Bringing terrorism under the ICC Jurisdiction

International terrorism has appeared to be a reality of life. In numerous regions of the world, it is a fact of daily life, while in others it is a theme of an agenda. The international community, has taken a wide range of measures to restrain terrorism. However, the International Criminal Court (ICC) is still not being used for this cause; even it does not embrace terrorism within its jurisdiction. The ICC does not have authority over acts of terrorism as a discrete offence. The difficulty to the insertion of terrorism in the Rome Statute was the lack of a comprehensive and unanimously accepted definition. Thus, it may hurt the legitimacy and reliability of the ICC as an impartial judicial establishment.

In 1994 the United Nations General Assembly recognised that the terrorism was 'criminal and unjustifiable'. The Convention for the Suppression of the Financing of Terrorism was signed in 1999, provide the first common definition of terrorism. Article 2 (1) (b) refers to “terrorism” as an act intended to cause death or serious bodily injury to a civilian, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or to abstain from doing any act. However, United Nations Security Council resolution (UNSC) 1368 (2001) categorised terrorism as a threat to international peace and security. Thus, UNSC in its resolution 1624 (2005) calls upon every state to adopt such measures in accordance with their obligations under international law to (a) prohibit by law encouragement to carry out a terrorist act; (b) prevent such conduct; (c) refuse safe haven for that very purpose. The majority states have their personal, domestic definitions; the UNSC has adopted resolutions to explain terrorism but do not present an obvious meaning of it. The ICC jurisdiction simply over natural persons, hence any claims against states in the respect of terrorism cannot be brought before the ICC. One more part of the clash, as it touches the sensitive issue of right to self-determination.

There are few ways to embrace terrorism as part of the ICC jurisdiction. The first method to include terrorism as a part of fifth crime under Article 5 of the ICC statute. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; (d) the crime of aggression. Scholar Aviv Cohen, in his research work titled 'Prosecuting Terrorists at the International Criminal Court' has given a model for additional article in the Rome Statute, it could potentially be:

Crime of Terrorism - 1. The Court shall have jurisdiction over acts of terrorism.

2. For the purpose of this Statute, “terrorism” includes, but is not limited to: 

(a) An offence according to [specified international counterterrorism conventions]

(b.) An 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 act, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or to abstain from doing any act.

The second mode to comprise terrorism as an element of the ICC jurisdiction by interpreting the language of existing crimes. It does not need changes to the Rome Statute. It is all about the matter of treaty interpretation. The primary rule of treaty interpretation is Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT) of 1969, which is generally considered as reflecting customary international law. Thus, the judges of the ICC may invoke the provision of the VCLT to take on terrorism as a component of its jurisdiction. The process to incorporate terrorism as a crime in the Rome Statute is very complex. It will require two thirds of the States Parties to approve the  amendment. Therefore, a state party will have to put forward an agenda on the table for that very intention. At present there is no such complex procedural complication to stop terrorism from being part of the ICC jurisdiction.

The Article 25 of the Rome Statute, recognised that the jurisdiction of the ICC can exercise not only over the chief perpetrator of the crime but also over a wide range of his accomplices. Thus, the perpetrator himself apparently cannot stand for trial, but the persons who aided and abetted, incited, or otherwise facilitated they could be held responsible. Furthermore, the ICC jurisdiction over terrorism might reinforce domestic counterterrorism measures or it would be an obvious gesture to the international community, particularly for those who aided, abetted, provoked, or facilitated terrorism. The path is unlocked for counting terrorism as a crime in the Rome Statute and by this a further tier may be invoked to the international battle against terrorism.

THE WRITER IS PhD RESEARCH SCHOLAR IN LAW AT SOUTH ASIAN UNIVERSITY, NEW DELHI, INDIA.