The Problems of Cross Border Terrorism Jurisdictional and Ot

The Problems of Cross Border Terrorism Jurisdictional and Other Issues

PRIYANK MALVIYA

INTRODUCTION

The crime and justice have been removed from the offender-victim context and taken to the offender-society level as a whole. Certain crimes are to be considered so far as reaching that not just the direct victims and affected local or national society are at stake, but the world community as a whole. International terrorism sits at the cusp of crime, the domestic politics of the state and the international relations. Hence, efforts have been undertaken to ensure that the damage done be repaired in the broadest term.

Emergence of cross-border terrorism

The answer lies in the caves of Afghanistan and the slums of the Middle East than in the broader shifts in international relations in the post-Cold War period. To understand the emergence of cross-border terrorism it is necessary to examine Western intervention in the third world over the past 15 years, and its corrosive impact on world affairs.

The IRA got weapons from Libya and launched attacks across Britain; it also launched a one-off attack in Germany and plotted an assault on British forces in Gibraltar. Palestinian 'terrorists' crossed into Israeli territory, or what they considered Palestinian territory, and sought refuge in states like Egypt and Syria. They hijacked aero planes across the world, took hostage Israeli contestants at the 1972 Olympics in Munich, and infamously hijacked an Italian cruise ship in 1985.

Yet such groups were tied - politically and organisationally - to a particular territory. They had limited aims defined in relation to that territory and a membership drawn almost exclusively from that territory. These groups had state-based aims; their political aspirations and actions were moulded by notions of sovereignty and territory. The PLO sought to win back parts of Palestine from Israeli rule; the IRA sought an end to Britain's partition of Ireland; the Kurdish Workers' Party (PKK) wanted autonomy in south-eastern Turkey; Basque separatists concentrated their campaign in northern Spain. Even when such groups, like the Palestinians, carried out international operations, these were aimed at highlighting and furthering their specifically local, national goals.

Today's cross-border groups have no such attachment to territory. They view territory expediently, as a base from which they can organise their campaigns and plot their attacks. The new breed of Islamic terror groups are, according to Takeyh and Gvosdev, 'explicitly global' - in the sense that they have broadly anti-Western views rather than locally defined objectives, and their members hail from different states rather than from a distinct community with distinct interests. For these 'global' terrorists, territory is merely a place from which they can plot.

So where the armed groups of old sought to build or remake nation states, today's cross-border terrorists feed off the demise of state authority. Where national liberation movements sought to redraw state boundaries, cross-border groups think nothing of moving from one failed state to another. Where yesterday's violent groups focused their energies on achieving limited local aims, even as they carried out international operations, today's talk about 'spreading jihad' around the globe.

The “HUMANITARIAN INTERVENTION”

It was Western intervention in the third world, specifically the 'humanitarian intervention' of the post-Cold War period that encouraged the emergence of today's cross-border terrorists. By undermining state authority and notions of sovereignty, humanitarian intervention created the space for the rise of non-state actors. And by internationalizing local conflicts, Western intervention did much to encourage the flouting of traditional borders and the movement of armed groups between territories.

Humanitarian intervention emerged in response to Western uncertainties. In their search for some kind of self-justification, for a sense of moral purpose, Western elites turned to the international arena. They projected their domestic problems on to the world stage, seeking a boost to their domestic standing by intervening selflessly, and in the name of 'humanitarianism', around the world.

Even the first Gulf War of 1991, the USA's attempt to assert its power in the aftermath of the Cold War, was heralded as an attempt to protect the Marsh Arabs in southern Iraq from Saddam Hussein's regime. In 1993, US forces launched an invasion of Somalia called 'Operation Restore Hope', to protect Somalis from warlords and poverty. Later in the decade, then US president Bill Clinton and UK prime minister Tony Blair launched their Kosovo war, an attempt to protect a beleaguered people (the Kosovans) from a brutal dictator (Slobodan Milosevic). More recently, American and British officials have argued that their invasions of Afghanistan in 2001 and Iraq in 2003 are in the humanitarian interests of the local peoples.

There was little that was humanitarian in these 'humanitarian wars'. Thousands died, old divisions were intensified, and new divisions created. But humanitarian intervention was largely staged for a domestic audience, rather than being driven by a newfound concern for people around the world. In essence, humanitarian action became an attempt to invest Western elites with some moral vision that was lacking in the domestic sphere.

In justifying their humanitarian role - the right of the 'international community' to ride into any nation where people were downtrodden - Western elites actively undermined sovereign state authority. Indeed, during the humanitarian period, sovereignty became a dirty word - increasingly seen as an outdated idea that tyrants hid behind in order to escape international judgement, rather than a political principle worth defending.

Today, Western officials wring their hands over the nihilistic terrorists who don't do things the civilized way. Yet such terror networks are the product of the West's undermining of its own postwar international framework. Yesterday's national liberation movements - with their aspirations to win territory or to reshape existing states in the interests of a distinct community - mirrored a world organized around principles of sovereign equality and state authority. Today's nihilistic terror networks hold a mirror to the West's self-destructive assault on state sovereignty and the integrity of borders in the post-Cold War world.

Yet the 'internationalism' of today's Western elites is even worse than the nation-state structures of old. It has removed the building blocks of international affairs, without putting anything in their place. It was Western meddling that created a world in which such terrorism can flourish. It has given rise to new limitless forms of 'selfless' Western intervention, which has left parts of the third world as voids. And it has encouraged the emergence of nihilistic terrorists, not constrained by any traditional or rational ambitions, whose only aim is to cause chaos.

In the context of terrorism we need to find out how far:

(a) States have been obliged to include certain acts as criminal acts in their legislation

(b) Whether the national courts have been declared competent also if it concerns crimes committed by non-nationals outside the territory

(d) Whether regard has to be had to those cases in which immunity prevents action from being taken; and

(e) in how far would an international court be needed to fill legal, political or practical gaps.

Before coming to the problems of the jurisdiction of the cross-border terrorism it is necessary that we should have a look the Lockerbie case. There was the bombing of the Pan Am Flight 103, the flight that exploded over Lockerbie, Scotland. It appears that the bombing was sponsored by the government of Libya. Libya, UK and USA each were the parties to the ICC treaty at all the times relevant to the Lockerbie case. The Montreal convention provides that whenever an individual suspected of aircraft bombing is found or the territory of the State party to treaty, that state must either prosecute the suspector extradite him for prosecution elsewhere.

The 2 suspects in the Lockerbie case were the Libyan national living in Libya. Libya indicated that it would prosecute the suspects in its own national courts. UK and US insisted that Libya not to prosecute the suspects and extradite them to US or UK for prosecution. The UN Security Council issued a resolution, effectively requiring the extradition of the suspects. Libya claimed that UN Security Council lacks the Supra-national authority.

The US and UK resorted to the Supra-national authority of the Security Council responding to the State Sponsorship of terrorist crime. Another Supra-national mechanism was to handling of the cases to the ICC. The ICC would both provide the Supra-national authority to assure that the case would be pursued and also constitute the criminal forum in which the case would actually be tried.

Now let us examine the problems of the cross border jurisdiction:

A. Limitation arising out of the ICC’s Jurisdictional structure

One of the main obstacles regarding the need to optimalize international cooperation on criminal law is related to the issue of jurisdiction.

Grotius described piracy as “an offence against the law of nations”, an international crime. In the absence of international criminal tribunals, the punishment of piracy was left to any state that seized the offender, irrespective of whether the crime had been committed by one of its nationals, or whether the ship had been sailing under its own flag, or whether the piracy took place in its territorial waters or some other state’s territorial waters or high seas.

As the Subject-matter jurisdiction of the ICC is currently defined, terrorist’s crimes come with the subject-matter jurisdiction of the ICC only if the particular terrorist’s acts also constitute genocide, war crimes, or crimes against humanity. Proposal to include terrorism per se within the ICC jurisdiction was defeated in the ICC treaty negotiation process, in fact because of potentially charged disagreement between States as to the appropriate definition of “terrorism.” Extensive debate was focused on the possibility of encompassing within the jurisdiction of the ICC certain “treaty crimes”- including hijacking and aircraft sabotage, crimes against internationally protected persons, hostage-taking, sabotage of marine-navigation. But the decision ultimately taken was to exclude those “treaty crimes” from the jurisdiction of the court.

Besides these limitations, there are also limitations on the ICC jurisdiction that are based on the nationality and territoriality. By the terms of ICC treaty, unless the UN Security Council refers a case to the ICC may exercise the jurisdiction only if the crime was committed by the national or on the territory of a State party to the ICC treaty. Consequently, crimes committed on the territory of a non-consenting, non-party State may not be prosecuted before the ICC.

Some state advocated that the ICC should be accorded universal jurisdiction. However other States advocated that the ICC jurisdiction should limited, absent Security Council referral, the cases in which a State party to the treaty had territorial or nationality based nexus to the crime in question.

B. Limitation arising from the ICC’s Comlementarity Regime

An additional set of impediments to effective ICC jurisdiction over terrorism offences is posed by the “Comlementarity” regime, encompassed under Article 17-19 of the ICC treaty. Under Article 17 of ICC treaty, a case is admissible before the ICC only if the States that would otherwise have jurisdiction are unable or genuinely unwilling to investigate and, where appropriate to prosecute the case is question. The Comlementarity regime was designed to reflect the position, aimed at in the course of ICC treaty negotiations, that States should retain the primary authority and control over the prosecution for the international crimes, with the ICC serving as a fail-safe enforcement mechanism of last resort.

Under Article 18, the ICC prosecutor is required to publicize his or her intention to investigate. Notice must be sent to all the state parties that would exercise jurisdiction over the crimes in question. The treaty does provide that the prosecutor may make such notice confidentially and may limit the scope of information provided in order to prevent the destruction of the evidence or the absconding of the suspects. But, where a notified state is complicit with the suspects, these provisions cannot obviate the potential disadvantage to the prosecution. Further, within one month of receiving the notice the state may inform the prosecutor that the State itself is investigating the crime. So, the prosecutor shall not proceed further. It applies to all the cases except those referred by UN Security Council.

Article 19

C. Limitation arising out of the International law of immunity

The international law of diplomatic, sovereign and Head of the State immunities embodies the principle of the sovereign equality of States (by prohibiting one State from Standing in judgment or the official acts of the States or the Head of the State of another State) and facilitates diplomatic relations (by prohibiting one State from bringing legal process against a foreign diplomat present on its territory). The law of immunities is, thus, intended both to reflect the fundamental structure of the international law and to facilitate peaceful inter-State relations.

If a high governmental official bears responsibility for the perpetration of a terrorist’s crime, that individual may be immune from the ICC jurisdiction under the international law of immunities.

Example- the decision of ICJ in 2002 in the case of Arrest warrant of April 11^th 2000 (Democratic Republic of Congo v. Belgium). The case concerned on international warrant, issued by Belgium, for the then foreign minister of DRC for the crimes including crimes against humanity. The DRC claimed that the international law of immunities was violated by the issuance of the warrant.

D. The potential for ICC terrorism prosecution in conjunction with the action by UN Security Council

When the ICC acts in the absence of the Security Council referral, its ability to exercise jurisdiction over terrorist crime is limited in a variety of ways reflecting underlying international political concern. These constraints may be substantially circumvented in the event that the UN Security Council, acting under the chapter vii of the UN charter, refers the case in question to the ICC.

Under the terms of the ICC treaty when the Security Council refers the case it is not a precondition to the exercise of the ICC’s jurisdiction that the territorial state or the defendant’s State of nationality be a party to the treaty. Comlementarity likely can also be circumvented through the use of the chapter vii resolution. (The reasoning here is that, acting under chapter vii, the Security Council could effectively require a state to forego domestic handling of the case in order for the ICC to handle the case). Immunities, evidently, can be abrogated by chapter vii resolution as was done in chapter vii resolution that established the international criminal tribunal for the former Yugoslavia and Rwanda.

If the Security Council were to refer a case to ICC, and thereby to use its powers of chapter vii to augment the powers of ICC (or, for that matter, if the Security Council were to create a separate ad hoc criminal tribunal to address some particular situation or were to use its chapter vii to augment or supplement the authority of the national courts) we would return to the Lockerbie Case where resort was made to the Un Security Council as the authority “above” the state. In this way the Security Council wields superior powers in the international legal system.

Conclusion

The likely involvement of State as targets as sponsors of terrorism has created an impetus to internationalize the law enforcement in this field through the use of international criminal courts, universal jurisdiction or the UN Security Council powers. But the international political features of international terrorism significantly limit the potential scope and efficacy of such internationalizing mechanism. Consequently, the prosecution of terrorism cases to date is pursued at the national level, largely in the targeted States.

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