Terrorism and Counter-Terrorist Responses: The Role of International Criminal Jurisdictions

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TERRORISM AND COUNTER-TERRORIST RESPONSES: THE ROLE OF

INTERNATIONAL CRIMINAL JURISDICTIONS

Rod Rastan * and Olympia Bekou

1. Introduction

Th is chapter will examine the role of international courts and tribunals in enforcing individual criminal responsibility for terrorist acts by non-state actors as well as for governmental counter-terrorist responses where rule of law principles have been violated. International criminal courts typically deal with war crimes, crimes against humanity, and genocide. Nonetheless, terrorist acts and government responses to them may fall within the scope of international jurisdiction, where the relevant contextual parameters are satisfi ed. As will be seen, the existing framework of inter-national criminal law can be used to deal with conduct amounting to terrorist acts or omissions by physical perpetrators or their commanders, whether they are state or non-state actors, as well as governmental responses to these acts. Placing such conduct within an international jurisdiction may also strengthen the applicable rule of law framework by imposing enforcement obligations on relevant states to provide international cooperation and judicial assistance. Th is chapter examines the benefi ts and limits of such an approach, as well as relevant existing case law at the international level. It further tackles issues of cooperation and the challenges of dealing with large quantities of facts and evidence, to conclude that some of the approaches taken by international criminal justice institutions could be transferrable to other rule of law initiatives, including dealing with terrorism and counter-terrorism responses.

* Rod Rastan serves as Legal Advisor, Offi ce of the Prosecutor, International Criminal Court (ICC). Th e views expressed herein are solely his own and do not necessarily refl ect those of the Offi ce of the Prosecutor or the ICC.

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2. Legal Framework

Not every prohibition under international law, whether under international custom or convention, can be considered an international crime. Secondly, not every inter-national crime carries individual criminal liability, indeed a relatively small number do so. As Jelena Pejic sets out in Chapter 7, some terrorist acts occurring during a situation of armed confl ict may fall within the scope of existing international humanitarian law. Alternatively, terrorist conduct may be proscribed only indi-rectly, through the sanction of acts which could otherwise be characterized as terrorist: meaning that while the facts underlying terrorist conduct may be captured as an international crime, their legal qualifi cation will not. Th is may include such conduct as the intentional targeting of civilians, peacekeepers, or humanitarian assistance personnel; the destruction of property not justifi ed by military necessity; hostage-taking; the use of human shields; torture; the employment of unlawful methods of warfare, such as the use of asphyxiating, poisonous, or other gases; or the use of weapons, projectiles, and material and methods of warfare which are of a nature to cause superfl uous injury or unnecessary suff ering or which are inherently indiscriminate. 1 Criminal responsibility under international law may also arise where terrorist related conduct satisfi es the contextual parameters for crimes against humanity or genocide, which may apply in situations of peacetime as well as armed confl ict. In particular, terrorist acts committed as part of a widespread or systematic attack against a civilian population may encompass such conduct as murder, exter-mination, imprisonment, or other severe and unlawful deprivation of physical liberty, torture, or other inhumane acts causing great suff ering or serious injury to body or to mental or physical health. 2 To amount to genocide, the underlying acts, for example, murder, must be committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such. 3

As described elsewhere in this volume, terrorism remains a highly contested con-cept and a comprehensive defi nition has eluded capture. 4 Capturing such conduct under the rubric of international criminal law has the benefi t of utilizing an existing legal framework without recourse to defi ning a separate international crime. 5

1 B Broomhall, ‘State Actors in an International Defi nition of Terrorism from a Human Rights Perspective’ (2004) 36 Case Western Reserve JIL 421, 423–4. See generally H Duff y, Th e ‘War on Terror’ and the Framework of International Law (CUP, Cambridge 2005).

2 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) (ICC Statute) art 7.

3 Convention for the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, came into force 12 January 1951) art II, which has been replicated verbatim in the Statutes of both the ad hoc Tribunals and the ICC (Genocide Convention 1951).

4 See generally A Schmid, ‘Terrorism — Th e Defi nitional Problem’ (2004) 36 Case Western Reserve JIL 375; B Saul, ‘Criminality and Terrorism’, Chapter 6 of this volume.

5 F de Londras, ‘Terrorism as an international crime’ in W Schabas and N Bernaz (eds), Th e Routledge Handbook on International Criminal Law (Routledge, London 2010) 169–70.


32. Th e Role of International Criminal Jurisdictions

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International criminal law, moreover, extends to state and non-state actors equally, providing thereby a rule of law framework to address both alleged terrorist acts as well as counter-terrorist responses to them. It also captures the conduct of both physical perpetrators as well as their civilian or military commanders, who may be held responsible for both their acts and their omissions. 6 Moreover, certain defences that apply under domestic law may also not be available before an international jurisdiction, such as the defence of superior orders, 7 claims based on offi cial capacity or constitutional immunity, 8 as well as statutes of limitations. 9 Placing such conduct within an international jurisdiction may also trigger obligations of relevant states to provide international cooperation and judicial assistance. Th is may arise from a Security Council resolution imposing such obligations on all United Nations (UN) Member States, 10 or through treaty obligations arising from acceptance of international jurisdiction by that state. 11 In the context of the International Criminal Court (ICC), moreover, the principle of complementarity means that the failure by a domestic body to investigate and prosecute such conduct may result in the Court exercising its jurisdiction. 12

Th e application of international criminal law, nonetheless, will require the satisfaction of several thresholds. Conduct which might otherwise be charged as an ordinary

6 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (created by UNSC Res 827 (25 May 1993) UN Doc S/RES/827) (ICTY Statute) art 7; Statute of the International Tribunal for Rwanda (created by UNSC Res 955 (8 November 1994) UN Doc S/RES/955) (ICTR Statute) art 6; art 28 ICC Statute. See Section 4.1.1 below.

7 Art 7(4) ICTY Statute; art 6(4) ICTR Statute. Art 33 ICC Statute provides: ‘Th e fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) Th e person was under a legal obligation to obey orders of the Government or the superior in question; (b) Th e person did not know that the order was unlawful; and (c) Th e order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.’

8 Art 7(2) ICTY Statute; art 6(2) ICTR Statute; art 27 ICC Statute. 9 Art 29 ICC Statute. 10 See, for example, UNSC Res 827 (25 May 1993) UN Doc S/RES/827, and UNSC Res 955

(8 November 1994) UN Doc S/RES/955 which impose duties of cooperation on all UN Member States towards the ICTY and ICTR; UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593 with respect to the Government of Sudan and other parties to the confl ict towards the ICC; UNSC Res 1757 (30 May 2007) UN Doc S/RES/1757 bringing into force the application of the Statute of the Special Tribunal for Lebanon (STL Statute), including art 15 on the cooperation duties of Lebanon; and UNSC 1970 (26 February 2011) UN Doc S/RES/1970 with respect to the Libyan authorities towards the ICC.

11 Arts 12(2)–(3) ICC Statute and Part 9 (on cooperation), and Rule 44 ICC Rules of Procedure and Evidence.

12 See art 17 ICC Statute. See, inter alia , JT Holmes, ‘Th e Principle of Complementarity’ in RS Lee (ed), Th e International Criminal Court: Th e Making of the Rome Statute (Kluwer Law International, Th e Hague 1999) 41, 45; M Benzing, ‘Th e Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight Against Impunity’ (2003) 7 Max Planck Ybk UN Law 591, 599; JK Kleff ner and G Kor (eds), Complementary Views on Complementarity (TMC Asser, Th e Hague 2006).



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crime, such as murder or serious bodily harm, will require additional proof beyond reasonable doubt as to existence of several, possibly complex evidentiary parameters.

Th e discussion below sets out to provide an overview of how international or ‘internationalized’ 13 criminal courts may exercise jurisdiction over terrorist acts and governmental responses to them by examining where the current rule of law framework at the international level explicitly provides for prosecution of terrorism related off ences, and where this is captured indirectly.

3. International Criminal Jurisdiction

3.1. Direct Incorporation of Terrorism Off ences

Th e prohibition against terrorism or the spreading of terror is stipulated expressly in the statute of several international criminal courts and tribunals. Article 4(d) Statute of the International Criminal Tribunal for Rwanda (ICTR) 14 incorporates ‘acts of terror’ as a stand alone war crimes off ence in the context of non-international armed confl ict, refl ecting Article 4(d) Additional Protocol II to the Geneva Conventions 1949 (AP II). 15 Th e provision is replicated in Article 3(d) Statute of the Special Court for Sierra Leone (SCSL). 16 Moreover, Article 8 Law on Establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) provides for jurisdiction over one discrete terrorist related off ence, namely attacks against internationally protected persons pursuant to the Vienna Convention on Diplomatic Relations 1961. 17

13 Th e term ‘internationalized’ or hybrid criminal jurisdictions may be used to describe courts that combine national and international characteristics, including in the composition of judges and prosecutors and in relation to the applicable law. Examples include the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Panels for Serious Crimes in East Timor, the so-called ‘Regulation 64 Panels’ in Kosovo established by UNMIK under Regulation 2000/64, the war crimes chamber within State Court of Bosnia and Herzegovina, and the Special Tribunal for Lebanon (STL). See generally C Romano, A Nollkaemper, and J Kleff ner (eds), Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia (OUP, Oxford 2004). For the purpose of this chapter, the term ‘international’ is used to apply to both fully international and internationalized criminal courts.

14 ICTR Statute (n 6). 15 Adopted 8 June 1977, entered into force 7 December 1978. 16 Created by UNSC Res 1315 (14 August 2000) UN Doc S/RES/1315. 17 Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments

as promulgated on 27 October 2004 (NS/RKM/1004/006). Th is off ence was included in respect of an incident in April 1975, when the Khmer Rouge regime detained personnel in the French embassy and then removed and murdered Cambodian husbands of foreign diplomatic personnel: ‘Report of the Group of Experts for Cambodia established pursuant to General Assembly resolution 52/135’ (18 February 1999) para 79 < http://www.unakrt-online.org/Docs/Other/1999-02-18 % 20-Experts % 20Report.pdf > accessed 28 April 2011.



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Th e only international or internationalized court that includes the crime of terrorism as a separate off ence per se is the Special Tribunal for Lebanon (STL), which was established by the Security Council under Chapter VII UN Charter following consultations between the UN Secretary-General and the Lebanese Government. 18 Although the STL is an internationalized domestic criminal court, it is of a diff erent category to other hybrid courts as far as its subject matter is concerned since it applies primarily to ordinary crimes under national law. 19 Nonetheless, the STL became also the fi rst international court that has provided a defi nition of terrorism, on the basis of customary international law. 20

In particular, the Appeals Chamber of the STL held that a number of treaties, UN resolutions, and the legislative and judicial practice of states evince formation of a general opinio juris in the international community, accompanied by a practice consistent with such opinio , to evince that a customary rule of international law has evolved on terrorism in time of peace. 21 Th e STL held that for this customary rule

18 UNSC Res 1757 (30 May 2007) UN Doc S/RES/1757. 19 UNSC, ‘Report of the Secretary-General on the establishment of a special tribunal for Lebanon’

(15 November 2006) UN Doc S/2006/893 para 7 (STL Report). Art 2 STL Statute provides, inter alia , for the application of ‘the provisions of the Lebanese Criminal Code relating to the prosecution and punishment of acts of terrorism, crimes and off ences against life and personal integrity, illicit associations and failure to report crimes and off ences, including the rules regarding the material elements of a crime, criminal participation and conspiracy’. Consideration had been given at the time of the Tribunal’s establishment to the indirect proscription of the alleged terrorist conduct (the assas-sination of Rafi q Hariri and other connected attacks) under the rubric of crimes against humanity, but this was ultimately dropped by the Security Council. See on this STL Report (n 19) paras 24–5. As the Tribunal has explained: ‘In consonance with international case law, generally speaking, the Tribunal will apply Lebanese law as interpreted and applied by Lebanese Courts, unless such inter-pretation or application appears to be unreasonable, might result in manifest injustice, or appears not to be consonant with international principles and rules binding upon Lebanon. Also, when Lebanese courts take diff erent or confl icting views of the relevant legislation, the Tribunal may place on that legislation the interpretation which it deems to be more appropriate and attuned to international legal standards’ — Appeals Chamber, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging STL-11–01/I/AC/R176bis (16/02/2011) Headnote 2; Decision para 39.

20 Interlocutory Decision on the Applicable Law (n 19). 21 In tracing the requisite state practice and opinio juris of a customary rule of international law, the

STL observed that the criminalization of terrorism occurred fi rst at the national level, but subsequently resulted in international criminalization and the formation of rules of customary international law authorizing or even imposing punishment for such off ences. As the Appeals Chamber noted: ‘crimi-nalisation of terrorism has begun at the domestic level, with many countries of the world legislating against terrorist acts and bringing to court those allegedly responsible for such acts. Th is trend was inter-nationally strengthened by the passing of robust resolutions by the UN General Assembly and Security Council condemning terrorism, and the conclusion of a host of international treaties banning various manifestations of terrorism and enjoining the contracting parties to cooperate for the repression of those manifestations. As a result, those States which had not already criminalised terrorism at the domestic level have increasingly incorporated the emerging criminal norm into domestic penal legislation and case-law, often acting out of a sense of international obligation. Th e characterisation of terrorism as a threat to international peace and security through UN Security Council “legislation” strengthens this conclusion. It is notable that the Security Council has generally refrained from characterising other national and transnational criminal off ences (such as money laundering, drug traffi cking, international exploitation of prostitution) as “threats to peace and security”. Th e diff erence in treatment of these



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the subjective element of the crime requires: (1) the intent or dolus of the under-lying crime; and (2) the special intent (dolus specialis) to spread fear or coerce an authority. Th e objective element requires: (1) the commission of an act that is crimi-nalized by other norms (murder, causing grievous bodily harm, hostage-taking, etc); and (2) that the terrorist act be transnational. 22

3.2. Indirect Inclusion under the Guise of Other International Crimes

Th e Statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the ICC do not contain any provision expressly regulating acts of terror in armed confl ict. However, as described below, the ICTY has held that the ‘off ence of killing and wounding civilians in time of armed confl ict with the intention to infl ict terror on the civilian population’ nonetheless falls within the scope of Article 3 ICTY Statute, which provides jurisdiction over violations of the laws and customs of war. 23

Although terrorism is not listed in the ICC Statute, the 1994 draft text presented to the UN General Assembly by the International Law Commission (ILC) initially included terrorist off ences as part of a category of so-called ‘treaty crimes’ which could trigger the jurisdiction of the Court. 24 Terrorist acts criminalized under the draft ICC Statute by reference to multilateral conventions in force at the time included: 25

• the unlawful seizure of aircraft as defi ned by Article 1 Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970;

• the crimes defi ned by Article 1 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971;

various classes of criminal off ences, and the perceived seriousness of terrorism, bears out that terrorism is an international crime classifi ed as such by international law, including customary international law, and also involves the criminal liability of individuals.’ — Interlocutory Decision on the Applicable Law (n 19) para 104. Th e Appeals Chamber further held that the very few states still insisting on an exception to the defi nition of terrorism can, at most, be considered persistent objectors (para 110). See contra K Amber, ‘Judicial Creativity at the Special Tribunal for Lebanon: Is Th ere a Crime of Terrorism under International Law?’ (2011) 24 Laiden JIL 655.

22 Interlocutory Decision on the Applicable Law (n 19) para 111. In relation to the latter, the Appeals Chamber emphasized that ‘the requirement of a cross-border element goes not to the defi nition of terrorism but to its character as international rather than domestic ’ (para 89). Moreover, noting the ‘continuing and prospective evolution of this customary norm’, the Chamber observed two additional elements were incipient (in statu nascendi) and may gradually solidify to expand the customary international law defi nition of terrorism: (1) to require that the terrorist’s intent derive from or be grounded in an underlying political or ideological purpose (to diff erentiate terrorism from criminal acts similarly designed to spread fear among the civilian population but pursuing merely private purposes); and (2) to cover terrorism also in time of armed confl ict — Interlocutory Decision on the Applicable Law (n 19) paras 106–9.

23 See Section 4.1.1 below. 24 ‘Report of the International Law Commission on the work of its forty-sixth session, date

2 May–22 July 1994’ Offi cial Records of the General Assembly, Forty-ninth session, Supplement No 10 A/49/10 (ILC Commentary on the 1994 draft ICC Statute) 41.

25 For further discussion of these conventions see Saul (n 4).



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• the crimes defi ned by Article 2 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 14 December 1973;

• hostage-taking and related crimes as defi ned by Article 1 International Convention against the Taking of Hostages of 17 December 1979;

• the crimes defi ned by Article 3 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, and by Article 2 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, both of 10 March 1988;

• crimes involving illicit traffi c in narcotic drugs and psychotropic substances as envisaged by Article 3(1) UN Convention against Illicit Traffi c in Narcotic Drugs and Psychotropic Substances of 20 December 1988 which, having regard to Article 2 of the Convention, are crimes with an international dimension.

Th e ILC concluded that since many of these treaties covered conduct which, though serious, fell within the competence of national courts and did not require elevation to the level of an international jurisdiction, a further threshold requirement was needed before the Court’s jurisdiction would become eff ective. Accordingly, Article 20(e) 1994 ICC draft Statute required that the crime in question, having regard to the conduct alleged, should constitute ‘an exceptionally serious crime of international concern’. 26 Th e ILC noted that certain terrorist acts may also fall under the draft provisions on war crimes, crimes against humanity, and genocide. 27

Ultimately, when the draft Statute was submitted to the General Assembly, the separate citatory of treaty crimes was omitted due to a desire to focus the negotiations on the core crimes ultimately adopted. Nonetheless, the issue was deferred for future consideration by Section E of the Final Act of the Diplomatic Conference adopting the ICC Statute, which recommended ‘that a Review Conference pursuant to Article 123 of the Statute of the International Criminal Court consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable defi nition and their inclusion in the list of crimes within the jurisdiction of the Court’. 28 Th e 2010 Review Conference did not adopt a defi nition of terrorism, nor a procedure for its future inclusion. 29

26 ILC Commentary on the 1994 draft ICC Statute (n 24) 41. 27 ILC Commentary on the 1994 draft ICC Statute (n 24) 41. 28 UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International

Criminal Court, ‘Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court’ (17 July 1998) UN Doc CONF. 183/10.

29 In the 8th Meeting of the Assembly of States Parties that took place in the Hague in November 2009, the Netherlands had put forward a proposal to amend art 5 ICC Statute to include terrorism. Th e proposal sought for the Review Conference to establish an informal working group on the crime of terrorism to follow a similar process as it had done with aggression. Accordingly, the Netherlands proposed the inclusion of the crime of terrorism in the list of crimes laid down in art 5(1) ICC Statute, while postponing the exercise of jurisdiction over this crime until a defi nition and condi-tions for the exercise of jurisdiction could be agreed upon. See ‘Report of the Bureau on the Review



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Th us, as things stand, terrorist related off ences will fall within the jurisdiction of international criminal courts and tribunals only where the underlying conduct falls within the contextual parameters of an existing international crime as a war crime, crime against humanity, or genocide. 30

4. Practice of International Courts and Tribunals

4.1. War Crimes

War crimes are generally defi ned as violations of international humanitarian law which have been criminalized by either a treaty or customary international law. 31 Th is section will highlight the most relevant case law at the international level for the direct and indirect prosecution of terrorist related conduct as war crimes.

4.1.1. Acts or Th reats of Violence the Primary Purpose of which is to Spread Terror Among the Civilian Population

Th e Galić case before the ICTY was the fi rst case before an international tribunal that considered the terrorist related conduct as a separate off ence. Prior to this, evidence of terrorization of civilians had only been considered by the Tribunals to be an aggravating circumstance for the purpose of sentencing. 32

Although terrorism or the term ‘acts of terror’ is not listed as a crime under the ICTY Statute, the Tribunal examined the off ence by reading the prohibition ‘acts or threats of violence the primary purpose of which is to spread terror among the

Conference — Addendum’ (18–26 November 2009) ICC-ASP/8/43/Add. 1 < http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/ICC-ASP-8-43-Add.1-ENG.pdf > accessed 26 April 2011. Th e proposal, however, did not attract the necessary support to be put to the Review Conference for consideration.

30 A defi nition for the crime of aggression, also listed in art 5, was adopted at the fi rst ICC Review Conference held in Kampala in June 2010, under which it may be possible to prosecute state terrorist actors in the future. See Resolution RC/Res. 6, ‘Th e Crime of Aggression’ (adopted at the 13th plenary meeting 11 June 2010) < http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf > accessed 12 April 2011.

31 For an analysis of war crimes in the Rome Statute see M Cottier, ‘War Crimes’ in O Triff terer (ed), Commentary on the Rome Statute of the International Criminal Court — Observers’ Notes, Article by Article (CH Beck, München 2008) 283.

32 Prosecutor v Zejnil Delalić, Zdravko Mucić aka ‘Pavo’, Hazim Delić and Esad Landzo aka ‘Zenga’ (Judgment) IT-96-2-T (16 November 1998) paras 1086–91; Prosecutor v Tihomir Blaškić (Judgment) IT-95-14-T (3 March 2000) ( Blaškić Trial Judgment); Prosecutor v Radislav Krstić (Judgment) IT-98-33-T (2 August 2001); Prosecutor v Martić (Rule 61 Decision) IT-95-11-R61 (8 March 1996) paras 23–31; Prosecutor v Nikolić (Sentencing Judgment) IT-02-60/1-S (2 December 2003) para 38. In the Blaškić case, for example, an additional conviction for ‘unlawful attack’ on civilians was entered partly on the fi nding that his soldiers ‘terrorised the civilians by intensive shelling, murders and sheer violence’ (para 630; see also paras 505, 511); while in the Krstić case, the Trial Chamber found the existence of a ‘terror campaign comprised of threats, insults, looting and burning of nearby houses, beatings, rapes, and murders’ (para 150); and characterized ‘the crimes of terror’, and the forcible transfer of the women, children, and elderly at Potocari as constituting persecution and inhumane acts (para 607).



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civilian population’ as falling within the scope of the laws and customs of war, pursuant to Article 3 ICTY Statute. 33 Th e Trial Chamber found that the crime was constituted of the elements common to all off ences under Article 3 (namely, the violation constituted a serious infringement of a rule of international humanitarian law, under custom or treaty law, entailing individual criminal responsibility), 34 as well as of the following specifi c elements:

1. Acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population.

2. Th e off ender wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence.

3. Th e above off ence was committed with the primary purpose of spreading terror among the civilian population. 35

Citing the drafting history to Article 51(2) Additional Protocol I to the Geneva Conventions (AP I), 36 the Trial Chamber, by majority (confi rmed on appeal), rejected the notion that the actual infl iction of terror is an element of the crime of terror. 37 Accordingly, it also dismissed the requirement to prove a causal connection between the unlawful acts of violence and the production of terror. 38

With respect to the ‘acts of violence’, the Trial Chamber recalled that this does not include legitimate attacks against combatants, but only unlawful attacks against civilians. 39 As the Appeals Chamber emphasized, the crime in question falls within the general prohibition of attacks on civilians. 40 Pursuant to the defi nition set out

33 Prosecutor v Stanislav Galić (Judgment) IT-98-29-T (5 December 2003) ( Galić Trial Judgment) para 133; Prosecutor v Stanislav Galić (Judgment) IT-98-29-A (30 November 2006) ( Galić Appeal Judgment) para 104. Compare Separate and Partially Dissenting Opinion of Judge Nieto-Navia, Galić Trial Judgment, and Separate and Partially Dissenting Opinion of Judge Schomburg, Galić Appeal Judgment, rejecting the applicability of the off ence to art 3 ICTY Statute.

34 According to the ICTY Appeals Chamber, for criminal conduct to fall within the scope of art 3 ICTY Statute, the following four conditions must be satisfi ed: ‘(i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met; (iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; and (iv) the violation must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule’; Prosecutor v Tadić (Jurisdiction Decision) IT-94-1-T (10 August 1995) para 94, cited in Galić Trial Judgment (n 33) para 11.

35 Galić Trial Judgment (n 33) para 133; Galić Appeal Judgment (n 33) para 100. See also Prosecutor v Brima, Kamara and Kanu ( AFRC case) (Trial Chamber Judgment) Case 16 SCSL (20 June 2007) para 667.

36 Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Confl icts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) (AP I).

37 Galić Trial Judgment (n 33) paras 65, 134; Galić Appeal Judgment (n 33) paras 103–4. 38 Galić Trial Judgment (n 33) para 134 . 39 Galić Trial Judgment (n 33) para 135. 40 Galić Appeal Judgment (n 33) para 102.



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in Articles 50 and 51 AP I, the term ‘civilian’ was defi ned negatively as anyone who is not a member of the armed forces or of an organized military group belonging to a party to the confl ict, or who does not otherwise directly participate in hostilities. 41

Revisiting the material elements of the crime on appeal, the Appeals Chamber held that the crime of acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, need not be limited to direct attacks against civilians or threats thereof, but may also include indiscriminate or disproportionate attacks or threats. 42

With respect to the term ‘primary purpose’, this was held to signify the mens rea of the crime of terror, rendering it a specifi c-intent crime which requires the prosecution to prove not only that the accused accepted the likelihood that terror would result from the illegal acts, but that that was the result which was specifi cally intended. It excluded therefore dolus eventualis or recklessness. 43 While intent to spread terror among the civilian population need not be the only purpose of the acts or threats of violence, it must have been principal among those aims. 44 Such intent can be inferred, nonetheless, from the circumstances of the acts or threats, such as their nature, manner, timing, and duration. 45

To illustrate from the facts in the case at hand, the Tribunal held that the nature of the civilian activities deliberately targeted by forces under General Galić’s command, the manner in which the attacks on civilians were carried out, and the timing and duration of those attacks, consistently showed that the aim of the campaign of sniping and shelling in Sarajevo was to terrorize the civilian population of the city. 46 Moreover, while the attacks on civilians were numerous, they were not consistently so intense as to suggest an attempt to wipe out or even deplete the civilian population through attrition, and as such ‘had no discernible signifi cance in military terms’. Instead, ‘the only reasonable conclusion in light of the evidence in the Trial Record is that the primary purpose of the campaign was to instil in the civilian population a state of extreme fear.’ 47

Criminal responsibility under international criminal law may attach to both the physical perpetrator and the commander who may be held responsible both for his

41 Galić Trial Judgment (n 33) paras 47–51. 42 In doing so, the Appeals Chamber observed that although the defi nition of terror of the civilian

population uses the terms ‘acts or threats of violence’ and not ‘attacks or threats of attacks’, art 49(1) AP I defi nes ‘attacks’ as ‘acts of violence’. See Galić Appeals Judgment (n 33) para 102.

43 Galić Trial Judgment (n 33) para 136; Galić Appeal Judgment (n 33) para 104. 44 Galić Appeal Judgment (n 33) para 104. See also AFRC Trial Judgment (n 35) paras 1445–6. 45 Galić Appeal Judgment (n 33). 46 Galić Trial Judgment (n 33) para 592. 47 Galić Trial Judgment (n 33), recalled by Galić Appeal Judgment (n 33) para 107.



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or her own acts (such as orders) 48 as well as omissions (for example, failure to prevent or punish subordinates). 49 In its judgment, the Trial Chamber found:

General Galić, although put on notice of crimes committed by his subordinates over whom he had total control, and who consistently and over a long period of time (twenty-three months) failed to prevent the commission of crime and punish the perpetrators thereof upon that knowledge, actually furthered a campaign of unlawful acts of violence against civilians through orders relayed down the SRK chain of command and that he intended to conduct that campaign with the primary purpose of spreading terror within the civilian population of Sarajevo. 50

As such, the Chamber by majority, confi rmed on appeal, found that Galić was guilty of having ordered the crimes, pursuant to Article 7(1) rather than Article 7(3) ICTY Statute. 51

On appeal, the defence challenged, inter alia , whether the Trial Chamber had properly determined Galić’s liability for ordering the commission of these acts by relying on acts of omission. Th e Appeals Chamber observed that the defence had confl ated the issue of whether an omission can constitute an act of ordering, with the separate issue of whether an act of ordering can be proven by taking into account omissions. It held that what the lower Chamber had done was to infer from the evidence adduced at trial, which included, inter alia , acts and omissions of the accused, that Galić had ordered his subordinates to commit the crimes. 52 Accordingly, it observed that ordering can be proven, like any other mode of liability, by circumstantial or direct evidence, taking into account evidence of acts or omissions of the accused. 53

4.1.2. Acts of Terror Th e case of the Prosecutor v Brima, Kamara and Kanu ( AFRC case) before the SCSL relied on the same prohibition as the ICTY in the Galić case, this time under the explicit incorporation of ‘acts of terror’ as a stand alone off ence under Article 3(d)

48 Art 7(1) ICTY Statute provides: ‘A person who planned, instigated, ordered, committed or other-wise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.’

49 Art 7(3) ICTY Statute provides: ‘Th e fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.’

50 Galić Trial Judgment (n 33) para 749. 51 In this regard, the majority notes that the prosecution’s case did not depend upon written orders

given by General Galić, but on evidence concerning his knowledge of crimes committed in Sarajevo by forces under his command, the high degree of discipline he enjoyed from his subordinates, and his failure to act upon knowledge of commission of crimes to establish beyond reasonable doubt that the targeting of civilians was ordered by him; Galić Trial Judgment (n 33) para 739. Having found Galić guilty under art 7(1), the majority did not deem it necessary to pronounce on his guilt cumulatively under art 7(3) ICTY Statute (para 750).

52 Galić Appeal Judgment (n 33) para 177. 53 Galić Appeal Judgment (n 33) para 178.



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SCSL Statute (violations of Common Article 3 Geneva Conventions, and of AP II). Th e Trial Chamber observed that the provision is tied to Article 13(2) AP II, which repeats verbatim the prohibition contained in Article 51(2) AP I against ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’. 54

Citing the elements established in the Galić case, the SCSL held that certain acts of violence committed by the Armed Forces Revolutionary Council (AFRC) were of such a nature that the primary purpose could only be reasonably inferred to be spreading terror among the civilian population. 55 Th is included amputations; the burning alive of civilians in a house; the grotesque public display of a mutilated body; the splitting open of the bellies of pregnant women, all of which were com-mitted with the specifi c intent to spread extreme fear amongst the civilian population. 56 Conversely, the SCSL found that the requisite mens rea could not be established to prove that other acts of violence, involving the conscription and use of child soldiers as well as abduction, forced labour, and sexual slavery, were com-mitted with the primary purpose to terrorize protected persons. 57

Extending the material scope of the crime, the Chamber further held that acts of terrorism are not restricted to violence, or threats of violence, targeted at protected persons, but may include threats of attacks on, or destruction of, people’s property or means of survival. 58 As the Chamber observed, ‘[w]hile the Trial Chamber agrees that it is not the property as such which forms the object of protection from acts of terrorism, the destruction of people’s homes or means of livelihood and, in turn, their means of survival, will operate to instil fear and terror’. 59

54 AFRC Trial Chamber Judgment (n 35) para 661. 55 AFRC Trial Chamber Judgment (n 35) paras 1446 et seq. 56 AFRC Trial Chamber Judgment (n 35) paras 1464, 1475, 1492–5, 1525, 1538–40, 1568–71,

1609–10. Th e Trial Chamber’s fi nding on count 1 (crime of terror) was upheld on appeal, although the Appeals Chamber rejected the Prosecutor’s argument that the Trial Chamber should have held the three enslavement crimes as also constituting acts of terrorism by holding against the necessity of entering cumulative convictions for the same underlying conduct. See AFRC Appeals Judgment, transcript at paras 22–3 < http://www.sc-sl.org > accessed 28 April 2011.

57 In this regard, the Trial Chamber held that the primary purpose of the conscription and use of child soldiers, as well as abduction, forced labour, and sexual slavery by the AFRC during the confl ict in Sierra Leone, was primarily utilitarian or military in nature or otherwise to take advantage of the spoils of war: ‘[t]he Trial Chamber does not discount that the abduction and detention of persons from their homes and their subjection to forced labour under conditions of violence spread terror among the civilian population. However, the Trial Chamber fi nds this “side-eff ect” of terror is not suffi cient to establish the specifi c intent element of the crime with regards to these acts.’ See AFRC Trial Chamber Judgment (n 35) paras 1447–59.

58 Galić Trial Judgment (n 33) para 1436. 59 Galić Trial Judgment (n 33) para 670.



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4.1.3. Th reshold Applicability In the case of Prosecutor v Ljube Boškoski and Johan Tarčulovski , the ICTY addressed the issue of the applicability of international humanitarian law to governmental counter-terrorism responses. 60 Th e case dealt with the issue of whether the conduct of national law enforcement agencies against a terrorist organization rose to the level of a non-international armed confl ict, thereby triggering recourse to war crimes jurisdiction.

Boškoski and Tarčulovski, respectively the then Minister of Interior and the police commander of the units involved in the incidents concerned, were charged with three counts of violations of the laws and customs of war for murder, wanton destruction of cities, towns, or villages not justifi ed by military necessity, and cruel treatment. Each of these were allegedly committed by the regular and reserve police, including special police units, of the former Yugoslav Republic of Macedonia (FYROM) against ethnic Albanians from Ljuboten village in the northern part of the country. Th e defendants challenged the Tribunal’s jurisdiction by arguing that the situation in FYROM did not reach the required level of intensity to trigger the application of international humanitarian law, in the same way that neither the ‘troubles’ in Northern Ireland nor the confrontation between the Turkish army and the Kurdistan’s Workers Party (PKK) were recognized as armed confl icts. 61 Boskoski and Tarčulovski argued that since international law distinguishes between armed confl ict and acts of ‘banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law’, acts of a terrorist nature may not be taken into account in the determination of the existence of an armed confl ict. 62

In upholding its jurisdiction, the Tribunal cited domestic practice from a number of decisions by national courts which have subsumed terrorist acts under the rubric of the law of armed confl ict. Relevant factors in these cases included considerations of intensity, the protracted nature of the violence, the involvement of the armed

60 Prosecutor v Ljube Boškoski and Johan Tarčulovski (Judgment) IT-04-82-T (10 July 2008) (Boškoski and Tarčulovski Trial Judgment). See also the Trial Chamber Judgment in the Đordević case holding the accused, then Assistant Minister of the Ministry of Internal Aff airs of Serbia and Chief of the Public Security Department, responsible under art 7(1) ICTY Statute for his participation in a joint criminal enterprise which had the purpose of, inter alia , changing the demographic composi-tion of Kosovo. Th e Chamber held that the common plan was achieved by criminal means consisting essentially of a widespread systematic campaign of terror and violence that included extensive murders, deportations, forcible transfers, and persecutions of the Kosovo Albanian population by Serbian forces, including the army and the police, conducted under the guise of anti-terrorist operations against the Kosovo Liberation Army — Prosecutor v Vlastimir Đordević (Judgment) IT-05-87/1-T (23 February 2011) ( Đordević Trial Judgment) paras 2129–30, 2210.

61 Boškoski and Tarčulovski Trial Judgment (n 60) para 179. 62 Boškoski and Tarčulovski Trial Judgment (n 60) paras 184–5.



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forces, the number of casualties, and the extent of material destruction. 63 For example, the Tribunal referred to Peru, where the National Criminal Chamber had held that activities of the armed group Peruvian Communist Party (Shining Path) — involving the murder of civilians, acts of sabotage against embassies and public and private enterprises’ facilities, and armed ambushes against state forces — and governmental responses to these, which had collectively resulted in more than 69,000 deaths and severe damage to public and private infrastructure — constituted an armed confl ict and triggered the application of Common Article 3. 64 Th e ICTY also recalled the 2006 decision of the United States (US) Supreme Court in Hamdan that the US was in a state of armed confl ict with the non-state group al Qaeda, which the US Government had characterized as a terrorist organization, resulting in the application of Common Article 3. 65 Th e Israeli Supreme Court has also qualifi ed the situation between Israel and ‘terrorist organizations’ as an armed confl ict in the light of the number of casualties, the protracted nature of the violence, and the engagement of Israeli special military operations. 66 Th e Tribunal observed that the UN Commission of Inquiry on Lebanon had also held that the fact that Israel considered Hezbollah to be a terrorist organization did not aff ect its qualifi cation of the 2006 hostilities as an international armed confl ict. 67

Th e Tribunal further noted that the fact that terrorist acts may be constitutive of war crimes is consistent with the logic of international humanitarian law, which expressly prohibits ‘acts of terrorism’ and ‘acts or threats of violence the pri-mary purpose of which is to spread terror among the civilian population’ in both

63 Boškoski and Tarčulovski Trial Judgment (n 60) paras 181–3. See also STL Appeals Chamber observing, ‘an overwhelming majority of States currently takes the view that acts of terrorism may be repressed even in time of armed confl icts to the extent that such acts target civilians who do not take an active part in armed hostilities; these acts, in addition, could also be classifi ed as war crimes (whereas the same acts, if they are directed against combatants or civilians participating in hostilities, may not be defi ned as either terrorist acts or war crimes, unless the requisite conditions for war crimes were met)’ — Interlocutory Decision on the Applicable Law (n 19) para 108.

64 Abimael Guzmán Reinoso and others (2006) Expediente acumulado No 560-03 (National Criminal Chamber of Peru) paras 467–70; Revista Fallos del Mes (1998) No 478 decision no 3 1760-9 (Supreme Court of Chile), cited in Boškoski and Tarčulovski Trial Judgment (n 60) para 181.

65 Hamdan v Rumsfeld 126 S Ct 2749 (2006) 66–8. Common art 3 was held by the Supreme Court to apply when there is resort to armed force between a state and a non-signatory to the 1949 Geneva Conventions which is party to an armed confl ict, cited in Boškoski and Tarčulovski Trial Judgment (n 60) para 182.

66 Ajuri v IDF Commander (2002) HCJ 7015/02; HCJ 7019/02 para 1 (Israeli Supreme Court sitting as the High Court of Justice); Th e Public Committee against Torture in Israel et al v Th e Government of Israel et al (2006) HCJ 769/02 para 16; El Saka v Th e State of Israel HCJ 9255/00 (unpublished); Kn’aan v Th e Commander of IDF Forces in the Judea and Samaria Area HCJ 2461/01 (unpublished); Barake v Th e Minister of Defence 56(2) PD, HCJ 9293/01; Almandi v Th e Minister of Defence 56(3) PD 30, HCJ 3451/02; Ibrahim v Th e Commander of IDF Forces in the West Bank HCJ 8172/02 (unpublished); Mara’abe v Th e Prime Minister of Israel HJC 7957/04 (unpublished); cited in Boškoski and Tarčulovski Trial Judgment (n 60) paras 182, 189.

67 UN Commission of Inquiry, ‘Report of the Commission of Inquiry on Lebanon, pursuant to Human Rights Council Resolution S-2/1’ (23 November 2006) UN Doc A/HRC/3/2 paras 8–9, and 57; cited in Boškoski and Tarčulovski Trial Judgment (n 60) para 189.



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international and non-international armed confl icts: stating ‘[i]t would be nonsen-sical that international humanitarian law would prohibit such acts if these were not considered to fall within the rubric of armed confl ict’. 68 Accordingly, it recalled that in determining the applicability of international humanitarian law to a situation of violence within a state, the test is a factual determination as to: (1) the intensity of the confl ict; and (2) the organization of the parties to the confl ict. Th is distin-guishes a situation of armed confl ict ‘from banditry, unorganized and short-lived insurrections, or terrorist activities’ which otherwise fall outside the scope of international humanitarian law. 69 What matters therefore is whether the acts are perpetrated in isolation or as part of a protracted campaign that entails the engagement of both parties in hostilities. As the Tribunal observed, ‘[i]t is immaterial whether the acts of violence perpetrated may or may not be characterised as terrorist in nature’. 70

4.1.4. Direct Participation in Hostilities A further issue illustrative of the application of an international humanitarian law framework to terrorism and counter-terrorist responses is the matter of civilian versus combatant status, in the light of the principle of distinction and military targeting doctrine. Th e fundamental norm, as set out in Article 51(3) AP I, provides that civilians enjoy general protection against dangers arising from military operations unless and for such time as they take a direct part in hostilities. 71 As Beth van Schaack notes, the issue is particularly ripe for application to counter-terrorist responses since the US has relied on this concept to identify ‘enemy combatants’ who may be held in indefi nite detention as part of the ‘war on terror’. 72

In the Kordić and Čerkez case, the ICTY Appeals Chamber defi ned the notion of direct participation in hostilities set out in Article 51(3) AP I as encompassing acts of war

68 Boškoski and Tarčulovski Trial Judgment (n 60) para 187. 69 Boškoski and Tarčulovski Trial Judgment (n 60) para 175, recalling the test set out by the ICTY

Appeals Chamber in the Tadić Jurisdiction Decision (n 36) para 70. See also art 8(2)(d) and (f ) ICC Statute.

70 Boškoski and Tarčulovski Trial Judgment (n 60) para 185 . Th e Trial Chamber’s fi nding on the threshold applicability of IHL was upheld on appeal; Prosecutor v Ljube Boškoski and Johan Tarčulovski (Appeal Judgment) IT-04-82-A (19 May 2010). In the Đordević case the Trial Chamber also rejected defence arguments that the coordinated actions by the Yugoslav Army and the Serbian Ministry of Internal Aff airs in 1998 and 1999 were directed only at ‘terrorist forces’ and were therefore legitimate under customary international law; although the fi nding of the Chamber here focused on the repeated use of disproportionate force by the Yugoslav Army and the Serbian Ministry of Internal Aff airs rather than the legal qualifi cation of the conduct; Đordević Trial Judgment (n 60) paras 2052–69.

71 Th e concepts of ‘active participation’ under common art 3 and ‘direct participation’ under AP I were held to be synonymous for the purpose of distinguishing between combatants and civilians in Prosecutor v Strugar (Judgment) IT-01-42-A (17 July 2008) para 173. See also Prosecutor v Th omas Lubanga Dyilo (Decision on the confi rmation of charges) ICC-01/04-01/06-803-tEN (29 January 2007) paras 259–63.

72 B Van Schaack, ‘Atrocity Crimes Litigation: 2008 Year-In-Review’ (2009) 2 Northwestern JIHR 180, 188 at n 87.



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which by their nature or purpose are likely to cause actual harm to the personnel or equipment of the enemy’s armed forces. 73 In the Strugar case, the ICTY Appeals Chamber elaborated by holding that conduct amounting to direct or active partici-pation in hostilities is not limited to combat activities. Examining national military manuals, soft law, decisions of international bodies, and the commentaries to the Geneva Conventions and the APs, it held that conduct amounting to direct or active participation may include: transmitting military information for the immediate use of a belligerent, transporting weapons in proximity to combat operations, and serving as guards, intelligence agents, lookouts, or observers on behalf of military forces. 74 Th e ICC has similarly held that the notion of active or direct participation in hostilities ‘means not only direct participation in hostilities, combat in other words, but also covers active participation in combat-related activities’. 75

Conversely, the notion of direct or active participation in hostilities is not so broad as to embrace all activities in support of one party’s military operations or war eff ort, since such an approach would in practice render the principle of distinction meaningless. 76 Examples of indirect participation in hostilities which do not deprive persons of civilian status, and which may be applicable to counter-terrorist responses, include: participating in activities in support of the war or military eff ort of one of the parties to the confl ict; selling goods to one of the parties to the confl ict; expressing sympathy for the cause of one of the parties to the confl ict; failing to act to prevent an incursion by one of the parties to the confl ict; accompanying and supplying food to one of the parties to the confl ict; gathering and transmitting military information; transporting arms and munitions; providing supplies; and providing specialist advice regarding the selection of military personnel, their training, or the correct maintenance of the weapons. 77

Th e relevant standard thus requires satisfaction beyond a reasonable doubt whether the individual was ‘participating in acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the enemy’s armed forces’. 78 Since an individual’s participation in hostilities may be intermittent and discontinuous, such an inquiry must be undertaken on a case by case basis, having

73 Prosecutor v Kordić and Čerkez (Appeal Judgment) IT-95-14/2-A (17 December 2004) para 51. 74 Prosecutor v Strugar (n 71) para 177. 75 Prosecutor v Lubanga (n 71) para 261; Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui

(Decision on the confi rmation of charges) ICC-01/04-01/07-717 (30 September 2008) para 276, n 375; Prosecutor v Bahar Idriss Abu Garda (Decision on the Confi rmation of Charges) ICC-02/05-02/09-243-Red (8 February 2010) para 83; Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus (Decision on the Confi rmation of Charges) ICC-02/05-03/09-121-Corr-Red (08 March 2011) para 66.

76 Prosecutor v Strugar (n 71) para 176. 77 Prosecutor v Strugar (n 71) paras 176–7; Prosecutor v Lubanga (n 71) para 262. 78 Prosecutor v Strugar (n 71) para 178; Abu Garda (n 75) para 83.



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regard to the individual circumstances of the victim at the time of the alleged off ence and the nexus between the victim’s activities and the alleged intended harm. 79

4.2. Crimes against Humanity

Terrorism is not stipulated as a separate off ence under crimes against humanity in the statutes of international courts and tribunals. 80 Nonetheless, terrorist acts which are committed as part of a widespread or systematic attack against a civilian population may be prosecuted as crimes against humanity. Relevant acts proscribed as crimes against humanity include: murder; extermination; imprisonment or other severe and unlawful deprivation of physical liberty; torture or other inhumane acts causing great suff ering or serious injury to body or to mental or physical health. 81

Th e utility of charging terrorist acts as crimes against humanity stems from its applica-bility to peacetime situations. According to Article 7 ICC Statute, crimes against humanity require neither the existence of an armed confl ict 82 nor the establishment of a special discriminatory intent. 83 Nor is there a requirement that victims are enemy nationals or persons affi liated with the other party to the confl ict — all victims are

79 Prosecutor v Strugar (n 71) para 178; Abu Garda (n 75) para 83. See also ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ (adopted by the Assembly of the International Committee of the Red Cross 26 February 2009) < http://www.icrc.org/eng/resources/documents/article/review/review-872-p991.htm > accessed 12 April 2011.

80 During the negotiations of the ICC Statute, a proposal had been made to include a defi nition of ‘act of terrorism’ within the defi nition of crimes against humanity, but did not achieve suffi cient support. See UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, ‘Proposal Submitted by Algeria, India, Sri Lanka and Turkey’ (29 June 1998) UN Doc A/CONF. 183/C. 1/L. 27, modifi ed by ‘Proposal Submitted by India, Sri Lanka and Turkey’ (6 July 1998) UN Doc A/CONF. 183/C. 1/L. 27/Rev. 1. Th e original proposal provided for the following defi nition: ‘An act of terrorism, in all its forms and manifestations involving the use of indiscriminate violence, is a crime committed against persons or property intended or calculated to provoke a state of terror, fear and insecurity in the minds of the general public or populations resulting in death or serious bodily injury, or injury to mental or physical health and serious damage to property irrespective of any considerations and purposes of a political, ideological, philosophical, racial, ethnic, religious or of such other nature that may be invoked to justify it.’

81 Art 7 ICC Statute. See generally Duff y (n 2) 76–83; and WA Schabas, ‘Is Terrorism a Crime Against Humanity?’ (2002) 8 International Peacekeeping: Th e Yearbook of International Peace Operations 255.

82 Art 7 ICC Statute. See also art 3 ICTR Statute and contra art 5 ICTY Statute. Th e ICTY Appeals Chamber has nonetheless observed that: ‘[i]t is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed confl ict. Indeed . . . customary international law may not require a connection between crimes against humanity and any confl ict at all.’ See Prosecutor v Tadic (Decision on the Defence Motion for Interlocutory Appeal) IT-94-1-AR72 (2 October 1995) para 141.

83 Art 7 ICC Statute. See also art 5 ICTY Statute and contra art 3 ICTR Statute. In relation to the discriminatory intent requirement for all crimes against humanity under art 3 ICTR Statute, the ICTR Appeals Chamber has observed that this was stipulated by the Security Council in order to limit the jurisdiction of the ICTR solely to those cases, but is otherwise not a requirement under customary international law: ‘except in the case of persecution, a discriminatory intent is not required by international humanitarian law as a legal ingredient for all crimes against humanity’. See Prosecutor v Akayesu (Judgment) IT-94-4 (6 June 2001) para 464.



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protected regardless of nationality or affi liation. Th ere is also no need for a specifi c intent to terrorize the civilian population.

Charging terrorism as a crime against humanity, however, requires satisfaction of several evidentiary requirements involving: (1) an attack directed against any civilian population; (2) a state or organizational policy; (3) the widespread or systematic nature of the attack; (4) a nexus between the individual act and the attack; and (5) knowledge of the attack. 84

An attack for the purpose of Article 7 ICC Statute is not restricted to a ‘military attack’. Rather, the term refers to ‘a campaign or operation carried out against the civilian population’. 85 Th e civilian population refers to persons who are civilians, as opposed to members of armed forces and other legitimate combatants. 86 Th ere is not a need for the entire civilian population of the geographical area in question to have been targeted. However, the civilian population must be the primary object of the attack in question and cannot merely be an incidental victim. 87 Moreover, a population may qualify as ‘civilian’ despite the presence of non-civilians among it, as long as it is predominantly civilian. 88

According to Article 7(2)(a) ICC Statute, the attack against any civilian population must also be committed ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’. As the Elements of Crimes provides, this requires that ‘the State or organization actively promote or encourage such an attack against a civilian population’. 89 Moreover:

A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be

84 Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya ICC-01/09-19-Corr (31 March 2010) para 79 ( Kenya Article 15 Decision ).

85 ‘ICC Elements of Crimes’ ICC-ASP/1/3 (adopted 9 September 2002, entered into force 9 September 2002), Introduction to art 7 (ICC Elements of Crimes).

86 Geneva Conventions 1949 (adopted 12 August 1949, entered into force 21 October 1950) (GC I–IV), common art 3, and arts 43 and 50 AP I; Kenya Article 15 Decision (n 84) para 82; Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo ICC-01/05-01/08-424 (15 June 2009) para 78 ( Bemba Confi rmation Decision ); Prosecutor v Kunarac et al (Judgment) IT-96-23-T and IT-96-23/1-T (22 February 2001) para 425 ( Kunarac Trial Judgment).

87 Kenya Article 15 Decision (n 84) para 82, citing Bemba Confi rmation Decision (n 86) para 77; Kunarac et al (Appeal Judgment) IT-96-23 and IT-96-23/1-A (12 June 2002) ( Kunarac Appeal Judgment) paras 91–2; Prosecutor v Stakic (Judgment) IT-97-24-T (31 July 2003) para 624; Prosecutor v Vasiljevic (Judgment) IT-98-32-T (29 November 2002) para 33.

88 Prosecutor v Kordic et al (Judgment) IT-95-14/2-T (26 February 2001) para 643, confi rmed by Kunarac Trial Judgment (n 86) para 425; and Prosecutor v Krnojelac (Judgment) IT-97-25-T (15 March 2002) para 56. See also Prosecutor v Bagilishema (Judgment) IT-25-1-A (7 June 2001) paras 547–9; and Prosecutor v Mladen Naletilic aka ‘Tuta’ and Vinko Martinovic aka Stela (Judgment) IT-98-34-T (31 March 2003) para 235; and Prosecutor v Limaj (Judgment) IT-03-66-T (30 November 2005) para 186.

89 ICC Elements of Crimes (n 85) Introduction to art 7.



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implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. Th e existence of such a policy cannot be inferred solely from the absence of governmental or organizational action. 90

As the Court further elaborated, the attack must be:

. . . . . . thoroughly organised and follow a regular pattern. It must also be conducted in furtherance of a common policy involving public or private resources. Such a policy may be made either by groups of persons who govern a specifi c territory or by any organisation with the capability to commit a widespread or systematic attack against a civilian population. Th e policy need not be explicitly defi ned by the organisational group. Indeed, an attack which is planned, directed or organized — as opposed to spontaneous or isolated acts of violence — will satisfy this criterion. 91

Th e policy must be ‘state or organizational’. A state policy need not necessarily have been conceived at the highest level of the state machinery. A policy adopted by regional or even local organs of the state could satisfy the requirement of a state policy. 92 As regards the term ‘organizational’, authorities have diff ered whether this must relate to a state-like organization or whether other, non-state actors may qualify. 93 In its decision authorizing the Prosecutor to open investigations into the situation in Kenya, concerning the Prosecutor’s application to investigate the post-election violence of 2007–2008, the ICC Pre-Trial Chamber by majority held that the formal nature of a group and the level of its organization should not be the defi ning criterion, observing that had the drafters of the Statute intended to exclude non-state actors they would not have included the term ‘organization’ in Article 7(2)(a) ICC Statute. 94 Accordingly, it held that organizations not linked to a state may, for the purposes of the Statute, elaborate and carry out a policy to commit an attack against a civilian population. 95

To determine on a case by case basis whether a given group qualifi es as an organization for the purpose of an alleged crime against humanity, the Chamber held that the following considerations, inter alia , may be taken into account: (1) whether the

90 ICC Elements of Crimes (n 85) Introduction to art 7 n 6. 91 Katanga and Ngudjolo (n 75) para 396. For factors relevant to identifying the term ‘policy’ see

Kenya Article 15 Decision (n 84) para 87 citing, with approval, the ICTY, Blaškić Trial Judgment (n 32) para 204. See contra later ICTY jurisprudence which abandoned the policy requirement in Kunarac Appeal Judgment (n 87) para 98; Vasiljevic Trial Judgment (n 87) para 36; Naletilic and Martinovic (n 88) para 234; Prosecutor v Semanza (Judgment) IT-97-20-T (15 May 2003) para 329.

92 Kenya Article 15 Decision (n 84) para 89, citing Blaškić Trial Judgment (n 32) para 205. 93 In favour of the state-like organizational approach see, for example, Dissenting Opinion of

Judge Kaul, Kenya Article 15 Decision (n 84); W Schabas, Th e Rome Statute of the International Criminal Court: A Commentary (OUP, Oxford 2010) 152; MC Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev edn Kluwer Law International, Th e Hague 1999) 244–5; C Kress, ‘On the Outer Limits of Crimes against Humanity: Th e Concept of Organization within the Policy Requirement: Some Refl ections on the March 2010 ICC Kenya Decision’ (2010) 23 Leiden JIL 855.

94 Kenya Article 15 Decision (n 84) paras 90–2. 95 Kenya Article 15 Decision (n 84) para 93.



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group is under a responsible command, or has an established hierarchy; (2) whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population; (3) whether the group exercises control over part of the territory of a state; (4) whether the group has criminal activities against the civilian population as a primary purpose; (5) whether the group articulates, explicitly or implicitly, an intention to attack a civilian population; and (6) whether the group is part of a larger group, which fulfi ls some or all of the abovementioned criteria. 96

Th e chapeau of Article 7(1) ICC Statute also establishes a disjunctive threshold test that the acts are committed as part of a ‘widespread’ or ‘systematic’ attack directed towards a civilian population. Jurisprudence indicates that the thresholds ‘wide-spread or systematic’ serve the primary purpose of discarding an isolated or random act. 97 Nonetheless, a single act could constitute a crime against humanity, ‘if it occurs within the requisite context of a widespread or systematic attack’. 98 Only the attack, and not the alleged individual acts, are required to be ‘widespread’ or ‘systematic’. 99

Th e term ‘widespread’ refers to the scale of the crime: most commonly referred to as refl ecting the large scale nature of an attack and directed against a multiplicity of victims. 100 Th e term does not necessarily imply geographic spread — a single egregious act of suffi cient scale or magnitude may suffi ce. It may be denoted by the ‘cumulative eff ect of a series of inhumane acts or the singular eff ect of an inhumane act of extraordinary magnitude’. 101

96 Kenya Article 15 Decision (n 84) para 93. As the Chamber clarifi ed, these considerations do not constitute a rigid legal defi nition and do not need to be exhaustively fulfi lled.

97 Kenya Article 15 Decision (n 84) para 94, citing: Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo ICC-01/05-01/08-14-tENG (10 June 2008) para 33; Decision on the Prosecution Application under Article 58(7) of the Statute ICC-02/05-01/07-l-Corr (27 April 2007) para 62 ( Harun and Kushayb Article 58 Decision ); Prosecutor v Tadic (Judgment) IT-94-1-T (7 May 1997) para 648; Prosecutor v Rutaganda (Judgment) ICTR-96-3-T (6 December 1999) paras 67–9; Prosecutor v Kayishema and Ruzindana (Judgment) ICTR-95-1-T (21 May 1999) paras 122–3.

98 Bemba Confi rmation Decision (n 86) para 151; Tadic Judgment (n 97) para 649; Prosecutor v Bagihshema (Judgment) ICTR-95-1A-T (7 June 2001) para 82; Prosecutor v Kupreskic et al (Judgment) IT-95-16-T (14 January 2000) para 550.

99 Kenya Article 15 Decision (n 84) para 94, citing Bemba Confi rmation Decision (n 86) para 151; Prosecutor v Kordic and Cerkez (Appeal Judgment) IT-95-14/2-A (17 December 2004) ( Kordic and Cerkez Appeal Judgment) para 94; Prosecutor v Deronjic (Judgment on Sentencing Appeal) IT-02-61-A (20 July 2005) para 109; Prosecutor v Blaškić (Judgment) IT-95-14-A (29 July 2004) para 101 ( Blaškić Appeal Judgment); Kunarac Appeal Judgment (n 87) para 96.

100 Kenya Article 15 Decision (n 84) para 95, citing Bemba Confi rmation Decision (n 86) para 83; Katanga and Ngudjolo Confi rmation Decision (n 75) para 395; Blaškić Trial Judgment (n 32) para 206; Kordic and Cerkez Appeals Judgment (n 99) para 94; Akayesu (n 83) para 580; Prosecutor v Musema (Judgment) ICTR-96-13-A (27 January 2000) para 204.

101 Prosecutor v Blagojevic and Jokic (Judgment) IT-02-60-T (17 January 2005) para 545. See also Kenya Article 15 Decision (n 84) para 95; Bemba Confi rmation Decision (n 86) para 83; Blaškić



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Th e term ‘systematic’, by contrast, refers to the ‘organised nature of the acts of violence and the improbability of their random occurrence’. 102 An attack’s systematic nature can ‘often be expressed through patterns of crimes, in the sense of non-accidental repetition of similar criminal conduct on a regular basis’. 103

As to the relationship between the disjunctive widespread or systematic test and the conjunctive requirement set out in Article 7(2)(a), the drafting history suggests that this was designed to prevent an unqualifi ed and overly expansive reading, and so to distinguish such attacks from ordinary crimes, for example a crime wave or anarchy following a natural disaster. 104 Th e reference to multiple acts was under-stood as an element of scale and was considerably lower than the requirement of ‘widespread’; while the policy element was drafted as a fl exible test to indicate the relation between various acts and was considerably lower than the term ‘systematic’. As Robinson observes, ‘[t]he result is a high-threshold but disjunctive test (wide-spread or systematic) coupled with a low-threshold but conjunctive test (multiple and policy)’. 105

Trial Judgment (n 32) para 206; Kordic and Cerkez Appeal Judgment (n 99) para 94; Blaškić Appeal Judgment (n 99) para 101.

102 Kenya Article 15 Decision (n 84) para 96, citing Katanga and Ngudjolo Confi rmation Decision (n 75) para 394; Harun and Kushayb Article 58 Decision (n 97) para 62; Tadic Trial Judgment (n 97) para 648; Prosecutor v Kordic and Cerkez Appeal Judgment (n 99) para 94; Blaškić Appeal Judgment (n 99) para 101.

103 Katanga and Ngudjolo Confi rmation Decision (n 75) para 397; Kordic and Cerkez Appeal Judgment (n 99) para 94; Blagojevic and Jokic (n 101) para 545. As the ICC Pre-Trial Chamber sum-marized, ‘the “systematic” element has been defi ned by the ICTR as (i) being thoroughly organized, (ii) following a regular pattern, (iii) on the basis of a common policy, and (iv) involving substantial public or private resources, whilst the ICTY has determined that the element requires (i) a political objective or plan, (ii) large-scale or continuous commission of crimes which are linked, (iii) use of signifi cant public or private resources, and (iv) the implication of high-level political and/or mili-tary authorities’; Kenya Article 15 Decision (n 84) para 96 citing Akayesu (n 83) para 580; Blaškić Trial Judgment (n 32) para 203.

104 Art 7(2)(a) ICC Statute specifi es that an attack directed against any civilian population ‘means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack ’ (emphasis added). As von Hebel and Robinson note, ‘delegations observed, for example, that a provision requiring only a “widespread” commission of crimes would encompass a “crime wave”, even if there was no connection between these crimes’. See H von Hebel and D Robinson, ‘Crimes within the Jurisdiction of the Court’ in RS Lee (ed), Th e International Criminal Court: Th e Making of the Rome Statute (Kluwer Law International, Th e Hague 1999) 94.

105 Robinson further explains: ‘An attack need not be necessarily “widespread” (understood as requiring large-scale activity involving a great number of victims), but it must at least have some scale, aff ecting multiple victims. An attack need not necessarily be “systematic” (understood as requiring methodical organization or orchestration), but it must at least be pursuant to or in furtherance of some sort of plan or policy of a State [sic] organization’ — D Robinson, ‘Th e Elements of Crimes Against Humanity’ in RS Lee, (ed) Th e International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers, Ardsley, NY 2001) 63. See also R Dixon, ‘Article 7’ in O Triff terer (ed), Commentary on the Rome Statute of the International Criminal Court (Nomos, Baden Baden 1999) 158–9.



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To establish individual criminal responsibility, a nexus must be established between the enumerated acts (for example murder) and the attack against a civilian population. Th e case law indicates that this requires consideration as to the nature, aims, and consequences of the act in question. 106 Isolated acts which clearly diff er, in their nature, aims, and consequences, from other acts forming part of an attack, would fall outside the scope of the provision. 107

Th e last element deriving from the chapeau to Article 7 ICC Statute is the requirement that the perpetrator knew that the conduct was part of, or intended the conduct to be part of, a widespread or systematic attack against a civilian population. In the Bemba case, the Pre-Trial Chamber held that the element ‘with knowledge’ is an aspect of the mental element under Article 30(3) ICC Statute which provides that ‘“knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events’. Th e perpetrator must be aware that a wide-spread attack directed against a civilian population is taking place and that his action is part of the attack. 108 Nonetheless, this element:

. . . should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the state or organization. In the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the last element indicates that this mental element is satisfi ed if the perpetrator intended to further such an attack. 109

Applying this framework, a terrorist attack or a series of such attacks could be prosecuted as a crime against humanity before an international jurisdiction. As described above, the qualifi cation ‘widespread’ may be met by a single egregious act of suffi cient scale or magnitude, or the cumulative eff ect of a series of inhumane acts; while its systematic nature may be revealed by the organized nature of the terrorist acts in question and the improbability of their random occurrence. Such conduct would be distinguished from ordinary crimes so long as the attack com-prised a course of conduct involving the multiple commission of enumerated acts (for example, murder) against a civilian population, pursuant to or in furtherance of either a state or organizational policy to commit such attack.

In the Galić case, the ICTY found the facts establishing that the campaign of shelling and sniper attacks upon the civilian population of Sarajevo by Sarajevo-Romanija Corps (SRK) forces also constituted murder and inhumane acts charged as crimes against humanity. 110 In the Brima, Kamara and Kanu case, the SCSL was similarly

106 Bemba Confi rmation Decision (n 86) para 86. See also Prosecutor v Kalelijeli (Judgment) ICTR-98-44A-T (1 December 2003) para 866; Semanza (n 91) para 326.

107 See Prosecutor v Blagoje Simic, Miroslav Tadic and Simo Zaric (Judgment) IT-95-9-T (17 October 2003) para 41.

108 Bemba Confi rmation Decision (n 86) paras 87–8. 109 ICC Elements of Crimes (n 85) Introduction to art 7; Bemba Confi rmation Decision (n 86)

paras 87–8. 110 Galić Trial Judgment (n 33) para 598.



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satisfi ed that a widespread or systematic attack by AFRC/Revolutionary United Front (RUF) forces directed against the civilian population of Sierra Leone was at all times relevant to the indictment. 111 Also of note in the case against Joseph Kony and other senior commanders of the Lord’s Resistance Army (LRA) before the ICC, the suspects have been accused of committing crimes against humanity for a pattern of conduct which has resulted in the LRA being listed as a terrorist organization by some states. 112 In Afghanistan, the preliminary examination by the Offi ce of the Prosecutor of the ICC has been examining allegations of both war crimes and crimes against humanity committed by all parties to the confl ict, including by the Taliban which has been designated as terrorist in nature by pro-governmental forces. 113

4.3. Genocide

To amount to the crime of genocide, the underlying terrorist act in question would need to be accompanied by the specifi c intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such. 114 To prove the elements of genocide by killing before the ICC, the evidence would need to establish that: (1) the perpetrator killed one or more persons; (2) such person or persons belonged to a particular national, ethnical, racial or religious group; (3) the perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and (4) the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself eff ect such destruction. 115

Terrorist acts will typically not fulfi l these parameters. Moreover, the crime of genocide has only exceptionally been prosecuted at the international level. By way of illustration, in the Bashir case, to demonstrate the acts of genocide, the ICC Pre-Trial Chamber examined alleged attacks on the targeted ethnic groups which aff ected hundreds of thousands of individuals in Darfur across large swathes of the territory and over a fi ve year period. 116

111 AFRC Trial Judgment (n 35) paras 224–39. 112 Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen (Warrant of Arrest for

Joseph Kony issued 8 July 2005 as amended 27 September 2005) ICC-02/04-01/05-53 (27 September 2005). See, for example, PT Reeker, ‘Statement on the Designation of 39 Organizations on the USA PATRIOT Act’s Terrorist Exclusion List’ US State Department Press Release (6 December 2001) < http://www.fas.org/irp/world/para/dos120601.html > accessed 16 April 2011.

113 ‘Sixth Report of the International Criminal Court to the United Nations for 2009/2010’ (19 August 2010) UN Doc A/65/313 para 67.

114 Art 2 Genocide Convention 1951; art 6 ICC Statute. 115 Art 6 ICC Elements of Crimes (n 85). 116 Th e Prosecutor v Omar Hassan Ahmad Al Bashir (Second Decision on the Prosecution’s

Application for a Warrant of Arrest) ICC-02/05-01/09-9 (12 July 2010) paras 15–16.



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5. International Cooperation and Judicial Assistance

5.1. Existing Framework

Recourse to international criminal jurisdiction may have several important impli-cations in the area of international cooperation and judicial assistance. As is known, at the inter-state level, outside bilateral and regional agreements, a consensual and reciprocal legal framework typically governs inter-state legal assistance in criminal matters. 117 Treaty obligations arising out of requests for extradition and mutual assistance in criminal matters between states, for example under the multilateral ter-rorism conventions, are normally executed in accordance with the law of the requested authority, are based on undertakings of reciprocity, and contain various provisions enabling refusal by the requested state. Direct contact with individuals or the conduct of investigations on a state’s territory by another state is normally excluded. Implementing procedures, moreover, are often cumbersome and pro-tracted, with few mechanisms for resolving disputes beyond the voluntary referral to third party arbitration. 118

By contrast, a distinctly vertical or hierarchical regime is said to be created by the ad hoc Tribunals, as emphasized by the UN Secretary-General in his Report to the Security Council on the establishment of the ICTY: ‘. . . an order by a Trial Chamber . . . shall be considered to be the application of an enforcement measure under Chapter VII of the Charter of the United Nations’. 119 Th e ICC Statute, a treaty text arising from inter-state negotiations, can be said to create a mixture of the horizontal and vertical regimes, imposing obligations on States Parties to cooperate fully with the Court, while subjecting the modalities for their execution to domestic procedures. 120

Before both the ad hoc Tribunals and the ICC, the traditional prerogative of states in mutual legal assistance to refuse cooperation may be subjected to

117 As Swart has observed, ‘[s]overeignty, equality, reciprocity, the existence or absence of mutual interests, and, to a greater or lesser extent, the need to protect individual persons against unfair treatment by the requesting State are the main determinants of inter-State cooperation’. See B Swart, ‘General Problems’ in A Cassese, P Gaeta, and G Jones (eds), Th e Rome Statute of the International Criminal Court: A Commentary (OUP, Oxford 2002) 1591; G Sluiter, International Criminal Adjudication and the Collection of Evidence (Intersentia, New York 2002) 87.

118 Swart (n 117) . 119 UNSC, ‘Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution

808 (1993)’ (3 May 1993) UN Doc S/25704 126. See also UNSC Res 978 (27 February 1995) UN Doc S/RES/978, and UNSC Res 1031 (15 December 1995) UN Doc S/RES/1031. Th e ICTY Appeals Chamber has stated, moreover, that the provisions on cooperation ‘impose an obligation on Member States of the United Nations towards all other Member States or, in other words, an obligation “ erga omnes partes ” ’; Blaškić Appeal Judgment (n 99) 26.

120 See generally, R Rastan, ‘Testing Cooperation: the ICC and national authorities’ (2008) 2 Leiden JlL 431.



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judicial examination. 121 For example, a refusal based on an invocation to national security is reviewable by Chambers and may lead to a fi nding as to the bona fi des of the claim and the drawing of relevant inferences in the case at hand. A state may not invoke a lacuna in its own domestic law, or defi ciencies thereof, as justifi cation for its failure to perform a treaty obligation. 122 Non-compliance with a request, more-over, may lead to collective enforcement action by the international community. Th is may take the form of Security Council imposed Chapter VII measures, though these have seldom been employed. 123 Alternatively, this may lead to measures being adopted on a regional or bilateral basis, such as those imposed by the European Union, NATO, and several donor countries on the states of the former Yugoslavia in response to reports of non-cooperation with the ICTY, which have resulted in trade and aid conditionality measures, travel bans, and the freezing of assets. 124

Under the ICC Statute, two further provisions empower it to conduct investigative activities on the territory of a State Party in ways that constitute a signifi cant diver-gence from the traditional inter-state legal assistance regimes. Firstly, Article 99(4) authorizes the Prosecutor, if it is necessary for the successful execution of a request, to execute such a request directly on the territory of a State Party without having secured its consent and, if essential for its execution, without the presence of the national authorities, where the request can be executed without any compulsory measures. Th is includes specifi cally the interviews of witnesses on a voluntary basis, or the examination without ‘modifi cation’ of a public site or place (such as a mass grave), and may extend to other non-compulsory measures not listed. 125 Secondly, the Pre-Trial Chamber may authorize the Prosecutor to take specifi c investigative steps within the territory of a State Party without having secured its consent under

121 Rule 54 bis ICTY Rules; art 72 ICC Statute. 122 Prosecutor v Tihomir Blaškić (Judgment on the Request of the Republic of Croatia for Review of

the Decision of Trial Chamber II of 18 July 1997) IT-95-14-AR108 (29 October 1997) para 65. Th is is the generally recognized position in international law which can also be found in decisions of the World Court. See inter alia, Polish Nationals in Danzig Case PCIJ Series A/B No 44, 24. Moreover, in the Exchange of Greek and Turkish Populations (Advisory Opinion) PCIJ Series B No 10 para 20. See also Vienna Convention on the Law of Treaties 1969 (adopted 23 May 1969, entered into force 27 January 1980) art 27, the fi rst sentence of which clearly states that: ‘A party may not invoke the provisions of its internal law as justifi cation for its failure to perform a treaty’; and, ‘Restatement of the Law — Th ird, Th e Foreign Relations Law of the United States’ Vol I (1987) para 115b.

123 See, for example, UNSC Res 1207 (17 November 1998) UN Doc S/RES/1207, where the Council condemned the failure of the Federal Republic of Yugoslavia to execute the arrest warrants issued by the ICTY and demanded the immediate and unconditional execution of those arrest warrants. In the case of the ICC, fi ndings of non-cooperation under art 87(7) ICC Statute may also be referred to the ICC Assembly of States Parties for consideration (art 112(2)(f ) ICC Statute) or to the UNSC if the case had originally been referred to the Court by the Council; Th e Prosecutor v Ahmad Harun and Ali Kushayb (Decision informing the United Nations Security Council regarding the lack of cooperation by the Republic of the Sudan) ICC-02/05-01/07-57 (26 May 2010).

124 See generally R Rastan, ‘Th e Responsibility to Enforce: Connecting Justice with Unity’ in C Sluiter and G Stahn (eds), Th e Emerging Practice of the International Criminal Court (Martinus Nijhoff , Leiden) 165–9.

125 Rastan (n 124) 437.



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Part 9 of the Statute where it determines that the requested state is ‘clearly unable to execute a request for cooperation due to the unavailability of any authority or any component of its judicial system competent to execute the request for cooperation’. Although the threshold is high, the provision grants signifi cant powers to the Prosecutor’s Offi ce by authorizing the conduct of investigate acts, including those requiring compulsory measures, without obtaining state consent. 126

5.2. Th e Handling of Sensitive Materials

One issue which can pose a signifi cant challenge to the levels of cooperation and assistance achieved in practice, and which frequently arises in the course of counter-terrorism cooperation within national as well as international contexts, concerns the handling of sensitive materials.

International criminal courts have had considerable experience dealing with confi dential and classifi ed information and, in the process have developed a number of best practices which may be implementable elsewhere, albeit in potentially modifi ed form. Th e presumption of course is that information obtained during the course of an investigation will be gathered for its potential use as evidence in open court. 127 Nonetheless, in some instances, without assurance of confi dentiality to information providers, cooperation may not be forthcoming. Such confi dentiality may also be required in areas related to the protection of victims and witnesses, investigative sources, and to protect the integrity of ongoing investigations.

In the case of the ICTY/ICTR and the ICC, the Prosecutor has the authority to accept documents or information, either in whole or in part, on the condition of confi dentiality and subject to an agreement with the information provider not to disclose such materials further without its prior consent. 128 Materials so obtained are to be used solely for the purpose of generating new evidence, and therefore cannot be admitted before Chambers as evidence per se without the provider’s prior con-sent. 129 Rule 82, also borrowing from Rule 70 ICTY/ICTR Rules, deals with the situation where an information provider lifts the restrictions on materials that have been previously provided under Article 54(3)(e) ICC: Statute. In order to instil con-

126 Th e provision aims to remedy the void created by the absence of a domestic authority competent to authorize the measure itself: ie the ‘failed state’ scenario. It is not available where a state is able, but unwilling to cooperate. See Rastan (n 124) 437–8.

127 Art 67 ICC Statute; ICC Regulations of the Court, ICC-BD/01-01-04 (2004) Reg 20. 128 Art 54(3)(e) ICC Statute; Rule 70 ICTY Rules; Rule 70 ICTR Rules. 129 Th e condition that materials are to be obtained ‘solely for the purpose of generating new

evidence’ does not circumscribe the nature of the documents or information that may be received under the provision, but only the use to which they may be put. In other words, the Prosecutor is not restricted to receiving material of potential evidentiary value under art 54(3)(e), but he can only use that material to generate new leads/evidence or, where that is not possible, he must seek the provider’s consent before directly introducing it as evidence in court. Th e introduction into evidence of materials previously obtained under conditions of confi dentiality is also foreseen in art 93(8), and Rule 82 ICC Rules of Procedure and Evidence.



899

fi dence and to encourage information providers to assist in-court proceedings, the provision clarifi es that the Chamber is barred from inquiring into the materials pre-sented beyond the scope which the information provider has agreed to disclose. 130

While the ability of the Prosecutor to obtain documents and information on a confi dential basis may prove critical for the investigative process, this must be balanced against other protected interests, notably the rights of the defence and the requirements of a fair trial. In particular, the Statute provides:

In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may aff ect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide. 131

In the Lubanga case, the ICC Appeals Chamber ruled that where a potential tension arises between the requirements of confi dentiality and those of a fair trial, the judges will need to review the material concerned in closed session in order to determine what counter-balancing measures would need to be taken by the prosecution in the event that a document cannot be disclosed due to the conditions of confi dentiality stipulated by the information provider. Such counter-balancing measures may take the form of approved redactions, limitations on disclosure, the use of ex parte or in camera hearings, stipulation of facts, or even withdrawal of relevant charges to which the information pertains. 132 Nonetheless, the Appeals Chamber ruled that the Chamber conducting this review will have to respect the confi dentiality agreement concluded by the Prosecutor under Article 54(3)(e) and cannot order the disclosure of the material to the defence without the prior consent of the information provider. 133

Th e judgment of the Appeals Chamber has several important ramifi cations for the way the ICC handles classifi ed information. Th e Appeals Chamber made it clear that potential tensions between the requirements of confi dentiality and those of a fair trial should be avoided pre-emptively by the Offi ce of the Prosecutor, by applying Article 54(3)(e) in strict adherence to the conditions stipulated in the provision so as to avoid routine resort to its application. Also, confi dentiality agreements should be concluded in a manner that will allow the Court to resolve any potential tensions that may arise. However, where tension does arise, it affi rmed that disclosure obligations

130 Rule 82(3) ICC Rules of Procedure and Evidence. 131 Art 67(2) ICC Statute. 132 Th e Prosecutor v Th omas Lubanga Dyilo (Judgment on the appeal of the Prosecutor against the

decision of Trial Chamber I entitled ‘Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008’) ICC-01/04-01/06 OA 13 (21 October 2008) para 27.

133 Lubanga Judgment on the appeal of the Prosecutor (n 132) para 48.



900

under Article 67(2) do not override the confi dentiality of information under Article 54(3)(e). If disclosure cannot be eff ected, the Chamber must provide for an appro-priate remedy to ensure that fairness results. 134 Th is means that the defence does not enjoy an absolute right to the disclosure of every item of potentially exculpatory material under Article 67(2) or the inspection of material under Rule 77 in its entirety — it may be restricted on the basis of Article 54(3)(e). Nevertheless, this can only be decided by way of judicial control. 135 At the same time, the judgment provides procedural certainty by confi rming that no chamber of the Court can order the disclosure of Article 54(3)(e) materials to the defence without the prior consent of the information provider. Th is is because the Chamber will itself be required to respect the conditions of confi dentiality provided for by the Article 54(3)(e) agreement, pursuant to its statutory obligation to provide for the confi dentiality of information. 136

6. Dealing with Large Quantities of Facts and Evidence

What international crimes trials have in common with terrorism trials is the large quantities of facts and evidence that the investigators, prosecutors, judges, and defence lawyers need to be able to handle. Relating such facts and evidence to the legal requirements of the above crimes poses a major challenge. Terrorism cases, like criminal justice for atrocities, are fact-rich; they draw upon numerous documents and witness statements. Being able to organize such data effi ciently and accurately has an impact on case selection, the strength of a case, as well as fairness and judicial economy.

For prosecutors, selecting strong cases means understanding whether the evidence in their possession meets the legal and contextual requirements of the crime and maintaining a clear road-map for the selection and presentation of evidence; for counsel, maintaining an overview of the case helps develop clear prosecutorial or defence strategy, particularly where members of large teams are involved, each of whom focuses on diff erent parts of the same case.

Th e drive to establish a coherent and consistent policy throughout a criminal justice system is vital given the inherent factual and legal complexity of the crimes within the Court’s jurisdiction and the situations in which such crimes are committed. 137

134 Lubanga Judgment on the appeal of the Prosecutor (n 132) para 48. 135 Lubanga Judgment on the appeal of the Prosecutor (n 132) para 47. 136 Lubanga Judgment on the appeal of the Prosecutor (n 132) para 48; R Rastan, ‘Review of ICC

Jurisprudence 2008’ (2009) 7 Northwestern JIHR 270–6. 137 HP Kaul, ‘Construction Site for More Justice: Th e International Criminal Court After Two

Years’ (2005) 2 AJIL 370, 371.



901

Th e way in which the ICC’s Pre-Trial Chambers have chosen to deal with the issue is through the introduction of the ‘in-depth analysis charts’ as a modality of disclosure and communication of evidence 138 which the President of the ICC in his annual address to the 9th Session of the Assembly of States Parties in 2010, hailed as ‘an innovative legal tool’. 139 President Song noted that ‘[i]t directs the Prosecutor to link every piece of evidence with a specifi c element of the crimes and mode of liability as contained in the charges, making the review of evidence more effi cient and enabling the judges to organize the presentation of evidence in an expeditious manner’. 140

Th e origins of this approach can be found in Pre-Trial Chamber III’s decision of 31 July 2008 in the case of Prosecutor v Jean-Pierre Bemba Gombo , which held that evidence submitted to the Registry for disclosure between the parties should be accompanied by, inter alia , ‘[a]n analysis of each piece of evidence refl ecting its relevance as described in part III of this decision’. 141 In part III of its decision, the Chamber outlined that ‘evidence exchanged between the parties and communicated to the Chamber must be the subject of a suffi ciently detailed legal analysis relating the alleged facts with the constituent elements corresponding to each crime charged’. 142 Th e Chamber went on to lay down detailed requirements for the manner in which the evidence should be presented:

Each piece of evidence must be analysed — page by page or, where required, paragraph by paragraph — by relating each piece of information contained in that page or paragraph with one or more of the constituent element or one or more of the crimes with which the person is charged, including the contextual elements of those crimes, as well as the constituent elements of the mode of participation in the off ence with which person is charged. 143

Th e approach of the Pre-Trial Chamber was subsequently followed by Trial Chamber II in the case of Prosecutor v Germain Kantanga and Mathieu Ngudjolo Chui , which

138 See generally M Bergsmo, O Bekou, and A Jones, ‘Preserving the Overview of Law and Facts: the Case Matrix’ in A Smeulers, Collective Violence and International Criminal Justice (Intersentia, New York 2010) 413–35; M Bergsmo, O Bekou, and A Jones, ‘New Technologies in Criminal Justice for Core International Crimes: Th e ICC Legal Tools Project’ (2010) 4 HRLR 715.

139 Statement by Judge Sang-Hyun Song, President of the ICC, ‘Remarks to the Assembly of States Parties 9th Session’ (6 December 2010) < http://www.icc-cpi.int/Menus/ASP/Sessions/Documentation/ 9th + Session/ > accessed 28 April 2011.

140 Statement by Judge Sang-Hyun Song (n 139). 141 Situation in the Central African Republic in the case of the Prosecutor v Jean-Pierre Bemba Gombo

(Decision on the Evidence Disclosure System and Setting a Timetable for Disclosure between the Parties) ICC-01/05-01/08-55 (31 July 2008) ( Bemba Disclosure Decision) 22.

142 Bemba Disclosure Decision (n 141) para 66. 143 Bemba Disclosure Decision (n 141) para 69. Two further decisions ordering the prosecution

and the defence to re-submit evidence in the required format were issued following failure to comply with the above decision. See Prosecutor v Jean-Pierre Bemba Gombo (Decision on the Submission of an Updated, Consolidated Version of the In-depth Analysis Chart of Incriminatory Evidence) ICC-01/05-01/08-232 (10 November 2008); Prosecutor v Jean-Pierre Bemba Gombo (Decision on the Disclosure of Evidence by the Defence) ICC-01/05-01/08-311 (5 December 2008).



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directed the prosecution to ‘submit a proposal for a table linking the charges confi rmed by Pre-Trial Chamber I and the modes of responsibility with the alleged facts as well as the evidence on which it intends to rely at trial’, 144 and by Trial Chamber III in the case of Prosecutor v Jean-Pierre Bemba Gombo . 145

Th e rationale of the ICC in adopting the in-depth analysis charts can be found in both ensuring the expediency of the criminal process and in protecting the rights of the accused.

Streamlining the disclosure of evidence allows for a more effi cient process, ensuring that cases meet the threshold of Article 61(7) ICC Statute and that only relevant materials are introduced at the beginning of the trial process. 146 Noting the additional administrative burdens the adoption of the in-depth analysis charts would entail for the Prosecutor, 147 the Chamber nevertheless was convinced that ‘the supplementary investment of time and resources, required by the Prosecution for preparing the Table of Incriminating Evidence, will facilitate the subsequent work of the accused and the Chamber and thereby expedite the proceedings as a whole’. 148 As the Chamber observed, ‘this mechanism will serve to ensure respect for the rights of the defence, better organisation of disclosure and effi ciency and expeditiousness of the proceedings’. 149

Besides effi ciency, Pre-trial Chamber III recognized that dealing with evidence in a systematic and organized manner, such as the one off ered by the in-depth analysis charts, off ers advantages for the rights of the accused in that ‘disclosure of a consid-erable volume of evidence for which it is diffi cult or impossible to comprehend the usefulness for the case merely puts the defence in a position where it cannot genuinely exercise its rights, and serves to hold back proceedings’. 150 Along the same lines, the Trial Chamber emphasized that by following this methodology, the accused has ‘adequate time and facilities for the preparation of their defence, to which they are entitled under article 67(1)(b) of the Statute, by providing them with a clear and comprehensive overview of all incriminating evidence and how each item of evidence relates to the charges against them’. 151

144 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Order concerning the Presentation of Incriminating Evidence and the E-Court Protocol) ICC-01/04-01/07-956 (13 March 2009) ( Katanga and Ngudjolo Order on Incriminating Evidence) para 1.

145 Prosecutor v Jean-Pierre Bemba Gombo (Decision on the ‘Prosecution’s Submissions on the Trial Chamber’s 8 December 2009 Oral Order Requesting Updating of the In-Depth-Analysis Chart’) ICC-01/05-01/08-682 (29 January 2010) ( Bemba Order In-Depth-Analysis Chart).

146 Bemba Disclosure Decision (n 141) paras 72–3. 147 Katanga and Ngudjolo Order on Incriminating Evidence (n 144) para 15. 148 Katanga and Ngudjolo Order on Incriminating Evidence (n 144) para 15, recalled in Bemba

Order In-Depth-Analysis Chart (n 145) para 13. 149 Bemba Disclosure Decision (n 141) para 73. 150 Bemba Disclosure Decision (n 141) para 67. 151 Katanga and Ngudjolo Order on Incriminating Evidence (n 144) para 6.



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Th e need for fairness and expediency is not limited to the ICC. International criminal trials are well known for the length of time they take to complete, the costs they incur, and the level of bureaucracy they involve, 152 but this is also symptomatic of the deeply complex factual and legal circumstances with which they are occupied. 153 Th e same is true of terrorism trials, national and international, which are also ridden with complexity. Adopting, therefore, measures that will increase the effi ciency of the juridical process may be particularly advantageous. Clearly, Courts must strive for expeditiousness while ensuring that the trial is fair and conducted with full respect for the rights of the accused and with due regard to the protection of victims and witnesses, as required by Article 64(2). Th is balance is crucial, not least in rule of law terms, and caution should be exercised when judicial eff orts are made to improve the effi ciency of the proceedings in order not to (inadvertently) sideline those interests. 154 Th e balance sought to be struck by the adoption of the analytical method of disclosure is to reconcile the realization of the interests above and, as such, it could provide important lessons learned for other fora.

Whilst there are compelling reasons for the use of in-depth analysis charts, certain negative implications must also be considered. Such case analysis charts impact on the way parties work. In particular, the Offi ce of the Prosecutor contended, inter alia , that production of such detailed analytical charts would impose an unfair administrative burden, was not a necessary component of a fair trial, and was with-out any basis in the ICC Statute framework, noting also that it was not deemed necessary in earlier cases. More generally, the prosecution emphasized the need for fl exibility in the interpretation and use of such charts, contending that it should not be prevented from arguing at a later stage of the proceedings that certain evidence identifi ed in the chart as relevant for one purpose had additional or alternative

152 On the length of proceedings generally in international criminal justice, see W Schabas, An Introduction to the International Criminal Court (CUP, Cambridge 2007) 209–10. As noted by Judge Trendafi lova, writing extra-judicially: ‘Fairness and expeditiousness are the pillars of criminal justice. Expeditiousness secures the fairness of proceedings. Justice within a reasonable time respects the rights of the accused, is crucial to the case of the Prosecutor, best serves the interests of the victims, and observes the public interest in the timely prosecution of crimes.’ See E Trendafi lova, ‘Fairness and Expeditiousness in the International Criminal Court’s Pre-Trial Proceedings’ in C Sluiter and G Stahn (eds), Th e Emerging Practice of the International Criminal Court (Martinus Nijhoff , Leiden) 441.

153 See Single Judge Claude Jorda in Prosecutor v Th omas Lubanga Dyilo (Decision on the Application for Interim Release of Th omas Lubanga Dyilo) ICC-01/04-01/06-586-tEN (18 October 2006) 7, citing the fact that ‘the vast majority of the evidence is abroad and that the volume of evidence supporting the prosecution is huge’ for the complexity of the case and thus the length of pre-trial proceedings. See also F Harhoff , ‘It is All in the Process: Refl ections on the Relation between International Criminal Trials and International Humanitarian Law’ (2009) 4 Nordic JIL 469, 478.

154 See, for example, R Heinsch, ‘How to Achieve Fair and Expeditious Trial Proceedings Before the ICC: Is it Time for a More Judge-Dominated Approach?’ in C Sluiter and G Stahn (eds), Th e Emerging Practice of the International Criminal Court (Martinus Nijhoff , Leiden) 479–80.



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probative signifi cance, while submitting it would be need additional time to complete the required in-depth analysis charts due to a shortage of resources. 155

In examining these arguments, Chambers of the Court have clarifi ed that the pros-ecution need only enter those items of evidence that it had decided to use during the trial, emphasizing that ‘[t]he Prosecution therefore remains master of its case and has full control over the selection and presentation of evidence in the Table’. 156 Trial Chambers have defi ned such charts or tables as being ‘nothing more than a procedural tool to make clear and accessible to the Defence and the Chamber the exact evidentiary basis of the Prosecution’s case’ 157 and ‘a tool to structure the presentation of the evidence and to ensure that the Prosecution’s evidentiary case is easily accessible and comprehensible’. 158 Trial Chamber III also recognized that ‘trials are essentially organic in nature and it is inevitable that as the evidence and the issues in the case develop, the prosecution may in due course seek to argue that the probative value or signifi cance of one or more areas of evidence described in the in-depth analysis chart have changed or developed’, 159 while confi rming that the prosecution ‘will not be limited by this document as to the submissions that it is entitled to advance on the ultimate probative signifi cance of any of the testimony of the witnesses it has called or the other materials it has introduced’, noting ‘[u]ltimately, it is for the Chamber to determine all issues of fact in a manner that is consistent with a fair trial’. 160 Th e Chamber also accepted that the deadline for service should be extended, noting that updating this document is a signifi cant task, and it is essential that it is prepared carefully and accurately. 161

Th e Court is developing important lessons learned in its handling of large, complex materials. Th e organization and implementation of detailed in-depth analysis charts for each item of evidence clearly will require the allocation of signifi cant resources and time. Nonetheless, where practicably feasible, there may be scope for considerable resource gains at the trial stage, as well as signifi cant rule of law benefi ts in terms of case outcomes and due process and the overall expeditiousness of

155 See Bemba Order In-Depth-Analysis Chart (n 145) summarizing prosecution arguments at paras 6–11.

156 Katanga and Ngudjolo Order on Incriminating Evidence (n 144) para 12; Bemba Order In-Depth-Analysis Chart (n 145) para 22.

157 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Decision on the ‘Prosecution’s Application for Leave to Appeal the “Order concerning the Presentation of Incriminating Evidence and the E-Court Protocol”’ and the ‘Prosecution’s Second Application for Extension of Time Limit Pursuant to Regulation 35 to Submit a Table of Incriminating Evidence and related material in compliance with Trial Chamber II “Order concerning the Presentation of Incriminating Evidence and the E-Court Protocol”’) ICC-01/04-01/07-1088 (1 May 2009) para 24; Bemba Order In-Depth-Analysis Chart (n 145) para 23.

158 Katanga and Ngudjolo Order on Incriminating Evidence (n 144) para 12; Bemba Order In-Depth-Analysis Chart (n 145) para 23.

159 Bemba Order In-Depth-Analysis Chart (n 145) para 27. 160 Bemba Order In-Depth-Analysis Chart (n 145) para 27. 161 Bemba Order In-Depth-Analysis Chart (n 145) para 29.



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the proceedings. Th e ICC is exploring the best way to manage large quantities of evidentiary material, including the use of in-depth analytical charts. 162 Th e stage at which such obligations are imposed may also be relevant, since its utility and feasi-bility may be more pronounced at the trial stage as opposed to the early pre-confi rmation stage when prosecution resources will normally be dedicated primarily towards the completion of the investigation. 163 In other cases, the sheer scale of information before the Court will require Chambers to develop pragmatic solutions that nonetheless guarantee fairness. 164 As such, the importance of devising investigation plans for complex cases with a court directed disclosure methodology that allows for the effi cient and eff ective presentation of terrorist cases should not be underestimated.

7. Conclusion and Recommendations

Despite the seemingly intractable goal of defi ning a comprehensive treaty defi ni-tion of terrorism, much of what is encountered today as terrorist conduct can be

162 See, for example, diff erences in the systems for pre-confi rmation disclosure in the Lubanga and Katanga cases that did not require summaries of content and signifi cance, but instead established the ‘bulk rule’; the Abu Garda and the Mbarushimana cases where the Pre-Trial Chambers demanded that the prosecution summarize each disclosed item, but not that the Chamber receive the disclosed mate-rial; contrasted with the broader approach adopted in Bemba and the Kenya cases; Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Prosecution’s Application for leave to Appeal the ‘Decision Setting the Regime for Evidence Disclosure and Other Related Matters’ (ICC-01/09-02/11-48)) ICC-01/09-02/11-55 (13 April 2011) (Prosecution Leave to Appeal) para 4. See also Prosecutor v Callixte Mbarushintana (Prosecution’s Application for leave to Appeal the ‘Decision on issues relating to disclosure’ (ICC-01/04-01/10-87)) ICC-01/04-01/10-93 (5 April 2011) para 5.

163 In particular, the prosecution argued that the imposition of a duty to prepare an in-depth analysis chart of non-incriminatory evidence at the early pre-conformation stage poses ‘a highly burdensome duty’ and intrudes on the prosecutorial independence in determining the use of its resources, arguing that the decision ‘eff ectively demands allocation of resources to the performance of tasks that are not required in the Statute or Rules’ and ‘thus renders those resources unavailable for carrying out the core functions that the Statute assigns to the Prosecution’. It also argued that there is no empirical proof that in-depth analysis is particularly helpful to the defence or that its absence in previous pre-trial cases adversely aff ected defence rights in those confi rmation hearings. It also observed that the requirement to provide such a chart could delay the start of the confi rmation hearing, and could therefore aff ect the expeditiousness of proceedings: Prosecution Leave to Appeal (n 162) paras 20–1, 23–5. Th e Pre-Trial Chamber, considering inter alia counter submissions by the defence, denied leave to appeal on the issue, while clarifying that the preparation of in-depth charts was not required for exculpatory evidence, but for all incriminating evidence, which the prosecution had not opposed; Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Decision on the ‘Prosecution’s Application for leave to Appeal the “Decision Setting the Regime for Evidence Disclosure and Other Related Matters” (ICC-01/09-02/11-48)’) ICC-01/09-02/11-77 (2 May 2011) paras 15–17.

164 In the Mbarushintana case, for example, the Court has faced the challenge of implementing a disclosure regime in respect of very large quantities of electronic data seized from the property of the suspect. See by way of example a Registry report concerning implementation of an initial fi ltering of a small portion of the seized materials based on a search for identifying privileged materials, Prosecutor v Callixte Mbarushintana (Registry Report) ICC-01/04-01/10-95 (8 April 2011).



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captured under the existing rubric of international criminal law. Although its appli-cation at the international level will require satisfaction of several thresholds, recourse to the system of international criminal jurisdictions may prove a viable alternative where national courts applying domestic law are either unwilling or unable to constitute genuine proceedings. Moreover, while some gaps will remain, the most serious criminal episodes of terrorist violence typically occur within the context of an armed confl ict or may otherwise qualify as a widespread or systematic attack against a civilian population. While few international jurisdictions directly sanction the crime of terror, such conduct will for the most part be amenable to indirect incorporation under other existing international criminal off ences. Moreover, because international criminal law extends to state and non-state actors alike, it also provides a rule of law framework to address governmental counter-terrorist responses. As the case law above demonstrates, individual criminal responsibility may attach to both physical perpetrators as well as their civilian or military commanders, who may be held responsible for both their acts and their omissions. International criminal jurisdictions also are typically not susceptible to defences based on superior orders, claims based on offi cial capacity, or constitutional immunity and statutes of limitations, while issues of international cooperation and judicial assistance can be placed within a regime that invokes state responsibility under international law.

Th e preceding analysis has demonstrated that there are several lessons that can be learnt, and examples of best practices identifi ed, from the experience of the inter-national criminal justice system to date in dealing with terrorist acts, which may be transferrable in the context of other rule of law initiatives and/or implementable in the conduct of terrorism related cases at the national level. In the light of this, a number of specifi c recommendations are made:

(1) In the absence of a comprehensive agreed defi nition on the crime of terrorism as an international crime, it may be benefi cial to use the existing framework of international criminal justice institutions to address terrorist acts. In particu-lar, the existing framework is able to capture both the acts of state and non-state actors, and the conduct of both physical perpetrators as well as their civilian or military commanders, who may be held responsible for their respective acts and their omissions.

(2) At the national level, states should consider to what extent terrorism and coun-ter-terrorist responses to them may be amenable to judicial scrutiny under the existing framework of international humanitarian law or under national off ences derived from the domestic incorporation of other international off ences such as crimes against humanity, for example under the rubric of implementing legislation for the ICC Statute.

(3) At the international level, consideration should be given to how the prohibi-tion of terrorist acts can be (i) directly incorporated under the applicable law of international criminal jurisdictions, and (ii) where such conduct and govern-



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mental responses to them can be subsumed indirectly under the existing frame-work of international criminal law.

(4) International criminal justice institutions have developed a number of best practices for the handling of confi dential information which pay due regard to the rights of the defence and the requirements of a fair trial, that may be applied to terrorism cases handling similar categories of classifi ed information.

(5) Dealing eff ectively with large quantities of facts and evidence is key to the success of a case, not least in rule of law terms. Th e experience of the ICC in utilizing in-depth analysis charts off ers an example of important lessons learned in increasing the eff ectiveness of fact-rich cases, which may be transferable to national prosecutions of terrorism related cases.


Documents

Terrorism and Counter-Terrorist Responses: The Role of International Criminal Jurisdictions