This article is written by Varchaswa Dubey from JECRC University, Jaipur. This article reflects the analysis of the impact on International Criminal Law by the war of terror.
Table of Contents
In a war against terrorism, the human rights jurisprudence, and rule of law are the most applauded champions on earth. To eliminate the gruesome acts of terrorism must be considered as a different and more wicked act against human rights, and the rule of law.
The act of terrorism includes war crimes, genocide, and crimes against humanity, and to prosecute those who are responsible for such crimes, the United Nations General Assembly enacted the Rome Statute of International Criminal Court in 1998 which empowered the International Criminal Court to prosecute individuals starting from 2002.
The modern-day concept of terrorism was first witnessed during the year 2001, when the then-President of the U.S.A. used the term ‘war on terror’ referring to the September 2001 attacks, infamously known as the 9/11 attack.
Origins of war on terror and International Criminal Law
Terrorism has always existed in society in different forms, including mass killings, assassinations through bombs, etc. but the contemporary times’ concept of terrorism can be traced back to the 18th Century where French Revolution began in 1789 and lasted until 1794 where after executing King Louis XVI, and his wife, more than 17,000 individuals were executed, and this event of executing thousands of people is infamously termed as the reign of terror.
Terrorist attacks have occurred ever since, however, the gravity of atrocities caused by such acts of terrorism has increased. The attack of 9/11 is the worst terrorist attack the world has ever witnessed in contemporary times when more than 3000 people lost their lives.
What is the war on terrorism?
The 9/11 attacks in the U.S. led to the origins of the global war on terrorism, which was initiated to eliminate terrorism worldwide. After the September attacks, the U.S. administration began an endless war against terrorism through open military operations, new defense legislation, blocking financial support to terrorism, etc.
The Bush government not only decided to tackle terrorism worldwide but also asked other nations to join the U.S. or else it shall be considered that they are associated with terrorism. Eventually, many nations joined the international operation against terrorism, when most of the nations enacted more strict laws regarding terrorism in their respective nations.
What are the impacts of war on terrorism?
After numerous nations, including India, joined the U.S.’s war on terrorism, the terrorism groups, especially al-Queda, which was operated primarily by Osama Bin Laden, the prime accused in the 9/11 attacks, faced heavy damages on their dominance, after the U.S. military was deployed in Afghanistan, where al-Queda is situated. The war on terrorism not only led to Taliban leaders surrendering to the U.S. troops but also at least 11 terrorist camps were destroyed, and routes were blocked to prevent the running away of terrorists from Afghanistan. All the efforts of the U.S. were achieved then they eventually managed to kill the al-Qaeda leader Osama Bin Laden in the year 2011 during a raid in Pakistan.
With the demise of the al-Qaeda leader, the global war on terrorism did not stop and there is no conclusive proof as to when will this war against terrorism will come to an end.
The Hamdan judgment
The Supreme Court of the United Nations in the case of Hamdan v. Rumsfeld, Secretary of Defense (2006) tried the close associate of Osama Bin Laden, who was captured by the U.S. military during a raid in Afghanistan which was responsible for killing Osama Bin Laden. Hamdan was detained in Guantanamo Bay where he was held eligible to be tried by military courts by the then President of the U.S.
Hamdan filed a habeas petition before the U.S. District Court for the District of Columbia arguing that the military courts have no jurisdiction to try him for the alleged offenses, and the trial by military commission is a violation of common Article 3 of the Geneva Conventions, 1949. The District Court allowed the appeal of Hamdan and ruled that the military tribunal had failed to establish that Hamdan is a prisoner of war, however, the judgment was reversed by the D.C. Circuit Court.
The circuit court ruled that Geneva Conventions cannot be enforced by federal courts, and the President is a competent authority to determine the status of a prisoner of war, and the President has the authority to establish military commissions which will sustain evidence gained by torture or coercion.
The matter eventually went to the U.S. Supreme Court and it reversed the judgment of the Circuit Court while ruling that military commissions are a violation of Article 3 of the Geneva Conventions, and the Geneva Conventions were enforceable in federal courts as well but the Congress passed the Detainee Treatment Act of 2005 which ceased all the federal courts to hear habeas petition which significantly infringed the Supreme Court of U.S. judgment, and Hamdan was later found guilty of providing support to terrorists but was acquitted for charges of conspiracy.
The targeted killings judgment
The case of The Public Committee against Torture in Israel v. The Government of Israel (2006) considered Israel’s policy which caused the death of terrorists who were associated with planning, committing, and launching terrorist attacks in Israel against civilians and soldiers. The strike back by the soldiers resulted in harm to the lives of innocent civilians. The main question before the Supreme Court of Israel was whether the State acts legally in such cases.
The petitioners in the present case argued before the court that such killings are a violation of human rights and such killings have caused large disapproval by the international community. However, the Supreme Court disagreed with the arguments of petitioners holding that targeted killings may be unlawful and then the court emphasized human rights law.
The Court further held that it cannot be decided prior that each targeted killing is prohibited in accordance with customary international law in the same way it cannot be determined that every targeted killing is permissible under customary international law.
What is International Criminal Law
International criminal law is the subset of international public law, which is primarily concerned with the criminal activities of individuals, and places responsibility on individuals who commit criminal acts. International criminal law is not concerned with inter-state relations but the responsibility of individuals who commit acts like genocide, crimes against humanity, war crimes, and crimes of aggression.
The prosecution under international criminal law is conducted at the International Criminal Court, situated at Hague, which is empowered to prosecute and punish individuals who commit grave offences.
What are the jurisdictions of the International Criminal Court with respect to the war on terror
The International Criminal Court (ICC) prosecutes and imposes punitive measures on those who are guilty of committing genocide, crimes against humanity, war crimes, and crimes of aggression. The jurisdictions of ICC are defined in Article 5 of Rome Statute, however, the ICC can only entertain cases when the country where the alleged offence took place is a party to the Rome Statute, or the person who is an alleged criminal belongs to a country who is a party to Rome Statute.
The ICC only exercises its jurisdictions in cases where national courts fail to practice their jurisdiction, and to prosecute a criminal, also the jurisdictions of ICC are not retrospective, i.e. any offence which took place before the commencement of ICC cannot be tried at ICC.
The most atrocious crimes can be tried at the national as well as international level, however, such prosecution of the person is a subject matter of jurisdiction of the court where such prosecution is taking place.
In numerous instances, the International Criminal Law and the international legal mechanism concerning terrorism operate parallelly and do not intersect with each other, yet the only method by which they can intersect is the assistance of terrorism-related facts concerning the main atrocities under international criminal law, like genocide, crimes against humanity, war crimes, etc.
The International Criminal Court certainly have a crucial responsibility regarding what shall be done in cases of terrorist acts, but still, the international criminal law is in turmoil in addressing terrorism as an individual crime, yet still, the jurisdictions of the International Criminal Court has absolute jurisdictions over acts of genocide, crimes against humanity, war crimes, and crimes of aggression.
Defined in Article 6 of the Rome Statute, genocide refers to those crimes which involve killing members of a group, causing grave physical and mental injuries to the member of a group, intentionally degrading the living conditions of members of a group, imposing measures to prevent births, and forced transfer of children to another group.
Crimes against humanity
Defined in Article 7 of the Rome Statute, crimes against humanity refers to murder, extermination, enslavement, deportation or forcible transfer of people, forceful imprisonment, torture, rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization, or any other form of sexual violence with the same gravity of offence, any type of persecution against a group on racial, political, national, ethnic, religious, etc. grounds, the disappearance of persons, crime of apartheid, crimes causing mental or physical injury, etc.
Defined in Article 8 of Rome Statute, war crimes refer to wilful killings, torture or inhuman treatment including biological experiments, intentional causing suffering or injury to body or health, destruction of property not justified by the military, forcing a prisoner of war to serve in the forces of a hostile power, depriving a prisoner of war of the right to fair and regular trial, unlawful deportation, unlawful confinement, taking of hostages, and various other crimes committed during a war.
Crime of aggression
Defined in Article 8(Bis) of Rome Statute, crime of aggression refers to the planning, preparation, initiation or execution, by a person in a position of authority effectively to exercise control over or to direct the political or military action of a State, which through its nature constitutes to be a violation of international laws. Crime of aggression also refers to the use of armed forces to violate the sovereignty, territorial integrity, or political rule of another State.
Treaties to tackle terrorism activities
Since 1963 The United Nations has bestowed 19 international legal instruments to prevent terrorist acts, primary being:
- Convention on Offences and Certain Other Acts Committed On Board Aircraft, 1963: the treaty was bestowed to provide in-flight safety to the passengers, and crew members. The treaty authorizes the air commander to impose restrictions, including restraining if such flight commander has reason to believe that any person may commit or has committed any act which may compromise the safety of the aircraft.
- Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, 1973: protected persons under this convention refers to the head of a State, Minister of External Affairs, or any state representatives. The convention places a responsibility on the states to punish any person who is found liable for murder, kidnapping, or any other attack on the internationally protected person.
- Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1991: the convention was bestowed to control and curb the use of unmarked and undetectable plastic explosives, and the State parties are under obligation to ensure that they have effective control over unmarked plastic explosives.
- International Convention for the Suppression of Terrorist Bombings, 1997: it bestows a universal jurisdiction over all the illegal explosives or other similar products against public places. The convention also highlighted the urgent need to enhance international cooperation between states to prevent acts of terrorism.
- International Convention for the Suppression of the Financing of Terrorism, 1999: the convention places a responsibility on the state parties to counter and curb financing relating to terrorists in any form.
- International Convention for the Suppression of Acts of Nuclear Terrorism, 2005: the convention is concerned with the wide range of acts concerning nuclear power and nuclear reactors. The convention places a responsibility to either extradite the offender or prosecute them and to encourage the states to cooperate for the prevention of terrorist activities.
How terrorism affects the International Criminal Law
Terrorism is not only an act of violation of human rights including the right to life and the right to have a safe environment, but also terrorism violates the peace and security of the nation and results in infringement of the sovereignty of the nation.
Terrorism has adverse effects on the governance of a country, human rights, and the rule of law or the law of the land. Terrorism violates the rule of law, and especially international criminal law, by not only violating its international legal obligations of not to practice terrorism but also shake the foundations of the country which is governed by rule of law. Terrorism also weakens the faith of people in law, when terrorist attacks are committed.
What are the impacts of war on terror on International Criminal Law
The war on terror was primarily initiated by the U.S. to deal with those who were responsible for the 9/11 attacks in New York, and this war eventually led to numerous military deployed in Afghanistan, and other neighboring countries, including Pakistan, where the U.S. Navy seals traced the al-Qaeda leader and killed him in an encounter during the raid. This violates the terms of international criminal law which should have prosecuted Osama Bin Laden.
According to an article, the U.S. war on terror kills nearly 500,000 in Afghanistan, Iraq, Pakistan including U.S. and allied troops, civilians in the war zones, local military and police forces, as well as militants, who have died from war violence.
The war on terrorism is not only arbitrary but also is responsible for the lives of individuals who should otherwise have been prosecuted by the established international criminal law.
The International Criminal Court (ICC) began operating in the year 2002, and Afghanistan has been an ICC member country since May 1, 2003, yet the first request of investigating the crimes against humanity and war crimes came in limelight in the year 2017. According to the ICC prosecutor Fatou Bensouda, the war crimes and crimes against humanity have been committed by the Taliban and other armed groups, even before the period when Afghanistan joined the ICC.
This reflects how instead of considering international criminal law, the U.S. has arbitrarily practiced its jurisdictions to tackle terrorism, instead of ICC.
How International Criminal Law can tackle terrorism
At the international level, the rights and obligations of a State under international law are superior to any rights or duties that may exist under national law. International law is applied in national courts as well as in international courts and informs the development and interpretation of national laws and practices. It is, therefore, crucial to have at least a basic understanding of international law to apply fully the legal framework relevant to counter-terrorism.
No trust in the government, liberal democratic and judicial mechanism, and fair laws play a significant role in promoting terrorism and therefore, the international criminal law can restore this trust amongst people.
In cases where a nation is not willing to not able to enforce International Criminal Law in its domestic legal mechanism, most of the states have bestowed an adjudicative power to the International Criminal Court to fill that gap. However when a state is not able to enforce counterterrorism legislation, no international legal institute can fill that gap, therefore the national counterterrorism laws are associated with national sovereignty and it is predicted that the future of international criminal law will primarily be driven by domestic laws.
The international laws are yet to enact a universal definition of terrorism and are yet to establish a codified law to curb the acts of terrorism at the international level which shall be applicable and adopted by all the states altogether.
Rule of law
Just like terrorism, there is no certain established definition of rule of law, however, according to Black’s Law Dictionary rule of law refers to a legal principle of general application sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. The basic concept of rule of law is that law is the ultimate guardian of the land, and no one is above the law, not even the lawmakers, kings, and rulers.
Considering international criminal law as a settled rule of law, the firmly established legal jurisprudence under international criminal law can effectively restore the efficiency and impact of rule of law, leading to peace, and prosperity across the areas of terrorism.
The rule of law is not only the law of the land, but also it safeguards basic human rights, and since terrorism is a direct attack on human rights, the rule of law is its counter-part that can curb terrorism, by not only establishing a settled procedure across the areas of conflict but also eliminates the chances of terrorism.
The United Nations in its report has argued that responses to violent extremism that respect and protect human rights are more effective and sustainable, however, all the anti-terror activities of states tend to violate human rights in every aspect possible, including the right to life, and personal security. To tackle terrorism numerous campaigns have taken place which has also resulted in a loss of civilian lives and there is evidence which reflects the abuse of human rights and freedom.
To protect innocent lives, and to eliminate terrorism, the armed forces and the concerned government must adapt to new approaches which not only address terrorism but also safeguard the lives of militants residing or found in war lands. A new approach is also necessary for armed forces which respect the value of human rights.
The promotion of human rights will not only prevent any loss to human lives but also it will promote the rule of law, especially international criminal law. International criminal law is primarily responsible for prosecuting the terrorists, but due to the absence of its forces, the task of handing over the terrorists should be done by the armed forces of respective states.
According to Black’s Law Dictionary, a treaty refers to a “compact made between two or more independent nations with a view to the public welfare. A treaty is not only a law but also a contract between two nations and must, if possible, be so construed as to give full force and effect to all its parts.”
The treaties concerning the suppression of terrorism have a history long before the war on terror was declared however the treaties not only lack the enforceability but also the jurisdictions which can eliminate acts of terrorism. Even certain treaties have empowered jurisdictions to the International Court of Justice yet still nations avoid such procedures in cases of counterterrorism treaties.
The treaties under International law can certainly eliminate the acts of terrorism but only in cases where the ICC prosecutes the individuals who are alleged to have committed terrorist acts. The treaties are an ideal piece of legislation that can also bestow a codified law and the procedure associated with anti-terrorism, but it can only be achieved in cases when the treaties are multilateral and binding upon the nations to follow its terms.
International Criminal law has made significant progress in the field of countering terrorism and terrorism financing with the assistance of international treaties, statutes, and documents, however, it has been noted that international laws certainly suffer from a lack of jurisdiction, financial assistance, enforcement team, less awareness, etc. and therefore, the international law is suffering at such a great level that very few people have been tried at ICC over last 2 decades. The nations who have not accepted the jurisdictions of ICC are one of the reasons why international criminal law not only lacks jurisdictions but also the non-prosecution of those responsible for terrorism, therefore, nations must adapt to the jurisdictions of ICC.
In most, terrorism-related cases the prosecution must be done by national courts because bringing all the terrorism-related matters to the ICC will overburden the court, and the national courts must be well competent to try individuals responsible for terrorism-related activities, however large scale terror activities like the 9/11 attacks and the ISIS acts shall only be tried by the international courts due to the gravity of the offences.
After scrutiny of the situation of war on terror, it can be concluded that war on terror has not only dominated the legal mechanism laid down by international criminal law but also the practice of killing terrorists is arbitrary, and therefore, there is an urgent need to cease the war on terror and instead nations must rely on the workings of international criminal court to prosecute the individuals responsible for the acts of terrorism.
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