CHAPTER TWELVE INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF TERRORIST BOMBINGS 1999 (‘Bombings Convention’) 1. The Convention was a response to the increasingly widespread use of bombs in terrorist attacks, particularly in public places. It was a US initiative, one of the more immediate reasons being the bombing of the federal building in Oklahoma City. The Convention was adopted by the United Nations General Assembly on 15 December 1997. It entered into force on 23 May 2001. As of September 2002 it had 70 Parties, including 18 Commonwealth States, and two more had signed, but not yet ratified it. The text of the Convention is at page 249 below, and the complete list of signatures, ratifications and accessions at September 2002 is at page 258 below. The offence 2. Article 2(1) provides that ‘Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility: (a) With the intent to cause death or serious bodily injury; or (b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.’ 3. ‘Unlawfully’ was inserted because armed forces and police have to employ explosives and other lethal devices in the proper discharge of their duties. Whether the activities of police fall within the Convention if they use excessive force is a nice question, but although the purpose of the Convention is to deal with terrorist outrages, there does not seem to be any reason why a totally unjustified use in a confined space by police of, say, tear or CS gas might not be caught. But in practice such conduct would - or at least should - be dealt with by the courts of the State where the incident occurred. 4. The provision needs to be read with the one tucked away in Article 19(2), which reads: ‘[1]The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law [i.e. the law of armed conflict/ the laws of war], which are governed by that law, are not governed by this Convention, and [2] the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.’ This so-called ‘military carve-out’ was new. Its tortuous wording reflects an intense and difficult negotiation reflecting the sharp difference of opinion on the extent to which acts by members of armed forces should be subject to the Convention. Interpretative statements about the provision made on signature or accession by Cuba, Egypt, Turkey and Ukraine illustrate this. Cuba in particular stated, inter alia, that the Convention applies with full 242 rigour to ‘activities carried out by the armed forces of one State against another State in cases in which no armed conflict exists between the two’.154 This is a reference to the view of some States that in the last quarter of the 20th century the use of force by some other States has been in breach of international law. 5. The purpose of the first limb of the provision is to take out of the ambit of the Convention acts by armed forces done during an armed conflict, even if they may be unlawful (see also the last paragraph of the preamble to the Convention). Unlawful acts by members of armed forces are governed by the Geneva Conventions and the rest of the law of armed conflict and will continue to be dealt with in that way, not by the Convention. In the first limb, the term ‘armed forces’ is not qualified, as it is in the second limb by the addition ‘of a State’. Thus in the first limb armed forces include those covered by Protocol I to the Geneva Conventions, which applies also to armed conflicts in which peoples fight against, inter alia, alien occupation, and those covered by Protocol II, which applies to internal armed conflicts. The second limb therefore applies only to the armed forces of a State (see the definition of ‘military forces of a State in Article 1(4)) when they are not involved in an armed conflict, provided they are acting in the exercise of their official duties, not on a frolic of their own. The addition of the reference to the activities being governed by other rules of international law adds little, if anything, since the use of force by States is subject to the rules in the UN Charter and by the law of State responsibility. The result is that if there is no armed conflict, but soldiers as part of their official duty carry out an explosion in a public place in another State, and this use of force is unlawful under international law, the soldiers would not commit a Convention offence but their State would be liable for the act in international law. 6. ‘Explosive or other lethal device’ is defined in Article 1(3) as: ‘(a) An explosive or incendiary weapon or device that is designed or has the capability to cause death, serious bodily injury or substantial material damage; or (b) A weapon or device that is designed, or has the capability to cause death, serious bodily injury or substantial material damage through the release, dissemination or impact of toxic chemicals, biological agents or toxins or similar substances or radiation or radioactive material.’ The definition is broad in scope and includes devices which, although not designed for the purpose, have the capability to cause death etc. It therefore covers, for instance, pressurised cylinders which, when used for their proper purpose, are relatively harmless, but if misused can cause considerable harm. 7. Article 1(5) defines ‘place of public use’ as ‘those parts of any building, land, street, waterway or other location that are accessible or open to members of the public, whether continuously, periodically or occasionally, and encompasses any commercial, business, cultural, historical, educational, religious, governmental, entertainment, recreational or similar place that is so accessible or open to the public.’ 154 For the full statement, and the other statements, see the status list on www.un.org. 243 The interpretation of this definition will depend on the circumstances. The main question is whether a place that is accessible or open to the public periodically or occasionally is covered only when it is so accessible or open. Commonsense would suggest that if the place is essentially a private house, then it is covered only on open days. Given the purpose of the Convention, one can expect courts to apply a broad interpretation. 8. Article 1(1) defines ‘State or government facility’ as ‘including’: ‘any permanent or temporary facility or conveyance that is used or occupied by representatives of a State, members of Government, the legislature or the judiciary or by officials or employees of a State or of any intergovernmental organisation in connection with their official duties.’ The meaning is not as clear as it could be. In particular, do the last five words apply to use or occupation by all the categories of persons or only to officials and employees? Given the nature of the offence it would seem reasonable to give it a broad construction so that it applies to any building for so long as it is used or occupied by people in any of the categories, including any period, such as night time, when it may be empty. 7. Article 1(6) defines ‘public transportation system’ as ‘all facilities, conveyances and instrumentalities, whether publicly or privately owned, that are used in or for publicly available services for the transportation of persons or cargo.’ This is pretty comprehensive. In addition to the means of transport, this would include all buildings and other structures and equipment, such as bridges, tunnels and tracks. 8. There may of course be some overlap with the Montreal Convention and Protocol, the Diplomats Convention and Rome Convention and Protocol. But these are inevitable and are preferable to lacunae. Accomplices and conspirators 9. Article 2(3)(a) follows the earlier conventions in making it an offence to be an accomplice in the commission of the offence or an attempt. Article 2(3)(b) is new in that it makes it an offence to organise or direct others to commit an offence or an attempt. A person who organises or directs would in most domestic laws be guilty of the principal offence. It therefore appears to have been included because of doubt whether in all legal systems a person who organises or directs others to commit an offence is necessarily a principal. It may be that the very precise terms of the offence (‘delivers, places….’) left some doubt as to whether they are broad enough to cover a person not involved in the actual, physical carrying out of the act. Article 2(3)(c) is intended to cover conspiracy. In common law countries many alleged terrorists are charged with conspiracy. The formula was also meant to reflect the civil law concept of association malfaiteur. In the event, it did not fully do so. The Financing Convention has a new and improved version.155 10. Article 4 requires each Party to make the offences criminal under its domestic law and impose penalties that take into account their grave nature. 155 See p. 270, para. 23 below.