Rethinking ICC's Jurisdiction Over Terrorism In Rome Statute: An Essay.

Jurisdiction of ICC over Terrorism: Rethinking of the Inclusion of Terrorism in the Rome Statute of ICC”

Role of International Criminal Court

Terrorism as an international crime

The reasons for non-inclusion of terrorism when Rome Statute was drafted

The obstacles in the way of including terrorism in Rome statute

Possible ways to include terrorism in Rome Statute

1. To identify and critically evaluate the reasons of non-inclusion of terrorism in Rome Statute.
2. To identify the extent of need of Jurisdiction of International Criminal Court over terrorism.
3. To suggest appropriate ways to include terrorism in Rome Statute.
4. What were the arguments for rejecting ICC’s jurisdiction over terrorism when Rome Statute was drafted?
5. Whether the arguments for rejecting inclusion of terrorism in Rome Statute are still relevant?
6. How terrorism can be included in Rome Statute?

Role of International Criminal Court

The research has identified that while terrorism is different from the crimes against humanity. It is found that the elements and severity of the crimes against humanity and terrorism are majorly different. However, at the same time there are many acts executed under the terrorism that can be subject to consideration under the defined crimes against humanity.

The most prominent and severe element of terrorism is the violence. It is argued by the researchers that the violence caused by terrorism is not only severe but also detrimental to the society. However, before the elements of terrorism are compared with the crimes against humanity, it becomes essential that the comprehensive understanding of the terrorism elements are gained.

It is found that the violence under terrorism is an action that causes not only physical but also psychological and emotional trauma. While the elements of crimes against humanity are defined and distinguished by the categories and different types of crimes, the elements and severity of the terrorism lies in a broader understanding. This is considered as the violence in terrorism takes on a border form wherein wide range of actions are performed by terrorists to instil fear for future attacks among the people.

According to the research, component of the fear is the a critical and second most severe element which creates a sense of anxiety for the citizens and population that is based on the threats that can emerge in the near future. The fear functions as a tool to create a tool that can maintain constant psychological threat among the national citizens to experience a violent incident of terrorism.

Third element of the terrorism is a broad audience. While this element does not indicate the type of violence or crime being caused, this element indicates high severity of the crimes. It can be considered since the broad audience element indicates that each crime that takes place affects large group of audience which results in greater destruction and loss of life.  

The elements of terrorism are contrasting from the elements of crime against humanity as established by ICC. It has been suggested by the researchers that purposiveness is an element of terrorism that makes the decision makers within terrorist groups to be mindful of not only the goals but also the actions and impact that will materialize on the target audience. Hence, the actions of terrorism are not caused by accident but they are highly planned and oriented to cause greater damage.

Terrorism as an international crime

The political power is considered as fifth element of terrorism as per the wide range of authors as the terrorist attacks are aimed to influence the decisions of the key political bodies and change in power. Similarly, the crime against civilians is another element of terrorism wherein the people that are targeted are civilians. Hence, the severity of the crimes committed by terrorism are highest since the armed terrorist forces exert power on the unnamed civilians to inflict both fear and violence.

The last but not the least element of terrorism is instrumental. The focus of the instrumental element indicates that the terrorism focuses not only on the immediate result of the crimes but also to achieve a larger impact of the actions commenced. This indicates that the crimes undertaken by terrorist are often formed in a strategic manner that one follows another to magnify the impact of each impact that could have been achieved individually. Therefore, a cumulative impact of the multiple attacks are achieved by undertaking both larger level and smaller scale attacks over civilians.

Comparison of the elements and severity of terrorism with the elements and severity of crimes against humanity has indicated that the terrorism takes place in a broader context that not only consist of the elements present in the crimes against humanity but also surpasses the elements of crimes against humanity identified by ICC.

As highlighted by the ICC, there are 16 elements and severity of the crimes against humanity that are considered to be seriously offensive. First element of murder is regarded as highly severe. However, it is to consider that the terrorism often undertaken an organized effort wherein the planning to murder mass people is undertaken. Hence, it can be considered that while murder is an element of crimes against humanity, it is commonly committed during terrorism. The second element of extermination indicates the above asserted instance wherein the terrorist groups directly kills a group of people. Such actions comprises of not only murder but also assassinations and massacre.

Enslavement is the third element of crimes against humanity. Enslavement can be considered wherein a single or more individuals are captured for subjugation by the groups. Terrorism groups exploits the low economic areas where the cost of living is rising by disenfranchising their children and dedicating them to the cause and goals of the terrorism. Hence, while the elements of terrorism does not clearly highlight enslavement, the children are recruited and supressed for enslavement towards fulfilling the goals of the terrorist group. Literature has indicated that the enslavement in terrorist does not take a literal form wherein the individual is chained but it psychological enslavement takes place where the resources and freedom are provided to the children and individuals to perform actions that are limited to achieving the terrorism goals.

Reasons for non-inclusion of terrorism when Rome Statute was drafted

Comparison of the forcible transfer of population as an element of crime against humanity and imprisonment with the elements of terrorism identifies to correlate as the individuals that are found to be against the terrorist groups by their key leaders are subject to torture, imprisonment or murder.

While majority of the terrorist attacks are remembered by the mass media and people in the form of the major incidents consisting of bombing. Less severe terrorist attacks have also taken place in the past wherein large group of people were subject to torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and sexual violence along with the disappearance of people. It is found that the persecution and apartheid are prevalent within terrorism when a community is subject to be under a terrorist attack by large number of individuals.

It has been identified from the critical comparison between the elements and severity of crimes against humanity and terrorism that many actions that are undertaken by terrorists are such that are considered by the elements of crimes against humanity. Range of 16 elements of the crimes against humanity were identified in the comparison above which indicates that these actions can be either part of a systematic or widespread attack against any group of civilians with the information of attack.

Therefore, terrorism can be prosecuted under the crimes against humanity by ICC. This can be considered as the actions performed by the terrorists as per article 7 such as murder can not only by proven given that mass murder is the most common occurrence but also the intention behind mass murder can be established since the elements of terrorism are to create violence to promote fear. Hence, terrorism actions that meets any of the elements established in the article 7 by ICC can be prosecuted. This will allow the members of the terrorist organization to be prosecuted for not only the murder as a crime against humanity but also other crimes, This has been asserted as the terrorism takes place with combination of crimes wherein murder, torture, enslavement and imprisonment are common.

The comparative analysis has indicated that the elements of crimes against humanity are commonly occurring within terrorism due to which it becomes imperative to prosecute the terrorism under crimes against humanity. This assertion can be supported by the research that terrorists plan and organize the actions to create a series of terror and fear instilling events that encompass number of crimes that are recognized under the article 7 for the crimes against humanity.

Obstacles in the way of including terrorism in Rome statute

For an example, the infamous 9/11 attack caused the mass murder to take place as a result of plane’s collision with the building. Hence, this incident indicates that while the intent of the terrorism actions are to create fear, the intention of murder and extermination of largest possible group of civilians is an underlying factor that enables the terrorists to achieve the intent of creating fear. Therefore, the prosecution of terrorism under the crimes against humanity with consideration to the purposiveness as an element of terrorism will allow the ICC to realise that in the case of terrorism, murder that takes place as a result of any actions such as plane collision are not accidental but planned to cause a single murder to an extermination of group in order to achieve the wide spread of fear. Hence, the inclusion of terrorism in crimes against humanity is critical in order to recognise terrorism as a serious international crime.

The researchers have argued that certain actions are committed by the terrorists that work individually or a part of terrorist organization which can be classified as not only the crimes against humanity but also under the war crimes. The fact that crimes committed by the members of terrorist groups are considered as part of terrorism. However, at the same time, there are many crimes that are not only part of terrorism but can also constitute as a war crime. The existing state of the definition and support for terrorism in ICC indicates that the lack of jurisdiction reduces the effectiveness of ICC to ensure justice for the crimes against humanity and war crimes committed by the members of terrorist groups. This makes it essential that each action or crime committed by the terrorist organization is viewed not only from the lens of terrorism but also from the perspective of the war crimes as per the article 8 of ICC.

The article 8 of ICC indicates that the war crimes comprises of the serious violations of the customs as well as laws that are applied in the international armed conflicts. According to the ICC, different elements of war crimes can be considered for prosecution when they are committed by an individual either on a large scale or part of the policy or planning. The elements of the war crimes as established by ICC are established across article 8 (2) (a), (b), (c), and (d).

Possible ways to include terrorism in Rome Statute

Elements of war crimes consist numerous crimes ranging from the wilful killing, torture and inhuman treatment to the biological experiments, wilful great suffering, destruction and appropriation of the property along with denial of fair trial and unlawful confinements, hostages among more. The article 8 of ICC further considers the act of enlisting a children below 15 years of age in the armed forces or their utilization within the hostility activities as a war crime

It is critical to note that the war crimes can take place during both international and non-international armed conflict. This can take place between two nations or within a region of a single nation itself. The internal disturbances within the region such as riots and sporadic violence acts are covered by the elements of war crimes present in the article 8 (2) (d).

It is found that the elements of wilful killing and torture takes place the most by the members of terrorist groups in an international armed conflict zones. The prevalence of the terrorism in the international armed conflict zones have increased in order to capture the opportunity of increasing more conflicts among two nations or governing bodies of the region. The research has identified that the terrorist groups are actively engaged in the recruitment and enlistment of the children below 15 years of age within the armed forces of the terrorist organizations to advance their objectives along with using the children into armed hostile environments.

The research has highlighted that the terrorism often uses the children from the low economic households in light of providing them with the education and negligible compensation to the parents of the household for sending their children with them. The terrorist organizations employ the children not only for the purpose of developing them into leaders that can control and direct the armed forces of terrorist group in the future but also actively uses them in the regional as well as international armed conflict zones to promote the agenda of particular terrorist organization.

According to the article 8 (2) (b) of ICC, attacking civilians and attacking the civilian objects during the armed conflict is considered as a war crime. However, the terrorists are found to target the civilians primarily during the internal and international armed conflicts as a method to increase the fear as well as to cause more damage to the parties involved in the conflict by blaming the authorities for the loss of civilian’s life. This practice is common within the terrorism in order to showcase the internal government as a perpetrator through media wherein the actual actions are undertaken by the terrorists. This indicates the manner in which members of terrorist groups are engaged in committing war crimes and being immune from it due to the categorisation of terrorism.

Comparison of elements and severity of Crimes against Humanity and Terrorism

The article 8 further indicates that is to a war crime to attack protected objects, denying accommodation and destruction of the enemy’s properties, executing people without the trial process and inflicting cruel treatment. The research has found that the practices of the terrorists in the armed conflict zone is consistent with the wide range of elements defined by ICC for the war crime. Hence, this indicates that the war crimes that are considered for prosecution are commonly committed by the members of terrorists as well but they are not prosecuted due to the lack of jurisdiction of ICC on terrorism.

It is found that the elements of terrorism such as violence and fear are used as tools to instil terror with the use of several crimes and techniques of committing the crimes that increases the severity of the actions. Apart from the murder, cruel treatment, attacking civilians and their properties during the armed conflicts, the members of terrorist organizations further commits pillage in order to secure the supplies, armour and funds required to both maintain and advance their terrorist operations during and after the armed conflict. Not only the financial institutions but also the local stores and shops containing the essential items for the survival are robbed the most by the terrorists with the use of violence and heavy artillery.

The research has further surfaced that the sexual violence, enforced prostitution, rape and sexual slavery along with the enforced sterilisation is used by the terrorist organizations as a tactic of terrorism and to advance the conflicts in the zones that are already under armed conflicts. The terrorists have developed the strategies to undertake mass rapes committed by the parties involved within the conflict along with the other offensive crimes such as killing, pillage and forced displacement. The violence committed by the terrorist groups are based on the selective targeting. The targets are often selected from the opposing religious, ethnic, and political groups. While, the sexual violence is committed during the house searches, checkpoints and operations that take place in residential areas. This allows the terrorist groups to not incentivise the recruitment but also terrorise the populations along with displacing the civilians from their homes as well as forcing the religion conversion through marriage in order to achieve the objectives of the terrorist organization. The sexual violence is further used as a strategy by terrorists wherein a rape of daughter is used by the terrorists to capture the perceived opponents or the member of authorities.

It is to consider that the terrorism should be considered as a new element to be added within the article 8 highlighting the war crime. Terrorism is required to be prosecuted as a war crime in order to not only reduce the prevalence of the incidents although it will take constant and continuously improving efforts of covering all actions committed by the terrorists but also the inclusion will allow the victims subject to the highly intense and severe crimes to be provided with an outlet for justice.

It is to consider that while ICC provides justice to the victims of the war crime that were undertaken by the military of the governments, the victims are not provided with neither any governmental support nor justice from the government or ICC for the war crimes that are undertaken by the terrorists during the armed conflicts. Considering the extensive but non-exhaustive list of war crimes that are identified by the ICC, it becomes imperative that the terrorism is prosecuted under the war crime. The crimes committed by the individual terrorists or the members of the terrorist groups are required by the recognized as war crimes upon match of the crime with the elements of war crime in order to ensure that the perpetrator does not remain unpunished.

Considering that terrorist organizations have realised the opportunities to spread the terror posed by the armed conflicts and making mass murder, torture, pillaging and sexual violence as the tactics of terrorism for the advancement of the conflicts makes it imperative that the terrorists are prosecuted similarly to personnel from the military that are subject to have committed war crime. This will further result in placing a control on the wide spread and widely used strategies and tactics of terrorism to promote conflict by causing physical and sexual violence over the entire group of civilians within the armed conflict zones. Furthermore, this will provide ICC with the ability of ensuring that the punishment of the war crimes are not limited to only the military and government agents that commit war crimes but also the individual terrorists and members from the terrorist groups are also prosecuted in order to provide justice to the affected victims since the war crimes also included acts of aggression. This indicates that terrorism is already a part of the several crimes that exist under the ICC ranging from the crimes against humanity and crime of aggression to the war crimes.

It is to consider that the prosecution of terrorism within the international criminal court will bring many advantages and benefits. ICC provides with the capable court system as compared to the legal systems of certain nations. It is to consider that the ICC will be able to ensure highest standards of the processes and rights of the terrorist as an individual during the proceedings. The trials and hearing of the cases pertaining to crimes committed by terrorists will be fair in nature as the ICC provides a chance for the victims to participate in the proceedings. Hence, the court forum provided by the ICC will be not only neutral but also impartial which will result in the most effective and justified decisions.

The increase in the scope of ICC’s jurisdiction of terrorism will allow the organization to cover the terrorist group members that are strategically placed in the powerful position of the national institutions. This is essential to be considered as the prospects of prosecuting the individual holding a strong political position in the formal institution of the nation are not present. Hence, the ICC will be able to prosecute the member of the terrorist organizations that hold position in the national government of any country as well. Furthermore, the expansion of the ICC’s jurisdiction over terrorism will allow ICC to utilize the measure of counter-terrorism present in the article 25 of Rome Statute for undertake new practices. The article 25 will provide ICC with the ability of exercising the jurisdiction not only on the primary perpetrator but also on the accomplices of the individual with respect to the crime committed. This provision is important to combat terrorism on the global scale since majority of the terrorism actions are undertaken through the suicide attacks. The suicide attacks takes place where the perpetrator has caused a crime with the knowledge of dying upon executing certain actions which causes loss of large group of civilians similarly to 9/11.

In the cases of suicide attacks, the ICC will be able to prosecute the individuals that aided incited, abetted and facilitated the perpetrator to undertake the action. Hence, the wide range of accomplices including the overall network of the terrorist organization can be prosecuted. It is found that the consideration of the terrorism within the jurisdiction will enable ICC to strengthen the domestic enforcement for the measures of counter-terrorism. This can be considered since the ICC was able to effectively control the crimes that were part of its jurisdiction through the development of strong domestic initiatives. Apart from this, other benefits are also present with the prosecution of terrorism by ICC. It will allow this body to develop a standard for the prosecution of the terrorists and it will enable establishing both legal predictability and generation of the cohesiveness.

It is to consider that the state of extradition will be improved with the consideration of terrorism by the ICC. This can be considered as the states that does not function effectively on the bilateral and multilateral basis, the higher expectations for cooperation and higher safeguards against rights being abused will enforce the national state to comply and cooperate with ICC. This will enforce the countries that currently stall or refuse the extradition of the terrorist suspect will be required to extradite the terrorist in front of the ICC. Hence, it is to consider that the bilateral cooperation by the national states will increase in order to avoid being considered as either unable or unwilling to extradite the terrorist by the mass media or other governments. Moreover, this will ensure that the not only the terrorism is considered a serious crime at the international level but also it will enable condemning the terrorism altogether within the international community.

The existing inefficiencies and lack of terrorism’s inclusion in the defined crimes as a problem will be addressed on the global level and the jurisdiction of ICC will improve the global condemnation of the terrorism and terrorist’s actions in order to reduce the prevalence as well as lower the instances of terrorism across the globe for the political change.

It is to consider that the efforts of combating terrorism will be improved with the ICC’s jurisdiction over terrorism. This can be considered as the impartial court is found to be the strong link between the global objective of peace and the need for prosecution. This will allow the terrorism to be combated through the means of international court instead of the more forceful measures that are currently used.

This indicates that the jurisdiction of ICC will make it imperative that member states cooperate and expends resources in tracking and bringing the terrorist to the ICC. While this will still require the member state to apprehend the perpetrators, it will ensure that the apprehended perpetrators are not subject to any inhumane measures and instead receives the rights similarly to a prisoner. However, the ICC will ensure that a lawful trial is organized with the inclusion of the victims from the crime for which the perpetrators are prosecuted and fair punishment is given to them on the basis of the international articles ranging from elements of crimes against humanity to the war crimes.

While, ICC does not have its own and unique police force, the need for cooperation by the state members will require the countries to utilize their own military and police force to find the perpetrators that are responsible behind the terrorist action and presenting them to the ICC. Therefore, it will ensure that the countries do not provide any concessions or relief to the members of the terrorist groups engaged in any crime recognized by ICC even when the members of terrorist groups are present in the government of the country. Hence, inclusion of terrorism by ICC will improve the transparency as well as accountability of the nations on matters of terrorism.

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