A Role for the International Criminal Court in the Fight against Terrorism? potx

K.U. Leuven
Faculty of Law

Institute for International Law
Working Paper No 26 - August 2002

A Role for the International Criminal Court
in the Fight against Terrorism?
Kris Verdoodt


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A Role for the International Criminal Court in the
Fight against Terrorism?
Kris Verdoodt

TABLE OF CONTENTS
I.

THE PROTRACTED PROCESS OF NEGOTIATING THE STATUTE..........4

1.

General................................................................................................................................................. 4

2.

Terrorism............................................................................................................................................. 6

II.

ARGUMENTS IN SUPPORT OF INCLUDING TERRORISM........................8

1.

General................................................................................................................................................. 8

2.
a)

b)

Arguments in support of including internal terrorism.................................................................... 9
Structural impunity – affected nation in state of political anarchy................................................. 10
Political context warranting a transfer of jurisdiction to the ICC................................................... 11

a)
b)

Arguments in support of including international terrorism ......................................................... 16
Impunity - custodial state neither prosecutes nor extradites........................................................... 18
Political context warranting a transfer of jurisdiction to the ICC................................................... 26

3.

III.
1.

ARGUMENTS AGAINST INCLUDING TERRORISM..............................28

a)
b)
c)
d)
e)

Arguments against the establishment of the ICC as such.............................................................. 28
The principle of national sovereignty............................................................................................. 29
Politically biased or lenient Prosecutors and judges ...................................................................... 30
No guarantees for a strict observation of due process requirements .............................................. 43

Ineffective investigation due to conflicting national security interests .......................................... 45
Jeopardizing highly delicate political balances .............................................................................. 47

a)
b)
c)

Specific arguments against including terrorism............................................................................. 49
The risk of overburdening the Court .............................................................................................. 49
The risk of politicizing the Court ................................................................................................... 50
The risk of trivializing the role of the Court................................................................................... 50

2.

IV.

AMENDMENTS TO THE STATUTE REQUIRED?..................................51

V.

CONCLUSION.............................................................................................53

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1. On July 1, 2002, the International Criminal Court (hereinafter referred to as the
“ICC” or the “Court”) will become operative. The ICC will have subject matter
jurisdiction over crimes of genocide, war crimes and crimes against humanity. The
Court will have jurisdiction over the crime of aggression as soon as agreement can be
reached on a definition of that crime. Crimes of terror are not included in the subject

matter jurisdiction of the Court. It is the purpose of the present thesis to assess
arguments in favor and arguments against such inclusion of crimes of terror, and, if
the arguments in favor are found to outweigh the arguments against inclusion, also to
examine to what extent the statute governing the ICC should be amended.

I. The protracted process of negotiating the Statute

1. General
2. In December 1990, Trinidad and Tobago suggested to the General Assembly of the
United Nations (hereinafter referred to as the “UN General Assembly”) to initiate an
exploratory probe into a possible establishment of an international criminal court.
Trinidad and Tobago found the structural weakness of the criminal justice system in a
number of nations to be a major problem in the fight against international drug
trafficking, which led them to conclude that an international criminal court would be
an adequate and even indispensable tool in an effective combat against powerful
international drug cartels.1

3. Pursuant to the initiative of Trinidad and Tobago, the UN General Assembly
instructed the International Law Commission (hereinafter referred to as the “ILC”) to
develop a tentative set of rules governing the composition, jurisdiction and

1

See website of the united Nations on the ICC, />
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functioning of the ICC. The ILC came up with a first report on its activities in 19902,
and adopted a first draft statute for the ICC in 1993 (hereinafter referred to as the
“1993 ILC Draft”)3. The 1993 ILC Draft received substantial criticism from quite a

number of national governments, which led the ILC to adopt an amended draft statute
for the ICC the next year (hereinafter referred to as the “1994 ILC Draft”)4.

4. The larger part of the international community considered the 1994 ILC Draft to be a
much more acceptable basis for further discussion than the 1993 ILC Draft. For the
first time, also the United States signaled its willingness to engage in constructive
talks on a statute for the Court5. Shortly after the release of the 1994 ILC Draft, the
UN General Assembly established an ad hoc committee (hereinafter referred to as the
“Ad Hoc Committee”), which was instructed to further develop some controversial
issues already addressed by or deliberately left out of the 1994 ILC Draft. The Ad
Hoc Committee released a report on its activities in 19956. In the same year, the UN
General Assembly established a preparatory committee (hereinafter referred to as the
“Preparatory Committee”), instructing it to further elaborate the 1994 ILC Draft
based on the report issued by the Ad Hoc Committee. The draft statute to be
developed by the Preparatory Committee was intended to serve as a basis for final
multi-lateral negotiations of a statute for the ICC. The Preparatory Committee
adopted a new draft statute in April of 1998 (hereinafter referred to as the “Prep.

2

Report of the International Law Commission on the work of its forty-second session, U.N. GAOR, 45th
Sess., Supp. No. 10, at 36, U.N. Doc. A/45/10; Rupa Bhattacharyya, Establishing a rule-of-law international
criminal justice system, 31 Tex. Int´l L.J. 57, 61 (winter 1996).
3
Report of the International Law Commission on the work of its forty-fifth session, U.N. GAOR, 48th
Sess., Supp. No. 10, at 258, U.N. Doc. A/48/10; G. SLUITER, “An International Criminal Court is hereby
established”, Netherlands Quarterly of Human Rights 1998, (413) 414, Rupa Bhattacharyya, Establishing a
rule-of-law international criminal justice system, 31 Tex. Int´l L.J. 57, 61 (winter 1996).
4
Report of the International Law Commission on the work of its forty-sixth session, U.N. GAOR, 49th

Sess., Supp. No. 10, at 29, U.N. Doc. A/49/10; C. VAN DEN WYGAERT and G. STESSENS (eds.),
International criminal law. A collection of international and European instruments, The Hague, Kluwer
Law International, 1996, 477-498.
5
T.L.H. MC. CORMACK and G.J. SIMPSON, “A new international criminal law regime?”, Netherlands
International Law Review 1995, (177) 203-204.
6
Report of the Ad Hoc Committee on the establishment of an International Criminal Court, U.N. GAOR,
50th Sess., Supp. No. 22, U.N. Doc. A/50/22.
7
Report of the Preparatory Committee on the establishment of an International Criminal Court,
/>
5


Com. Draft”)7. A special multi-lateral diplomatic conference was convened in Rome,
between June 15 and July 17, 1998 (hereinafter referred to as the “Diplomatic
Conference”), at which a final text of the statute was vigorously negotiated. The final
statute (hereinafter referred to as the “Statute”) was voted and adopted by the
Diplomatic Conference on July 17, 19988.

5. The Statute provides that it will enter into force on the first day of the month after the
sixtieth day following the day of the deposit of the sixtieth instrument of ratification
with the Secretary-General of the United Nations9. The sixtieth instrument of
ratification was deposited on April 11, 2002, and the Court will therefore be
established on July 1, 200210.

2. Terrorism
6. Article 20 of the 1994 ILC Draft granted subject matter jurisdiction to the Court with
respect to the following crimes : -

“ (a)

the crime of genocide;

(b)

the crime of aggression;

(c)

serious violations of the laws and customs applicable in armed conflict;

(d)

crimes against humanity;

(e)

crimes, established under or pursuant to the treaty provisions listed in the Annex,
which having regard to the conduct alleged, constitute exceptionally serious
crimes of international concern.”

7. The crimes referred to under section (e) are generally referred to as “treaty-based
crimes”. The “annex” referred to in section (e) was a list of existing treaties attached
to the 1994 ILC Draft, all of which treaties required states parties to those treaties to
8

See Rome Statute of the International Criminal Court, at />Art. 126 Statute.
10

See website of the Coalition for the International Criminal Court, consulted on June 3, 2002, at
/>9

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incriminate, through national criminal legislation, certain acts, such as drug
trafficking, hijacking, torturing and terrorist activities.

8. The list of crimes included in the subject matter jurisdiction of the ICC by article 20
of the 1994 ILC Draft reflected the three functions the Court could conceivably be
designed to perform11. Including crimes of genocide, crimes against humanity and
“serious violations of the laws and customs applicable in armed conflict” in the
subject matter jurisdiction of the ICC would render the Court an instrument for
human rights and humanitarian law enforcement. Granting the Court jurisdiction over
the crime of aggression would make it a tool for dispute resolution between states. An
ICC with jurisdiction over treaty-based crimes would be a tool for crime fighting in
areas of long-standing international concern.

9. Trinidad and Tobago conceived of the Court as a tool for crime fighting in areas of
long-standing international concern, with a specific focus on the battle against
increasingly powerful cartels of international drug trafficking. Although the 1994 ILC
Draft, in its article 20 (e), still endorsed the view of the spiritual fathers of the ICC, a
number of delegates in the Preparatory Committee seriously questioned the
desirability of allocating to the Court jurisdictional powers over treaty-based crimes,
expressing the need to avoid overburdening the limited financial and personnel
resources of the Court or trivializing its role and functions, and to avoid jeopardizing
the general acceptance of the Court or delaying its establishment12. A majority
opinion emerged within the Preparatory Committee that the Court’s jurisdiction
should initially be limited to “a set of core crimes that are of concern to the

international community as a whole”, including genocide, war crimes and crimes
against humanity13. In justifying their narrowing approach to the Court’s jurisdiction,
the Preparatory Committee focused on the facilitation of broad acceptance of the
11

See also Lara A. Ballard, The Recognition and Enforcement of International Criminal Court Judgments
in U.S. Courts, 29 Colum. Human Rights L. Rev. 143, 150 (1997).
12
Molly McConville, A global War on Drugs : why the United States should support the Prosecution of
Drug Traffickers in the International Criminal Court, 37 Am. Crim. L. Rev. 75, 92 (2000).
13
Jelena Pejic, “Creating a permanent International Criminal Court : the obstacles to independence and
effectiveness, 29 Colum. Human Rights L. Rev. 291, 311 (1998).

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Court and the containment of start-up costs, thereby implying that including treatybased crimes is not undesirable in itself14.

10. Eventually, at the Diplomatic Conference, the treaty-based crimes were not included
in the Statute. As a compromise, a resolution was passed by the Diplomatic
Conference, confirming that “terrorist acts, by whomever and wherever perpetrated
and whatever their forms, methods or motives, are serious crimes of concern to the
international community”, and recommending that the states parties to the Statute
(hereinafter referred to as the “States Parties”) consider reaching agreement on a
definition and including terrorism (and also drug trafficking) at a future review
conference, pursuant to Article 123 of the Statute15. Article 123 of the Statute
provides that 7 years after the entry into force of the Statute, a Review Conference
shall be convened by the Secretary-General of the United Nations to consider any
amendments to the Statute. Therefore, inclusion of terrorism in the list of crimes

falling within the subject matter jurisdiction of the Court, should not be expected to
occur at any time prior to 2009.

II. Arguments in support of including terrorism

1. General
11. For the purpose of assessing arguments pro and contra an inclusion of acts of
terrorism in the subject matter jurisdiction of the Court, it is convenient to make a
scholarly distinction between “internal” terrorism and “international” terrorism.

14

Jelena Pejic, “Creating a permanent International Criminal Court : the obstacles to independence and
effectiveness, 29 Colum. Human Rights L. Rev. 291, 311-312 (1998).
15
See Resolution E of the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on
the establishment of an International Criminal Court, done at Rome, on 17 July 1998, at
/>
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12. The concept of “internal” terrorism, as used in this paper, is intended to refer to any
and all acts of terror that involve or affect citizens or interests of only one country,
including therefore only acts of terror that are perpetrated by nationals of a certain
state, on the territory of that state, targeting material or other interests or citizens of
that state, and, to the extent that they are politically inspired, stemming from a
conflict between the responsible terrorist group and that state. “International”
terrorism, as used in this paper, is intended to refer to any and all acts of terror that
involve or affect citizens or interests of more than one country.

13. The physical destruction caused by acts of internal terror, and, if any such conflict
exists, the underlying political conflict from which these acts of terror originate, are
primarily confined and related to one particular country, whereas the origin and
impact of acts of international terrorism directly involve and affect the international
community as a whole. Therefore, arguments proffered in support of or against the
inclusion of acts of internal terrorism in the subject matter jurisdiction of the Court
will not run entirely parallel with arguments proffered in support of or against
inclusion of acts of international terrorism. At first blush, one could perhaps even
expect it to be easier to conceive of persuasive arguments in support of including acts
of international terrorism than it would be to convincingly argue in favor of including
acts of internal terrorism. The fact that crimes of international terrorism have a direct
impact on the international community makes it easier to support a response on an
international level. Acts of internal terrorism lack any such direct impact on the
international community and are, as such, more often viewed as concerning solely the
state affected by them : an intervention of the international community in response to
internal terror would therefore more easily be dismissed as an inappropriate
interference with the internal affairs of the affected state.

2. Arguments in support of including internal terrorism

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14. The alternative to having perpetrators of acts of internal terrorism prosecuted and
tried by the ICC, is to leave prosecution and trial up to the criminal justice system of
the affected state. This is how crimes of internal terrorism are currently being
handled, and under certain circumstances, it may indeed provide an appropriate and
adequate response to internal terrorism.

15. However, for a variety of reasons, crimes of internal terror sometimes remain

unpunished. Pursuing the elimination of such impunity is one argument in favor of
granting the ICC subject matter jurisdiction over crimes of internal terror.
Furthermore, when crimes of internal terror would not remain unpunished but would
indeed be prosecuted and tried by the affected state, prosecution and trial by the ICC
could nevertheless be the appropriate way of dealing with these crimes, if prosecution
and trial by the affected state would take place in an undesirable political context.

16. Paragraphs 20 up to 27 will elaborate the instances in which and the various reasons
why the present day deference to the national criminal justice system of the affected
state may lead either to (a) a situation of structural impunity, or (b) effective
investigation, prosecution and trial, in a political context that could arguably warrant
a transfer of jurisdiction to the ICC.

a) Structural impunity – affected nation in state of political anarchy

17. The affected state may be structurally unable to investigate, prosecute and try
perpetrators of acts of internal terrorism. Currently, Somalia would probably be an
example of a country where the rule of anarchy would render investigation,
prosecution and trial of internal terrorists structurally impossible. The same could
probably be said of the present day political situation in Afghanistan : if the Taliban
and Al Qaeda would start to use terrorist attacks on Afghan territory to fight the
newly installed Afghan government as from tomorrow, it would be doubtful whether

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the Afghan authorities could provide for effective investigation, prosecution and trial
as from the day after tomorrow.

18. The ICC obviously has an important role to play in dealing with acts of internal

terrorism targeting a state in political anarchy. Inactivity of the international
community would necessarily imply a morally unacceptable situation of structural
impunity, which should in itself be sufficient to warrant intervention by the ICC.

19. In as far as a moral argument would not be sufficient to grant jurisdiction to the ICC
over crimes of internal terror that would otherwise remain unpunished, there is also
an argument of self-interest that can be made to support ICC jurisdiction. After the
attacks on the World Trade Center and the Pentagon on September 11, 2001
(hereinafter referred to as the “September 11 Events”), the international community
should have come to understand that an unacceptable political situation within a
sovereign state, seemingly affecting only that state, can dramatically “spill-over” to
affect other states. Suppose once more that the Taliban and Al Qaeda would start to
fight the newly installed Afghan government through terrorist attacks on Afghan
territory and that the Afghan criminal justice system does not bring Taliban and Al
Qaeda terrorists to justice because it is structurally incapable of doing so : such a
situation of structural impunity could possibly allow Al Queda to destabilize the
Afghan government and regain power on parts of the Afghan territory, enabling it to
set up new training camps that can be used to prepare recruits for terrorist attacks
around the globe.

b) Political context warranting a transfer of jurisdiction to the ICC

(i)

Affected nation faces severe retaliation

20. Of course, only very few countries currently face a situation of apparent political
anarchy : most countries, including most countries affected by internal terrorism,

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have in place a criminal justice system, capable of acting with some degree of
efficiency.

21. However, some countries are challenged by internal terrorist groups which, when
measured against the strength of the police and military forces of the affected state,
exert considerable military power. Colombian terrorist groups – notably paramilitary
organizations united under the umbrella of the “United Self Defense Group of
Colombia” (“Autodefensas Unidas de Colombia”, or “AUC”), the left-wing guerrilla
“Revolutionary Armed Forces of Colombia-People’s Army” (“Fuerzas Armadas
Revolucionarias de Colombia-Ejercito del Pueblo”, or “FARC-EP”) have such
military “leverage”. These groups have made it life-threatening to fight internal terror
for Colombian investigators, judges and politicians, numerous of which have been
killed.16

22. The political situation in Algeria presents similar problems. For more then a decade,
governmental security forces and radical Islamist groups have been waging a bloody
battle. Frequently, crimes of terror are inflicted upon civilian population and targets.
The death toll of a decade of political violence, which has gone well over one
hundred thousand casualties, is a clear indication of the strong military position of the
main Islamist groups – the “Armed Islamic Group” (“Groupe Islamique Armé”, or
“GIA”) and the “Front Islamique du Salut” (or “FIS”). The 1999 Civil Harmony Act
provided amnesty or reduced sentences to Islamic groups that would accept a truce.
Although the Civil Harmony Act provides that persons who have taken part in
killings or rape are disqualified from amnesty or reduced sentences, apparently most
such persons remain unpunished. Fear for new retaliatory outbursts of violence could
probably be one of the reasons for this impunity.17

16

Steven W. Krohne, The United States and the World need an International Criminal Court as an Ally in
the War against Terrorism, 8 Ind. Int’l & Comp. L. Rev. 159, 180 (1997). For a more detailed report of the
political situation in Colombia, see HUMAN RIGHTS WATCH, World Report 2002, 132-141.
17
For this and more detailed information on the political situation in Algeria, see HUMAN RIGHTS
WATCH, World Report 2002, 406-414.

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23. When the risk of severe retaliation is high, the affected state will often see itself
coerced not to prosecute. If the affected state does nevertheless prosecute, it may so
provoke violent retaliation which it is incapable of preventing. Neither a coerced
decision not to prosecute nor a retaliated decision to prosecute can be an acceptable
response under this threatening political situation, which therefore calls for a different
forum to prosecute and try the crimes of terrorism at issue.

24. The ICC seems to be a good alternative judiciary forum, since prosecution and trial
by the ICC may be expected to provoke less or less severe retaliation. Two arguments
justify this expectation. First, the Court is an institution established by the
international community, located in far-away The Hague. As a practical matter, this
will render retaliation on the prosecuting and trying justice system itself, i.e. the ICC,
substantially more difficult. Second – and this argument applies particularly to crimes
of internal terror that stem from a political conflict between responsible terrorists and
the affected state – the ICC is a politically neutral judicial body, established by the
international community. This will make terrorist groups targeted by the ICC less
suspicious about their prosecutors’ and the judges’ political neutrality than they
would be about the political neutrality of their own national criminal law enforcement
system. This will probably be an important disincentive to retaliate against the Court

or against their own national government : terrorist groups might be less inclined to
resort to strong retaliation when they feel that their case is submitted to a
disinterested, “sterile” international body in stead of to investigators, prosecutors or
judges who in their opinion represent the enemy.

25. In a threatening political context like this, ICC jurisdiction over crimes of internal
terror would not only be in the best interest of the affected state in the sense that it
would eliminate the dilemma of either letting terrorists go unpunished or prosecuting
them at the risk of severe retaliation : it would also serve the interests of the entire
international community, because, as already argued above, the September 11 Events
should have made everyone aware of the fact that structural impunity of internal
terrorists can spill over to affect other countries. Again, the hypothetical example of

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the Taliban and Al Qaeda is very apposite : if Al Qaeda would start to fight the newly
installed Afghan government through terrorist attacks on Afghan territory and the
Afghan criminal justice system does not bring Taliban and Al Qaeda terrorists to
justice because it fears it cannot prevent retaliation against its investigators,
prosecutors and judges, such a situation of structural impunity could allow Al Queda
to destabilize the Afghan government and regain power on parts of the Afghan
territory, enabling it to set up new training camps that can be used to prepare recruits
for terrorist attacks around the globe.

(ii)

Affected nation cannot provide for politically neutral forum

26. A number of nations affected by internal terrorism do not face political anarchy or

threats of violent retaliation. Nonetheless, the ICC may also have an important role to
play in the fight against crimes of internal terrorism directed against those countries.

27. The mere fact that a state has in place a relatively orderly and stable system of public
administration, does not necessarily imply that its criminal justice system, when
dealing with crimes of internal terror, operates strictly within the limits of due process
requirements, nor does it imply that every officer within the criminal justice system
observes the legal and deontological standards governing their profession. Principles
of due process and the legal and deontological standards of police officers,
prosecutors and judges, risk to be jeopardized whenever a country faces terrorist
assaults perpetrated by politically inspired organizations seeking to obtain from the
central government some type of political independence or recognition for an ethnic,
religious or other group they claim to represent. Police officers, prosecutors and
criminal judges accounting for criminal law enforcement in such countries, are
typically no members of the minority group at issue and are often severely pressured
by the nation’s majority group to deal firmly with these crimes of political terror. This
may induce them to do away with the legal and deontological standards governing
their profession, which may result in police officers and prosecutors manipulating the
results of their investigative efforts, or in criminal judges not observing the standards

14


of due process or the requirement of impartiality and independence imposed upon
them by law.

28. This risk is imminent not only in countries that are generally thought of as being less
democratic or less adhering to the rule of law, but also in western rule-of-law
democracies. For example, Northern Irish catholic persons accused of crimes of terror
committed by the IRA, faced biased or prejudicial proceedings on more than one

occasion18. A few years ago, it was revealed that eighteen people had been convicted
for acts of terror they did not commit19. In another case, four people known as the
“Guilford Four” appeared to have been coerced into confession of terrorist attacks
through severe beating. In the case of the Guilford Four, it was also revealed that
investigators committed perjury and withheld exculpatory evidence to further a
conviction of the suspects.20

29. Obviously, the incidence of politically charged treatment of people accused of
terrorist assaults, is a reason to support ICC jurisdiction over these people. The
question whether a political bias with investigators, prosecutors and judges of states
affected by political terror indeed exists, and the question whether this political bias
in fact systematically or occasionally leads to unfair criminal proceedings, are not
even all that relevant in the debate about whether the ICC should be granted
jurisdiction. Regardless of whether a criminal justice system is in fact pressured into
politically charged treatment of alleged terrorists, the system is almost always
perceived by the minority group to be politically inclined against it. For instance,
members of ETA or the IRA, but also a substantial part of the population in Basque
Country and the catholic population of Northern Ireland view the Spanish and British
criminal law enforcement systems as fundamentally hostile to their cause and
therefore strongly biased against any alleged terrorists prosecuted or tried by the

18

Steven W. Krohne, The United States and the World need an International Criminal Court as an Ally in
the War against Terrorism, 8 Ind. Int’l & Comp. L. Rev. 159, 172 (1997).
19
Bryan F. MacPherson, An International Criminal Court : applying world law to individuals, 13 (1992).
20
Bryan F. MacPherson, An International Criminal Court : applying world law to individuals, 13-14
(1992).

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system21. If we want justice not only to be done, but also to be seen to be done, this
perception of a fundamental lack of political neutrality of the system, should in itself
be a persuasive argument for affected states to have alleged terrorists tried by the
ICC.

3. Arguments in support of including international terrorism
30. The alternative to having persons accused of acts of international terrorism
prosecuted and tried by the ICC, is to have them prosecuted and tried by the national
criminal justice system of one the states involved in or affected by the terrorist attacks
at issue, i.e. the state of which the accused is a national, the state on whose territory
the acts have been committed, or the state or states of which the interests or citizens
have been targeted. This is how crimes of international terror are currently being
handled.

31. Sometimes, the state on whose territory the alleged terrorist is staying (hereinafter
referred to as the “custodial state”) will be one of the involved or affected states. In
that event, the terrorist acts at issue are very likely to constitute a criminal offense
under the criminal laws of the custodial state, and the national criminal courts of the
custodial state are likely to have criminal jurisdiction over those terrorist acts under
the criminal jurisdiction laws of the custodial state.

32. If, however, on the one hand, the custodial state is an involved or affected state, but,
on the other hand, either the terrorist crimes do not qualify as criminal offenses under
its criminal laws or its criminal jurisdiction laws do not allow for its national criminal
courts to exert jurisdiction over those terrorist crimes, then the alleged perpetrators of
21

For the Northern Irish situation, this point of view can be seen throughout the writings on many prorepublican websites, including amongst many others /> and also the website of Sinn Fein for the Basque situation,
this point of view can be can be seen throughout the writings on many pro-Basque websites, including
amongst
many
others,
the
website
of
the
Euskal
Herria
Journal
at
/>
16


those crimes can only be brought to justice if the custodial state decides to extradite
the accused to an involved or affected state that does allow for its national criminal
courts to exert jurisdiction over the crimes.

33. When the custodial state is not an involved or affected state, the criminal jurisdiction
laws of the custodial state would have to grant to its national courts so called
“universal” jurisdiction over the terrorist assaults at issue in order for those national
courts to be able to try those assaults22. The criminal jurisdiction laws of the custodial
state will very rarely grant universal jurisdiction over acts of international terror to its
national courts. Therefore, the custodial state will almost always be legally incapable
of prosecuting the relevant terrorist crimes, which means, once more, that the alleged
perpetrators of those crimes can only be brought to justice if the custodial state

decides to extradite the accused to an involved or affected state that does allow for its
national criminal courts to exert jurisdiction over the crimes.

34. Usually, the custodial state and the involved or affected state that requests the
extradition of alleged international terrorists (hereinafter referred to as the
“requesting state”) have entered into a multi-lateral or bi-lateral treaty, by virtue of
which the custodial state is bound by an “aut dedere aut iudicare” obligation with
respect to acts of terror. An “aut dedere aut iudicare” obligation requires the
custodial state to either extradite persons accused of acts of international terror or to
have the accused prosecuted by its own criminal justice system. If the custodial state
is not bound by such “aut dedere aut iudicare” obligation vis-à-vis the requesting
state, the custodial state is not legally required to extradite or prosecute and can
decide to extradite or decline to extradite at its own unrestricted discretion.

35. In a perfect world, crimes of international terrorism would never remain unpunished,
because the custodial state will either have the perpetrators of those crimes prosecuted
by its internal criminal law enforcement system, or, if the custodial state is legally

17


incapable of or deliberately refrains from prosecution, it will extradite the accused to
an involved or affected state as a gesture of political goodwill or as a matter of
compliance with an “aut dedere aut iudicare”-obligation. However, in a less than
perfect world such as ours, international terrorists will remain unpunished if the
custodial state neither genuinely prosecutes nor extradites them.

36. Obviously, the fight against impunity of international terrorists is a strong argument
in support of its inclusion in the subject matter jurisdiction of the ICC. Nonetheless,
as it will be argued hereinafter, the Court could conceivably also play an important

role in dealing with acts of international terror that would not remain unpunished in
the absence of jurisdiction of the ICC. Paragraphs 37 up to 60 will elaborate the
instances in which and the reasons why the present day system of deference to trial by
the custodial state or by any involved or affected state, premised as it is on “aut
dedere aut iudicare”-treaties or on the political goodwill of the custodial state, may
lead either to (a) impunity, or (b) prosecution and trial in a political context that
warrants prosecution and trial by the ICC.

a) Impunity - custodial state neither prosecutes nor extradites

37. When the custodial state is politically unwilling to or legally incapable of prosecuting
alleged international terrorists, it may proffer a variety of reasons for refusing to
extradite the alleged terrorists to involved or affected states requesting their
extradition (thereby breaching its obligations under an “aut dedere aut iudicare”treaty, or, in case the custodial state is not bound by any such obligation vis-à-vis the
requesting state, declining a call on its political goodwill). The custodial state may
refuse to extradite because it (i) fears that the requesting state cannot provide for a
politically neutral forum to prosecute and try the alleged terrorists, (ii) fears that
extradition will not be accepted by the population of the custodial state, or lead to
22

The criminal courts of a particular state are said to have “universal” criminal jurisdiction over certain
crimes, if those courts can try these crimes irrespective of whether any particular nexus exists between that
state and those crimes.

18


retaliation from targeted terrorist groups or from other countries, or (iii) simply
wishes to shield the alleged terrorist from prosecution.

38. Under headings (i) through (iii), the various reasons for a refusal to extradite and the
ensuing impunity will be further elaborated, and it will then be assessed to what
extent each of these reasons could lead a custodial state to also refuse extradition of
international terrorists to the ICC. Paragraph (iv) will elaborate the negative effects of
the various actions of “self-help” a requesting state may undertake when faced with a
custodial state’s rejection to extradite, and will assess to what extent measures of
“self-help” and their negative effects can be avoided when it becomes possible to
extradite international terrorists to the Court.

(i)

Reason to refuse extradition : requesting state does not provide for politically neutral
forum

39. In many cases, the stated reason for a refusal to extradite persons accused of crimes of
international terror are related to concerns within the government of the custodial
state that the accused will not get a fair trial in the requesting state. An apposite
example of a situation in which a custodial state refused to extradite alleged terrorists
for the stated reason that the accused would not get a fair trial in the requesting state,
is provided by the Lockerbie-case. On December 21, 1988, Pan Am flight 103 was
bombed over Lockerbie, Scotland. Three years after the tragic events, two Libyan
intelligence agents were indicted, but Libya refused to extradite the accused
intelligence agents to the United States or the United Kingdom, because it feared that
the suspects would not get a fair trial in either of those two countries.23 More recently,
in the aftermath of the September 11 Events, one of the reasons for the Taliban
regime not to extradite Osama bin Laden to the United States, was probably the
Taliban’s belief that Osama bin Laden would not get a fair trial in the United States.

23

Steven W. Krohne, The United States and the World need an International Criminal Court as an Ally in
the War against Terrorism, 8 Ind. Int’l & Comp. L. Rev. 159, 181-182 (1997); Bryan F. MacPherson, An
International Criminal Court : applying world law to individuals, 16 (1992). For more detailed information
on the Lockerbie-case, see .

19


40. Allocating criminal jurisdiction over international terrorism to the ICC – a politically
neutral judicial body, established by the international community, located on neutral
territory at The Hague, and consisting of prosecutors and judges who can be expected
to be far more politically disinterested than the prosecutors and judges of an involved
or affected state – may be an effective solution to impunity resulting from a stated
fear for unfair treatment. When the custodial state has a good faith belief that the
accused might not get a fair trial in the requesting state, the custodial state may be
expected to be sufficiently reassured when the ICC would try the accused and hence
also be willing to extradite the accused to the Court.

41. Libya’s behavior in the aftermath of the Lockerbie-case is probably a good example
of how a custodial state, which refused to extradite the suspects of a crime of
international terror for the stated reason that they would not be given a fair trial in
either of the requesting states, eventually ended up extraditing the suspects to a
neutral international tribunal. Libya no longer asserted that it feared unfair treatment,
once it had been suggested that the suspects be tried by a Scottish court, located on
neutral Dutch territory – quite a physical and psychological distance away from any
pressure from UK or US government or public opinion –, which would try the
suspects in accordance with Scottish criminal law and procedure.24

(ii)

Reason to refuse extradition : custodial state pressured by its own population, other
countries, or the threat of severe retaliation

42. In some cases, the custodial state is reluctant to extradite alleged international
terrorists to a particular requesting state, because the custodial state fears that
extradition to that requesting state will be strongly disapproved by its own
population25.

24

For more detailed information on the Lockerbie trial, see />
20


43. Many examples can be given of reported or likely refusals to extradite for such
reasons. Most Arab countries are likely to be very reluctant to extradite any alleged
terrorist to the United States, because they fear they could not justify this decision to a
population that is deeply frustrated with American foreign policy in the Middle East.
Another example is Colombia, where crimes of international terror occasionally have
been targeted at American civilians, but where it is politically impossible for the
Colombian government, not only to prosecute perpetrators of these crimes in
Colombia26, but also, because of the population’s bitterness over America’s foreign
policy toward Colombia, to extradite them to the United States27.

44. Pressure not to extradite alleged terrorists to particular requesting countries does not
necessarily have to originate from the custodial state’s own population. Custodial
states might be so pressured by powerful other countries also. For instance, Lebanon,
which is traditionally strongly influenced and pressured in its policy by its powerful
neighbor Syria, would probably not extradite alleged terrorists to the United States, if
the Syrian government would disagree with that, even if the Lebanese government

would be willing to extradite in the absence of Syrian pressure.

45. Sometimes, extradition would not only lead to disapproval among the population of
the custodial state or with the government of powerful other countries, but would also
trigger violent retaliation from targeted terrorist groups. This risk is especially
imminent, whenever the organization responsible for the terrorist assault at issue
exerts considerable military power and political support in the custodial state. If, for
instance, at some time in the future, Palestine would obtain the status of an
independent nation, and Hamas would continue to inflict acts of terror upon Israeli
targets, the Palestine authority might be very reluctant, not only to have alleged
terrorists prosecuted by Palestinian criminal courts, but also to extradite them to
25

For a similar argument in support of including drug-trafficking in the subject matter jurisdiction of the
Court, see Molly McConville, A global War on Drugs : why the United States should support the
Prosecution of Drug Traffickers in the International Criminal Court, 37 Am. Crim. L. Rev. 75, 91 (2000).
26
Supra, 21.
27
Steven W. Krohne, The United States and the World need an International Criminal Court as an Ally in
the War against Terrorism, 8 Ind. Int’l & Comp. L. Rev. 159, 181-182 (1997).

21


Israel. Extradition to Israel would indeed be fiercely disapproved by a majority of the
Palestinian population, but furthermore, the Palestinian authority might also fear that
extradition to Israel would trigger violent retaliation from the powerful and influential
organization of Hamas against the official Palestinian authorities, or perhaps even
lead to an armed conflict between more radical and more moderate Palestinians

groups.

46. In all of the circumstances described under paragraphs 42 through 45, awarding
jurisdiction to the ICC over crimes of international terror may induce custodial states
to extradite alleged terrorists to the ICC, where they would otherwise refrain from
extraditing to the requesting state, leaving terrorists unpunished. When the custodial
state has a good faith belief that extradition would run counter of the resentment and
opinion of its own population or of powerful other countries or would even trigger
violent retaliation, the custodial state may be expected to be sufficiently reassured
that an extradition will not be as strongly disapproved or will have no such adverse
impact, if extradition is to the ICC.
(iii)

Reason to refuse extradition : custodial state wishes to shield the accused from
prosecution

47. Often, the custodial state refuses to extradite alleged terrorists simply because it
wishes to shield the suspects from criminal prosecution. Typically, fear for unfair
treatment or outside pressure not to extradite, are used to conceal the custodial state’s
genuine intention to protect the accused.

48. In some cases, allowing the ICC to prosecute and try international terrorists will not
alter the custodial state’s decision not to extradite. However, in many cases, the
option of extraditing to the Court may eventually induce the custodial state to
extradite, in spite of its attempts to protect the alleged terrorists. It will be virtually
impossible for the custodial state to make a credible argument that alleged terrorists
would not be tried in a fair manner or that various sources of political pressure or

22

threats of retaliation preclude it from extraditing alleged terrorists, even if extradition
would be for trial by the ICC. If the custodial state nonetheless continues to invoke its
sham reasons not to extradite, its true motives will be revealed to the entire
international community. Few custodial states will be able to resist strong
international pressure likely to result from such exposure of obstructive intent. This
strong international pressure to extradite would be especially hard to resist, when the
custodial state would also be threatened with economic or other sanctions.

(iv)

“Self-help” as a response to a refusal to extradite

49. Quite often, whenever a custodial state cannot or does not genuinely want to
prosecute international terrorists staying on its territory, a state whose request for
extradition of those terrorists is rejected by the custodial state, will not merely accept
such rejection for a fact. Depending on whether the custodial state and the requesting
state are, in general, on friendly or more tense terms with one another, and also on the
relative superiority of the requesting state over the custodial state in terms of military
force and intelligence gathering, the requesting state will resort to actions of “selfhelp” in order to assure that, in spite of the custodial state’s initial refusal to extradite,
the targeted international terrorists will nonetheless be tried by its own criminal
courts.

50. Actions of “self-help” can take a variety of forms. The most “efficient” action of selfhelp is political abduction : the requesting state sends special agents to the custodial
state, who will breach the territorial sovereignty rights of the custodial state to abduct
the alleged international terrorists from the territory of the custodial state and to bring
them over to the territory of the requesting state where they will be tried. US agents
have committed or assisted in political abductions on more than one occasion.
Furthermore, in Ker v. Illinois and Frisbie v. Collins, the US Supreme Court
developed the Ker-Frisbie doctrine, which held that an American court cannot be

23


denied personal jurisdiction over a suspect for the sole reason that this suspect has
been forcibly abducted from the territory of another state.28

51. Other, less “efficient” forms of self-help are designed to force the custodial state to
overturn its initial refusal to extradite. The most extreme way of pressuring the
custodial state into a policy shift, is to use military force against the custodial state.
This was the exact response of the United States to Libya’s refusal to extradite the
suspects of the bombing of Pan Am flight 103, and to the Taliban’s refusal to
extradite Osama bin Laden for his alleged responsibility for the September 11 Events.
More moderate ways of pressuring the custodial state can range from weapon
embargo’s, over economic sanctions to diplomatic isolation.

52. Apart from the fact that resort to self-help rarely accomplishes the goal it is aimed at,
i.e. actual extradition of the alleged international terrorists, it sometimes raises legal
problems and it almost always leads to adverse political consequences. In spite of the
Ker-Frisbie doctrine, the lawfulness of actions of self-help under existing rules of
international law is highly questionable. Although this paper does not intend to
provide an in-depth analysis of the consistency of each conceivable action of self-help
with existing principles of international law, many political abductions are likely to
constitute a breach of the territorial sovereignty of the custodial state, and the use of
military force which is not backed by a resolution of the Security Council of the
United Nations (hereinafter referred to as the “UN Security Council”) under chapter
VII of the UN Charter, will often not be justifiable as a proportionate act of selfdefense under article 51 of the UN Charter.

53. Furthermore, the resort to self-help almost always leads to frustration and general
disapproval. Obviously, it will cause resentment and frustration with the population

of the custodial state. Widespread feelings of resentment and frustration are likely to
spill over into actual retaliation, such as new terrorist assaults or abductions of
28

For an explanation of the holdings in Ker v. Illinois and Frisbie v. Collins, see Peter S. McCarthy, United
States v. Verdugo-Urquidez : extending the Ker-Frisbie doctrine to meet the modern challenges posed by

24


citizens of the state resorting to self-help. For example the US bombings of
Afghanistan in response to the September 11 Events, the transfer of captured Taliban
and Al Quada fighters to Guantanamo Bay and the refusal to give these prisoners the
status of “prisoner of war”, caused a fair deal of resentment amongst the part of the
Pakistani population that sympathizes with the Afghan Taliban regime. The recent
abduction and killing of the Wall Street Journal journalist Daniel Pearl in Pakistan29,
was probably in part a direct result from this widespread resentment.

54. The political effects of self-help will not be limited to the population of the custodial
state. Often, the entire international community will disapprove of actions of self-help
as a “unilateral”, “non-concerted” and “arrogant” response to a problem that is
fundamentally one that concerns the global community as a whole. As a result, a
resort to self-help will lead to a significant loss of political goodwill with a substantial
part of the international community, also with countries that fully endorse the point of
view that the custodial state should extradite when it is not willing or able to
prosecute by itself. The worldwide frustration with unilateral resort to self-help will
be particularly deep, whenever military force is used without the backing of a UN
Security Council resolution under chapter VII of the UN Charter.

55. A high incidence of unilateralist measures of self-help, is likely to create some sort of

precedent in the international community and lead to a worldwide increase in the use
self-help measures, especially against countries that do not refrain from undertaking
such measures themselves, or as Justice Brennan stressed in his opinion dissenting
from the Supreme Court’s holding in United States v. Verdugo-Urquidez (in which
the Court again endorsed and even expanded the Ker-Frisbie doctrine), “unlawfulness
breeds unlawfulness”.30

the international drug trade, 27 New Eng. L. Rev. 1067, 1071-1072 (1993).
29
For an overview of events in the kidnapping and murder of Daniel Pearl, see
(consulted on June 3, 2002).
30
Molly McConville, A global War on Drugs : why the United States should support the Prosecution of
Drug Traffickers in the International Criminal Court, 37 Am. Crim. L. Rev. 75, 85-87 (2000).

25