims were combatant targets as provided by this definition. However, in order cover such an incident as that one against the USS Cole as a terrorist act, the US
Department of State amendedits definition and adopted a new criterion. According to this criterion, it is a terrorist act even if committed against military installations or on armed military personnel when a state of conflict does not exist at the site where the attack took placeý8
2.2. CAUSESOF TERRORISM
Exploringthe causesor reasonsthat give rise to terrorismis an integralpart of
any studyof this phenomenon.Searching these causes of terrorismis helpful in two
ways: first, it will help understandingof terrorism and second,it will help in
addressingit. However,like the disagreementabout the definition of terrorism,there
is also a great disagreementabout the causesof terrorism. Going through the
controversiesof terrorism'scauses, it is possibleto identify the mostpotent factors
47Ibid. (visited I February 200 1). 48Ibid.
34 that are responsiblefor the appearanceof terrorism, (here in this section the discussionwill be aboutthe causesof terroristacts committed by individuals(groups) as opposedto terroristacts cornmitted by Stateeagents or by Statessupporters, which will be discussedlater in this chapter).
The centralissue to be answeredhere is whetherterrorism emanated primary
from influencesinternal or externalto the Statethat is the targetof it? Thereare two
traditions,which standin oppositionwith one anotherwith respectto this issue. The
first tradition is with the ideathat terrorismis rootedprimarily in conditionswhere the
political oppressionand the economicdeprivation divested some people's means of
meetingtheir basic needs,and this causedthem to resort to terrorismbecause they
believed that terrorism was the only way to change these circumstances.
Consequently,the proponentsof this traditionmaintain that alleviatingthe frustration
and despairexperienced by the disadvantagedis the best control of terrorismý9The
United Nations' SecretariatStudy had upheldthis tradition in 1972(The Origins and
FundamentalCauses of InternationalTerrorism), which concluded:
It thus appearsthat the misery,frustration, grievance, and despair which leadto terrorismhave many roots in internationaland nationalpolitical, economic,and social situations affecting the terrorists, as well as in his personal circurnstances'.50
Scholars who follow this tradition maintained that aggression is always a
consequenceof fiustration, thus a healthy society would face no such problems, and
the reason why developed countries are more stable than other countries is because
these countries can satisfy the wants of their citizens. Nonetheless, this argument
49 Kelgley, 'The Causes of Terrorism', in C. W. Kelgley (ed.), International Terrorism: Characteristics, Causes,Controls, (Macmillan, 1990), 97,99. "Ibid.
35 can not be assumed true in all cases, stating that aggression is always a consequence of frustration is an assumption, which is by no means universally shared, does not apply to the greater aggression, wars in many cases occurred because fighting is a
51 fundamental tendency of human beings. With respect to the other part of this
argument, which stated that developed countries are more stable than others,
becausethey can satisfy the wants of their citizens, has been proved to be untrue in
many cases. A study of violence in eighty-four countries reached the conclusion
that little repression increasesinstability whereas a great deal of it has the opposite 52 effeCt. Add to that the satisfaction of citizens" wants, which may have a negative
feedback effect, increasing the drive for more satisfaction, thus adding to the sense
of systemic frustrationý3
On the otherhand, are the opponentsof the "root causes"theory who think,
'Terrorism is a pathologicalcontagion that canbe bestunderstood when placed in a
broaderpolitical historicalcontext'. 54 They believethat terrorismdoes not relateto
the existenceof either fortunateor unfortunateconditions because they think that
terroristsare peoplewho chooseto step outsidethe boundariesof acceptednorms
for behaviourand decideto wagea campaignof violenceoutside the acceptedrules
of warfare. For them terrorismis very attractivebecause it abidesby no rules, it
avoidsmilitary targets,its victims are invariablyunarmed, undefended, and unwary
civilians. Accordingly,they think that it is a mistaketo focus on conditionswhich
motivatesome people to engagein terrorismto expressgrievances, because many
peoplethroughout the world suffer intolerableconditions, but only a particulartype
51 Laqueur, note 6 at 158. 52 Ibid. at 154. 53ibid. 54 Kelgley, note 49 at 99.
36 of person will turn to terrorism to vent this frustration and becauseterrorism has
occurred in all kinds of conditions, in countries of economic prosperity and decline,
in big cities and in small towns, and has affected people of various classes. For
example, in Western societies, it is generally argued that there can be no
justification for the use of violence within an effectively functioning liberal -
democracy because other means are available to influence public policy and,
periodically, the composition of the government. Margaret Thatcher declared in her
addressto the American Bar Association in 1985, that 'nor is terrorism confined to
countries where lawlessness and anarchy prevail. Its followers abuse the very 55 freedom of open society to do their evil work.
Another set of causesthat may or may not be related to the abovo-
mentionedcauses, were pointedout by Martha Grenshaw. Shedivided causesof
terrorismto two categories,56 the first one is what she called "preconditions",are
factors that set the stagefor terrorismover the long run. The other categoryis
"precipitants", are specific events that immediatelyprecede the occurrenceof
terrorism. Preconditionscan be enablingor permissive,providing opportunitiesfor
terrorism to happen or situations that directly inspire and motivates terrorist
campaigns.Preconditions can be any of thesefactors:
MODERNIZATION: modemtechnology has proved to be of significanceas a
permissivecause of terrorism. It enablestiny groups,or even one personto
wield giganticpower of deathand destruction. 57
53 C. MacWillson,Hostage-Taking Terrorism, 1992),1. 56 (Macmillan, M. Crenshaw,'The Cause of Terrorisn, in C. W. Kelgley (ed.), International Terrorism: Characteristics,Causes, Controls, ((Macmillan, 1990), 113. 57E. G. O'Ballance, TERRORISM IN THE1980s, (Arms and Armour, 1989), 9.
37
"I'l For example, the ready availability of weaponry, especially the ease with which small arms can be purchasedin many parts of the world. Another example, is the air transportation systems, which have been an easy target for the aircraft hi ackers, it presents the terrorist hijackers with a perfectly insulated hostage group.
One more aspect of modem technology that has played an important role in the cause of terrorism is the mass media. Most of the specialists in terrorism agree that seeking publicity is one of the main reasonsfor individuals (groups) to recourseto terrorism in order to attract the attention of the public to their causeand to appear as a force to be reckoned with. Mass media always plays into the hands of terrorists by dramaticizing
their activities, because the media does not just mirror reality but they create it and
thereby give air to terrorists. Terrorists know that the war that matters is the
propagandawar, says Richard Dutterbuck 'the most powerful weapon in the terrorist 58 war is the television camera', so without mass media, terrorism would have a limited
effect today.
2- URBANIZATION: urban areas have been targeted by terrorism more than
rural areasbecause terrorists can more easily hide themselvesin the towns. It
has been said that in big cities where a mobile population inhabits the
apartments, people often have no idea of the identity of their next-door
neighbours.59
3- SOCIAL HABITS AND HISTORICAL TRADITION: some societies have
been known of their traditional use of violence by making it morally and
58Rapoport, 'Religion and Terror:Thugs, Assassins, and Zealots',in C. W. Kelgley(ed. ), International Terrorism:Characteristics, Causes, Controls, ((Macmillan, 1990), 146,152. 59Guelke, The Age of Terrorism,40. 38 politically justifiable. In Ireland,for example,the traditionof physicalforce dates
from the eighteenthcenturyý'
4- GOVERNMENT'S INABILITY OR UNWILLINGNESS TO SUPPRESS
TERRORISM:absence of preventativemeasures will aid the spreadof the
terroristconspiracy! '
Precipitantsor direct causesare:
(1) THE EXISTENCE OF GRIEVENCES: (as discussedabove).
(2) LACK OF OPPORTUNITY FOR POLITICAL PARTICIPATION: some
maintain that people recourseto terrorism becausepaths to the legal expression of
opposition are blocked.62 This is a very important factor that must be
comprehended. In some Statespeople have no right of political expression,and if
they try to claim to such right even by peaceful means, their government will
crush them. In some cases, the government's retaliation towards those people,
goes far and beyond them to their families and relatives. Thus, how could such
people regain their legitimate political rights from such a government without
resorting to violence? In other words, is there any other way those oppressed
people could recourse to other than violence in order to claim their rights? Can
the international community securethese rights for such people, thus discouraging
them not to use violence?
60 Crenshaw, note 56 at 113. 61Ibid 114. 62 at Ibid. at 115.
39 More andmore factors can be citedhere as causes of terrorism:
The desirefor revengeplays a part in the making of terrorism. Perhapsthe most striking caseof all is the role that the unprovoked,and unpunished,killing of a studentdemonstrator by police during a visit of the Shahof Iran to West Germanyin 63 June 1967,which played a main role in the developmentof terrorismat that time.
Anotherrecent example is the torturingand killing of four Americanand four British tourists in Ugandaby the Hutu terrorists in revengeto the American and British governmentsalleged support for Rwanda'snew Tusti-led governmentagainst the ethnicHutu majority.64
Impatiencecould also be a reasonto recourseto terrorism,especially in cases where the historical moment seemsto presenta unique opportunity. For example, resistancegroups facing a colonialpower, when this power havebeen weakened by a foreignpower. "
Moreover,aiming at extractionof specificconcession, such as the paymentof ransom,the releaseof prisoners,or to improvetheir bargainingpower by creatinga
dramatichostage situation, has beencited as one of the main reasonsto recourseto
terrorism. For example,in September1969, Marighella! s group kidnappedthe US
ambassadorin Brazil and held him hostageuntil the Brazilian governmentgave in to
their demandsand released their friendswho werein prison.66
63Guelke, note I at 46. 64 TouristsRaped and Butcheredin Horrific Act of Revengeon Britain, The independentNewspaper, March3,1999 at 1,3.. 65Crenshaw, note 56 t 118. 66C. Dobson& R. Payne,The Weapon of Terrorism:International Terrorism, ((Macmillan, 1979), 20. 40 In addition, terrorists may find terrorism a good strategyto discredit the governmentby the provokingof indiscriminatecounter-reaction from the government which in returnwill increasethe publicity of the terrorists!cause and demonstrate that criticism of the regime is well founded. Becausesome governments think that in order to defend themselvesfrom this new and violent war, they are compelledto
enforceexceptional laws. Consequentlythese governments are graduallybecoming -
if only temporarily- semi-authoritarianand freedomwill be slowly erodeduntil an
atmosphereof illegality makesdemocratic institutions less and lessviable !7 This is in case where terrorists attackedliberal - democraticcountries, let alone already authoritariancountries.
Furthermore,some individuals may becometerrorists for ideologicalreasons.
Someterrorists were inspiredby the writing of Marx, Lenin, Trotsky and are the
exponentsof revolution and war but since revolutionscan be crushedby military
force, the weak haveto find anotherway'68 and this is the reasonwhy somerecourse
to terrorismis seenas the bestway to fight imperialism.
Last but not least of causesthat can be added to the list here, is the
discrimination against minorities on the base of their religion, colour, ethic
background,language, etc. This could causesuch people to recourseto terrorismin
orderto provethemselves, especially if they havethe supportof a foreign State.
67G. J. Schamis,War and Terrorismin InternationalAffairs, (DanielleSalti Trans.,1980), 72. 68O'Balance, note 57 at 9. 41 2.3. TYPOLOGIES OF TERRORISM
Terrorism can be divided to many typologies, however, for the purpose of this research, terrorism can be divided into four types that allow a clear understanding of the nature of terrorism. These categories of terrorism include international and domestic terrorism on one hand and individual and State- sponsoredterrorism on the other.
2.3.1. International and Domestic Terrorism: terrorism is a phenomenonthat can be both international and domestic in nature. International terrorism is, according to the US Department of State, "Terrorism involving citizens or territory Ofm ore than one countryý9.69In most casesterrorist incidents transcendthe national borders
of one State to another. Even within the territory of the State in which those
terrorists are operating, the victims or the targets they select often have connections
to foreign States, e.g., diplomats, executives, foreign corporations, or even foreign
citizens.
Some writers, however, restrict internationalterrorism to actions of the o abovedescription only if a sovereignState controls the terrorists! Otherwise,they
referred to it as transnationalterrorism, even though; the terrorists enjoy some ' degreeof supportfrom sympatheticStates, as long as they arenot controlledby it!
" Patternof GlobalTerrorism 2000, US Dept.of State 42 Nonetheless,most writers areof the opinionthat Statecontrol of terroristsis not a condition for international terrorism.72 They both, whether State-sponsoredor not should be called international terrorism as long as they involve any of the above-mentionedexamples. They should be called so in order to avoid the already existing ambiguity on the issue of terrorism. Moreover, the establishmentof State involvement in terrorism is very difficult and may, in some cases,be subjective; therefore the same act might be transnational for one State and international for the other with different consequences. Hence, whether State-sponsoredor not, it is an act of international terrorism and it is precisely the type of terrorism that this researchis concernedabout. Also, an act of terrorism must be consideredan act of international terrorism,even if it doesnot includenationals or territory of anotherState or evenif there is not any type of Stateinvolvement in such an act, as long as this act is proscribedby any of the anti-terrorismconventions. In otherwords, even if this act is of a purely domesticnature, it shouldbe consideredas an act of international terrorismwhenever any of the antimtefforism,conventions is applicable. This is in conformitywith the purposeof the anti-terrorismconventions, which is to suppress theseacts that are consideredto be threatto the whole internationalcommunity, but not only to the Statewhere theseacts took place. This is why Article 4 of the Montreal Convention, for example, stated that this Convention shall apply, 'irrespectiveof whether the aircraft is engagedin an internationalor domestic flight..'. 72R. J. Erickson,Legitimate Use of Military Force Against State-SponsoredInternational Terrorism, (Air UniversityPress, 1989), 3 1. 43 In contrast,domestic terrorism is terroristaction that is directedagainst the citizensof one State,does not transcendthe nationalborder, is not sponsoredby any State,and evenmore importantly, is not subjectto the applicationof any of the anti-tefforismconventions. However, currently cases of purely domesticterrorism are very rare becausethere is always or nearly always an internationalelement involvedin suchattack. 2.3.2. Individual and State-Sponsored Terrorism: this category of terrorism is based on whether terrorist individuals or groups get support from a foreign State or not. If they have such support or sponsorshipof any kind, it is State-sponsoredor supportedterrorism. But if individuals or groups have no connection whatever with any State, it is individual terrorism. Nonetheless,it is usefulto discussthe relationbetween States and terrorism which will help to understandwhy in somecases, an actionby a Statewas directed againstanother State because of the latter allegedinvolvement in terrorist attacks committedagainst the former. In otherwords, this relationwill explainthe reason why in some cases responsesto terrorism, as will be discussedlater, were channelledto other States. Some writers have used the term terrorism only to refer to terrorism from individuals and have ignored terrorism conductedby States. However, most writers are of the opinion that terrorism is a term that can be applied to both sub-Stateand State violence, as a scholar once stated that those who do not mention State terrorism must not speak or write about individual terrorism.73 The United Nations 73Laqueur, note 6 at 2. 44 documents from the 1970s refer to the concept of State terrorism conducted by some nations as 'Terror inflicted on a large scale and with the most modem means on whole populations for purpose of domination or interference in their internal affairs, armed attack perpetratedunder the pretext of reprisals or of preventative action by states against the sovereignty and integrity of third states, and the 74 infiltration of terroristgroups or agentsinto the territory of otherstatee. Nevertheless, the concept or the scope of State terrorism, as some writers think, to include "coercivediplomacy 75 shouldnot expand suchactivities as , e.g., the US bombingof Hanoi in 1972and nucleardeterrence, or as othersexpanded it to include military manoeuvresand war gamesin the vicinity of another State which presentsa threatto that State,the transportof nuclearweapons through the territory of other Statesand internationalwaters and the development,testing and deploymentof nuclearand space-weaponssystems. Becausesuch expansion will makethe term Stateterrorism so broad in scopeas to make it unmanageablefrom an operationalperspective! ' Stateterrorism can be dividedto four categories: The first one is the traditionaluse of violenceby the State(such as torture, killing, mass arrests, etc.) against its own population, whether the entire population or a certain segment thereof (such as a minority community or political opposition) or the population of an occupied country. The latter has been the main causethat many developing countries maintain that this kind of State terrorism is the 74Report of the Ad Hoc Committeeon InternationalTerrorism, UN GAOR, 21ýhSess., Supp. 28, para. 24, UN DOC A/9027(1973). 7' Lambert, 38at 16. 76 note Ibid. 45 predominantcause of individual terrorism and should be dealt with as the first necessarystep towardseliminating individual terrorism. An old exampleof this type of terrorismis the Jacobin"Reign of Terroe' in the 180'century in France, during which about 300,000 people were arrested,about 17,000 people were 77 officially executedand many othersdied in prisonwithout trials, (notethat at that time, as mentionedin the first section,the term terrorismwas first used). Usually the purposeof this type of terrorism is to enforcethe authority of power of the State. A recentexample that can be cited here is Iraq in which Sadaam'sregime subjectedthe Iraqi peopleto unprecedentedpersecution, even at the point of using nervegas and chemical weapons against its own peoplein orderto silencethem and prevent them from practicing their political, economic,and social rights. The numberof peoplewho died becauseof this regime'satrocities is morethan 500,000 Iraqi citizens. This is in additionto thosewho areunaccounted for in jails in which torturewas in commonuse. Millions of Iraqi peoplewere also forcedto leavetheir countryfor the sakeof securityand jobs. The secondcategory of Stateterrorism is 'Statesperpetrating terrorism, 78 in which Stateperpetrates terrorist acts in foreign countriesthrough its own official bodies- membersof its securityforces or its intelligenceservices, or their direct agents- againsteither national or foreigntargets for political reasons,e. g., in 1985, Frenchagents engaged in an act of terrorismin New Zealandterritory by blowing 77Ibid. at 15. 78Ganor, note 8. 46 up the Rainbow Warrior, a ship owned by the environmental group "Greenpeacie' 79 and involved in protesting French nuclear testing in the South Pacific. The third category of State terrorism is 'States operating terrorism. 180 in- which Statesinitiate, direct and perform terrorist activitiesthrough groups outside their own institutions. That includes'planning and guidance.Planning means that the Stateis directly involved in the developmentof programsof action (sets of objectives,assets to be used pursuing them and schedules)involving terrorism. These plans may be long-term (plans for terrorist campaignsor to develop a terrorist cadre in an insurgency situation) or short-term (plans for a single, immediateaction). The distinguishingcharacteristic of planning is that it always involves specific combinationsof missions,assets, and schedules. Guidanceis more generaland includeinformation on how progressof actioncan be developed, it involvesinteraction between government agents and terrorists(probably terrorist leaders), but doesnot involvean obligationor expectationof action.81 This categoryincludes for examplethe useof mercenariesby a Stateagainst other States. For instance,during the 1980sthe racistregime of SouthAfrica were officially accusedof committing acts of terrorism against independentAfrican States,in particularAngola, Botswana, Mozambique, Seychelles and Zambia. Such a terroristactivity was conductedby the racistregime of SouthAfrica againstthese Statesby, as in the words of LJNGARes. 37/43 (1982),'the establishmentand use of armedterrorist groupsby SouthAfrica with a view to pitting them againstthe 79Lambert, note 38 at 2 1. soGanor, note 8. 81 Murphy, note 8 at 32. 47 national liberation movementsand destabilizingthe legitimate Governmentsof southernAfrica.. '. 82 The fourth categoryof Stateinvolvement in terrorismis 'Statessupporting terrorism'.83 This category is the broadestone comparedto the other three categories. The DefenseSystem, Inc. (DSI) has identified twelve types of State involvementin terrorism,84 the first two types are about Statesperpetrating and operating terrorism, which have been already mentioned above. Thus the discussionwill be about the other ten types,which show how Statescan support terrorism. According to the DSI, States can support international terrorism by the following: . Intelligence Support to Terrorists, this is the provision of information, but unlike the provisionof informationmentioned above in the "Statesperpetrating terrorism", it implies no control over what the terrorists will do with the informationprovided. - Training given to terrorists and this can be divided into two categories accordingto the State'spurpose to be achievedby the terrorists:Specialized Terrorist and Basic Military. The former includes training in intelligence gathering, infiltration, surveillance, and the use of sophisticated communicationsequipment, explosives, or weapons.The laterconsists of basic 82UNGA Res. 37/43 (3 December 1982). " Ganor, note 8. 84Defense System, Inc., is a consultingfirm located in McLean, Virginia, U.S. that does extensive work on internationalterrorism. SeeMurphy, note 7 at 32. 48 infantry training with standard weapons including physical considerations, marksmanship,hand-to-hand combat, and small unit tactics. - DiplomaticAssets, includes providing passports,documents, and other forms of cover. In addition, it involves use of the privileges of extra-territoriality to fiu-ther the aims of terrorism, e.g., the use of embassyor consulategrounds for organizationactivities. - Provision of High Technology, including nuclear, biological, chemical, and exotic weapons, is the type of aid to terrorism where State involvement is extremely importantand perhaps essential. - Provisionof Weaponsand Explosives(not high technology)is a frequentfonn of State involvement. Logistics support, including media equipment for communicationsand surveillance,may have a considerableimpact on terrorist groupcapabilities. - Provisionof Transportation,includes not only the actualturning over of vehicles, boats,and so forth to terrorists,but alsoallowing the useof nationaltransportation agencies(airlines, and so forth) by terrorists. - Pennitting Terrorists the Use of its Territory, a country supportingterrorism knowingly allows terroriststo useor transitnational territory to plan attacks,train, avoid extradition,and otherwise elude international legal processes.This doesnot include use of diplomatic facilities abroad(see Diplomatic Assets),nor does it imply provisionof governmentresources to terrorists. - FinancialSupport may be direct or indirect. For example,this could includeboth the benefits accrued from direct government participation in the drug trade or thosefrom allowingthe terroriststo dealin drugsthemselves. 49 For failing to - Tacit Support implies foreknowledge and failure to act. example, warn a target State that it is about to be attacked, or to take steps to prevent such an attack when it emanates from home territory. Refusal to co-operate with foreignintelligence and police is alsoa form of tacit support. - Rhetorical Support suggestsspecific statementsor speechesby authoritative governmentfigures that call for, expressapproval of, or endorsethe use of terrorism. It also includesgovernment facilitation or supportof terroristefforts to communicatewith the target populations(propaganda); for example,printing materialsfor use abroad,use of governmentstudios for producingpropaganda films, broadcastinginterviews with or polemicstatements by terroristleaders, and helpingto forge materialsintended to harmtarget governments' interests or smear individualsin highly visible positions. Rhetoricalsupport also includes the useof governmentagents to suggestterrorism to dissidentgroups. 85 Sincethe World War 11,and until the end of the Cold War, terrorismhad become an instrument of foreign policy of the two Superpowers(United Statesand !6 the former Soviet Union) Their connectionsto terrorism assumedmany forms; it took the form of support for groups using terrorism against friends or allies of the rival superpower or against that superpower direCtly! 7 This support have been channelled through a proxy or delivered by the superpower's own military and 88 intelligence service. Here are a few examplesof the superpowers' involvement in international terrorism: examples with respect to the United States, were the US support to the Contras against the communist government in Nicaragua, or to the 83Ibid. 86D. M. Schlaghech,'The Superpowers,Foreign Policy, And Terrorism' in C. W. Kelgley (ed.), InternationalTerrorism: Characteristics, Causes, Controls, ((Macmillan, 1990), 170. 87 Ibid. 88Ibid. 50 the Afghan warriors in their conflict with the USSFL Exampleswith respectto former Soviet Union were its support to the Northern Vietnamesecommunists againstthe US, or its supportto the PLO (PalestinianLiberation Organization) againstIsrael. Most writersthink that the recourseto suchpolicy (supportingterrorism) by 89 the superpowerswas the result of three developments: (1) The World War II ended with many of the old, great powers left prostrate, Germany,France, and Great Britain. (2) The developmentof nuclearweapons with their destructivepower providedthe two superpowerswith the capabilitiesof destroyingmost life on the planet. In order to avoid the risk of using thesekinds of weapons,the US and the USSR soughtto competein more indirect ways,by conductingclandestine activities and covertoperations against each other. In otherwords, they engagedin terrorismin orderto promotetheir interests. (3) The emergenceof the Third World (Latin America,Africa, the Middle East,and Asia), which becamethe focus of the Soviet-Americarivalry, terrorismcame into its own asan instrumentof foreignpolicy. Nowadaysafter the endof the Cold War, the collapseof the SovietUnion, and the developmentof internationalco-operation in condemningState sponsorshipof terrorism and in bringing maximum pressureto bear against such a State, the involvementof the two superpowerscame to an end,or at leastbecame less clear than it usedto be in the past. Still someStates have been accused of supportingterrorism. 8'lbid. 51 According to the US Department of State, Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria are the countries that still support international terrorism in the contemporary world. (Notice that these countries may or may not be considered as States sponsoring terrorism with respect to other countries because, as has been discussed earlier, of the non-existence of an accepted definition of terrorism by all States). In general, the reasons of why States support international terrorism can be one of the following: Firstly, for someStates terrorism is a messageof strength,a warningdesigned to intinUate, to ensurecompliance or obediencewithout the needto use the armed forces. It is usedas a signalthat the next movewill be more severeand may amount to a war. Therefore,the victim Statewill understandthis messageand changeits unwelcomepolicy to the offensiveState. Secondly,some States,especially minor Statesknown as "rogue Slates"90 involvedin sponsoringor supportingterrorism because they are little concernedabout their internationalstanding and becausethey lack the tools for conventionalwarfare except againstother minor States. Thus, they recourseto terrorism as a form of surrogatewarfare or as somemay call it low-intensityconflict. This will allow such Statesto strike at their enemiesin a way that is relatively inexpensivefinancially and less risky militarily, especiallyin today's world of high technology. This suggests 90 W. Laqueur, The New Terrorism, Fanaticism and The Arms of Mass Destruction, (Oxford University Press, 1999), 158. 52 that the best responseto suchjustification of using terrorismby these Statesis to make such a use more expensiveeither in terms of cost or risk. Moreover,some States support terrorist organizations because they sharetheir ideologicalvalues. Therefore,if such organizationsassume power in the countries they engagein fighting with, they will spreadsuch ideology to broad sectionsof the generalpublic. 91 Finally, the following reasonscan alsobe addedin orderto explainsuch State involvementin internationalterrorism; to redressan internationalgrievance they cannotredress by any other means,therefore having an effectiveinternational order shouldeliminate this source,to export revolution,to hunt down and eradicateexiled ?2 dissidentsor to intimidatethem into silence,and to weakena strongadversary State It shouldbe notedthat State-sponsoredterrorism is alwaysan international terrorismas a resultof suchState involvement, whereas individual terrorismcan be either domestic or international terrorism. As it has been said earlier, the establishmentof such Stateinvolvement in terrorismis very difficult to prove,thus most of the terrorist groupsor organizationsare consideredas individual terrorists by manyStates. 91B. Gonor, 'Countering State-SponsoredTerrorism, ' 53 CHAPTER 3: THE INTERNATIONAL CRIMINALIZATION OF TERRORISM As has already been mentionedearlier in Chapter 2, the failure of the internationalcommunity to find a universallyaccepted definition of international terrorism,leads the United Nations and someof its specializedagencies (ICAO, IMO, and IAEA) to resortto the "segmentationof the problem of terrorism"', i. e., adoptedconventions that dealin a piecemealfashion with a numberof international offencesfavoured by terroristgroups. Currently,there are elevenmajor multilateralconventions- (note that all of these conventionshave already enteredinto force except one, the International Convention for the Suppressionof Terrorist Bombing) -related to States' responsibilitiesfor combatingterrorism. In SectionI of this chapter,discussion about these conventions will include; explainingwhat has been done until this writing, the reasonsfor adoptingthese conventions,the debatethat precededthe adoptionof them,if it is useful for better understanding,the type of offencesthey cover,and any new innovation(provisions) in the conventionsthat comesafter an earlierone. However,it shouldbe noted that it is beyondthe scopeof this chapterto talk about all the details that are included in these conventions or the appropriatenessof all articlesprovided for in them, what is important,is how the 1 See, Lambert, Terrorism and Hostages in International Law: A Commentaryon the Hostages Convention1979, (Grotius Pub., 1990), 46. 54 international community dealt with the problem of the type of offences concerned, and the gradual coverageby theseconventions of these offences. Next, in Section2 the questionof the effectivenessof the anti-terrorism conventions(their featuresand shortcomings)will be addressed.Are they effective in combatingterrorism? Or are they only ink on paperdevoid of any real effect?In other words, do they provide a coherentbody of laws that deal effectively with terrorism? After that in Section3 discussionwill be aboutthe use the extraditionas a part of the criminal measuresthat can be takenagainst fugitive terrorists. Whether this processis working properly will be addressedin this section,and if not, why not? Lastly, Section 4 will be concernedwith the idea of establishingan internationalcriminal court vestedwith jurisdiction over internationalterrorism. The questionthere will be whether,if there is any needfor such a court, and the argumentfor andagainst such an idea,and what hasbeen done in this regard? 3.1. ANTI-TERRORISM INSTRUMENTS This section will explain the international conventions adopted by the International Civil Aviation Organization, the International Atomic Energy Agency, the InternationalMaritime Organization,and finally, thoseadopted by the United Nation General Assembly. 55 3.1.1. Conventions Adopted by International Civil Aviation Organization. (the ICAO): During the 1960s, acts endangeringinternational civil aviation had become alarmingly more numerous and widespread. It has been reported that between January 1,1960 and June 30,1977, there were 487 hijackings of aircraft, 299 being successfullyhijacked to a destination, foreign or domestic, other than the scheduled destination, and the remainder were unsuccessful.2 These figures include the seizure of aircraft in flight as well as attacks on aircraft "in servW", i. e., in preparation for or upon completion of flight. Terrorist attacksagainst international civil aviation may take any of the following forms: hijacking, or the diversion of an aircraft from its scheduled destinationby force or threat to anotherdestination, sabotage of aircraft on the ground or in the air, forced flight or the demandthat terrorists be flown to an asylumState from the Statein which they havecommitted an act of terrorism,and any other attackagainst the aviation facilities, e.g., air terminals,cargo building% maintenancefacilities, apron passengervehicles, aprons, cargo areas,taxiways, runways,airport personnel,and any other relatedfacilities that serveinternational civil aviation. Whateverthe motive,an attackagainst civil aircraft andrelated facEties not only servesto producefear, the distinguishingcharacteristic of terrorism,but it is 2 See,A. E. Evans,'Aircraft And Aviation Facilities', in A. E. Evans& J.F. Murphy (eds),Legal Aspects ofInternational Terrorism,(Lexington, 1978), 4. 56 also a peculiarlyheinous crime becauseinnocent persons dissociated entirely from the terrorist's personal or political environment are the victims of such act. The increasingnumber of such acts,urged the internationalcommunity to respond,as a result, suchacts have been the subjectof concernto the UN General Assemblyin its Resolutions2551 (XXIV) and 2645 (XXV) and by the Security Council in its Resolution268 (1970) and its Decision of June 20,1972. For understandablereasons, the developmentof conventions in this area (four conventionsand one protocol) have taken place under the auspicesof the ICAO, supportedand encouraged by the UN regulationsmentioned above? * Conventionon Offencesand Certain Other Acts CommittedOn Board Aircraft (Tokyo Convention, agreed9/63). 4 The provisionsof this instrumentare very modest,dealing primarily with gaps in jurisdictions which exist, or which did exist, with respect to crimes committed on board civil (i.e., not military, customs,or police) aircraft. In particular, the Conventionrequires StatesParties to take such measuresas are necessaryto establishtheir jurisdictions over crimes committedon board aircraft registeredby them. It alsoprovides that offencescommitted on boardaircraft shall be treated,for the purposesof extradition,as if they werecommitted not only in the placewhere they occurred,but alsoin the territory of the registefingState. 3 See, S.M. Finger, 'International Terrorism and The United Nations', in Y. Alexander (ed.), InternationalTerrorism: National, Regional, and GlobalPerspectives, (Praeger Pub., 1976),327. 4 This Conventionentered into force on 4 December1969, and it had beenratified Or accededby 177 nations,status as at I May 2001. 57 In addition, it authorizesthe aircraft commanderto impose reasonable measures,including restraint,on any personhe or she has reasonto believe has committedor is aboutto commitany act that will affectthe safetyof the aircraft in- flight. Other provisions concern such matters as the taking of offenders into custody,restoring control of the aircraft to the commanderand the continuationof the aircraft'sjourney. 5 However, the Tokyo Convention has been criticized as an inadequate measure for the prevention and suppression of international terrorism with respect to international civil aviation because it neither defines nor lists any offence, which States Parties are required to suppress. In other word, it does not have any 6 definition of the corpa delicti, it composes no obligations regarding the extradition or prosecution of the offender or alleged offender, i. e., an absence of the principle 7 of inescapable punishment (aut dedere aut judicare). It also excludes from the Convention's scope of domestic airlines (except airlines passing over the high seas but linking cities of the State of registration). Nevertheless,the Tokyo Convention was the start of the international efforts to deal with terrorism despite the divergence between nations with respect to the question of what constitutes a terrorist act as already mentioned in Chapter 2. 5 For Full Text, See0. Elegab,International Law Documentsrelating to Terrorism,(Cavendish, 1995), 324. 6 1.Blishchenko& N. Zhdanov, Terrorism And International Law, (Progress, 1984), 97. 7 lbid. 58 9 Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention, agreed 12/70).8 Considering the rising incidence of acts of unlawful interference with the operation of air services as well as the deficient provisions of the Tokyo Convention,the GeneralAssembly of the ICAO passedResolution A 16-B7asking the ICAO Council to consider other measures which could be taken towards resolvingthe problemof unlawful seizureof aircrafts. Consequentlywith the UN General Assembly support, especially in its Resolution 2551, the ICAO adopted this Convention. Article I of this Conventiondefines the offencesfalling underit (unlike the Tokyo Convention). It statesthat 'Any person who on board aircraft in flight: (a) Unlawfully, by force or threat thereof, or by any other form of intimidation, seizes,or exercisescontrol of, that aircraft, or attemptsto perform any suchact, or; (b) Is an accompliceof a personwho performsor attemptsto performany suchact, Commitsan offence'. The Hague Convention obliges States Parties to make such offences punishable by severe penalties (Art. 2). Article 7 obliges the State Party in the territory of which the alleged offender is found, if it does not extradite him, to submit the case 'without exception whatsoever' to its competent authorities for the purpose of prosecution (no such provision was provided for in the Tokyo Convention). The 8 This Conventionentered into force on 14 October1971, and it had beenratified or accededby 173 nations,status as at I May 2001. 59 system of extradition established by the Convention is dealt with in Art. 8, which states that the unlawful seizure of aircraft is 'deemed to be included' in any extradition treaty existing between StatesParties and which also obliges StatesParties to include the offence as an extraditable offence in every extradition treaty to be concluded between them. Lastly, the Convention contains provisions obliging States Partiesto afford one anotherjudicial assistancein any criminal proceedingsbrought about under this Convention and to report to the Council of the ICAO any relevant information in their possession.9 The major distinguishingfeature of the HagueConvention, is that it dealswith nothing but the problem of hijacking of aircraft as such. It is (like the Tokyo Convention)designed to protect only an aircraft in flight; moreover,it protectsan aircraft in flight only in the eventof it being the object of an act of seizure;besides, this act is qualified as an offence only when committedby a personon board this particularaircraft. Consequently,the Conventionexcludes from its scopeall actsin other categories,which could produce a similar threat to the operation of civil aviation.10 9 For full text, seeElegab note 5 at 330. 10 Blishchenko & Zhdanov, note 6 at 100. 60 9 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention, agreed9n 1).11 In order to deal with other types of violence against civil aviation, the ICAO adopted the Montreal Convention, which provides that a person commits an offence, if he 'unlawfully and intentionally' does any of a number of listed things, ' 2 namely, 'performs an act of violence against person on board an aircraft in flight, if that act is likely to endanger the safety of that aircraft', 'destroys an aircraft in service13 or causesdamage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety', 'places or causesto be placed on an aircraft in device is likely to destroy that to service .... a or substancewhich aircraft, or cause damage to itý which renders it incapable of flight', or 'endangers its safety', 'destroys or damagesair navigation facilities or interferes with their operation, if such act is likely to endanger the safety of aircraft in flight' or 'communicates information, which he/she knows to be false, thereby endangering safety of aircraft in flight', Art. 1. Other provisions parallel the provisions of the Hague Convention.14 The differencebetween this Conventionand the HagueConvention is that the latter is concernedwith the aircraft itself when it is in flight and when a person " This Conventionentered into force on 26 January1973, and it had beenratified or accededby 174 nations,status as at I May 2001. 12An aircraft is consideredto be in flight at any time from the momentwhen all its externaldoors are closedfollowing embarkationuntil the momentwhen any such door is openedfor disembarkation;in the caseof a forcedlanding, the flight shall be deemedto continueuntil the competentauthorities take overthe responsibilityfor the aircraftand for personsand property on board,Art. 2, Paragraph(a). 13An aircraft is consideredto be in servicefrom the beginningof the pre-flight preparationof the aircraft by groundpersonnel or by the crew for a specific flight until twenty-four hours after any landing;the periodof serviceshall, in any event,extend for the entire period during which the aircraft is in flight, asdefined in Paragraph'V' of Art. 2, Art.2, Paragraph(b). 14 For full text, seeElegab note 5 at 335. 61 on board the aircraft commitsthe offence,but the Montreal Conventionis more comprehensive.It coversthis act andother series of acts,mostly committed on the ground, which are likely to causethe destructionof the aircraft or otherwise endangersthe safetyof aircraft flight. It alsoincludes a specialprovision requiring that 'ContractingStates shall, in accordancewith internationaland nationallaw, endeavorto takeall practicablemeasures for the purposeof preventingthe offences mentioned',Art. 10. However,one of the greatdeficiencies of this Conventionis the absenceof provisionsthat make punishablethe acts of violence againstthe airport ground personnel;aircraft not in service; or against airports serving internationalcivil aviationand related facilities. * Protocolfor the Suppressionof Unlawful Acts of Violence at Airports Serving International Civil Aviation (agreed 2\88, extends and supplementsMontreal Convention).15 This Protocolextends the provisionsof the MontrealConvention by adding to the list of offencesprovided for in the Montreal Convention:the use 'of any device,substance, or weapon'to perform 'an act of violenceagainst a personat an airport servinginternational civil aviationwhich causesor is likely to causeserious injury or death' and the use of any such 'device, substance,or weapon' which destroysor seriouslydamages the facilities of an airport servinginternational civil 15 This Protocolentered into forceon 6 August 1989and it had beenratified or accededby 107nations, statusas at I May 2001. 62 aviation or aircraft not in service located therein or disrupts the services of the 16 airport, if such an act endangersor is likely to endangersafety at that airport. 9 Convention on the Marking of Plastic Explosives for the Purposeof Identification (agreed3/9 1)17 18 This Convention,negotiated in the aftermathof the PanAm 103bombing, is the latestconvention adopted by the ICAO that dealswith internationalterrorism. It consistsof two parts:the Conventionitself, and a TechnicalAnnex, which is an integralpart of the Convention.This Conventionis mainly designedto controland limit the used of unmarkedand undetectableplastic explosives;States Parties are obliged in their respectiveterritories to ensureeffective control over "unmarked' plastic explosives,i. e., those that do not contain one of the detection agents describedin the TechnicalAnnex. Generallyspeaking, each Party to the conventionmust, among other things: take necessaryand effective measuresto prohibit and preventthe manufactureof unmarkedplastic explosives;take necessaryand effectivemeasures to preventthe movementof unmarkedplastic explosives into or out of its territory; take necessary measuresto exercisestrict and effective control over possessionand transfer of unmarkedexplosives made or importedprior to the entry-into-forceof the 16For full text, seeElegab note 5 at 340. " This Conventionentered into force on 21 June 1998 and it had been ratified or accededby 66 nations,status as at I May 2001. " On the eveningof December21,1988, PanAmerican night 103 explodedout of the sky and on the town of Lockerbie,Scotland, killing all 259 passengersand crew on board and a further II local residentson the ground. Two Libyans were named as the planter of the bomb that causedthe explosion. For more details, see J.P. Grant and R.E. Dickinson, 'The Lockerbie Stalemate:Is An InternationalCriminal Court The Answer?', Juridical Review(1996), 250. 63 Convention; take necessarymeasures to ensure that all stocks of such unmarked explosives not held by the military or police are destroyedor consumed,marked, or rendered permanently ineffective within three years; take necessary measuresto ensurethat unmarked plastic explosives held by the military or police, are destroyed or consumed,marked, or renderedpermanently ineffective within fifteen years; and take necessary measures to ensure the destruction, as soon as possible, of any unmarked explosives manufactured after the date-of-entry into force of the Convention for that State.19 Even though this Conventiondoes not in itself createnew offencesthat would be subjectto a prosecutionor extraditionregime, all StatesParties to this Convention are required to ensure that provisions provided for therein, are compliedwith within their territories. It is clear from the above-mentionedconventions how the ICAO adopted theseconventions in a piecemealfashion. It startedwith crimes committedon board civil aircraft without defining or listing such crimes,then it starteddealing with the crime of seizureof the aircraft and the unlawful interferencewith its operation,after that it broadenedits concernwith crimes committedagainst the civil aircraft whether in flight or in service,next, it provided coveragefor acts committedagainst the airportpersonal, facilities, and aircraft on the ground,finally, it obliged StatesParties to mark plastic explosivesin order to identify them and preventthem from beingused for terroristacts against civil aviation. 19 For full text, seeElcgab note 5 at 343. 64 3.1.2. Convention Adopted by the International Atomic Energy Agency. (The IAEA). The concernsof this agencyused to be of three types?o - Preventionof nuclearwar betweenthe superpowers; - Preventionof the ftuther spreadof nuclearweapons; - Preventionof catastrophicnuclear accidents. However, currently a fourth type of concern came into existence: - Prevention of nuclear terrorism. The range of threat posed by nuclear-relatedterrorism embracesat one extremethe hoax -that is a bluff by terroriststo use nuclearmaterial they do not actually have- and at the other extreme the detonationof a nuclear weapon. Betweenthese extremes are numerouspermutations, which pose seriouspotential risks to public healthand safety,including sabotageof nuclearpower plants,theft of a nuclearweapon or of specialnuclear materials with which to fabricatesuch a weaponand dispersal of radioactivematerials? ' Although no known act of nuclear-relatedterrorism has produced a radiological hazard to the public or has pennitted unauthorizedindividuals or groupsto obtain specialnuclear materials. Terroristsmight go nuclearat any time for any of the following reasons: 20See, Report of the InternationalTask Force on Preventionof Nuclear Terrorism, in Y. Alexander (ed.), InternationalTerrorism: Political and Legal Document,(Martinus Nijhoff, 1992),579. 21See, H. H. Brown, 'Nuclear Facilities and Materials', in A. E. Evans& J.F. Murphy (eds), Legal AspectsofInternational Terrorism,(Lexington, 1978), 152. 65 Firstly, to gain a strong bargaining position with which the government is forced to deal. This reason is very probable becauseterrorists do not hesitate to achieve their goals by any means. Whatever means they possessthey will use, especially if what they have is so great a power that it will make the government they want to attack on its highest degree of fear when it is believed that the terrorist do have such access. Secondly, terrorists may use nuclear weapons in order to dramatize their political cause and capture wider publicity for it. Obviously, the use of nuclear weapons in this situation is the best means to attracting media attention that will be happy to cover such a great event and therefore aid terrorists to convey their messageto the whole world. Moreover,threatening to use sucha weaponwill help terroriststo paralyze societywith an extremelydangerous threat to frighten the public and gain support throughintimidation. In addition,those who seekrecourse to terrorismfor the purposeof anarchy or of creatingchaos the use of nuclearweapons will be the best meansto do so. Becauseusing suchweapons will destroypeople and propertyrandomly and create civic andpolitical anarchy,22 Lastbut not least,one more reason that canbe addedto this list is the 22lbid, at 159. 66 ýý-Nl- evidenceof Stateinvolvement in terrorismbecause, even though it might be hard and difficult for individuals to obtain nuclear materials, it will not be the same for governmentsto obtain such materials. Takingthe abovementioned reasons into accountthe IAEA adoptedthe: * Convention on the Physical Protection of Nuclear Material (Nuclear Materials Convention, agreed 10/79ý3 This Conventioncontains an annex, which establishesgeneral levels of physicalsecurity to be providedduring the shipmentsof nuclearmaterial used for peacefulpurposes. According to this Convention,States Parties have to cooperate in the recoveryand return of stolen materials. They are also requiredto enact legislation that makes criminal certain acts such as the theft or any other unauthorizedtransfer of nuclearmaterials, attempts to obtain them by force and threatsto usethem to causeserious harm to peopleor property. The fact that before the adoption of this Convention,there has been a dramatic worldwide commercial development of nuclear energy which has manifesteditself throughthe high increaseof commercialnuclear facilities and the flow of nuclearmaterials among nations, explains the reasonwhy the draftersof this Conventionwere concernedmore aboutthe internationalshipments of nuclear materialsbetween States in orderto preventthem from beingstolen by terroristsbut it does not regulateshipments and programsof nuclear materialsdomestically, whichhas always been resisted by Statesas an intrusioninto their sovereignties. 23 This Conventionentered into force on 8 February1987, and it had beenratified or accededby 69 nations,status as at 25 April 2001. 67 However, the Convention does have other requirements that apply domestically, including obligations placed on each State Party to adopt national statutesdefining such crimes as theft of nuclear materials and threats to use stolen materials, to cause serious harm as indicated above. Furthermore, there are provisions on prosecution or extradition of individuals who engage in criminal acts againstdomestic storage,use or transport?4 In addition,this Conventionis limited to nuclearmaterials for peacefuluses and doesnot covernuclear materials of a military nature. Even more significantly, this Conventiondoes not distinguishacts of nuclearterrorism from other criminal acts involving nuclearmateriaIS? 5 Also, this Conventionis only concernedabout the physicalprotection of the nuclearmaterials but doesnot give any consideration to the spreadof the knowledgeupon which the manufactureof thesematerials is based. Suchknowledge may constitutea seriouscontribution to the capabilitiesof terroriststo go nuclear,especially after the rise of the so-called"rogue scientists9s26 who had been previously employedin the Former Soviet Union but who might havemoved to anotherState for high pay. Nonetheless,this Conventionmay play an important role in preventing terrorists from obtaining nuclear materials on the black market, the principle sourcesof which arethe Statesof the FortnerSoviet Union. This is after the break- up of the SovietUnion in 1991, which resultedin a breakdown of the accounting, 24 For full text seeElegab note 5 at 9. 25 N. GuRRand B. Cole, The Now Face of Terrorism; ThreatsFrom Weaponsof Mass Destruction, (I.B. Tauris,2000), 26 227. Ibid. at 4. 68 control and physical protective measuresfor effective managementand security of nuclear material of the nearly 100 sites that hold enriched uranium or plutonium 27 and the facilities which hold other nuclear materials, which this convention is concemedabout. 3.1.3. Conventions Adopted by the International Maritime Organization. (The IMO) Before the 1980s, ships were not generally regarded as a high-risk terrorist targets,this was not becauseof the high standardof security that Stateshad in their ports, but becauseterrorists preferred aircraft as relatively more vulnerableand easiertargets than ships, however, this haschanged as it will be discussedlater. The international community first started considering ships as potential 28 targets of terrorist attacks after the Achille Lauro incident, which underlined the possibility of ftu-therserious attack againstships and led to a rapid international response,which took two forms: the negotiation,following an Americaninitiative 27Ibid. at 57. 28On October7,1985, four armed men claiming to representthe PalestineLiberation Front took controlof the Italian-flagcruise liner Achille Laura on the high seasabout thirty miles off Port Said (Egypt)and held the crew and passengershostages. They had boardedher in port in Geneoposing as legitimate passengers.They demandthe releaseof fifty Palestinianprisoners held in Israel and threatenedto blow up the ship if interventionwere attempted,and to start to kill the passengersif the demandswere not met. Subsequentlya JewishAmerican passenger, Mr. Klinghoffer, was shot dead and his body thrown overboard. Severaldays later the four men gavethemselves up to the Egyptian authorities,following negotiationbetween them, with the aid of an intermediary,while the ship was lying off Port Said. Thesenegotiations resulted in an offer to the terroristsof a safeconduct to Tunisia in return of their leaving the ship without further violence. However,on October 11, an Egyptian civilian aircraft was interceptedby US military aircraft over the MediterraneanSea and instructedto land at an air force basein Sicily. Four Palestinianon boardwere detainedby the Italian authorities and subsequentlyindicted and convictedin Genoafor offencesrelated to hijacking of the ship and the death of Mr. Klighoffer. Italy, which had apparentlynot been consultedabout the interception operation,refused a requestfrom the US for their extradition. The Presidentof the UN Security Council condemnedthe attack in a statementon behalf of all its members. See,G. Plant, 'Legal Aspectsof Terrorism at Sea', in R. Higgins & M. Flory (eds.), Terrorism and International Law, (Routledge,1997), 68. 69 in the IMO, and adoption in September 1986 of set of global standards for port security- the Measuresto Prevent Unlawful Acts Against Passengersand Crews on Board Shipsý29,and the negotiation, once the measureswere in place, of a dedere autjudicare-type convention to cover ships and that resulted in the IMO adoption of-. * Convention for the Suppressionof Unlawful Acts Against the Safety of Maritime Navigation(Rome Convention, agreed 3/88)30 This Conventiondefmes ships to which this appliesas 'a vesselof any type whatsoever not permanently attached to the sea-bed, including dynamically supported craft, submersibles,or any other floating craft', warships are excluded from the application of the Convention, as well as ships 'owned or operated by a State when being used as a naval auxiliary or for customs or police purposes' and ships which have 'been withdrawn from navigation or laid up, Art. 1. Consequently,government ships operatedfor commercial purposes, or government ships not operated for commercial purposes such as research ships or icebreakers, ' are included in the scopeof the Convention? The Rome Convention applies to all cases of navigation, actual or scheduled, except cases of short-range or local cabotage, that is, when a ship is 2' Thesemeasures were regardedby somecountries as more importantthan the Convention(Rome Convention)itself becauseit dealswith measuresthat shouldbe takenin ports in which it will be most easyto preventattacks against ships rather than measures that shouldbe takenon boardships at seaand becauseit is morepractical that the Conventionwhich havea more symbolicthan practicalrole. See ibid. at 69. 30This Conventionentered into force on I March 1992 and it had been ratified and accededby 52 nations,status as at 30 April 2001. 31See, T. Treves,'The Rome Conventionfor the Suppressionof Unlawful Acts Againstthe Safetyof Maritime Navigation', in N. Ronzitti (ed.), Maritime Terrorism and International Law, (Martinus Nijhoff, 1990),73. 70 navigating or scheduledto navigate only within the internal waters or territorial sea (or both) of a single State, whether the flag State or another State. However, even in caseswithin this exception, the Convention applies, if the offender or the alleged offender is found in the territory of a State other than the State in whose waters the cabotagewas taldng place, Art. 4. It also establishes a legal regime applicable to acts committed against international maritime navigation that is similar to the regimes established against internationalcivil aviation (especiallythe Hagueand the Montreal Conventions). Nevertheless,this Conventionadds three more offencesto be coveredby it, which had not beenprovided for in the precedentconventions (e. g., Hagueand Montreal Convention).These offences are the following: - The act of the person who 'injures or kills, any person, in connection with the commissionor the attemptedcommission of any of the offencesset forth in Subparagraph'a' to T, Art. 3. . The act of the personwho abets-(not only attemptsor participatesin) -the commissionof theseoffences, Art. 3 (1) (b). - The act of the personwho 'threatens,with or without a condition,as is provided for undernational law, aimedat compellinga physicalor juridical personto do or abstainfrom doing any act', Art. 3 (2). Consequently,it adds three more basesfor discretionaryjurisdiction to StatesParties over the offenderor the allegedoffender; two of them corresponding to the above-mentionedadditional offences: 71 In the first four basis of mandatoryjurisdiction, it followed the precedents (especially the Montreal Convention), in which it obliges State Party to establish its jurisdiction when is board flying the flag that - The offence committed against or on of ship of state; is in that State; - The offence committed the territory of is State; - The allegedoffender a nationalof that or is foundin State it does hirn/her.Art. 6 - The allegedoffender that and not extradite (a) After that it provides that a State Party may also establish its jurisdiction overany suchoffence when: (a) It is committedby a Statelessperson whose habitual residence is in that State; (b) During its commission a national of that State is seized, threatened, injured or killed; or (c) It is committedin an attemptto compelthat Stateto do or abstainfrom doing 32 any act. Art. 6 (2). 9 Protocol for the Suppressionof Unlawful Acts Against the Safety of Fixed PlatformsLocated on the ContinentalShelf (agreed 3/88ý 3 34 fact The that there are over 5000 off-shoreplatforms aroundthe world, employedfor extractingoil or naturalgas, and the fear thatthey canbecome the 32 For full text, seeElegab note 5 at 477. 33This Protocolentered into forceon I March 1992,and it had beenratified or accededby 48 nations, statusas at 30 April 2001. 34See, N. Ronzitti, 'The Preventionand Suppressionof Terrorism Against Fixed Platforms on the ContinentalShelf, in N. Ronzitti (ed.), Maritime Terrorismand InternationalLaw, (MartinusNijhoff, 1990),91. 72 targetsof terrorist attacks,which will not only endangerthe life of people on board, but can also cause severepollution, damaging the environment, urged some States (especially Spain and the US) to propose to the IMO Committee at the same time of drafting the Rome Convention, to draft a Protocol aimed at protecting the Safety of fixed platforms located on the continental shelf. In the adoption of this Protocol, the drafters very closely followed the pattern of the Convention. It applies to parallel offences- as provided for in the Convention, Art. 3-on board or against a platform (this includes artificial islands, and installations or structurespermanently attached to the sea-bedfor the purpose of exploration or exploitation of resources or for other economic purposes, Art. I (1) located on the continental shelf of a StateParty. Art. 2. In addition, Article 3 of the Protocol is identical mutatis mutandis to Article 6 of the Convention, except that the separate grounds for establishing obligatory jurisdiction based on registry of the ship and location within a State's territory are replaced with a single ground for such jurisdiction, based on the location of a platform on a State's Continental Shelf. Moreover, it applies to all offences against or on board installations in a State's Continental Shelf, and to offences against or on board installations in a State's territorial sea or internal waters when the offender escapesabroad. Art. 1 (2ý5 Finally,the Protocolis openfor ratificationor accessionsolely to those 35For full tcxt sce27 LLM. (1988),685-690. 73 States,which are Partiesto the Convention, and it will enter into force only after the entry-into-force of the Convention. This solution has been chosen for fear that Stateswhich have fixed platforms on their continental shelf would have ratified the Protocol, but not the Convention, whereas those States which do not have fixed platformswould haveratified the Conventionand not the Protocol. In effect, the two instrumentsare complementaryto eachother, and both needto be ratified in order to avoid loopholes. This is particularly true for those structuresthe legal natureof which is uncertain,so if a structurecannot be considereda "ship", thus falling underthe scopeof the Convention,it shall be deemeda "fixed platform" to which the ProtocolapplieS? 6 3.1.4. Conventions Adopted by the United Nations General Assembly. Now the discussion will be about the other international conventions that had been adopteddirectly by the UN General Assembly: 9 Convention on the Prevention and Punishment of Crimes Against International Protected Persons, Including Diplomatic Agents (New York Convention, agreed 12/73)37 Diplomatic inviolability is considered to be one of the most ancient and acceptedprinciples in international law, although there has been less agreementon the basis of this principle. Among many theories that have been advancedto justify the extensionof a special protection to diplomats, three are prominent?8 36See, Natalino note 31 at 95. 3' This Conventionentered into force on 20 February1977, and it had beenratified or accededby 107 nations,status as at 13June 2001. 39 See,J. F. Murphy,'Protected Persons and Diplomatic Facilities', in A. E. Evans& J.F. Murphy (eds), LegalAspects ofInternational Terrorism, (Lexington, 1978), 278. 74 The first of which, is the theory of personal representation,which stated that the diplomat is the personification of his ruler or of a sovereign State and an attack on him is equal to an attack on his ruler or the sovereignty of his State. However, as the concept that the ultimate sovereignty resides in the people not the rulers grows more and more, this theory is losing much of its logic and support. The second theory, is the theory of extraterritoriality, which based on two separate but closely related legal fictions: the concept of residence, which according to it, the diplomat is not subject to local law becausehe does not reside in the host State; and the concept of territory, which according to it, the diplomatic premises are consideredto be the same as foreign territory. However, this theory has lost much of the support that it used to have in the past, and most modem jurists have largely abandonedit. The third andthe most acceptedtheory, is the theoryof functionalnecessity, which based on the premise that the interdependencebetween Statesrequires freedomof communicationand freedomof movementfor the diplomatsin order that Statesmay carry on internationalintercourse. This theory is especiallyuseful to explainthe extensionof privilegesand immunitiesto internationalorganizations and their personnel, since such organizations are without territory or representationalstatus. Whateverits theoreticalbasis, the principle of diplomatic inviolability has now beencodified in a numberof internationalconventions: Vienna Convention on Diplomatic Relations; Vienna Convention on Consular Relations; the Convention 75 on the Privileges and Immunities of the UN; the Convention on Special Missions; and Vienna Convention on the Representation of States in Their Relations with International Organizationsof a Universal Character. The existenceof the principle of diplomaticinviolability in both customary and conventionalinternational law may raise the questionof the need for a new convention,since they already provide protection for diplomats from violent attacks.The answerto this questionis threefold:39 firstly, undertraditional law and practice,the rangeof personsentitled to specialprotection is unclear (especially with respectto officials of internationalorganizations, or ad hoc diplomats). Secondly,traditional international law hasbeen ambiguous about the measuresthat shouldbe takento ensurediplomatic inviolability, especiallyin caseswhen a State apprehendsthe offenderor the allegedoffender, or in caseswhen the attackagainst a diplomat was committedin one State and the offender fled to another State seekingsafe haven. Finally, traditional internationallegal measureshave lacked establishedprocedures for internationalcooperation in preventingand punishing violationsof diplomaticinviolability. Attackson diplomatshave increased in numberand in the level of violence employed;between 1973 and 1974,there were 34 incidentsof violent attackson diplomatsor diplomaticpersonnel. 40 The reasonof the growing of suchattacks are that the threatand the useof force againstdiplomats has become an integralpart of the terrorists' strategy. In most cases,terrorists consideredthe diplomat as an 39 See,ibid. at 299. 40Ibid. at 280. 76 instrumental target, i. e., he may be viewed merely as the instrument the attackers use to induce certain behavior, especially concessions, from target governments (note that the target governmentmight be the government of the receiving State, the governmentof the country the diplomat represents,or the government of some third party). However, in a few other cases,a diplomat may be considered as a primary target of the terrorist attack, i. e., he may be attacked for crimes he allegedly personally committed. In contrast with the failure of the General Assembly to adopt the draft convention on suppression and prevention of international terrorism, which was proposedby the US in its 27" sessionas has been mentioned earlier in Chapter 2, it succeededin its 2e sessionin adopting this Convention (New York Convention). With respect to the range of persons covered by its provisions, this Conventionintroduces a new concept into internationallaw jurisprudence:the "internationally protected persons". Under Article 1 (1), the internationally protectedperson is defined as, a head of State,a minister for foreign affairs, a representativeor official of a State or of an internationalorganization who is entitledto specialprotection from attackunder internationallaw at the time when, andin, the placewhere the crimeis committed. This Convention also requires each Party to criminalize and make punishable'by appropriatepenalties which take into accountthe gravenature the intentionalmurder, kidnapping, or other attacksupon the personor liberty of an internationallyprotected person, a violent attack upon the official premises,the 77 private accommodations,or the means of transport of such a person; a threat or attempt to commit such an attack; and an act 'constituting participation as an accomplice'. Art. 2. In addition,it obligeseach StateParty to establishits jurisdiction over the crimes set forth in Art. 2 in any of the following cases: in - When the crime is committed in its territory or on a ship or aircraft registered it; - Whenthe offenderis oneof its nationals; - Whenthe diplomatsubject to the violent attackwas actingon its behalf, - Whenthe offenderis presentedin its territory andit did not extraditehim. Art. 3 (1) '2'. Other provisions require the State Party that has custody over the offender to eitherextradite him or submitthe caseto its competentauthority for the purpose of prosecution.It alsorequires States Parties to assisteach other in connectionwith criminal proceedingsbrought under the Convention! ' It shouldbe notedhere that during the negotiationof this Convention,many States(especially Arab and African Countries)introduced an amendmentto this Convention. They proposedthat the Convention should not apply to people struggling againstcolonialism, alien domination, foreign occupation, racial For full text, seeElegab note 5 at 572. 78 discrimination, and apartheid in the exercise of their legitimate rights of self- determination and independence. However, a compromise was reached between those States and others, in which they all agreed that this exception will not be be provided for in the Convention itself but in a resolution which will Convention it 42 simultaneouslyadopted with the and which related to . e International Convention Against the Taking of Hostages (Hostages Convention, 3 agreed 12/79ý This Conventionwas negotiatedfor the first time in the GeneralAssembly on September1976 in the wake of the Israeli operation to rescue its nationals held hostageat Entebbe,and following the successfulconclusion of the previously mentionedinternational conventionsdealing with particular types of terrorist offences. During the negotiation of this Convention, there has been a great 44 controversy over the definition of hostagetaking and the scope of the Convention. Some argued that the term hostage-taking should not only include the seizure or detention of a person, but should also include that of massesunder colonial, racist or foreign domination, in a way that threatens him or them with death or severe injury or deprives them of freedom. Another argument was that the definition of hostage taking should be drafted in such a way as to prohibit only the taking of "innocenf' hostages,suggesting that "guilty" individuals, i. e., those connectedwith 42See, Finger note 3 at 342. 43This Convention entered into force on 3 June1983, and it hadbee ratified or accededby 95nations. statusas at 13June 2001. " See,Lambert note I at62. 79 colonialismor foreign domination,could be takenhostages. Other arguedthat this Conventionshould not be appliedto peoplestruggling against colonial rule, racist andforeign regimes. However, no exceptionbased on the motive of the offenderor the identityof the victim wasdrafted into the HostageConvention. It should be noted here, that during the time of negotiation this Convention, which took about three years from proposing this Convention on September 1976, until its adoption on December 1979- a number of dramatic and well publicized incidents of hostage taking and subsequent rescue operations by non-territorial Stateshad taken place-.45 the 1977 hijacking of a Lufthansa aircraft and holding of hostages at Mogadishu, Somalia, which precipitated a rescue operation by commandoesfrom the Federal Republic of Germany; and the 1978 hijacking of an Egyptian aircraft and the holding of hostagesat Lamaca, Cyprus, which resulted in a raid by Egyptian commandoes. Moreover, the US hostages in Iran were seized only one month before the General Assembly's consensus adoption of the Convention. Article I of this Conventionprovides that a person commits a hostage- taking offence when he 'seizes or detainsand threatensto kill, to injure or to continueto detainanother person in order to compel a third party, namelya State, an internationalintergovemmental organization, or a natural or juridical person,a group of persons,to do or abstainfrom doing any act as an explicit or implicit conditionfor the releaseof the hostages'and includes also any attemptor 45 Ibid. at 65. 80 participation as an accomplice. Hence, the act must be directed against a third party, but not against the victim himself, which according to Article I will not be consideredas an act of hostagetaking. The Conventionalso makesit imperativefor the StatesParties to prosecute under criminal law or extradite any person committing an act of hostage-taking, Art. 8, and take appropriate measures of punishment, considering the grave characterof such an offence. Art. 2. Moreover,it requireseach State Party to establishits jurisdiction over the offencesset forth in Article I in any of the following cases: - Whenthe offenceis committedin its territory; When the offence is committed on board a ship or aircraft registered in that State; When the offence is committed by its national or if that State considers it appropriate,by thoseStateless persons who have their habitualresidence in its territory; - When the offenceis committedin order to compel that Stateto do or abstain from doingany act; or - When the offence is committed against a national (the hostage) of that State, if that Stateconsiders it appropriate. Also a StateParty may establishits jurisdiction when the offenderpresents in its territoryand it doesnot extraditehim. Art. 5. 81 Other provisions require States Parties in the territory of which the hostage is held, to take appropriate measures to ease the situation, and required States Parties to assist each other in connection with criminal proceedings brought under the Convention.46 9 International Convention for the Suppression of Terrorist Bombing (agreed 12/97ý7 The US initiated the negotiation of this Convention in the aftermath of the deadly truck bombing attack on US military personnel in Dhahran, Saudi Arabia, 48 on June25,1996. That attackand other similar attacks, i.e., attacksby bombs, madeclear that, althoughthere were many importantcounter terrorism conventions as mentionedearlier, none of these conventionshas dealt with the problem of attacksby terroristsin public placessuch as the DhahranBombing. The Conventionis structurallybased on prior counterterrorism conventions adoptedby the UN and its specializedagencies. 49 It includesa requirementthat StatesParties criminalize certain conduct, submit for prosecutionor extradite personsfound in their territory suspectof the proscribedoffences, and cooperatein the investigationand prosecutionof the offences. Likes its predecessors,the Conventiondoes not attemptto define 'terrorism' but, instead,defines particular 46For full text seeElegab note 5 at 5 18. 47This Convention is not yet in force, it had been ratified or accededby 24 nations, status as at 13 June 2001. 4' These include the poison attacks in Tokyo's subways, see U. S. Dept. of State, Pub. No. 10,321, Patternsof Global Terrorism: 1995, at 5 (1996); a bombing in Colombo, Sri Lanka, see U. S. Dept. of State,Pub. No. 10,433, Pattern of Global Terrorism: 1996, at 28 (1997); and a bombing in Manchester, England, seeibid. at 32. 41 See, S.M. Witten, ' Current Developments: The International Convention for the Suppression of Terrorist Bombings', 92 (4) American Journal ofInternational Law, (October 1998), 775. 82 conduct that, regardless of its motivation, is condemned internationally and therefore is an appropriatesubject of international law enforcement cooperation. Under Article 2 (1), a person commits an offence within the meaning of this Convention,if he "unlawfully and intentionally delivers, places, dischargesor detonatesan explosiveor other lethal device5oin,into or againsta place of public use, a State or governmentfacility, a public transportation system, or an infrastructurefacility: 51 (a) with the intentto causedeath or seriousbodily injury; or (b) with the intentto causeextensive destruction of sucha place,facility or system, wheresuch destruction results in, or is likely to result,in major economicloss. Article 2 also providesthat an attemptor participationas accompliceis consideredas an offenceunder the Convention. In addition, it addsto the list of ancillary offences, the act of organizing or directing others to commit such an offence,or in any otherway that contributesto the commissionof one or moresuch " Paragraph3 of Article I defines"explosive or lethal device" as including not only conventional explosiveor other incendiarydevices, but also toxic chemicals,biological agentsor toxins or similar substances,and radiationor radioactivematerials. The Conventionwill thus addressnot only attacks with conventionalexplosives such as attackon U.S. personnelin Dhahran,but will also includeattacks with chemicalmaterials such as these used in the 1995episodes on the Tokyo subwaysystem. 51Article I definesthese four categoriesas follows: (a) "Stateor governmentfacilitiee' includesany permanentor temporaryfacility or conveyancethat is usedor occupiedby representativesof a State,members of Government,the legislatureor the judiciary or by officials or employeesof a State or any other public authority or entity or by employeesor officials of an intergovernmentalorganization in connectionwith their official duties. (b) "Infrastructurefacility" meansany publicly or privately owned facility providing or distributing servicesfor thebenefit of the public, suchas water, sewage, energy, fuel or communications. (c) "Placeof public use" meansthose parts of any building, land, street,waterway or other location that are accessibleor open to membersof the public, whether continuously,periodically or occasionally,and encompassesany commercial, business, cultural, historical, educational, religious,governmental, entertainment, recreational or similar placethat is so accessibleor opento thepublic. (d) "Public transportationsystem" meansall facilities, conveyancesand instrumentalities,whether publiclyor privatelyowned, that areused in or for publicly availableservices for the transportation of personsor cargo. 83 This offence by a group of persons acting with a common purpose. makes this Convention more comprehensivethat the other conventions. Moreover,it requires StatesParties to adopt any measuresthat may be in necessaryto ensure that criminal acts, within the scope of this Convention, particular where they are intended or calculated to create a state of terror, are not justifiable by considerations of political, philosophical, ideological, racial, ethnic, religious or other similar nature and are punished by penalties consistent with their 52 gravenature. With respectto the basisof criminaljurisdiction, it providesthat eachState Party is required to establishits jurisdiction (mandatoryjurisdiction) over the offencesset forth in Article 2 when: - The offenceis committedin its territory; State - The offenceis committedon board a vesselflying the flag of that or an aircraftwhich is registeredunder the law of that Stateat the time the offenceis committed;or - The offenceis conunittedby oneof its nationals.Art. 6. It also provides that a State Party may establish its jurisdiction (discretionaryjurisdiction) over these offences when: 52There is no parallel to this article in the prior counterterrorism conventions. This provision was addedduring the negotiationsprimarily becausesome delegations thought it importantto include the conceptthat conductdescribed in the Conventioncan instil "terror" in the public (althoughthe word is not definedand it is not an elementof the offencesin Article 2) and to emphasizethat the offences outlinedin Article 2 shouldbe universallycondemned and criminalizedregardless of the motivations of theperpetrators. 84 - The offence is committed against its national; - The offence is committed against a State or government facility of that State abroad, including an embassyor other diplomatic or consular premises of that State; - The offenceis committedby a Statelessperson who has his habitualresidence in the territory of that State; or - The offence is committed on board aircraft, which is operated by the govemmentof that State.Art. 6 (2). Add to that, Article 6 (4), which requires a State Party to establish its jurisdictionwhen the allegedoffender is in its territory and is not extraditedto any of the Stateswith jurisdictionunder the Convention. Another unprecedented provision in this Convention with respect to the other anti-terrorismconventions, is Article 8 (2), which provides that the State Party can dischargeitself from the obligation imposed by the Convention to extraditethe allegedoffender or submit the caseto its competentauthority for the purposeof prosecutionby the temporarytransfer of its nationalsfor trial, if that Statecould not otherwiseextradite its nationals,provided that both Partiesagree to sucharrangements. 53 It shouldbe notedhere that this Conventionapplies neither to the activities of armed forces during armed conflicts nor all the activities undertaken by military 53For full text, see37 (1) I.L. M., (1998),25 1. 85 forcesof a Statein the exerciseof their official duties,because these activities are alreadycomprehensively governed by other internationalinstruments relating to the law of war, the internationallaw of state responsibility, and the international humanitarianlaw. Even though, this Convention is not yet in force, this Convention is very importantbecause it broadensand strengthensinternational law enforcementand cooperationin casesof internationalterrorism, and as the use of explosivesand other lethal devices become more frequent than they used to be and more destructive. 3.2. THE EFFECTIVENESS OF THE ANTI-TERRORISM CONVENTIONS The conclusionof an internationaltreaty that deals with a problem of internationalconcern is the inevitablestep towardsthe solution and preventionof sucha problem. However,not every treatyaccomplished what it was expectedto accomplish,some treaties are affectedwith defectsthat render them ineffective. This sectionwill discussthe featuresand the shortcomingsof the anti-terrorism conventions. 3.2.1. The Features of the Anti-Terrorism Conventions Before start talking about the features of the anti-terrorism treaties, it is worth mentioning here that despite the decreaseof some terrorist acts e.g., hijacking,in the early 1970s,it is impossibleto concludethat the decreasewas the resultsolely of the adoptionof thesetreaties, because there were other factorsthat might alsohave played a part in the declineof hijacking at that time. Stateswere 86 taking a firm stand against that crime i. e., hijacking, and applying advance airport security measureswhich made it very difficult for the would-be hijacker to carry out his action. Nonetheless,there are so many other contributions made by these conventions in combating terrorism, which could also play an effective role in the deterrenceof terrorism. An important feature of these conventionsalong with other related UN resolutions- (for instance, the General Assembly Declaration on Principle of InternationalLaw ConcerningFriendly Relationsand Cooperationamong Statesin Accordancewith the Charterof the UnitedNations which was adoptedin 1970)-isthe reinforcementof the principle of the non-useof territory of one Statefor terrorist acts againstanother State. According to this obligation as the Declaration in its 9ýh Paragraphstates 'every Statehas the duty to refrain from organizing,instigating, assistingor participatingin acts of civil strife or terrorist acts in another state or acquiescing in organized activities within its territory directed towards the commissionof suchacts, when the actsreferred to in the piesentparagraph, involve a threator useof force'. This obligationis very importantin the war againstterrorism, since in many casesof terrorism, the terrorists emanatedfrom or operatedin the territory of anotherState either with or without the knowledgeof the territorial States. However,the provision of such an obligation in theseconventions is not sufficientto guaranteeadherence from StatesParties unless these States are forced to do so. In otherwords, despite the provisionof suchan obligation,States Parties 87 may violate it by allowing terrorists to operate from their territories in order to commit terrorist attacks against other States. They can do so without being punished by any enforcement action. The only type of measuresmentioned in the conventions is extradition or prosecution and obviously none of these actions could be applied to States when they become accomplices in any act of terrorism in violation of the relevant anti- terrorism convention to which they are party. Nonetheless,one may say the Security Council of the UN may take actions in such cases, as in the Lockerbie incident by imposing economic sanctions. Although this may be true in some cases,it is not in all cases. For example, in the Rainbow Warrior Incident the Security Council had not even contemplated the imposition of any type of sanctions against France. Instead, the Security Council asked the Secretary General of the UN to settle this dispute kindly by his good office. Consequently, New Zealand received a monetary compensation from France and the French officers who committed terrorism were sent to spend their sentenceson a French Island. Another important contribution made by these instruments, as pointed out by Armith is that some of the provisions that have been provided for in these anti- terronsm conventions enhanced or at least reflected a greater acceptance of the Principle of Universality.54 `4A. R. Perera,International Terrorism, (Vikas Pub., 1997), 196. 88 First, all anti-terrorism conventions require States Parties to make the offences specified therein as prohibited conduct under their domestic laws. A typical article is Article 2 of the New York Convention, which states 'every State Party shall make the offences set forth in Article I punishable by appropriate penalties which take into account the grave nature of those offencee. This requirement will help in creating a high degree of uniformity of legislations of States Parties by making these acts crimes, and this has the effect of the "standardizationof offences!'55, which is an essentialpre-requisite of the acceptance of the principle of universality of jurisdiction and will also satisfy the requirement of dual criminality for the purpose of extradition. The second and the foremost contribution of these instrumentsto the development of the principle of universality and the fight against terrorism is the central obligation contained in all of the anti-terrorism conventions that of aut dedere autjudicare, i. e., the State Party in whose territory the alleged is present shall, if it does not extradite him, 'without exception whatsoever, and 'without undue delay', submit the case to its competent authorities for the purpose of prosecution. An example of such an obligation is Article 7 of the Hague Convention which, (notice that this article, if not identical to the correspondent articles in other anti-terrorism conventions is remarkably similar to them), provides that 'the Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever, to submit the caseto its competent authorities for the purpose of prosecutioW. 55Ibid. 89 Thus, unlike the case of conventional principles of jurisdiction, i. e., territorial principle, which according to it, a State, in the exercise of its sovereignty, is competent to prosecute all crimes committed within its territory, irrespective of the offender's nationality, and active nationality principle, which according to it, the Statehas the jurisdiction to prosecuteand punish nationals who have committed crimes abroad, irrespective of the fact that the crime has had no effect upon the state of nationality of the criminal offender. As well as the less conventional principles of jurisdiction such as the passive nationality principle, which according to it, the State may have jurisdiction to prosecute and punish criminal offenders who committed crimes abroad against its nationals. However, this principle is not widely accepted as the above-mentionedprinciples, and the protective principle, which according to it, the State has the right to prosecute and punish criminal offenders who committed crimes abroad, which were prejudicial to its vital interests,irrespective of the territory where the crimes took place or the nationality either of the offender or the- victim. However, like the passive nationality principle, this principle is less traditional than the first two principles. Therefore all the above mentioned principles require for any State to establish its jurisdiction to have a connection with the crime, this principle, i. e., aut dedere aut judicare, does not require more than the mere presenceof the alleged offender in the territory of the State Party. The idea behind this principle is that the offender should not go unpunished,therefore if the holding State refused extradition for any reason, e.g., political offence exception, which in many cases results in giving the accused criminal a de facto immunity from prosecution and sanctioning the crimes committed abroad based on the criminal's motivation, the application of this principle would alleviate this problem while still respecting the doctrinal basis for 90 the political offence exception itself. Also if the holding State refused extradition becauseof fear of unfair trial for the accused criminal in the requesting State's national courts, it should not have such fear or doubts about its own national courts. 56 By and large applying this principle will assurethat justice will still be served. It is also worth noting here that this principle differs from the law relating to traditional crimes like piracy, which provided only for an "optional" universal jurisdiction. In other words, Sates are free to seize pirates on the high sea and prosecute them. However, in the case of terrorism these instruments make it compulsory for States Parties to establish their jurisdiction when the alleged offender appearedin their territories. Giving the fact that some of these treaties had been ratified by a large number of Sates, e.g., the Hague Convention 173 and the Montreal Convention 174, the grant of such jurisdiction would approximate the principle of universal jurisdiction. Furthermore,these conventionsprovide for fair treatmentto the alleged offenderwhich will not only servelaudable human rights, it may also encourage StatesParties to extraditethe requestedsuspect to the requestingStateý 7 Moreover, somenon-Sates Parties which have a lot of concernsabout the treatmentof the offendersbecause they consideredthem as political offenders, will have the incentiveto becomeparty to theseconventions. Therefore, this will resultin having moreStates Parties to reachthe point of universalacceptance by all States,upon 5' See, P, S. Phillips, 'The Political Offence Exception and Terrorism: Its Place in the Current ExtraditionScheme and Proposalfor Its Future', 5 DickinsonJournal of International Law, (winter 97),358. 57See Perem, note 54 at 187. 91 which the effectiveness of the treaty depends. Also this will help in bridging the gaps that may exist if some Statesrefused to sip these conventions, thus they may becomesave havens for terrorists. However,as has been said earlier with regardto the provision of the non- useof territory of one Statefor terroristactivities against another State, there is no guaranteethat in practice the requestingState will treat the requestedalleged offenderfairly whensuch request was granted and he was extradited. Finally, anotherresult achievedby theseconventions was the revision of some extraditiontreaties to exclude certain terrorist acts from the category of political offences,thereby making them extraditableand treatingthem as ordinary crimesin domesticlegislations of StatesParties, when decidingto prosecutethem. Thereforepreventing the allegedoffender from the favouredtreatment of political criminal, e.g., Article 11 of the Bombing Convention,which states;'None of the offencesset forth in article 2 shall be regarded,for the purposeof extraditionor mutual legal assistance,as a political offence or as an offence connectedwith a political offence or as an offence inspired by political motives. Accordingly, a requestfor extraditionor for mutual legal assistancebased on suchan offencemay not be refusedon the sole groundthat it concernsa political offenceor an offence connectedwith a political offenceor an offenceinspired by political motives'. The above-mentionedfeatures of the anti-terrorism conventions have inspiredDavid Lioyed to say that the result of the adoptionof theseconventions 'hasbeen the developmentof a coherentbody of treatylaw coordinatinginter-State 92 action against international terrorism in a most effective manner and commanding 58 the support and active participation of a large number of States. 3.2.2. The Shortcomings of the Anti-Terrorism Conventions. On the other extreme, some commentatorsthink that these conventions are powerless and do not have the real effect that required to suppress international terrorism,because of the following problems: The first problem, is that not all nations of the world are party to these conventions and that might cause any of the non-States parties to become a safe haven for terrorists who escape to it, because such a State considers itself to be under no obligation to extradite or prosecute them. An example of this was the 59 1988 hijacking of Kuwaiti airways, which ended up in Algeria, which was not a party to the relevant treaties at that time. Accordingly it could not be compelled to extradite or punish the hijackers, thus theseterrorists went unpunished. This is a seriousdefect and the effectivenessof theseconventions might be underminedbecause one or two Statesare not party to the relevantantkerrorism convention. However, one may argue that some of these anti-terrorism conventions,like the Hague, Montreal, Hostages,and New York conventions, 58Ibid. at 195. 59In 1988,a Kuwaiti airplanewas hijackedduring a flight to the United Arab Emirate coming from Bangkok(Thailand). The hijackers(who werebelieved to be extremeShiite) forcedthe airplaneto fly to Mashedin Iran andspent three nights, then to Lamacafor four days,and finally to Algeria wherethe captorsreleased the hostagesafter sevendays of intensivenegotiation and in returnof providing a safe conductto the hijackers. Two Kuwaiti personswere killed in that event. For more details see,R. E. Hill, 'Terrorist Hijacking and the inadequaciesof InternationalLaw: A Case Study of the Kuwaiti Airways Flight 422 Incident', in Y. Alexander(ed. ), Middle East Terrorism: Current Threatsand FutureProspects, (Dartmouth. 1994), 466-474. 93 international becauseof their large members,have becomepart of the customary law just like the Genevaconventions on the law of war. Therefore,even States which are not party to someof the anti-terrorismconventions like the onesabove- mentionedare required to observethe generalrules included in theseconventions. The second problem posed by these conventions, is that these instruments rely on the municipal laws of States Parties for the punishment of terrorists by penalties which the conventions describe as "appropriate penalties" in some of them and "severe penalties" in the others, without any specification of their meanings and this might cause substantial differences between national laws of StatesParties that regulate the same offence. For example, some States still apply 60 the death penalty while the others have abolished it, becausethese States regard the death penalty as a breach of human rights. Thus, many argue that these conventions should set forth a uniform range of penalties that should be applied to listed therein However, it that States the offences .61 seems unlikely will accept such an obligation. Thirdly, eventhough the principle of aut dedereaut judicare (extraditeor prosecute)might appearto be applied automaticallyby the custodial State,this principlein realityhas a lot of ambiguitiesand the Stateconcerned often hasa good measureof discretion,which might renderit ineffective. 60See, L. Kos-Rabcewicz-Zubkowski,'Essential Features of an InternationalCriminal Court', in M.H. Livingstonet al (eds.), InternationalTerrorism in the ContemporaryWorld, (GreenwoodPress, 1978), 335. 61See Lambert, note I at 102. 94 With respect to the first option of this principle aut dedere (i. e., extradite), there are some gaps that have not been properly addressedby the drafters of these conventions whether they were made intentionally or mistakenly. There is no obligation or guaranteethat the State requesting extradition of the alleged offender will prosecute him, if the extradition request was granted by the requested State, therefore a State may demand extradition without intending to prosecute, if the demandis met.62 More significantly,these conventions are silent in the casewhere one of the Statesthat establishedits jurisdiction and requestedthe extraditionof the alleged terroristwas an accomplicein the terrorist act committedby the requestedperson. Can the requestedStates grant the requestfor extradition to such a State even thoughit knows aboutits involvementin terrorism? And if it does so, can it be heldresponsible in any way accordingto theseconventions? In addition, the anti-terrorismconventions are silent in the case of there beingmany requests for extraditionby severalStates for the samealleged offender, as is often the case,terrorists might be wantedin many countriesbecause of their involvementin various incidents.63 Thus, the holding Statemight find itself in a very difficult situation,and then the questionshould be, what is the criterion that canbe usedhere? Which countryhas the priority over the others?Is it the territorial Statewhere the crime took place?the country of which the offenderis a national?, the countryof which the victim is a national,and what if there are many victims 62R. D. Crelinsten, Terrorism And Criminal Justice, (Lcxington, 1978), 42. 63Ibid. 95 from different States?,or doesthe country whose interesthas been most injured, havepriority overthe others?And so forth. However, in practice many States give priority to requestsfrom States with territorial connection with the offence for which the fugitive terrorist is requested. This is becausethe territorial States where the crime took place usually have the neededevidence for prosecuting such a crime. Furthermore,although there is no expressedpolitical offence exceptionto the obligationto extradite(aut dedere),this option is madesubject to the national law of the requestedState. Thus the requestfor extraditionmay be refusedbecause of the political offenceexception which is followed by a largenumber of Statesand becauseterrorism has always been inspired by political motivations!4 As a result of this, statisticsshow, for example,that betweenJanuary 1960 and June 1976,65 twenty Statesrequested the extraditionof 78 hijackers,but requestswere granted only in five cases,although 42 of the offenderswere prosecutedby the recipient StateS.66 Also, with respect to aut judicare the other part of this principle, i. e., to submit the case to the competent authorities for the purpose of prosecution. Though such a submissionof the casefor prosecution is enough to satisfy this 6' See,W. A. Salf, 'InternationalTerrorism in Armed Conflict', in H.H Han (ed.), Terrorism,Political Violenceand WorldOrder, (UniversityPress of America,1984), 462. 65It shouldbe notedthat this statisticsis 25 yearsold; thereforeit may not be truly representativeof today'sStates practice. However,this statisticshad beenused in this study becauseno other recent statisticshas been found. 66P. Wilkinson, Terrorism And The Liberal State,(New York UniversityPress, 1986), 288. 96 obligation, it would not necessaryresult in trial and punishment. Moreover, as has been mentioned earlier, prosecution under States' national laws may cause a substantial difference in sentenceswhere the States concerned decide to try the alleged offender. Finally, anotherpractical problem posedby this principle (aut dedereaut judicare) is that the holding Statemay not haveany real connectionwith the crime other than the mere presenceof the allegedoffender in its territory, hence if no Staterequested the extraditionof the allegedoffender, the former has to bear the burden of prosecution,and this may cause it to become a potential target of terrorists'retaliation. However,this burden is outweighedby the need to ensure thatno safehaven exists. 67 The fourth shortcoming of these conventions is that there are no effective enforcement provisions that can secure compliance by States parties in case they do not fulfill their obligations. Hence, even if all nations are party to these conventions, there is no assurance that they will live up to their commitments incurred there under. This was the sole reason of adopting the Bonn Declaration in 1978 68 largest industrial democracies (the US, Britain, West , under which the six Germany,Japan, Canada, and Italy) agreed to halt air flights to or from any country that gave asylum to hijackers, or refused to return the hijacked aircraft or the hostages. 6' Lambert, note I at 197. 68A. C. MacWillson, Hostage-Taking Terrorism: Incident-ResponseStrategy, (Macmillan, 1992), 186. 97 However,mention should be madehere that, if an enforcementclause were provided for, many, if not all, of the present parties to these instruments would withdraw their support. Thus many think that it is better to have an accord which at least sets out some requirements, albeit unenforceable, than no such agreementat a09 But for others, as pointed out by Grant Wardlaw, these instruments are 'no more than collections of high statementsof principle devoid of any real impact. It is quite obvious that political terrorists have not been deterred by the existence of these conventions. They have not been deterred because they reasonably believe 70 that their actions will not be subject to the written restrictione. 3.2.3. Enumerative Vs. Eliminative Someconunentators have criticized the segmentationof the problem of international terrorism, i. e., adopting many treaties, each one of them dealing with a specified act of terrorism. Schmid, for instance, in his criticism of the enumerative methods adopted by the European convention on the Suppression of Terrorism. (this convention lists those acts, which are not to be subject to the political offence exception to extradition) -on grounds that are equally applicable to the international anti-terrorism conventions, argued that those violent acts listed in the convention are not terrorist acts themselves,whether these acts are terrorist or not depends on the "intention and circumstances7'.He pointed out that a hijacker, for example, may simply be looking to get to a destination other than the intended one of the aircraft in which case there will not be a "target of terror", i. e., not meant to cause fear to the target government or population, according to his definition of terrorism 69 See, G. Wardlaw, Political Terrorism; Theory, Tactics. and Counter-Measures, (Cambridge University Press, 1989), 116. '0 Ibid. 98 (discussedearlier in Chapter 2). Also he stated that this method, i. e., enumerative in method, can 'place a hijacker who is attempting to escapefrom a terrorist regime 71As in KoIczynki be discussed the same category as a real... terrorist'. case as will in the next section. However, as observed by Lambert that this act (hijacking) is reprehensible and must be suppressedwhether the hijacker intended to instill terror or not. Beside, such act can rarely be committed without causing terror or fear. Also with respectto the other part of Schmid's criticism, that the hijacking was committed by an oppressedperson to escape from a repressive or terrorist regime cannot be accepted. Such a person (oppressedperson) can not be given the right to hijack a civil aircraft in order to gain his freedom, also deciding what State is a terrorist 72 Stateis very subjective and will be different from one Stateto another. For some,international legal responsesto internationalterrorism should be as comprehensiveas is the problem of internationalterrorism, i.e., adoptingone comprehensivetreaty that dealswith the threat or the use of violencefor political goalsof internationaldimension (e. g., involve citizensor territoriesof other States, etc),instead of adoptingtoo manyconventions which take a long time to negotiate, ratify, and enter into force as responsesto different types of terrorismthat arise each time, for example,the Tokyo Convention was adoptedin 1963 and the BombingConvention, which was recentlyadopted in 1997(not yet in force), hence it took the internationalcommunity about 34 years betweenthe adoptingof the 71 Schmid, A. P., Political Terrorism: A Research Guide to Concepts. Theories, Data Bases and Literature, (Book Publishing Co., 1983), 103. 72Lamber4 note I at 50. 99 former which came as a response to this rise of terrorist attacks against civil aircraft, and the latter as a response to the alarming increase in the use of bombings against civilians. Also, another criticism with regard to this approach, i. e., enumerative approach, is that it does not cover all of the terrorist offences. For example, biological and chemical terrorism are not covered by any of these conventions. More importantly, even those major actions like the recruitment of individuals to become terrorists is not considereda terrorist offence in any of these anti-terrorism conventions. In addition, all of these anti-terrorism conventions came into existence to cover past terrorist offences when such offences causedhuman and economic loss. Therefore, to have a comprehensiveconvention that covers either past offences or those that have not yet occurred would be ideal. However, experience showed that this type of convention as proposed by the US in 1972 was unacceptable, accordingly insisting on such a type of treaty would be resisted and only a few Stateswill ratify. The advantagesof adopting many conventions, each of which deals with a particular category of terrorism, was that these conventions obviated the need for an agreementor a general definition of terrorism, which was unattainable as discussed earlier in Chapter 2. Also, Stateswere not obliged to accept that this or that type of offence, provided for in the conventions, was an act of terrorism, but merely that it should be prohibited. This was an important consideration for States fearful that 100 describing a particular type of action as a terrorist act would be used to legitimize 73 intervention in the name of counter-terrorism. 3.3. THE USE OF EXTRADITION IN THE CONTEXT OF TERRORISM Often terrorists commit crimes in one country and escapeto another in order to elude their capture. In other words, terrorists do not recognize national boundaries,as national security forces have to do. Thus to bring them to justice and make sure that such criminals who committed serious offences should not go unpunished,States in most casesrecourse to extradition. Extraditionis defined as 'a legal processwhereby, under treaty or upon any otherbasis of reciprocity,one Statesurrenders to anotherState, at the requestof the latter,a personaccused or convictedof a criminal offencecommitted against the laws of the requestingState'. 74 Therefore, concluding an extradition treaty as it is always the case, can be an effective weapon in the war against terrorism in many ways: firstly, it will reduce the number of safe haven States since these States are obliged to extradite suspected terrorists in compliance with the relevant treaty, thus extradition will eliminate the usual alternatives for terrorists who committed or are about to commit an attack by simply leaving the State with jurisdiction over the crimes they committed or will 73 See. Guelke, Ile Age of Terrorism and International Political System, (Tauris Acadenic Studies, 1995), 165. 74 Perera,note 54 at 206. 101 commit in future; secondly and more importantly it will assure that terrorists will be 75 prosecuted and punished, if convicted. However,such an ideal situationis of rare occurrence,as it will be discussed later in this section,even if the requestfor extradition of suspectedterrorists is consistentwith requirementsof the law of the requestedState. Usually when an authority of one State has made an extradition request to another, such request becomesa matterfor the domesticlaw of the latter. By and large, there are four requirements for that request to be accepted: Firstly, most countries, especially those of common law system, do not entertain such a request unless there is a treaty linkage with the requesting State, neverthelesssome civil law countries do not require such a prerequisite. The second requirement is the offence for which the suspectedoffender has been accused or convicted, must be an "extraditable offence", that is, it must be an offence covered by the extradition laws of both the requested and requesting States. While some States require that for an offence to be extraditable, it must be punishable by an agreed degree of penalty, other States(like the UK) require that such an offence must be listed in a treaty with the requesting Statesin order to become an extraditable offence. Thirdly, there is also a requirement of dual criminality, i. e., the extraditable offence must be a crime under whatever namesin both the requesting and requestedStates. Finally, there is also the so-calledspeciality principle under which the requestedperson, if extradited, must not be tried for any other offences other than the specific offence or offences for which " Petersen, 'Extradition and The Political Offence Exception in The Suppression of Terrorism', 67 Indiana Law Journal, (Summer 1992), 772. 102 commit in future; secondly and more importantly it will assure that terrorists will be 75 prosecutedand punished, if convicted. However,such an ideal situationis of rare occurrence,as it will be discussed later in this section, even if the request for extradition of suspected terrorists is consistent with requirements of the law of the requested State. Usually when an authority of one State has made an extradition request to another, such request becomesa matter for the domestic law of the latter. By and large, there are four requirements for that request to be accepted: Firstly, mostcountries, especially those of commonlaw system,do not entertainsuch a requestunless there is a treaty linkagewith the requestingState, nevertheless some civil law countriesdo not requiresuch a prerequisite.The secondrequirement is the offencefor which the suspectedoffender has beenaccused or convicted,must be an "extraditableoffence", that is, it mustbe an offencecovered by the extraditionlaws of both the requestedand requestingStates. While some Statesrequire that for an offenceto be extraditable,it must be punishableby an agreeddegree of penalty,other States(like the UK) requirethat such an offence must be listed in a treaty with the requestingStates in order to becomean extraditableoffence. Thirdly, there is also a requirementof dual criminality, i.e., the extraditableoffence must be a crime under whatevernames in both the requestingand requestedStates. Finally, thereis also the so-calledspeciality principle under which the requestedperson, if extradited,must not be tried for any other offencesother than the specific offenceor offencesfor which 75 Petersen, 'Extradition and The Political Offence Exception in The Suppression of Terrorism', 67 Indiana Law Journal, (Surnmer 1992), 772. 102 his or her extradition was granted, and any trial in breach of this principle will usually !6 be consideredas a breach of the extradition treaty obligations Nonetheless,the satisfaction of these requirements does not always guarantee extradition, as can be seen. Statistics show that in cases of aircraft hijacking, for which data is available, that 970 individuals between January 1,1960 and June 1, 1976 successfully hijacked or attempted to hijack 468 aircraft around the world. Around thirty-five percent of those offenders have been apprehendedand submitted to prosecution. This percentageincludes a few individuals who have been charged with aircraft sabotageand attacks upon aviation facilities. With respect the recovery of those offenders, an examination of the practice of forty States shows that twenty States have requested the extradition of seventy-eight offenders. Extradition was granted only in five cases. Twenty-two requests for sixty-six offenders were denied; however, the requestedStates in conformity with the aut dedere autjudicare principle 77 prosecutedforty-two of those offenders. Moreover, Since the extradition process may affect the rights of private individualswithin the requestedState as well as its sovereignpowers to surrender such individuals, Statesalways reservea large amount of discretion in deciding whetherto extraditeor not, and recognizea numberof exceptionswhich reflect the exerciseof such sovereigndiscretion. Theseexceptions in many caseshamper the effectivenessof extraditionvis-A-vis terrorism can be any of the following: 76Freestone, 'International Cooperation Against Terrorism And The Developmentof InternationalLaw Principlesof Jurisdiction', in Higgins & Flory (eds.), TerrorismAnd International Law, (Routledge. 1997),45. 77Evans, 'The Reality of ExtraditionAnd Prosecution',in Alexander& Maxwell (eds.), Terrorism: InterdisciplinaryPerspectives, (McGraw-Hill, 1977),130. 103 A) Political offence exception; B) Humanitarian exception; Q Nationality exception; D) Death penalty exception; and E) Health and Age exception. 3.3.1. Political Offence Exception Historically extradition was only meant for political criminals (i. e., those who commit crimes against the State or its sovereign, such as treason, espionage, or sedition) not common criminals (i. e., those who commit kidnapping, robbery, or assault,etc). However, since the French Revolution and the growth of liberal thinking 78 that came after, the purpose of extradition had changed 180 degrees, it became concernedonly with the so called common criminals, but not the political offenders. Since that time the non-extradition of political offenders has become a universal and a 7' As late British Sir Hersch Lauterpatch that well-establishedprinciple . the observed 'In the late legislation of modem States, there are few principles so universally adoptedas that of non-extradition of political offenders'.80 Accordingto this principle,extradition may be refusedeven if the requesthas been in compliancewith the substantiverequirements of the extradition law of the " Toensing, 'Terrorism: A History of the Rule of Law', in Flood (ed.), International Terrorism: Policy Implications, (Chicago, 1991), 98. 79 It should be noted that the development of such principle had also been influenced by the so called Belgian practice and its legislative initiative of 1833 which known as the Extradition Law of 1833, Article VI of that law provided that "it shall be expresslyprovided in the treaties that a foreigner may not be prosecuted or punishedfor any political offence committed before extradition norfor any crime of offence not contemplatedby the present law.. ". Ibid. go R. Phillips, 'The Political Offence Exception and Terrorism: Its Place in the Current Extradition Schemeand Proposal for Its Future', 15 (2) Dickinson Journal Of International Law (Winter 1997), 340. 104 has been requested State, if evidence or circumstances suggest that such a request madefor a fugitive offender accusedor convicted of a "political offence". The rationale behind this exception (i. e., the political offence exception) can be referred to any of the following situations: Firstly, the protectionof the accusedfrom an unfair andbiased trial that he or she might face, if extradited, in the requesting State because of his or her political dissention. Secondly, the avoidance of one country (requested State) from taking a side in the internal affairs in another country (requesting State). This is because deciding whether to extradite or not, may involve an inquiry into the political conflict that may exist in the requesting country and therefore may involve a rendering of a value judgment with respect to such conflict, thus it is better not to grant such extradition in the first place. Finally, political crimes do not violate international public order; they only violate the law of the requesting State. Therefore, as a result of their domestic characters, other States do not have a mutual interest (i. e., the ' protection of international public order) to suppresssuch crimes! Nonetheless,this argumentcannot be alwaystaken for granted,because of the fact that political offenderswill not always be subjectedto unfair and biasedtrial. Thereare someStates which are known of havingjustice systemsbuilt on fairness and impartiality. Also the non-extraditionof political offenders is not usually consideredby some Statesas an act of neutrality, but the opposite, it has been 82 consideredas a violation of sucha principle. In otherwords, refusing the extradition " Perera,note 54 at 217. 82lbid at 218. 105 of a person who is at odds with the requesting State is equivalent to taking sides with the requestedperson by admitting his cause as a legitimate one against such a State. Finally, currently most political crimes have an international dimension since they, in most cases, involve many States. For example, terrorism, which is still for many Statesconsidered to be a political crime, can rarely be of only a domestic character. Despite the lack of an international definition of what constitutes a political offence, most commentatorsadmitted to the fact that there are two types of political offence: I- Pure Political Offence: actions, which are directed solely at the State and do not affect civilians and are not accompaniedby the commissionof a common crime -(treason, sedition, conspiracy to overthrow the government,and espionage)_83there is no problemwith respectto this type and most countries deniedextradition of a fugitive accusedor convictedof committinga crime of this description. 2- RelativePolitical Offence: crimes,which have a hybrid nature,that is, they involveeither a combinationof a commoncrime with a pure political offence, or more often, a commoncrime, which is perpetratedpursuant to a political agenda.84 This type of political offenceis the mostproblematic one and Statee practicesvary widely on the test or the criteria that shouldbe usedin deciding whetheran act is of suchcharacter (e. g., terrorism)is a political offence,and thereforeentails the non-extraditionof the allegedoffender. 93 Phillips, note 80 at 341 " Ibid. 106 3.3.1.1. States' Judicial Practices of What Constitutes a Political Offence Vis-h- Vis Acts of Terrorism. Judicial practices among States on the question of what constitutes a political offence vary from one country to another. Countries that share the same legal tradition, like common law countries, have different criteria, in deciding whether a fugitive sought by another country is a political offender or common criminal, from countries that have a different legal tradition, i. e., civil law countries. Moreover, even among countries that have the same legal tradition, e.g., the UK and the US, each has its own criteria that may or may not be the same criteria used by other similar countries. 3.3.1.1.1.UnitedKingdom (UA) The UK requiresthat for a crime to be classifiedas a political offence,it must have been"incidental to and formed part of political disturbance!'. The landmark case,which gaverise to such criteria, was In re Castioni, 18905 In that case,the Queen'sBench reversed a decisionof the magistrateto grant extraditionof Angelo Castionito Switzerland. Castioni,who fled to England,was accusedof killing of Luigi Rossi,a StateCouncillor. The killing occurredin the midst of a demonstration againstthe governmentof a Swiss Cantonbecause of its refusal to submit its new constitutionto a popularvote. In denyingCastioni's extradition, the court held that it was "clear that the offence with which the prisoner is chargedis an offence of a ", because, it incidental political character.. the court ruled, was to, and part of a political disturbance.The court also addedthat evenif an act is "cruel and againstall 85In re Castioni,[ 1890]1 Q. B. 149. 107 reasons",its perpetrator is protected, if he or she acted "for the purpose of furthering and in furtheranceof a political uprising!'. However, that test (i. e., uprising test) was ffirther qualified in the case of In re 86 Meunier, 1894 Theophile Meunier French fled to England . was a anarchist who after causing explosions at a cafd (where two people were killed) and at certain barracks in France. In granting his extradition to France upon a request from the latter authority, the court held that in order for a crime to be considered as an offence of a political character,'there must be two or more parties in the State, each seeking to impose the governmentof their own choice on the othee. 87 On the contrary, in 1955, in the case of Ex Parte Kolczynki, the court showeda cleardeparture from the above-mentionedstrict applicationof the "uprising lese'enunciated in the Castioni,and qualifiedlater in Re Meunier. In this case,seven Polish sailors took control of their fishing boat by force, brought the ship to an Englishport, and soughtpolitical asylumclaiming that they fled becauseof the fear of beingpunished for reasonsof their political expression.In denyingtheir extradition to Poland,Lord GoddardCJ. Stated: 'The revolt of the crew was to prevent themselvesbeing prosecutedfor a political offence and in my opinion, therefore, the offence had a political character The evidenceas to the law prevalentin the Republicof Poland todayshows that it is necessary,if only for reasonsof humanity,to give a wide or more generousmeaning to the words we are now construing,which we can do without in any way encouragingthe idea that ordinarycrimes which haveno political significancewill be therebyexcused'. '61n reMeunier, [ 1894] 1Q. B. 415. " Ex ParteKolczynki, [1955] IQ.B. 540. 108 That decision was a reflection of the court's attitude to regimes, which were consideredto be totalitarian and oppressive which had emerged in Eastern Europe in the post-war period.88 After a number of years the court, in casesof Ex Parte Schtraks of 1964,89in which Israel sought the extradition of Schtraks,claiming that he had kidnapped his nephew in order to ensure that the boy would be raised in an orthodox Jew and has denied under oath that he knew where the child was. The Israeli government's decision to seek his extradition was politically controversial because Orthodox Judaism is the state religion of Israel. So as result Schtarks argued that his offences were political and. Also in the case of Ex Parte Tzu-Tsai Cheng of 1973,90in which the United Statessought the extradition of Cheng after he had been convicted in New York of attempted murder and fled the country while on bail. Cheng was a member of World United Formasonsfor Independence,which was protesting the visit to New York of the country's vice-president. During the course of a scuffle with New York police a shot was fired by a fellow demonstrator. The court in both cases,although it returned to its traditional "uprising test', added one more requirement, it stated that the fugitive must be at odds with the government that sought his extradition. The opinion of Viscount Radcliff in the caseof Schtraks,which may apply also to the case of Cheng is of worth quoting at length. He statedthat: 'In my opinion the idea that lies behind the phrase 'offence of a political character'is that the fugitive is at odds with the state that applies for his extraditionon someissues connected with the political control or governmentof There the country ... may, for instance,be all sorts of contendingpolitical 88 89.Perera, note 54 at 250. Ex ParteSchiraks, [ 1964] H. L. 555. 90Ex Parte Tzu-Tsai Cheng, [ 19731 Q.B. 931. 109 organizationsor forces in a country and members of them may commit all sorts of infractions of the criminal law in the belief that by so doing they will further their political ends: but if the central government stands apart and is concerned only to enforce the criminal law that has been violated by these contestants,I see no reason why fugitives should be protected by this country from its extradition on the ground that they are political offenders. 3.3.1.1.Z United States (US) In the sameyear the UK court decidedthe Munier case,a US court in the case of In re Ezata,1894, " refusedto extraditehigh officials of El Salvadoraccused of committing murders in their unsuccessfulattempt to overthrow the government therein. Applying the "uprising tese'founded in Castioni,the court held that all acts connectedwith an uprisingwere of political character.In decidingthe case,the court statedthat suchprotection should be extendedequally to democratsor dictators. The court also explicitly rejected the argument that the killing of civilians should disqualifythe allegedoffenders from the court's protection. During disturbancesand hostilities,said the court, 'crimes may havebeen committed by the contendingforces of the most atrociousand inhumancharacter, and still the perpetratorsof suchcrimes escapepunishment as fugitivesbeyond the reachof extradition'. In othercases of Jiminezv. Arisligueita etat,In re Gonzalez,Artukovic, In re Mcmullin, and In re Machin, the US courts have been known for their rigid adherence to the traditional British "uprising test'. In all of these cases,the US courts used a mere mechanical application of the uprising test. In other words, if the crime was committed during a violent uprising or insurrection, it was political and vice versa, " In re E.-ata, [ 1894162F. 2d 972 (N.D. Cal. ). 110 irrespective of the consequent result of such an application. Such mechanical application of the uprising test had been criticized as an over inclusive solution in some cases,i. e., all acts committed during uprising are treated as political and under inclusive in other cases,i. e., all acts which are not contemporaneouswith an uprising are not political, without paying any regard to the nature of the offences themselves.92 However,such an attitudehad been changedin the caseof In re Abu Eain, 1981,93 in this casethe District Court refusedto issuea writ of habeascorpus to Abu Eain to preventhis extraditionto Israel. Abu Eain was a memberof the Palestine LiberationOrganization (PLO), who was accusedby Israel of settingoff a bomb in the city of Tiberius, which killed and injured many civilian people. Abu Eain appealedthe District Court's decisionto the Circuit Court claiming, amongseveral othergrounds, that the bombingwas politically motivatedand it was incidentalto the war againstIsrael. The court, in rejectingthis argument,laid more emphasison the targetvictims of the violence. Accordingly the court refusedto shieldthe accused from extraditioneven though the bombinghad a political objectiveand was connected to an armed struggle because the bombing involved an unauthorized and indiscriminateattack on a civilian population. Such an act, the court ruled, was essentiallyan act of anarchism,and therefore cannot be providedthe protectionof the political offenceexception. This holding constituteswhat cameto be known later as the"wanton crimes exception". 94 92Perera, note 54 at 251. 93Eainv. Wflkes,[ 19811641F. 2d504(7'hCirc. )cert. Denied454 U.S. 894(1981). 94 Pyle, 'The Political Offence Exception', in Bassiouni(ed. ), Legal Responsesto International Terrorism,US Procedural Aspects, (Martinus NijhofT, 1988), 188. III In the same manner, the court decided the case of In re Doherty, 1984.95 Doherty was a member of the PIRA, who was accused by the UK of killing of a British army official. In refusing his extradition the court, relying on Abu Eain, made a clear distinction between violent acts directed against military targels which would be regardedas being within the "uprising test' as does this case,thus came within the scope of political offence exception and violent acts indiscriminately directed against innocent civilians which would be regardedas outside the "uprising test". Finally, in the case of Quinn v. Robinson, 1985,96the court, however, shifted the emphasisfrom the target victims as it did in the casesof Abu Eain and Doherty to the nature of the uprising as the determining factor of the political character. In this case, the UK sought the extradition of William Quinn, a US citizen and an alleged member of the IRA, for the murder of British constable Tibble and of conspiring to send a letter bomb to a Catholic Bishop, a railroad station and two restaurants. Two bombs had exploded causing severe injuries. The District Court in refusing his extradition did not follow Abu Eain and Doherty by looking at the target victims who were in this case of two types: military (British constable) and civilians in public places. But instead the District Court applied the "incidentar' or "uprising test', and held that all the acts charged constituted political offences since they were "incidental to thepolitical goals ofseeking an end the British rule in Northern Ireland'. However,the Court of Appealreversed the findings of the District Court that the offencesalleged to have beencommitted by Quinn were offencesof a political 9' In re Doherty, [ 1984] 599 F.Supp. 270 (S.D. N. Y). 96 Quinn v. Robinson, [ 1985] 783 F.2d 776 (9'h Circ. ). 112 nature. In its decision, the court held that the political offence exception protects 'those engagedin internal or domestic struggles over the form or composition of their own government, including, of course, struggles to displace an occupying power. It was not designed to protect international political coercion or blackmail or the exportation of violence and strife to other locations even to the homeland of the oppressor nation'. Accordingly, to decide whether the political offence exception should be applied or not to shield extradition, the court should discern the nature of the uprising that the requestedperson was involved in, and if his acts occurred outside the country or territory in which the uprising is taking place, he, the court ruled, should be excluded from the coverage of the political offence exception. Thus by implication all acts of terrorism of international character or acts of terrorism, which have transboundaryeffects should be also excluded from such coverage.97 3.3.1.1.3.Switzerland The Swiss courts use what has been called the "predominance or preponderance approach".98 According to this approach, the political element of an act should predominate or outweigh the common crime element in order to come within the scope of the political offence exception. This can be ascertained by a rigorous examination of the proportionality between the assertedpolitical goal and the meansused to achieve that goal. One of the early casesin this regardwas Wassilieff case,1908.99 In that case Russiasought the extraditionof Victor Wassilieff after accusinghim of murderinga Perera,note 54 at 256. SeePhillips, note 80 at 345. 99lbid at 346. 113 local police chief. Wassilieff claimed that the killing was carried out at the behest of the Russian Revolutionary Socialist Party in their attempt to overthrow the Tsarist regime, thus it was politically motivated and he should be exempted from extradition. In rejecting his argument, the Swiss Federal Tribunal held that extradition should be granted unless three criteria were presentedto prevent such extradition: 'first, the act must have been committed appurtenant to a purely political offence; second, the act must constitute a truly efficient mean to reach the purpose; and third, the element of common criminality must be proportional to the political goal'. 100 Therefore,under the Swiss approach,there must be more than a mere connectionto a political party or the act was related to a political goal. But in practicethe crime must be shown as a necessarymeans to reach such a political goal. In other words, such act must be the last resort. Moreover,in the Watin case,101 in which Francesought the extradition of Watin, who was a memberof the Algerian OrganizationArmde Secrke, becauseof his attemptto assassinthe FrenchPrime Minister De Gaulle in orderto gain Algeria!s independencefrom France. In refusing his extradition the court held 1hatsuch an attempt(i. e., assassination)when examinedfrom Watin's standpointseemed to be the last [viable]option. '0' Ibid at 347. 101Ibid. 114 3.3.1.1.4. France The French used a "mixed approach"' 02in dealing with terrorists requestedfor extradition. In the past, the court applied a motivation test under which extradition was denied as long as the act had a political motive. A leading case, which illustrates this subjective approach of the French court, was the case of In re Holder and Kerkow. 103In this case,the French court refused to extradite to the US two American citizens accused of hijacking an aircraft in 1971, kidnapping, and extortion of $500,000 ransom from the airline company. The denial of extradition was a result of the fact that during the kidnapping one of the hijackers had demandedthat the plane to be diverted and flown to North Vietnam, which was under the communist rule at that time. That demand was considered by the court as constituting a sufficient political motive to fall within the political offence exception, despite the fact that that demand was later dropped by the hijackers. However,in the last two decades,France has moved to a mixed approach under which the offender'smotive is weighedagainst the seriousnessof the crime committed. The more seriousthe crime, the more trends towards the granting of extradition. In the caseof Croissant,104 whose extradition was soughtby the then Federal Republicof Germany,because he was accusedof being an accompliceof the Baader- Meinhoffgroup by helpingits membersto carryingout attacks.The Court of Appeals 102 Ibid 348. 103 at PeTera, 54 "4 note at 257. Ibid. 115 of Parisrejected Croissant's claim that his act was a political crime and held that this group (i.e., Baader-Meinhoof)despite its admitted political motivation, its actions by life [innocent] were 'characterized ... contempttowards the of victims .. and towardsthe propertyof otherpersons'. Thus the court in grantingthe extraditionof his 'could Croissantconcluded that group'smotivation not ... constitutean obstacle to the extradition'. 3.3.1.2. Treaty Practice Since internationallaw does not obligate Statesto extradite, most States recourseto treatiesas instrumentsto dealwith sucha subject. Treatiesin this respect can be divided into three types:A) multilateraltreaties; B) regional treaties;and bilateraltreaties. 3.3.1.2.1. Multilateral Treaties As it has already been discussedearlier in this Chapter the anti-terrorism conventionscall for neither mandatory extradition nor compulsory prosecution. Although, there are no expressedpolitical offence exception to the obligation to extradite(aut dedere),which is providedfor in most of theseconventions, this option (aut dedere)is madesubject to the nationallaw of the requestedState which in most casesprovides for suchan exception. However,these anti-terrorism conventions have recognizedthe importanceof extraditionas a meansto combat terrorism. Most of these conventionsinclude elaborate provisions on extradition, which supplement existing extradition arrangementsbetween Contracting States. In terms,of theseprovisions: 116 The offencescovered by the conventionsare deemedto be included as extraditable offences in any extradition treaty existing between Contracting States; Contracting States undertake to include such offences as extraditable offencesin everyextradition treaty to be concludedbetween them; A Contracting State which makes extradition conditional on the existence of a treaty, may, as an option, if it receives a request for extradition from another Contracting State with which it has no extradition treaty, consider the convention as the legal basis for extradition in respect of the offences coveredby the convention; and (iv) Contracting States, which do not make extradition conditional on the existenceof a treaty,are requiredto recognizethe offencescovered by the convention,as extraditable offences among them. 3.3.1.2.2. Regional Treaties One of the regional treaties, which is consideredby many commentatorsas the landmarktreaty in the movementtowards the exclusionof acts of terrorismfrom the political offence exception, is the EuropeanConvention on the Suppressionof 05 Terrorism! Since the 1970sand even before Europe becamea main target of violent attacks,which were, unlike what had been known in the lVh century, inflicted on manyinnocent civilians unconnectedwith the political struggle. As a result Europe decidedto takecollective initiatives to re-examinethe conceptof political asylumand the principle of non-extraditionof political offenders or the "political offence exception". 105Ibid at 230. 117 In January 24,1974, the Committee of Ministers of the Council of Europe European Convention adopted a Resolution in International Terrorism on which the that on Suppression of Terrorism was built upon. The preamble paragraph of Resolution provided that 'the political motive alleged by the authors of certain acts of terrorism should not have as a result, that they are neither extradited nor 106 punished.. '. To this end(i. e., combatingterrorism by the extraditionof its actorswho must be excludedfrom the protectionof the political offence exception)Article I of the EuropeanConvention provides that none of the following acts shall be regardedas political offencesor as an offence connectedwith a political offence or an offence inspiredby political motives: (a) An offencecovered by the HagueConvention; (b) An offencecovered by the MontrealConvention; (c) A seriousoffence involving an attack againstthe life, physical integrity or liberty of internationallyprotected persons, including diplomatic agents; (d) An offenceinvolving kidnapping,the taking of a hostage,or seriousunlawful detention; (e) An offenceinvolving the useof a bomb, grenade,rocket, automatic firearm or letteror parcelbomb, if this useendangers persons; and (f) An attemptto commit any of the foregoing offencesor participation as an accompliceof a personwho commitsor attemptsto commit suchan offence. In addition,according to Article 2 the extraditionregime can be extended,at the option of the ContractingStates, to any seriousoffence involving violenceagainst '0' For full text seeELEGAB, note 5. 118 life, physical integrity, or liberty of a person, or against property if the offence creates a collective dangerfor persons. If that being the case, one might argue that any Contracting Party is under a legal obligation to extradite any fugitive accused of committing any of the listed offences in Article 1, if another Contracting Party requested such extradition because the Convention deprives the accusedof such defences,of the opportunity of using the political offence exception to preclude his or her extradition. Nonetheless,there are two other provisions in the Conventionrestrict such argument: the first of which is Article 13, which permitsany Stateparty to enter a reservationwhich allowsit to rejecta requestfor extraditionon the groundsthat it is a political offence,an offenceconnected with a political offenceor an offenceinspired by political motives. Until the momentof this writing five out of the fourteenparties have used such a reservation."' Sucha permissionto enter a reservationeven if it encourages ' 08 participationand flexibility, is in effect reducingthe real level of participation. Nevertheless,the reservationitself is subjectto two restrictions: I- The requirementof reciprocityin Article 13 (3); 2- The obligation on a reserving State when evaluatingthe characterof the offencein order to decidewhether to invoke its reservationto take into due considerationof the following factors: '07 Freestone,note 76 at 54. log C. Harding,'The Internationaland EuropeanControl of Crime', in C. Harding& C. L. Lim (eds.), EssaysAnd Commentaryon 7he EuropeanAnd ConceptualFoundations Of Modern International Law,(Kluwer Law International,1999), 202. 119 danger the life, integrity liberty - That it created a collective to physical or of persons; That it affected personsforeign to the motives behind it; or That cruel or vicious means have been used in the commission of the offence. Article 3 (1) The secondprovision which also in somecases restricts the extraditionof the alleged offender, despite the fact that he or she has been accused or convicted of committing one or more of the Article I listed offences, is Article 5, which provides for the so called "humanitarian exception" which will be discussed later in more detail. 3.3.1.2.3.Bilateral Treaties The growth of internationalterrorism in this century, accompaniedby the failure of the internationalcommunity to securean internationalagreement on the subjectof extraditionof allegedterrorists, which provedto be extremelydifficult even at the regionallevel, madeStates, especially Western States recourse to the relatively easy bilateral treatiesin order to overcomethe liberal application of the political offence exceptionapplied by the national courts which resulted in most casesin precludingextradition of the fugitive terroriststo the requestingState. For example, the US has about 100 bilateral treaties with many nations on the subject of extradition.109 Among thesetreaties is the US-UK SupplementaryTreaty of 1986,110 which wasa responseto the persistentdenials of the US FederalCourts to requestsby the UK Governmentfor the extraditionof fugitive offenderswho were allegedto be membersof the PIRA, and accusedor convicted of committing serious acts of 1`0See Petersen, note 75 at 772. 120 like violence, on the grounds that their offences were of political character (e.g., cases McMullen, Makin, and Doherty). The purpose of this SupplementaryTreaty was to bridge the gap that existed in the original US-UK Treaty by excluding serious crimes involving violence identified in the SupplementaryTreaty from the application of the political offence exception, thereby limiting the role of the judiciary in the application of such an exception in the extradition hearing. Article I of the SupplementaryTreaty contains five categories of the offences that must be excluded from the application of the political offence exception between the two countries. This includes: First, all offences listed in certain multilateral conventions where the two governmentshave undertaken an obligation to either 'extradite or prosecute' the offender; Second, serious violent crimes against the person, such as murder, voluntary manslaughteretc.; Third, any offence involving kidnapping, abduction, or serious unlawful detention,including taking of hostages; Fourth, any offence involving the use of bombs, grenades,rockets, firearms, letter or parcel bombs, or any other incendiary devise, if this use endangers even a single person; and Fifth, attemptsto commit such offences and those who act as accomplices. For full 26 I.L. M (1987) 536. text, see , 121 The rationale behind using this approach, i. e., bilateral treaty, either by a concluding new treaty or revising an old one, as some may call it a "treaty-by-treav' approach,"' used, for example, by the US government to restrict the courfs application of the political offence exception vis-i-vis acts of terrorism, was explained by the US State Department's Legal Advisor during the Senatehearings on the US- UK SupplementaryTreaty, as follows: 'Unsuccessful attempts have been made to amend our extradition Statute. Those efforts differ significantly from the present one, in that they were based on changes in the political offence exception that would or could have been applied to any nations with which we have extradition relations, including some which have experienced political change or instability since establishment of those relations, and which may not permit opponents of the government in power any lawful means of political dissent. The present approach is more narrow and carefully drawn. It seeksto remedy the overload application of the political offence exception through a particular agreement with the United Kingdom. The rationale for this new Supplementary Treaty is simple: With respect to violent crimes, the political offence exception has no place in extradition treaties between stable democracies,in which the political system is available to redress legitimate grievances and the judicial process provides fair treatment'.1 12 Moreover, SenateTrible suggestedanother argument for the use of this approach,i. e. bilateral approach. He statedthat such an approachwould not only ensurethat the US interpretationof what constitutesa political offenceexception will be reformed,but it will also confirm that the other country party to the bilateral agreementhas the sameinterpretation at the sametime. He alsopointed out that 111Hannay, 'The LegislativeApproach To The Political OffenceException', in Bassiouni(ed. ), Legal Responsesto InternationalTerrorism, US Procedural Aspects, (MartinusNijhoff, 1988),118. ... lbid at 120. 122 while the enactmentof US domestic legislation will avoid mistakes by US courts, it does nothing to assure the US that other countries will avoid intentional or unintentional refusal to extradite terrorists sought by the US. 113 3.3.1.3.Exceptions to the Exception Despitethe fact that the non-extraditionof political offendersis an exception to the generallaw of extradition,this exceptionis itself, however,not immune to exceptions. Treaty practice showsthat certain exceptionsto the political offence exceptionhave become fairly standardtreaty clauses: 1) The "clause d'attentat" or the "Belgian clause' accordingto which specific crimes committedagainst Heads of Statesor membersof their familiesare not to be consideredpolitical offences; 2) International crimes, e.g., the 1948 Genocide Convention which provided in Article VII that 'Genocide and other acts enumerated in Article III shall not be considered as political crimes for the purpose of extradition;114 3) Crimes of anarchism,i. e., acts directed at governments,States or political systemsin general, rather than against one particular regime. Suchcrimes are consideredbeyond the protectionof the political offence exception.' 15 113lbid at 125. 114 'Abolishing The V. Epps, Political Offence Exception', in Bassiouni (ed.), Legal Responsesto InternationalTerrorism, US Procedural Aspects, (Martinus Nijhoff, 1988),209. "' Perera,note 54 at 222. 123 3.3.2. Humanitarian Exception Although this exception to extradition may, to a certain extent, overlap with the political offence exception, especially when extradition was refused for the protection of the fugitive's political opinion, which he or she was requested extradition for, this exception is even broader than the political offence exception. It is concerned with the question of why the person's extradition is being requested rather than the question of why the person committed the offence he is accused or convicted for. "' A clearexample of sucha humanitarianexception is Article 5 of the European Conventionwhich permitsa Stateto refuseextradition of an offenderin relationto the listed offences,if the requestedState has substantialgrounds for believing that the requestfor extraditionfor an offencementioned in Article I or 2 has beenmade for the purposeof prosecutingor punishinga personon accountof his race, religion, nationalityor political opinions,or that the person'sposition may be prejudicedfor any of thesereasons. However,despite its apparentimportance as a safeguardagainst unfaithful requestsfor extradition, this exception is, in fact, of limited use becausein most cases the courts of different States have practical difficulties in discerning a claim of this kind. Also making such a finding involves casting major aspersionson the objectivity and fairness of the criminal justice system of the requesting State and the bona fides of its government.117 116 SeeToensing, note 78 at 100. 117 Freestone,note 76 at 47. 124 One of the rare cases of the use of this exception, in which the request for extradition was refused for humanitarian reasons, though in a wider sense, i. e., not only in fear of discrimination on the basis of race, religion, nationality or political opinion, was the Irish SupremeCourt decision in 1990. On March 13,1990, the Irish Supreme Court decided not to allow the extradition of two wanted IRA terrorists, Dermont Fincane and Jame Clarke. Both men had been involved in the mass escape from the Maze Prison in Northern Ireland in September 1983 (in the escape one prison officer died, four others were stabbed,two men shot, and another thirteen were kicked and beaten).' 18 Both men were convicted terrorists who were rearrestedin the Republic. Their extraditionwas soughtby the Northern Ireland authoritiesto get them back to serve the sentencesof eighteenyears that both had received. The Court, in its judgment,gave two distinct reasonsfor not granting extradition. The relevant one that hit the newsheadlines, on which the five judges were unanimous,was that the two men facedthe threatof physicalretaliation from prison officers for their part in the violencethat took placeduring the massescape because evidence proved that such retaliationhad been taken against the otherprisoners. 119 3.3.3. Nationality Exception Another exceptionto the extraditionof terrorist fugitives to the requesting Stateis that if the requestedperson is one of the requestedState's nationals. This exception is of broad use in most civil law countries, which claim extensive extra- "' NewLaw Joumal 747 (Aug. 3,1990). "9 Ibid. 125 territorial jurisdiction in accordancewith the nationality principle over their nationals and have maintained a refusal of such extradition.120 For example, Airticle 28 of the Kuwait Constitution, which states, 'No Kuwaiti may be deported [or extradited] from Kuwait or preventedfrom returning thereto'.121 Common law countries on the other hand, have not generally maintained such a position and have on occasion even waived the general rule of reciprocity in order to allow extradition of nationals to countries, which would not allow such extradition.122 3.3.4.Death Penalty Exception The death penalty exception fin-ffier complicates extradition jurisprudence. Many extradition treaties allow contracting States, in accordance with their national laws, to deny extradition of the alleged terrorist, if he or she might face the death penalty in the requesting State. An example of such a refusal is that of Ali Samadhi, who was apprehendedand tried in then West Germany for killing Robert Stethem, an American sailor on a hijacked TWA flight in 1985. Bonn refused an extradition request sought by the US becauseof the fear that he might face a death sentencein the us. 123 More recently Italy refusedto extraditeAbdullah Ocalan,the leader of the Kurdistan Worker's Party (PPK) to Turkey when he was arrested in Italy in 120 Ibid at 46. 121 ForEnglish full text, see 126 November 1998, following his expulsion from Syria. Italy's refusal to extradite him 124 was based on the ground that a Turkish court could sentence him to death. 3.3.5. Health and Age Exception Another reason that can be added to the above-mentionedreasons, which may result in refusing the extradition of the requestedperson, is the poor conditions in term of health and age of such a requested person. According to this health and age exception, the requested person will not be extradited to requested State because of his age and health conditions which make him unfit to stand the trial that will followed his extradition. This exceptionwas clearly stipulatedin the caseof the Queenv. the Secretary of State,where Senator Pinochet, the former headof the Stateof Chile, was arrested in Londonon 16 October 1998under a provisionalwarrant issuedby a Bow Street Magistrate, pursuant to a warrant issued by the Central Court of Criminal Proceedings,N. 5, in Madrid. A secondwarrant was issuedby the sameMadrid court on 18 October 1998,and a further provisional warrant was issuedby a Bow StreetMagistrate on 22 October 1998 in respectof it. A formal requestfor the extraditionof SenatorPinochet was received from the Kingdom of Spain on 11 November1998. The requestwas foundedon the secondSpanish warrant dated 18 October1998. It allegedthat SenatorPinochet was concernedin a concertedcourse of conductfrom II September1973 involving a large numberof seriousoffences of genocide,terrorism, hostage-takingand torture, for the purpose of achieving and maintainingpower in Chile. The latest offence alleged in the requestwas said to "4 BBC OnlineNews (Feb. 16,1999) 127 have been committed in March 1990. There was subsequently litigation before the Divisional Court and the House of Lords concerning the extent to which the Spanish extradition request disclosed extradition crimes and the extent of any State immunity in respect of those crimes. On 25 November 1998 the House of Lords held that SenatorPinochet was not entitled to immunity in respect of any of the crimes alleged against him. That decision was subsequently vacated and replaced by a fresh decision of the House of Lords on 24 March 1999. The effect of that decision was that (i) the offencesalleged in the Spanishrequest were extradition crimes for the purposesof the ExtraditionAct 1989only in so far as they were committedafter 29 September1988, when torture outsidethe United Kingdombecame an offenceunder English law and (ii) SenatorPinochet had no immunity in respect of extradition crimes committed after 8 December 1988, when the instrument ratifying the InternationalTorture Convention was depositedby the United Kingdom. The effect was substantiallyto reducethe numberof offencesin which SenatorPinochet was alleged to have been concerned. The surviving allegations,although fewer in number,were nevertheless extremely grave. 125 In this casethe Queen's Bench Division approved the findings of the Secretary of State when he announcedthat he is minded to conclude that there is no purpose to be served by continuing the extradition proceedings in relation to Senator Pinochet and that he is minded to take a decision that he will not extradite him to Spain because of a medical examination on Senator Pinochet which concluded who age 81 was unfit to standtrials. 126 125 TheQueen v. the Secretary ofStaiefor the Home Department, 2000 WL 461 (QBD). 126Ibid. 128 Consequently,the Secretaryof Staterefused his extraditionneither to Spain nor to Belgium. Instead,Senator Pinochet was set free and he went back to his country, Chile. This case may constituteprecedent for other caseswith similar circumstances. 3.3.6. Extradition's Failure Possible Outcomes Failure to extradite terrorist suspects to other States that requested their extradition might result in any of the following outcomes: Firstly, in many cases prosecution of the alleged terrorists will take place if extradition was denied for any of the above-mentioned reasons. As it has been mentioned earlier, despite the refusal of requests for extradition sought by twenty States for seventy-eight offenders, granted in only five cases, forty-two of these offenders were prosecutedby the requested States.127 This is in compliance with the principle of aut dedere autjudicare (extradite or prosecute), which constitutes the central obligation of the anti-terrorism conventions, which provides that if the requested person has not been extradited he must be submitted to the conipetent authority for the purpose of prosecution. Nonetheless,it shouldbe noted that the number of the prosecutedoffenders indicatedabove is illusive becausethere is no precisedefinition of the autjudicare obligation, i.e., to submit the case to the competentauthority for the purposeof prosecution.Thus to acquitthe offenderafter trying him for any reason,to convict 127 Evans,note 77. 129 him or to sentencehim either to the death penalty or to five months in prison, they all could be called prosecution, therefore actions in accordance with the anti-terrorism conventions. In other words, this obligation is limited by the submission of the case for prosecution and doesnot necessaryresult in trial and punishment. Secondly,in somecases, denial of extraditionmeans that the allegedterrorist will be setfree andface no trial, eitherbecause he or sheis consideredto be a political offender, in accordancewith the political offence exception,and thereforewill be grantedpolitical asylum,or becausethe requestedState is in supportof his or her political causethat motivated the committing of the crimes he or she has been requestedfor by the requestingState, thus being treated as a hero instead of a criminal. In addition,failure to extraditeterrorist suspects because of thejudicial finding that, for example, the fugitive is a political offender might be against the administration'sdesire in the requestedState to securesuch extradition. This may cause the governmentin this case to use deportation as a form of "disguised extradition"128 with respectto foreign fugitives. This action, which is basedon a State'sright to excludeor expel undesirablealiens, is a civil as opposedto criminal proceeding,and that meansit does not afford the individual the opportunitiesto presenthis or her own case as does before the court in criminal proceeding!29 Becauseit is quickerand cheapercompared to extradition,a study found that between January1960 and June 1976, eighty-eight persons were returnedby deportationto the 128P. Wilkinson,, Terrorism & The Liberal States, (New York University Press, 1986), 288. 129Ibid at 300. 130 States in which their offences had been committed.130 That being so because deportation to a specified State in response to a prior request from that State is not contrary to the international law. ' 31 However, if deportation was to another State that did not request the extradition of the deportee, such a method merely shifts the problem of extradition to another State and does not ensure that a suspectedterrorist is brought to justice. 132 Finally, a fourth outcomewhich might result from the failure of extradition,is the use of abductionof the requestedfugitive as an alternative. This method has proved to be very controversialsince it involves a violation of the State victinf s sovereigntyand it is againstall reasonsfor having internationaltreaties on extradition. Becauseif it is allowed for any country to abductan accusedperson from another country on the claim of protectingthe nationalsecurity of the abductedState, there will be no reasonfor concludingextradition treaties among different Statesin the first place. An exampleof suchabduction is the abductionof Alverez.Machain Alverez, a Mexicancitizen, was accusedby the US of participationin the torture and killing of a US drug agent. Consequently,the US Drug Agentsabducted him from Mexico after failing to securehis extradition. Such action was faced by a severeprotest from Mexico as a violation of its sovereignright over its territory and as a violation of the US-Mexicoextradition treaty. However,the US SupremeCourt tried Alverez and 130 Evans,note 77 at 131. 131D. Freestone,Legal Responsesto Terrorism:Towards European Cooperation% in J. Lodge (ed.), Terrorism:A Challenge 132 to the State,(Martin Robertson,1981), 204. lbid.at 388. 131 claimed that his abduction is not provided for in the US-Mexico extradition treaty as 133 illegal action. Although this case does not involve a terrorist suspect, it may apply to a terrorist situation. This US court decision may supply a needed precedent for any nation to carry out such action. A more recent example that involves a terrorist suspect is the abduction of Abdullah Ocalan (PKK7s Leader) from Nairobi, Kenya by the Turkish Secret Agents after he left the Greek Embassy while heading towards the airport where he thought he was flying to political asylum in Holland. Mr. Ocalan has been accused and convicted by Turkey of leading a terrorist campaign in Turkey for a long time. 134 However,it shouldbe mentionedthat such an actiontaken by someStates in order to obtain jurisdiction over the ftigitive offender in other Statesis of a rare occurrenceand usually it is not an availableoption in mostcases to most Statesof the world. 3.4. INTERNATIONAL CRIMINAL COURT (ICC) One of the early efforts to establish an international criminal court in this century was the draft convention for the establishment of an international criminal 135 court in 1937 in the League of Nations along with the draft convention for the 133B. Homring, 'Abduction as an Alternativeto Extradition- A Method to Obtain JurisdictionOver CriminalDefendants', 28 WakeForest Law Review,(1993), 677. 134BBC OnlineNews Feb. 20,1999. 135That Conventionnever came into force,but was signedby Belgium, Bulgaria, Spain,France (with the "colonial reservatioW'),Greece, the Netherlands, Romania, Czechoslovakia,Turkey, and Yugoslavia:there have been no ratification. 132 prevention and punishment of terrorism. However, none of these conventions ever came into force becauseof the outbreak of the World War 11.136 In the United Nations em, the work in drafting a statute for an international criminal court startedas early as 1953.137However, on July 1998,in Rome,Italy, wherethe whole world had witnessedthe conclusionand adoptionof the statuteof 138 a PermanentInternational Criminal Court. That event inspired the UN Secretary GeneralKoft Annan,who announcedthat: 'By adoptingthis statute,participants in the conferencehave overcome many legal and political problems,which kept this question on the United Nationsagenda almost throughout the organization'shistory. No doubt, many of us would haveliked a court vestedwith evenmore far-reachingpowers, but that shouldnot leadus to minimizethe breakthroughyou haveachieved It is an achievement which, only a few years ago, nobody would have thought 139 possible'. During the negotiationof the Statute,some States(e. g., CaribbeanStates, Egypt, Algeria, Turkey, and Sri Lanka) supportedthe inclusion of terrorism and drug trafficking amongthe crimes'40for which the ICC has a jurisdiction over. Thesecrimes: 136Blishchenko & Zhdanov,note 6 at 250. 137Zubkowski, note 60 at 333. 138The Statutewas adoptedby the UN sponsoredDiplomatic Conferencein Romeon 17 July 1998,by 120 Statesvoting in favour, 7 against,and 21 abstaining. 81 Stateshave ratified the treaty which entered into force on I July 2002. See Rome Statute Signature and Ratification Chart 133 include following - The crimes of genocide, which any of the acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a)- Killing membersof the group; (b)- Causing serious bodily or mental harin to members of the group; (c)- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d)- imposing measuresintended to prevent births within the group; (e)- forcibly transferring children of the group to another group,Art. 6. - Crimesagainst humanity, which include,for example,any of the following actswhen committedas part of a'widespreador systematicattack directed againstany civilian population,with knowledgeof the attack: (a)- Murder; (b)- extermination; (c)- enslavement; (d)- Deportationor forcible transferof population; (e)- imprisonmentor other severedeprivation of physical liberty in violation of fundamentalrules of internationallaw; (f)- Torture,etc. Art. 7(l). - War crimes,when committedas a part of a plan or policy or as a part of a largescale commission of suchcrimes; Art. 8, and - Crimes of aggression,which have not been defined by the Rome Statute, andthe conditionsunder which the ICC is to exercisejurisdiction over such crimesmust still be determined. 134 However, that proposed inclusion of terrorism among these crimes has been opposed by many States based on the facts that such crimes require a long-term investigation, planning, and infiltration into the organizations involved, which some times necessitates that immunity from prosecution be given to some individuals involved, thus these crimes are better suited for national prosecution. Also, and more importantly, there is no a generally acceptable definition of international terrorism. 141 Nevertheless,the- conference adopted a resolution in which it has been recommendedthat therewill be a review conferenCe142for the purposeof arriving at an acceptabledefinition of terrorism and drug trafficking and their inclusion 143 among the listed crimes within the ICC's jurisdiction. It is unfortunate, to say the least, to exclude terrorism from the jurisdiction of the ICC, becausethe ICC would be an ideal instrumentthat can be employedin the fight againstterrorism for the following reasons: Firstly, if the basicgoal of the ICC is to prosecuteserious crimes that are of internationalconcern as statedby Article I of RomeStatute, terrorism should have beenone of thesecrimes because terrorism is a crime of sucha nature. This can be inferredfrom the greatamount of attentionthe internationalcommunity has given to the problem of internationalterrorism even from the time of the League of "' M. Arsanioni,'The Rome Statuteof the InternationalCriminal Court', 93(l) AmericanJournal of InternationalLaw, (Jan.1999), 29. 142 Note that the review procedurecannot begin until the expiry of sevenyears after the Statute'sentry into force. 143Arsanjoni, note 161at 30. 135 Nations until this time. Twelve anti-terrorism conventions and protocols have been adopted in this regard and this, if it is to prove something, proves how much concern the international community has expressedover this problem. Moreover,those who think that terrorismis not seriousbecause the number of people who are killed by terrorists is relatively small comparedto other internationalcrimes, like war crimes,they shouldnot forget that terrorismvictimize only its immediatevictims, but all peopleby making them feel insecureat all time. Nonetheless,even in term of the actualnumber of peoplewho died as a result of terrorism,terrorism can causea hugeloss of humanlives similar to the onescaused by other internationalcrimes. The terrorist attack of September11,2001, against the US is illustrative in this regard,where more than three thousandpeople were killed asa resultof that attack. In addition,the possibilitythat terroristsmay acquirenuclear, biological, or chemicalweapons is sufficient to rethink terrorism in a more serious manner. Becauseif that happens,thousands of people will be killed by a single terrorist attack. Anotherreason that can be cited here is the fact that having the ICC with jurisdiction over terrorism meansthat it will apply a single and uniform law on terrorist crimes. Thus alleviating the substantialdifferences between States! national laws with respect to the offences listed in the various anti-terrorism conventions,which might result from their different interpretationsof what constitutesan "appropriatepenalties" or "severepenalties". In a survey of the 136 laws of seven States- (UY, US, Philippines, Sweden, Spain, New Zealand, and Federal Republic of Germany) -implementing "appropriate penalties" as provided for the in the Hostage Convention for the offences listed therein, 144Lambert noticed that there is a significant difference among these nations with respect to the range of penalties that they considered to be appropriate for such acts. He found that such penalties ranged from a death penalty in Philippines and 14 years imprisonment in New Zealand. 145 In addition,and more importantlyare the problemsraised by the principle aut dedere aut judicare (extradite or prosecute),which constitutesthe central obligationof the anti-terrorismconventions, as it has been discussedearlier. The recent exampleof the imperfect applicationof this principle was the Lockerbie case,in which Libya on one handrefused to extraditeits nationals,either to the US or England,because of the belief of the unfair trial its nationalsmight face in either of thesecountries and also becauseprosecution of the two suspectsin its national courtsis in accordancewith the relevanttreaty (Montreal Convention). The US and England on the other hand did not think that the Libyan Governmentwould genuinelyprosecute them, since evidence have shown that the accusedare agentsof the Libyan government.146 The ICC will be the best solution for this dilemma becauseit is meantto complementnational judicial systemis situationslike this, where nationaljudicial systemwith jurisdiction is either unable or unwilling to carryout suchan investigationor prosecution. '44 Article 2 of the HostageConvention provides that "each StateParty shall makethe offencessetforth in article I punishableby appropriatepenalties which take into account the grave nature of those offences". 145Lambert note I at 103-105. 146See, Grant & Dickinson,note 18. 137 Such concernsof bias and fairness for the accusedare very significant. For example, the prosecution of members of Alqaeda, who are foreigners to the US and accused of committing the most horrific terrorist attack against the US. Such a prosecution in US national courts where the jury are too emotionally involved in the incident might raise the question of impartiality of the trial. This will be the common perception, even if the trial was fair as long as it was conducted in the victimized State. These concerns cannot be mounted against the ICC, which consists of 18 judges elected by a two-thirds majority vote of member States, Art. 36 (6). This two-thirds majority requirement makes certain that the judges will have a broad 147 appealto the international world community. Last but not least, the deficient processof extradition, which is qualified with many exceptions,especially the political offence exception,which madeit of little effect in counteringterrorism as discussedabove. All these shortcomings makemany commentators contend that an internationalcriminal court would be the idealsolution. It should be noted however, that despite of the explicit exclusion of terrorismfrom the ICC's jurisdiction, the Statuteimplicitly providesthe Court with jurisdictionover sucha crime when certainconditions are met, but under the name of crimesagainst humanity, which is oneof the listed crimes. 14'T. Sailer,'The InternationalCriminal Court: An Argumentto Extend Its Jurisdictionto Terrorism andA Dismissalof U.S. Objections,13 TempleInternational and ComparativeLaw Journal, (Fall 99), 330. 138 In setting out the criteria of which act constitutes a crime against humanity, the ICC's Statute stated that this act must be committed 'as a part of a widespread or systematic attack directed against any civilian population, with the knowledge of the attack', Art. 7. Moreover, in order to define the meaning of the words 'attack directed against any civilian population, the Statute in Subparagraph 2(a) of the 'multiple same article states that this would require commission of acts ... pursuant to or in furtherance of a State or organizational policy to commit such attacks'. Therefore, crimes against humanity may be committed not only by or under the direction of State officials, but by organizations, this may include such groups as terrorist organizations and organizations of insurrectional or separatist 148 movements. Nonetheless,it should be noted that casesof internationalterrorism can rarely, if not at all, satisfy the (widespreadand systematic)criteria, becauseof terrorism'ssporadic and isolated nature. "8 Arsanjoni, note 141 at 34. 139 CHAPTER 4. PEACEFUL AND PRACTICAL RESPONSES THAT CAN BE TAKEN AGAINST TERRORISM Unlike the previous chapter, which was mainly concerned with the international community's responses to international terrorism from a theoretical perspective, this chapter is concerned with such responses from a practical perspective. In other words, it is concernedabout the actions States,in the real world, can take, or are taking against international terrorism. Nonetheless, since such responsesmay involve the use of force (next chapter), this chapter is only concerned about peaceful responses. Section I will be concerned about the issue of controlling terrorism by restricting the rules of asylum, borders and travel documents. In section 2 the discussion will be about the controlling of terrorism funds raising, because without sufficient funds terrorists will not, in many cases,be able to carry out some of there attacks Finally, Section 3 will be about the significance of the exchange of information between Stateson terrorism. However,before going through these various responsesto terrorism, it is worth mentioninghere that the first and the most pressingresponse, especially by developingcountries, is the eliminationof the causesthat give rise to terrorism. As it has beendiscussed earlier in Chapter2 that, in many cases,terrorism has been the product of a particular political problem, such as social injustice, denial of equal participationin the political system, suppressionof political expression,poverty, frustration, ... etc. According to many commentators,who are in favour of this solution, responsesmust be channelledto the underliningcauses. They supportthe argument, which makesa comparisonbetween terrorists and other criminals. They argue as 140 those of the 'environmental school of criminology' that terrorists, like other criminals are the product of their environment and that they have to recourse to violence because of the unavailability of other means to help them to express their frustration. According to them a successful treatment of the problem of terrorism is to destroy I such an environment. In a TV interview with one of the high ranking leaders of Hizb'allah (Party of God) in Lebanon (this group is considered by some States, e.g., US and Israel, as a terrorist organization), in answering a question which stated that you (i. e., the interviewed person) and other members of Hizb'allah organization have been accused and labelled as terrorists for the violent attacks you have committed against Israeli people, he replied that 'it does not matter what they are calling us, we will continue our fighting against Israel until the moment they withdraw from our land, then we will 2 return to our normal life'. In agreementwith such an argumentthe United Nations GeneralAssembly urgedStates to takeaccount of suchcauses. It statesthat: 'States [should] .... contribute to the progressiveelimination of the causes underlyinginternational terrorism and to pay specialattention to all situations, including, inter alia, colonialism, racism and situations involving mass and flagrant violations of human rights, and fundamentalfreedoms and those involvingalien occupation,that may give rise to internationalterrorism and may endangerinternational peace and security'. 3 I See,J. White, Terrorism:An Introduction,(Wadsworth, 1998), 246. 2Aijazeera TV Channel,(7 August1999). 3See, UNGA. Res.40/61, UN. GAOR,Para. 1 (1985). 141 This was also strongly highlighted by the Ghanaian Representative in the Security Council in a debate following the Israeli interception of the Libyan airplane in February 1980 He stated: 'The international community, including the [Security] Council, must summon the necessarypolitical will to delve into the reasonswhy the frustrations of the dispossessedare vented in this manner. A glib condemnationof terrorism alone,without a scientific and impartial study of its origins will not, we are afraid,eradicate the phenomenoif.5 Nonetheless,some writers take a different position with respectto this issue and argue that such efforts by governmentsto improve these conditionsmight be consideredas a weaknesson the part of governmentsand that might causemore violencefor more 'concessions.6 Laqueur,for example,highlighted the fact that a studyof violencein eighty-fourcountries reached the conclusionthat little repression increasesinstability whereas a greatdeal of it hasthe oppositeeffect. Add to that the fact that the satisfactionsof people'swants may haveunintended feedback effect and may increasethe desirefor more satisfactions,thus addingto the senseof systematic frustration! 4 On February4,1986, a Libyan executivejet carryingofficials of the ruling SyrianBaath Party from Tripoli to Damascuswas intercepted by Israeli fighter 75 km south-eastof Cyprusand forcedto land at a military airfield in northern Israel. The aircraft was allowed to proceed to Damascusafter questioningall the 12 passengersand crew,who reportedlyincluded Mr Abdullah al-Ahmer,the Baath Partyassistant secretary-general, and two Lebaneseleftist leaders.They were returningfrom a meeting at the Libyan-established"Pan-Arab Command", held in Tripoli on Feb. 24, which had also been attendedby somePLO leaders. Israeli officials admittedthat the interceptionhad been stagedin the hopeof capturingPLO leaders,some of whomhad apparentlytravelled back to Damascuson the same two aircraftof the sametype as that intercepted.This interceptioncame after the attackson Romeand Viennaairports on Dec. 27,1985,20 peoplewere killed, including four of the sevengunmen involved. Responsibilityof the incidentswas widely attachedto the PalestinianAbu Nidul group. See,Kessingýs Recordof WorldEvents 34260-34264 (1986). 5 Abeyratne,'Some Recommendations for a New Legal and RegulatoryStructure for the Management of the Offenseof Unlawful Interferencewith Civil Aviation', 25 (2) TransportationLaw Journal, (1998),121. 6See White, note I at 249. 7See W. Laqueur,The Age of Terrorism,(Weildenfeld & Nocolson,1987), 154. 142 Some other writers admitted Laqueur's argument only as a short-term In consequence.They argued that such a responsemight bring a long-term solution. other words, responding to the underlying causes may defuse potential sources of 8 violence. Citations have been made to the PLO, as a good example, in support of this argument by comparing the PLO's behaviour before and after the progress that had been achievedin the peaceprocess? Since 1993, when the PLO and Israel signed the first agreementunder which they both recognized the legitimacy of one another, and under which the PLO obliged itself to renounce the use of terrorism and other acts of violence and take the responsibility of such violent acts if committed by any of its members,since then no single act of terrorism has been directly attributed to the PLO. 4.1. ASYLUM, BORDERS AND TRAVEL DOCUMENTS Currently the internationalmovement of terrorists is still consideredto be relatively easy. Terroristscan mergeinto the ever-increasingland, sea, air tourist traffic, or amongthe flow of refugeesand illegal immigrants." It is thereforehighly desirableto take strongmeasures to preventsuch movement. Strengtheningborder controlson issuanceof identity papersand travel documentscan do this. Also, by granting police, immigration and customsofficials a heightenedpower to check anyone'sidentity, anywhere,and at anytime, in order to detect impersonation,i. e., counterfeiting,forgery, or the useof falsepapers. In addition,while recognizingthe legitimacy of the right of political asylum andright of admissionof refugees,protection should be exertedto preventthe abuse White,note I at 246. P. Sederberg,'Responses to Dissedent:From Myth to Maturity, in C. Kelgley (ed.), International Terrorism:Characteristics, Causes, Controls, ((Macmillan, 1990),277. 10R. Clutterbuck,Terrorism in an UnstableWorld. (Routledge, 1994), 78. 143 " of theserights by disguisedterrorists. It shouldbe mentionedthat the preventionof such abusesis one of the most difficult dilemmasthat facesmany countriesin the world, especiallyWestern countries, which respectthe right of asylum. In the light of huge flow of refugees from many parts of the world escaping persecution in their countries, Western countries who bear the large number of them find it very difficult to distinguish between refugee who, according to Article 1 of the GenevaConvention Relating to the Status of Refugees 1951, which most countries of to, is 'any (2) to fear being world are members person who .. owing well-founded of for is the his persecuted reasonsof .. political opinion, outside country of nationality to fear is to terrorist to be and .. owing such unwilling' return, and a who pretends a refugee. For example,in the UK the court applieda rigid test in many casesin order to excludecertain persons from the definition of refugeeeven if suchpersons had been involvedin terrorism. Illustrativecases can be R. v. Secretaryof Statefor the Home Department,e-xparte Chahal and T v. Secretaryof Statefor the HomeDepartment. In Chahal,the applicantwas an Indian nationalwho had beenin the UK since 1971,and who had indefiniteleave to remain. In 1990,pursuant to the immigration law, the Secretaryof Stateordered his deportationin the ground that his continued presencein the UK would not be conductiveto the public good 'for reasonsof nationalsecurity and otherreasons of a political nature,namely the internationalfight againstterrorism'. The applicantthen claimedthe right of asylumon the groundthat if he returnedto India he was likely to be killed becauseof his strongreligious and " Lyon Summit,(Ministerial Conference On Terrorism:Agreement on 25 Measures),July 1996. 144 political beliefs. The Secretary of State denied the claim for asylum, thus the applicant sought judicial review of this denial, as well as of the deportation order. One issue was whether the applicant was within the scope of Article 33(2) of the Geneva Convention. Article 33(l) contains the general prohibition of expulsion or return 'refoulement' by a contracting State of refugees within its territory. Article 33(2), however, provides: 'The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonablegrounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country'. For the Court, the major issuewas whetherArticle 33(2) requiresthe threatto life or freedomof the applicantto be balancedagainst the dangerto the securityof the contractingState and it decidedthat it did requiresuch balance. It referredto writers indicatingthat underArticle 33(2) theremay be caseswhere the dangerto a refugee outweighsthe menaceto public securityor that in the applicationof Article 33(2), the principle of proportionalityoperates. The Court in words of the StaughtonU, who representsthe majorityopinion said: 'Despitethe literal meaningof article 33, it would seemto me quite wrong that sometrivial dangerto nationalsecurity should allow expulsionor return in a casewhere there was a presentthreat to the life of the refugee if that took place'. However,since the Court found that the Secretaryof Statehad carriedout this balancingexercise or, at least,that it had not beenshown that he had failed to do so, it dismissedthe appeal.12 12 TheBritish YearBook ofInternational Law, (1995),501-503. 145 In T v. Home Secretary, the appellant was an Algerian national who applied for asylum in the UK after being detectedas an illegal entrant. The Secretaryof State, however, refused his request, and a special adjudicator and the Immigration Appeals Tribunal rejected subsequentappeals. This further appeal was then taken to the Court of Appeal. The special adjudicator accepted that the appellant, a member of the Islamic Salvation Front (FIS), had a well-founded fear of being persecutedif returned to Algeria, and therefore prima facie fell within the Geneva Convention's definition of a refugee under Article IA. Nevertheless, the special adjudicator and the Immigration Appeals Tribunal were of the view that he was excluded from the definition under Article IF(b), as there were serious reasons for considering that he was involved in an FIS bomb attack on an airport in Algeria, in which ten people were killed, and in a raid on an army barracks. The pertinent part of Article IF provides: 'The provisions of this Convention shall not apply to any person with respect to there for that: (b) he whom are serious reasons considering .. was committed a serious non-political crime outside the country of refuge prior to his admission to that countryas a refugee The Court of Appealwas of the view that the applicationof Article IF did not requirea 'balancing' test of the kind referredto in Chahal. The Court said that it could: Find nothing in the Conventionwhich supportsthe view that, in deciding whethera non-politicalcrime is 'serious' and thereforewithin article IF, the Secretaryof State or the appeal tribunal is obliged to weigh the threat of persecutionif asylumbe refusedagainst the gravity of the crime. In addition,the court did not doubtthe seriousnessof the crimescommitted by T, thus satisfyingthe requirementthat the crime committedby the asylum seekerto be 'serious' as indicatedin Article IF above. However,the other requirementis for 146 the crime to be a non-politicalcrime. The Court in decidingthat the crimesin this caseare non-politicalrelied primarily on Englishcases dealing with the definition of 4politicaloffences' in the contextof extradition,which wasdiscussed earlier in more detail. In short, the issue of political or humanitarian asylum is one of the most difficult issues the international community, especially Western countries, have to face in order to prevent terrorists from abusing such a valuable right to avoid criminal liability for the terrorist acts that had committed in the past. 4.2. TERRORIST FUND RAISING Funds for terrorists or terrorist organizations are essential, without sufficient funds, terrorists in many cases will not be able to carry out some of their attacks, especially those that involve the use of heavy arms or travel and stays in many States. Therefore, one of the most important weapons in the war against terrorism is to find a mechanism that helps to prevent the flow of money to terrorists, or terrorist organizations,or to dry up the sources from which this money comes. Such a move must be taken whether such financing is direct or indirect through organizations that also have or claim to have charitable, social, or cultural goals, or which are also engaged in unlawful activities such as illicit arms trafficking, drugs dealing, and racketeering.13 To do so, Statesmay: - Domestically, each State may where appropriate, monitor and control cash transfersand adopt bank disclosureprocedures; 13Lyon Summit,note 11. 147 information international - States may intensify exchange concerning movements of funds sent from one country to persons or to associations in anothercountry suspectedof carrying out terrorist activities; and impeding in - Prevent such movements, if necessary,in certain cases without 14 any way the freedom of legitimate capital movement. Moreover, the international community realized the importance of such a measure, i. e., prevention of terrorist fund raising, in the war against terrorism, and recognized the gap in the other anti-terrorism convention that did not cover this subject. Therefore, the General Assembly of the United Nations on 25'h February 2000 adopteda new convention and bridged this gap. International Convention for the Suppression of the Financing of Terrorism (2/2000). This Convention is structurally based on prior anti-tefforism conventions adoptedby the UN and its specializedagencies. It includesa requirementthat States Partiesshall criminalize certain conduct, submit for prosecutionor extraditionpersons found in their territory suspectedof the proscribedoffences, and cooperatein the investigationand prosecutionof the offences. Like its predecessors,this Convention doesnot attemptto define 'terrorism', insteadit defines a particular conduct that, regardlessof its motivation,is condemnedinternationally and must be preventedand punishedif it takesplace. Accordingto Article 2a personcommits an offencewithin the meaningof this Conventionif 'that person by any means,directly or indirectly, unlawfully and 14 Ibid. 148 be in willfully, provides or collects funds's with the intention that they should used or the knowledge that they are to be used, in full or in part, in order to carry out: (a)- An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex (this includes all the antimterrorismconventions and protocols except the Convention on the Marking of Plastic Explosives of 1991 becausethis convention neither defines or lists any new proscribed offences); or (b)- Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act'. (Article 2, Para.1, Sub-Para.'a & W) However, since not all Statesare party to the other anti-terrorism conventions and protocols referred to in subparagraph(a), Paragraph 2 (a) of the same article provides that 'On depositing its instrument of ratification, acceptance, approval or accession,a State Party which is not a party to a treaty listed in the annex may declare that, in the application of this Convention to the State Party, the treaty shall be deemednot to be included in the annex referred to in paragraph 1, subparagraph(ay. Paragraph1, subparagraph(b) mentionedabove, may cover many terrorist offencessince most actsof terrorisminvolve causingdeath or seriousbodily injury to the victims targetedby such acts. However,it is possibleother terrorist attackslike hijackingor hostage-taking,which may not causedeath or any seriousbodily injury to 15According to Article I of this Convention"fandr meansassets of every kind, whethertangible or intangible,movable or immovable,however acquired, and legal documentsor instrumentsin any form, includingelectronic or digital, evidencingtitle to, or interestin, suchassets, including, but not limited to, bankcredits, travellers cheques, bank cheques,money orders, shares, securities, bonds, drafts and lettersof credit. 149 the victims, by the act of providing or collecting funds, even with the intention or in the knowledge that they are to carry out such attacks, will not be considered a proscribed offence under this Convention. This will be the case even if it occurs in a State party to this Convention if that State is not party to the relevant anti-terrorism convention or protocol and it made a declaration in this regard. Therefore, the effectivenessof this Convention may be seriously undermined if many of the States parties are not party to the relevant antimterrorismconventions and protocols. Moreover,it is possiblethat a Statewhich is party to this Conventionthat is also party to the anti-terrorismconventions and protocolslisted in this Convention ceasesits membershipwith any of thesetreaties. Thus,paragraph 2 (b) addressesthis possibility and statesthat if that happens,this State 'may make a declarationas providedfor in this articlewith respectto that treaty. Furthermore,Article 4 providesthat StatesParties are obliged to adopt such measuresas may be necessary:to criminalize,under their domesticlaws, theseacts proscribedunder this Convention;and to make theseacts punishable by appropriate penaltieswhich takeinto accounttheir gravenature. Nonetheless,it is not only natural personswho can commit the proscribed offencesunder this Conventionbut ratherand more often they can be committedby a legal entity. Thus,Article 5 providesthat eachState Party shall, in accordancewith its domesticlegal principles,take the necessarymeasures to hold liable those legal entitieslocated in its territory, or organizedunder its laws, when a personresponsible for the managementor control of that legal entity has, in that capacity,committed an 150 offence prohibited under this Convention. Such liability may be criminal, civil or administrative. This may include monetary sanctions. With respectto the basesof criminal jurisdiction, this Convertion,like other anti-terrorism conventions, provides for both mandatory and discretionary jurisdiction. Each StateParty is obliged to establishits jurisdiction in the following cases: in State; - When the offence is committed the territory of that Whenthe offenceis committedon board a vesselflying the flag of that State or an aircraft registered under the laws of that State at the time the offence is committed; - Whena nationalof that Statecommits the offence. However,a StateParty may, subjectto its discretion,establish its jurisdiction in the following cases: - When the offencewas directedtowards or resultedin the carrying out of an offenceproscribed under Article 2 (1) (a or b) in the territory of or againsta nationalof that State; - When the offencewas directedtowards, or resultedin the carrying out of an offenceproscribed under Article 2 (1) (a or b) againsta Stateor government facility of that Stateabroad, including diplomaticor consularpremises of that State; - When the offence was directedtowards or resultedin the carrying out of an offenceproscribed under Article 2 (1) (a or b), committedin an attemptto compelthat Stateto do or abstainfrom doing any act; 151 When the offence is committedby a statelessperson who has his or her habitualresidence in the territory of that State;and When the offenceis committedon board an aircraft which is operatedby the Governmentof that State,Article 7, (1) and(2). In addition, Article 7 (4) sets out what is consideredto be the central obligationof this conventionas in the other anti-terrorismconventions, that is aut dedereautjudicare, i.e., extraditeor prosecute. It statesthat 'each StateParty shall likewise be its jurisdiction in take such measuresas may necessaryto establish ... caseswhere the allegedoffender is presentin its territory and it doesnot extraditethat person to any of the States Parties that have establishedtheir jurisdiction in accordancewith paragraphs(1) or (2), as statedabove. At the momentof writing only thirteenStates of the one hundredand nineteen Statesthat haveinitially signedit haveratified this Convention.For this Convention to enter into force, it needsat least another nine instrumentsof ratification and accession. However,even if this Conventioncomes into force,there are somedifficulties that may makethis an instrumentof little or no effectivenessin combatingterrorism. The samecould be saidwith regardto the measuresmentioned above that canbe used to control the flow of illegal money in general,and to preventfunds from reaching terroristorganizations in particular,which may seemeasy at the policy level, but are very complicatedto implementat the operationallevel. This is becauseof the following: 152 Firstly, by and large criminals, especially those who have to deal with money, have proved to be very intelligent and creative in inventing new ways when dealing with money, that have a very high degree of sophistication and complexity which only a limited number of law of enforcement agencies with experience and imaginative thinking, will be able to figure out. For example, in 1977, the US Congress, in order to combat drug dealers who handed bags of illegal cash to bank tellers, enacted a statute that included, among many things, the 'currency transaction reports' which must be filed by financial institutions whenever there has been a deposit or withdrawal of more than $10,000 in currency or monetary instruments. Nevertheless,since Congressdid not expresslyprohibit the "structuring" or "smurfing7, that is, breaking a 10,000 cash transactioninto a series of smaller transactions,each below the 10,000threshold, accordingly, in many courts, many drugdealers evaded conviction under that statute.16 Moreover,another technique used by criminals, especiallythose involved in moneylaundering which is also applicableto terrorists,is to avoid dealingwith banks or any other financial institutionswhen they needto transfercash money from one countryto another. That is to travel with cashbecause it is difficult to detectand it leavesno papertrail behindthem. '('B. Williams andF. Whitney,Federal Money Laundering: Crimes and Forfeitures,(Lexis Law Pub., 1999),8. 153 Secondly, States that are known being banking centres will be reluctant to 17 cooperatein this regard. This is becausethese banks, which act as tax havens, will oppose any requirement that imposes upon them the obligation to disclose the information they have, since many of these havens are highly dependent upon their banking systems, which is based among many things on the secrecy of cliente information, as major sources of finance and employment. Therefore, these States will, in order to protect their national self-interest, work against any major changes that might negatively affect them. The following examples illustrate how the above features are enormously profitable making the inspired cooperation from such States complicated. The Cayman Islands, with its 35,000 inhabitants, saw its banking assetseventually exceed $670 billion. It has become home to 570 banks and trust companies, 2,240 mutual funds, 500 captive insurance firms, and 45,000 offshore businesses. Switzerland is another example that became very pre-eminent in global asset management, controlling up to $2.3 trillion under management, more than half from foreign is customers. Oneof the recentefforts that hasbeen made in orderto control the flow of the illegal money in the globe was the G-7 Summit in July 2000. Three multilateral organizations-Financial Stability Forum (FSF), FinancialAction Task Force (FATF), and the Organizationfor EconomicCooperation and Development(OECD)- were requiredto conductresearch on rogue banking, money laundering,and tax evasion beforethe summit'snext meeting. 17p. Williams andE. Savona,The United Nations and TransnationalOrganized Crime, (1996),86. W. WecbsIer,'Follow The Money, 80 (4) ForeignAffairs, (July-August2001), 42. 154 The objective the G-7 sought from these studies was to 'name and shame' those nations that had developed under-regulated financial centres and threaten 19 appropriate countermeasuresif the pressurewas not sufficient. An example of such countermeasuresis the restricting of financial transactions with these nations and conditioning the support from the international financial institutions. In a surveythat askedbanking, insurance, and securitiessupervisors in both onshoreand offshore centers about offshore laws and supervisorypractices, the level of resourcesdevoted to supervisionand internationalcooperation, and the degreeof cooperation.The FSF groupedoffshore jurisdictions into threecategories, from high to low quality: I- high quality categoryincluded Dublin (Ireland), Guernsey,Hong Kong, the Isle of Man, Jersey,Luxembourg, Singapore, and Switzerland.2- The medium quality included Andorra, Bahrain, Barbados,Bermuda, Gibraltar, Labuan (Malaysia), Macau, and Monaco. 3- The low quality groups included Anguilla, Antigua and Barbuda,Aruba, the Bahamas,Belize, the British Virgin Islands,the CaymanIslands, the Cook Islands,Costa Rica, Cyprus,Lebanon, Liechtenstein, the MarshallIslands, Mauritius, Nauru, the NetherlandsAntilles, Niue, Panama,St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines,Samoa, the Seychelles,Turks and Caicos,and Vanuata. For its part, the FATF was responsiblefor reviewing the countriesthat resistedglobal efforts to combatmoney laundering, both offshoreand onshore. In its concluding report the FATF divided the twenty-nine nations it assessedinto two groups:fifteen are noncooperativejurisdictions and fourteen are with deficiencies. Noncooperativejurisdictions included the Bahamas,the Cayman Islands,the Cook Islands, Dominica, Israel, Lebanon,Liechtenstein, the Marshall Islands,Nauru, Niue, Panama,the Philippines,Russia, St. Kitts and Nevis, and St. 19Ibid. at 50. 155 Vincent and the Grenadines. The jurisdictions that the FATF also reviewed were Antigua and Barbuda, Belize, Bermuda, the British Virgin Islands, Cyprus, Gibraltar, Guernsey, the Isle of Man, Jersey, Malta, Mauritius, Monaco, St. Lucia, and Samoa. The OECD, which was responsible for investigating tax evasion, found the following jurisdictions to be tax havens: Andorra, Anguilla, Antigua and Barbuda, Aruba, the Bahamas, Bahrain, Barbados, Belize, the British Virgin Islands, the Cook Islands, Dominica, Gibraltar, Grenada, Guernsey, the Isle of Man, Jersey, Liberia, Liechtenstein, the Maldives, the Marshall Islands, Monaco, Montserrat, Nauru, the NetherlandsAntilles, Niue, Panama,Samoa, St. Lucia, St. Kitts and Nevis, St. Vincent and the Grenadines,the Seyychelles,Tonga, Turks and Caicos, the US Virgin Islands,and Vanuatu. Lookingthrough this resultone may easily seethat thereare many Statesthat are either unable or unwilling to adhereto the internationalaccepted standards of supervision,cooperation, and information-sharingwhich as a result may create a potentialsystemic threat to globalfinancial stability? o Furthermore,the globalizationand the advancesin bankingtechnologies make distant countriesjust a mouse-click away.21 Therefore, it is easy for terrorist organizationsthat are usually up to date with these developmentsto transfer any money they possessto nations that were once too small, too bereft of natural resources,or too physically remote from the rest of the world. In return, these countrieswill be ableto makeeasy money which they could not do in the past. 20 Seeibid at 50-5 1. 21lbid at 42. 156 In addition, another recent phenomenonthat may also contribute to the difficulty the international community is facing when trying to control the finance around the globe, is the fact that some Stateshave enactedlaws involved licensing of the so called 'brass plate' banks, which have neither physical presencenor personnel, and allowing the creationof anonymouscompanies and asset-protectiontrusts, some of which can give ownershipto whomever happensto be holding the relevant documentat that moment?2 More significantly,not all Statesare cooperativein preventingterrorist fund raising which relies primarily on the national law of these States, thus any involvementin terroristactivities by theseStates, especially States which provide safe havensto terroristorganizations, will rendersuch requirements meaningless. Also, it has been said that terrorist fund raising might be beneficial for both terroristsand safehavens. For instance,in Afghanistan,some argue that the value of safe havenshas not been lost on terroristssuch as Osamabin Laden, who became very prominentdue not to 'his military exploitsbut to his ability to raise,manage, and movemoney for Afghanrebels in the 1980s.23 Besides,corruption can be anotherfactor that may causeeven a cooperative country to becomean importantstation in the movementof suspectedmoney. For instance,in 1999,the US, which is known for its strict regulationsin this regard,had witnesseda big scandalthat involved the moving, illegally, of $7.5 billion of Russian fundsthrough the Bank of New York with the complicity of seniorbank officials.24 22 Ibid at 43. 23 Ibid at 45. 21Ibid. 157 is, Moreover, the variety of sourcesform which terrorist funds can be obtained difficulties also, another problematic element that can be added to the already existing been when trying to regulate terrorists' ability in raising funds. It has reported that terrorist groups can draw their finances from the following sources: drinking clubs, taxi companies, game machine operations, video piracy, extortion, smuggling, commercial fraud, construction industry fraud, misuse of government grants, frauds, contributions from overseas supporters, charities, cheque and credit card draws, raffles and collections, sales of newspapersand propagandainstruments, social drug events, counterfeiting, illegal animal drugs, armed robbery, and increasingly dealing.25 Finally, even Stateswhich want to cooperateto preventterrorist fund raising will find it very difficult. This is becausesuch full cooperationmay affect other essentialrights of their citizens. For example,the right to move one's capital or the right to havesecret personal bank datamight be violated in one way or anotherwhen implementingsuch requirements. Nonetheless,it should be noted that preventionof terrorist fund raising has becomean internationalduty imposedby the Security Council on all States,even Statesnot partiesto the relevantanti-terrorism convention discussed earlier or even statesnot membersto the United Nations. Suchan obligationcame in the aftermath of the September11 attackson the US. In Resolution 1373 (2001), the Security Councilacting under Chapter VII of the UN Charter, 1. Decidesthat all Statesshall: (a) Preventand suppress the financingof terrorist acts; 25R. Bosworth-Davisand G. Saltmarsh,Money Laundering: A Practical Guideto New Legislation, (Chapman&Hall, 1994),35. 158 (b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; (c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons andentities; (d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assetsor economic resourcesor financial or other related services available, directly or indirectly, for the benefit of personswho commitor attemptto commit or facilitateor participatein the commissionof terrorist acts, of entities owned or controlled,directly or indirectly,by suchpersons and of personsand entitiesacting on behalf of or at the directionof persons.26 4.3. EXCHANGE OF INFORMATION AND INTELLIGENCE 27 Expertsand political scientistsall agreethat any successfulstrategy to combat terrorismmust involve exchangeof informationand intelligenceas one of its major components.28 To enhanceanti-terrorist capabilities,the competentauthorities of different countries must strive to establish stability and good communicationin intelligenceexchange systems, particularly between those with commonborders. 26UNSC Res. 1371(4385th mtg, 28 September2001), UN Doc. S/RES/1373(2001). 27Notice that thereis a differencebetween information and intelligence. Using Northam'sdefinitions, informationis a fact or facts,which cometo the noticeof the relevantagency. Intelligence, however, is theproduct of the assessmentand analysis of the informationavailable. Cited in supranote II at 122. 28R. Ward, 'The Multinational investigativeTask Force As a Model For CounterTerrorisnf, in R. Ward& A. Ezcldin(eds. ), InternationalResponses to Terrorism:New Initiative, (Chicago,1990), 67. 159 Now the question is, can a State which has some information that may help in preventing an imminent terrorist attack, withhold such information from the concerned State or States, or must international law require such information to be sharedwith others? Accordingto the various multilateralconventions that deal with international terrorism,such exchange of informationas a meansto preventinternational terrorism is required. One of the early instrumentsthat dealt with this issue was the 1937 League of Nations' Geneva Convention for the Prevention and Punishmentof Terrorism. It providedthat it is a duty of memberStates to preventterrorist activities and eachState is requiredto have a centralizedservice in contactwith the countrýs police and with all other countries' servicesto bring together all infon-nationto facilitate the prevention and punishment of terrorist offences. However, that conventionwas only ratifiedby India andnever came into force. Although the Tokyo and Hague Conventionsmade no mention of such provision,the Montreal Conventioncame up with provisionssimilar to thoseof the Leagueof Nations' Convention. It requiresmember States to 'endeavourto take all practicablemeasures for the purposeof preventingthe offences[mentioned in Article 1]...', Art. 10, (1). It further requiresa StateParty to 'furnish any relevantinformation in its ' Statesif it has possession.. to any other a reasonto believe that any of the terrorist offenceslisted in the Conventionmight be committed against that State, Art. 12. The Montreal Convention was the first multilateral treaty to become 160 effective, which stressespreventive exchange of infonnation in order to control terroristactivities? 9 After that, all other multilateral conventions that dealt with international terrorism followed suit with the Montreal Convention and provided for such preventiveexchange of information,(e. g., Article 4 of the New York Convention, Article 4 of the HostageConvention, etc.). Furthermore,in 1986at the Tokyo EconomicSummit, Canada, France, Italy, Japan, Germany, the UK, the US, and representativesof the European Community issued a statement on international terrorism. It called upon nations to take all practicable measuresto prevent terrorism. Among these measures,'to intensify the exchange of information in the relevant flora on threats emanating from terrorist those them, 30 activities and who sponsoror support and on ways to prevent them...... In addition, more recently in 1996 in the Lyon Summit, participants emphasisedthe needfor improving informationexchange on terrorism,they declared that Statesshould: I- Facilitatethe exchangeof informationand the transmissionof legal requests through establishingcentral authorities so organizedas to provide speedy coordinationof requests,it being understoodthat those central authorities would not be the sole channelfor mutual assistanceamong states. Direct exchangeof informationamong competent agencies should be encouraged; 2- Intensify exchangeof basic information concerningpersons or organizations suspectedof terrorist-linkedactivities, in particular on their structure,their 29E. Yearwood,'Data Bank Control', in M. Bassiouni, (ed.), Legal Responsesto International Terrorism,US ProceduralAspects, (Martinus Nijhoff, 1988),252. 30lbid at 255. 161 66modus operandr', and communications systems in order to prevent terrorist actions; 3- Intensifyexchange of operationinformation, especially as regards:the actions and movementsof personsor groups suspectedof belonging to or being connectedwith terrorist networks - travel documentssuspected of being forgeriesor falsified - traffic in arms, explosive,or sensitivematerials - the use of communicationstechnologies by terrorist groups- the threat of new types of terrorist activities, including those using chemical, biological, or nuclearmaterials and toxic substances. 4- Find ways of acceleratingthese exchanges of informationand making them more direct, while at the same time preserving their confidentiality in conformity with the laws and regulations of the state supplying the information.31 Althoughthe abovementioned statements made by Statesparticipating in the summitshave no force of law as do the internationalconventions with respectto contractingparties, these statementsgive a clear indication that States should exchangeinformation on mattersrelated to terrorism in order to preventor at least limit its occurrencein future. It is to be noted that at the internationallevel there is also the International Criminal Police Organization,better known as Interpol. Interpol is an international organization,established in 1946, dedicatedto promoting internationalcooperation betweencriminal police authoritiesworldwide as statedin article 2 of its Constitution. Article 2 providesthat the Interpol is an associationof countriesfor the purposeof promoting the 'widest possible mutual assistancebetween all criminal police 31Lyon Sununit,note 11. 162 authorities within the limits of laws existing in the different countries and in the spirit of the Universal declaration of Human Rights'. 32 On the contrary to many peoples' misconception, Interpol is not a supra national police force, i. e., it does not maintain its own international police force. Rather, Interpol strictly respects the sovereignty of its Member States and works within the framework of each Member State's existing laws. Each Member operatesa National Central Bureau, which serves as a point of contact in that State with other States.33 In the field of cooperationagainst terrorism, Interpol's role hadbeen restricted by Article 3 of its Constitution, which provides 'It is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character. Hence, as terrorism always involves political implications, Interpol would not be able to participate in any intelligence activity aimed at preventing terrorist acts. The first casethat testedsuch a restrictiveinterpretation of Article 3 arosein 1950,when a group of Czechoslovakianrefugees hijacked an airplane and sought political asylum in another country. Czechoslovakia,as a Member of Interpol, requestedthat internationalwanted notices be issuedfor the hijackers. The notices were issued. The US representative,however, protested and claimed that the hijackingwas purely political and thus any actiontaken by the organizationwould be 32j. Overton,'Interpol's Perspectiveon InternationalTerrorism', in K Ward & A. Ezeldin (eds.), InternationalResponses to Terrorism:New Initiative, (Chicago,1990), 72. 33M. Grutenrath,'Interpol's Role in the InternationalLaw Enforcement',in M. Bassiouni,(ed. ), Legal Responsesto InternationalTerrorism, US ProceduralAspects, (Martinus Nijhoff, 1988),373. 163 in contravention of Article 3. In order to express its protest, the US temporarily withdrew from Interpojý4 Since then, Interpol has become handicapped with respect to the issue of terrorism. However, in order to avoid this conservative interpretation of Article 3, Interpol, in 1984, adoptedtwo resolutions by its General Assembly giving guidance to this interpretation. It was resolved that crimes committed against innocent victims or against property outside the area of conflict, regardless of their motivations, should not be regardedas political; it was also resolved that Article 3 did not debar Members from sharing technical information about terrorism, providing that the information did not discriminate for solely political purposes. Members were encouragedto exchange information relevant for the prevention of terrorism as freely as their national laws 35 would allow. Nonetheless,despite these resolutions and despitethe fact that Interpol has morethan 146Member States, its role in sharinginformation that helps in preventing terrorist acts from occurring is still of little effect. The reasonsfor this being so follow: Firstly, theseresolutions are not legally binding, thus Statesmay, when their national self-interestwarrants, disregard them. Secondly, this large number of Member Statesinevitably includes,as Clutterbuckpointed out, a large number of countries'who would never trust all others with sensitivepolitical or intelligence 34Ibid. at 376. 35Clutterbuck, note 10at 119. 164 information, and a smaller number who virtually none of the others would trust at 36 all'. More importantly, Interpol has some Members who are accused by other Members of sponsoring or SUPpOrtinginternational terrorism, therefore exchange of informationwith thesecountries might be abusedin the interestsof terrorists. Also, distinction should be made between the police/crime role and the 37 security service/intelligence role. Interpol clearly fits the terms of police activity. Thatmeans that oncea criminal act has occurred,i. e., not before,it would assistin the effortsof law enforcementagencies to apprehendthe responsibleindividuals. Finally, Interpol is basedon the fundamentalprinciple of cooperation,not compulsion.Thus each country is free to decidewhether to communicateinformation 38 or not asits nationallaws allows. 36 Ibid. 37overton,note 32 at 74. 38Ibid. 165 CHAPTER 5. THE USE OF MILITARY FORCE ABROAD TO COUNTER INTERNATIONAL TERRORISM Believingthat terrorismis a problemthat hasbecome too greatto be dealt by the peacefulmeasures discussed earlier in Chapter4, States,in somecases, resort to military actionsto counterterrorists in othercountries, especially if thesecountries are involvedin sponsoringor supportingthese terrorists in their attackson other States. As the title above suggests,this chapter will mainly be concernedwith the use of military force abroad,because in such an extraterritorial use of force there is a clear international element involved that should be addressed. Therefore, the use of military force as an extension of police civil power within the State to counter domesticterrorist threats,will not be dealt with in this chapter. In SectionI attentionwill be given to the importanceof the obligation that a Statecontemplating the use of military force to exhaustall peacefulmeans available on hand, before conductingany armed action, as is required by internationallaw. Section2 will be concernedwith the variousjustifications presentedby Stateswhen using force abroad, and which of these legal justifications are accepted by internationallaw. In Section3 the discussionwill be aboutthe recentuse of military forceby the US againstSudan and Afghanistanas in the subsequentcase study of this chapter,and the question there will be concernedwith the facts and the legal justificationswhich permit the use of that forcible action. Finally, Section4 will try to answera very importantquestion that is, how effective the use of military force abroadactually is in deterringinternational terrorism. 166 5.1. PEACEFUL RESPONSES FIRST Before discussing the various justifications for the use of force abroad by States against international terrorism, it must be emphasizedhere that such a use of force is not an ordinary but an extraordinary remedy. Therefore, States must seek peaceful responsesbefore recourse to the coercive responses. This is one of the fundamental principles of the international community, as laid down in the UN Charter and subsequentbasic texts. Such a hierarchy of the peaceful responsesover the coercive responsesis articulated in the UN Charter Article 2 (3), which provides that 'All Members shall settle their international disputes by peaceful means in such a mannerthat international peaceand security, and justice are not endangerecr. Moreover,Paragraph 4 of the samearticle states'All Membersshall refrain in their internationalrelations from the threat or use of force against the territorial integrity or political independenceof any State,or in any other mannerinconsistent with the Purposesof the UnitedNations'. Examplesof suchpeaceful means are providedfor in Article 33 (1) of the UN Charter,which stressesthat 'The Partiesto any dispute,the continuanceof which is likely to endangerthe maintenanceof internationalpeace and security,shall first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement,resort to regional agenciesor arrangements,or other peaceful meansof their own choice'. This has also beenreiterated in, inter alia, the 1970 Declarationon Principlesof InternationalLaw ConcerningFriendly Relations and Cooperationamong States, which says,in part,that: 167 just international 'States shall ... seek early and settlementof their disputes by inquiry, The Parties dispute have the negotiation, ... etc. ... to a duty, in the event of failure to rearch a solution by any one of the above peaceful means,to continue to seek a settlement of the dispute by other peaceful meansagreed upon by them'. It follows from the above that it is a generalrule of internationallaw that Statesmust not resortto the use of force unlesssuch a use of force is unavoidablein difficult circumstancesin accordancewith internationallaw. This view, accordingto Antonio Cassese,is by no meansuniversal. He stated that althoughin somecases -for whateverreasons, ideological, political, or military- Statesimmediately resorted to a coercive responseto terrorist activity, and they receivedno greateradmonition from the rest of the world than a verbal condemnation. 'Thesedeviations' he stressed,however, 'do not detractfrom the generalrule" that peacefulremedies must be exhaustedfirst only when sucha terroristattack constitutes an armedattack as will be discussedlater. In additionto suchprovisions for peacefulresponses in the UN Charterand someof its subsequentresolutions, another reason can be cited herefor the hierarchy of peacefulresponses over coerciveresponses, which is relatedto the sourceof each of them. With respectto the rulesgoverning the useof force,they aremostly found in customaryinternational law, though their roots may lie in treaties. By contrast,the rulesgoverning the peacefulresponses are containedin treaties. This meansthat the latter may have the advantageof being more easily identifiable than the customary law on the use of force. However,this also implies one importantshortcoming, that See,A. Cassese,'The International CommuniVs Legal Response to Terrorism', in C. Gcarty(ed. ), Terrorism,(Dartmouth, 1996), 75. 168 unlike the rules of customary international law, which bind all subjects, the rules of treaties only bind those States that have ratified and acceded to them, and even then, 2 only on a strictly reciprocal basis. The third reasonfor sucha hierarchyof peacefulresponses is that despitethe fact that terroristsare "the modern enemiesof mankind'3 and every State should endeavorto punishthem, this, nonetheless,does not entail a licenceto use force in such way that would involve attacking other States' territory, ships, or aircraft. Becauseif sucha licencewere givenby internationallaw, our world presentcondition of relativeanarchy would be at risk of turning into oneof absoluteanarchyý Nevertheless,a Stateis exemptfrom this generalrule, if that State is under ongoing attack. In this case,such a State has the right to responsewith force in accordancewith its right of self-defence.Another exception from this generalban on the useof force is when the SecurityCouncil in accordancewith Article 42 of the UN Charterauthorized such a useof force. 5.2. LEGAL JUSTIFICATIONS FOR THE INTERNATIONAL USE OF MILITARY FORCE IN COMBATTING INTERNATIONAL TERRORISM In justifying the useof military force abroadin the fighting againstterrorists or their sponsors,States often searchfor a legally acceptedexcuse in order to answerthe pressure from the international community thereafter. Usually States justify their coerciveactions by any of the following excuses: 2North SeaContinental Shelf Case, ICJ Report1964. 3Cassese, note I at 90. 4Ibid. 169 5.2.1. Self-Defence Article 51 of the UN Charter provides that 'Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measuresnecessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way effect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessaryin order to maintain or restore international peace and security'. 5.2.1.1.Individual Self-Defence Individual self-defenceis one of the most ancientand fundamentalrights of Statesrecognized by internationallaw from time immemorial5 Hugo Grotius,one of the most prominentwriters on internationallaw in the Wh century, observedthat States'right of self-defencerests on the 'fact that nature commits to each his own 6 protection'. However,if such a claim of self-defenceis an inherentright of every Stateagainst an armedattack from anotherState, as Article 51 of the UN Charter indicates,is indisputablein internationallaw. Doessuch a right of self-defenceexist if a Stateclaims it in the fight against,not a direct armedattack by a State,but against violentacts by terrorists? The answerof sucha questiondepends on whetherthis use of self-defenceto counterterrorism can satisfythe following conditionsthat permit a legitimateright of self-defence: 5 R. Erickson,Legitimate Use of Military Force Against StateSponsored International Terrorism,(Air UniversityPress, 1987), 128. 6Ibid. 170 (I)- Armed Attack: Although the term "armed attacW' is nowhere defined in the Charter, most commentatorsagree that the direct employment of force by one State against another constitutes an armed attack. However, since Article 51 speaks of armed attack in general and does not restrict it to direct armed attack, the question here is, can an act of terrorism be consideredas an armed attack within the meaning of Article 51 of the UN Charter, therefore allowing the victimized State to respond, in self-defence, with force to such an act? For example, do the terrorist attacks of September II againstthe US7 constitute an armed attack within the context of Article 51 of the UN Charter, thus allowing the US to resort to military action against Afghanistan in response to such attacks? Beforestart answering this very controversialquestion, we must keep in mind that this areaof internationallaw is one of the most unsettledareas and arguments may vary from one writer to another. Nonetheless,there are some elementsthat if they areconsidered will help to find an answerto sucha problematicissue. The first elementis aboutthe magnitudeof the attacksof SeptemberII when comparedto actionsresulted from the direct employmentof force by one Stateagainst another. Clearly that the attacksof SeptemberII were different from all terrorist attacksthe world has witnessedwhich are usually sporadicin nature and minor in effect. Not only thousandsof peoplewere killed by suchunprecedented attacks, but 7 The attacksof SeptemberII resultedin the deathof more than 3 thousandsof people,including nationalsof morethan 30 countries. Theseattacks consist of threeparts: the crashingof two airplanes into the World TradeCenter in New York, killing thousandsof civilians and destroyingboth buildings; the crashingof a third airplaneinto the Pentagon,Washington D. C., killing more than 400 Defense Departmentpersonnel; finally the crashing of a fourth airplane in Pennsylvania,killing all the passengerson board(about 45 persons). 171 also they caused a huge economic loss, and political damage to the US that not all military actions by Statescould cause. Hence, the requirement of gravity of any attack in order to constitute an armed attack as stated by the ICJ in Nicaragua case that the attack must 'occur on a 8 significant scale is clearly presentedin the attacks of September11. Such a seriousnessof the attacks against the US causedthe Security Council to severely condemn the attacks in resolutions 1368 and 1373, and described them as threats to international peace and security. Also in these resolutions the Security 9 Council reaffirmed the inherent right of individual and collective self-defence. Some writers considered this affirmation of the right of self-defence as an implicit 10 suppositionthat the attacksof SeptemberII constitute an armed attack. Nonetheless,many other commentatorsdisagree with such an implication of the Resolutionsof the Security Council for the following reasons:firstly, the reaffirmationof the right of self-defencewas provided for in the preambleof both Resolutionsbut not in the operativeparts; secondly,the SecurityCouncil could have statedin an obviousmanner that the attackson the US constitutean armedattack, but apparentlyavoided to do so; finally, in both Resolutions,the SecurityCouncil neither specifiedany State,not even the US, as a holder of the right of self-defence,nor namedany Statethat the responsein self-defencewill be takenagainst. " 'Military and Paramilitary (Nicaragua v. US), 1986 ICJ Report 14, at 104. 9 See,UNSC Res. 1368 (2001), 4370'4rntg, 12 Sep. 2001, UN Doc. S/RES/1368 (2001). See also, UNSC Res. 1373 (2001), 4385,h rntg, 28 Sep. 2001, LIN Doc. S/RES/1373 (2001). 10 G. Gaia, In What SenseWas There An "Affned Attack", at www. ejil. org/fonnn-WTO. 11 C. Stahn, 'Security Council Resolutions 1368 (2001) and 1373 (2001): What They Say and What They Do Not Say, at www, ejil. org/forum-WTC. 172 A comparisonbetween these Resolutionsand Resolution 661 (1990), in which the Councilaffirmed 'the inherentright of individualor collectiveself-defence, in responseto the armedattack by Iraq againstKuwait in accordancewith Article 51 of the Charter',' 2 canbe usedas an examplewith respectto the last two points. On the other hand, the stance taken by the North Atlantic Organization (NATO) declaredthat 'The attackagainst the US on SeptemberII was directedfrom abroadand shall thereforebe regardedas an action coveredby Article 5 of the WashingtonTreaty'. 13 Article 5 of WashingtonTreaty provides: 'The Partiesagree that an armedattack against one or moreof them in Europe or North Americashall be consideredan attackagainst them all andconsequently they agreethat, if suchan armedattack occurs, each one of them,in exerciseof the right of individual or collective self-defencerecognized by Article 51 of the Charterof the United Nations, will assist the Party or Parties so attackedby taking forthwith, individually and in concertwith the other Parties,such actions as it deemsnecessary, including the use of armedforce, to restoreand maintain the security of the North Atlantic area'.14 Another organizationthat took a similar attitude to the NATO was the organization of American States (OAS). On 22 September2001, the foreign ministersof twenty-twoStates of the WesternHemisphere party to the Inter-American Treaty of ReciprocalAssistance (RIO Treaty) unanimouslyadopted a resolutionin which they assertedthat: 'These terrorist attacks against the United States of America are alacks, States, in againstall American and ... accordancewill the relevantprovisions of the [Rio Treaty] and the principle of continentalsolidarity, all State Partiesto the Rio 12UNSC Res. 661 (6 August 1990). 13Secretary General Lord Robertson, Statementat NATO Headquarter (2 October 200 1 Moreover, reference can be made in this regard to the positions taken by many countries of the world. Some Stateshave participated in the US military action against Afghanistan (e.g., Great Britain and Australia), while others provided airspace flying permission, or provided landing consent (e.g., Pakistan, Uzbekistan, Azerbaijan, TaJikistan, and Turkey, etc.), or provided logistical support (e.g., Japan, Germany), or at least provided rhetoric support to such an action undertook by the US (the vast majority of the world). All of these positions support the finding that the attacks of September 11 were of such gave and serious nature that were unprecedentedin any other terrorist attack. Another elementthat shouldbe consideredhere in order to see whether the attacks of SeptemberII againstthe US constitutean armed attack is about the location of theseattacks. Although most writers dispute the lawfulnessof armed responsesto attacksagainst nationals or interestsoutside the Stateusing such armed forces,they all would have agreedthat if such attacksas the onesof SeptemberII occur in the territory of sucha State,it has the right to resortto armedaction in self- defence.This is consistentwith Article 2 (4) of the UN Charterwhich statesthat 'All Members from shall refrain .... the threat or use of violence againstthe territorial integrityorpolitical independenceof any State'. The third andfinal element,that is evenmore controversialthan the previous 15 Twenty-FourthMeeting of Consultationof Ministersof ForeignAffairs, TerroristThreat to the Americas,OAS Doc. RC.24/Res. 1/01 (21 September2001), It may be arguedthat for the US military action againstAfghanistan to be lawful, the US hasto prove that the terrorist attacksof SeptemberII are attributedto the Talibanregime which the US attacked,otherwise its actionmust be consideredas illegal. Sucha suppositionthat the use of force under Article 51 of the UN Charter canbe takenonly againstStates is basedon the followings: First of all, article 51 is an exceptionfrom the generalprohibition of the useof force againstStates as indicatedby Article 2 (4), which speaksof threat or use of force againstStates but not individualsabsent such a linkagebetween States and those individuals. Secondly,such a requirementof Stateinvolvement in the armedattack can be inferred from the ICJ decisionin the Nicaragua case. It appearedthat the ICJ had assumedsuch an involvementof State when it found there seemsto be a broad agreementthat the 'nature of the acts which can be treated as constitutingarmed attacks'covers both 'actionsby regularmilitary armedforce but also the sendingby or on behalfof a Stateof armedbands, groups'. 16 The same implication can be obtained with regard the General Assembly definition of aggression,which involves Statesin all of its types. For example,the 16 Nicaragua Case,note 8, at 195. 175 General Assembly defines aggression, in part, as including the 'Sending by or on behalf of a State of armed bands, groups, irregulars, or mercenaries, which carry out acts of armed force against another State of such a gravity as to amount td', inter alia, 17 an armed attack conductedby regular forces. Moreover, the majority of writers are of the opinion that such a State involvementis inevitableand that for the use of force in self-defenceto be justified, actsof private individualsor groupsmust be imputedto a Statein accordancewith Stateresponsibility as will be discusslater. Travalio,for example,observed that the lack of suchState involvement means that the useof force cannotbe basedon Article 51 of the UN Charter. He also added that coerciveaction againsta Statethat was not responsiblefor the prior illegal act would mount to an internationalwrong. This will be the case,he further asserted, 6evenif it true that Article 51 justifies the use of force in self-defenceagainst non- Stateactors, and attackagainst the non-Stateactors which violatesthe territory of the Statein which they are locatedmust itself be justified under internationallaw. In otherwords, unless as "armed attack" by terroristscan be imputedto the Statefrom which the terroristsoriginate, it is hard to seehow the applicationof Article 51 to terrorist attacksadvances the argumentfor the permissibility of military force in response'.' Antonio Cassesealso concurredwith the aboveview and stressedthat 'if ... we want to find out whetherthe use of force is permitted,we must first ascertain 17UNGA Res. 3314 (XXM at 14 Dec. 1974. 18G. Travalio,'Intemational Law andThe Useof Military Force', 18 WisconsinInternational Law Journal, (2000),145. 176 whether there has been an armed attack on the State using force by the State against 19 which force is used'. Having established that State involvement in terrorist attacks is essential in order to resort to armed force in a legitimate exercise of the right of self-defence,one more question has to be answered as well. That is, what types of State involvement that can trigger such a lawful self-defence? In other words,when private individualsor groups(aýQaeda), which has no translucentrelationship with a State(Afghanistan) committed serious terrorist attacks (the attacksof September11) againstanother State (the US), what sort of criterion doesinternational law requirein order to impute suchattacks of individual terrorists toa Stateagainst which a legitimateself-defence can be claimed? Most commentatorsare of the view that the answerto the crucial issuelies on the facts of whethersuch a Stateexercises "effective control" over the activities of thoseindividual terrorists or not.20 Sucha criterionof 'effectiveor overall contror canbe found in the Nicaragua casein which the ICJ, thoughfor the benefit of the US at that time, held that the US wasnot responsiblefor the activitiesof the NicaraguanContras. The Court statedthat merely financing, organizing and assisting non-Stateactors (Contras) does not 'warrantthe conclusionthat theseforces [were] subjectto the United Statesto suchan '9 A. Cassese,'Legal Responseto Terrorism',38 InternationalComparative Law Quarterly,(1995), 558,597. 20 H. Duffy, 'Responsibilityto September11: The Frameworkof InternationalLaw, at www.interights. org. 177 extent that any acts they committed are imputable to the State. Instead, the Court held the US responsible for other activities where was evidence that they were the result of direct action on the part of the US military or irregular bands or mercenaries 21 acting on behalf of the US, but not in respectto the support given to the Contras. Another similar criterion has been approvedand applied by the International Criminal Tribunal for Yugoslavia(ICTY) in the Tadic case.22 In that casethe Trial Chamberheld that thereis a needfor morethan 'a relationshipof greatdependency in but 'such facts the one side', rather a relationshipof control .. that, on the of the instant case, the acts of the VRS (Bosnian Serb Force) can be imputed to the Governmentof the FederalRepublic of Yugoslavia(Serbia and Montenegro)'. The AppealsChamber endorsed this approachand provided more details. Nonetheless, the Tribunalnoted that wherethe 'controlling State' is not the Statewhere the armed clashesoccur, 'more extensiveand compellingevidence is requiredto show that the State is genuinelyin control of the units or groups not merely by financing and equippingthem, but alsoby generallydirecting or helpingplan their actions'.23 The third andthe mostrecent comparable test canbe found in the International Law Commission(ILC) Draft Articles on Responsibilityof Statesfor Internationally WrongfulActs (Nov. 2001). 24 It shouldbe notedthat thesedraft articles,even if they arenot bindingyet, arelargely in accordwith the criterion adoptedby the ICJ and 21Nicaragua Case, note 8 at 86-93. 22 Seethe Prosecutor v. Tadic(1717-94- 1-A), AppealsChamber, Judgment, 15 July 1994,(Tadic Appeal Decision). 23lbid, Pam.138. 24Draft Articleson Responsibilityof Statesfor InternationallyWrongful Acts, Adoptedby the InternationalLaw Commission(53 Scss.,November 200 1). 178 ICTY as discussedabove, therefore they can be consideredas an evidence of the state of customarylaw. Among the many articles included in the draft about State responsibility, Article 8 is of relevant importance since it regulates the responsibility of a State for the activities of individuals similar to those relations with terrorist organizations. According to Article 8 'the conduct of a person or group of persons shall be consideredas act of a Stateunder international law if the person or group of persons is in fact acting on the instruction of, or under the direction or control of, that State in 25 carrying out the conduct'. ýp Now the questionis whetherthe Taliban regime,who was in control of most of the territory of Afghanistanat the time of the attacksof September11, exercisesan 'effectiveor overallcontrol' over the activitiesof al-Qaedaorganization which the US allegedto be behind the eventsof September11, thereforemaking Afghanistana lawful targetof military actionin self-defence?It shouldbe notedthat any answerto this questiondepends on the factual elementsof the relationshipbetween the Taliban regimeand Osama bin Laden,which werenot fully revealedby the US. Nonetheless,most of the US official statementsin the aftermathof the attacks of SeptemberII only accusedthe Talibanof harboringal-Qaeda terrorist organization and failing to cooperatewith the international community when requestedthe extraditionof bin Ladenwhom the US allegedto mastermindedthe attacksagainst it. Also, the SecurityCouncil, though failed to makean explicit statementwith regardto Talibanregime in its resolutions13 68 and 1373 (2001) in the wake of September11, 23lbid, Art. 8. 179 had in the pastcondemned the Talibanand demandedit to 'stop providing sanctuary and training for internationalterrorists and terrorist organizations'.26 Even more importantly,the Talibanregime had neverendorsed or supported,at leastpublicly, the attacksof SeptemberII againstthe US evenafter the latter attackedit. Such a Taliban's involvement with al-Qaeda terrorist activities though can be consideredas a breach of an international duty imposed on all Statesto 'refrain from in its directed ... acquiescing organized activities within territory towards the 27 commissionof such acts [terrorist acts]'. Furthermore,the Taliban's failure to extraditebin Ladenor to prosecutehim is a violation of the aut dedereautjudicare which is consideredas the centralobligation in all of the anti-terrorismconventions as discussedin Chapter3. Nevertheless,none of the abovetypes of involvementimply that the Taliban regimehas 'effective control' over the activitiesof al-Qaeda. In other words, if the clearAmerican provision of weapons,training, and financewas not consideredby the ICJ in Nicaraguacase as a sufficientbase to attributethe activitiesof the Contrasto the US, then it is afortiori to say that the mereprovision of sanctuary,which is less seriousthat the aboveprovisions, should not be so aswell. Lastly, as statedby the ICJ in the Corfu Channelcase, it is impossibleto conclude'from the mere fact of control exercisedby a Stateover its territory and watersthat that Statenecessarily knew, or ought to have known of any unlawful act 26See, Para. 1,2, and 3 of UNSCRes. 1333(2000), 4251'mtg, 19 Dec.,2000, UN Doc. S/RES/1333 (2000). Seealso, UNSC Res. 1267 (1999), 4051 " mtg, 15 Oct., 1999,UN Doc. S/RES/1267 (1999). 27 GA Res.2625, UN GAOR,25 Ih Sess., Supp. No. 18,at 339,UN Doc. A/8018(1970). 180 28 perpetratedtherein nor that it should have known the authors'. To state otherwise meansthat the US and Germany should be held responsible since the perpetrators of the attacksof SeptemberII trained and emanatedfrom their territory. (2)- Prior Illegal Act: Actions taken in self-defence must be in response to a wrongftil act by the 29 other side of the relation that justifies recourse to armed force. Thus, if one State is taking action against another becauseof the latter's illegal act (which constitutes an armed attack) the latter is not justified if it has decided to resort to armed force to counter the counterattack,because there was no prior illegal act, but there was a legal action taken in self-defenceby the former. However, not all wrongs done to a State will justify the use or threatened use of force in self-defence. As indicated by Sir Gerald Fitzmourice, former judge of the ICJ, that 'international law now forbids the use of force except as a counter-measure to an illegality', nonetheless,he further adds, international law 'by no means permits [self-defence] in every case of illegality, but on the contrary, confines it to a very limited class.. of illegality only'. 30 Most commentatorsare of the agreementthat the lawful protection of the essentialrights may includemeasures that involve the use of force in self-defencein responseto actsthat violatedthe territorial integrity or political independencewhich constitutethreats to the nationalsecurity. 28 Co.,rfu ChannelCase, 10 Report1949,34-35. 29Erickson, note 5 at 130. 30Ibid. at 132. 181 Some other writers argue that protection of human life or the ftutherance of human rights should also qualify as essentialrights that justify the use of force in self- defence. It is to be noted that although the assessmentof what constitutes an essential right is left to the State contemplating the use of force in self-defence, such a decision 31 to use force if made, will be reviewed by the international community. Preservation of legal rights or vindication of such rights is not essentialrights that justify the use of force as will be discussedlater. In the contextof terrorism,the questionof what is requiredfor terroristacts to constitute a wrongful armed attack that gives rise to the right to self-defence is subject to disagreement. Some argued that for a permissible self-defence, a State might 2 respond only to terrorist attacks if they occurred within its own territory? Therefore, according to them, the bombing of the West Berlin discotheque, of which the US accused Libya, 'could not possibly serve as any justification for the Reagan Administration's decision to bomb targets in and near the Libyan cities of Tripoli and Benghazi'.33 However,other writers contendedthat for such an act to constitutean illegal armedattack, it is not necessaryfor it to have occurredwithin the territory of the victim State. Accordingto them any violent action,whether in or out of the territory of the victim Stateand whether against one person or many,can justify recourseto the use of force in self-defence. For example, any of the following actions might 31Ibid. 32F. Boyle, 'Military Responsesto Tefforisný, 81 AmericanJournal of InternationalLaw (1987),288, 294. 33Ibid. 182 engender a State's right of self-defence: Armed attacks against its territory; hostage taking within its territory; and attackson its nationals abroad.34 Betweenthese two argumentsthere is a moderateopinion, according to which, for a military responseto terrorist actsto be lawful, thoseterrorist actsmust be on a scaleequivalent to that of an armedattack, if conducted-directly by a State forces. Isolatedterrorist attacks, therefore, would not constitutearmed attacks justifying the 35 useof force. Accordingto the supportersof this moderateview, for terrorist acts,in order to constitutean armed attack must be 'a very serious attack either on the territory of the injured Stateor on its agentsor citizenswhile at home or abroad(in anotherState or in internationalwaters or airspace)'.36 The attack of SeptemberII againstthe US is a good of sucha graveterrorist act as discussedearlier. Also, the bombingof the US embassiesin Nairobi and Dar es Salaamis anotherexample of sucha seriousterrorist attack occurring abroad, as will be discussedlater. (3)- Timely Response: Self-defencecontains a temporalelement and is limited by time. Action taken in self-defencemust be madenear to the time to the actualattack or threat?7 In other words,for self-defenceto be permissible,actions taken according to it must constitute 6'on-the_Spoe'38responses or at leasthave a closeproximity to the time of the armed attack. Otherwise,such actionswould qualify as the illegal reprisal or retaliation takenafter the armedattack had occurred? 9 34 R. Beck and A. Arend4"Don't Tread On US": InternationalLaw and Forcible Responsesto Terrorism',12 (2) WisconsinInternational Law Journal (Spring 1994),197-198. 35 Ibid at 200. 36Cassese, note I at 596. 37Erickson, note 5 at 143. 38 R. Beck and A. Arend, note 34 at 202. 39Ibid. 183 (4)- Last Resort: As has been emphasizedearlier in Section 1, resort to armed force supposed that all alternatives,peaceful meanshave been exhaustedand resort to armed force as unavoidable in a very compelling situation in accordancewith international law. This condition as well as the previous one (i. e., timely response) constitutes the necessity required for responsesin self-defenceto be justified because if either condition does not exist, then neither does the necessity. As stated by the Caroline case, which indicated the state of customary international law on the issue of self-defence, the required necessity means that resort to armed action must be 'instant, overwhelming, leaving for deliberation' 40Therefore, for the and no choice of means, and no moment . US to prove that its armed actions in response to the attacks of September II was consistent with this requirement, it must establish that its military action against or within Afghanistan were to defend further attacks of a continuing attacks being staged against it by al-Qaedaterrorist organization in Afghanistan. (5)- ProportionateResponse: Responsestaken in self-defencemust be proportionatein two ways: Firstly, the responsemust be proportionateto the prior illegal act of terrorism"tit-for-tat, '. 4 I Also, suchresponse must be strictly confinedto the removalof the dangerposed by terrorists, i.e., preventive not retributiveý2 Hence, it would undoubtly be disproportionateto invadeand occupylarge portions of anotherState territory, or to indiscriminatelyand directly make its cities the object of attackbecause it provided supportor sponsorshipto internationalterrorists ý3 40B. Carter& P. Trimble,international Law (Little, Brown, Company,2 nd 1995),1294. and . 4' R. Beckand A. Arend,note 34 at 206. 42 Erickson, note 5 at 131. 43Ibid. at 146. 184 The latter point is very significant since there is an international obligation by imposed on all States not to attack civilians in any circumstances. As stated the ICJ in its Advisory Opinion on the Legality of the Threat or the Use of Nuclear Weapons that 'States must never make civilians the object of attack and consequently never use weapons that are incapable of distinguishing between civilians and military States do have freedom of choice of means in the weapons targets, .. not unlimited 44 they use'. Further guidance appears in Article 48 of the First 1977 Protocol of the Geneva Convention Relating to the Protection of Victims of International Armed Conflict. It states that 'in order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between civilian population and combatantsand between civilian objects and military objectives and accordingly shall direct their operations only against military 45 objectives Many observersraised seriousconcerns over the US military action against Afghanistanin responseto the eventsof September11, that sucha responseviolated the requirementof proportionalityfor a legitimateself-defence. Actions by the US that raisedthese concerns are, for examples,invading and bombardingI. Tge portions of the territory of Afghanistan,overthrowing the Taliban regime, attacking power plantsthat supplypower to the Afghani people,causing a huge refugeemovement to the neighboringStates, and killing, though the US alleged to be mistakenly, of 44Advisory Opinion on the Legality of the 77ireator the Use offuclear Weapons,ICJ Report 1996, 226,257. 45Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims at International Armed Conflict, concluded 8 June 1977, (entered into force 7 December 1978). 185 thousandsof civilians by throwing bombs from airplane of 30 thousands feet of air latitude which in many times missed their targets. Nonetheless,some scholars argued that the victim State's responsescould be proportionate if calculated not only with respect to the immediate preceding unlawful terrorist attack but also to an aggregationof all past illegal acts. This approach known as "cumulative proportionaliv -A6presented by Israel to justify its attack on Lebanon which took the form of an army invasion, however has been rejected by UN Security 0 Council, which had on, many occasions 'formally condemned any attempt to justify totality of violence basedupon an accumulation of events as an illegal reprisal'. 47 Besidesthat, it is to be notedthat althoughself-defence action is usuallytaken againstthe sourceof armedattack or threat,it is not disproportionatefor a Stateto 'retaliatebeyond the immediatearea of attack,when that statehas sufficient reasonto expectcontinuation of attacke.48 Secondly,the responsemust be proportionatein terms of the natureand the force in 49 This amountof employed self-defence. correspondedwith the "principle of 50 , i. force, its minimalforce' , e., the employmentof enough,not excessive to achieve designatedgoals or objectives. Thus, any responseto an act of terrorism which &ernploysa level of violence which is greater than is necessaryto counter any continuingimmediate threat must be viewedas impermissible'.51 46 R. Beck and A. Arend, note 34 at 206. 47Ibid. 48 0. Schachter,'The Right of Statesto Use Armed Force', 82 Michigan Law Review, (April-May 1984),1638. 49Erickson, note 5 at 146. 50 P. Wilkinson,Terrorism and TheLiberal States,(Macmillan, 1977),43. 51 R. Beckand A. Arend, note34 at 206. 186 In determining the compliance by States with proportionality, there are many factors that can be considered,including: - The essentialrights threatened; force delinquent State; - The military and anticipated resistanceof the force by injured State - The scope, nature, amount, and intensity of the applied the in self-defence.This includes,for example,the scaleof weaponry,the size and composition of the force, the targets selected, and the extent of collateral civilian damageand injury. 52 (6)- ResponseMust Be InunediatelyReported to The Security Council and Must CeaseIf The CouncilActs Effectively: As indicatedby Article 51, such measurestaken in self-defencemust be reportedimmediately to the SecurityCouncil and such measuresmust cease,if the SecurityCouncil has taken measuresnecessary to maintain internationalpeace and security. Self-defence,therefore, is 'an interim mechanismthat must be terminated when, but only when, the Security Council, takes effective, positive, affirmative action. A Security Council veto of proposal measureswould result in Security Council inaction. Ineffective action or inaction on the part of the Council is not 53 sufficientto enda State'sright of self-defense'. 5.2.1.2. Collective Self-Defence It is expresslyindicated by Article 51 that 'Nothing in the presentCharter shall impair the inherentright of individual or collective self-defenceif an armed attack occurs..', thereforeevery State has the right for collectiveself-defence in responseto 52Erickson, note 5 at 146. 53Ibid. at 148-149. 187 terrorist attackssubject to the above discussedconditions. Now the question is whether Article 51 permits only the collective exercise of individual self-defence(i. e., by Statesall of which are subjectto armed attack), or empowersother Stateswhich are not subjectto any armedattack to supporta victim. Statein the exerciseof that State'sright of self-defence. In answeringthis question,thee majority of the ICJ in theNicaragua case took the latter view that State's interests need not be directly affected in order to exercise collectiveself-defence, provided the injuredState requested such assistanccý' Hence,in additionto the early discussedconditions for a legitimateindividual self-defence,there are two more conditionsthat must be addedhere, which relatesto the right of a third party Stateto intervenein a disputein supportof anotherState that is the victim of an armedattack. Theseconditions are: firstly, the assistingState must be supportinga victim State engagingin a legitimate self-defence;secondly, the assistingState must have been requestedfor assistanceby the victim State. These additional requirementscan be found in the ICJ rejection of the US' claim of collectiveself-defence in the Nicaragua casebecause Nicaragua's assistance to the Salvadorianrebels, the Court held, did not constitutean arrnedattack and therewas a lack of requestfrom El Salvadorto the US for assistance5' 5.2.2. Reprisal Undercustomary international law reprisalis oneof the lawful meansthe "4 NicaraguaCase, note 8 at 104-105. 55lbid at 248-249. 188 injured Statehas in order to compelthe delinquentState to consentto a satisfactory settlementof a differencecreated by the latter's own internationalwrong. The often- cited case,which illustratesthe lawful statusof reprisalunder customarylaw, is the 1928 Portuguese-Germanarbitration decision of the 1914 Naulila incident in PortugueseAngola. 56 In October 1914, at a time when Portugal was a neutral countryin the WWI, a small Germanparty crossedthe frontier of PortugueseSouth- West Africa. Owing to a misunderstanding,the Portuguesefired a few shots,which killed 3 Germans. Germany immediately sent a punitive force, which invaded Portugueseterritory, defeatedthe Portugueseand then withdrew. A native uprising followed causingconsiderable loss to Portugal. The Tribunal, which was established underthe VersaillesTreaty to hearPortugars claim, definedreprisals as follows: 'Reprisalsare actsof self-helpby the injured State,acts in retaliationfor actscontrary to internationallaw on the part of the offending State,which have remainedunredressed after a demandfor amends. In consequenceof such measures,the observanceof this or that rule of international law is temporarily suspended, in the relations between the two States. They are limited by considerations of humanity and the rules of good faith, applicable in the relations between States. They are illegal unless they are based upon a previous act contrary to international law. They seek to impose on the offending State reparation for the offence, the return to legality and the avoidance of new offences'.57 Therefore,for a lawful reprisalthe Tribunallaid down 3 conditions: I)- The target Statemust be guilty of a prior internationaldelinquency against the claimantState; 56 B. Carter & P. Trimble, note 40. 57Ibid. 189 2)- An attemptby the claimant Stateto obtain redressor reparationby other means impossible in must be known to have been made, and failed, or to be inappropriate or the circumstances;and 3)- The claimant State's use of force must be limited to the necessity of the case and proportionateto the wrong done by the target State. Thesebasic conditionsare conunonto both reprisal and self-defence,as has 58 been discussedearlier becausethey both are forms of self-help. However, the great difference between reprisals and self-defence lies primarily in the aim or purpose of each of them. According to Bowett, self-defence is aiming at the protection of the security of the State and its essential rights -in particular the right of territorial integrity and political independence-upon which that security depends. Whereas reprisals are punitive in character; 'they seek to impose reparation for harm done, or to compel the delinquent State to abide by the law in future. But coming after the event and when the harm has already been inflicted, reprisals cannot be characterized 59 as a meansof protection'. Neverthelessthis seeminglysimple distinction is not always clear. On one handis the fact that determiningthe motive or purposeof a Statewhen carrying out an armedresponse is very difficult. On the otherhand, such a reprisal,if carriedout in responseto recurringacts of violence,'may be regardedas being at the sametime both a form of punishmentand the best form of protectionfor the future, sinceit may actas a deterrentagainst future acts of violenceby the otherparty'. 60 58 W. O'Brein, 'Reprisals, Deterrence and Self-defense in Counterterror Operation', 30 Virginia Journal ofInternational Law, (Winter 1996), 422. 59 D. Bowett, 'Reprisals Involving Recourse to Armed Force', 66 American Journal of International Law, (1972), 2. 60Ibid. 190 However such acceptability of reprisal as a lawful form for the use of force subject to the above-discussedconditions has been replaced by a total ban by the UN. As noted by Bowett that: 'Few propositions about international law have enjoyed more support than the proposition that, under the Charter of the United Nations, the 61 use of force by way of reprisals is illegal'. Such a ban is clearly demonstratedby Article 2 (3) and 2 (4), which forbid any use of force except as provided for in Article 51 (or an action authorized by the Security Council). Moreover, the UN Declaration on Principles of International Law Concerning Friendly Relation and Cooperation Among States,stated, in part, that 'States have a duty to refrain from acts of reprisal involving the use of force'. Also, the practice of the UN Security Council indicates the repeated disapprovalby the SecurityCouncil of such acts. For examples,I- The Security Council condemnationof the 1964 British air attacks on Yemeni positions in retaliation of a series of Yemeni attacks on the territory of the South Arabian Federation.62 2- The SecurityCouncil condemnationof the Portugueseattacks on the village of Saminein Senegalin November and Decemberof 1969, the Security Council rejectedthe Portugueseplea of self-defenceand describedthe attacksas ý3 illegal reprisals 3- The frequent Security Council condemnationsof the Israeli reprisalsagainst Lebanon, Syria and Jordan in retaliationto the Palestinianattacks againstIsrael. " 61Ibid. at 1. 62 R. Falk, 'The Beirut Raid and The International Law of Retaliation'. 63 American Journal of International Law, (1969), 429. 63Ibid. 64 O'Brein,note 58 at 422-440. Examplesof thesecondemnations are Res. 313,316,332,347, etc. 191 Further policy reasonsfor why reprisals should be illegal acts are: - They are available only to strong over the weak; judge it - They allow the victim State to both the wrong done against and to extract the reparation for that wrong (ie., judge and adversaryat the sametime); - If allowed,they will severthe relationsbetween States and might causecounter reprisals by the other party, thus escalatingthe use of force between Statesý5 5.2.3. Protection of One's Own Nationals The questionnow is whetherunder internationallaw a Statehas the right to usearmed force to rescueits nationalsin anotherState from imminentterrorist attack? The answerto this questionis very contentious.While somewriters regardit as outsidethe scopeof the lawful self-defence,others consider 'protection of one's own nationalsas part of the customaryright of self-defenceunder Article 51 and sees 6self in self-defenceas including the nationalsof a State'.66 As observedby the formerUS Ambassadorto the UN William Scrantonin his supportfor the Israeli raid at Entebbein 1976. He statedthat: 'There is a well-establishedright to use limited force for the protection of one'sown nationalsfrom an imminentthreat of injury or deathin a situation wherethe Statein which territory they are locatedeither is unwilling or unable to protectthem. The right, flowing from the right of self-defence,is limited to suchuse of force as is necessaryand appropriateto protectthreatened nationals from injUry'.67 65Erickson, note 5 at 177. 66Ibid. at 182. 6' J. Murphy, State Support of International Terrorism: Legal, Political, and Economic Dimensions, (Mansell, 1989), 89. 192 There were many cases in which many States, especially in the form of hostage rescue, had advanced protection of one's own nationals in order to justify the The West Germans in use of force. For instance: - The Israelis in 1976 in Entebbe; - in Cyprus; The US in 1972 in Mogadishu; - The Egyptians 1978 at Larnaca, - the in 1983 by Iranian hostage rescue attempt in 1980; and - The Grenada operation also the US. 68 It should be noted that some of these rescue operations mentioned above were initiated with the permission of the territorial States, e.g., the West Germany in 1972 in Mogadishu. Therefore, they cannot be placed in the same context as other cases without such permission when discussing their legality. The only two known rescue cases that were conducted without the permission of the territorial States were the Israelis in 1976 in Entebbe, and the US rescue attempt in 1980 in Tehran. These two cases,even if the international community as a whole did not condemn them, though there were some condemnationsby some regional organizations like the Organization of African Unity, which condemned the Israeli action against Uganda, should be viewed just as an occasional departure from the general rule of international law that prohibits the use of force except in self-defence or upon an authorization from the Security Council. However, even those who think that protection of one's own nationals is a lawful action in accordancewith the rules of international law fear that some States, as a pretext to intervene in the internal affairs of other States, can abuse such an excuse,certain conditions must exist before resorting to force in these cases: 68Erickson, note 5 at 183. 193 First of all, it must be conducted for the protection of the rescuing State's own nationals. For examples: the Israeli rescue mission in Entebbe was for the purpose of releasing the Israeli hostages; and the aborted American attempt in Iran was for the purpose of rescuing the American citizens held hostages at the American embassy. Otherwise such action will be labeled as humanitarian intervention, which the legality of is disputed. Secondly, there must be an inability or unwillingness on the part of the territorial State to protect them! 9 The Entebbe case was a clear example of such unwillingness by Uganda, the territorial State, to cooperate with Israel to secure the release of the hostages, as indicated earlier the Ugandan Government was itself involved in the hijacking by supporting the hijackers. Moreover, there must be an imminent threat of injury or death facing them. The Entebbe case is also illustrative in this regard, since there was no doubt as to the imminent peril of death of the Israeli captives because the hijackers made specific demandsand stated that if these demands were not met by a specified date, they will start executingthe Israeli hostages. However,in the abortedUS rescueattempt in Tehran the existenceof this conditionwas surroundedby doubtsbecause the American hostages,some argued, were held for more than six months. Thus, if there were any imminent danger,it wouldhave happened. 69 Note that Statesdo not have an absoluteobligation to prevent all kinds of crime that might be committedagainst foreigners on their territories. Commoncrimes, like murders,robberies, assaults, indigenous ... etc.,are to all societiesand affect citizensas well as foreigners.See ibid. 194 Nonetheless,the majority of scholars are of the opinion that the US had the right to believe that its citizens held captives in the embassy were under imminent danger of losing their lives or suffering serious injury. The US, they argued, cannot be blamed of taking such action becausethe emotional atmospherein Tehran and the public threats that the hostagesmight be executed were reasonable grounds for such apprehension.70 Furthermore,the unwillingnessor the inability of the Iranian authoritiesto intervene in the situation and release the hostages was another factor that may also rationalizethe US fear that the hostageswere in irnrninentdanger and about to face harm,if it did not interfereand rescue them. In addition, the action must be the last resort. The satisfactionof this condition had also been raised with respectto the abortedUS attempt in 1980 to rescuethe hostagesin Tehran. Had peacefulmeans been exhausted or were they still available? It shouldbe recalledthat in responseto the crisis, the SecurityCouncil had adopteda resolutioncondemning the seizureas illegal and urging immediaterelease of the hostages.The ICJ had issuedan Order during the first few weeksof the crisis calling for the releaseof the captives. Moreover,there had been many efforts by variousintermediaries and a UN Fact-FindingCommission had been established. " Schachter,note 48 at 1631. 195 Iran, notwithstanding, had ignored the Security Council resolution; it refused to comply with the Order of the ICJ; all intermediary efforts had not been successful; and Iran failed to cooperatewith the UN Fact-Finding Commission. Nonetheless,the casewas still beforethe ICJ on the meritswhen the US had attemptedthe rescuemission. Accordingly, one may plausibly say that this implies that peaceful meanshad not been fully exhaustedat the time when the US undertook the rescueoperation. In spite of this fact, the Court did not find the US action unlawful on these grounds. Instead,the Court 'made a distinctionbetween unlawful action and action incompatiblewith respectfor the judicial process. The Court was of the opinion that so long asthe casewas pending, US actionshould be limited.971 More significantlywas the fact that the casewas pendingdoes not give any 72 assuranceon the safety of the hostages. Under such circumstances, as discussed earlier with respect to the third condition, it is hard, Schachterpointed out, to say that the US military action was unnecessary simply because the case was still pending before the Court. 'As a matter of principle', he further noted, 'exhaustion of remedies cannot be required when the remedies are likely to be futile. The State whose nationals are in peril must be given latitude to determine whether a rescue action is necessary'.73 71 Erickson,note 5 at 184. 72 Schachter,note 48 at 1631. 73 Ibid. 196 Finally, the action must be proportionate. This condition can be explained in the following: (a) The action must be strictly confined to the object of protecting nationals against injury, i. e., the rescuing State is not allowed to establish law and order within the target State, change the foreign government, or punish those responsibleof ill treatment for one's nationals. For example, the US use of force in Grenada in 1983 was justified in part as a rescue mission. The US claimed that over one thousand threatened Americans were in Grenada. Though many countries did not find that a convincing ground for the intervention considering it a pretext for unlawful action and had disputed such claim. The UN General Assembly had also condemned the action and considered it as a flagrant violation of the UN Charter. Such a resolution had the support of an overwhelming majority, including virtually all of the allies and usual supporters of the us. 74 The actions committedby the US after the interventionalso supportedthe doubtsexpressed about the operationas a rescuemission. The fact that the US forces actedto expel Cubansand others and remainedon the Island to restore'law and order' and a democraticpolitical institution,placed this action in a different light, as arguedby the others. Justificationfor thesemeasures would not be found in the legal principleof the legitimateuse of force for the protectionof one'sown nationalS.75 74Ibid. at 1632. 75Ibid. 197 (b) The action must be a protective and not a punitive one. For example, the Entebbe case, though held by many writers as the model case of rescuemission, involved a violation of this requirement. After the Israeli airplanes liberated the hostages,they destroyed ten Ugandan aircraft and caused considerable 76 damageto various parts of the airfield. The argument that such destruction was to prevent the pursuit of the rescue planes is not convincing becausesuch a goal could have been achieved by other meanswith minimum damage. For instance, they could have destroyed the airfield grounds, therefore make it impossible for aircraft to take off or land unlessrepaired which usually takes a considerableamount of time to do. Moreover,Yaakobi, the then Israeli TransportationMinister, statedthat the primary purposeof this destructionwas to 'serve as a penalty upon the Ugandan 77 governmentfor involving itself with the hijackers to the degreeit had. Thus suggestingthe punitive motive over the protective one in contraventionwith this condition. In addition,this conditionimplies that if the damageor injury hasalready been inflicted upon the State'snationals and no further attack is expectedto follow, then this approachis no longeravailable as an option.78 5.2.4. Invitation Although intervention in the internal affairs of any State is generally prohibited, it may be permitted when consent is obtained from the Host State to 76Murphy, note 67 at 84.. 77 F. Boyle, 'The Entebbe Hostages Crisis', in H. Han (ed.), Terrorism, Political Violence and World Order. (University Pressof America, 1984), 569. 7' Erickson, note 5 at 183-187. 198 9 another to interfere with the military! Such consent or invitation is a right of every State or sovereignand, as a result, will relieve the intervening State from international responsibility as long as its activity was in compliance with such consent. In the contextof terrorism,such an invitation might play a very useful role in the fight againstterrorism becausemany Statesdo not have the technologicaland military meansto defeatmodem terrorists,who are, in many cases,welýequipped, especiallyif sponsoredor supportedby other States.80 A good exampleof such an invitationwas the 1977Somalian appeal to the then FederalRepublic of Germanyto rescuethe hostagesof the hijackedLufthansa flight in Mogadishu.81 Nevertheless,such right of invitation hasbeen subjected to someconditions in order to avoid abusesby certain States,which are, for various reasons,inclined to intervenein otherStates in the nameof invitation. Theseconditions are: 1) Sucha requestor invitationmust be madeby a lawful government; 2) The official who made such a request must have the constitutional authorityto do so; 3) Such a requestmust be freely madewithout coercionor intimidation of whateverkind. 82 However, despitethe listing of these conditions, in some casesit is very difficult, if not impossible,to discern the satisfactionof these conditions. For example,in the Grenadaoperation of 1983,the US claimedinvitation as oneof the Ibid. at 174. Ibid. 81Ibid. "' Ibid. 199 groundsjustifying its action. The facts of that case made the dispute of whether these conditions necessary for invitation were available or not are worth mentioning. Firstly, did Governor-General Paul Scoons possess the constitutional authority to make the request? Because Scoons,was not the prime minister but the governor- general, an appointee of the queen of England. Secondly, was the request made before or after the decision to intervene? Even if it was not, is it sufficient that the request was made prior to the actual intervention? Thirdly, what was the nature of Scoons's request? Scoons was quoted of saying, 'What I did ask for was not an invasion but help from the outside'.83 5.3.US AIRATTACK AGAINST SUDAN AND AFGHANISTAN: UNDER WHAT CONTEXT? On August 20 1998, the US launched simultaneous missile attacks against terrorist bases in Afghanistan and an alleged chemical weapons factory in Sudan. This was in responseto two weeks earlier, a bombing of two US embassiesin Nairobi and Dar Es Salaam on August 7,1998, which resulted in the death of about 257 84 people,including 12 Americans and the injury of 5,500. Both targetsin Afghanistanand Sudanwere carefully selected,the US alleged, becauseof their allegedlinks to Osamabin Laden of whom the US claims to have convincingevidence that he or his group have 'played the key role in the embassy bombingsin Kenyaand Tanzania'. 85 93Ibid. at 175. 84 SeeBronwen Maddox, US StrikesBack at Terrorists,The Times,21 August 1998,at 1. 85US BombsTerrorist Facilities in Sudan,Afghanistan, Corpus Christi Caller Times, Tuesday,August 20,1998,(visited Sept. 24,00), Pakistani border,86 comprising of training camps and an arsenal of weapons and ammunition. These sites were part of what US intelligence reports called "the most 87 extensiveSunni Muslim terrorist universily, in the world under the control of Bin Laden and his group. The US attacks on this target resulted in an overall destruction of its fabrication and the death of 22 people and injury of 30.88 The US believed that at the time of the attack there were some terrorist leaders gathering at the targeted site and they were planning to carry out further attacks against US's citizens and interest.89 In Sudanthe targetwas the Al-Shifa plant locatedin Khartoum,the capitalof Sudan. US intelligence claimed that the plant was used to produce precursor chemicalsfor the deadlynerve gas VX and that Bin Ladenhas had an associationin the pastwith the Sudanesegovernment, which owns the plant and had somefinancial interestin contributingto this facility.90 Thus the attackon the plant was an effort by the US to reduceBin Laden'sterrorist capabilityin acquiringchemical weapons and other dangerousweapons. The US attackon AI-Shifa plant resultedin the injury of at least10 workers. 91 However,such US claimsin justifying its attacksagainst those particular 86A Pakistaniofficial saidthat one of the missileslanded on its soil, killing at least5 people. See,US StrikesSignal Tougher Stance Against Terrorism,Corpus Christi Caller Times, Tuesday,August 20, 1998,(visited Sept. 24,00), 5.3.1.Factual Uncertainty The targetedsite in Afghanistan,which accordingto the US provided refuge for terrorists,housed the infrastructurefor funding internationaltravel, and was used to train terroristsin the use of weaponryand in the tacticsof internationalterrorisrr? 2 underthe commandof Osamabin Ladenwas not disputedby any other party except the fact that Mullah MohammedOmar, the supremeleader of the Taliban movement, which controlsmost of the county,cited when he said that sucha site as that 'run by Mr. Bin Ladenhad been closed down long beforethe attacke.93 The attackson AI-Shifa plant, however,had beenvery controversialand the quality of evidencepresented by the US on its decisionto attackthis plant, becauseof its involvementeither in producingchemical weapons as allegedby the US or because of its link to Osamebin Laden,had been rebuffed and refuted by manyobservers even by someof the US officials themselves. At the beginningthe US claimed that the plant was a heavily guardedchemical weapons facility and was not involved in any medicineproduction proceSSý4 However, the US a short while after the attacks, backedaway from this assertionand admitted that at the time of the attacksthe 92 S. Scheideman,'Standards of Proof in Forcible Responsesto Terrorism', 74 (1) SyracuseLaw Review,(2000), 256. 93Julian Borger,US Missile Raid: SudanPrepares to Make Complaintto the U`N,The Guardian,21 August1998, at 3. 94 J. Lobel, 'The Use of Force to Respondto Terrorist Attacks: The Bombing of Sudan and Afghanistan',24 (2) YaleInternational Law, (Summer1999), 244. 202 officials were unawarethat the plant did in fact producepharmaceuticals, and that it 95 wasunguarded. Indeed,the facts later becameclear and showedthat this plant was oneof the majorpharmaceutical factories in Sudan,which produced50% of Sudanese 96 medicine. Moreover,the US alleged,as in the words of the US Secretaryof Defence 97 William Cohen that bin Laden had some financial interests in the AI-Shifa plant. Nonetheless,such a claim proved to be mistaken. It turned out that early in 1998, the factory was sold to a Sudanesebusinessman, Salah Idris, who is not known for his Islamic sympathies and has no known links to bin Ladený8 These unproved links between Idris and bin Laden forced the US Treasury Department on May 4,1999, to releaseIdris's assetsthat were seized therein. Such a move has been generally viewed as an admission that the US is unwilling or unable to produce any kind of evidence that would implicate Idris in bin Laden's groups or activities." In addition, in order to prove that the Al-Shifa factory was a chemical weaponsproduction facility, the US claimed that a soil samplecollected from the groundoutside the factory was found to containthe chemicalEMPTA. Accordingto the US officials the only known use for EMPTA is as a precursoringredient in the nervegas VX. 100 95Ibid. 96Scheideman, note 92 at 275. 97Corpus Christi Caller Times, note 90. go Ibrahim,Bright, Bhatia, and Vulliamy, The Missiles, The Bungling Pentagonand The Nerve Gas FactoryThat Never Was, The Observer,30 August1998, at 4. 99 L. Campbell,'Defending Against Terrorism: A Legal Analysis of the Decision to Strike Sudanand Afghanistan',74 (3) TulaneLaw Review,(Feb. 2000), 1090. 100Lobel, note 94 at 245. 203 However, such a finding has been called into question for the following reasons: Firstly, experts argued that the taking of just one soil sample outside the plant 101 is contrary to what international standards normally require. They also observed that the US techniques in this regard are faulty, because the sample was too small and at least three laboratories should have independently tested that sample not only one, 102 as was done by the US. Secondly,experts from the Organizationfor the Prohibition of Chemical Weapons(OPCW), which overseesthe treaty barring chemical weapons,said that EMPTA has a high chemicalreactive nature, thus it is unlikely that the EMPTA can be foundunaltered in a groundsample unless, as the expertsexplained, 'if somebody hademptied a flask andthen taken a sample'.103 Thirdly, the owner of the AI-Shifa plant and his American lawyers hired a teamof scientistswho conductedthree independenttests on samplescollected from 13 different areasaround the factory. Not one of thesetests revealed any trace of EMPTA.104 Furthermore,while the US claimed that EMPTA is an immediatechemical weaponsprecursor with no other recognizeduse, severalexperts who are familiar with EMPTA,either from the OPCWor independentexperts, pointed out that 101Scheidcman, note 92at 258. 102Id., it shouldbe notedalso that the US officials refusedto make the sampleavailable to a widcr bodyof experts.The Observernote 98. "' Lobcl,note 94 at 545. 104Sheila MacVicar, Blinded By (Bad) Science?ABCNEWS. Com, Feb. 10,1999, (visited Sept.24, 00), 105 of fungicides and microbial agents. Experts also added that the chemical structure of EMPTA resembles Fonofos, an insecticide on sale in Africa, and that the laboratory 106 test could confuse the tWo. In addition, the American engineerwho designedthe factory,107 a British engineerwho worked there for along time,108 and severalother Jordanianengineers who also used to work there,10' all concurredthat the plant had only been for the productionof medicineand did not have the facilities and equipmentto makenerve gas. Finally, the Sudanesegovernment had called for a UN SecurityCouncil fact- finding investigationof the US claims. However,the US has successfullyblocked suchefforts, ' 10and that impliesthe uncertaintyof the US evidence,if evaluatedby the UN. Moreover,the Sudanesegovedment named Iraq where years of inspections wereused to verify the Iraqi's involvementof suchchemical weapons production. "' ihctual It is obviousfrom the previous dispute,especially with respectto the sort of evidencepresented by the US in its decisionto bombthe Al-Shifa factory,that there is a real need for an internationaljudicial, or other centralizedfact-finding mechanismto evaluate such evidence in order prevent some nations from the 105 The Observer,note 98. 106Lobel, note 94 at 545. '0' The Observer,note 98. VX Gas Clue 'In Factory Soil', The Times, 26 August 1998, at 11. The Observer,note 98. 110 Lobel, note 94 at 537. 111 Scheideman,note 92 at 257. 205 unilateral use of force against other nations based on mere suspicions or on undisclosedevidence. As indicated earlier in this chapter, only some types of relationship between a State and terrorists allow the use of force against such a State. Consequently, an assessmentof the legality of the use of force in responseto terrorism must begin with an examination of the relationship between the State and terrorists. This assessment cannot be properly undertakenunless the evidence of such a relationship is revealed in order to subject them for evaluation by the international community. What the US did in this case is based on the "trust US,,112 approach, i. e., error is not possible. Such an approach will give the right to any State to attack another Statebased on undisclosed facts not subject to international scrutiny. This will be the case, unless someone argues that the US, but not other countries, alone can use this approach! 13 Nonetheless,one might arguethat it is unrealisticto subjectsuch evidence, upon which the decisionto attackis based,for evaluationby a public forum in sucha multilaterallevel becausethis might compromisethe intelligencesources from which theseevidences were obtained and render those sources less valuable in the future. In reply to this sensibleconcern, Lobel, has advancedthree arguments which, accordingto him, must compelthe conclusionthat a Statewhich attacksanother State in responseto terroristattacks is requiredto submitsuch a decisionto attackand the 112 Lobel, note 94 at 553. 113Ibid. 206 evidenceupon which this decision is basedto international review: Firstly, the decision to use force is permitted by international law only in compelling cases of self-defence when there is an overwhelming necessity. Therefore, the unwillingness to subject its factual basis to international review suggeststhat the necessity of such action is uncertain. Hence, the requirement of the international review serves to ensure that such a decision is not made unconscientiously. For instance,the ReaganAdministration revealed some evidence to supportits 1986decision to attackLibya and that includedthe disclosureof sensitiveintelligence information,but 'such disclosurewas one of the costsof conductingthose air strikes. Internationallaw, Lobel fixther added,'does impose some costs on a nation that uses forcesagainst another - oneof theselegitimate costs involves the necessityof proving its claimto the internationalcommunity'. 114 Secondly,while it is true that in somecases the disclosureof such evidence may compromisethe intelligencesources, it may not in the others. For example,in this casethe US could havesubjected the soil sampleit had to independentreview; it could have permittedaccess to the lab test to other independentexperts and to lab technicianswho could have evaluatedthe sample;and it could have permitted a multilateralinvestigation into Mr. Idris's ties and what was being producedat the factory. The US could have done all of this without disclosureof any sensitive intelligenceinformation. 115 114 Ibid. at 554. 115Ibid. 207 Thirdly and fmally, as mentioned earlier that if every State is allowed to use force against another State based on secret information that it is not legally required to is share, then the fundamental premise of the UN Charter prohibiting the use of force rendered meaningless. Hence, some sort of international review, e.g., fact-finding commission, must be required if there is a real need to preserve some meaningful 16 legal restraintson the use of force in the figlit against terrorism? 5.3.2. Legal Justifications At the momentthe most importantquestion to be answeredhere is whether suchUS attacksagainst Afghanistan and Sudancan be legallyjustified basedon the facts discussedabove. In order to justify its attacks,the US stressed,on many occasions,the right to self-defenceas the legal basisof this act. The US Secretaryof DefenceWilliam Cohenpointed this out, when he said, 'This [action] has been an 117 exerciseof self-defenseagainst an imminent and continuing terrorist threats'. Nonetheless,to find out whethersuch an argumentis legally sound,will dependon satisfyingthe threebasic conditionsof legitimateself-defence, i. e., an armedattack, necessity,and proportionality discussed early in SectionTwo of this chapter. A. An ArmedAttack The first questionto be askedhere is whetherthe August 7,1998 embassy bombings in Nairobi and Dar es Salaam can be characterized as an armed attack againstthe US? 116Ibid. 117Corpus Christi Caller Times, note 90. 208 Some commentators have argued that such attack could not constitute an 118 armed attack against the US because it was not against US territory. This argument, however, as has been discussedearlier in Section 2 has not been accepted by some scholarswho consider it not requisite for an act to constitute an armed attack, 19 to have occurred within the territory of the victim State! According to them, such attack can be considered as an armed attack even if happened outside the victim 120 State's territory, if such attack has causeda serious injury to this State. Clearly, the attack against the US embassieswas a serious attack that causeda substantial injury to the US and to many other countries like the territorial countries, where the embassies situated. Moreover, the attack was carried out against the US embassies,which are 121 treatedunder international law as inviolable property of their home States. A secondpart of this questionthat must follow, is whether,such bombings, which the US allegedthat had beencommitted by groupsof terroristsmasterminded by Osamabin Laden,can be attributedor imputedto the targetedStates, i. e., Sudan and Afghanistan. Without such involvement by Sudan and Afghanistan in bin Laden'sactivities, there would not have been an armed attack committedby these countriesagainst the US, which would have permittedthe use of force by the US againstthem and allowed the US to attackthem with impunity. As discussedearlier that not every State involvement and support of terrorist activities constitutesan armed attack. Only terrorist acts committed by terrorist "a DavidA Sager,Letter: It Wasn't Self Defence,The Guardian,24 August 1998,at 17. 119Beck and Arend, note 34 at 196-201. 120Ibid. 121 Campbell,note 99 at 1093. 209 individuals or groups who were under 'effective or overall control' of the would-be target State. Such a criterion was applied by the ICJ in Nicaragua case and by the ICTY in Tadic case and provided for in the ILC Draft articles on StatesResponsibility as discussed earlier in more details. Therefore, only when State exercise effective control over the activities of the terrorist individuals or groups, their actions can amount to an armed attack committed by that State. Other forms of supports like logistical, training, or provision of weapons do not constitute an armed attack as stated by the ICJ in Nicaragua Case. Moreover, provision of a safe haven is also a form of support, which like other forms of assistanceto terrorists does not constitute an armed attack committed by the safe haven provider State, which allows the victim State to use force in response, though the assisting State in these cases is still responsible under international law. With respectto Afghanistanand Sudan,the only form of Statesponsorship or supportto bin Ladenof which the US accusedthese States, was the harbouringof bin Ladenand his terroristgroups, as in the wordsof PresidentClinton whenhe approved the strikes. He said 'Countriesthat persistentlyhost terroristshave no right to be a 122 safe haven'. Thus, despite the fact that the bombings of the US embassies constitute an anned attack, such an attack cannot be attributed to Sudan and Afghanistanin order to authorizethe US attack againstthem as a legitimateact of self-defence.Because these States' involvement in bin Laden's activities is only in the form of provision of a safe haven,and such involvementand supportdoes not amountto an armedattack committed by thesecountries. 122 CorpusChristi Caller Time, note86. 210 Additionally, it should be noted that the mere existence of bin Laden or any of his groups either in Afghanistan or Sudan does not imply that these countries have the knowledge of their terrorist activities. As concededby the Corfu Channel Court that it is impossible to conclude 'from the mere fact of the control exercised by a State over its territory and waters that that State necessarily knew, or ought to have known 123 of any unlawful act perpetrated therein nor yet it should have known it authore. Such knowledge was even more difficult for the US to prove. Nowhere had the US claimed that the alleged chemical factory was to assist terrorists and that the Sudanese governmentwas aware of such activity. 124 B. Necessity Two aspectsof necessitythat may independentlybe regardedhere: First is the questionof whether the US use of force against Sudan and Afghanistan was a responseto an ongoingattack? Many answeredthis questionin the negative. They arguedthat becausethe bombingswere affectedtwo weeksbefore the US initiated any action,the dangerthat the action was intendedto counterhad alreadysubsided and no longerposed an immediatethreat to the US, thereforethe US attackwas not necessaryto repulseor to endan attack.125 Nonetheless,an argumentwas madeto the effect that a necessaryself-defence responsemay, in some cases,follow the victim State'sexhaustion of attemptsat achieving a peaceful solution, thus suggesting that there must be some time between the terrorist attack and the victim State's use of force in response.126 Records, 123Corfu ChannelCase, note 28 at 18. 124Scheideman, note 92 at 257. 125Ibid. at 272-273. "6 Cassese,note I at 204. 211 however, show that the US exhaustedno such peaceful attempts at any time between the time of the embassybombings and the US use of force. Knowing the fact that in 1996 Sudan had deported bin Laden in an agreement US by Sudanese UN El Falih Erwa 127 with the as asserted the ambassadorto the , Sudan also, sincerely or not, condemned the bombings of Nairobi and Dar Es Salaam,128 and more importantly Sudan claimed that two suspectsof the bombings were in detention therein between the time of the bombings and the US attack. 129 However the US Sudan refused to cooperateand thus releasedthem after the attack. All these facts suggest that a possible peaceful solution might have been possible, especially with Sudan,but was never attemptedby the US. The secondand other aspectof necessity,which was strongly arguedby the US to justify its forcible action, was that such action was undertakento preempt probablefuture attack. 130 In otherwords, the US relied on anticipatoryself-defence to justify its action. Accordingto the US, there"was compellinginformation" that bin Laden's groupswere planning additional terrorist attacksagainst the US and these actions(i. e., US strikes)were to countersuch imminent attacks. 131 Although suchan argumentmay be acceptedwith respectto the action taken againstsites in Afghanistanbecause of the fact that during the US strikes,there were someterrorist leaders, as allegedby the US, who weremeeting to plan further attacks, 127 The Guardian,note 93. 128David Hirst, US Missile Raids:Why Our DrugsFactory? Why Not The Arsenal?The Guardian,22 August1998, at 3. 129Ibid. 130 Scheimeman,note 92 at 273. 131Corpus Christi CallerTimes, note 85. 212 and so it could be said that the US strikes were necessary to forestall such an imminent attack as the terrorists were about to finalize.132 On the contrary, such an argument of anticipatory self-defence was extremely difficult to be found to justify the attackagainst the AI-Shifa factory in Sudan,even under the assumptionthat such a factory was involved in chemical weapons productionas claimed by US, for the following reasons: 0 Firstly, it is hard to understand how the attacking of such factory would preventan imminentattack, because if a terroristattack was truly imminent,terrorists shouldhave everything they neededto carry out their attack,and shouldnot havebeen expectedto receiveany provisionfrom the factory,otherwise the terroristattack could not be consideredan imminentattack. 133 Secondlyand similarly, the US alleged that the factory was producing the EMPTA, i.e., an ingredientof the VX nervegas, rather than the actualweapons. Thus terroristswould have to expendsome additional time and effort to incorporatethis ingredientinto the actualweapons. 134 Thirdly, reports suggestedthat the factory was singled out by the US as a potentialtarget monthsbefore the strikes,and that again negatesthe argumentthat there was a necessityto forestall an impendingattack by terroristsagainst the US, which warrantedsuch strikes. 135 132 J. Remano,'Combating Terrorism and Weaponsof Mass Destruction:Reviving the Doctrine of a StateofNecessity', 87 (4) GeorgetownLawJournal (April, 1999),1042. 133 Ibid. at 1041. 1143 Ibid. 135 Ibid. 213 Finally and more importantly, the fact that a factory may possibly pose a potential threat to the US someday in the future, under international law, is not sufficient to justify the US strikes. For example, in 1981, Israel attacked a partially completed nuclear reactor in Iraq with F-16s and completely destroyed the target. Israel argued that its attack was a justified self-defence because Iraq was a hostile neighbour who opposed Israel's existence, and the reactor could have been used to produce weapons that could be launched against Israel. However, the UN Security Council labelled the incident as a 'danger to international peace and security' and stated that in the absenceof a launched attack [or at least an imminent attack as most 136 scholarsargued], there was no need to destroy the reactor. Despitethe determinationby the SecurityCouncil that the act was a 'dangerto internationalpeace and securitycreated by the premeditatedIsraeli air attackon Iraqi installation ' 137in Article 39 UN Charter nuclear .. accordancewith of the which providesthat the SecurityCouncil 'shall determinethe existenceof any threat to the peace,breach of the peace,or an act of aggressiorfand shall,upon this determination, 'makerecommendations, or decidewhat measuresshall be takelf including the use of military actionagainst the offendingState. However,the SecurityCouncil againstIsrael had taken no measuresof any type. The only obligationimposed on Israel was to compensateIraq for the material damageand loss of life it had caused. Similar resolutionwas also adoptedby the GeneralAssembly. 136Campbell, note 99 at 1079. 137 UNSC Res.487,2288 th Mtg (19-June-1981),II. M (1981),993. 214 The US itself had supported these resolutions in the condemnation of its traditional ally. Mrs. Kirkpatrick, the then US representative in the Security Council observed that although one has to recognize that deep hostility existed in the area 'nonetheless,we believe the meansIsrael chose to quiet its fears about the purposesof Iraq's nuclear programme have hurt, and not helped, the peace and security of the area. In my Government's view, diplomatic means available to Israel had not been exhaustedand the Israeli action has damagedthe regional confidence that is essential for the peaceprocess to go forward.. 9.138 This unanimousSecurity Council condemnationof the Israeli attack, even with the support of the US, suggeststhat the internationalcommunity wants to precludeany open-endeduse of anticipatoryself-defence that will as a result run counterto the main purposeof the UN Charter,which is to maintain international peaceand security. C. Proportionality By and largethe targetedsites in Afghanistan(i. e., terrorist bases)constituted a propertarget for attackby the US with a proportionateforce to countersuch a threat as was presentedby bin Laden and his groups. Yet, if it transpiresthat the people who were at the attackedsites were not active terrorists 'but merely people who sympathizedwith bin Laden'srhetoric', 139 then thosepeople are noncombatantand the validity of the US strikesshould be called into question. On the other hand,the US attackson the AI-Shifamedicine factory can never be consideredproportionate "' I.L. M (1981),985. 139Campbell, note 99 at 1095. 215 because as the facts became clear the factory was a civilian target involved in no terrorist activity. Furthermore, another reason to describe the US attack on the plant as disproportional or indiscriminate is the fact that, although the strike on the AI-Shifa factory resulted in the injury of only 10 people and that is relatively small number, this attack resulted in the total destruction of the AI-Shifa medicine factory, which produced at least 50% of the people's needs of medicines, hence the US attacks have put at risk many thousands of people who were not able to get the medicines they 140 neededto live. Additionally, even if the assumptionthat the AI-Shifa factory was a chemical factory is accepted,would the attack on a chemical weapons factory located in the biggest capital city of Sudan and containing a highly toxic VX nerve gas as alleged by the US, constitute a lawful target for the US strikes? It canbe concludedfrom the precedingdiscussions that the US strikesagainst Sudanand Afghanistan,in responseto the terrorist embassybombings has failed to satisfy the three basic preconditionsfor the legitimate exercise of self-defence, especiallywith respectto the targetin Sudan. The only descriptionthat can apply to the US strikesis that thesestrikes were actuallyan act of reprisalor retaliation,which is prohibitedby the contemporaryinternational law as discussedearlier in Section2. More significantlyis the fact that in the wake of the strikes,some statements by the US officials contradictedsuch a claim of self-defenceand suggestedthe 140Philip Webster,US OwesBritain EvidenceOn Airstrike Targets,Say Labour MPs, The Times, 25 August1998, at 12. 216 retaliatory intent behind these strikes. For instance, the statement by President 141 Clinton when he said, 'Today, we have struck back. Such legally unjustified strikes by the US were condemned by many nations (e.g., Russia, China, Indonesia, Malaysia, most African countries, most Arab 142 countries,and other country membersof the Non-alignedMovement). Among thesecondemnations, the Malaysiancondemnation was the severest.The then Prime Minister, Mahathier,criticized the US strikesby saying,'If it's a big power, it can attack any one. It decides and it executes,making small countries feel if s dangerous 143 to live in this world'. By contrast,there was somesupport of the US action by somecountries like GreatBritain, Israel,France, Gennany, Australia, and New Zealand. Also it is worth- mentioningthat there was no condemnationby the SecurityCouncil becauseSudan did not initiate suchaction for the understandablereason that it would face the same fate as its call for a UN facts investigationbrought about,which was consequently blockedby the US.144 However,comparing the world reactionto this action with the world reaction to the 1986US attackon Libya, one may saythat the degreeof severityof the former is moderate if weighed against the latter. Most commentators agree that this lesser oppositionby the internationalcommunity was attributedto the uniquecircumstances 14'Bombings-Quotes, Corpus Christi Caller Times, Thursday, August 20,1998, (visited Sept. 24,00), Among the many reasonsthat had affected the degree of the public protest by the international community in this caseare the following: 1) The generaldistaste for the SudaneseGovernment coupled with an aversionof the internationalcommunity to directlyconfront the US.145 2) Sudanis a poor country, thus many Stateshad no strong bearing on the 146 economic or political situation therein becauseof the absenceof interest. 3) Many governmentsare hesitantto publicly accusethe US of wrong doing, evenif they believethat a mistakewas madebecause doing this is equal to accusingthe US of lying to the international community.147 4) Conversely, many States had full confidence in the US intelligence informationit collectedlinking Bin Ladenwith the SudaneseGovernment. 148 5) The US had successfullyportrayed bin Laden'snetwork as a great dangerto all nationswhich as a result may have induceda greaterwillingness on the part of the internationalcommunity to overlook a questionableclaim of self- defence.149 6) Finally, any direct confrontationbetween the US and the Security Council over this incidentis certainto fail, as the US had madeclear that a veto might be usedto block any resolutioncalls for investigationinto the attack. "' Lobel, note 94 at 556. 146Ibid. 147 Ibid. 148 Remano,note 132 1043. 149 at ibid. 218 These factors made the French Foreign Minister, whose goverranent supported the attack, say that AmericA allies are willing to condone unilateral attacks in certain ' 50 circumstances but 'you must not get it wrong'. By and large only the US and Israel haveused force in responseto incidents they havedescribed as internationalterrorism and they haveboth oftenjustified their actions as self-defence. The practice of only two States,in which most other countrieshave not accepted,is unlikely to be sufficient to constitutea new norm of internationallaw, 151 which may legitirnize the use of force in such casesas the US attackagainst Sudan. Nevertheless,one must acknowledgethe reality that until a viable substitute appearsto deal with terrorist threatsin a more effective manner,the use of force, which many think as the most effective responseto terrorism, can be expectedto remainas an option to the victim State. To insist otherwisewould render a victim ' 52 Statepowerless to preempta plannedterrorist attack before injury is incurred. 5.4. THE EFFICACY OF THE USE OF MILITARY FORCE ABROAD IN DETERRING INTERNATIONAL TERRORISM The most importantissue to be examinedhere is whetherthe use of force by one State against either terrorist groups or Statesthat support them, will deter either of them from resorting to terrorist acts in the future against that particular State? In other words, does the use of force in this case, in effect convey a messageto terrorists or their sponsor States,that they must immediately ceasetheir terrorist activities because 150Lobel, note 94 at 556. "' Scheideman,note 93 at 274. 152Ibid at 251. 219 such forcible action against them would cause them to rethink and conclude that the costsof committing acts of terrorism are exceedingtheir benefits? Unlike many other scholars, who disputed the effectiveness of such a response in deterringterrorism, Prunckun and Mohr are amongthe few who reacheda positive 153 outcomewith respectto this issue. In their study of the effects of the US raid - (OperationEl Dorado Canyoný154 against Libya on 14 April, 1986, Prunckunand Mohr concludedthat an evaluationof a forty-one-monthperiod centeredon the date of the raid indicatesthat therewas a declinein the numberof terroristacts committed by groupsassociated with Libya. They also noticed a decreasein the numberof all actsof terrorism,not only by thosesponsored by Libya, committedagainst US targets worldwide.155 Moreover, although they concededthat in worldwide terrorist attacks in generalwere similar in numberboth beforeand after the US raid, they claimedthat in the post-raidperiod there was a shift from actsof mediumand high severityto acts of low severityof violence.156 I)- TerroristActivities of GroupsAssociated with the Libyan Govenunent: Prunckun and Mohr claimed that of the fifteen groups reputed to have been supportedby Libya, only nine wereactive during the forty-one-monthperiod of study. According to them, these groups, as listed in the table below, were substantially inactivein terrorismin the post-raidtwenty-and-a-half-month period -(25 after the 153H. Prunckunand P. Mohr, 'Military Deterrenceof InternationalTerrorism: An Evaluation of OoperationEl DoradoCanyon', 37 (100)Peace Research Abstracts (2000). 1'4Operation El DoradoCanyon was the codename the US gaveto its raid againstLibya in April 14, 1986, which was in retaliation for the alleged direct Libyan role in the West Germannightclub bombing in which 3 people killed, including two Americans,and 261 were injured, including 79 Americans. 155 Prunckun and Mohr, note 153 at 272-274. 1-56Ibid. 220 raid)- as compared to their activities in the pre-raid twenty-and-a-half-month period - Fatah (75 before the raid)- with the exception -though not explained- of the Revolutionary Council 57 Activity of Libyan-sponsoredgroups before and after the raid' Terrorist Groups Activity before the Activity after the raid raid RAF 21 1 Black September 14 2 Rev. Org. of Soc. Muslims 10 0 Arab Rev. Brigades 6 0 PLO 5 2 Ulrike Meinhof Commando 3 0 Black June I I Arab Rev. Cells 1 2 Fatah Rev. Council 14 17 2)- TerroristAttacks Against the US: The studyalso indicatesthat therewas a noticeabledecline in all-terroristacts directedat US citizensor propertyabroad. This includesnot only the actscommitted by thosesponsored by Libya, but by all terroristsand groupsthat targetedthe US. The study concludesthat therewas a dramaticrise in the numberof terrorist events directly after the raid (18 of the 20 eventsof April 1986followed the raid); with the April numbersincluded, there were marginallymore actsagainst US targetsafter (37) thanbefore the raid (33). In spiteof that,the numberof terroristevents targeted at the US dropped off the next month and continued that way until the end of December 1987. Likewise, the study indicates that, with the exception of the sudden rise of events during April 1986, in the months that followed incidents were rarely recorded at a frequency at or above the pre-April trend. Even more importantly in the postraid "' This tableis takenfrom ibid. at 273. 221 for periodthere were more months that recordedno terroristactivity at all (n--8)than 158 the pre-raid period (n=3). The apparent reason that might explain such a decline of all terrorist acts againstthe US abroadis the fact that the use the force by the US againstLibya made other States,which might support terrorist groups of the sametype as the ones targetedby the US, or terrorist organizations,carefully watch such a demonstrated preparednessof the US to retaliateif they decidedto engagein such activity in the future. Consequently,such a demonstrationof force led them to concludethat it wouldbetter for themnot to attacksuch State. 3)- WorldwideTerrorism Unlike the manifestdecline of tefforist attacksagainst the US as discussed above,terrorist events worldwide were of a similar numberbefore and after the raid. It showsthat the total numberof eventsbefore the raid (838) is very closeto that after the raid (871). The sameresult will be obtainedif all terroristacts against the US are excluded(805 before and 834 after).159 Notwithstandingthis a* different picture will emerge if the events were classifiedaccording to their level of severity.'60 On one hand,the patternsfor high- severityactivities and medium-severityactivities both showa clear declineduring the periodafter the raid. On the other hand,the patternsfor low-severityincidents show ... Ibid. at 274. 159Ibid at 275. 160According to Prunckonand Mohr terrorists' favoredtactics can be classified in accordancewith their perceivedseverity to high (nuclear,armed attack-missiles, exotic pollution, assassination/murder, armed attack-other,explosive, barricade, hijacking, car bombing, and letter bombing), medium incendiary, (kidnapping,takeover, -nonaerial, suicide car bombing, police shoot-out, sniping at a building,and sabotage),and low (arrnssmuggling, conspiracy, occupation, threaý hoax, and theft). See ibid. at 273. 222 an obvious increase. According to this study high-severity terrorist events show a drop of 8.1 percent, from 543 (before) to 499 (after); medium-severity events drop 21.8 percent, from 151 to 118; and low-severity events grow 43.3 percent, from 144 to 254.161The only explanation provided by Prunckin and Mohr to link such a shift to less violent acts of terrorism to the US operation against Libya, is the fact that during the period of study there was no other major event in the global arena except the US raid againstLibya. Thoughthe resultreached by this studycannot be totally rejected,it cannotbe takenfor grantedas a conclusiveoutcome that could be unquestionablyapplied to all usesof forceagainst terrorism for the following reasons: Firstly, as concededby Prunckunand Mohr themselvesthat the declineof the activity of the Libyan-associatedgroups can be real or illusory. That is, it is not clear whether that there was an actual lessening of the violent activities by these groups or simply that these groups were less prepared to acknowledge responsibility for acts they committed.162 Secondly,it is to be notedthat in this studymost of the Libyan-associated groups were Palestiniangroups, accordingly there might be other factors, which causedthe reductionof their activities(e. g., the startof the peaceprocess with Israel). In addition to this, the fact that almost all of thesePalestinian groups were getting supportfrom mostof the Arab States(e. g., Syria,Lebanon, Jordan, Iraq.... etc). Therefore,even if the presumptionthat the US attackagainst Libya wasan effective 161 Ibid at 275. '62 Ibid. at 276. 223 responsethat reduced Libya's ability to support or sponsorterrorist groups, it might not be the casewith respectto the Palestinian groups. Moreover, it is not clear whether the decreaseof the activity by the Libyan- supported terrorist organizations, even if it is fully accepted, was the result of the US attack, or the result of other circumstanceswhich existed at that time. For example, in 1987 Libya was engaged in war with Chad in which it suffered a great military defeat.163 In addition,this perceivedeffect of the US raid againstLibya, evenif it is accepted,is only a responsewith a short-termeffect. Justfour monthsafter the time limit of this study,Libya wasaccused of causingthe destructionof a PanAm airplane ' 64 over Lockerbie,which, if proved,will contradictthe resultreached by this study. By and large the majority of scholarsare of the opinion that military revenge ultimatelycreates more terroriSM.165 They arguethat attemptingto combatterrorism throughmilitary meansalone is a "mission impossible"166because terrorism is not fundamentallya military problem,it is a political, social,and economicprobleM. 167 163R. Bruce, 'Libyan Terrorism: The Case Against Gaddaft', 261 (1523) ContemporaryReview, (1992),296. 164It shouldbe noted that in the LockerbieCase, the US and the UK accusedtwo Libyan officials working directly under the command of the Libyan governmentand this is the most extreme manifestationof state sponsoredterrorism. Therefore,it might be arguedthat the US attack against Libya was counterproductiveaction and causedan escalatedresponse by Libya in more direct way. SeeLobel, note 94 at 555. 165J. White,Terrorism: An Introduction,(Wadsworth. Pub., 1998),248. 166 S. Gotowicki,'Confronting Terrorism: New War Formsor Mission Impossible,LXXV11 (3) Military Review,(May-June 1997), 6 1. 167 Ibid. 224 Examples of such military response's ineffectiveness in combating terrorism, even with respect to the two most prominent countries in frequent use of military force (Israel and the US), are as follows: Firstly, the demonstratedfailure of the Israeli army -the Middle East's most powerful military force- to preventHamas (the Islamic ResistanceMovement) from attackingtargets within Israel, or to preventHizballah's Katyoshaattacks against Israelitargets in Lebanonor in Israel; Secondly,the inability of the US itself to preventor deter attacksagainst its citizensor property abroad(e. g., the 1996 bombing of the US airforce housing at Khabar Towers in Dhahran, Saudi Arabia, the bombings of the US embassyin Nairobi and Dar Es Salaamin 1998, and more recently the horrific attacks of September11,2001). Theseattacks reflect the absenceof an inevitableaspect of the deterrencetheory, which is that the attack againstLibya should have provided an exampleto othercountries or terroristorganizations that the US is willing to useforce againstthem, if they conductterrorist activity againstit. Some other shortcomingsof the responsesinvolving the use of force that shouldbe mentionedhere, or reiteratedif mentionedearlier: First of all, military responseis the weaponof the strong. It is only an option for the powerful Statesbut not the weak. As indicatedearlier that in spite of the US attackagainst Libya, the patternsof internationalterrorism worldwide showsno drop in number,this is becausethere are not many Stateslike the US who can use force againstterrorism. 225 For example, the US attacked Sudan and Afghanistan, as discussed earlier, becausethey allow various radical groups to organize politically, but would that be different from what many other powerful countries are currently doing, including the US and the UK? Britain gives refuge to large numbersof dissidentsfrom all over the world, particularly those from the Middle East, some of whom were accusedof being terrorists. Even bin Laden's political activities appearto have moved to London following his expulsion from Sudan. Complaintshave been made by the Israeli, Saudi,and Frenchgovernments, among others, that Londonhas become a safehaven for the plotting and directing of terrorist activities abroad. In the wake of the November1997 terrorist murderat Luxor, the EgyptianPresident accused Britain of harbouringthe terroristleaders responsible: 'Terrorists living in English territory funds are present and .. where they collect and plan'. 168 The US also has hostedsome terrorist groups. For example,it has been a refugefor many IRA terrorists,and the leaderof the political wing of the IRA has been invited to the White Houseto shakehands with PresidentClinton. Moreover, the US had sponsoredwhat, by its own legal definition, amountsto international terrorism in Afghanistanand in Central America, and it is presently training and arming what many describedas terrorists in Sudan.169 Now can such States involvementmake them vulnerableto attacksby other Statessuch as Sudan and Egypt,the answeris no becausethey arethe strongerpower. 168S. Gabb, 'Why Has Britain SupportedAmerican State Terrorism Against Sudan?Where Is The Evidence?An Open Letter To The British Prime Minister' RT Hon Tony Blair MP'. 5 (22) Political File, (1998). 169Ibid. 226 Secondly,the use of military responseoften, if not always, poses the danger of 170 military overreaction in which innocent civilians become the immediate targets. For example, the 1982 Israeli invasion of Lebanon in response to the attempted assassinationof the Israeli ambassadorin London by Abu Nidal Group. Such action had been described as disproportionate by the measuresused because it involved, in addition to the invasion of the territory of Lebanon, a massive killing of many of the civilian people. Moreover,in most casesof terrorist attack,it is extremelydifficult for a State to usethe force directedagainst terrorists to establish,or determinewith certainty,the identity of thosewho have committedthese violent acts or the States,which support in 171The US Sudan Afghanistanis them committingtheir attacks. attackagainst and illustrativein this regard. Furthermore,military responsemay, in most cases,be unilaterally undertaken without the supportof importantallies, consequentlyit may causetension or at least strainrelations between the forceful Stateand its allies.172 Last but not least,the use of military responseby one Stateagainst terrorism may cause its public to believe in their country's alleged successin defeating terrorists. Thus that Statemay find itself boundto fight terroristswith force when the threatemerges next time, evenif force is not needed. "0 P. Wilkinson, 'The Rule of the Military in CobattingTerrorism in a DemocraticSociety', 8 (1) Terrorismand Political Violence(Spring 1996), 1. 171Ibid. at 7. 1'2Ibid. 227 CHAPTER 6. KUWAIT'S INTERNATIONAL AND REGIONAL POSITION ON TERRORISM Each State has its own perspective on the issue of international terrorism. Sometimes other States share this perspective and sometimes it is not. Kuwait has faced the issue of terrorism on many occasions and in many organizations of which it is a member. First, in Section1, discussionwill be aboutKuwaif s attitudesin the UN when it dealswith the issueof internationalterrorism. Next, in Section2, sinceKuwait is a Member of the Organization of the Islamic Conference, discussion will be concentratedon this organizationand its role in the fight againstterrorism. Moreover, anotherorganization that also will be discussed,in Section3, is the Arab League, becauseKuwait is also a Memberof this Leagueand shares,to a certainextent, the other members' values on the issue of terrorism. Finally, in Section 4, such discussionwill be narrowedto the Gulf CooperationCouncil of which Kuwait is a partyalong with otherfive countries. Kuwait had, as all countriesof the world, found itself vulnerableto terrorist attackssince the 1968and continuedto be a victim of this phenomenonuntil recent time. However,since it is more appropriateto talk aboutthe nationallaw of Kuwait and any other particularitiesexisting therein, e.g., the State Security Court, before starttalking aboutterrorist incidentsof which the nationallaw and the StateSecurity Court as a result had dealt with. Therefore,it is better to defer the discussionabout Kuwait's own experienceof terrorismto the next chapteralong with the discussionof Kuwait nationallaw. 228 6.1. AS A MEMBER OF THE UNITED NATIONS Talking about Kuwait's attitudes in the UN or any of its specialised agencies' debates over the adoption of the anti-terrorism conventions discussed earlier in Chapter 3 is the same as talking about the attitudes of most developing countries, especiallythose which were known as the Afro-Arabic block, towardsthe issueof terronsm. However,before discerning these attitudes, it shouldbe emphasizedhere that during all debatesthat precededthe adoptionof any of the antkerrorism conventions no Stateever went on recordto announceits supportfor terrorismper se. In general,there were two trendsamong nations with respectto the issueof terrorism. One trend,which was representedby most WesternStates and someother Stateslike Israel and SouthAfrica, maintainedthat terrorism must be suppressedno matter what the causeswere that gave rise to it. This trend stressedit is not permissiblefor whateverreasons. The other trend, which was representedby most of the developingcountries (Arab, African, and many Asian countries)with the support from the communist countries,emphasized that in orderto fight terrorismin a more appropriateway, three moreconsiderations should be addressedas well. Firstly, such an act could not be addressedproperly without addressingits underlyingcauses first. An exampleof suchan argumentthat reflectedthis position was the one proposedby Saudi Arabia as an amendmentto the UN Resolution 34/145,which was initially titled as 'Measuresto preventterrorism and other forms of 229 freedoms' by violence which endanger or take human lives or jeopardize fundamental forms adding the following to this title 'And study of the underlying causes of those 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'? Also, the representative of Kuwait pointed out, on a similar occasion that 'attention must be paid to the underlying causes of 2 terrorism'. Consequently according to the supporters of this argument, the only way to deal with terrorism was to deal with its underlying causes. Secondly, another argument presented by these countries, was that a distinction must be clearly establishedbetween the use of violence as a criminal terrorist act and the use of violence as a legitimate exerciseof the right of self determination. According to them, those people who are under foreign or alien occupationor a colonial or racist power have the right use violence, in whatever forms, to achievetheir independence.They arguedthat since most of the national liberation groups are generally poorer and less well-armed than those of the occupyingpower, they must be allowed to use the typesof force which are available to them. In otherwords, the meansthey usedto achievetheir nationalliberation must be measuredin the context of the choicesof meansat their disposalat that time? They added,however, that all Statesare under legal obligations to promote self- determinationexercised by thosepeoples as a legitimatejustification for the use of violence. 1 UNGARes. 34/145 (MeasuresTo Prevent InternationalTerrorism Which EndangersOr Takes InnocentHuman Lives Or JeopardisesFundamental Freedoms, And Study The UnderlyingCauses Of ThoseForms Of TerrorismAnd Acts Of Violence Which Lie In Misery, Frustration,Grievance And DespairWhich CauseSome People To SacrificeHuman Lives IncludingTheir Own In An Attempt To EffectRadical Changes) (1979). 2Para 5-9 (UNGAOR,40'h Sess, C. 6,21' mtg). 3 J. Lambert, Terrorism and Hostages in International Law-A Commentaryon the Hostages Convention1979, (Grotius Pub., 1990), 30. 230 An example of such a position was presented by the representative of Mauritania when he stated that the UN could not back away from its early commitments to peoples struggling for self-determination becausethe actions of those peoples, he maintained, 'were merely the logical and inevitable consequencesof political situation... in circumstances, such persons could not be blamed for committing desperate acts which in themselves were reprehensible; rather the real culprits were those who were responsible for causing such desperation.4 Thirdly, another argument,which is also related to the above interrelated views, is that the real terrorismis that of colonialismand foreign occupationwhich is far more noxiousand costly in lives than thoseviolent actscomn-dtted by individuals or groups.5 In many casesa compromisewas reachedin order to pleasethese two trends: for example;the UN GeneralAssembly's definition of aggressionis a good example which illustratedsuch bargainingin issuesrelated to terrorism. Article 3 Paragraph (g) of the UNGA Res. 1186 defines aggression,in part, as 'the sendingby or on behalf of a Stateof armedbands, groups, irregulars or mercenaries,which carry out actsof armedforce againstanother State of suchgravity.. 9.6 As has beendiscussed earlier in Chapter5, this form of involvementby one Stateagainst another constitutes an armedattack againstthe latter which gives this Statethe right to useforce in self-defenceagainst the formerState. Para 5, UNGA OP, 27'h Sess, C. Gen '202nd mtg'. See also ibid. at 33. S. Finger, 'International Terrorism and The UN, in Y. Alexander (ed. ), International Terrorism: National, Regional, and Global Perspectives, (Praeger Pub., 1976), 330. 6 UNGA Res. 1186, Art. 3, Par. (g). 231 However,as a result.of a compromisereached between States to accommodate the two trendsdiscussed above, the applicationof this provision,i. e., Art. 3, Par.(g), hadbeen restricted by articles7 and 8 of the samedefitnition, which read: 'Nothing in this definition, and in particularArticle 3, could in any way prejudicethe right to self-determination,freedom, and independence,as derived from the Charterof peopleforcibly deprivedof that right and referredto in the Declaration,particularly peoples under colonial and racist regimes or other forms of alien domination;nor the right of thesepeoples to struggleto that end and to seek and receive support, in accordancewith the principles of the Charter'.7 Anotherexample, which illustratesthese two trendsmore accurately,was the debateover the definition of hostage-takingin the HostageCommittee which was establishedfor the purposeof facilitating the drafting of an InternationalConvention that dealswith the problem of taking hostagesas a violent act frequently used by terrorists,and how to suppresssuch an act. This conventionwas later adoptedand cameto be known asthe HostagesConvention of 1979,discussed earlier in Chapter3. In the HostageCommittee the then FederalRepublic of Germanyproposed that without exception 'any person' who seizesor detains and threatensanother personwith death,injury or continueddetention in order to compela third party to do or abstainfrom doinganything, commits the offenceof hostage-taking.8 However,the dissatisfactionby most of the developingcountries with this suggesteddefinition becauseit does not endorsetheir position, caused them to proposenumerous changes in orderto alter this definition: 7Ibid. Art. 7 and 8. 8 Lambert,note 3 at 62. 232 Firstly, it was proposed by Libya that the definition should be redefined to be the following: the term 'taking of hostages'is the seizureor detention,not only of a personor persons,but alsoof massesunder colonial, racist or foreign domination,in a way that threatenshim or them with death, or severeinjury or deprives them of fundamentalfreedom. 9 Secondly,many other delegations,representing the same trend as Libya, supportedthe idea that the definition of hostage-takingshould be drafted in such a way as to limit the prohibition only to the taking of "innocenf' hostages,i. e., those connectedwith colonialism or foreign domination must be consideredas "guilly' individuals.10 Thirdly, they proposedthe insertion into the draft conventionof a provision statingthat the term 'taking of hostages'does not include any act 'carried out in the processof national liberation againstcolonial rule, racist and foreign regimes,by liberation movements recognized by the UN or regional organizations'. Nonetheless,none of theseproposals was adopted. However,such a hard line as had beentaken by Kuwait and other developing countrieswho sharedthe sametrend in the 1960s,1970s, and 1980shad lessenedin the 1990s. Though most of these countries, including Kuwait, are still debating over the distinctionbetween terrorism and the use of violencein self-determination.Such a debatedoes not constitutea position that may precludethe adoptionof any new anti-terrorismconvention that does not provide any exception for those who use 9 Ibid. 10Ibid. " Ibid. 233 violencein furtheranceof their right of self-determination.Rather these positions are no morethan a meredeclaration of attitudes. A recent example, which supports this supposition, was the UN adoption of the International Convention on the Suppressionof Terrorist Bombing in 1997. The adoption of this convention, as well as the adoption of the resolution upon which this Convention is based, was done without even a vote, and there was no debate like the ones the international community witnessed in the past. That is what happened, despite the fact that this convention nowhere provides for any exception to the use of violence in accordancewith the right of self-determination. Thepossible reasons behind this changecan be oneor moreof the following: First of all, the collapseof the communistregimes, especially the USSR, which were known for their supportof the developingcountries in their argument overthe issuesrelating to terrorismand the legitimateright of self-determination. Secondly,during the 1960sand early 1970s,some African countrieswere under colonial and foreign occupationand that causedthe other newly independent African countries to stand with other developing countries, especially Arabic countries,in their positionsupporting the right of self-determination,but now they are all independentStates. Thus, there is no needto stressan issuethat is not relative,at least,to the African continent. Moreover,to the Arabs the Palestinianproblem was the predominantcause behind their attitudes. To the Africans the discrimination againstblack people in SouthAfrica was also, along with the factor mentionedabove, an important cause 234 issues shaping their attitudes. Therefore, the tactic of linking these two with one issue another was very successful in unifýing their attitudes. However, since the of in racism and discrimination does not, at least at governmental level, exist any more South Africa, the African Stateslost interest in such issues as those involving the use of violence by peoples in self-determination against a racist regime. Also, with respectto the Arabic countries,during 1960s,and early 1970s, most of thesecountries were at war with Israel and they did not even recognizeits existenceas a legitimateone. Now, suchan attitudehas been changed with respectto someof thesecountries, namely Egypt, Jordan,Morocco, Tunisia, Oman, Qatar, and more recentlyMauritania, because most of thesecountries have enteredinto treaties with Israel obliging themselvesnot to allow any violent acts,whatever their motives, to be emanatedfrom their territory, or to be organizedtherein, or to supportsuch acts by anymeans. In addition,the Palestiniansthemselves have enteredinto treatieswith Israel not to useviolence against one another. For example,Article XV of the Washington Agreementof 1995 betweenthe PLO and Israel states,'Both sides shall take all measuresnecessary in orderto preventacts of terrorism,crime and hostilitiesdirected againsteach other againstindividuals falling under the other's authority and against their property, and shall take legal measuresagainst offenders!. However, a strict observationto suchtreaties proved to be very difficult. Furthermoreand even more importantly, is the fact that many Arabic countries,especially Egypt and Algeria, have become targets of terrorism in the 235 1990s, and that has made it clear that it is not just Western States that are vulnerable to terrorist attacksbut that Arabic countries are also vulnerable to such attacks. The following example illustrates how Algeria after having suffered from terrorism, shifted its focus with respect to the issue of terrorism, from defining it in order to differentiate it from people's armed struggle for self-determination and determining its underlying causesin order to eradicate them, to the need to eliminate terrorism per se. In its reply to the UNGA Res. 48/411 (1994) which sought the views of the Member States on terrorism, Algeria stated that States must 'give substanceto the unequivocal condemnation of all acts of terrorism and the obligations incumbent upon them under several resolutions of the General Assembly, Stateshave no need to embark upon the academic enterprise of attempting to define terrorism and to determine its underlying causes The proper focus for the attention and energy of States lead for ... should to a concentration on practical measures eliminating acts of terrorism'. Finally, with respect to Kuwait, the invasion of the Iraqi army and the suffering of the Kuwaiti people that followed causedserious friction in relations betweenKuwait andthe Arabic countriesthat stoodwith Kuwait on one side,and Iraq and the other Arabic countriesthat supportedIraq in its invasionof Kuwait on the otherside. Thus it was not possiblein the post-invasionera to coordinatepositions in issuesrelating to terrorismbetween these States because of the hate and mistrustthe Iraqi aggressionhad caused among them. To Kuwait the conceptof terrorismhas been reconstructed to includethe Iraqi aggressiveaction as the mostterrible andheinous crime in history againstthe Kuwaiti 236 people. On many occasions,Kuwaiti speechesabout terrorism were mainly confined to crimescommitted by Iraq againstKuwait. For example,in its speechbefore the Sixth Committeein the 501hsession of the UN GeneralAssembly on the questionof the measuresthat must be taken to combatterrorism on 6/10/96,Kuwait had accusedthe Iraqi regimeof being a terrorist regimeand cited the following explanations: Its war with Iran for eight years in which the Iraqi regime lost and never achievedanything; The suffering of the Iraqi people in the North and South for no reason other than disagreementwith Sadaam'sregime; The invasion of Kuwait in such a savage and cruel way that was unprecedentedin modem history; The setting on fire of the oil wells which resulted in destroying the environment and the depleting of natural resources;and Planning and sponsoring the unsuccessful attempt to assassinatethe former American Presidentduring his visit to Kuwait. 12 This changeof languageon what constitutesterrorism -(note that someof the abovementioned actions are terrorist acts,e. g., the plot the assassinateGeorge Bush, while othersare more than terrorismand more like war crimes, e.g., the invasionof Kuwait)- on the view of Kuwait causedKuwait to be more concernedwith this type of action by searchingfor the way to confront it and to overtly exposeit to other membersof the UN ratherthan to stick to the old argumentof the distinctionbetween 12Kuwait Word BeforeThe Six CommitteeIn The 50h SessionOf The UNGAOn The QuestionOf The MeasuresThat Must Be TakenTo CombatTerrorism (6/10/1996). 237 terrorism and self-determination which is still, though in a lesser way, recognized by Kuwait. Another reason that can be added here is that, although the Iraqi invasion of Kuwait caused such a big disagreement between the Arabic States, it has had the opposite effect between Kuwait and some Western countries, especially the US, UK, and France, which supported and participated in the liberation of Kuwait along with some countries. This has caused Kuwait to appreciate its relations with these countries and not to take a stand that might not be welcomed by these States, especially with respect to such an issue of international concern as terrorism. This can also be said with regard to some other Arabic countries which are known for their strong relationship with the US, the sole superpower in the modem world. Examples of these countries are Saudi Arabia, Egypt, and Jordan. Nevertheless,even before the Iraqi invasionand during the dominationof the trend it inspired,i. e., the secondtrend, Kuwait recognizedthe needto fight terrorism and had ratified six anti-terrorismconventions and protocols out of the ten that are now in force. Theseinclude: a- Tokyo Convention1963 b- HagueConvention 1970 c- MontrealConvention 1971 d- MontrealProtocol 1988 e- HostagesConvention 1979 f- New York Convention1973 Also, the non-signingof the otherfour conventionsand protocols was not the 238 resultof its standon the issueof terrorismalong with the other developingcountries, but ratherdue to reasonsrelating to theseinstruments themselves. In answering an inquiry sent by the American Embassy in Kuwait asking for the justifications of why Kuwait did not sign the following anti-terrorism instruments: (I)- Marking of Plastic Agent Convention 1991 (2)- Rome Convention and Protocol 1988 (3)- Nuclear Physical Protection Convention 1979 A Kuwaiti official answeredthis questionby assertingthat with regardto (1) and(3), they did not dealdirectly with terrorism. Acceptingthis answermay result in sayingthat there in no needto sign and ratify any of the anti-terrorismconventions becausethey did not deal with terrorism in a more direct way, but they dealt with some actions favoured by terrorists. Besides, both conventions,especially the NuclearPhysical Protection Convention, help in abatingthe threatterrorists may pose by makingthe possessionof suchlethal devicesmore difficult, accordinglyrestricting terrorismin orderto preventit. With respectto (2), he statedthat theseconventions and protocolswere agreed upon in the aftermathof the Achilli Lauro incidentin 1985,and he thinks that suchan incident will not occur again. Like the previous reasoning,this one can not be acceptedbecause the incident of the Achilli Lauro was only an example of the possibilityof shipsto be targetedin the future,and thereis no assurancethat a similar incidentwill not occur evenafter the adoptionof this conventionand protocol, as is the casewith respectto hijacking. Additionally, the Rome Protocol was adopted though there was not any known attack against sea fixed platforms, which this 239 Protocol is mainly concerned with. Rather it was a step ahead in order to prevent attacks against them if contemplatedby terrorists in the future. Since Kuwait is an oil producing country with common use of platforms and artificial islands, which are also covered by this Protocol, it should ratify this protocol. However, under the provisions of the Rome Protocol a State cannot become party to it unless it has ratified the Rome Convention first. Another argument that one might raise against becoming a party to these Conventionsis the fact that the national laws of Kuwait may already cover these offencesprovided for in these conventionsand protocols. Responseto such an argumentcan be the following; to have an effective nationallaw that regulatessuch crimes,does not supplyan assurancethat other Stateshave such effective laws. More importantly,without suchconventions and protocolsKuwait can not make sure that thosewho committedcrimes against it and fled to othercountries will be extraditedor prosecuted. Furthermore,such a responseby the Kuwaiti official, discussedabove, would not be applicableto the Anti-Bombing Conventionwhich was adoptedby the UN in 1997,because this Conventiondealt directly with terrorismby dealingwith the most favouredaction committedby terroristson a more frequentbasis. Still, Kuwait has not evensigned this Conventiondespite its apparentimportance. Last but not least,Kuwait has also recognizedthe significanceof the bilateral treatiesin combatingterrorism with respectto civil aviation and has concludedthe following treatieswith: Indonesia28/3/94 240 Bulgaria 22/3/94 Qatar 29/11/93 Portugal 26/11/93 Lebanon 18/11/93 Russia21/10/93 Unfortunately,it could not be discernedwhy Kuwait has concludedsuch bilateraltreaties only with thesecountries, but not the others. Had Kuwait initiated the discussionof thesetreaties or it was the others'initiative? Also, it can be noticed these all of thesetreaties are post 1990, the year that causedKuwait to shift its positionwith respectto manyissues and terrorism is oneof themas discussedearlier. 6.2. AS A MEMBER OF THE ORGANIZATION OF THE ISLAMIC CONFERENCE.(OIC)13 As a memberof the OIC Kuwait had initiated and supportedthe adoptionof the first known resolutionthat condemnedterrorism in the Fifth Islamic Conference 13The OIC is an internationalorganization grouping fifty-six Stateswhich havedecided to pool their resourcestogether, combine their efforts and speakwith one voice to safeguardthe interestsand secure the progressand well-beingof their peoplesand of all Muslims in the world. The Organizationwas establishedin Rabat,Kingdom of Morocco,on 25 Sep. 1969when the first meetingof the leadersof the Islamic world was held in the wake of the criminal Zionist attemptto bum down the BlessedAl- AqsaMosque on 21 Aug. 1969in the occupiedcity of Al-Quds. Six monthsafter that historical event, i.e., March 1970,the First Islamic Conferenceof ForeignMinisters was held in Jeddah,Kingdom of SaudiArabia during which the OIC GeneralSecretariat was establishedto ensurecoordination among MemberStates. Under the Charter,the OIC aimsto: I- Strengthen: a) Islamicsolidarity among Member States; b) Cooperationin the political, economic,social, cultural and scientificfields; c) The struggleof all Muslims people to safeguardtheir dignity, independenceand nationalsrights. 2- Coordinateaction to: a) Safeguardthe Holy Paces; b) Supportthe struggleof the Palestinianpeople and assist them in recoveringtheir rightsand liberating their occupiedterritories. 3- Work to: a) Eliminateracial discrimination and all fonns of colonialism; b) Createa favourableatmosphere for the promotionof cooperationand understanding betweenMember States and other countries. The aboveis literally takenfrom the OIC web site at www.oic-un, org. 241 which was hosted by Kuwait in January 1987. That initiative may have come due to the fact that during that 1980s Kuwait had experienced many severe terrorist attacks, as will be discussedlater, as a result of its stand in the First Gulf War, when it had supported Iraq against Iran. Thus Kuwait might have wanted the OIC to express its condemnation of these acts, especially the fact that Kuwait on many occasions had, although indirectly, accusedIran, a Member of the OIC, of being behind these attacks. It shouldbe mentionedthat shortly beforethe Islamic delegationsstarted their meeting after their arrival in Kuwait, a violent attack took place near one of the biggesthotels in Kuwait City, where someof thesedelegations resided as did some newsreporters. The attackwas committedby pro-IranianKuwaitis with the support of the Iraqi oppositionresiding in Iran. The apparentpurpose for suchan actionwas to attainpublicity for their causeby directingthe attentionof thosedelegations to the sufferingof the Iraqi peopleby the oppressiveSadaam's regime. More resolutions were adopted by the OIC that dealt with the issue of terrorism. For examples,Res. 53/8-P (IS), 1997, which provides, in part, that the OIC is convinced that 'there is an international consensuson combating terrorism in all its forms; and eliminating the causesof terrorism which endangersthe life and property of innocent people, violates the sovereignty of States, and jeopardizes the rights of peoples'.14 In anotherparagraph of this resolution,the OIC statedthat there is a needfor 'specific and agreedupon internationalcriteria, to enablethe internationalcommunity 14OIC Res. 53/8-P (IS) On ConveningOf An InternationalConference Under The AuspicesOf The UN To Define Terrorism And Distinguish It From Peoples' Struggle For National Liberation (The 8h Summit,Dec. 1997). 242 to differentiate clearly between terrorism and peoples' struggle for national liberation'. 15 Therefore, according to this paragraph, as its language clearly suggests,there is no clear criteria that distinguishes between terrorism and peoples struggle for self- determination, and the OIC recognizes this gap and calls upon the international community to bridge it. The OIC should have defined such criteria that it thinks should be the one adopted by the international community in this regard, but it never did. Although the OIC reaffimnedthe fundamentaland legitimate right of the peopleto self-determination,it went on in anotherparagraph of the sameresolution by statingthat the OIC denouncesthe 'frantic attemptsaimed at obliteratingthe clear distinction-in the previousstatement the OIC was looking for one-between terrorism and the legitimate struggle of peoples which conforms with the principles of internationallaw 16 Once more, the OIC refrained from illustrating this clear distinction as it claimed that if it is so clear, there would be no need to agreeon anotherone. In anotherresolution, the OIC basicallyrepeated what it had alreadysaid and addedthat Stateshave to commit themselvesto 'refrain from undertaking,attempting or participating in any way in financing, instigating or supporting any acts of terrorism, directly or indirectly, also those committing them to take all necessary 15Ibid. 16Ibid. 243 measures to ensure that their territories are not used as a base for planning, 17 organizing, executing, initiating or participating in any terrorist activity. In addition, the OIC issued Res. 55/8-P (IS), 1997, which was mainly concerned with the problem of hijacking. Firstly, it stated that the hijacking of aircraft and the anguish causedto innocent passengersis a 'crime as grave as highway robbery which is prohibited by the Islamic Shariah in accordancewith the text of the Holy Quran (Surat AI-Maida /33)'. 18 Secondly,the OIC noted that the crimes of hijacking aircraft have continued 'in spiteof all internationalagreements and conventions prohibiting them'. 19 It would be interestingif the OIC had explainedin this resolutionthe reasonswhy suchcrimes persist,despite the adoptionof many conventionsthat dealt with them which most of the OIC countriesare party to. Is it becausethese conventions themselves are not effective,thus a new effectiveconvention must be agreedupon to detersuch crimes? Or is it becauseof the non-complianceof the StatesParties to theseconventions? However,the OIC addedanother sentence, which might help in betterunderstanding what the OIC had in mind. The OIC providedthat it calls for 'more severesanction againsthijacking'. 20 Nonetheless,though this sentencecan help by acknowledging that the crimes of hijacking persist becausethe sanctionsthat can be taken against them are not severeenough, it is not clear whether the OIC is talking about the penalty that Statesprescribed for the crimes of hijacking, or whether it is talking about the sanctionsthat States should take against other Statesthat provide the 17OIC Res. 54/8-P (IS), On Follow-Up Of The Code Of Conduct For Combating International Terrorism(The gh Summit,Dec. 1997). 1801C Res. 55/8-P (IS), The StrengtheningOf Islamic Solidarity In CombatingHijacking (The Wh Summit,Dec. 1997). 19Ibid. 20Ibid. 244 hijackers with a safe haven after they have committed their crimes, or assist them in any way. Thirdly, in the last paragraph, the OIC, by way of suggesting that the sanction it was concerned about in the previous paragraph is the penalty that must be imposed on the offenders, calls upon Member States to take 'all necessary measures to curb such crimes and inflict the most severe punishments on the offenders involved in hand States 21 them, or to them over to the other concerned7. It shouldbe observedthat althoughthe OIC equatedthe crime of hijacking to the crime of highwayrobbery provided for in the Quran, it did not mention that the punishmentfor the latter shouldbe applied,or any otherpunishment of equalseverity. Moreover,an importantobservation here is that nowherein this resolutiondid the OIC mention the peoples'right to self-determination.This is one of the most significantfeatures of the approachof the segmentationof the problemof terrorism, by dealingseparately with offencescommonly committed by terroristswithout calling it terrorism,in orderto avoidthe political sensitivityattached to the term of terrorism. Despite the importanceof these resolutionsas declarationsof policy that Member Statesshould take into account,they are not binding as the treatiesand conventionsare. Thus in order to transferthese mere declarations of policy into legal obligations,the OIC adoptedthe: 21Ibid. 245 6.2.1. Convention of the Organization of the Islamic Conference on Combating International Terrorism, Adopted in 1 July 1999. (The OIC Convention) As was expectedfrom the OIC, it started in the preamble of the Convention by uttering that the OIC is conscious of the negative repercussions of all forms of terrorism on the image of Islam, and announcing that Islam is innocent of terrorism in whatever forms that involve the killing of innocent people, which is forbidden by God. Also, it strongly condemns the perpetrators of cruel crimes, who pretend to act in the name of Islam or under any other pretext. In addition, in the samepreamble, the OIC reaffirms 'the legitimacy of the right of peoplesto struggleagainst foreign and colonialist and racist regimesby all means,(emphasis added) including armed struggle to liberate their territory Thoughthe OIC by saying"all means"meant only legal means,therefore terrorism, sinceit is not a legal method,should not be one of thesemeans. As the OIC went on saying in anotherparagraph of the samepreamble that the OIC is convincedthat 'terrorism can not be justified in any way, and that it should therefore be unambiguouslycondemned in all its forms andmanifestations, and its actions,means, andpractices, whatever its origin, causesor purposes,including direct or indirect acts of States'. Nonetheless,it should be noted that there is a great controversyon the questionof what constitutesa legitimate armed struggle in self-determinationand terrorism,especially when latter is usedby peoplewho are under foreign occupation. In short,neither of them is clearly defined. Furthermore,in the same preamble,the OIC recognizesthe growing links betweenterrorism and organized crime, including illicit trafficking in arms,narcotics, human beings, and money laundering. Although, the OIC did not explain these 246 growing links, this is an unprecedentedprovision in relation to other multilateral anti- terrorism conventions; especially those discussed earlier in Chapter 3, and it might help in urging the international community to pay more attention to this growing link, and to regulate it in the near future. Amongthe manyarticles provided for in the OIC Conventions,discussion will be limited to thosearticles of apparentimportance because of the subjectsthey intend to cover and the innovativeprovisions they afford in comparisonwith other anti- terrorismconventions discussed earlier. Unlike the other anti-terrorismconventions, which did not attemptto providea comprehensivedefinition of terrorism, rather definitions of some offences mostly favouredby terrorists,this Conventiondoes provide for sucha definition of terrorism. According to Article 1 (2) of this Convention,terrorism is 'any act of violence or threat thereof notwithstandingits motives or intentionsperpetrated to carry out an individualor collectivecriminal plan with the aim of terrorizingpeople or threatening to harm them or imperilling their lives, honour, freedoms,security or rights or exposingthe environmentor any facility or public or private property to hazardsor occupying or seizing them, or endangeringa national resource,or international facilities,or threateningthe stability, territorial integrity, political unity or sovereignty of independentStates'. Despitethe fact that providing an accepteddefinition of terrorism,which was consideredby manyscholars as a missionimpossible, is an inevitablestep in the right direction on combating terrorism, this definition however, like the many other 247 proposed definitions, can be criticised as over-inclusive in one sense and under- inclusive in another. It is over-inclusive becauseaccording to it every violent act could be consideredas a terroristact, sinceevery violent act will touch in one way or another on one or more of the broad targetsmentioned in the definition. For example,war crimeswill be consideredas terrorist crimesaccording to this definition. Although somewar crimesmay overlapwith terrorismtherefore may be both terrorism and a war crime simultaneously.For example,taking an unlawful actionby the army of one Stateagainst the civilian people of anothercan be both terrorism and a war crime. This is one of the featuresof this definition that it appliesto the actionsof individuals as well as to Stateswithout any differentiation. Nonetheless,there are someother war crimesthat cannotbe consideredterrorism because of the absenceof one or more the common featuresassociated with terrorism. These factors are the following: firstly, terrorismmay involve a threator use of violence;secondly, seeking to createa climate of fear in the public or sectionthereof; and thirdly, to achievea political objective. Therefore,the invasionof the territory of one Stateby anotherState in order to annexthe former to the invader'sterritory due to the victim Statebeing rich in natural resources,as in the case of the Iraqi invasion of Kuwait is more than terrorism,since the purposeof the invasionwas not to scarethe Kuwaiti peoplebut to eliminatethem. However,some of the acts committedby Iraq during the invasion mustbe consideredas terrorismaccording to the OIC definition, e.g., the firing of the Kuwaiti oil wells. Also, this definition doesnot require that the act, in order to be considered terrorist act, is committedin ftutheranceof a political objective. This character 248 distinguishes terrorism from other international crimes, like piracy, which will be consideredas an act of terrorism according to this definition. Conversely, this definition is under-inclusive becauseit requires that for an act to be considered as an act of terrorism it must be carried out to an individual or collective criminal plan, thus all violent acts which occur with no such plan, but rather as an immediate responseto something will be excluded form its scope. In paragraph(3) of the samearticle, the Conventionprovides a definition for terrorist crime, which is 'a crime executed,started or participatedin to realize a terrorist objectivein any of the ContractingStates or againstits nationals,assets or interestsor foreign facilities and nationalsresiding in its territory punishableby its internallaw'. Therefore, it is a terrorist crime to execute, start or participate in an act in order to achieve a terrorist goal as defined in the previous paragraph. But what about instigating or abetting such a crime? Would this be considered a terrorist crime? According to this provision, the answer should be negative. Moreover, it is a terrorist crime if it has been committed in any of the 'Contracting States or against its nationals, assetsor interests or foreign facilities and nationals residing in its territory so it is a terrorist crime if it was committed to realize a terrorist objective in the territory of any Contracting State, thus there is no need to add 'or foreign facilities and nationals residing in its territory', becauseit will be considered so, as long as it was committed in its territory. Also, in the English version of this Convention, this article used the word "residing", i. e., foreign nationals 249 i. residing in its territory, whereas in the Arabic version it used the word "existing", e., foreign nationals existing in its territory. Obviously the word "existing" is more extensive than the word "residing", which refers only to those who live therein. For instance, those who happened to be in the passenger lounge in the airport, because they were flying from one country to another but have to stop in a third country for flight connection, are not residing in that country rather existing therein. It should be noted that this Convention has been written in Arabic, English, and French and they are all of equal authenticity as stated in Article 42. Finally, anotherobservation that can be addedwhich relatesto the last five words of this paragraph,which read, 'punishableby its internal law', i. e., it is a terroristcrime, if and only if it is punishableby the nationallaws of the Contracting States. Thus a proper interpretationof this sentencewill lead to the conclusionthat although an act might constitutea terrorist crime accordingto this Convention's definition of terrorism,it will not be consideredso if it was not punishableby the internallaw of the concernedContracting State. Although in practiceit is likely to find such crimes are punishableby the internal laws of the ContractingStates, one cannotbe certainthat this is always the caseas will be discussedlater, in the next chapterthat Kuwait had enactednew laws in order to implementthe ICAO anti- terrorism conventionsand did not do so with respect to other anti-terrorism conventionsit had ratified, this is becausethe ICAO conventionshad criminalized new actsthat were not regulatedby the alreadyexisting Kuwaiti, Criminal Law. Thus it is better,in orderto avoid ambiguityand uncertainty, to do the opposite,i. e., require the crimes to be punishableby the internal laws of the Contracting States if constitutingterrorist crimes according to this definition. More significantly,it may be 250 considereda terroristcrime in one Stateparty to this Convention,but not in another, becauseit is punishableunder the law of the former Statebut not in the latter. Concernedthat this Convention does not cover all the aspectsof terrorism, the drafters added another paragraph to this article, which states that 'crimes stipulated in the following conventions are also considered terrorist crimes with the exception of those excluded by the legislators of Contracting Statesor those who have not ratified them', Article 1 (4). These conventions include the eleven conventions and protocols discussedearlier in Chapter 3, plus the UN Law of the SeaConvention of 1988 and its related provisions on piracy at sea. The most importantthing to be notedhere is that most of theseanti-terrorism conventionsdo not recognizethe right of self-determinationas a legitimatecause to commit any of the offencesthey covered,whereas the OIC doesnot want to call it terrorism in the first place. Therefore, no matter what the real cause behind committingany offencecovered by theseconventions is, the ContractingStates to the OIC Conventionmust treat it as a terrorist crime as long as they are party to the OIC Conventionand any of the relevantconventions from the twelve instrumentscounted in this provision. Realizing the discrepancy that the Convention appears to cause, especially in respect of peoples' right to struggle for self-determination; it provides in the subsequentarticle that 'peoples' struggle including armed struggle against foreign occupation, aggression, colonialism, and hegemony, aimed at liberation and self- determination in accordance with the principle of international law shall not be considereda terrorist crime', Art. 2 (a). 251 This is very natural since most of the countries members to the OIC are newly independent States and some of them achieved their independence through armed struggle with the occupying power. However, what it is not natural is that fact that this exception is very broad, i. e., it is not confined, as its language suggests,to the place that is under foreign occupation or domination, etc. Recognizing that the political offence exception is a serious obstacle that in shields the extradition of terrorists in many States, the Convention stipulates Paragraph (b) of the same article that 'none of the terrorist crimes mentioned in previous articles shall be considered political crimee. Hence, according to this provision, an act that constitutes a terrorist crime is an extraditable offence. It must not be consideredas a political crime regardlessof what its objective was or who the perpetrator was. Moreover, since, as provided in the previous article, it is also a terrorist crime to perpetrate any of the listed offences in the twelve instruments articulated in this Convention, whenever the relevant Contracting Statesare also party to the relevant instrument, and since some of these instruments refer to the national laws of the States Parties to decide the issue of extradition, whereas most of the national laws recognizethe political offence exceptionthus resulting in the non- extraditionof the allegedterrorist, as a result this provision overturnsthe referral provisionsin theseinstruments with respectto ContractingStates on issuescovered by anyof theseinstruments which they arealso party to. In addition,the draftersthought that theremight be someviolent actsthat are not coveredby Article I as terrorist crimes;therefore the perpetratorsof theseacts may enjoythe benefitsof beingconsidered as political offenders. In Paragraph(c) of this article, it provides that 'in the implementationof the provisions of this 252 Convention the following crimes shall not be considered political crimes even when politically motivated: I)- Aggression against kings and heads of State of Contracting States or against their spouses,their ascendantsor descendants; 2)- Aggression against crown princes or vice-presidents or deputy heads of governmentor ministers in any of the Contracting States; 3)- Aggression against persons enjoying international immunity including ambassadorsand diplomats in Contracting Statesor in countries of accreditation; 4)- Murder or robbery by force against individuals or authorities or means of transport and communication; 5)- Acts of sabotageand destruction of public properties and properties geared for public services,even if belonging to another Contracting State; and 6)- Crimes of manufacturing, smuggling or possessing arms and ammunition or explosivesor other materials preparedfor committing terrorist crimes', Art. 2 (c). In fact, thereare many comments about this provision. Firstly, when it speaks of "aggression",it doesnot specify what type of aggressionit is concernedwith. Criticism of the kings or presidentsor ministers,even from a mere political point of view, constitutesan act of aggressionin countrieswith totalitarianregimes and some membersof the OIC are known to be of this kind, e.g., the Iraqi regime. Secondly,it speaksof aggressionagainst those people without requiring that they must be in power,when the aggressionoccurred. Thirdly, thereis no mentionof membersof the parliaments,thus it suggeststhat attackingparliament members might go unpunished becausethe offender may be considereda political offender and may be given political asylum. Fourthly, in clausenumber 5, it says'even if belongingto another ContractingState', consequently,if it belongs to a third country that is not a 253 Contracting State, the offender might not be extradited becausehe was considered a political offender. Fifth and finally, it is possible that Contracting States will find it extremely difficult to stick to all of these provisions and not to grant the alleged offender the statusof political offender. Lastly, in Paragraph (d) of Article 2, the drafters of this Convention were aware of the growing links between terrorism and organized crime, like the illegal trafficking in drugs and human beings, and the crime of money laundering. Thus they pressedto include the Convention with a provision that regulates such links. Hence, the Convention stipulates that 'all forms of international crimes, including trafficking in narcotics and human beings, and money laundering aimed at financing terrorist objectives shall be considered terrorist crimes'. This provision is a very important one becausea crime like money laundering is not considered such a serious crime in some States. Thus by considering it as a terrorist crime if it has links to terrorism, the perpetrators of such a crime might face the more severe penalty prescribed for terrorists insteadof a lesserone of the money laundering offence. In Article 3, the drafters were concernedabout the measuresnecessary to preventand combatterrorist crimes and that includes;the obligation not to support terroristacts whether directly or indirectly, the obligationto preventsuch crimes from occurringby taking preventivemeasures similar to the ones discussedearlier in Chapter4, the obligationto combatterrorism by, for example,6arresting perpetrators of terroristscrimes and prosecutingthem accordingto the nationallaw or extraditing them in accordancewith the provisionsof this Conventionor existing conventions between the requesting and requestedStates', Art. 3 (B)'I'. This provision constitutesthe centralobligation of the anti-tefforismconventions discussed earlier in 254 Chapter3, thus most of the criticismsmentioned there with respectto the aut dedere aut judicare in these conventionswill, to a certain extent, be applicable to the obligationof this Convention. Understanding that exchange of information is an imperative component in any strategy to combat terrorism, the Convention in Article 4 requires such cooperation. However even more significantly, the Convention requires such cooperation in the investigation of such crimes. Contracting States are also required to cooperate with one another in improving education on terrorism. Despite the importance of such cooperation and assistance,there is no mention of cooperation or assistanceby providing one another with armed forces or at least police personnel that one of them might need in order to combat terrorists who may, in some cases, be better armed than the State forces. Algeria, for instance,might be one of the countries that desperately need such cooperation or assistance. Furthermore, there is no mention of assistancebetween Contracting States by providing money to a State that needs financial help. In order to make the potential targets of terrorism harder to attack, or to buy detective devices, more money is needed and some States do not have such money. Nonetheless,such an ideal requirement of providing armed forces or money is unlikely in any casebecause States do not want to implicate themselvesis such a legally binding document. Being awareof the importanceof extraditionas an effective weaponin the war againstterrorism, the Conventiondevotes many of its provisionsto explainingthe rules of such a process. For example,Article 5 provides that has been discussed earlierby sayingthat 'ContractingStates shall undertaketo extraditethose indicted or 255 in convicted of terrorist crimes, requested for extradition by any of these countries compliance with the rules and conditions stipulated in this Convention'. However, what is unprecedentedcompared to other anti-terrorism conventions is Article 6, which started by stating 'extradition shall not be permissible in the following cases'. This is not the typical aut dedere aut judicare principle, which usually leaves the choice to the requested State that if it does not extradite for any reason, it shall submit the case to the competent authority for the purpose of prosecution. Whereas in this case the requested State does not have the choice of extradition but the obligation, in some cases,to prosecute. The article continuesarticulating the casesin which extraditionshall not be permissibleas the following shows: (I)- 'If the crimefor which extraditionis requestedis deemedby the laws enforcedin the requestedContracting State as one of a political natureand without prejudiceto the provisions of Article 2, Paragraphs2 and 3 of this Convention for which extraditionis requested'. Thus, if the requestedState thought that the crime for which extraditionwas requestedwas, according to its nationallaw, of a political nature,it will not havethe choiceof extraditionany more, ultimately, it will be better for the requestedState to decidefirst whetherit wantsto extraditeor not, and if the answeris in the affirmative, it shouldavoid discerningthe natureof the crime whetherpolitical or not. This will be the casein the absenceof an effectivejudicial systemwhich most of theseStates are sufferingfrom. However,by virtue of the last conditionwhich providesthat this 256 will not 'prejudice the provisions of Article 2, Paragraphs2 and 3 of this Convention, it will be very rare to seeany terrorist who can benefit from this exception. 'If the crime for which extradition is sought relates solely to a dereliction of military obligations'. It is not comprehensiblewhat the draftersprecisely meant by 'dereliction of military obligations' and why did they do so since this Convention is mainly concerned with terrorism, unless such a dereliction often involves committing a terrorist crime, this can be inferred by the words 'relates solely' which suggeststhat it might relate to but not solely. The only explanation of the inclusion of this provision is that theseStates are extremely careful to cover all terrorist crimes. (3)- 'If the crime for which extraditionis requested,was committedin the territory of the requestedContracting State, unless this crime hasundermined the interestsof the requestingContracting State and its laws stipulatethat the perpetratorsof thosecrimes shall be prosecutedand punished providing that the requestedcountry has not commencedinvestigation or trial'. Therefore,according to this provision when a crime is committed in the territory of State A, and the terrorist remains in this State, such a State has the right to refuse the request for extradition from State B with respect to the alleged terrorist. However, as an exception from this rule, which itself is an exception from the general rules of extradition, State B has the right to request the extradition of such a person when: (i)- the requestedperson remains in StateA; 257 (ii)- his crime has effects by way of undermining the interest of State B; (iii)- the relevant law exists; and (iv)- StateA has not commencedinvestigation. This provision has a very significant relevance for clandestine terrorist activitiesin which Stateis implicated. For example,if terroristskidnapped nationals of StateB while there were in StateA, and they did so with the acknowledgeor acquiescenceof the former. In sucha case,State B will havethe right to requestthe extraditionof thoseterrorists who were not prosecutedby the territorial Statewhich wasaccomplice in their terroristactivities. 'If the crimehas been the subjectof a final sentencewhich hasthe force of law in the requestedContracting State'. Therefore,the requestedState could, in order to make such a request of extraditionimpermissible in accordancewith the Conventionand thus avoid being blamed,conduct a shamor a summarytrial with a final judgmentthat hasthe force of law in conformitywith its nationallaw. (5)- 'If the action at the time of the extradition request elapsedor the penalty prescribedin a accordancewith the law in the Contracting State requesting extradition'. This is a very importantguarantee to the accusedas well as to the States concerned. For the accused,this will assurehim that he will not be a fugitive all his life, thus he can, after a certaintime, get back to his nonnal life. For the relevant 258 States, either the requesting State, which in this case must do its best to capture the State accusedcriminal as soon as possible or he will go unpunished, or the requested had which in this casewill not be botheredby a request for a person who committed a crime a long time ago (40 or 50 years) and has lived peacefully in the requestedState and has a family therein. However, the laws in this matter vary from one country to another. For example, in Kuwait, 30 years must pass in order for the punishment for a crime sentencedby the death penalty to lapse, whereas in other countries such a penalty does not lapse ever. Moreover, another question to be askedhere is, whether the crime which penalty has lapsed in the requesting State, but has not lapsed in the requestedState, should be prosecuted,and the alleged offender brought to justice? (6)- 'Crimescommitted outside the territory of the requestingContracting State by a personwho was not its nationaland the law of the requestedContracting State does not prosecutesuch a crimeif perpetratedoutside its territory by sucha person7. Unlike the anti-terrorismconventions, which make the mere presenceof the alleged offender in the territory of any Member Statesa basis of jurisdiction to prosecutehim if it decidednot to extraditehim, this Conventiondoes not do this. Hence,in order to prosecutesuch a personwho will neither face any prosecutionin the requestedState in accordancewith its internal laws, nor face extradition as this provisionprovides, the Statesconcerned must implementthis Conventionand amend their nationallaws by makingsuch a terrorist crime subjectto prosecutioneven when committedoutside their territory by such a person. If they do so, casesunder this provisionwill be unlikely to be exemptedfrom extradition. As in the caseof Ex parle 259 Pinochet(1999), 22 in which the Houseof Lordsreplace its early decisionthat Senator Pinochetwas not entitledto immunity to immunity in respectof any of the crimes [genocide, terrorism, hostage taking, and torture] alleged against him. In its subsequentdecision the House of Lords held that (i) the offencesalleged in the Spanishrequest were extraditioncrimes of the purposesof the ExtraditionAct 1989 only in so far as they were committedafter 29 September1988, when torture outside the United Kingdombecame an offenceunder English law, and (ii) SenatorPinochet had no immunityin respectof Extraditioncrimes committed after 8 December1988, when the instrumentratifying the InternationalTorture Conventionwas depositedby the UnitedKingdom. (7)- 'If pardon was grantedand included the perpetratorsof these crimes in the requestingContracting State; and (8)- If the legal systemof the requestedState does not permit extraditionsof its nationals,then it shall be obligedto prosecutewhosoever commits a terrorist crime if the act is punishablein both Statesby a freedomrestraining sentence for a minimum period of one year or more. The nationalityof the personrequested for extradition shall be determinedaccording to the date of the crime taking into account the investigationundertaken in this respectby the requestingState', Art. 6. The Conventionin the last provision recognizesthe tradition of some States which do not extraditetheir nationals,however, by adding that the requestedState 'shall be obliged to prosecutewhosoever commits a terrorist crime if the act is punishablein both Statesby a freedomrestraining sentence for a minimum period of 22 SeeR. v. BowStreet Metropolatin (Ex PartePinochet), [200011 A. C. 14. For moredetails on this case,see Chapter 3 page128. 260 one year or more'. The provision suggests that in all of the previous cases the requested State is not obliged to prosecute. Moreover, the same can be said with regard to the requirement of the dual criminality and minimum period of freedom restraining punishment. Thus, if the requestedState decided to prosecutein any of the previous cases, it would not be required to consider these conditions. Also, this provision might be in conflict with the laws of some of the would-be Contracting States, e.g., Kuwait, because the Kuwaiti Constitution prohibits the extradition of Kuwaiti citizens no matter when they acquired their nationality either before or after the date of the crime. If as suggestedabove the appropriateinterpretation of the previousprovision requiringthat the crimemust, in both (requestedand requesting)States, be punishable by I year or more of custodial sentence,this implies that in other casessuch a requirementdoes not exist. Becausesome States extradite only thosewho committed a felony not a misdemeanour,and that might causea differencein practiceamong ContractingStates, as a result of their different interpretationson what constitutes seriouscrimes. Therefore,States vary on what constitutesa felony or misdemeanour. To avoid suchconfusion, Article 8 providesthat 'for the purposeof extraditingcrime perpetratorsaccording to this Convention,the domesticlegislations of Contracting Statesshall not have any bearing as to their differenceswith respectto the crime beingclassified as a felony or misdemeanour,nor asto the penaltyprescribed for if. Another article worthy of note is Article 15 which declares,in part, that 'if judicial competenceaccrues to one of the ContractingStates for the prosecutionof a subjectaccused of a terroristcrime, this Statemay requestthe countrywhich hoststhe suspectto prosecutehim for this crime subject to the host country's consentand 261 providingthe crime is punishablein that countryby a freedomrestraining for at least one year or more severesanction. In sucha casethe requestingState shall passall investigationdocuments and evidence related to the crimeto the requestedState. Accordingly, if the host country which this provision is talking about is a Contracting State, this means it is not obliged to prosecute in the first place. Such a situation is not possible with respect to those who are party to the anti-terrorism conventions, because the strict compliance with the principle of aut dedere aut judicare provided thereof, means that the State where the accusedis present (the host country in this case) is obliged to prosecute if no other States have requested his extradition, or if such requestwas refused. Thus under the anti-terrorism conventions, the relevant State can, if it wants the accusedto be prosecuted in the country where he was found, refrain from requesting his extradition. This obligation can also be implied from Article 3 (B)(1) of this Convention which requires Contracting Statesto take all the necessarymeasures to combat terrorism including 'arresting perpetrators of terrorist crimes and prosecuting them according to the national law or extraditing them in accordancewith the provisions of this Convention'. Moreover, this provision seemsimprobable because such an unconnected State,especially if this countryis not a ContractingState, will prefer to extraditesuch an accusedperson rather than prosecutinghim and bearingthe consequencesof sich action,especially if this personis a memberof a powerful terroristorganization. In addition,Article 17 Paragraph(2) providesthat 'the requestingState shall not bring to trial or retrial the accusedsubject unless the requestedState refused 1r) 262 in prosecute him'. This means that the requesting State shall not try the accused absentia,unless the requestedState refused to prosecutehim. In Article 28, the Convention realized that the requested State may receive many requestsfor extradition from many States,so then the question would be which of these requests has the priority over the others, (note that this problem was not addressedby the anti-tefforism conventions discussedearlier). Thus it provides that 'if the requested State received a number of extradition requests from various countries related to the same or diverse acts, this State should decide upon these requests bearing in mind the circumstances and in particular the possibility of subsequentextradition, date of receiving the requests, degree of the danger of the crime and where it was committed. Another distinguishingcharacter of this Conventionis the non-allowanceof insertingany reservationof any kind on any of its provisions. Although the right to insert a reservationmay give incentivesto the Statesconcerned to becomeparty to this Convention,it in fact, reducesits real effect. To this end, Article 41 of the Conventionprovides that 'it is not permissible for any ContractingState to makeany reservation,explicitly or implicitly in conflict with theprovisions of this Conventionor deviatingfrom its objectives'. In general,although this Conventionaddressed many issues that werenot dealt with in previousanti-terrorism conventions, there are, to say the least,three important shortcomingsof the other anti-terrorismconventions that are not addressedin this Convention: Firstly, this Conventiondid not addressthe case where one State 263 requeststhe extraditionof the allegedoffender but doesnot intendto prosecutehim. Secondly,this Conventiondid not addressthe substantialdifferences in sentences amongContracting States when decidingto prosecutethe allegedoffender. Thirdly andmost importantly is the evidentabsence of any enforcementmechanism that must be takenif any ContractingState fails to live up to the legal obligationsit incurredby the virtue of this Convention. As of I July 2000, only 3 Stateshad signed this Convention and no State had ratified it. Therefore, for this Convention to enter into force it must be ratified by at least seven Statesin order for this Convention to come into force. As in the words of Article 40 which stipulates, in part, that 'this Convention shall enter into force thirty days after the deposit of the seventh instrument of ratification or accession at OIC GeneralSecretariat. The fact that this organizationconsists of more than fifty-six membersshows the importancethat this Conventionmight have if brought into force in combating internationalterrorism, especially if all these Statesdecided to becomeparty to it. However,an unpleasantsignal by the would-be parties to this Conventioncan be obtainedby searchingthe actionsthat are takenby someof them. For example,now the newspapersare talking about a negotiationof a possiblebilateral treaty between SaudiArabia and Iran, both being membersof the OIC, on issuesof security of commonconcern including terroriSM? 3 This implies that either both or one of these countrieshad alreadyintended not to becomeparty to this Convention,otherwise therewould be no needto addressthe issueof terrorismsince it would have already been coveredby the OIC Convention,unless the provisions of the treaty they are 23Al-Watan News Paper, 16/4/200 1. 264 intending to agree upon are far more advancedthan the ones included in this Conventionor theseStates believe that the OIC Conventionwill not comeinto force. 6.3. AS A MEMBER OF THE LEAGUE OF THE ARAB STATES24 No country in the world are immune from terrorist attack, and the Arab countries found themselvesvulnerable to such acts. Some of the Arab countries have suffered from acts of terrorism even more violentý either in scale or gravity, than the ones experiencedby many other States. For example in Algeria, it has been reported that since the start of the cycle of violence in 1992, more than 150 thousand people have lost their lives. This is in terms of human life lost, in terms of economic loss, due to terrorism,Egypt providesa good example. In a single year, the number of touristsvisiting Egypt fell from 2918thousand in 1992-93to 2359thousand in 1993- 94. The numberof tourist nights fell from 18,997in 1992-93to 13,687nights in 1993-94.25Other countrieslike Lebanon,Somalia, Sudan, Bahrain, Kuwait, Yemen, and Saudi Arabia, all on varying scales,have suffered from terrorism and have decidedto actwithin the Arab Leagueto counterthis phenomenon. Thereis no needto mention all the resolutionsadopted by the Arab League condemningterrorism, becausethey are too many, and becausethese resolutions, despitethe fact that they are importantin delivering a strongmessage to the whole 2' The Leagueof Arab Statesis a voluntaryassociation of independentcountries whose peoples are mainly Arabic speaking. Its stated purposesare to strengthenties among the Member States, coordinatetheir policies,and promotetheir commoninterests. It was found in Cairo in 1945by Egypt, Iraq, Lebanon,Saudi Arabia, Syria,Transjordan (Jordan, as of 1950),and Yemen. Countriesthat later joined are: Algeria (1962), Bahrain (1971), Comoros(1993), Djibouti (1977), Kuwait (1961), Libya (1953),Mauritania (1973), Morocco (1958), Oman (1971), Qatar (1971), Somalia (1974), Southern Yemen Yemen(1967) later united with and becameone member,Sudan (1956), Tunisia (1958), and the UnitedAran Emirates(197 1). "A SymposiumOn Terrorism,A SeminarOrganized By The Gulf Centre For StrategicStudies In Cairo,13 (Dr. OrnarAl-Hassan ed., V Dec. 1997). 265 world, including terrorists, that they do not approve of their acts and will not tolerate them, do not oblige Member Statesto act in any way. For example, in Res. 4654/1987, the League stressed the need for an international conference to be organized under the auspices of the UN in order to discuss the issue of terrorism, and to arrive at a clear and legal definition of this phenomenon therefore distinguishing it from the national struggle in self- determination. When the UN General Assembly recognized such a need for an international conference to discuss the issue of terrorism, the Arab League adopted a new resolution urging the Arab States to respond by forming a committee of representativesftorn these Stateswho have expertise in this field. Consequently,a joint definition was preparedand submittedby theseexperts definingterrorism as 'any organizedact of violenceor threat which posesa stateof panic through murder, assassination,hostage taking, aircrafts or ship hijacking, explosionsas well as any other acts that create a state of terror, disorder or disturbanceaiming at the achievementof political objectiveswhether underw&en by a Stateor individualsagainst another State or individuals in circumstancesother than the legitimatenational armed struggle for liberation and independenceagainst all forms of foreign control or colonial racial forces etc., particularity the liberation movementsrecognized by regional organizations,the UN and the international communitywhose activities are directedagainst the military and economictargets of the colonizationforces or occupierwithin the occupiedterritories. The terrorist crime shallbe deemedas internationalif the nationalitiesof the criminals or the victims are 266 differentor if the crime is committedon the territory of a third party or representsa violation of the rules of the internationallaw, particularly the disturbanceof the internationalpeace and security,or leadsto the worseningthe relationsbetween one Stateand another '. 26 This definitionis so comprehensivethat eventhe Arab Statesdid not stick to when adoptinga new definition of terrorism in the Arab Conventionas will be discussedlater. However,a key sentencecan be found in this definition,which, if it reflectsthe real practiceof the States,will clarify a lot of confusionexisting between terrorism and the legitimateuse of force in self-determination.That is, it is not terrorismif the activitiesof the recognizedliberation movements are directed'against the military and economictargets of the colonizationforces or occupierwithin the occupiedterritories'. Althoughthe termseconomic targets are so elastic,it shouldnot includecivilians. Also, it is terrorismno matterwho are the perpetratorsor the targets if committedoutside the occupiedterritories. However,the adoptionof thesekinds of resolutionswas a very importantstep towardsthe adoptionof a legally binding documentupon Statesthat becameparty to it. This is exactly what happenedin the Arab League,after the adoptionof many resolutionscondemning terrorism, Member Statesdecided to take a step further in fightingterrorism by adoptinga conventionon combatingterrorism: 26Arab League Res. 4781/AC/89,2/4/88. 267 6.3.1. The Arab Convention for the Suppression of Terrorism (The Arab Convention) On April 4,1998, in Tunisia, twenty-two Arabic States, including the Palestinian Authority, agreed by consensusand signed the 'first ever common Arab 7 Convention on combating terrorism, as one newspaperdescribed itý They all agreed and provided in the Convention that it will come into force thirty days after the depositing of ratification or accessioninstruments by the one third of these States,i. e., sevenStates. The first thing to be observed about this Convention is the fact that it is relatively identical, with only slight differences, in its provisions, to the OIC Convention. Consequently,one might ask why the Arab countries, since they are all membersto the OIC, wasted their time and resourcesto adopt a convention so similar to the one that already been drafted. It should be noted that although the Arab Convention appearedofficially before the OIC Convention, its early preparation and drafts were conducted at the same time with the OIC Convention therefore the Arab Statescould have stopped working on this Convention and waited for the OIC draft convention to finish. The answer to this question might be one of four: Firstly, these countries may not have intended to be under obligation to other OIC non-Arab Memberswhich they do not trust. Secondly,or alternatively they do not trust themselvesto live up to their obligationsin their relationswith theseStates. Thirdly, they do not think that the OIC Conventionwill come into force. Fourthly, the slight differencesbetween these conventionsmight be the reason that causedthe Arab countriesto adopta new convention. ' SeeAl-Watan Newspaper (Thursday 23d April, 1998). 268 Among the few differencesbetween the two conventionsthat can easily be spotted is Article 1, in particular the definition of terrorism and terrorist crime. Accordingto Article 1, Paragraph(2) of this Convention,terrorism means'any act or threatof violence,whatever its motivesor purposes,that occursfor the advancement of an individual or collectivecrin-drial agenda, causing terror amongpeople, causing fear by harmingthem, or placingtheir lives, liberty or securityin danger,or aiming to causedamage to the environmentor to public or private installationsor propertyor to occupyor seizethem, or aimingto jeopardizea nationalresource. Accordingly,many words were droppedfrom this Conventionthat were used in the OIC Conventionthese include 'honour' and 'rights' in addition to the listed items that terrorismmay imperil. Also, there is no mentionin this definition of the targetingof 'internationalfacilities, or threateningthe stability, territorial integrity, political unity or sovereigntyof independentStates, which is providedfor in the OIC Convention. Thus accordingto this definition, the occupationof a part of a country becauseof its strategiclocation by a terroristorganization, like the Tamil Tiger which is occupyinga significantpart of the territory of Sri Lanka and launchesits attacks against the governmentfrom there, will be excluded from the coverageof this Convention,since it is only in violation of the territorial integrity or political independenceof the victim Statewhich is not providedfor in this Convention,while it would be terrorismaccording to the OIC definition. Furthermore,Paragraph (3) of the samearticle definesterrorist crime as 'any offenceor attemptedoffence committed in furtheranceof a terrorist objectivein any of the ContractingStates or againsttheir nationals, property or interests,that is punishableby their domestic law. The offences stipulated in the following 269 conventions, except where conventions have not been ratified by Contracting Satescr where offences have been excluded by their legislation, shall also be regarded as terrorist offences: I)- Tokyo Convention 1963 2)- Hague Convention 1970 3)- Montreal Convention 1971 4)- New York Convention 1973 5)- HostagesConvention 1979 6)- UN Law of the SeaConvention 1988' Therefore,it is not only instigationor abetting,which are not mentionedeven in the OIC Convention,and are not terroristcrimes here, but participationalso, which is evenmore serious,and is not consideredas a terroristcrime eventhough it would havebeen committed to realizea terroristobjective. Moreover,it is a terrorist crime to executeor start any crime in order to realize a terrorist objective in any of the ContractingStates, this will includeany attackno matterwhat the target'snationality wasas long it wascommitted in the territory of the concernedContracting State. Additionally, as in the criticism of the similar provisions of the OIC Convention,the samecan be said here. Providing that a crime, in order to be a terrorist crime, to be punishableby the internal law of the ContractingStates runs counterto the purposeof the adoptionof this Conventionin the first place, which includes,among other things, making terrorism a crime punishableby the internal laws of ContractingStates, but not the opposite. This problematicprovision caused Kuwait to suggestthat this paragraphshould be droppedand substitutedby another paragraph,which read that the Contracting States are committed to taking the 270 necessarylegislative measuresto ensure the implementation of the provisions of this Convention, in particular, making such acts mentioned above in paragraph (2) as 8 crimes and setting up the appropriate penalties? Moreover,the numberof conventionscounted in this article is lessthan those countedin the similar article of the OIC Convention,(6 conventionsin the Arab Conventionand 12 conventionsin the OIC Convention). It is not clear why they excludedthe othersix anti-terrorismconventions. The reasonmight be similar to the one providedby Kuwait when askedfor the reasonfor not signing some of these conventions,that either they did not deal directly with terrorism or they hardly coveredreoccurring acts. However,such reasoning, if accepted,is not applicableto all of these conventions. For example,the Anti-Bombing Conventionis dealing directlywith terrorismand it is dealingwith a constantlyreoccurring act. Another remarkabout this provision,which can also be said with respectto the similar provisionof the OIC Convention,is that the listing of theseconventions andprotocols was donein a restrictiveway, i. e., whateverconvention will be adopted in the futurewill not be amongthese listed instruments. One of the main differencesbetween the Arab Convention and the OIC Conventioncan be found in Article 2 of both. While Article 2 (a) of the OIC Convention declares that peoplee struggle for self-determinationshall not be considereda terroristcrime, Article 2 (a) of the Arab Conventionstates the samebut adds'This provisionshall not apply to any act prejudicing the territorial integrity of 28 Ministry of Justice MemorandumOn The Draft Ambic Convention On Combating Terrorism (6/2/1996). 271 any Arab State'. (i. e., it will not be considered an act of a legitimate self- determination). The addition of this concluding sentencecame after the Moroccan delegation protesteda provision identical to the one of the OIC Convention in the early draft of the Arab Convention by saying that such an exception is very broad, does not have any accurate boundaries, and might result in opening the door for more unneeded tensions and strains in relations between Arab countries. The thing that was not said by the Moroccans which can explain its concern is the Sahara problem, which involves allegations against the Moroccan government of silencing the people of Sahara'svoice for self-determination. The other reasonthat might be behind the inclusion of this sentenceis the fact that many Arab States, not only the Moroccan, seem to have concerns about their territorial unity becauseof the fact that in many of these States there are minority groups, who if they have the chance to liberate themselves they will instantly. Take Iraq for example, in Iraq there are the Kurds in the North and the Shiites in the South and both groups are looking for the chance to become independent from Iraq and they haveused force in orderto achievethat. Thus to have a provision like the one in the OIC Convention is equal to saying that, though indirectly, every minority group can struggle for national liberation and may not be considered terrorists even if their acts were directed against the Contracting States. However, the Arab States realised this gap and closed it by providing that such struggle might be considered as legitimate, if and only if, it had not prejudicedthe territorial unity of any of the Arab States. 272 Of the same article Paragraph (b) (2) was severely criticised by the Kuwaiti National Assembly, by the then President of the Assembly, who said that to state that among the crimes which shall not be consideredpolitical crimes even when politically is motivated: '(2)- Aggression against.. ministers in any of the Contracting Statee, very undefined becausethe word "Aggression" is very elastic with no clear limits. It is not clear, he pointed out, whether aggressionhas to be a material aggressionor if a verbal one will suffice. In addition, neither in Article 2 nor in the preamble did the Arab Convention mention the other organized crime, like illegal trafficking in narcotics and human beings or money laundering, even if aimed at financing terrorism, as does the OIC Convention. Furthermore,Article 3 of this Conventionprovides that 'the ContractingStates undertakenot to organize,finance or commit any terrorist acts or to be accessories thereto in any manner whatsoever. In their commitmentto the prevention and suppressionof terrorist offences in accordancewith their domestic laws and ' procedures.. Althoughthe counterpartarticle of the OIC Conventionis basicallyidentical, thereis a little differencethat might havea different impacton ContractingStates. In the Arab Conventionthe last clausewas to prevent and combatterrorist crimes'in accordancewith their domesticlaws andprocedures', whereas in the OIC Convention it says 'in conformity with the provisionsof this Conventionand their respective 273 29 domestic rules and regulations'. This latter provision is more accurate than the previous one becauseit is more consistentwith the purpose of this convention which is to deal with terrorism in the way required by the convention, and not to refer only to the national law which is, in most cases,inadequate and does not cover all newly developed aspects of international terrorism. In some cases national law is in compliance with the convention if it implements the provisions of the Convention, but since not all States fully implement the Conventions they are party to, and some of them if they do, they do it after a very long time and some terrorist crimes may be committed between the time of ratifying the convention and the time of implementation. Also, amongthe casesin which extraditionis not permissible,which are all similar to the onesstated in the OIC Convention,is casenumber (d) which provides as in the OIC Conventionthat extraditionshall not be permissiblein a case'if a final judgmenthaving the force of resjudicata hasbeen rendered in respectof the offence in the requestedContracting State, the Arab Convention adds 'or in a third ContractingState', Art. 6 (d). Therefore,if the requestedState was willing to extradite the requestedperson to the requestingState, such willingnessmay be restrainedby anotherContracting State which claimsthat this crime hasbeen the subjectof a final sentencewith the force of law, andthe resultwill be that the requestedperson will not be extraditedto any ContractingStates even to the third ContractingState, because the first sentenceof this articlestates that extraditionshall not be permissible. Unlike the OIC Conventionwhich doesnot require crimesto be extraditable, crimesto be punishablein both the requestedand requestingStates by a custodial 29OIC Convention, Art. 3, Para. (4). 274 for sentencefor a minimum period of I year or more, the Arab Convention provides such a requirement, Art. 8. However, neither conventions provide for the speciality principle, i. e., the extradited person shall only be prosecuted for the crime or crimes for which he was requested. This is a very important guarantee for such a person, becauseStates might abuseextradition rules in order to prosecute individuals for non- extraditable offences, if they know that if the request for extradition includes such crimes it will be refused. Nonetheless,the speciality principle may be considered as part in customary international law as a result of its broad based acceptanceby all States, which provided for it in many of international instruments they conclude. Thus, this principle, one could argue, is not dependent on any treaty and will be observedin all cases. Finally, in the OIC Convention, Article 42 stipulates that withdrawal from the Convention 'shall be effective six months after the date the request is addressedto the Secretary General'. Accordingly, it is not certain what the status is of requests that were made during this period, i. e., after the request for withdrawal and before the lapseof six months. The Arab Convention closed the door, for such unwanted dispute triggered provision, and provides that the provisions of this Convention will apply to requeststhat were made before the lapse of this period, Art. 42. As in the OIC Convention,this Conventiondoes not include any enforcement provisionsin case it was violated by any ContractingState. The Minister of the Interior of the United Arab Emiratesrealized such a vital absenceand recommended thata boycottmust take place if any ContractingState fails to live up to its obligations under this Convention. He also added, though already included in the first recommendation,that a boycottmust follow if it was proven that a ContractingState 275 has been involved in sponsoringterrorism against any member by providing weapons, o sanctuary,funds, or training to any terrorist element? It is not clear what kinds of boycott he was suggesting. Contracting States adoptedno sanctionsof any kind, notwithstandingits apparentimportance in securing compliancewith the provisions of this Convention. Currently this Convention is in force after many more Arab States have 31 ratified it than the threshold requirement of ratification demands. These are the countries who became party to it: Palestine3/6/98, Bahrain 28/6/98, United Arab Emirates 9/12/98, Egypt 14/12/98, Saudi Arabia 28/l/99, Algeria 9/3/99, Jordan 7/4/99, Tunisia 22/4/99, Sudan 24/4/99, Libya 10/6/99, Yemen 9/8/99, and Oman 25/10/99. 32 6.4.AS A MEMBER OF THE GULF COOPERATION COUNCIL. (GCC) The GCC is the smallestorganization compared with the OIC or the Arab League. It consistsof six Arabic States(Bahrain, Kuwait, Oman, Qatar, Saudi Arabia,and United Arab Emirates)because of their locations,which overlook on the ArabianGulf. 30See Al-Qabas Newspaper, (Thursday 23d April, 1998). 3' This Conventionentered into forceon 7/511999. 32On May 26,1981, an agreementwas signedbetween the six conservativemonarchies of the Gulf (SaudiArabia, Bahrain, United Aran Emirates,Kuwait, Omanand Qatar)to coordinatetheir economic, political, culturaland securitypolicy, thus creatingthe CooperationCouncil for the Arab Statesof the Gulf, betterknown by its acronymGCC. The SupremeCouncil is the highestbody, madeup of the Headsof memberStates, which meetstwice a year. The SupremeCouncil definesthe generalpolicy. A ConciliationCommittee is attachedto the Council to serveas a mediatorin casesof disagreement betweenmembers. Decisionsof the Conciliation Committeeare binding as to interpretationof the rules. The SupremeCouncil, and the GCC as a whole, operateon the unanimity principle. The Council of Ministers,made up of ForeignMinisters of the Member States,meets every month. Its main tasksare preparing the sessionsof the SupremeCouncil, drafting recommendations and launching joint projects. It also supervisesthe work of the SecretariatGeneral. The only permanentbody of the GCC is the SecretariatGeneral. Thereare also specificcommittees which deal with economic,social andcultural cooperation as well asboth internaland external security. 276 On many occasions,the GCC condemnedterrorism and warnedits Members against becoming targets of it. By way of encouraging its members to take all precautionary measures,the GCC always cites, as examples, three of its Members who suffered from terrorism. Thesecountries are: Kuwait, which suffered the worst type of terrorism, as the GCC described,because of the Iraqi invasion; Bahrain,which sufferedfor morethan a year from violencecommitted by some individuals, incited and sponsoredby Iran which shared their ideologicalinspirations; and SaudiArabia, which was the victim of two big terrorist attacksin less thana year,the Dhahranand Riyadh incidents, in 13/11/1995and 26/6/1996. Believing that the threat to the security of one Member is a threat to all members,they all agreed,though in a non-bindingdecision, to supportany Member in any actionit takesto suppressand counterterrorism and to line up with it until it reachedthe total recovery. Although, it was not clear how they were going to support the victimized Member,an actionwas takenby Kuwait which might help in this regard. During the era of violencein Bahrain,three Bahrainis were caught in Kuwait and imprisonedfor three years in relation to terrorist activities they were accusedof committing in Bahrain. Informationis not availableon whetherthose people had beenrequested for extraditionby Bahrainor not. A recent new developmentin this field was the participation of the GCC Membersin the Sharm.AI-Sheikh Peace Makers Summit in Egypt on March 13,1996. 277 3 Suppressionof terrorism was among the declared objectives of that Summit? In a statement issued by the Summit, the participants reaffirmed their condemnation of terrorism in all its forms and whatever its causes,and whomever its perpetrators. That includes, the statementstated, the latest terrorist attackson Israel.34 This was the first time the Gulf countriescondemned a violent attackagainst Israel, and it was the first time ever they describedsuch attacksundertaken by the Palestiniansas terrorist attacks. This however,corresponds to what had been said earlier in SectionI of this Chapter,that many Arab countries,two of them from the Gulf countries,have starteddiplomatic relations with Israel, and more importantly, sincethe SecondGulf War relationsbetween the Gulf countriesand US (the sponsor of the Summit)have become very close. Thus the pressureexerted by the US to gain their supportwas not ashard as it hasbeen in the pastfew decades. In an effort to implementthe Summit Statement,especially with respectto terrorism,a first meetingtook placein the AmericanForeign Ministry in Washington DC, between22-2913/1996, in order to searchfor effective measuresto suppress terrorism. The GCC participated in the meeting along with experts on combating terrorism and diplomats from 27 countries. Among the important things the participantsagreed upon were the following: Terrorism is a crime and there is not any political justification that validatesthe killing of innocentpeople; 33The Gcc General Secretariat's Memorandum On Terrorism. 3' Ibid. 278 Extradition is an effective weapon in the war against terrorism, thus States must enact regulations that facilitate extradition, or at least use the existing extradition laws in more consistentway; Political asylum laws can be abusedby terrorists, therefore these laws must be improved to prevent such abuseor to make it more difficult; and Fund raising of terrorist organizationsis vital to them to carry out their activities, hence ways must be found to reduce such fund raising, if it is not 35 possible to eliminate. The fact that the Gulf countries are also membersto the OIC and Arab 36 League,concluding a new anti-terrorismconvention was not of a much concern. However,from 1981until 1994,the Gulf countrieshad tried to agreeon a convention on securitythat might coverterrorism as well as manyother crimes. Therefore,it will be useful to highlight the provisionsof somearticles of this conventionthat may in oneway or anotherrelate to terrorism. 6.4.1. The GCC Convention On Security Between Member States. (GCC Convention) In a very broadterms Article I of this Conventionprovides that StatesParties are obligednot to harbourthose who violated the law or order of any StateParty, whetherthey arenationals of any of the Gulf countriesor not, or to encouragethem to continuein their harmful directionagainst the securityof their countriesor to supply them with arms or money,or to train them in committing violent acts or sabotage. Also to suppresstheir hostile activities towards any of the Gulf countries,and to 35Ibid. 36Bahrain, Oman, Saudi Arabia, and United Arab Emirates are all parties to the Arabic Convention. 279 if return them, after taking appropriate measuresagainst them, to their countries, they are nationalsof any of the Gulf countries. No mention has been made of terrorism in this article explicitly, though it is implicitly included therein, because violating law and order of any country could include any crime as serious as terrorism or as trivial as pick pocketing. Basically all crimes are in violation of the law and order of any of the Statesconcerned. Moreover, the law and order of any State is different from the law and order of another State, thus the provision might cause different interpretations,each of which correspondsto the law and order of eachmember. However,by stating that StatesParties are obliged not to provide arms, money,or training,it seemsthat the Gulf countrieshad terrorismin their mind when drafting this article. Another point to be noted about this article is that it obliged StatesParties to returnthe allegedoffender to their own country,if he was a national of any of the Gulf countries. Thus if that personis not a nationalof any of the Gulf countries,the StateParty on the territory of which he was found is not obliged to returnhim to any of the Gulf countrieseven if he violated the law or order of any of them. Also, this articlestates that to returnthe allegedoffender after havingtaken the appropriatemeasures against him, it is not clear what they mean by appropriate measures.In otherwords, does that includeprosecution because, if it does,this article is in conflict with the typical aut dedereautjudicare principle, which obligesStates either to extraditeor prosecute,not both as suggestedby this article, unless they meantreturning him afterconviction in orderthe jail sentencein his country. 280 Next, in Article 2 of the GCC Convention, it re-emphasisedthe old concept of State sovereignty and the right of every State not to be interfered with its internal affairs, however, this time the fear from intervention is not from other States,but from individuals. Accordingly, it states that each State Party is obliged to take all necessary measuresto prevent its nationals, or those who are residing in it, from intervening in the internal affairs of any other StateParty. Yet again a very broad provision, it is not clear whether the mere criticism of thosepeople of the conductof their govenunentwould be consideredas an act of interventionin the local affairs of the Stateconcerned, unless it is coveredby the wordingof Article 3. Illustrationsof those necessarymeasures mentioned above are stipulatedin Article 3 which include: A- Non-allowanceof the entry, circulation,or export of proclamationsor publications,or any other similar classificationsif they were meantto harm the securityor safetyof any StateParty; B- Banningof the movementor export of arms,ammunitions, explosives, or any of their componentsunless the competentauthority in accordancewith the law permittedit therein. These provisions may open the door for governments to abuse the legitimate right of freedom of expression which is, at least, guaranteed by the Kuwaiti Constitution. They may also give these governmentsthe right to silence opposition, if there is any, because they consider their conduct as harmful to their security. 281 Opposition here includes any one who protests any action taken by a government not necessarilyrestricted to those who opposethe people who constitute that government. One more provision that clearly relates to terrorism is the one stated in Article 28, which regulatesextradition between StatesParties. According to Article 28 of the GCC Convention, extradition is compulsory between State Parties if the request for extradition satisfiesthese two conditions: (I)- If those acts attributed to the accusedarc, based on their prescription in the law of the requesting State, crimes of Huduud, Qasaas, and Taazeer (Islamic set of penalties applied in Saudi Arabia) or crimes punishable by a custodial sentenceof no less than 6 months. The sameis required even if the crime was committed outside the territory of both the requested and requesting States, as long as the law of the requesting State punishes such a crime whether committed in or out of its territory; and (2)- If the judgementwas, in fact, issuedby the competentjudicial authority in the requestingState, whether such a judgmentwas issued in the presenceor in absentiaof the accusedof the crime, to the effect of punishing him The rules of these two paragraphsapply also, even if the requestedperson is a national of the requested State. Threeremarks can be madeabout this article: Firstly, it doesnot requiredual criminality as a prerequisitefor extraditionto be granted,i. e., the act for which the accusedperson was requestedfor extraditiondoes not necessarilyconstitute a crime in the requestedState, but only being so in the requestingState. For example,if a personconsumed alcohol, which is a crime accordingto the Islamic law, applied in SaudiArabia, and fled to United Arab Emiratesor Bahrain where such an act is 282 legally permitted, the United Arab Emirates or Bahrain must extradite such a person, drinking is regardless of his nationality, to Saudi Arabia, provided offence punished by Huduud, Qasaas, or Tazeer, or by a custodial sentence of no less than 6 months. The same may be true even if such an act occurred in another country other than the requesting State, as long as the law of the requesting State punishes such a crime whether committed in or out of its territory. Secondly, the threshold minimum I penalty (6 months) may seem to be low compared to the more common year increasing minimum as in the Arab Convention, and thus may result in the number extraditable offences. Thirdly, providing that the rules of these provisions apply, even if the requested person is a national of the requested State, runs counter to the 37 Constitution of Kuwait, which forbids the extradition of KuwaitiS. Consequently, the chance that Kuwait will ratify this Convention is not an option. It should be noted that in the old draft of this Convention, there was one more provision of this article, which stated that Kuwait shall be exempt from this article and the principle of reciprocity will apply between Kuwait and any other State Party. However, that provision was dropped, though it was not clear why they dropped it. What is clear is that it is difficult for Kuwait to become a member of this Convention unless it retains such exemption, or Kuwait amends its constitution, which is a very complicated, if not unlikely, option. By contrast,Article 30, unlike the previousarticle, which statesthe conditions underwhich extraditionis mandatory,this article statesthe casesin which extradition is unavailable.These cases are as follows: 37Kuwait Constitution,Art. 28. 283 (I)- If the crime is a political crime, and none of the following is considered as a political crime: a- Crimes of treason, sabotage,terrorism, and crimes of murdering and robbery by force whether committed by one or many persons; b- Crimes of material aggression against a Head of State of Member Statesor against their ascendants,descendants, or spouses; c- Crimes of aggressionagainst crown princes, members of the royal or governing family and ministers and those of similar status in the Member States; d- Military crimes; and e- Attempting or starting any of the above mentioned crimes if punishable by the law of the requestingState (2)- If the crimeis committedin the territory of the requestedState (3)- If the personrequested for extraditionis diplomaticagent enjoying a diplomatic immunity or any other personsenjoying such immunity becauseof the international law or any othertreaties or conventions (4)- If the requestedperson has been tried or is under investigationor trial for the crime for which he was requestedfor extradition,whether in the requestedState or any otherState where the crimetook place, if the latter is not the requestedState. Nonetheless,it seemsthat ambiguity is the main conceptthe draftersof this Conventionhad agreedupon. Still the internationalcommunity is crying out for a definition of political crimes and more importantly a definition of terrorism. The drafters,without specifyingthese terms, easily includedthem in this provision either as an extraditableoffences or non-extraditableones. An examplethat explainsthe divergencebetween Stateson what constitutesa political crime is the crime of 284 i. treason,which is consideredby many Western countries as a pure political crime, e., does there is no question about its political nature. The GCC Convention, however, not consider this crime as a political one; therefore the perpetrators of such crime can be extradited to the requestedState Party. Moreover,the differencein the descriptionbetween the types of aggression againstthe first categoryof protectedpersons which includesHeads of State,their ascendants,descendants, and spouses,and the secondcategory which includesCrown Princes,members of the Royal Family, and Ministers,raised the doubt expressedby the formerpresident of the Kuwaiti NationalAssembly that the word "aggression"is very unbounded,and may includematerial aggression as, in the casewith respectto the first category,and verbal aggressionwhich may not be more than a criticism of peopleof the secondcategory. In addition, unlike the OIC and the Arab conventions,which provide that extraditionis prohibitedif the crime occurredin the territory of the requestedState, unlessit underminedthe interestsof the requestingState. This Conventionrealized that if the crime is committedin the territory of one State,it must undermineits interestsin someway. Hence,it makesextradition impermissibleif the crime for which extraditionis requestedwas committedin the territory of the requestedState. However,such a caseis not always of such simplicity. Usually the crime invol%es committingmany acts in many States. For instance,the crime of terrorism may involveplanning in one State,buying arms from another,forging of documentsin a third one,entering illegally in a fourth, receivingmoney in fifth, committingthe crime in sixth,and escaping to the seventh. 285 Furthermore, it is expected that the requested State might receive many requests from many countries, and then the question will be which of these requests has the priority over the other requests. In order to explain this hierarchy, the Article 33 (a) of the GCC Convention stipulates that if the requested State has received many requestsfor extradition from many Statesfor the same person for the same crime, the priority will be to the request from the State whose interests the crime has undermined, next to the State in the territory of which the crime took place. ýonvention Regrettably, what was thought to have been overcome by this in the previous article, has appeared in this article. This being that it is too difficult to imagine how a crime committed in the territory of one State does not undermine that State's interestsin any way. Moreover,it is possiblethat thesenumerous requests from many Statesare for the sameperson, but for differentcrimes he allegedlycommitted. In this situation,the priority will, as providedby the secondparagraph of this article, be basedon the circumstancesand facts of eachcrime, including the gravity of the crime, the place whereit wascommitted, the dateof receivingthese requests, Art. 33 (b). In contrastwith the OIC and Arab conventions,which did not provide for the principle of specialityin extradition,i. e., the requestedperson will be prosecutedin the requestingState, if his extraditionwas granted,only for the crimes for which he was requesteý,this Conventionrecognizes its importance. It statesthat the person shallnot be subjectedto trial in the requestingState except for the crime for which he was requestedand its related acts and any other crime he committed after his extradition.However, the Conventionallows prosecutinghim for other crimes not mentionedin the extraditionrequest, if he agrees,or if he, after thirty days, was 286 permitted to leave the requesting State, but did not, Art. 37. This last provision as an exception to the general rule of speciality may be easily abused. To determine whether his consentto be tried for other crimes was free or extracted by force or any other meansof intimidation is very difficult. The same can be said with respect to the secondcase of this exception, i. e., giving him thirty days to leave but he did not. The best solution to bridge such a loophole is to prohibit from prosecution any other offences not mentioned in the extradition request, unless he is returned to the requestedState and a new extradition request is made for these offences. In order to makethis Conventionthe major and the sole instrumentbetween the Gulf countrieson securityissues, the draftersin the old draft includeda provision which peculiarly assertedthat this Conventionwill repeal all the bilateral security treatiesbetween States Parties, and in the caseof conflict betweenthe rules of this Conventionand the national rules and laws of any State Party, the priority in applicationshall be givento the rulesof this Convention.38 This provisionis peculiarfor two reasons: Firstly, it decidesto repealall the bilateral treaties on security between Member States without conditioning the existenceof conflict between this Convention and the other bilateral treaties. Secondly,stating that this Conventionwill have priority in application over any conflicting nationallaw, is equal to statingthat this Conventionhas the superiority over the nationallaw of StatesParties without knowing the statusof the Convention, if ratified, as provided by the national law of the would be Member State. For example,in Kuwait, the Constitutionhas superiority over any other sourceof law whethertreaties, customs, or legislations. Thus, in the caseof conflict betweenthe 38Gcc Old Draft Convention,Art. 40. 287 Constitutionand this Convention,Kuwait cannotbecome a memberto it in the first place. Moreover,according to the Constitution,treaties will have the force of law only after being ratified either by the Amir in some cases,or by the National Assemblyin other cases,which in such caseswill be required to issue new laws. Thesedifferent procedures depend on the subjectof the treaty, in somecases, though few, suchratification by the Amir will suffice.39 Therefore,to havethe statusof law meansthat the Conventionwill supersedeany existing law in conflict with it. However,it also meansthat any conflicting law enactedin the future will supersede the Convention. Nonetheless,the draftersseemed to realizethe difficulties this provision may raise and decidedto drop it and substituteit by a provision which read that this Conventionshall not prejudice any other bilateral security treatiesbetween States Parties. In case of conflict between the provisions of this Convention and the provisionsof the other bilateral treaty, the relevant Statesshall, in their bilateral relations,apply the provisionswhich achievethe absolutesecurity cooperation in the bestpossible way, Art. 41. In regulatingthe rules of withdrawal, the Convention in its old draft, in unprecedentedprovision, required that for sucha requestof withdrawalto be effective the SupremeCouncil of the GCC must, by a majority vote, approvesuch a request. 39Article 70 of the Constitution provides that: (1) The Amir concludes treaties by decree and transmits them immediately to the National Assembly with the appropriate statement. A treaty has the force of law after it is signed, ratified, and published in the Official Gazette; (2) However, treaties of peace and alliance; treaties concerning the territory of the State, its natural resources or sovereign rights, a public or private rights of citizens; treaties of commerce, navigation, and residence; and treaties entailing additional expenditure not provided for in the budget, or involving amendment of the laws of Kuwait; shall come into force only when made by a law; and (3) In no casemay treaties include secret provisions contradicting those declared. 288 However,such a requirementwas droppedlater andthe new provisionstates that this to the requestwill take effect six months after the date of sendingthe request SecretaryGeneral. It also adds,as in the Arab Convention,that this Conventionwill applyto thoserequests that weremade before the expiry of this period,Art. 45. Currently four Statesout of six (Bahrain,Oman, SaudiArabia, and United Arab Emirates)have signed this Convention. The two remainingcountries are Qatar fact and Kuwait. The reasondeclared by Qatarfor not signingthis Conventionis the that it regulates,among many things, the issueof hot pursuit acrossthe bordersof the MemberStates. It allowsthe pursuingcar or boatof any MemberState to continueits pursuit inside the territory of the neighbouringMember State, if the pursuedperson crossedthe borders,until the so called"meeting point", about20 kilometresdeep into its territory. Thus,Qatar protested such very advancedregulation of hot pursuit,as its borders with the Saudi Arabia are still under dispute. However, recently, Saudi Arabia and Qatarhave reachedan agreementon this matter,so Qatar may sign the Conventionin the nearfuture. With respectto Kuwait, signingand then ratifying this Convention is in conflict with the Constitution, especially with regard to the extraditionof nationals. Also, the ambiguityof someprovisions of this Convention, as discussedearlier, may be anotherreason for Kuwait not signingthis treaty because if signed,it will be difficult to have ratification from the National Assembly,even if Kuwait is exemptedfrom extraditingnationals. 6.5.CONCLUSION As discussedabove, from the three anti-terrorism conventions, the GCC Conventionmay, more than the others, constitute a seed for future disagreement betweenits would-be six parties,instead of being a step forward in the cooperation 289 between these States. This could be implied from the broad and imprecise terms this Convention includes. For example, terrorism, political crime, and aggressionare among those unclear terms included in this Convention which remained unclarified, thus a different interpretation of theseterms is probable. Moreover, this Convention included provisions that could be abusedby any of its parties in order to hunt down any of its opposition figures whenever he happened to be in the territory of any of the StatesParties. Examples of these provisions are the ones that statedthat it is not a political crime to commit any act of aggressionagainst crown princes, ministers, etc. without specifying what types of aggression it is concernedabout. Also, providing that it is sufficient for extradition to be mandatory if it is about a crime that is punishable by at least 6 months of custodial sentenceand a judgment was in fact issuedin that regard only in the requesting States,runs counter to the dual criminality principle which is recognized by all similar treaties. Therefore, such a provision can be abused by the requesting State to prosecute any person it detests despitethe fact that his action did not constitute a crime in the requestedState. With respect to the Arab and OIC Conventions, they, like the other multilateral anti-terTorismconventions, have some remarkable features that must be mentioned or reiterated if mentioned earlier, but, at the same time, these conventions have some apparentshortcomings that might undermine their effectiveness. 290 The featuresof theseconventions are the following: Firstly, these conventions, unlike the other multilateral anti-tefforism conventions, are eliminative but not enumerative. That is, these conventions dealt with terrorism in a comprehensivemanner, as is the subject. They included a broad definition of terrorism, which is supposedto cover all of its aspects,though this is not always true as discussed earlier. Unlike the other multilateral antýterrorism conventions which dealt with terrorism in a piecemeal fashion by adopting many conventions and treaties each of which dealt with a common offence favored by terrorists. The reason why such comprehensive conventions were successfully concluded under these organizations but failed when attempted at the UN might be the fact in such organizationsthe number of StatesParties is relatively small if & comparedwith the UN, andmore importantly, such organizations are alwaysor nearly alwayscomprised of memberswho sharecommon values or commoninterests. Secondly,the conclusionof the conventions,as in the other multilateral antio terrorismconventions, will help in establishingunified or at leastsimilar jurisdictions amongStates Parties with respectto terrorism. Becauseall StatesParties are required to outlawsuch acts proscribed by theseconventions, thus a greatdegree on uniformity in legislationsis expected. Another featureis the fact that theseconventions, like the other multilateral anti-terrorismconventions, provided for aut deder aut judicare principle as one of their centralobligations, hence the offenderof the proscribedact must be prosecuted if not extradited,therefore he shouldnot go unpunished. 291 Finally, both the Arab and OIC Conventionsincluded provisions that obliged StatesParties not to allow their territory to be used by terroristsin order to launch terrorist attacksagainst other Statesparties or to provide them with any assistance. Instead,they must help one anotherin preventingsuch attacksas discussedearlier. This obligationis very important,especially after the recent eventsin Afghanistan. What happenedto Afghanistanshould provide a good exampleto any Statethat not observingsuch an obligationwill result in becominga target of military attack by thoseStates who sufferedbecause of the non-compliancewith suchan obligation. Nonetheless,these conventions have some noticeable shortcomings that might in one way or anotherundermine their effectivenessin combatingterrorism and these includethe following: Firstly, none of theseconventions adopted a clear criterion that distinguishes terrorism from peoples' armed strugglefor self-determinationdespite the repeated recognitionsby these conventionsof the existing confusion between these two concepts.As discussedearlier that none of theseconventions have advancedsuch a criteria. On someoccasions, developing States, especially the Arab States,stress that terrorism and people's armed struggle for self-determinationare two distinct acts which can be separatedfrom eachother. On other occasions,they stressthis line of distinctionis so cloudy that it is very difficult to determinewhat is terrorismand what is not. An example of this difficulty can be found in the UNGA Resolution 42/519 which 'urges all States,unilaterally and in cooperation with other States, as well as relevant United Nations organs, to contribute to the progressive elimination of the 292 causesunderlying international terrorism and to pay special attention to all situations, including colonialism, racism and situations involving mass and flagrant violation of human rights and fundamental freedoms and those involving alien occupation that may give rise to international terrorism (emphasisaddedy. 40 Hence,this Resolutionimplies that thesecauses might give rise to terrorism, whereas Arab States do not want to call it terrorism in the first place. Rather a legitimateuse of violencein accordancewith right of self-determination.Thus it is upon thesecountries to provide what they think a clear distinctionbetween the two concepts. Secondly, the cases where extradition is not permissible under these conventionsare very broad and may constitutean open-endedexcuse for thosewho, faithlessly,want to precludethis process.An exampleof sucha caseis the one stated in the Arab Convention,which provides that extradition shall not be permissible, when the crime [for which extradition is sought] has been the subject of a final sentencewhich has the force of law not only in the requestedContracting State but alsoin any third ContractingState. Moreover,like the other multilateralanti-terrorism conventions, it is not clear undereither the Arab or OIC Conventionswhether the StateParty that requestedthe extraditionof a personfrom anotherState Party is obliged to prosecutethat personif its requestfor extraditionwas granted. Evenmore importantly,it is not clearwhether a Statewhich is an accomplicein terrorismcan requestthe extraditionof the fugitive 40UNGA Res. 42/519 (1987). 293 terrorist, and whether the requesting State can grant such a request without any violation of theseconventions which are silent in this regard. Similarly,neither the Arab nor the OIC Conventionsdefined what they meant by prosecutionas the other compulsoryoption if extraditionwas not grantedfor any reason. Does it necessarilymean to try the allegedoffender and sentencehim to prisonor the deathpenalty if convicted,or can otherprocedures also be consideredas prosecution? Furthermore, in relation to the above-mentionedobservations, both conventionsrelied on the national laws of States Parties in setting the proper punishmentof terrorists,and that could result in a substantialdifference in sentences amongStates Parties. However,setting a uniform range of penaltiesmight not be welcomed by those States and dissuadedthem form becoming party to these conventions. Besides this, many provisions of these conventions are based on the assumptionthat StatesParties already have national laws that outlaw the offences proscribedunder theseconventions. This assumptionthough likely to be found in someStates, is not alwayswill be so in other States. For exampleKuwait, as will be discussedin the next chapter,had implementedsome of the multilateralanti-terrorism conventionsit had ratified by enactingnew statutesthat penalizednew offences under-regulatedor not regulatedat all in the past. Finally, as in the other multilateral antkerrorism conventions, these conventionshave no effective enforcement provisions that can secure compliance by 294 any State Party that failed to live up the obligations it incurred under these conventions. Now, the questionis whetherit would be better for Kuwaitto becomea party to theseconventions, i. e., the Arab and OIC Conventions?Or whetherthose acts of terrorism, especially those involved the would-be States Parties,that had been committedagainst Kuwait would be dealt with differently if theseconventions were in forceat thattime? To answer these questionswith certainty is not possible,at least at the moment;this is becausenone of theseconventions have been tested yet. Nonetheless, thereare someconsiderations, that if taken into account,will suggestan affirmative answerto thesequestions. This includes: First of all, to havea written instrumentthat is legally binding on its partiesis better than none. Moreover,such an instrumentwill help in enforcing a new legal value with respectto terrorism in the region. This will be so, even though this inflicted instrumentis with somedefects, as long as there are somefeatures that can outweigh these defects and that can substantiallycontribute in the war against terrorism. For example,most of the terrorist attacksthat have been committed against Kuwait involved oneor moreof the would-beStates Parties to theseconventions, e. g., Algeria, Iraq, be discussed Iran, and as will later. Despitethe fact that thesecountries if they want to continuesponsoring, supporting, or tolerating terrorism might not be from doing restrained so notwithstandingthese instruments. As in the caseof Libya, 295 who was accusedof orchestratingthe Lockerbie attack even though it was, at the time of the incident, party to all of the relevant multilateral anti-terrorism conventions. Nevertheless, the degree of condemnation, the international pressure, and the consequencesthat might follow will be different in each case if such States were parties to the relevant anti-terrorism conventions and they intentionally violated them, than if theseStates were not under any legal obligation. As will be discussed later, one of the most outrageous cases of terrorism committed against Kuwait was the 1988 hijacking of AI-Jabriah airline, which ended up in Algeria which, because it was not party to any of the relevant antiaterrorism conventions, found itself not obliged to capture the hijackers and extradite them to Kuwait or to prosecute them if refused to extradite them, instead Algeria set them free. Therefore, if the Arab or the OIC Conventions were in force at that time, one would expect Algeria to act differently since no body accused it of being involved in the hijacking at all. Secondly,even if Kuwait hasor claimsto havean effectivenational law in the suppressionof terrorism,this would not be enoughto give any assurancethat other Statesin the region have the same effective national laws. Therefore, these conventionswould, to a certain extent, give surety to Kuwait that those who committedterrorist attacks against it and fled to other countriesin the region will not go unpunished. In addition,some of the would-be StatesParties to theseconventions are not partiesto all multilateralanti-terrorism conventions. As in the caseof Kuwait, which is a party only to six of theseconventions out of eleven. Hence,the Arab and OIC 296 conventionsmight be the sole instrumentsthat are legally binding existing between someof theseStates in the combatingof terrorism. Nevertheless,these conventions are limited in scope,therefore will not be sufficient in counteringterrorism. This is becauseterrorism is not confinedto one region, but rather one terrorist organization spreadsout to many countriesin many regions. Thus, an internationalresponse, which canbe by the adoptionof a multilateralanti-terrorism convention, is vital with such a problem. In other words, terrorism is a global problem that needsa global response. Also, theseconventions are the first real attemptsof the Arab Leagueand the Organizationof the Islamic Conferencethat deal with terrorism in such binding instruments.Therefore, they must be given a sufficient amountof time and a high numberof participationof StatesParties in order to test them and concludenew instrumentsin the futureif the existingones prove to be ineffective. Last but not least, the number of Statesin the region who find themselves vulnerableto terrorismis increasingas discussedearlier, therefore among the would- be StatesParties to these conventions,are those Stateswhich like Kuwait have suffered from terrorism and want to combat it by concluding such conventions. Accordingly,these like-minded States would certainly benefit from the existenceof theseconventions in achievingtheir commonpurposes of combatingterrorism in such a cooperativemanner. 297 CHAPTER 7. KUWAIT'S NATIONAL PERSPECTIVE ON TERRORISM In this Chapter, unlike the previous one, the discussion will be narrowed to the ways Kuwait has dealt with terrorism but from a local point of view. First in Section 1, the focus will be on the national law of Kuwait and the question there will be how Kuwait regulated terrorism in its national law, and how Kuwait implemented the antý terrorism conventions it had ratified, if there are any. Secondly, in Section 2, light will be thrown on the some of the terrorist events that took place in Kuwait and the responses,in general,to such events. It shouldbe notedthat it was not possibleto seehow the Kuwaiti nationallaw hasbeen interpreted and appliedby the nationalcourts. This is becausethe National SecurityCourt, which accessto its trials is not allowed,tried all of thesecases that involvedthese laws. Therefore,no transcriptof thesetrials couldhave been obtained. 7.1.THE NATIONAL LAW In general,there are three approachesthat criminal laws of Statesuse when dealingwith terrorismat nationallevel. Firstly, somecriminal laws devotesections or chapters,or one act or more, to the crime of terrorism and that includes its definition,types, penalties, and so on. Examplesof this kind of law can be found in the UK, US, France,and Egypt. Secondly,some criminal laws do not provide for terrorismas a distinct crime from other common crimes, but insteadconsider such common crimes as aggravatedassaults when they are committed for terrorist objectives. An exampleof this law is the Algerian Statute92-3, which providesin part,that if a commoncrime was committedto realizeterrorist goals,the penaltywill 298 life be the following: Death penalty if the crime is punished by life imprisonment; imprisonment if the crime is punished by imprisonment of ten to twenty years; imprisonment from ten to twenty years if the crime is punished by imprisonment of five to ten years; and the punishment will be doubled with respectto other penalties., The third and the most common approach is that some criminal laws do not regulate terrorism at all and instead prosecute terrorism under the names of other common crimes, e.g., murder, robbery, sabotage,kidnapping, etc. Kuwait is a typical example of the third approach. Nowherehas the Criminal Law in Kuwait evenmentioned the word terrorism or terrorist crime. The apparentreason for not doing so might be the difficulties Kuwait has experiencedat the internationallevel when debatingthe adoptionof any anti-terrorismconvention, as discussed earlier. Theseare someexamples of provisionsof the criminal law that cover some crimesthat can be committedagainst the national security,which can also be called terrorist crimes. Sinceterrorist organizationsare the core upon which terroristsrely for recruiting new members,organizing themselves,coordinating their activities, planningterrorist crimes, and committingthese crimes, most nationalstatutes that aim at combating terrorism, outlaw the establishment,administration, membership, financing,or participationin any form in suchorganizations. However, unlike the British anti-terrorismlaw which names such terrorist organizationsand providesthat participationin whateverform in theseorganizations is prohibited and shall be penalized,thus the public can know these proscribed 1Algerian Statute 93-3, Art. 1. 299 2 organizationsand refrain from dealingwith them, in Kuwait it is very different. In a very broad and ambiguousprovision Article 30 of the Criminal Law prohibits the associations,groups, and organizationsthat intend to diffuse principleswhich aim at the subversionof the fundamentalsystem by unlawful means,or attackingby force the socialand economicstructures in the country,and thosewho organizeor in%iteto membershipin theseorganizations shall be punishedby imprisonmentfor no more than fifteen years. Also, imprisonmentfor no morethan ten yearswill be imposedon any personwho participatesin theseorganizations if he is awareof the objectivesthey intendto achieve.3 Moreover, Article 29 proscribessome actions that may ultimately lead to terrorism. It providesthat whoeveropenly instigates,or in a public place or in any other placewhere he can be heardor seenby people,by saying,screaming, writing, drawing, depicting, or any other forms of thought expression,to overthrow the existing governmentin Kuwait, and to make such a changeby force or any other unlawful means,shall be punishedby imprisonmentof no more than ten years. The samepenalty shall be applied to anyonewho usesby the above meansto espouse ideologieswhich aim at the subversionof the fundamentalsystems in KuwaiO Realizingthat training to use arms or other explosivescan be usedto achieve subversiveobjectives, i. e., terrorist goals,but without directly saying so, Article 31 statesthat the punishmentof imprisonmentfor no more than fifteen yearsand no less than three years, shall be imposedon anyonewho teachesor trains one person or more to bear arms or to use ammunition,or instructshim or them in any kind of 2British Criminal Justice (rerrorism, and Conspiracy) Act 1998,Chap. 40. 3Statute 31/1970, Art. 30. 4Ibid. Art. 29. 300 military arts aiming to use him or them to achieve illegitimate objectives. Imprisonment of no more than five years shall be imposed on any person who received such training and teaching, if he knows that the one who trained or taught him aimed at using him to achieve illegitimate objectivesý Now the most importantquestions to be answeredhere are that sinceKuwait had ratified six multilateralanti-terrorism conventions and protocols that dealtdirectly with some terrorist offences,did it implementthem? And were national statutes enactedfor this purpose? The answerto thesequestions is negativewith respectto someof theseconventions, and affirmative with respectto the others. The New York and HostagesConventions were not implementedby Kuwait though they both were ratified in 1988. The apparentreason for not implementingthem by enactingnew statuteswas the fact that the crimes coveredby these conventionswere already coveredby the Criminal Law in Kuwait, but underthe nameof commoncrimes. For example,hostage taking is kidnapping,assassinating a diplomatic agent is murder, andso on. On the contrary, the Tokyo, Hague, Montreal Conventions,and Montreal Protocolon combatingterrorist crimes againstcivil aviation were all implemented, thoughin onestatute enacted in 1994,which will be discussedhere in moredetail. 7.1.1. Statute 6/1994 On Crimes Relating To The Safety Of Aircraft And Air Navigation Consisting of 10 articles, the Statute, as its interpretive memorandum states, intends to cover all the crimes listed on the anti-terrorism conventions adopted by the 5Ibid. Art. 31. 301 International Civil Aviation Organization (ICAO), which, as the memorandum maintains, are not covered by the existing Criminal Law. Therefore, this Statute aims at adding new crimes and their penalties to the Criminal Law in order to implement the ICAO conventions. Article I of the Statute starts with definitions of some of the terms it used therein, and theseinclude the following: (I)- "Aircraft" is any meansused or meant to be used for aviation or navigation in air or space; (2)- "Inflight", the aircraft is considered in flight at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation. In the case of a forced landing, the flight shall be deemedto continue to be in flight until the competent authority takes over the responsibility for the aircraft and for personsand property on board; (3)- "In servic6", the aircraft is considered to be in service from the beginning of the pre-flight preparation of the aircraft by ground personnel or by the crew for a specific flight until 24 hours after any landing; the period of service shall, in any event, extend for the entire period during which the aircraft is in flight as defined in Paragraph (2) of this article; and (4)- "Air navigation facilities", include the airport and the installations that oversee and organize the traffic in the airspace above, and the surrounding lands of these installationsand those preparedfor the waiting of passengersand cars! Therefore,the Statutedoes not differentiatebetween private aircraft or those ownedby the govenunent. More significantly,this Statuteis wider than the ICAO Statute6/1994, Art. 1. 302 conventions, which apply only to civil aircraft, but not military, customs or police aircraft, whereas this Statute, as its definition of what constitutes aircraft suggests, may apply to all kinds of aircraft. Also, there is no mention in this article or in the rest of this Statute, that the aircraft, against which a violent act may be committed, is to be engaged in actual or intended international flight. The reason might be the fact that Kuwait does not at the present time, have more than one international airport, and so as a result, all flights from and to that airport must be international ones. However, domestic flight is possible with respect to military, customs and police aircrafts. Article 2 of the Statuteprovides that a punishmentof short-termimprisonment for no lessthan sevenyears will be imposedon any personwho intentionallycommits any of the following acts: A)- Performsan act of violenceagainst a personon board an aircraft in night if that act is likely to endangerthe safetyof that aircraft;or B)- Placeson, or causesto be placed on, an aircraft in service, by any means whatsoever,a deviceor substancewhich is likely to destroythat aircraft, or to cause damageto it, which rendersit incapableof flight, or to causedamage to it which is likely to endangerits safetyin flight; or Q- Destroysor damagesair navigationfacilities or interfereswith their operation,if any suchact is likely to endangerthe safetyof an aircraftin flight; or D)- Communicatesinformation which he knows to be false, therebyendangering the safetyof an aircraftin flight.7 Ibid. ArL 2. 303 The first fact to be noticed about this article is that it sets up a penalty for in committing any of the offences it lists. This is one of the most important elements any law implementing a convention, because without such a punishment the conventioncan never be effective. Anotherobservation about the offencesthis article coversis the fact that they are literally taken from Article I of the Montreal Convention. However, one of the offences covered by the Montreal Convention was omitted in this Statute. It is Paragraph(b) of Article 1, which states that it is an offence to 'destroy an aircraft in service or cause damage to such an aircraft which renders it incapable of flight or 8 which is likely to endanger its safety in flight'. This provision may include some offences that are not covered by the four provisions of Article 2 of the Statute. For example, destroying the aircraft in service or causing damage to it not only by a device or any other substanceplaced on it, but by attacking it from the outside with a missile, for instance, or by implanting some explosives in its path when taking off or landing. Moreover, this article of the Statute is mainly concerned about the aircraft while it is in service or in flight, though to be in service includes the period while in flight. There is no mention of offences against the aircraft while it is not in service as provided for by the Montreal Protocol, which this Statute is also supposed to implement. Even more importantly, no mention was made of offences against the airport ground personnel. The possible reason for not covering such offences by the Statute is the fact that these offences are already covered by Criminal Law, though under different namesand different penalties. 8Montreal Convention, Art. 1, Para.(b). 304 In addition, Article 3 of the Statuteprovides for anothercrime againstthe safetyof the aircraft and air navigation. It statesthat a punishmentof a short-term imprisonmentof no less than ten years for any personwho unlawfully, by force or threat thereof,or by any other form of intimidation, seizesany aircraft in flight or exercisescontrol of that aircraft, or changesits direction. If that was coupled with detainingany personand taking them to anotherdestination other than the intended one,the penaltyof life imprisonmentor a fixed term of imprisonmentfor no lessthan 10years may be imposed! This provisionis very broad on onehand and very narrow on the other. It is very broadbecause; firstly, it is not like the HagueConvention which requiresthat the his actbe committedby a personon boardthe aircraft. Thusany person,regardless of locationwhen he committedthis offencedoes commit suchan offence,an exampleof an offencethat canbe committedby a personwho is not on boardan aircraft in flight is the onewho implantsa bomb in an aircraft and threatensto explodeit by a remote control deviceif his demandsare not met. Secondly,unlike the ICAO conventions which madeno mention of hostagetaking as an offence against the aircraft, this Statuterealizes that hijacking usually involveshostage taking, but considersit as an aggravatedassault only if it resultedin changingthe destinationof any of the hijacked people. On the otherhand, this provisionis very narrowbecause; firstly, it requiresthe aircraft to be in flight when the offence is committed. Thus any other offences occurringwhile the aircraft is not in flight will not be coveredby it. Secondly,the meansby which the personcan useto seizethe aircraft or exercisecontrol over it can 9Statute 6/1994, Art. 3. 305 only, according to this article, by force, threat, or any other forms of intimidation. Therefore, excluded from the coverage of this article is the seizure or control of the aircraft by any other meansthat do not involve any type of intimidation, such as bluff or deceit. Nonetheless,since the outcomeof committingany of the offencescovered by the Statutemay vary in degree from a catastrophic end such as the total destruction of the aircraft, or the murder of the people on board, to a peaceful end by the surrendering of the hijackers or intervention by police before any harm is done. Consequently,the Statute admits such a variation of results, and provides for different penalties that suit the different results. To this end, Article 4 of the Statute stipulates that if any crimes mentioned in the previous two articles resulted in injury or hurt to any person, or in the destruction of the aircraft or damage causedto it or to any of the air navigation facilities, the penalty will be death or life imprisonment. In all events, the offender will be obliged to pay the value of the property to which he caused damage. The death penalty will be imposed if any of these crimes resulted in the deathof any person.10 It shouldbe notedthat the intentionto causesuch results like injury or deathis not requiredby this article,as it was requiredfor committingthe offencesthemselves accordingto articles2 and 3 of the Statute. Hence,if suchinjury or deathhappened by accidentor mistake,the offenderwill still be subjectedto their respectivepenalties asprovided by Article 4 above. 10Ibid. Art. 4. 306 States' practices, when implementing the ICAO conventions on setting the penalties that they think as "severe penalties" as required by these conventions, vary from one country to another. For example, in the Netherlands, the penalty for the intentional communication of false information that might endanger the safety of an aircraft is imprisonment for no more than four years, whereas in Kuwait it is imprisonment for no less than seven years. In Netherlands, hijacking of an aircraft is punished by imprisonment for no more than nine years and twelve years if it resulted in the death of one or more persons, whereas in Kuwait the penalty could range from imprisonment of no less than ten years or the death penalty, if the death of any person has occurred as a result of such crimes. Imprisonment of no more than twelve years in Denmark, a life sentence in Cyprus, a minimum of twenty years imprisom-nent in Israel and a life sentence if death has resulted, life imprisonment in Norway, a maximum of four years imprisonment in Sweden and a maximum of ten years if the crime was highly dangerous,the death penalty in Algeria for the crime of the mere attempt to change the direction of the aircraft by force or threat thereof, or by bluff. These different practices show how States differ when implementing even the same words "severe penalties". This substantial difference in sentencing is one of the serious criticisms of the aut dedere option in the anti-terrorism conventions as discussedearlier in Chapter 3. In order to force people to help in preventing such crimes from occurring, in capturing the alleged perpetrators thereafter, or in collection of all related evidence, Article 5 of the Statute sets up a penalty of imprisonment for no more than five years and a fine of no more than 5,000 KD or one of these for any person who knows about a plan to commit any of these crimes, or knows about their occurrence and abstains from reporting it to the competentauthority. If he assiststhe perpetrators to escapeby 307 coveringfor themor evidenceof the crime, destroysthe latter,or concealsthe means that wereutilized or preparedto be utilized in carryingout the crime or is relatedto it, the sameapplies. This penaltymay be doubledif this actionwas committedat a time of war or at a time whenemergency law is declared." The realisationhas occurredthat one of the best methodsto combat such terrorist crimes is to offer incentivesand guaranteesto the criminals themselvesin orderto makethem cooperate with the authority. To this end,Article 6 of the Statute providesthat an exemptionfrom the punishmentof the crimes mentionedin this Statutewill be grantedto any of the offenderswho takesthe initiative and informsthe competentauthority before beginningthe executionof the crime, or even after by reportingthe occurrenceof suchcrime and thosewho participatedin it. However,to benefit from this exemption,that initiative must be taken before the competent authorityhas commencedany searchor investigation. Even if the person informs after the commencementof a searchor investigationby the competentauthority, he will benefitfrom this offer if his actionhelps in capturingthe offendersor someother offendersof similarcrimes of similar type anddanger. 12 Accordingto the Kuwaiti Criminal Law Article 83, the Court, if it seesthat the accuseddeserves mercy becauseof the circumstancesin which he committed the crime, his history, morality, or age, can commute the death penalty to life imprisonmentor a short-termimprisonment for no less than ten years, or commute life imprisonmentto a short-termimprisonment for no lessthan sevenyears. 13 " Ibid. Art. 5. 12Ibid. Art. 6. 13Statute 16/1969,Art. 83. 308 Consequently, becauseof the possibility that the perpetrators of the terrorist 7 crimes covered by the Statute might benefit from such a provision, Article of the Statute provides that in exception from Article 83 of the Criminal Law discussed above, it is permissible for the court, when applying the penalties articulated in Article 4 of the Statute, to commute death penalty only to life imprisonment and the latter only to a short-term imprisonment for no less than fifteen years. Also, it will not be permissible for the court to waive the sentence from being imposed on the offender when convicted or suspend the implementation of such a sentence when issuedwith respectto thesecrimes. 14 Moreover,establishing jurisdiction over thesecrimes in accordancewith the ICAO conventionsis anotherimportant factor of the proper implementationof the rules of theseconventions. Accordingly, the Statuteprovides in Article 9 that taking into accountarticles 1115 and 1216 of the Criminal Law, the rules of this Statutewill applyto the offencesprovided hereunder in the following cases: A)- When the offenceis committedagainst or on board an aircraft registeredin the Stateof Kuwait, or an aircraft leasedto a lesseewho has his principle place of business,his permanentresidence, in the Stateof Kuwait; B)- Whencommitting such offence caused exposure to dangera registeredaircraft or a leasedone as provided in Paragrapha of this article; 14Statute 6/1994, Art. 7. 15 Article 11 of the Criminal Law provides that the rules of this law will apply to any person whomsoever commits in the territory of Kuwait and in any of its annexure a crime prohibited hereunder. It will also apply to any person who commits outside the territory of Kuwait an act that makes him the original perpetrator or an accomplice in a crime occurred fully or partially in the territory of Kuwait. Statute 16/1969,Art. 11. 16Article 12 of the criminal law provides that the rules of this law will, also, apply to any Kuwaiti national committed outside Kuwait an act punishable by this law as well as by the law of the place where the crime was committed in case if he returns to Kuwait without being acquitted by the foreign courts. Ibid. Art. 12. 309 Q- When the aircraft against or on board of which the offence is committed lands in the territory of Kuwait with the alleged offender still on board; and D)- When the victim is a Kuwaiti citizen.17 Clearly this provision, along with the provisionsreferred to in the Criminal Law, providesmany basesof jurisdiction, evenmore so than the onesarticulated in the ICAO conventions. For example,the right to establishjurisdiction when the victim is a Kuwaiti citizen has no analogy in these conventions. Therefore,if a Kuwaiti citizen happenedto be among the passengersof the hijacked or attacked aircraft, Kuwait will have the jurisdiction to prosecutethe offenders even if this Kuwaiti passengerhas not beeninjured or harmedin any way, becausejust hijacking or attackingthe aircraft will make all of its passengersand crew victims of such act regardlessof the consequences. Nevertheless,this Statuteomits one of the most importantbases of jurisdiction providedfor in the ICAO conventions.That is the obligationto establishjurisdiction over the allegedoffender whenever he is found in the territory of Kuwait and Kuwait does not extradite him. Although, Paragraph(C) covers some aspectsof this obligation,it doesnot cover all the aspects. For instance,it doesnot cover the case whenthe allegedoffender, who is not a Kuwaiti national,is found not on the boardof the victim aircraft when suchan aircraft did not land in Kuwait, but in the territory of Kuwait sometimes after the offence. Lastly, this Statute does not mention anything about extradition as an important obligation provided for in the ICAO conventions, which this Statute is 17Statute 6/1994, Art. 9. 310 supposedto fully implement. Not even a referencewas made to extradition as anotheroption to prosecutionwhen the offenderviolated this Statute. One of the few articles omitted from this discussionis Article 8, which articulates that the State Security Court will have the cognisanceto try the perpetratorsof thesecrimes and thoserelating to them.18 It was omittedbecause it is not effectiveany more, given thatjust one year after the enactmentof this Statutethe StateSecurity Court was abolished. However,it will be useful to shedsome light on this Court. 7.1.2.State Security Court This is besidethe Martial Court which can be establishedin time of war or in time of emergencywhen the governmentdeclares Martial Law. As provided by the Martial Law Statute22/1967 which statesin Article I that it is permissibleto declare Martial Law wheneverthe securityor public order of the Stateof Kuwait or any part of it is exposedto danger,if an armedaggression occurred or is imminent,or when internaldisturbance has occurred, etc. 19 This last provision,as the first, may imply the right to declareMartial Law in the counteringof terrorism if it is on a large scale. DecMng Martial Law and the subsequentestablishment of the Martial Court is an extraordinaryoption becauseit involves licence to the governmentto take some exceptionalmeasures which are unavailableto it during other times. Examplesof suchmeasures are the right to seizeand searchany personany whereat any time, the right to imposea curfew on the movementof people,and the right to deportaliens the governmentsuspects of causingtrouble, etc. So as a result the Constitutionrestricts Ibid. Art. 8. Statute 22/1967, Art. 1. 311 such options and requires that a decree of Martial Law be referred to the National Assembly within fifteen days following its issue, for a decision on the future of the Martial Law. If the proclamation takes place during the period the National Assembly is dissolved, it will be referred to the new National Assembly at its first sitting. It also provides that Martial Law may not continue unless a decision to that effect is made by a majority vote of the members constituting the Assembly. In all cases,the matter is referred to the National Assembly in accordancewith the forgoing procedures, every three months.20 Nonetheless,in addition to the Martial Court, which is similar to that which most Stateshave, Kuwait usedto havethe so-calledState Security Court with unique features,not in the time of war or emergency,but in ordinarycircumstances. In 1969, Statute26/1969 on the establishmentof the StateSecurity Court was enactedin order to face someexceptional circumstances that faced Kuwait at that time?' The Statute 2 providesin its Article I that this Court shall be composedof three civilian judges? Thus, this Court was not composedof military judges as in the military court or martialcourt. Article 2 of the Statutespecifies the typesof crimesthis Court will deal with. Accordingto this article,this Courtwill havethe cognisanceto try the following: (I)- Crimesstated in the Criminal Law from Article 92 to 107.71iis includescrimes againstthe national security in general,and terrorist crimes, though under different names,in particular. 20Kuwait Constitution, Art. 69. 21 Just one year before the enactment of this Statute, Kuwait had been a target of violent attacks by a group of people, most of them were Kuwaitis. The Arabic people movement in all Arabic countries in pursuit of the dream of establishing a united Arabic country inspired them, thus they used violence to dramatize their cause. 22Statute 26/1969, Art. 1. 312 (2)- Crimes of arson whenever any of the means articulated in Article 247 of the Criminal Law were used for committing such crimes. This includes the use of explosivesor dynamite to commit arson. (3)- Crimes related to the above. (4)- Crimes referred to it by a decision of the Ministry Council? 3 However,since the judges who are sitting in this Court are the samejudges sitting in the Criminal Court, and sincethe crimesit will try are the samecrimes that used to be tried by the Criminal Court before the establishmentof this Court, one might properlysay why bother? The answerto this questioncan be found in two exclusive featuresof this Court that distinguishit from the Criminal Court: firstly, this Court is obligedby this Statuteto decide the casesit has jurisdiction over very quickly. For example, accordingto the Statute,the Statesecurity prosecutor is obliged to inform the accused of the accusationdecision and the list of supportingwitnesses just ten daysbefore the Court convenesin its first session. Secondly and even more importantly, the judgmentof this Court shall be final andnot appealablein any way. This is unlike the judgment of the Criminal Court which can be appealedin the two possiblecourts above,the Court of Appealand the SupremeCourt. Thoughdeciding cases in a very quick manneris a positive ideabecause it will relievethe concernof the public if they know that suchcriminals have been punished in such a very short time after they committedtheir crimes, this may also help in deterringpotential criminals. Also, the casesthat this Court is trying will be recent 23Ibid. Art. 2. 313 and there will be no fear that somewitnesses might forget what they have seenor heard. Moreover,such a fast trial will reducethe expensesusually incurredby long litigation. Conversely,such a fast trial might deprivethe accusedof the time he needsto collect all the relatedevidence in his interest. Also, somecases are very complicated and needextensive time and resourcesin order to understandthem and give them the deliberationthey deserve. Furthermore,the decision of this Court is final, thus to reachit too hastilymay makethe judgment flawed or unsafe,and therefore defective. Nonetheless,after the liberation of Kuwait from the Iraqi invasion,the Court was fully loaded with casesinvolving the accusationof people of the unlawful cooperationwith the Iraqi forces. Therefore,in order to alleviate the fear that this Court might mistakenlydecide some casesthat will be irreparable,another Statute was issued to amend the existing one by making the judgment of this Court appealableonly to the SupremeCourt. 24 In spite of that amendment,in 1995,i. e., after twenty six yearsof existence, the National Assemblyrecently realized that the compositionof this Court is similar to that of the Criminal Court and regrettedthe prevention of the accusedto his ordinaryjudge in order to put him on an equal footing with those who committed othercrimes not subjectto the jurisdiction of this Court, the Assemblyissued Statute 55/1995to the effect of abolishingthis Court. 24Law Decree10/1991, on the amendmentof someprovisions of the Statute2611969 on the establishmentof the StateSecurity Court. 314 Lastly, it is to be noted that this Court has tried all terrorist crimes that had been committed against Kuwait, and the penalties this Court imposed on the perpetratorsof suchcrimes are the samepenalties that can be appliedby the Criminal Court on other crimes. Nonetheless,as statedearlier accessto thesetrials was not permissible. 7.2. CASESAND RESPONSES Like many other countriesof the world, Kuwait had, for sometime, suffered from terroristattacks. Someof theseterrorist attacks were as earlyas 1968and some of them were as recentas 1993. It is to be notedthat it is beyondthe scopeof this sectionto go throughall theseattacks; however, some of them will be mentioned. Following the maxim that says that the person should, if he is to choose betweentwo things, choosethe least evil, Kuwait had supportedIraq againstIran during the courseof the First Gulf War. As result, in the 1980s,during which time war was declared,Kuwait had been subjectedto what can only be called a wave of terrorismfrom thosewho supportedIran. On December12,1983,6 bomb attacksoccurred in Kuwait City, five people werekilled and sixty-onewounded. The largestexplosion took the form of a suicide attack on the US Embassy,where four people were killed and at least fourteen woundedwhen a truck packedwith explosiveswas driven throughthe Embassygates and explodedin the compound. The blast destroyeda three-storyannex and severely damagedother nearbybuildings; one of the two men in the truck was killed instantly while the other was taken to hospital with seriousinjuries. The five other attacks weremounted against the FrenchEmbassy, the InternationalAirport (whereone man 315 was killed), the Electricity and Water Ministry, the Shuaiba Industrial and Petrochemical complex on the outskirts of the city, and a residential development used principally by US nationals. Responsibility for the bombings was claimed by the Aljihad al-Islami organization, a militant Shia Moslem group widely seen as having close links with Iran. On Dec. 18, the government announcedthat twenty-three people (most of them Iraqi and Lebanese)had been arrested shortly after the explosions and had admitted to planning and implementing the attacks. The State Security Court tried them and imposed the death penalty on six of them (three were fugitives), life imprisonment on seven, fifteen years on three, ten years on one, five years for another, and acquitted the other five.25 In an attemptto securethe releaseof thoseprisoners, a Kuwait airliner (known in Kuwait as Kazma)had beenhijacked en route to Pakistanfrom Dubai on Dec. 3, 1984. Of the 151 passengerson board, two American passengerswere killed. The airliner wasforced to land in the IranianCapital, Tehran, whcre the Iranianauthorities had, after unsuccessfulnegotiations, raided it. Responsibilityfor the hijacking was alsoclaimed by the sameorganization mentioned above, and their demandfor release of their friends held in prison in Kuwait was refused by Kuwait.26 It is to be mentionedthat nobody knows what happenedto the hijackers after the Iranian authoritiescaptured them. Iran could claim that it had prosecutedthem in accordance with the aut dedereautjudicare obligationin the ICAO conventions,even if it did not in fact do so, and Kuwait would have no option but to acceptthis claim, becauseit 25Kecsing's Record of World Events,32692 (Vol. XXX, Feb. 1984) 26 Keesing,at 33951(Vol. XXXI, Feb. 1995). 316 could not have verified such a claim. Even if Kuwait did not accept this claim, it could not have forced Iran to prosecute the hijackers becausethere is no enforcement mechanismprovided for in any of the anti-terrorism conventions. On May 25,1985, Kuwait had witnessed,for the first time, a shockingbomb attack on the Amiri Motorcade(President's Motorcade). A car-bomb attack was mountedon a motorcadecontaining the Amir and other senioroff"icials. Four people werekilled, includingtwo of the Amir's bodyguards,and the driver of the car usedin the bombing,which was driven into one of the cars in the procession,exploding on impact. The Amir himself escapedwith minor cuts. The driver was subsequently identifiedas a pro-IranianShia Iraqi citizenand a memberofA Ijihad al-Islaml.27 The trial of the five Iraqi nationals charged of the involvement in the attemptedassassination of the Amir concluded on Nov. 29,1986, one of the defendantswas sentencedto death;of the remainder,all of whom were being tried in absentia,one was sentenced to life imprisonment,and three were acquitted? s Two months after the bombing of the Amir Motorcade, Kuwait had also witnessedsome cruel terrorist attacks,but this time by a different group, the Arab RevolutionaryBrigade, a Palestiniangroup basedin Iraq. ThoughKuwait was allied to Iraq at that time, such attackstook place by the group which was, to a certain extent,controlled by the Iraqi regime,and no one knows why it committeda crime like this, or why it happenedto Kuwait at the handsof a supposedally from Iraq. The possibleanswers might be that Iraq used such a terrorist group in order to extort 27Ibid. at 33884(Vol. XXXII, Sep.1985). 22Tbid. at 35545(Vol. XXX, Nov. 1987). 317 money from Kuwait and the rest of the Gulf countries also, or it was a messageof strength in caseKuwait thought it might stop its financial support of Iraq. These attacks were mounted against two seaside cafds mostly frequented by families, in Kuwait City on July 11,1985. Nine people were killed and a further eighty-nine wounded. Five Palestinian individuals were accused of the cafd bombings; two of them were sentencedto death (one in absentia), while a third was jailed for life, and a fourth for three years. One other who had been tried in absentia was acquitted.29 In June1986 and January1987, several terrorist attacksoccurred targeting the oil cites in Kuwait. Sixteenpeople were chargedwith such crimes,six of them were sentencedto death(two in absentia),while two defendantswere acquittedand the remainderreceived prison terms of betweentwo yearsand life?o On April 5,1988, Kuwait and the whole world witnessedthe longest ever hijacking in history. The hijackers, reportedly linked with the pro-Iranian Shia Moslemgroups in Lebanon,took control of a Kuwaiti airliner (known in Kuwait as Jabriah) with 97 passengersand 15 crew on a flight from Bangkok (Thailand),and held it for fifteen days. Flying from Iran, where the airliner was forced to go at the onsetof the hijacking. However,after their demandsfor the releaseof their friends imprisonedin Kuwait, (thoseprisoners were the sameones they demandedrelease of in the abovementioned hijacking of Kazma), were strongly refusedby the Kuwaiti government,the flight was then forced to fly to Cyprus, where two Kuwaiti 29Ibid. at 35545. 30Ibid. at 35546. 318 passengerson board the aircraft were killed, and finally to Algeria. The Algerian govenunent eventually negotiated the release of the hostages in a deal which allowed the hijackers, who were generally reckoned to be the best equipped, prepared and organized group, to escapeto an unknown destination?' Followingthe crisis,the Kuwaiti governmentwas widely praisedfor its strong reftisal to make concessionson the releaseof the seventeenconvicted terrorists of 1983bombing attacks in Kuwait. The Algerian government,on the other hand,was severelycondemned by many countries,including Kuwait, for its role, which resulted in the escapeof the hijackers. It is to be noted that at that time Algeria was not a party to either the Hague or Montreal Conventions,which deal with such cases. Hence,such a country was under no obligation to extraditeor prosecutethe alleged offender. Therefore,this said country may becomea safe haven for terrorists. Such behaviourby the Algerian governmentwas nothing but an indirect policy to further terrorismby showinghow weakthe internationalorder can truly be on occasion. Along with the fmn stand that had been taken by the Kuwaiti government when involved in negotiationswith the terroristsby not giving in to tile terroristsin any way, and the harsh sentencesimposed by the State Security Court which may serveas a deterrentmessage for potential terrorists if they contemplateany attack againstKuwait in the future, Kuwait had also taken some actions to prevent and combatterrorism during that period: The Civil DefenceCorps. announced plans for the establishmentin the workplaceof "security committees"to help combat terrorism. According to these plans, every establishment,governmental or private, employing over 31Ibid. at 35916(Vol. XXXIV, May 1998). 319 than fifty personnelwould be requiredto set up a committeeof at least five people,who would be trainedin basicanti-terrorist skills. 32 Deportationwas heavily used by the governmentat that time against someimmigrant workers; most of whom were Iranian, who were suspectedof political agitation. For example, on Nov. 10,1986, the Interior Ministry 33 announcedthat 26,898 peoplehad been deportedover the past few years. However,such action was not taken only againstthe illegal immigrants,as in most countries,but it was takenagainst legal immigrantsalso, on the basisof meresuspicion. The National Assemblyalso consideredaccountability for thosewho were responsiblefor ensuringproper security measuresin some important sites but failed to do so. For example,the Oil and Industry Minister was accusedby the National Assemblyof failing to ensurethe appropriatesecurity precautionsfollowing the terroristattacks on the oil installationswhich caused fires in them. The establishmentof specializedunits that deal with terrorism: 0 Aircraft safety units that conduct inspection of any person boardingthe aircraft andaccompany the aircraft in its fligit; 0 Explosivessuppressing units that have the required technical experienceto detectbombs, dismantle them and renderthem harmless; 0 Diplomatsprotection units that guard the diplomatic agentsin Kuwait, preventand countcr-attack any attackagainst them; 0 Documents forgery inspection units that detect forged documentsand keep records of all stolenand lost Kuwaiti documents. 32Ibid. at 36312(Vol. XXXIV, Nov. 1988). 33Ibid. at 35545(Vol. XXXIII, Nov. 1987). 320 Training, education,and media,which have all been used to raise the sense of security among the public, prepare people to fight terrorism, emphasisethe importanceof proper communicationbetween people and police to report any information they have on terrorists or their plans, and educatepeople, especially those who work in non-profit organizations,to be awareof terroristsand to preventthem from using theseorganizations in any harmfulway. Conversely,if the foregoing terrorist attacks were the price Kuwait paid becauseof its supportto Iraq in its war againstIran, Kuwait had paid the ultimate price when it had a slight misunderstandingwith Iraq, who invaded it and indiscriminatelykilled the peopletherein and destroyedtheir properties. One of the indirect results of the invasion was the release of all the convicted terrorists imprisonedin Kuwait and someof whom were in deathrow waiting to be executed. Most of thesefreed terrorists, especially foreigners, had fled Kuwait during the crisis and someothers, most of themKuwaitis, had stayedin Kuwait andjoined the Kuwaiti resistancemovement against the Iraqi invaders Becauseof their expertisein making bombsand explosives, the movementhad benefitedfrom them and after the liberation of Kuwait thosewho usedto be labelledas terroristsbecame heroes and praisedby the government,who pardonedsome of themthereafter. One of the terrorist attacks that was officially attributed to Iraq after the liberation of Kuwait was the unsuccessfulplot to assassinatethe former American PresidentGeorge Bush. Details emergedin May 1993of the Iraqi plot to assassinate G. Bush during his visit to Kuwait in mid-April of the sameyear. Kuwaiti security officials arrestedsixteen people, including ten Iraqi nationals,supposedly involved in 321 the plot, one of which allegedly confessed to being a colonel in the Iraqi Security Service. For its part, the Iraqi government vehemently denied any involvement in the alleged plot, while US congressional leaders urged military retaliation against Iraq if such involvement was proven?4 Six of the accused(five Iraqis and one Kuwaiti) were sentencedto the death penalty by the State Security Court on June 4,1994. A further five Iraqis and two Kuwaitis were sentencedto prison terms ranging from six months to twelve years. On March 20,1995, the SupremeCourt upheld the death sentencesimposed on two of the six, life imprisonment instead of the death penalty on two of them, fifteen years 35 imprisonment for the fifth, and five years for the sixth. It is to be noted that on the June 27,1993, i.e., almost one year before the court reachedits decisionon conviction, the US attackedIraq in retaliation for this Iraqi sponsoredplot to attackthe former US President. Among the evidencethe US was alleged to have in order to prove the link between those terrorists and the sponsorshipof the Iraqi government,was the type of explosives found in the possessionof the plotters. The US claimedthat theseexplosives matched the onesin useby the Iraqi SecretService. 7.3. CONCLUSION Discussionabout the Kuwaiti nationallaw providesa good exampleof how it - is extremelydifficult evenat the nationallevel to comeup to a satisfactorydefinition of terrorism in order to regulatesuch a crime. As has been discussedearlier that 34Ibid. at 39487(Vol. 36, N. 4). 33Ibid. at 40480. 322 nowhere have the words terrorism or terrorist crimes being mentioned in any of the statutesdiscussed previously. The reasonswhy a State, in general, is unwilling to come to a comprehensive definition of terrorism even at the national level might be: firstly, the difficulties of finding such a satisfactory definition of terrorism. Secondly, the choice of many Stateswho, refrain from defining terrorism, to instead prosecute it under the names of other common crimes. Thirdly, being afmid that such a comprehensive definition might outlaw its own actions in certain situations. Fourthly, it might outlaw some actions of groups or movements for whom this State give support. And finally, a Statemay not realize the importance of such a definition. Becauseno terrorist actions have taken place within its boundaries, thus such a State thinks that it does not need this definition. However,the abovecases of terrorismin Kuwait or againstKuwait illustrate beyondany doubt that no Stateis immune from terrorism. If such a Statehas not beensubject to any terroristattacks in the past,it will soonor later. Therefore,not yet being a victim of terrorism should not be an excusefor not taking, unilaterally or multilaterally,any proactivemeasures to confront it and amongthese measures is the adoptionof bilateral, regional, or multilateral anti-terrorismconventions. Also, as statedearlier in Chapter2 that there is an internationalduty imposedon all Statesby customaryinternational law to take nationalmeasures against terrorism. Sucha duty hasbecome clear in the post-September11, when the SecurityCouncil in Resolution 1373 (2001) requestsall Statesto take various measures,some of which were of domesticnature, to combatterrorism. 323 Nonetheless,it must be said in the conclusion that for a State,like Kuwait, to have an effective national law does not, in many ways, mean that such a State is not in need of international cooperation to fight terrorism. This is because of the simple reason that in many cases terrorists commit their crimes in one State and escape to another, and becauseterrorist organization are operating in many States at the same time, therefore to have an effective national law, which is a positive thing, does not guaranteean effective suppressionof such terrorists. 324 CHAPTER 8. CONCLUSION Many issueshave been coveredby this study, each of which is relatedto a responseor action a Stateor Statescan take againstterrorism. After settingout the introductionof this thesis,this studybegan exploring the conceptof terrorism. Some of the questionsthat were answeredin that sectionwere: why terrorism needsto be defined; is there any definition of terrorism that is acceptedby the international communityand if not, why not? In responseto the last question,failure to reacha decisionis due, at least in part, to the difficulties in finding a distinctionbetween terrorism and people'sarmed strugglefor self-determinationwhich causedthe internationalcommunity to divide into two groupseach of which stresseswhat he thinks is right. In addition to that, thereare other hiddenreasons that preventedStates from reachinga broad definition of terrorism. Among theseis the fact that someStates had beenattacked by terrorist groupsor movements,or were aboutto be, thus theseStates wanted to subscribeto a definition of terrorism that would outlaw the conduct of these terrorist groups or movements. Nonetheless,these States are, at the sametime, reluctantto subscribeto sucha definition becauseof the fear that such a broad definition of terrorismwould alsocriminalize their own useof force againstthese groups and movements. Other States,who had not been attacked,also worried that such a broad definition of terrorism would outlaw their own conduct in certain situations. For example,those who provide supportfor groupsor movementswhich they believe to havethe right of self-determination,worry that a definition of terrorismwould outlaw 325 their own support of such groups or movements when the latter committed acts proscribedby this definition,which theseStates had agreedto. Other questionsthat were discussedin this part included:what are the causes that give rise to the phenomenonof terrorism? And the typologiesor classifications of terrorism,including the relationshipbetween States and terrorismand why they do so,were all exploredin that chapter. Furthermore,this study set out the first type of responsethe international communitytook againstterrorism. That is, the criminalizationof some aspectsof terrorismvia the adoptionof numerousmultilateral conventionseach of which has dealtwith a specifictype of terroristoffence. The reason why the international community did not adopt just one comprehensiveconvention that dealswith terrorismas one problemwas explainedin the early part of this study, which demonstratedthe failure of the international communityto cometo an accepteddefinition of terrorism. Going through these anti-terrorism conventions,one can notice how the internationalcommunity approached terrorism by resortingto a gradualcoverage of terroristoffences of high internationalconcern by concludingone conventiondealing with one aspectof that offence, e.g., hijacking, then concludedanother convention that supplementedthe first by coveringother aspectsof the sameterrorist offenceand so forth. 326 Many writers consideredthis type of responseas a step forward in combating terrorismsince all theseconventions are basedon aut dedereaut judicare principle, which implies that terrorist offences must not go unpunished. Nonetheless,these conventionswere afflicted with shortcomingsthat may, and had in somecases, made them devoid of any real effectivenessin deterring terrorism. One of the most remarkable shortcomingsthat must be reiterated here is the absence of any enforcementmechanism in any of theseanti-terrorism conventions in the caseany of the StatesParties failing to observetheir obligations. It is to be said that thoughit is difficult for Statesto have such an enforcementmechanism at least from a political point of view, it is, nonetheless,to be consideredas a weaknesson part of these conventionsfrom a legalpoint of view. Moreover, this study examined the use of the extradition process as an effective responseto terrorism. However, this study found this processhad been affectedwith someexceptions that made it of limited effectivenessin suppressing terroristswho committedterrorist offencesin one Stateand fled to anotherin order to elude capturein the victim State. All these exceptionsand the judicial and treaty practice of States in this regard were included in this study. This study also consideredthe questionof what possibleoutcomes would result from sucha failure to extraditea suspectedterrorist because of theseexceptions or becauseof uncooperative requestedState was also considered. The ideaof makingterrorism among the crimesthat the InternationalCriminal Court has jurisdiction over was discussedas one of the responsesthe international communitycan take againstterrorism. Argumentsfor and againstsuch an idea were 327 explored. This idea was reinforced more clearly after the Lockerbie stalemate in which the relevant parties had no faith in thejudicial competenceof each other. In addition, the question of what States are doing in reality to suppress terrorism was addressed by this study. Since practical measures taken against terrorism can be both peaceful and coercive, this study devoted one chapter to each of thesetypes in order to give each the attention it deserved. The following are someof the practicalbut peacefulmeasures States can take againstterrorism: Firstly and most importantly, Statescan destroy terrorism by destroyingthe environmentfrom which terrorism emanates. That is, to eliminate the causesand reasonsthat give rise to terrorism in the first place, rather than dealing with its consequences.Examples of these causescan be: social injustice, denial of equal participation in the political system, suppressionof political expression,poverty, frustration,and alien domination or foreignoccupation. In a very recent lecture, the former president of the US Bill Clinton emphasizedhow poverty could play a contributory role in the rising of the contemporaryterrorism. He said 'we have seen how abject poverty accelerates conflict, how it createsrecruits for terroristsand thosewho incite ethnic and religious hatred,how it fuels a violent rejectionof the economicand social order on which our 328 future depends'! Therefore, reducing the risk of terrorism, he thinks, can be achieved by making the wealthy countries spreading the benefits of their economies to poor countries which, as a result, will make more partners and fewer terrorists in the future. Secondly,States can take some of the practical measuresagainst terrorism suchas the strengtheningthe asylumprocedures in order to preventthe abuseof such a legitimateright by terrorists. Anotherimportant practical measure is to stopterrorist fund raising. This problematic step is essentialin the war against terrorism as, without funds,terrorists in manycases will not be able to operateeffectively. Finally, anothersignificant element is the enhancementof the exchangeof information and intelligencebetween States on terroristsor terrorist organizations.Effective exchange of information and intelligence meansthe terrorists' next move is known to the would-betarget States. By contrast,some States beheve that terrorism is a problem that has become too great to be dealt by the peacefulmeasures mentioned above, thus they resort to coercivemeasures to combatterrorism. However, not all coercive measureshave beenincluded in this study. The only type that was discussedwas the use of military force abroad to counter terrorism, as with this type of action there is a clear internationalelement that shouldbe addressed. However,before discussing this type of action,this study stressedvery clearly that this type of responsemust not be resortedto unlessit is unavoidablein casesof self-defenceor uponan authorizationfrom the SecurityCouncil. 1Bill Clinton,The Strugglefor the Soulof the 21' Century,Richard Dimbleby Lecture2001 (14'h Dec.,2001) 329 Next, this study discussedthe various justifications States presentedwhen they usedmilitary force abroadand whetherany of thesejustifications validatethe use of armed force in the context of terrorism. All thesejustifications were considered whether such armed action was taken against individual terrorists operatingin the territory of anotherState or againstthat Statebecause of its purposeful supportto terroristsattacking the offensiveState. Self-defence,reprisal, protection of one'sown nationals,and invitation were all discussedin this study and the questionthen was which of theseexcuses legitimized the useof force againstterrorism. The 1998use of military force by the US againstSudan and Afghanistanwas taken as a casestudy of this chapter. Finally, this chapteranswered the questionof whetherthe use of armed forceagainst terrorism is an efficient deterrent. Subsequently,after analyzingthe variousresponses that had beentaken or can be takenagainst terrorism in a more global sense,this study narrowedits focus to be moreregional, sub-regional, and national. It did so by studyingKuwait's perspective on terrorism. Discussion of Kuwait's perspective on terrorism was divided into two chapters.The first onewas concernedwith: Firstly, Kuwait's attitudesin the UN or any of its specializedagencies when debating the adoption of any new anti-terrorism convention. In this regard, this study found that Kuwait is more attractedto the secondtrend, which constitutesa hard line in any debateover adoptingany new instrumentagainst terrorism unless an exception for the use of armedstruggle in pursuit of the right to self-determinationis provided 330 for. However, the position has, though still publicly proclaimed by Kuwait, been lessenedin its degreeof sternnessin the post-Iraqi invasion era. Secondly, Kuwait as an Islamic country is a member of the Organization of the Islamic Conference. Discussion in this section focussed on what sort of measures this regional organization had taken against terrorism. A comparative analysis between the regional measurestaken by this organization and those of a global nature was presentedin someplaces. Kuwait is also a memberof the Arab League. The questionthere was, as in the above paragraph,has this regional organization taken any action against terrorism?If so,what? The studythen comparedmeasures taken by this organization with measurestaken by the Islamic Conference and measures taken by the internationalcommunity. This study also discussedanother sub-regional organization of which Kuwait is a member.This smallorganization is the Gulf CooperationCouncil, which consists of just six members,all of which overlookthe Arabic Gulf. Similar questionsto the abovewere asked. Questionsof how effective the measurestaken by theseregional organizationswould be in suppressingterrorism and whetherKuwait shouldbecome party to the anti-terrorismconventions adopted by such organizationswere also investigatedin this chapter. The secondchapter studied Kuwait's approachto terrorism,but from a local perspective.Issues such as what sort of measures,especially in term of law enacted 331 there, Kuwait has taken to counter terrorism, and whether such law implemented the anti-terrorism conventions Kuwait had ratified were discussed. Furthermore, the discussion was extended to cover some of the terrorist attacks that have been committed against Kuwait and measuresit took to counter such attacks. Now the questionthat must now be askedis which of the responsesdiscussed in this study is more effective than the others? In other words, how should these responsesbe prioritizedin combatingterrorism? It should be reemphasizedthat the foremost responseto terrorism is to eliminate its underlying causes. Although terrorism cannot be justified for any reason,those reasons must not be ignoredand must be eradicatedimmediately. For example,if one is talking about Palestinianterrorism, he/shemust not forget what causedthis wave of violencein that region in the first place. Combatingthis type of violencecannot be effectively done by oppressionand excessiveuse of force, but simply by freeing the occupiedterritories in accordancewith the outstandingUN resolutions,which haverepeatedly called for immediatewithdrawal of Israel from the Palestinianoccupied territories. What makesthis the obviousresponse is the fact that Israelhas used all the measuresat its disposalin order to deter the Palestiniansfrom usingviolence, but has failed to achievethis result. It has usedmany types of armed responses,whether military invasionsattacking people in the occupiedterritories or assassinationof someof the prominentleaders of the Palestinianmovements either insideor outsidethe Palestinianoccupied territories by specialforces. A total siegeof the Palestinianpopulation in the occupied territories also failed to prevent the Palestiniansfrom infiltrating Israelon a suicidemissions. 332 Moreover,Israel's use of force againstthe Palestiniansin responseto the calls of the extremistsin Israel only gives legitimacyto the extremistson the Palestinian side. Without suchan extremeaction by Israel,the extremistson the Palestinianside would lose publicity and their propagandawould be worthless,if Israel resortedto peacefulresponses instead. The samecan alsobe said in responseto thosewho claim that refugeecamps insideor outsidethe Palestinianoccupied territories are the placesor seedbedswhere the new generationof terroristsare coming into existence,thus thesecamps must be destroyed. They are right these campsmust be destroyedbut not by bombs and rockets but by letting thesepeople return to their homes. Hence, eliminating the reasonsthat give rise to terrorism or use of violence must be the first responseto consider. After that comes the importance of the international criminalization of terrorism by the adoption of the anti-terrorismconventions. In order to combat terrorism more effectively, as many States as possible must outlaw terrorism. Although having only one instrumentthat deals comprehensivelywith terrorism is ideal, what the internationalcommunity has done so far in adopting many anti- terrorismconventions, each of which dealswith a specific type of terrorist offence, shouldnot be undervalued. Unifying or nearly unifying the national laws of States Parties to these anti- terrorism conventions is a very significant result of concluding these instruments. Thus the international community must do its best to make non-StatesParties to these 333 conventions change their positions and become party to these conventions. This can be done either by exerting more international pressure on these States in order to push them to become party or by linking membership of these anti-terrorisin conventions with international trade or any other privileges or features a State Party to these conventions will have over the non-State Party. Therefore, the international community must provide incentives for States in order to encourage them to become parties to theseanti-terrorism conventions. International criminalization of terrorism will also help in capturing terrorists who commit terrorist offences in one State and escapeto another. This is becauseall States Parties to these anti-tefforism conventions are obliged, even though they are not directly connected with such an offence, to extradite or prosecute the alleged offender. This is equal to saying that terrorism is, because of these conventions, becoming an international crime and States have a universal jurisdiction over it. Therefore, terrorists will not have any place to hide, if all States decided to become party to these conventions. Of equal significanceare three other practical measuresthat can also result from internationalcriminalization of terrorism. Theseare: First, preventionof terrorismfunds raising. As terrorismis a crime and States are obliged to suppressit and becausefunding is a prerequisitefor terrorists,States are obligedto hinder and disrupt any flow of moneyto terroristsin order to prevent them from implementingtheir terrorist schemes. This preventivemeasure is very importantsince it is concernedwith the infrastructureof the terrorist organizationnot 334 only the individual terrorists as are many responses. Thus, it aims at destroying such infrastructure and will as a result prevent terrorists from operating effectively. Another practical measurethat is of no less importance in combating terrorism is the effective exchange of information and intelligence between States on terrorist organizations and groups and their plans. Informing each other of terrorist names, networks, financial resources, plans, etc. means that terrorists are exposed to the whole world. Therefore, instead of dealing with the consequencesof any terrorist attack already committed, States can intervene and interrupt such plans before they are implemented. Moreover, even if terrorists manage to commit their planned offence, effective cooperation in the exchange of information and intelligence between Stateswill result in the apprehensionof these offenders. The third importantpractical measure is to strengthenthe rules of asylum in order to preventterrorists from abusingsuch a legitimateright. As a result of the criminalizingof terrorism,terrorists will not be allowedto benefit in any way from the flexible law of asylum,especially in Westerncountries. Therefore,terrorists who commit terroristoffences will be prosecutedin all casesand the questionof whether to grantthem asylumwill not be initiated in the first place, if this measuremakes it clearthat terroristswill alwaysbe refused. Extraditioncan be effectively used againstterrorism if it is properly applied. An effectiveextradition process means there will be no alternativefor terroristswho commit terrorist offencesin one Stateand flee to another. The idea of vesting the InternationalCriminal Court with jurisdiction over terrorism must be stressedhere 335 in becausethe various obstaclesthat hinder extradition from playing its important role the war against terrorism, e.g., political offence exception, humanitarian exception, which cannot be mounted against such an international court. Thus, though the role of extradition in combating terrorism is presently not very optimal, such a role will be of great significance if the International Criminal Court has jurisdiction over terrorism and States are required to extradite alleged terrorists for international prosecution before this court. Finally, the last responseto terrorism can be the use of military force against the sovereignty of another State. This isolationist response is only of short-term effectiveness. In the long run such action will generate more violence. Has the frequent use of military force by Israel and the US prevented them from being attacked so far? Moreover, innocent people are in most cases the victims of such action. The reason why the use of armed action has proved ineffective in deterring terrorism is because it ignores one of the basic facts about terrorism. That is, terrorism is a thought and ideology, thus it must be confronted with thought and ideology. During discussionof the responsesthat can be taken againstterrorism, it has beennoticed that somemeasures or responsesare of national or unilateralnature, if whenthey involvedactions taken againstanother State. Somebilateral, regional, and internationalor multilateralmeasures or actionsagainst terrorism were also analyzed in this study. The questionmust now be which of theselevels upon which an action againstterrorism should be based is more effective or preferable in war against terrorism. 336 Firstly, some States claim to have very effective national laws, thus they do not sign and ratify some anti-terrorism conventions. For example, the reason Kuwait did not sign and ratify some of the anti-terrorism conventions, such as the International Convention for the Suppression of Terrorist Bombings, might be, as there is no other apparentexplanation, becauseKuwait already has a national law that covers the crimes proscribed by these conventions. Having an effective national law is very important in the war against terrorism in order to prevent any loophole in such a State that might be exploited by terrorists. Furthermore, to try and punish terrorists by such an effective law will set an example for others not to do the same. However, this does not mean that such a State does not need to cooperatewith the internationalcommunity by becoming a party to the multilateralanti-terrorism conventions. This is for the simple reasonthat for a State, suchas Kuwait, to havean effectivenational law doesnot guaranteein any way that otherStates have the sameeffective national laws. Moreover,even if theseState have effectivenational laws, that doesnot meanthey will cooperatewith such a Statein deterringterrorists who in many casescommit crimesagainst the jurisdiction of one countryand run awayto another. Therefore,an effectivenational law will not help in capturingthese terrorists from abroadand bringing them to justice either in the victim Stateor in the Statewhere they havebeen captured. Secondly, some States resort to unilateral measures or actions against terrorism,but this time by taking action againstanother State believed to be involved in terroristattacks against the formersor at leastdid not cooperatewith theseStates to 337 prevent these attacks from occurring. An example of unilateral actions discussed in this study was the unilateral use of military force against another State. Such a unilateral action may be justified in some cases, as in cases of taking armed action in self-defence,and may please the victim State as it has respondedwith what it believes to be the most valuable response. However, in many casessuch a unilateral action by one State against another has failed to suppress terrorism and prevent it from recurring. Also suchan actionis an isolationistsolution, i. e., it is availableonly for a few powerful countriesbut not for other Stateswho may want to take action against powerful countries,like the US. In addition, such a unilateral action, especiallythe use of military force by one Stateagainst another, may causetension between States which may furtherinternational conflict insteadof achievingthe opposite. Anotherapproach that has frequentlybeen used by Statesto confront terrorism is a bilateral cooperationbetween two Statesby concluding a bilateral treaty. For example, Kuwait has signed many bilateral treaties with many States for the suppressionof terrorism. The US was also reportedto have more than one hundred bilateraltreaties with many Statesin variousareas. This approachis considered,from the decision-makingpoint of view, to be the simplestand easiestway to cooperate. Also, in such bilateral relationsthe relevant partiesare free to set whateverobligations they want upon themselves.Thus this low degreeof cooperationwill be very agreeableto the national sovereigntyof these 338 Sates, not like the other multilateral arrangements, especially ones with long-term provisions, such Stateswill be bound and the degree of independencewill, to a certain extent, be limited. Moreover,States that sharethe samepolitical and ideologicalvalues will find such a bilateral approacha very efficient in the suppressionof terrorism. Other arrangementswith a large context where difference between Statesis a dominant factorwill resultin a very weakmechanism against terrorism. Furthermore,some Statesprefer bilateral agreementsto national law in the suppressionof terrorism. National law will benefit all Stateswhether democratic or authoritarian,whereas in a bilateral agreementthe benefitswill be confinedto those who makebilateral agreements,i.e., a like-mindedState. Moreover,such a bilateral agreementwill assure that the interpretation of law by the relevant parties in combatingterrorism is the same. Therefore,this will avoid the divergencethat would exist in the absenceof this arrangementwhen one Statehas interpretedits national law in a mannerdifferent from the other. Nevertheless,despite these features the bilateral agreementis still not the best way to counterterrorism. Increasinglythird Statesare becominginvolved in most terrorist offences. It becomesmore difficult to apprehendand prosecutethe alleged terroristwhen more than two Statesare involved. More significantly,to have a very effectivenetwork of bilateral agreementsbetween all Statesaround the world (about 200 States)would require at least 2000 bilateral treaties. This, besidesbeing time consuming,would addto the alreadyexisting complexity in dealingwith terrorism. 339 Regional agreementshave also been used in the war against terrorism. As has been discussedhow the Organization of the Islamic Conference and the Arab League have concluded anti-terrorism conventions. Since most of those parties to these regional organizations have similar political systems and common perceptions of the problem, they have overcome some of the basic problems the international community as whole is still facing when dealing with terrorism. For example, the outstanding dilemma of finding an accepteddefinition of terrorism has been solved by some of these regional agreements, e.g., the OIC and the Arab conventions. Thus these agreementswill contribute to the war against terrorism, especially the fact that some of these regional organizations consist of large number of members, e.g., the Organization of the Islamic Conference has fifty-six members. However, although these regional agreementsare very important for the effective counteringof terrorism,they are not enough. Internationalor multilateral agreementsor measuresare inevitable. Terrorismis no longer confinedto onercjon, insteadthe sameterrorist organization can operate simultaneously in different regions. Hence,having an internationalagreement that deals with terrorism is a vital componentin any strategyagainst terrorism. Although having a comprehensiveantý terrorism conventionis ideal, the existing anti-terrorismconventions should not be underestimated. Terrorism is becoming a widespreadproblem that can occur anywhereand all Statesare vulnerable. Consequently,responses to terrorism should be the productof an internationalcooperation between all States. Encouragingand urging all Statesto becomeparty to the existingbody of internationallaw designedto combatterrorism can also do this. 340 Nonetheless,in the end it must be stated in a very clear terms that none of the these measures or legal responses that are meant to curb terrorism will work effectively, despite their apparent importance, unless the political circumstances in which they are supposedto work are favorable. In other words, these options against terrorism will only be theoretical options unless States have the political will to make them work. Thereare two problematiccases in which the effectivenessof thesemeasures or legal responsesto terrorism could be undermined. The first of which is the so- called 'Maverick State' which not only takesan extremeposition and works outside the line of cooperation,but is alsounpredictable, therefore dangerous. Such a Stateis unwilling to cooperatewith othersin the fight againstterrorism. Hence,even if the international community has adopted some measures against terrorism, these measureswill be meaningless,or at least of less effect than expected,if there is a Stateor Statesthat work againstthem in spite of their initial acceptanceof such measures. This will be the casebecause, as discussedearlier, most of thesemeasures, e.g., the obligation to extradite or prosecute,the non-useof territory for terrorist activities,and the preventionof terrorist fund raising, rely primarily on the national law of these States. Thus any involvementin terrorist activities by these States, especiallyStates which provide safe havensto terrorist organizations,will render thesemeasures futile. 341 The other problematic case that constitutes a serious threat to any effort by the international community to fight terrorism in a more efficient manner is the so-called 'Failed State'. This State is not unwilling to cooperate in the fight against terrorism as in the case of the Maverick State; rather it does not have the capability or ability to do so. For example, a State in which the political system collapsed as a result of internal conflict will not be able, because of this political vacuum, to control certain parts of its territory. Therefore its territory may become available for terrorists to base their criminal activities in. What happenedin Afghanistanbefore the I Vhof Septembercould be cited as an exampleof both casesmentioned above. In Afghanistan,on the one hand there was the ruling Taliban who were known for their extremepolicies, which as a result put them in conflict with many States,especially the neighboring States,and that madeAfghanistan close to being a Maverick State. On the other hand, the ruling Taliban did not control the whole territory of Afghanistan and that resulted in Afghanistan'sterritory becominga base for terrorists to operatefrom. Even more importantly,some believe that the al-Qa'ida terrorist organizationwas, to a certain extent, controlling the ruling Taliban. In such a case all the measuresor legal responsesadopted by the internationalcommunity will not work. In addition, there are two other factors that may, to a certain extent, underminethe effectivenessof some of the anti-terrorismmeasures in some cases. Thesetwo factorsare self-interest and corruption. 342 Firstly, some States may give priority to their self-interest when they are in conflict with any of the measures or legal responses adopted by the international community againstterrorism. As has been discussedearlier in the relevant part of this study, that some Stateswhich are known for being banking centres will be reluctant to cooperatewith the other States on some issues relating to the control of terrorist fund raising when the requirements of such control are not welcomed by their valued clients. Secondly,corruption may, evenin Statesthat are in full cooperationwith other Statesin the fight againstterrorism, undermine any of the measuresor legal responses thathad been taken to suppressterrorism. Suchcases that underminethe internationalcommunity's efforts to deal with terrorismmust be solved,especially after the attacksof September11. Theseterrible terrorist attacksagainst the US have many implicationsfor terrorism that must be mentioned: Firstly, it showsthat terrorismhas shown its face again. More importantly it provesthat terrorismhas not been deterredby the US use of military force against those whom the US attackedtwo years ago and believesare behind this terrorist attack. Secondly,the targetsof this attack,the timing, and the methodsemployed by the terroristsall prove how well organizedand coordinatedterrorism can be. Thus, 343 this attack must be seen as a warning signal for all States to pay more attention to terrorism. Moreover, this incident makes it clear that terrorism not only can cause enormous fear to people, the most distinguishing character of terrorism, but can also causehuge human and economic loss. Therefore, those who underestimate terrorism, as in terrorist attacks usually just a few people die, they must rethink terrorism in a more serious light. Also, the attacking of American targets on American soil by American airplaneson internal flights provesthat the terroristswho attackedthe US, the sole superpowerin the contemporaryworld, can attack any other country. That is, attackingthe US, the most powerful and protectedcountry, will conveya threatto all Statesthat they maybe next. This crisisof SeptemberII hasproved that thereare two main issuesthat need immediateattention from the internationalcommunity in order to enhancethe war against terrorism more clearly and avoid any ambiguity that might hamper this unprecedentedwillingness of all Statesfrom all over the world to combatterrorism andput an endto it. Firstly, the international community must now define terrorism more comprehensively.If the US really wantsall Statesto cooperatein what the US calls a war againstterrorism, those Statesmust know exactly what terrorism the US wants them to fight. Leading the internationalcommunity to define terrorism should be 344 easier than leading it into war. This crisis is presenting a unique opportunity for the US to persuadeother States of its understanding of what constitutes terrorism as this crisis has clearly shown that many States are competing with each other to show alliance to the US. Sympathy with the US and fear from its retaliation against any non-cooperating State have shaped the relationship between the US and the majority of States,therefore, the US must use this chance to work with these Statesand f ind an accepteddefinition of terrorism. The second issue that this crisis has also shown is the importance of establishinga UN fact-finding and assessmentcommission in order to evaluatethe evidencethe US allegesto have in order to preventthe use of military force against other Statesbased on secretevidences. As discussedearlier in this study only some types of relationshipbetween a State and terrorists allow the use of armed force againstsuch a State. Hence,an assessmentof the legality of the use of armedforce in responseto terrorismmust begin with an examinationof the relationshipbetween the Stateand terrorism. This assessmentcannot be properly undertakenunless evidence of sucha relationshipis revealedfor evaluationby the internationalcommunity. Not only has the above-mentionedevidence been withheld by the US, but the US hasalso refrained from sharingthe evidencethat has implicatedbin Ladenand his group in the attackof I I"' September.When it did so, the little evidenceit revealed was not convincingat all. At the sametime the US is requestingsupport from all Statesto hunt down the suspectedterrorists. In doing so, the US is relying on a 'trust us" approach,i. e., error is not possible. Such an approachwill set an unwanted precedentfor all Statesas it will give any Statethe right to attack anotherbased on 345 undisclosedevidence which is not subjectto any internationalscrutiny. This will be the case,unless the US arguesthat it is the US but not other countries,which hasthis right. 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Wilkinson - Wilkinson, P., "Pathways out of Terrorism Domestic and A. Stewart (eds.), Contemporary Research on Terrorism, Aberdeen: Aberdeen UniversityPress, 1987. - Wilkinson, P. and Stewart, A. (eds), ContemporaryResearch on Terrorism, Aberdeen:Aberdeen University Press, 1987. in Stohl - Wilkinson,P., "SupportMechanisms in InternationalTerrorisnf', Slaterand (eds.), Current Perspectiveson International Terrorism, Basingstoke,Macmillan, 1988. Terrorism in A Democratic - Wilkinson, P., "The Role of the Military in Combating Society",8 (1) Terrorismand Political Violence,(Spring 1996). Crimes - Williams, B.F., and Whitney, F.D., Federal Money Laundering: and Forfeitures,Virginia: Lexis Law Pub., 1999. Organized - Williams, P. and Savona,E., The United Nations and Transnational Crime,London; Portland, OR: Cass,1996. - Wilson, J.B., "The United States' Responseto International Terrorisnf', 348 ContributionsIn Political Science,(1994). for - Witten, S., "Current Developments: The International Convention the Suppressionof Terrorist Bombinge', 92 (4) American Journal of International Law, (October1998). - Zander,M., "Extradition of Terroristsfrom Ireland: A Major Judicial Setback,New Lawjournal, (April, 1990). 359 Unpublished Materials: Kuwait Ministry of JusticeMemorandum On The Draft Arabic Convention On CombatingTerrorism (6/2/1996). Kuwait Word Before The Six CommitteeIn The 50h SessionOf The UNGA On The QuestionOf The MeasuresThat Must Be TakenTo CombatTerrorism (6/10/1996). The GCC GeneralSecretariaf s MemorandumOn Terrorism. Newspapers: - Al-QabasNewspaper, (Thursday 23 rd April, 1998). . Al-WatanNewspaper (Thursday 2P April, 1998). - Al-WatanNewspaper (Monday I& April, 2001). - BronwenM., US StrikesBack at Terrorists,The Times,21 August 1998,1. - David A. S.,Letter: It Wasn't Self Defence,The Guardian,24 August 1998, 17. - David H., US Missile Raids:Why Our DrugsFactory? Why Not The Arsenal? The Guardian,22 August 1998,1 - Ibrahim, et al, The Missiles, The Bungling Pentagonand The Nerve Gas FactoryThat Never Was, The Observer,30 August 1998,4. - Julian B., US Missile Raid: SudanPrepares to Make Complaint to the UN, The Guardian,21 August 1998,3. - Philip W., US OwesBritain EvidenceOn Airstrike Targets,Say Labour MPs, TheTimes, 25 August 1998,12. - Tourist Raped and Butcheredin Horrific Act of Revengeon Britain, The IndependentNewspaper, March 3,1999,1. - VX GasClue 'In FactorySoil', The Times,26 August 1998,11 360 Online Sources: AIjazeera TV (3 August, 1999). Allies Back US Strikes, Though Many Question Their Timing, Corpus Christi Caller Times, Friday, August 21,1998, (visited Sept. 24,00), - Ganor, B., "Defining Terrorism: Is One Man's Terrorist Another Man's FreedomFighter? " (Visited Feb. 23,1999) h=: //www.ict. oriz. it/articles/defiiie. htm, _. - Duffy, H., "Respondingto September11: The Frameworkof International LaV', www.interights. org. - Gaja,G, "In What SenseWas ThereAn 'Anned Attack"', www.ejil. org/forum_WTO - Bombings-Quotes,Corpus Christi CallerTimes, Thursday, August 20,1998, (visitedSept. 24,00), - Pattem of Global Terrorism 2000, US Dept. of State, - RomeStatute Signature and Ratification Chart - Stahn,C., "Security Council Resolutions 1368 (2001) and 1373 (2001): What They Say and What They Do Not Say", www. ejil. org/forum-WTO. 361 Sheila MacVicar, Blinded By (Bad) Science? ABCNEWS. Com, Feb. 10, 1999,(visited Sept. 24,00), 362 APPENDIX A: REGIONAL CONVENTIONS AND RESOLUTIONS - Convention of the Organization of the Islamic Conference on Combating IntemationalTerrorism, (1999). TheArab Conventionon the Suppressionof Terrorism,(1998). The Gulf CooperationCouncil on SecurityBetween Member States, (1994). - Organizationof Islamic ConferenceResolution 53/8-P (IS), On Conveningof an InternationalConference Under the Auspices of the United Nations to Define Terrorism and Distinguish It From Peoples' Struggle for National Liberation, (Dec., 1997). - Organizationof Islamic ConferenceResolution 54/8-P (IS), On Follow-up of the Codeof Conductfor CombatingInternational Terrorism, (Dec., 1997). - Organizationof Islamic ConferenceResolution 55/8-P (IS), The Strengthening of IslamicSolidarity in CombatingHijacking, (Dec., 1997). (Note thereare lists of all the internationalconventions and resolutions,e. g., UNGA andUNSC resolutions, that wereused in this studyat the beginningof the thesis) 363 ST COPY AVAILA L Variable print quality PAGE NUMBERING AS ORIGINAL Another W97NVCartman.Poppy Infected Document Page I of 14 ANNEX TO RESOLUTION NO: 59126-P- CONVENTION OF THE ORGANISATION OF THE ISLAMIC CONFERENCE ON COMBATING INTERNATIONAL TERRORISLA The Member Statesof the Organisation of the Islamic Conference, Pursuantto the tenetsof the tolerantIslamic Shariawhich reject all forms of violenceand terrorism, and in particularspecially those based on extremismand call for protectionof humanrights, which provisions are parallelledby the principles and rules of internationallaw founded on cooperation betweenpeoples for the establishmentof peace; Abiding by the lofty, moral and religious principles particularly the provisions of the Islamic Sharia as well as the human heritage of the Islamic Ummah. Adhering to the Charterof the Organisationof the Islamic Conference,its objectivesand principles aimed at creatingan appropriateatmosphere to strengthencooperation and understandingamong Islamic Statesas well asrelevant OIC resolutions; Adhering to the principlesof InternationalLaw andthe United Nations Charteras well as all relevant UN resolutionson proceduresaimed at eliminatinginternational terrorism, and all other conventions and internationalinstruments to which statesacceding to this Conventionare partiesand which call, inter alia, for the observanceof the sovereignty,stability, territorial integrity, political independence and securityof states,and non-intervention in their internationalaffairs; Proceedingfrom the rules of the Code of Conduct of the Organizationof Islamic Conferencefor CombatingInternational Terrorism; Desiring to promote cooperationamong them for combating terrorist crimes that threaten the securityand stability of the Islamic Statesand endangertheir vital interests; Being committed to combating all forms and manifestationsof terrorism and eliminating its objectivesand causes which targetthe lives andproperties of people; Confirming the legitimacy of the right of peoples to struggle against foreign occupation and colonialistand racist regimesby all means,including armedstruggle to liberatetheir territories and attain their rights to self-determinationand independencein compliancewith the purposesand principlesof the Charterand resolutions of the United Nations; Believing that terrorism constitutesa gross violation of human rights, in particular the right to freedomand security, as well as an obstacle to the free functioning of institutions and socio- economicdevelopment, as it aimsat destabilizingStates; Convinced that terrorism cannot be justified in any way, and that it should therefore be unambiguouslycondemned in all its forms and manifestations,and all its actions, means and practices,whatever its origin, causesor purposes,including direct or indirect actionsof States; Recognizingthe growing links betweenterrorism and organizedcrime, including illicit trafficking in arrns,narcotics, human beings and money laundering; httn-//wwwoir. -un nrcy/Mirfm/r html 16/08/23 Another W97WCartman. Poppy Infected Document Page 2 of 14 Have agreed to conclude this Convention, calling on all Member States of the Organization of the Islamic Conferenceto accedeto it. PART I Definition and GeneralProvisions Article 1 For the purposesof this Convention: "Contracting State" or "Contracting Party" means every Member State in the Organisation of the Islamic Conferencethat has ratified or adhered to this Convention and deposited its instruments of ratification or adherencewith the General Secretariat of the Organisation. 2. "Terrorism"means any act of violenceor threatthereof notwithstanding its motivesor intentionsperpetrated to carry out an individual or collective criminal plan with the aim of terrorizingpeople or threateningto harm them or imperiling their lives, honour,freedoms, securityor rights or exposingthe environmentor any facility or public or private property to hazardsor occupyingor seizingthem, or endangeringa nationalresource, or international facilities, or threateningthe stability, territorial integrity, political unity or sovereigntyof independentStates. 3. "TerroristCrime" meansany crime executed,started or participatedin to realizea terrorist objectivein any of the ContractingStates or againstits nationals,assets or interestsor foreign facilities andnationals residing in its territory punishableby its internal law. 4. Crimesstipulated in the following conventionsare also consideredterrorist crimeswith the exceptionof thoseexcluded by the legislationsof ContractingStates or thosewho havenot ratified them: a) Conventionon "Offencesand Other Acts Committedon Board of Aircrafts" (Tokyo, 14.9.1963). b) Convention on "Suppression of Unlawful Seizure of Aircraft" (The Hague, 16.12.1970). c) Conventionon "Suppressionof Unlawful Acts Against the Safety of Civil Aviation" signedat Montrealon 23.9.1971and its Protocol(Montreal, 10.12.1984). d) Convention on the "Prevention and Punishment of Crimes Against Persons Enjoying International Immunity, Including Diplomatic Agents" (New York, 14.12.1973). e) InternationalConvention Against the Taking of Hostages(New York, 1979). f) The United Nations Law of the SeaConvention of 1988and its relatedprovisions on piracy at sea. g) Convention on the "Physical Protection of Nuclear Material" (Vienna, 1979). h) Protocol for the Suppressionof Unlawful Acts of Violence at Airports Serving InternationalCivil Aviation-Supplementaryto the Convention for the Suppressionof Unlawful Acts Againstthe Safetyof Civil Aviation (Montreal, 1988). http://www. oic-un. org/26icfm/c. html 16/08/23 Another W97NVCartman.Poppy Infected Document Page 3 of 14 i) Protocol for the Suppressionof Unlawful Acts Against the Safety of Fixed Platforms on the Continental Shelf (Rome, 1988). j) Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (Rome, 1988). k) International Convention for the Suppression of Terrorist Bombings (New York, 1997). 1) Convention on the Marking of Plastic Explosives for the purposes of Detection (Montreal, 1991) Article 2 foreign a. Peoples' struggle including armed struggle against occupation, aggression, colonialism, in and hegemony, aimed at liberation and self-determination accordance with the principles of international law shall not be considered a terrorist crime. b. None of the terroristcrimes mentioned in the previousarticle shall be consideredpolitical crimes. be c. in the implementationof the provisions of this Conventionthe following crimes shall not consideredpolitical crimeseven when politically motivated: 1. Aggressionagainst kings and headsof stateof ContractingStates or againsttheir spouses, their ascendantsor descendants. 2. Aggressionagainst crown princes or vice-presidentsor deputy heads of governmentor ministersin any of the ContractingStates. 3. Aggression against persons enjoying international immunity including Ambassadors and diplomats in Contracting Statesor in countries of accreditation. 4. Murder or robbery by force against individuals or authorities or meansof transport and communications. 5. Acts of sabotageand destructionof public properties and properties geared for public services,even if belongingto anotherContracting State. 6. Crimesof manufacturing,smuggling or possessingarms and ammunition or explosivesor othermaterials prepared for committingterrorist crimes. d. All forms of internationalcrimes, including illegal trafficking in narcotics and human beings moneylaundering aimed at financingterrorist objectives shall be consideredterrorist crimes. PART 11 Foundationsof Islamic Cooperationfor Combating Terrorism ChapterI In the Field of Security Division I http://www. oic-un. org/26icfin/c. html 16/08/23 Another W97NVCartman.Poppy Infected Document Page 4 of 14 Measures to Prevent and Combat Terrorist Crimes. Article 3 1. The Contracting Statesare committed not to execute, initiate or participate in any form in organizing or financing or committing or instigating or supporting terrorist acts whether directly or indirectly. Committed to prevent and combat terrorist crimes in conformity with the provisions of this Convention and their respective domestic rules and regulations the contracting Statesshall see to: (A) PreventiveMeasures: Barring their territories from being used as an arena for planning, organizing, executing terrorist crimes or initiating or participating in these crimes in any form; including preventing the infiltration of terrorist elements or their gaining refuge or residence therein individually or collectively, or receiving hosting, training, arming, financing or extending any facilities to them. 2. Cooperatingand coordinatingwith the rest of the ContractingStates, particularly neighbouringcountries which suffer from similar or commonterrorist crimes. 3. Developingand strengtheningsystems relating to detectingtransportation, importing, exportingstockpiling, and using of weapons,ammunition and explosivesas well as othermeans of aggression,killing and destructionin additionto strengtheningtrans- borderand custom controls in orderto intercepttheir transferfrom one Contracting Stateto anotheror to other Statesunless they are intendedfor specific legitimate purposes. 4. Developingand strengthening systems related to surveillanceprocedures, securing borders,and land, seaand air passagesin orderto preventinfiltration throughthem. 5. Strengtheningsystems for ensuringthe safetyand protection of personalities,vital installationsand means of public transport. 6. Re-enforcingprotection, security and safetyof diplomatic and consularpersons and missions;and regional and internationalorganizations accredited in the Contracting Statein accordancewith the conventionsand rules of internationallaw which govern this subject. 7. Promotingsecurity intelligence activities and coordinatingthem with the intelligence activitiesof eachContracting State pursuant to their respectiveintelligence policies, aimedat exposingthe objectivesof terrorist groupsand organisations,thwarting their designsand revealing the extentof their dangerto securityand stability. 8. Establishinga database by eachContracting State to collect and analyzedata on terroristelements, groups, movements and organizationsand monitor developmentsof the phenomenonof terrorismand successfulexperiences in combatingit. Moreover,the ContractingState shall updatethis informationand exchangethem with competent authoritiesin 9. otherContracting States within the limits of the laws and regulationsin every State. http://www. oic-un. org/26icfin/c. html 16/08/23 Another W97NVCartman.Poppy Infected Document Page 5 of 14 (B) Combating Measures: 1. Arresting perpetratorsof terrorists crimes and prosecuting them according to the national law or extraditing them in accordancewith the provisions of this Convention or existing Conventions between the requesting and requested States. 2. Ensuring effective protection of persons working in the field of criminal justice as well as to witnessesand investigators. 3. Ensuring effective protection of information sources and witnesses on terrorist crimes. 4. Extending necessaryassistance to victims of terrorism. 5. Establishingeffective cooperation between the concernedorgans in the contracting Statesand the citizensfor combatingterrorism including extendingappropriate guaranteesand appropriate incentives to encourageinforming on terrorist actsand submittinginformation to help uncoverthem and cooperatingin arrestingthe perpetrators. Division 11 Areas of Islamic cooperation for preventing and combating terrorist crimes. Article 4 Contracting Statesshall cooperateamong themselvesto prevent and combat terrorist crimes in accordancewith the respectivelaws andregulations of eachState in the following areas: Exchange Information First't of I- ContractingStates shall undertaketo promoteexchange of information amongthem as such regarding: a. Activities andcrimes committed by terrorist groups,their leaders,their elements,their headquarters,training, means and sourcesthat provide financeand weapons,types of arms,ammunition and explosivesutilized as well as other ways and meansto attack,kill anddestroy. b. Meansof communicationsand propaganda utilized by terrorist groups,how they act, movementof their leaders,their elementsand their travel documents. 2- Contracting States shall expeditiously inform any other Contracting State regarding available information about any terrorist crime perpetrated in its territory aimed at underminingthe interestsof that Stateor its nationalsand to state the facts surroundingthe crime in termsof its circumstances,criminals involved, victims, losses,devices and methods utilized to carry out the crime, without prejudicinginvestigation and inquiry requisites. 3- ContractingStates shall exchangeinformation with the other Parties to combat terrorist crimesand to inform the ContractingState or other Statesof all availableinformation or data that could preventterrorist crimes within its territory or against its nationals or residentsor interests. 4- The ContractingStates shall provide any other ContractingState with availableinformation or datathat will: http://www. oic-un.org/26icfin/c. html 16/08/23 Another W97NUCartman.Poppy Infected Document Page 6 of 14 a. Assist in arresting those accused of committing a terrorist crime against the interests of that country or being implicated in such acts either by assistance, collusion, instigation, or financing. b. Contribute to confiscating any arms, weapons, explosives, devices or funds spent or meant to be spent to commit a terrorist crime. 5- The Contracting States undertake to respect the confidentiality of information exchanged between them and shall refrain from passing it to any non-Contracting States or other parties without prior consentof the source country. Investigation _Second- Each ContractingState pledges to promotecooperation with other contractingstates and to extend assistancein the field of investigationprocedures in terms of arresting escapedsuspects or those convicted for terroristcrimes in accordancewith the laws and regulationsof eachcountry. Third, Exchangeof Expertise ContractingStates shall cooperatewith eachother to undertakeand exchangestudies andresearches on combatingterrorist crimes as well as exchangeof expertisein this field. 2. ContractingStates shall cooperatewithin the scopeof their capabilitiesto provide availabletechnical assistance for preparingprogrammes or holdingjoint training sessionswith oneor more ContractingState if the needarises for personnelrequired in the field of combatingterrorism in orderto improvetheir scientific and practical potentialand upgrade their performancestandards. Fourth:Education and Information Field The ContractingStates shall cooperatein: 1. Promotinginformation activities and supportingthe massmedia in orderto confront the vicious campaignagainst Islam, by projectingthe true imageof toleranceof Islam, and exposingthe designsand dangerof terroristgroups against the stability and securityof Islamic States. 2. Includingthe noblehuman values, which proscribethe practiceof terrorism in the educationalcurricula of ContractingStates. 3. Supportingefforts aimedat keepingabreast of the ageby introducingan advanced Islamicthought based on iitiha by which Islam is distinguished. Chapter II In the Judicial Field SectionI ExtraditingCriminals Article 5 http://www. oic-un. org/26icftn/c. html 16/08/23 Another W97NVCartman.Poppy Infected Document Page 7 of 14 Contracting Statesshall undertake to extradite those indicted or convicted of terrorist crimes, requestedfor extradition by any of these countries in compliance with the rules and conditions stipulated in this Convention. Article 6 Extradition shall not be permissible in the following cases: 1. If the Crime for which extradition is requested is deemed by the laws enforced in the requestedContracting State as one of a political nature and without prejudice to the provisions of Article 2, paragraphs2 and 3 of this Convention for which extradition is requested. 2. If the Crime for which extradition is sought relates solely to a dereliction of military obligations. 3. If the Crime for which extraditionis requested,was committedin the territory of the requestedContracting State, unless this crime hasundermined the interestsof the requestingContracting State and its laws stipulatethat the perpetratorsof thosecrimes shallbe prosecutedand punished providing that the requestedcountry hasnot commencedinvestigation or trial. 4. If the Crimehas been the subjectof a final sentencewhich hasthe force of law in the requestedContracting State. 5. If the actionat the time of the extraditionrequest elapsed or the penaltyprescribed in accordancewith the law in the ContactingState requesting extradition. 6. Crimescommitted outside the territory of the requestingContracting State by a person who wasnot its nationaland the law of the requestedContracting State does not prosecutesuch a crime if perpetratedoutside its territory by sucha person. 7. If pardonwas grantedand includedthe perpetratorsof thesecrimes in the requesting ContractingState. 8. If the legal systemof the requestedState does not permit extraditionof its national,then it shallbe obligedto prosecutewhosoever commits a terrorist crime if the act is punishablein both Statesby a freedomrestraining sentence for a minimum period of oneyear or more.The nationalityof the personrequested for extraditionshall be determinedaccording to the dateof the crime taking into accountthe investigation undertakenin this respectby the requestingState. Article 7 If the personrequested for extradition is under investigationor trial for anothercrime in the requestedState, his extraditionshall be postponeduntil the investigationis disposedof or the trial is over and the punishmentimplemented. In this case,the requestedState shall extradite him provisionally for investigationor trial on condition that he shall be returnedto it before executionof the sentenceissued in the requestedState. Article 8 For the purposeof extraditingcrime perpetratorsaccording to this Convention,the domestic legislationsof ContractingStates shall not haveany bearingas to their differenceswith respect http://www. oic-un. org/26icfin/c. html 16/08/23 Another W97NVCartman.Poppy Infected Document Page 8 of 14 to the crime being classified as a felony or misdemeanor, nor as to the penalty prescribed for it. Section11 Rogatory Commission Article 9 Each Contracting State shall request from any other Contracting State to undertake in its territory rogatory action with respect to any judicial procedures concerning an action involving a terrorist crime and in particular: 1. To hearwitnesses and testimoniestaken as evidence. 2. To communicatelegal documents. 3. To implement inquiry and detention procedures. 4. To undertake on the sceneinspection and analyse evidence. 5. To obtainnecessary evidence or documentsor recordsor their certified copies. Article 10 Each ContractingState shall implementrogatory commissionsrelated to terrorist crimes and may rejectthe requestfor implementationwith respectto the following cases. 1. If the crime for which the requestis made,is the subjectof a charge,investigation or trial in the countryrequested to implementrogatory commission. 2. If the implementationof the requestprejudices the sovereigntyor the securityor public orderof the countrycharged with this mission. Article II The requestfor rogatory mission shall be implementedpromptly in accordancewith the provisions of the domestic laws of the requested State and which may postpone its implementationuntil its investigationand prosecutionprocedures are completedon the same subjector until the compellingreasons that called for postponementare removed.In this case the requestingState shall be informedof this postponement. Article 12 The requestfor a rogatory commissionrelated to a terrorist crime shall not be refusedon the groundsof the rule of transactionconfidentiality for banks and financial institutions. And in the implementationof the requestthe rules of the enforcing Stateare to be followed. Article 13 The procedure,undertaken through rogatory commissionin accordancewith the provisionsof this Convention,shall have the samelegal effect as if it was brought before the competent authorityin the Staterequesting rogatory commission.The resultsof its implementationshall only be utilized within the scopeof the rogatorycommission. http://www. oic-un. org/26icfin/c. html 16/08/23 Another W97NVCartman.Poppy Infected Document Page9 of 14 Section3 Judicial Cooperation Article 14 Each Contracting State shall extend to the other contracting parties every possible assistance as may be necessaryfor investigation or trial proceedings related to terrorist crimes. Article 15 1. lfjudicial competenceaccrues to one of the Contracting States for the prosecution of a subject accusedof a terrorist crime, this State may request the country which hosts the suspectto prosecutehim for this crime subject to the host country's consent and providing the crime is punishable in that country by a freedom restraining sentencefor at least one year or by a more severe sanction. In such a case the requesting State shall pass all investigation documents and evidence related to the crime to the requested State. 2. Investigationor trial shall be conductedon the groundsof the caseor casesbrought by the requestingState against the accusedin accordancewith the legal provisionsand proceduresof the countryholding the trial. Article 16 The requestfor trial on the basis of para (1) of the previous article, entails the suspensionof proceduresof prosecution,investigation and trial in the territory of the requestingState except thoserelating to the requisitesof cooperation,assistance or rogatorycommission sought by the Staterequested to hold the trial procedures. Article 17 Proceduresundertaken in eitherof the two States- the requestingState or the one where the trial is held - shall be subjectto the law of the country wherethe procedureis executedand which shall havelegal preeminenceas may be stipulatedin its legislation. 2. The requestingState shall not bring to trial or retrial the accusedsubject unless the requestedState refuses to prosecutehim. 3. In all casesthe Staterequested to hold trial shall inform the requestingcountry of its actionwith respectto the requestfor trial and shall communicateto it the resultsof its investigationsor trial proceedings. Article 18 The Staterequested to hold trial may undertakeall measuresand proceduresstipulated by its legislationregarding the accusedboth beforeand after the requestfor trial is received. Section 4 Seized Assets and Proceeds of the Crime Article 19 If the extradition of a subject is decided, the Contracting State shall hand over to the http://www. oic-un. org/26icfin/c. html 16/08/23 Another W97NVCartman.Poppy Infected Document Page 10 of 14 requesting Statethe assetsand proceeds seized, used or related to the terrorist crime, found in the possessionof the wanted subject or with a third party. Article 20 The State requested to hand over the assets and proceeds may undertake all necessary custodial measuresand procedures for the implementation of its obligation. It may also retain them provisionally if required for penal action implemented therein or hand them to the requesting Stateon condition that they shall be returned for the same purpose. Section5 Exchange of Evidence Article 21 A Contracting State shall see to it that the evidence and effects of any terrorist crime committedon its territory againstanother Contracting State are examinedby its competent organsand may seek assistanceto that end from any other Contracting State. Moreover, it shall take everynecessary step to safeguardthe evidenceand proof of their legal relevance.It may communicate,if requested,the result to the country whose interestwere targetedby the crime. The Stateor Stateswhich have assistedin this caseshall not passthis information to others. PART III Mechanism for Implementing Cooperation ChapterI Extradition Procedures Article 22 The exchangeof extraditionrequests between Contracting States shall be undertakendirectly throughdiplomatic channels or throughtheir Ministries of Justiceor their substitute. Article 23 A requestfor extraditionshall be submittedin writing and shall include: 1. The original or an authenticatedcopy of the indictment, arrest order or any other instrumentsof identical weight issuedin line with the conditionsstipulated in the requesting State'slegislation. 2. A statementof the acts for which extradition is sought specifying the dates and places, wherethese acts were committedand their legal implicationsalong with referenceto the legal articlesunder which they fall as well as a copy of thesearticles. 3. Description,in as much detail as possible,of the subject wanted for extradition and any otherinformation such as to determinehis identity and nationality. Article 24 http://www. oic-un. org/26icfin/c. html 16/08/23 Another W97M/Cartman.Poppy Infected Document Page II of 14 1. The judicial authorities in the requesting State may approach the requested State by any channel of written communication and seek the preventive arrest of the wanted subject pending the arrival of the extradition request. 2. In this case the requested State may effect the preventive arrest of the wanted subject. However, if the request for extradition is not submitted together with the necessarydocuments listed in the above article, the subject whose extradition is sought may not be detained for more than thirty days as of the day of his arrest. Article 25 The requestingState shall senda requesttogether with the documentslisted in Article 24 of this Convention. If the requestedState acceptsthe request as valid, its competent authorities shall implement it in accordancewith its legislationand shall promptly notify the requestingState of the action undertaken. Article 26 detention * In all casesstipulated in the two articlesabove, preventive shall not exceedsixty days after the dateof arrest. be during in e Temporaryrelease may effected the period stipulated the previousarticle and the requestedState shall take appropriate measures to ensurethat the wantedsubject does not escape. his if it his * Releaseshall not preventthe re-arrestof the subjectand extradition was requestedafter release. Article 27 If the requestedState requires additional clarification to ascertainthe conditions stipulatedin this chapter,it shall notify the requestingState thereof and fix a datefor provision of suchclarifications. Article 28 If the requestedState received a numberof extraditionrequests from various countriesrelated to the sameor diverseacts, this Stateshall decideupon theserequests bearing in mind the circumstances and in particularthe possibility of subsequentextradition, date of receiving the requests,degree of the dangerof the crime andwhere it was committed. ChapterII Measuresfor Rogatory Commissions Article 29 Rogatory Commission requestsmust specify the following: 1. The competentauthority that issuedthe request. 2. Subjectof the requestand its reason. 3. The identity andnationality of the personbeing the subjectof the rogatory commission (asmay be possible). http://www. oic-un. org/26icfin/c. html 16/08/23 Another W97NVCartman.Poppy Infected Document Page 12 of 14 4. Information on the crime requiring rogatory commission, its legal definition and penalty inflicted on its perpetratorsalong with maximum available information on its circumstancesin order to ensure the efficient implementation of the rogatory commission. Article 30 1. The requestfor rogatory commission shall be forwarded by the Ministry of Justice in the requesting Stateto the Ministry of Justice in the requested State and returned in the sameway. 2. In caseof expediency,the requestfor rogatorycommission shall be directly forwarded by thejudicial authoritiesin the requestingState to thejudicial authoritiesin the requestedState. A copy of this rogatorycommission shall also be sentat the sametime to the Ministry of Justicein the requestedState. The rogatory commissionshall be returnedtogether with the papersconcerning its implementationin the way stipulatedin the previousitem. 3. The requestfor rogatory commission maybe forwarded directly from the judicial authorities to the competent authority in the requestedcountry. Answers may be sent directly through the said authority. Article 31 Requestsfor rogatorycommission and accompanyingdocuments shall be signedor stampedwith the seal of a competentauthority or that authorizedby it. Thesedocuments shall be exemptedfrom all formal proceduresthat couldbe requiredby the legislationof the requestedState. Article 32 if the authoritythat receivedthe requestfor rogatorycommission was not competentenough to deal with it, it shall automaticallytransfer it to the competentauthority in its country. If the requestis forwardeddirectly the answershall reachthe requestingState in the samemanner. Article 33 Any refusalfor rogatorycommission shall be explained. ChapterIII Measuresfor Protecting Witnessesand Experts Article 34 If the requesting State deems that the appearance of the witness or expert before its judicial authorities is of special importance, reference thereto shall be made in its request. The request or summons shall include an approximate statement in terms of compensation, travel expenses, accommodation and commitment to make these payments. The requested State shall invite the witness or expert and inform the requesting State about his/her reply. Article 35 1. No penaltynor coercivemeasure may be inflicted upon the witnessor expert who does not complywith the summonseven if the writ providesfor sucha penalty. http://www. oic-un. org/26icfm/c. html 16/08/23 AmotherW97NUCartman. Poppy Infected Document Page13 of 14 2. If the witness or expert arrives voluntarily to the territory of the requesting State, he shall be summonedaccording to the provisions of the internal legislation of this State. Article 36 1. A witnessor expertmay not be subjectedto trial, detainedor havehis freedomrestricted in the territory of the requestingState, for actsor court rulings that precededhis departurefor the requestingState, irrespective of his nationality, as long as his appearancebefore the judicial authoritiesof the said Stateis basedon a summons. 2. No witness or expert, whatever his nationality, appearing before the judiciary of the State in question on the basis of a summons, may be prosecuted or detained or have his freedom restricted in any way on the requesting State'sterritory for other acts or court decisionsnot mentioned in the summons and predating his departure from the State from which he is requested. 3. The immunityprivileges stated in this Article shall becomeinvalid if a witnessor expert remainson the requestingState's territories for over thirty consecutivedays despite his ability to returnonce his presencewas no longer requestedby the judiciary, or if he returnsto the requestingState's territories after his departure. Article 37 1. The requestingState shall undertakeall necessarymeasures to ensurethe protectionof a witness his or expert from publicity that could endangerhim, his family or his property as a result of testimonyand in particular: a) To ensureconfidentiality of the dateand placeof his arrival as well as the meansinvolved. b) To ensureconfidentiality of his accommodation,movements and locations where he may be found. c) To ensureconfidentiality of the testimony and information given to the competentjudicial authorities. 2. The requestingState shall provide necessarysecurity required by the condition of the witnessor expertand of his family, andcircumstances of the caseand typesof expectedrisks. Article 38 1. If the witnessor expertwho is summonedto the requestingState is imprisonedin the requested State,he shall be provisionally transferredto the location of the hearing at which he is to testify accordingto conditionsand times determinedby the requestedState. Transfer may be denied: a. If the witnessor expertrefuses. b. If his presenceis necessaryfor undertakingcriminal proceduresin the territory of the requestedState. c. If his transferwould prolonghis imprisomment. http://www. oic-un. org/26icfin/c. html 16/08/23 Another W97NVCartman.Poppy Infected Document Page 14 of 14 d. If there are considerationsmilitating against his transfer. 2. The transferred witness or expert shall remain in detention in the territory of the requesting State until he is repatriatedto the requestedTate unless the latter requestshis release. PART IV Final Provisions Article 39 This Conventionshall be ratified, or adheredto, by the Signatory Statesand the instrumentsof ratification or accessionshall be depositedwith the General Secretariatof the Organisationof the Islamic Conferencenot exceedinga period of thirty days as of the date of ratification or accession. The General Secretariatshall inforin all Member States about any deposition and date of such instruments. Article 40 1. This Conventionshall enter into force thirty days after the deposit of the seventhinstrument of ratification or accessionat the OIC GeneralSecretariat. 2. This Conventionshall not be applicableto any other Islamic Stateuntil it depositsits instruments of ratification or accessionwith the General Secretariat of the Organisation of the Islamic Conferenceand after a periodof thirty daysof the dateof deposition. Article 41 it is not permissiblefor any ContractingState to make any reservation,explicitly or implicitly in conflict with the provisionsof this Conventionor deviatingfrom its objectives. Article 42 1. A ContractingState shall not withdraw from this Conventionexcept by a written requestto the SecretaryGeneral of the Organizationof the Islamic Conference. 2. Withdrawal shall be affective six months after the date of sendingthe requestto the Secretary General. This Conventionhas been written in English, Arabic and French of equal authenticity, of one original depositedwith the GeneralSecretariat of the Organizationof the Islamic Conferencewhich shall have it registeredat the United Nations Organization,in accordancewith the provisions of Article 102of its Charter.The GeneralSecretariat shall communicateapproved copies thereof to the MemberStates of the Organizationof the Islamic Conference. http://www. oic-un. org/26icftn/c. html 16/08/23 partff Regional InstrumenLy The Arab Convenlion on the Suppressionof rerrorisim 1998 integrity of eachArab country, the foregoing being in accordancewith the In the nameofA Hah,the Beneficentand Merciful purposesand principles of the Charterof the United Nations and with the Organization'sresolutions, 16. The Arab Convention on the Suppression HAVE of Terrorism' AGREED to conclude this Convention and to invite any Arab State that did not participate in its conclusion to accede hereto. Signedat Cairo on 22 April 1998 Entry intoforce in accordancewith Article 40 PART ONE Depositary: GeneralSecretarial ofthe LeagueofArab States DEFINITIONS AND GENERAL PROVISIONS Article I PREAMBLE Each of the following terms shall be understood in the light of The Arab Statessignatory hereto, the definition given: DESHUNGto promote mutual cooperationin the suppressionof I Contracting State terrorist offences,which posea threat to the security and stability of the Arab Nation and endangerits vital interests, Any memberState of the Leagueof Arab Statesthat has ratified this Conventionand that hasdeposited its instrumentsof ratification with BEINGCOMMITTED to the highest moral and religious principles the General Secretariatof the League. and, in particular, to the tenets of the Islamic Sharia, as well as to the humanitarian heritage of an Arab Nation that rejects all forms of violence 2. Terrorism and terrorism and advocates the protection of human rights, with which international law based precepts the principles of conform, as they are on Any act or threatof violence, whatever its motives or purposes, in cooperation among peoples the promotion of peace, that occurs for the advancementof an individual or collective criminal agenda,causing terror among people, causing fear by harming them, or Pact League Arab BEING FURTHERCOMMITTED to the of the of placing their lives, liberty or security in danger, or aiming to cause States, Charter United Nations international damage the of the and all the other to the envirotunentor to public or private installationsor property instruments Contracting States covenants and to which the to this or to occupy or seizethem, or aiming to jeopardize a national resource. Convention are parties, Terrorist offence AFFIRMINGthe right of peoplesto combat foreign occupation in Any and aggressionby whatevermeans, including armedstruggle, order to offence or attemptedoffence committed in furtheranceof liberate their territories and securetheir right to self-determinationand a terrorist objective in any of the Contracting States,or against their independenceand to do so in such a manneras to preservethe territorial nationals,property or interests,that is punishableby their domestic law. The offences stipulated in the following conventions, except where conventions have not been ratified by Contracting States or where offenceshave been by their legislation, be 'Translationfrom the Arabic by the linited Nations excluded shall also regardedas originalprovided terrorist Secretariat. offences: 0-ý P»% g 0-1 Z! 5- Je, oý EL !; Z 13 ;jz ;ý Ih- - -4 ;ý ;12 ;ý %W < 0 . -. Z5 SO.- ti n ro 12 cl n to C) , >, m 0 0 Er Z. 2: nn2. 00 =0=3 --, 0=ý!!. 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Jjai jl & ýJULYI #14 eLl-ad % ea-c. JI Altljpjý fit YeýýYl LJLLY1 YA :, ala . eMt L;.Aal eu. 'I eU.a,Yl UjUal "+ZU)Lt. ,j 6Laj_q.,jl UjIl- w .J. J=l 'rýAylC)3L*.! UU4-az "j, RESOLUTION NO. 53/8-P (IS) ON CONVENING OF AN INTERNATIONAL CONFERENCE UNDER THE AUSPICES OF THE U. N. TO DEFINE TERRORISM AND DISTINGUISH IT FROM PEOPLES'STRUGGLE FOR NATIONAL LIBERATION. The Eighth Sessionof the Islamic SummitConference (Session of Dignity, Dialogue, Participation),held in Tehran,Islamic Republicof Iran, from 9 -11 Shaaban1418H (9-11December, 1997), Committedto the moral and humanprinciples that the O.I. C. Member Statesbelieve in, and inspired by their sublime and tolerant religion; their heritageand tradition which call for the renunciationof all forms of injustice, aggressionand acts of intolerance; Proceedingfrom the convictionthat there is an internationalconsensus on combating terrorismin all its forms; eliminatingthe causesof terrorism directedagainst the life and propertyof innocentpeople, the violation of the sovereigntyof States,and the jeopardizingof the rights of peoples; Convincedof the need for drawing clear-cutand agreedupon internationalcriteria, enablingthe internationalcommunity to differentiate clearly betweenterrorism and people'sstruggle for nationalliberation; Affirming the need for Islamic cooperationto take practical measureswhereby terrorism is effectively fought and checked in the framework of what had been underlinedin the Codeof Conductfor combatinginternational terrorism, approved by Resolution43n-P (is) of the SeventhIslamic Summit; Also reaffirming the fundamentaland legitimate rights of all peoplesliving under colonial andracist regimes as well as foreign occupationto fighting occupationand to self-determination,particularly the struggleof nationalliberation movements; Condemningall terrorist acts, including acts perpetratedby States,either directý or indirectly, which spreadviolence and terror and aim at destabilizing countriesand communities; Denouncingthe frantic attemptsaimed at obliteratingthe clear distinction between terrorismand the legitimatestruggle of peopleswhich conformswith the principlesof internationallaw and the provisionsof the Chartersof the Organisationof the Islamic Conferenceand the United Nations; Having noted the classificationsadopted by some sides on the basis of biased political considerationsin accordancewith which some Islamic States are listed amongthe so-calledstates which sponsorterrorism; Recalling U.N. GeneralAssembly Resolution 1514 (1960) on granting the right to self-determinationand independenceto colonisedcountries and peoples,and U.N. General Assembly Resolution 42/104, adopted on 7 December 1987; Recalling also Resolution 42/7-P(IS) adopted by the Seventh Islamic Summit and Resolution 44/24-P adopted by the Twenty-fourth Islamic Conference of Foreign Ministers; 1. Reiteratesits support for convening an International Conference under the auspices of the United Nations to define terrorism and to distinguish it from the struggle of peoples for national liberation. 2. Commends the efforts made during the Fifty-first Session of the U. N. General Assembly regarding the convening of an International Conference to this end. 3. Invites Member Statesto stressthe need for convening an International Conference for defining the meaning of terrorism, and for distinguishing terrorism from the struggle of peoples for national liberation. 4. Requeststhe Secretary General to follow-up the implementation of this resolution and submit a report to the Ninth Session of the Islamic Summit Conference. RESOLUTION NO. 54/8-P (IS) ON THE FOLLOW-UP OF THE CODE OF CONDUCT FOR COMBATING INTERNATIONAL TERRORISM The Eighth Sessionof the Islamic Summit Conference (Session of Dignity, Dialogue, Participation), held in Tehran, Islamic Republic of Iran, from 9 -11 Shaaban 1418H (9-11 December, 1997), Recalling the Makkah Al Mukarramah Declaration of the Third Islamic Summit Conference and Resolution No. 44/21-P adopted at the Twenty-first Session of the Islamic Conference of Foreign Ministers held in Karachi as well as the Resolution 43n-P (IS) adopted at the Seventh Islamic Summit, which approved the Code of Conduct for combating international terrorism; Recalling also the U. N. Resolution No. 49/60 relating to the Declaration of principles on the fight against international terrorism; Affirming the determination to combat the terrorist acts in all their forms and manifestations, including those where Statesare involved directly or indirectly; Reiterating the commitment to combat terrorism in all its forms and manifestations and to eliminate the evils and causesof terrorism directed against the life and property of innocent people and sovereignty, territorial integrity, stability and security of States and to uphold the provisions of the Code of Conduct for combating international terrorism, which reaffirm this commitment; Emphasizingthe importanceof international and regional cooperation,especially amongMember States,including coordinationand exchangeof information among their competentauthorities in combatingeffectively all forms of terrorism; Reiterating the call upon Member States to observe the principles of good neighbourlinessand non-interventionin the internal affairs of the States and to preventthe use of their territoriesby individuals or groups for the commissionof territoristicacts against other Member States; Emphasizingthe importanceof the establishmentof a climate of confidenceand solidarityamong Member States; Alarmed by the continuationof terrorist acts and the increasinglevel of atrocities accompanyingthem speciallythose targeting foreign tourists recently; Consciousof the negativeimplications of all forms of terrorism on the image of Islam; 1. DeclaresIslam innocent of all forms of terrorism which causesthe murder of innocentpeople whose killing is forbiddenby Allah. 2. Strongly condemnsthe perpetratorsof these atrocities pretendingto act in the nameof Islam or underany otherpretext. 3. Calls upon all states not to grant these terrorists asylum, to take all necessary measuresand cooperatein bringing them to justice. 4. Reaffirms that the struggle of peoples under colonial or alien domination or foreign occupation to realize their right of self-determination does not constitute terrorism. 5. Reaffirms the commitment of Member States to the provisions of the Code of Conduct for Combating International Terrorism and inter-alia those relating to their commitment to refrain from undertaking, attempting or participating in any way in financing, instigating or supporting directly acts of terrorism, and also those urging them to strive to take all necessarymeasures to ensure their territories are not used for planning, organizing, executing, initiating or participating in any terrorist acfivity. 6. Calls upon Member States to strive to enhance their cooperation, in accordance with their internal laws and relevant international arrangements and conventions, in countering and combating terrorist acts, prosecuting their perpetrators or handing them to their respective countries or the state where the act was committed, in accordancewith their bilateral agreementsand arrangementsas well as cooperation in the fields of exchangeof relevant infortnation on terrorists and their activities. 7. Calls upon Member States to follow-up the Code of Conduct, and to coordinate their stands and achieve cooperation in the light of the principles and provisions stipulated in the Code of Conduct at all international conferences and fora concerned with international terrorism. 8. Invites Member States' GovernmentalExperts Group to consider, in their forthcomingmeeting, ways and meansof elaboratinga draft conventionon combating internationalterrorism on the basis of the principles enshrined in the Code of Conduct,to continue its meetingsand expeditethe achievementof its task and urges the Member Statesto see to the necessaryparticipation of their experts in the meetingsof the Group. 9. Requeststhe SecretaryGeneral to continue the disseminationof the Code of Conductand to follow-up the implementationof this resolutionin close cooperation with MemberStates and submit a report to the Ninth Sessionof the Islamic Summit Conference. RESOLUTION NO. 55/8-P (IS) ON THE STRENGTHENING OF ISLAMIC SOLIDARITY IN COMBATING HIJACKING The Eighth Sessionof the Islamic Summit Conference (Session of Dignity, Dialogue, Participation), held in Tehran, Islamic Republic of Iran, from 9 -11 Shaaban 1418H (9-11 December, 1997), RecallingResolutions 28/12-P, 25/13-P, 22/14-P, 19/15-P,3/16-P, 35/17-P, 31/18-P, 40/19-P,29/20-P, 45/21-P, 44/22-P, 45/23-P and 46/24-Pon combatinghijacking of aircraft adoptedby the different Sessionsof the Islamic Conferenceof Foreign Ministers; Taking into considerationthat the hijacking of aircraft and the anguishcaused to innocentpassengers is a crime as graveas highwayrobbery which is prohibitedby the Islamic Shariahin accordancewith the text of the Holy Quran(Surat AWaida/33); Noting that crimes of hijacking aircraft have continuedin spite of the signing of all international agreementsand conventionsprohibiting them and calling for the impositionof moresevere sanctions against hijacking; Affirming that acts of violence againstinnocent passengers in addition to the dread, terror and suffering causedto them and to their relatives and their exposureto unjustified physical and mental torture are contrary to the provisions of Islamic Shariah; Having consideredthe reportof the SecretaryGeneral on the strengtheningof Islamic solidarityin combatinghijacking; Consciousof the need for the full observanceof internationalconventions against hijacking; 1. Condemnsall forms of internationalterrorism including the crime of hijacking aircraft andunlawful actsagainst the safetyand security of civil aviation. 2. Calls on Member Statesto refuse to yield to the demandsof hijackers which constitutea form of extortioncontrary to the interestsof the peoplesand countriesof the OIC andestablished rules. 3. Calls upon Member Statesto take all necessarymeasures to curb such crimesand to inflict the most severepunishments upon offendersinvolved in them or to hand them over to the other States concerned. 4. Calls upon Member Stateswhich have not accededto the Tokyo Convention (1963), the Hague Convention (1970) and the Montreal Convention (1971) on penaltiesfor hijacking and guaranteesfor the securityand safetyof civil aviation,to expeditetheir ratificationof and accessionto theseConventions and urgesthe States which have alreadyacceded to these Conventionsto strictly and firmly implement their provisions. 5. Calls upon all Member Stateson whose territories hijacked planesland to exert utmost efforts to foil the designsof the hijackers in accordancewith international rules in this regard and, in cooperationwith the country owning the aircraft in accordancewith the relevantinternational agreements. 6. Requeststhe Member Statesfacing suchsituations to provide necessaryassistance to the passengers,the crewmembers,the aircraft and the countriesowning them, in accordancewith the provisionsof internationalagreements. 7. Requeststhe SecretaryGeneral to follow up the implementationof this resolution and to submit a report thereon to the Ninth Session of the Islamic Summit Conference. APPENDIX B: NATIONAL STATUTES Air - Statute 6/1994 On Crimes Relating to the Safety of Aircraft and Navigation. - Statute 26/1969 On the Establishmentof the State Security Court. 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