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International system insufficient to tackle terrorist fighters

May 12th, 2015

By Michelle McKenna – Senior Fellow

On the 13th March 2015, a report of the Office of the High Commissioner for Human Rights into the human rights situation in Iraq following abuses committed by Islamic State called upon the Human Rights Council to urge the UN Security Council to consider referring the situation to the International Criminal Court. This poses the question of whether the International Criminal Court, and the wider international system, is well equipped to tackle individual terrorist fighters.

Terrorism was traditionally a domestic matter dealt with under each individual state’s criminal law, but since 9/11 it has increasingly been legislated for within the international system. The Security Council has even gone as far as to deem terrorism itself a threat to international peace and security, but despite the plethora of international treaties signed and resolutions passed by the Security Council, the number of terrorist incidents have not decreased in the 13 years since 9/11. Indeed, the threat of terrorism is probably at its highest level since then, which exposes the problems inherent in the current legal and political system at tackling the issue. The current international system has a number of weaknesses that must be addressed in order to stand a chance of being effective: international law, including resolutions of the Security Council, are only binding on states, not individuals, therefore the perpetrators of terrorist acts are outwith the scope of the law; terrorism is traditionally a criminal matter, but there is no international court to police and prosecute the crime; and, most importantly, there is no singular definition of terrorism. Without a clear definition outlining the parameters of what constitutes terrorism, it is impossible for the international system to present a coherent means of addressing the issue.

International Legislation

Since 1963, there have been 14 international legal instruments, and amendments, drafted and numerous resolutions passed by the Security Council that have denounced terrorism and made it illegal.[1] However, each of these treaties and resolutions all use different definitions on terrorism and there is no universally agreed definition. Without a universally agreed upon definition of terrorism, it is difficult to define the parameters of the crime, with each state viewing different incidents as terrorism. This provides difficulty in conforming with human rights standards, as individuals have the right to have their crime defined in law before they commit it. In 2006, the UN created a Global Counter-Terrorism Strategy that is working on a comprehensive convention on international terrorism.[2] This is designed to enhance national, regional and international efforts to counter terrorism, but unless it is signed by ALL member states, will just add another definition of terrorism to the already overly long list. International law is very reactive and often only drafts new legal instruments after an event occurs that has not been seen before, which is why the current legal regime on terrorism is so piecemeal. This may change with the new treaty that is being negotiated before the UN, but at present there are gaps in the law due this lack of cohesion.

Role of the Security Council

Even if there was a universally agreed-upon definition of terrorism, there is little that international law can do to directly tackle perpetrators, as the subject of international law is states, not individuals. Whilst states have been known in the past to sponsor terrorism, independent groups or individuals have carried out most terrorist incidents and this creates a real issue for international law in dealing with the problem. Thus, domestic law has been left to determine the criminality of terrorist acts. Most of the terrorism treaties and resolutions from the Security Council rely on states to criminalise and punish terrorist suspects domestically, which has led to a wide range of differing laws and definitions. Since 9/11, the Security Council has been the primary legislator for anti-terrorism regulations, but has mostly addressed states as the subject of its resolutions, as is required by international law. However, with the passing of Resolution 2178 in September 2014 on Islamic State, the Security Council for the first time directly addressed individuals by demanding, “that all foreign terrorist fighters disarm and cease all terrorist acts and participation in the conflict.”[3] The inclusion of this requirement within the resolution directly calls on individuals not to carry out terrorist activity, in addition to calling on states to supress such activity, which is the first time the Security Council has done so.[4] This is a potentially huge shift in approach from the Security Council, but it is not immediately clear whether it is legal for them to do this. Article 25 of the UN Charter only obliges UN Member States to abide by resolutions of the Security Council; therefore this may not be legally binding on individuals to follow. However, in the past it has been held that the Council does have the power to place legal obligations on non-state actors. In the Kosovo advisory opinion, the ICJ indicated that it is possible for the Security Council to impose obligations on individuals as it could “establish on a case-by-case basis, […] for whom the Security Council intended to create legal obligations.”[5] Furthermore, the sanctions committees and criminal courts previously established by the Security Council had the power to make decisions that are binding on non-state actors, which they would not have been able to do if the Council could not delegate this power.[6] It seems natural that the Security Council should have the legal power to bind non-state actors in this way so that the anti-terrorism regime is more effective, but there have also been criticisms of this move by the Council. For starters, there is still no definition of terrorism within the Resolution, therefore it makes demands of individuals without defining what exactly they are to refrain from doing, which creates an issue for punishing any said crime.[7] Thus states are still responsible for defining terrorism, which creates uneven standards by allowing states like China to adopt an overly broad definition, whilst the EU and US are very specific in their definitions.[8] Furthermore, former UN Special Rapporteur on human rights and counter terrorism, Martin Scheinin, has stated that the resolution itself threatens to wipeout the progress made in human rights and the rule of law since 9/11 as it makes no attempt to limit those who can be defined as a terrorist.[9] If the Security Council is to continue directly addressing non-state actors as the subject of its resolutions – which has the potential to be more effective than simply addressing states – then it must adopt a universal definition of terrorism.

The International Criminal Court

If international law is to start directly addressing terrorists as individuals, there needs to be an international court with competence to put perpetrators to trial. At present, states have to prosecute terrorists within their domestic courts, as the International Court of Justice simply deals with interstate disputes and terrorism is not one of the four international crimes that the International Criminal Court has jurisdiction over, therefore meaning that in order by terrorists to be prosecuted by the court, their crimes must fall into the wider categories of crimes against humanity, ethnic cleansing, genocide or war crimes. Indeed, in November 2014, ICC Prosecutor Fatou Bensouda stated that her office is looking into the possibility of investigating acts committed by Islamic State that could be classed as war crimes or crimes against humanity.[10] The report from the OHCHR in March claimed that the following crimes may have been committed in the conflict, thus bringing it within the remit of the court: genocide against the Yezidi population; crimes against humanity against Christian, Shi’a and Yezidi communities; and war crimes committed by both sides.[11] If prosecutions against Islamic State members were to go ahead, it could open the door for wider terrorist incidents to be considered within the remit of the Court. This issue with investigating Islamic State – and indeed potentially any other terrorist incidents – is establishing jurisdiction over the crime. In order for a case to be brought before the Court, it must be referred by the state party, referred by a non-state party via an ad-hoc declaration establishing jurisdiction, referred by the Security Council or established via a proprio motu investigation by the prosecutor. The prosecutor can only investigate situations taking place in a state that is party to the statute or involving its nationals. In the past the Security Council has referred conflict situations to the Court, but it is unlikely to occur in the case of Islamic State as Russia has an interest in Syria and would want to see crimes taking place in Syria excluded from investigation.[12] Due to the jurisdiction requirements of the Court, the Court’s remit to tackle terrorists is very narrow as most of the states where terrorism originates from are not party to the statute and could thus block any prosecution. This is the reason why Prosecutor Fatima Bensouda announced that the ICC does not currently have jurisdiction to open a preliminary investigation into the situation, despite affirming that “crimes of unspeakable cruelty” have taken place.[13] There is the possibility that the Court would be able to prosecute foreigners that are fighting on behalf of ISIS if their home state grants the ICC jurisdiction; however, the aim of the ICC is to prosecute those most responsible within the leadership of a group and the Court’s ability to do this based on the narrow jurisdiction is currently limited.[14] The Rome Statute is embedded with the principle of complementarity; meaning the state where the incident occurred or the home state of the perpetrator could take action domestically, no matter how weak or futile, and thus block international justice. By doing this, we remain in an ad-hoc system of domestic prosecutions with differing standards, rather than a universal approach to prosecuting the problem. The ICC as it currently stands is not the ideal platform for prosecuting terrorist suspects, but could provide an interim solution in some situations whilst the UN negotiates a new anti-terrorism regime, provided the US supports the work of the Court.

The sanctions committees set up by the Security Council in the past have operated in a similar way as a court to police terrorist suspects, but have widely been reprimanded for not complying with human rights, therefore cannot be used as a universal method for trialling terrorism suspects. The Security Council has in the past, however, set up fully functioning, human rights compliant courts with the ICTY and ICTR and could do so again. In order to do this it would need the support of all five permanent members and a majority of the Security Council and this may not occur due to the differing views on what constitutes terrorism. However, if the new treaty that is being negotiated is successful when finalised and gains wide support then establishing a terrorism court is the next natural and necessary step to ensure the international system is robust.

Concluding Remarks

The present state of international law is insufficient to effectively tackle terrorists. With no widely agreed definition of terrorism, a lack of clear ability to legally bind non-state actors and no international court able to sufficiently prosecute acts of terrorism, terrorism law is primarily considered a matter of domestic law and therefore has an incoherent approach internationally. It is hoped that the negotiations underway at the UN on a comprehensive convention on international terrorism may lead to a truly global instrument that will fix many of these issues, but these negotiations have already been underway for many years and keep stalling due to a lack of agreement over how to define terrorism. The Global Terrorism Strategy established in 2006 is helping to encourage member states to work closely together to tackle terrorism, but without a robust system of laws behind it, its success can only be limited. This means that for the time being, it is unlikely that there will be any international justice for the victims of the horrific crimes committed by ISIS in Iraq and elsewhere, despite widespread condemnation of their actions.

[1] See http://www.un.org/en/terrorism/instruments.shtml for full list

[2] See http://www.un.org/en/sc/ctc/action.html

[3] Full text available at: http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2178 (2014)

[4] Peters, A. Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part I http://www.ejiltalk.org/security-council-resolution-2178-2014-the-foreign-terrorist-fighter-as-an-international-legal-person-part-i/

[5] ibid

[6] Peters, A. Security Council Resolution 2178 (2014): The “Foreign Terrorist Fighter” as an International Legal Person, Part II http://www.ejiltalk.org/security-council-resolution-2178-2014-the-foreign-terrorist-fighter-as-an-international-legal-person-part-ii/

[7] ibid, parts I & II

[8] Zhou, Z. How China Defines Terrorism http://thediplomat.com/2015/02/how-china-defines-terrorism/

[9] Sheinin, M. Back to post-9/11 panic? Security Council resolution on foreign terrorist fighters http://justsecurity.org/15407/post-911-panic-security-council-resolution-foreign-terrorist-fighters-scheinin/

[10] Elinor Fry, The ICC’s Problematic Jurisdiction over Foreign Islamic State Fighters, JURIST – Academic Commentary, Dec. 24, 2014, http://jurist.org/academic/2014/12/elinor-fry-islamic-state.php.

[11] Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the human rights situation in Iraq in the light of abuses committed by the so-called Islamic State in Iraq and the Levant and associated groups (13th March 2015) A/HRC/28/18, paragraph 76

[12] Elinor Fry, The ICC’s Problematic Jurisdiction over Foreign Islamic State Fighters, JURIST – Academic Commentary, Dec. 24, 2014, http://jurist.org/academic/2014/12/elinor-fry-islamic-state.php.

[13] The Guardian, ICC has no jurisdiction to prosecute ISIS despite ‘crimes of unspeakable cruelty’ (8th April 2015) http://www.theguardian.com/law/2015/apr/08/icc-no-jurisdiction-prosecute-isis-despite-crimes-unspeakable-cruelty

[14] ibid

About Michelle McKenna

Michelle is a Senior Fellow at the HSC. Her research interests include military interventions in the Middle East and Africa, international development and the plight of small island states against climate change. She completed her final year thesis on the Responsibility to Protect in the context of the Libya conflict.