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Guide for the Legislative Incorporation and Implementation of Universal Anti--Terrorism Instruments

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Guide for the Legislative Incorporation and Implementation of Universal Anti--Terrorism Instruments Vienna International Centre, P.O. 500, 1400 Vienna, Austria Tel.: (+43-1) 26060-0, Fax: (+43-1) 26060-5866, www.unodc.org GUIDE FOR THE LEGISLATIVE INCORPORATION AND IMPLEMENTATION OF UNIVERSAL ANTI--TERRORISM INSTRUMENTS GUIDE FOR THE LEGISLATIVE INCORPORATION AND IMPLEMENTATION OF THE UNIVERSAL ANTI-TERRORISM INSTRUMENTS V.05-85508 1-05-85508_PRELIMS-English.qxd 2/4/06 4:54 pm Page 1 UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna GUIDE FOR THE LEGISLATIVE INCORPORATION AND IMPLEMENTATION OF THE UNIVERSAL ANTI-TERRORISM INSTRUMENTS UNITED NATIONS New York, 2006 1-05-85508_PRELIMS-English.qxd 2/4/06 4:54 pm Page 2 The present Legislative Guide has not been formally edited. The designations employed and the presentation of the material in the present Legislative Guide 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. 1-05-85508_PRELIMS-English.qxd 2/4/06 4:54 pm Page 3 CONTENTS Foreword 5 (c) Controlling borders and preventing I. Purpose of the Legislative Guide 5 forgery of travel documents and 1. A binding legal framework 5 identity papers 55 2. An adequate legal framework for each III. Financial matters 56 Member State 6 1. Identification, freezing, seizure and II. Goal of the universal anti-terrorism instruments 6 preservation of financial assets of terrorists and terrorist organizations 56 III. Information note 7 2. Transfer of funds 60 3. Non-profit organizations 60 Introduction 9 IV. Marking of explosives 62 1. Structure of the Legislative Guide 9 V. Complementarity between the universal 2. Structure of the universal anti-terrorism anti-terrorism instruments and the Convention instruments 10 against Transnational Organized Crime and the protocols thereto 63 PART I CRIMINALIZED ACTS 13 PART III I. Preliminary remarks on the elements of PROCEDURAL LAW 65 the offences 15 I. No safe haven for terrorists 67 II. Offences covered by the universal instruments 16 1. Right of asylum, refugee status and terrorism 67 1. Offences linked to the financing of 2. Aut dedere, aut judicare 68 terrorism 16 II. Jurisdiction 69 2. Offences based on the status of victims: 1. Universality principle 70 hostage-taking and crimes against 2. Territoriality principle 70 internationally protected persons 23 (a) Principal territorial jurisdiction: 3. Offences linked to civil aviation 27 an act constituting an offence 4. Offences linked to ships and fixed committed in the territory of a State 70 platforms 32 (b) Subsidiary territorial jurisdiction: 5. Offences linked to dangerous materials 35 collusion 70 III. Forms of liability 40 (c) Extended territorial jurisdiction: 70 1. Exclusion of any justification 40 1. Spaces deemed part of a territory: 2. Special forms of participation 44 ships and aircraft 70 3. Liability of legal entities 46 2. Linkage of an offence to national territory: indivisibility or connectivity 71 3. Nationality principle 71 PART II (a) Active nationality 71 MEASURES TO ENSURE EFFECTIVE (b) Passive nationality 72 CRIMINALIZATION 49 4. Protective principle 72 I. Penalties 51 III. Specific powers of aircraft commanders 75 II. Prohibiting the encouragement or toleration IV. Fair treatment 77 of acts of terrorism 52 1. From the time of arrest: right to notification 1. Extent of States’ obligations in the light and communication 78 of international law 52 2. At all stages of the proceedings 79 (a) International human rights law 53 3. Pre-trial detention 79 (b) International humanitarian law 53 4. Reasonable time 80 2. Proactive measures within the framework V. Witness protection 80 of States’ obligations 53 (a) Suppressing the recruitment of members VI. Mechanisms established under the Financing of terrorist groups 54 of Terrorism Convention for compensating (b) Arms trafficking 54 victims of terrorist acts 81 3 1-05-85508_PRELIMS-English.qxd 2/4/06 4:54 pm Page 4 4 Guide for the Legislative Incorporation and Implementation of the Universal Anti-Terrorism Instruments PART IV — Convention for the Suppression of Unlawful Acts MODALITIES OF INTERNATIONAL against the Safety of Maritime Navigation, 1988 124 COOPERATION IN CRIMINAL MATTERS 83 — Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located I. Extradition 85 on the Continental Shelf, 1988 128 II. Mutual legal assistance in criminal matters 87 — Convention on the Marking of Plastic Explosives for the Purpose of Identification, 1991 129 III. Other forms of international cooperation 91 — International Convention for the Suppression 1. Transfer of persons being detained or of Terrorist Bombings, 1997 132 serving sentences 91 — International Convention for the Suppression 2. Cooperation in combating the financing of the Financing of Terrorism, 1999 135 of terrorism 92 3 Charter of the United Nations, Chapter VII 141 DRAFT LAW AGAINST TERRORISM 95 4 Universal Declaration of Human Rights 143 5 International Covenant on Civil and ANNEXES 103 Political Rights 145 1 Resolutions 1373 and 1566 of the United 6 Remarks on the Convention on the Safety Nations Security Council 105 of United Nations and Associated Personnel, New York, 9 December 1994 152 2 The universal anti-terrorism instruments 108 — Convention on Offences and Certain Other 7 Model Treaty on Extradition, as amended Acts Committed on Board Aircraft, 1963 108 by General Assembly resolution 52/88 (1997): — Convention for the Suppression of Unlawful international cooperation in criminal matters 153 Seizure of Aircraft, 1970 111 — Convention for the Suppression of Unlawful 8 Model Treaty on Mutual Assistance in Acts against the Safety of Civil Aviation, Criminal Matters, as amended by 1971 113 General Assembly resolution 53/112 (1998): — Convention on the Prevention and Punishment international cooperation in criminal matters 159 of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973 115 9 Treaty Handbook (extract) 164 — International Convention against the Taking of Hostages, 1979 117 10 Annex relating to the deposit of instruments — Convention on the Physical Protection of of ratification or accession (addresses of Nuclear Material, 1980 119 depositaries) 199 — Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, 1988 123 INDEX 205 1-05-85508_PRELIMS-English.qxd 2/4/06 4:54 pm Page 5 FOREWORD I. Purpose of the Legislative Guide 1. The main purpose of the present Legislative Guide is 5. The universal anti-terrorism instruments establish a to facilitate the task of the competent authorities of States binding legal framework for Member States (1). Never- in ratifying, incorporating in law and implementing the theless, although the terms of the provisions themselves universal anti-terrorism instruments. The Guide has been may be authoritative, it is up to each Member State to drafted principally for the benefit of political decision determine the legal framework that it considers most makers and legislators of countries that are preparing appropriate (2). It is therefore recommended that drafters themselves for this process of implementation. It is also of legislation should integrate or transcribe the provisions designed to assist the establishment of bilateral or multi- of the universal instruments in such a way as to ensure lateral treaties or agreements concerning international complete consistency with the other offences and defini- cooperation in criminal matters related to countering ter- tions set out in the national legislation in force. rorism. It therefore presents the basic requirements set forth by the United Nations conventions, protocols and resolutions and explores the issues that all Member States 1. A binding legal framework will have to address. It sets out, in addition, a wide array of options and examples for consideration by national 6. In resolution 1373 (2001),2 of 28 September 2001, the legislators when incorporating the counter-terrorism United Nations Security Council decided3 that “acts, instruments. methods, and practices of terrorism are contrary to the pur- poses and principles of the United Nations”. In paragraph 2. The Guide essentially follows the legal tradition of 2 of this resolution, the Security Council decided that in French-speaking States, while also referring to model order to counter these practices States must cooperate in laws and explanatory documents prepared by the criminal matters. In paragraph 3(d), the Security Council Commonwealth Secretariat. calls upon all States to “become parties as soon as possi- ble to the relevant international conventions and protocols 3. After ratifying the universal anti-terrorism instruments, relating to terrorism, including the International Con- it is imperative for States to proceed with their legislative vention for the Suppression of the Financing of Terrorism incorporation. This is vital not only to ensure effective of 9 December 1999”. implementation of counter-terrorism measures, but also to create a legal basis for use by practitioners. While the uni- 7. In that resolution the Security Council determined that versal anti-terrorism instruments may serve as a useful all acts of international terrorism “constitute a threat to legal basis for the criminalization of terrorist offences, international peace and security”. It was accordingly decid- the texts do not of course establish actual penalties for ed that Member
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