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International Law Aspects of Countering Terrorism

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International Law Aspects of Countering Terrorism Vienna International Centre, PO Box 500, 1400 Vienna, Austria Tel.: (+43-1) 26060-0, Fax: (+43-1) 26060-5866, www.unodc.org Frequently Asked Questions on International Law Aspects of Countering Terrorism FOR UNITED NATIONS USE ONLY Printed in Austria V.09-81183—April 2009—500 *0981183* UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna Frequently Asked Questions on International Law Aspects of Countering Terrorism UNITED NATIONS New York, 2009 Acknowledgements This Handbook has been fi nalized drawing on texts prepared by Susie Alegre under a con- sultancy contract for the United Nations Offi ce on Drugs and Crime (UNODC). This publication has been fi nanced drawing on funds provided by the following countries, which have made voluntary contributions to UNODC’s Global Project on Strengthening the Legal Regime against Terrorism: Austria, Belgium, Canada, Colombia, Denmark, France, Germany, Greece, Italy, Japan, Liechtenstein, Monaco, Netherlands, New Zealand, Norway, Spain, Sweden, Switzerland, Turkey, the United Kingdom of Great Britain and Northern Ireland, and the United States of America. This document has not been formally edited. The designations employed and the presentation of the material in this document do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. Preface This publication is designed to provide a brief overview of the broader international law framework in which counter-terrorism works. It is a short introduction which aims to give a quick insight into the general principles of international law as well as the basic elements of international criminal law, humanitarian law, refugee law and human rights law which may be relevant in a counter-terrorism context. The publication is broken down into fi ve sections: ț Basics of international law ț International criminal law, including international cooperation in criminal law matters ț International law on the use of force and international humanitarian law ț International refugee law ț International human rights law Each section looks at the relevance of the fi eld of law to counter-terrorism, sets out the main sources of the law and relevant international bodies before explaining briefl y how the law works in practice. The format of the publication provides short answers to many of the questions about inter- national law frequently asked during UNODC/TPB training workshops and other technical assistance activities. It is written in simple language and sets out the fundamentals of inter- national law without exploring the more complex debates and arguments that exist in relation to international law and its relation to terrorism in particular. The publication thus does not attempt to cover all issues related to the international legal framework of counter-terrorism with the same weight. Some issues, which typically generate more questions, are dealt with in more detail. The publication should not be seen as an academic work and the format with minimal references refl ects its practical introductory nature. International law and its applica- tion in a terrorism-related context is the subject of many publications and of a series of in- depth analyses produced by the United Nations Offi ce on Drugs and Crime (UNODC). This should be seen as a springboard to more in-depth analysis of the issues which can be found in a number of other tools and publications produced by UNODC.a By the very nature of this publication as a general introduction, its content does not refl ect authoritative substantive positions of the various United Nations entities. a See www.unodc.org/unodc/en/terrorism/technical-assistance-tools.html. iii Contents Preface . iii Abbreviations . viii Introduction: how do different bodies of international law relate to terrorism?. 1 1. Selected issues related to international law . 3 Why is international law important in counter-terrorism? . 3 1.1 Sources of international law. 3 Where does international law come from? . 3 1.1.1 What are the key elements of the law of Treaties? . 4 1.1.2 What is customary international law?. 9 1.1.3 What are the general principles of law? . 11 1.1.4 Subsidiary sources of law—where else can international law be found?. 11 1.1.5 What is meant by soft law? . 13 1.1.6 What are the legal effects of Security Council resolutions?. 14 1.2 The United Nations and counter-terrorism . 14 1.2.1 What are the key United Nations institutions active in the fi eld of counter-terrorism? . 14 1.2.2 What are the key elements of the United Nations legal framework in the fi eld of counter-terrorism?. 25 1.3 Regional and subregional responses to terrorism. 34 2. International criminal law, including international cooperation in criminal matters 37 2.1 Prosecution of delicta juris gentium and terrorism . 37 2.1.1 Who can be prosecuted for delicta juris gentium? . 38 2.1.2 Where can delicta juris gentium be prosecuted? . 38 2.1.3 Is there a sui generis crime of “terrorism” in international criminal law? . 41 2.1.4 Can terrorist acts fall within the categories of “war crimes,” “crimes against humanity” or “genocide”? . 41 v 2.2 International cooperation in criminal matters and terrorism. 44 2.2.1 Jurisdiction: What bases can national courts use to establish jurisdiction over crimes of international concern? . 44 2.2.2 Extradition: What is extradition and how is it dealt with under international law? . 45 2.2.3 What is mutual legal assistance and how is it dealt with under international law? . 59 3. International law on the use of force (jus ad bellum) and international humanitarian law (jus in bello) . 63 3.1 Law on the use of force (jus ad bellum) . 63 3.1.1 Can terrorism justify the use of force? . 63 3.2 International humanitarian law. 64 3.2.1 What principles of international humanitarian law are relevant in relation to countering terrorism? . 64 3.2.2 Where does international humanitarian law come from? . 65 3.2.3 Who monitors international humanitarian law? . 66 3.2.4 When and where does international humanitarian law apply?. 66 3.2.5 What is allowed under the laws of war?. 67 3.2.6 What are the minimum guarantees set out under international humanitarian law?. 68 3.2.7 How does international humanitarian law refer to terrorism? . 69 4. International refugee law . 71 4.1 Where is international refugee law found and what aspects of international refugee law are relevant to counter-terrorism? . 71 4.2 How does the United Nations deal with refugees?. 72 4.3 Who is a refugee? . 72 4.4 What does it mean to be a refugee? . 73 4.5 Who is excluded from the protection of the Refugee Convention? Are terrorists excluded? . 73 4.6 Can a refugee be expelled or returned? . 75 4.7 How may counter-terrorism policies adversely affect refugees and asylum seekers? . 76 vi 5. International human rights and counter-terrorism . 79 5.1 Sources of international human rights law . 79 5.1.1 Where does international human rights law come from? . 80 5.1.2 What rights are protected? . 82 5.2 Enforcement of human rights . 86 5.2.1 What institutional frameworks exist at the international and regional levels for the promotion and protection of human rights?. 86 5.2.2 How does international human rights law protection work? . 90 5.3 Counter-terrorism and its possible impact on human rights . 95 5.3.1 What are the possible impacts of counter-terrorism on human rights? . 95 6. Conclusion . 101 vii Abbreviations CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treat- ment or Punishment CEDAW Convention on the Elimination of All Forms of Discrimination against Women CRC Convention on the Rights of the Child CTC Counter-Terrorism Committee CTED Counter-Terrorism Committee Executive Directorate CTITF Counter-Terrorism Implementation Task Force ECOSOC Economic and Social Council ECHR European Convention of Human Rights ECtHR European Court of Human Rights HRC Human Rights Committee ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICCPR-OP1 Optional Protocol to the International Covenant on Civil and Political Rights ICCPR-OP2 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ICRC International Committee for the Red Cross ICRMW International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IHL International humanitarian law ILC International Law Commission OHCHR Offi ce of the United Nations High Commissioner for Human Rights OP-CAT Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment viii OP-CEDAW Optional Protocol to the Convention on the Elimination of Discrimination against Women OP-CRC-AC Optional Protocol to the Convention on the Rights of the Child on the involve- ment of children in armed confl ict OP-CRC-SC Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography TPB Terrorism Prevention Branch UNGA United Nations General Assembly UNHCR United Nations High Commissioner for Refugees UNODC United Nations Offi ce on Drugs and Crime UNSC United Nations Security Council VCLT Vienna Convention on the Law of Treaties VCLTIO Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations ix Introduction: how do different bodies of international law relate to terrorism? There is a growing body of international law which is directly relevant to the fi ght against terrorism.
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