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  This module is a resource for lecturers  

 

Treaty-based crimes of terrorism - universal counter terrorism instruments

 

Despite being regarded by the Security Council as a threat to international peace and security, for the most part acts of international terrorism do not fall into the category of "core international" crimes such as genocide, war crimes and crimes against humanity, though occasionally they may do so as discussed later in this Module. That said, terrorist activity does fall into the category of constituting "a grave matter of international concern ... [which] for some valid reason cannot be left with the exclusive jurisdiction" of the local state ( Hostages case, 1953, p. 636). This is attributable to its generally transnational nature whereby terrorist activities, their associated threats and consequences are seldom confined to one domestic jurisdiction, but instead are generally trans-boundary in nature.

Normally, terrorist crimes are treaty-based crimes in one of the 19 universal counter terrorism instruments. Additional national offences may exist too, such as incitement to terrorism, which are not the focus here (see Module 13) These international instruments, together with a number of important Security Council resolutions relating to terrorism (for example 1267 (1999), 1373 (2001) and 1540 (2004)) discussed in Module 3 make up what UNODC commonly refers to as the universal legal regime against terrorism. These instruments also work in tandem with a State's other relevant and existing legal obligations, especially those of international human rights law.

 

Approach of universal counter terrorism instruments

 

Mechanics of treaty negotiation and adoption

In terms of the mechanics, since 1994, the General Assembly has been particularly involved in the development of universal counter terrorism instruments - traditionally referred to as "sectoral" conventions - following its important and often cited Declaration on measures to eliminate international terrorism (resolution 49/60), normally re-adopted on an annual basis ever since. In 1996, as a supplement to its annual Declaration (resolution 51/210) it established an Ad Hoc Committee, supplemented by a working group, to develop additional treaty texts, which has facilitated the negotiation and adoption of universal instruments since that date, such as the International Convention for the Suppression of Terrorist Bombings 1997, as well as the ongoing discussions and negotiations regarding the development of a Comprehensive Convention to provide a global approach to international cooperation regarding international terrorism.

Each of the 19 universal legal instruments has been developed under the auspices of the United Nations and its specialized agencies, in particular the International Civil Aviation Organization, the International Maritime Organization and the International Atomic Energy Agency and are open to participation by all United Nations Member States. They are based on a condemnation of international terrorism as endangering international security and world peace. The introduction of a number of these treaties has been ad hoc in the sense that they were negotiated and adopted in response to specific terrorist incidents, such as ship and aircraft hijackings during the 1960s and 1970s, or to the changing nature of terrorism, such as terrorist financing or the potential use of Weapons of Mass Destruction since the 1990s.

Universal instruments against terrorism

Existing universal instruments provide for the following terrorist acts:

  • Acts of aircraft hijacking
  • Acts of aviation sabotage
  • Acts of violence at airports
  • Acts against the safety of maritime navigation
  • Acts against the safety of fixed platforms located on the continental shelf
  • Crime against internationally protected persons (such as the kidnapping of diplomats)
  • Acts of unlawful taking and possession of nuclear material
  • Acts of hostage-taking
  • Acts of terrorist bombings
  • Acts of funding of the commission of terrorist acts and terrorist organizations
  • The use of an aircraft as a weapon.
 

Substantive content approach

These universal instruments create obligations for States parties to adopt substantive criminal and procedural law measures to counter various acts of terrorism, as well as administrative measures in some cases to combat the financing of terrorism. Their overarching goal is to ensure that criminal justice practitioners are equipped with effective mechanisms lawfully to prevent and punish acts of terrorism. These measures are designed to have both a preventive and a dissuasive impact on terrorism. The dissuasive aspect of these international instruments is based in part on an attempt to harmonize the criminal legislation of States and to strengthen law enforcement and criminal justice cooperation. In parallel, this has a preventive objective in that effective criminalization of terrorist behaviour by all States is meant to eliminate safe havens for perpetrators of terrorist crimes and to facilitate international cooperation among State agencies involved in the fight against terrorism.

In some instances, the universal instruments expressly require compliance with various aspects of human rights law. For example, the 1999 International Convention for the Suppression of the Financing of Terrorism includes several such requirements, in addition specifically to article 21, which makes it clear that the Convention does not affect other rights, obligations and responsibilities of States under international law. Similarly, see article 11 of the 2010 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (Beijing Convention 2010) guaranteeing "fair treatment" in accordance with human rights law.

Normally, an international instrument, such as a treaty, defines all or most of its key terms at the outset. In the absence of a universally agreed definition of terrorism, however, the universal instruments do not include definitions of terrorist offences in general as crimes under international law. They simply create an obligation for States parties to criminalize the offences in question under their domestic law (i.e., both the material and mental elements of crime) to exercise jurisdiction over offenders under prescribed conditions and to provide for international cooperation mechanisms that enable States parties either to prosecute or to extradite the alleged offender. That said, some of the more recent conventions, notably the 1997 Suppression of Terrorist Bombings (article 5) and the 2005 Convention for the Suppression of Acts of Nuclear Terrorism (article 6), make reference to the mens rea element, which makes terrorism distinctive, namely acts "intended or calculated to provoke a state of terror in the general public or in a group of persons or particular persons".

As can be seen from the above list of criminalized activities, the international instruments anticipate most of the currently foreseeable forms of terrorist activities. Somewhat missing, however, is a dedicated convention on cyber terrorism. (See e.g. Fidler, 2016). Any extended modes of criminal liability (commonly referred to in terms of inchoate, ancillary, or preparatory offences), such as attempt, conspiracies, aiding and abetting terrorist acts, generally are legislated for at the domestic level in accordance respectively with the requirements of different common law and continental/civil law systems. In drafting these extended criminal acts, it is important that States ensure that they are sufficiently proximate to, or that a causal connection exists with, actual or eventual commission of terrorism, to ensure that local laws are not misused to encompass non-terrorist activities. The same is true of other types of offences, such as those which are speech-related (e.g., incitement, advocacy or glorification or terrorism) in order to safeguard fundamental freedoms such as those of association and expression (see Module 13).

Criminalization requirements

A key component of all (except two) of the universal counter-terrorism instruments is the obligation for States parties to introduce certain criminal offences into their national legislation.

The offence creating provisions of the treaties contain a number of common features, which can be summarized as follows:

  • Each criminal conduct is defined according to its objective and material elements, actus reus (e.g. causing destruction, placing explosives, seizing aircrafts or ships, etc.). In some cases, a further constituent element of a crime is the creation of a danger, regardless of whether the causation of such danger was intentional (e.g., not all acts of violence committed onboard an aircraft are covered by the 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; it only relates to those which are likely to endanger safety).
  • The subjective and intentional element, mens rea, included within the offence-creating provisions requires that the offence be committed "willfully or intentionally". This "general" intention is often accompanied by a "special" one, which is the additional intention of the perpetrator to cause death or serious bodily injuries, for example.
  • All treaties which contain criminalization requirements oblige States parties to establish such offences, including such offences as attempt and complicity (aiding and abetting) offences.
  • The 1997 International Convention for the Suppression of Terrorist Bombings and subsequent instruments contain additional criminalization requirements with regard to contributing to the commission of the offences by a group of persons acting with a common purpose.
  • No convention establishes applicable penalties, apart from requiring that appropriate penalties, which take into account the grave nature of the offences, are applied.
  • The 1999 International Convention for the Suppression of the Financing of Terrorism and the   2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation require States parties to establish the liability of legal entities located in their territory or organized under their laws when a person responsible for the management or control of one of those entities has, in that capacity, committed an offence as set forth in the two above-mentioned instruments. Such liability is without prejudice to that of the individuals who have committed the offences.
  • In addition, under the two above-mentioned instruments, States can choose whether the responsibility of legal entities should be considered as criminal, civil or administrative. Nevertheless, in the absence of national legislation on the responsibility of legal entities, and if a State wishes this responsibility to be criminal, special provision for such responsibility should be made. Moreover, providing for civil or administrative sanctions may require the modification of other laws, in particular company or banking laws.
 

Overview of universal counter terrorism instruments

The following is a brief overview of the key issues covered by each Convention and Protocol.

Since the adoption of Security Council Resolution 1373 (2001), which calls on States to become parties to these instruments, the rate of their ratification has increased markedly. There is no longer any UN Member State that has neither signed nor become a party to at least one of the universal instruments.

Universal instruments against terrorism at a glance

 

1963 Convention on Offences and Certain Other Acts Committed On Board Aircraft

(adopted 14 September 1963, entered into force 4 December 1969).

  • Applies to acts affecting in-flight safety.
  • Authorizes the aircraft commander to impose reasonable measures, including restraint, on any person he or she has reason to believe has committed or is about to commit such an act, where necessary to protect the safety of the aircraft.
  • Requires contracting States to take custody of offenders and to return control of the aircraft to the lawful commander.
 

1970 Convention for the Suppression of Unlawful Seizure of Aircraft

(adopted 16 December 1970, entered into force 14 October 1971).

  • Makes it an offence for any person on board an aircraft in flight to "unlawfully, by force or threat thereof, or any other form of intimidation, [to] seize or exercise control of that aircraft" or to attempt to do so.
  • Requires parties to the Convention to make hijackings punishable by "severe penalties".
  • Requires parties that have custody of offenders to either extradite the offender or submit the case for prosecution.
  • Requires parties to assist each other in connection with criminal proceedings brought under the Convention.
 

1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation

(adopted 23 September 1971, entered into force 26 January 1973).

  • Makes it an offence for any person unlawfully and intentionally to perform an act of violence against a person on board an aircraft in flight, if that act is likely to endanger the safety of the aircraft; to place an explosive device on an aircraft; to attempt such acts; or to be an accomplice of a person who performs or attempts to perform such acts.
  • Requires parties to the Convention to make offences punishable by "severe penalties".
  • Requires parties that have custody of offenders to either extradite the offender or submit the case for prosecution.
 

1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents

(adopted 14 December 1973, entered into force 20 February 1977).

  • Defines an "internationally protected person" as a Head of State, Minister for Foreign Affairs, representative or official of a State or international organization who is entitled to special protection in a foreign State, and his or her family.Requires parties to criminalize and make punishable "by appropriate penalties which take into account their grave nature" the intentional murder, kidnapping or other attack upon the person or liberty of an internationally protected person, a violent attack upon the official premises, the private accommodations or the means of transport of such person; a threat or attempt to commit such an attack; and an act "constituting participation as an accomplice".
 

1979 International Convention against the Taking of Hostages

(adopted 17 December 1979, entered into force 3 June 1983).

  • Provides that "any person who seizes or detains and threatens to kill, to injure or to continue to detain another person in order to compel a third party, namely, a State, an international inter- governmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages within the meaning of this Convention".
 

1980 Convention on the Physical Protection of Nuclear Material

(adopted 26 October 1979, entered into force 8 February 1987).

  • Criminalizes the unlawful possession, use, transfer or theft of nuclear material and threats to use nuclear material to cause death, serious injury or substantial property damage.
  • Amendments to the Convention on the Physical Protection of Nuclear Material add the following: Make it legally binding for States parties to protect nuclear facilities and material in peaceful domestic use, storage and transport; Provides for expanded cooperation between and among States regarding rapid measures to locate and recover stolen or smuggled nuclear material, mitigate any radiological consequences or sabotage and prevent and combat related offences.
 

1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation

(adopted 24 February 1988, entered into force 6 August 1989).

  • Extends the provisions of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation to encompass terrorist acts at airports serving international civil aviation.
 

1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation

(adopted 10 March 1988, entered into force 1 March 1992).

  • Establishes a legal regime applicable to acts against the safety of international maritime navigation that is similar to the regimes established for international aviation.
  • Makes it an offence for a person unlawfully and intentionally to seize or exercise control over a ship by force, threat or intimidation; to perform an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of the ship; to place a destructive device or substance aboard a ship; or commit other acts against the safety of ships.
  • The Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation criminalizes the use of a ship to further an act of terrorism; the transport of various materials with the knowledge or intent that they will be used to cause death or serious injury or damage; the transport on board a ship of persons who have committed an act of terrorism.
 

1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf

(adopted 10 March 1988, entered into force 1 March 1992).

  • Establishes a legal regime applicable to acts against fixed platforms on the continental shelf that is similar to the regimes established against international aviation.
  • The Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf adapted the changes to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation to the context of fixed platforms located on the continental shelf.
 

1991 Convention on the Marking of Plastic Explosives for the Purpose of Detection

(adopted 1 March 1991, entered into force 21 June 1998).

  • Designed to control and limit the use of unmarked and undetectable plastic explosives (negotiated subsequent to the 1988 bombing of Pan Am flight 103).
  • Parties are obligated to ensure effective control, in their respective territories, over "unmarked plastic explosives".
 

1997 International Convention for the Suppression of Terrorist Bombings

(adopted 15 December 1997, entered into force 23 May 2001).

  • Creates a regime of expanded jurisdiction over the unlawful and intentional use of explosives and other lethal devices in, into or against various defined public places with intent to kill or cause serious bodily injury, or with intent to cause extensive destruction of the public place.
 

1999 International Convention for the Suppression of the Financing of Terrorism

(adopted 9 December 1999, entered into force 10 April 2002).

  • Requires parties to take steps to prevent and counteract the direct and indirect financing of terrorists.
  • Commits States to hold those who finance terrorism criminally, civilly or administratively liable for such acts.
  • Provides for the identification, freezing and seizure of funds allocated for terrorist activities, as well as for the sharing of the forfeited funds with other States on a case-by-case basis. Bank secrecy is no longer adequate justification for refusing to cooperate.
 

Draft Comprehensive Convention on International Terrorism

Unlike some other international legal regimes, including those governing human rights and armed conflict, no foundational treaty or comprehensive legal regime currently exists for terrorism and counter-terrorism. Though the current multi-faceted legal regime outlined above has enabled States to respond to existing forms of terrorism, many believe that it would be further strengthened through the adoption of a multilateral, universally accepted treaty. Certainly, reaching universal agreement on how to define terrorism, which would form an integral part of the final text adopted, could assist in ensuring increased international cohesion, consistency and certainty in approach, with associated rule of law benefits. As the United Nations Secretary-General's High-Level Panel observed in 2004:

The norms governing the use of force by non-State actors have not kept pace with those pertaining to States … The United Nations must achieve the same degree of normative strength concerning non-State use of force as it has concerning State use of force. Lack of agreement on a clear and well-known definition undermines the normative and moral stance against terrorism and has stained the United Nations image. (General Assembly report A/59/565, para. 159).

An early attempt to agree on a universal definition of terrorism in the context of an international treaty was the 1937 Convention for the Prevention and Punishment of Terrorism, which sought to define trans-boundary terrorism as an international crime. Article 1 defined acts of terrorism as "criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public", such as attacks against public officials and the destruction of public facilities. The Convention required signatory States to enact laws making such acts extraditable offences in the event of one of their nationals committing an act of terror in a foreign country. The Convention - as well as the parallel treaty seeking to create an international court to try accused terrorists, the 1937 Convention for the Creation of an International Criminal Court - never came into effect, however, in part due to disagreements regarding the articles on extradition, which prevented its ratification.

In 2000, India informally circulated a draft treaty text for a comprehensive convention to the Ad Hoc Committee on International Terrorism (report C.6/55/L.2, Annex II). Since then, Member States have been negotiating the text of the Draft Comprehensive Convention on International Terrorism (Comprehensive Convention). This is intended to complement the existing framework of universal instruments against terrorism and would build on existing key guiding principles. These include the following:

  • The importance of the criminalization of terrorist offences, making them punishable by law and calling for the prosecution or extradition of the alleged perpetrators.
  • The need to eliminate legislation that establishes exceptions to such criminalization on political, philosophical, ideological, racial, ethnic, religious or similar grounds.
  • A strong call for Member States to take action to prevent terrorist acts.
  • An emphasis on the need for Member States to cooperate, exchange information and provide each other with the greatest measure of police and judicial assistance in the prevention, investigation and prosecution of terrorist acts.

The significance of the Draft Comprehensive Convention is also recognized by the United Nations Global Counter-Terrorism Strategy, which urges States "[t]o becom[e] parties without delay to the existing international conventions and protocols against terrorism, and imple[ment] them, and to make every effort to reach an agreement on and conclude a comprehensive convention on international terrorism." (A/RES/60/288, Annex Plan of Action, preamble, para. 2(a)).

In terms of its relationship with the existing universal instruments, the Draft Comprehensive Convention would sit like an umbrella over these other treaties, yet filling in gaps, not least in relation to defining terrorist offences, both the material and mental elements. It would not supersede the universal instruments nor render them redundant. Furthermore, some commentators suggest or envisage that the new Convention should or will prevail as lex specialis over other instruments against terrorism, including in the event of any normative or definitional conflict between them. Certainly, this could be especially beneficial in relation to a number of regional treaties, which may have more ambiguous, sometimes overly broad, definitions of terrorism with the accompanying potential to undermine rather than promote and strengthen the rule of law in those contexts. The relationship between existing universal instruments against terrorism and a comprehensive convention is likely to be less problematic since the former are relatively narrow in scope due to their focus on particular physical manifestations of terrorist activity.

This in turn has the potential to bring further clarity to national definitions of terrorism and therefore increased rule of law certainty in domestic criminal justice systems, consistent with the principle of legality as provided for in article 15 of the International Covenant on Civil and Political Rights (ICCPR), which requires that any criminal offence and its related punishment is predictable and accessible. Ambiguously worded national counter-terrorism legislation has been, and continues to be, a cause of significant concern to many, including the United Nations Human Rights Committee (CCPR/C/RUS/CO/6, para. 7 and para. 26), as well as the Special Rapporteur on promoting and protecting human rights and fundamental freedoms while countering terrorism. Some of the primary concerns are captured in the following observations which, whilst made in relation to one State, are of broader significance:

The vaguely defined crime of collaboration [with terrorist organizations] runs the risk of being extended to include behaviour that does not relate to any kind of violent activity and the vagueness of certain provisions on terrorist crimes in the … Penal Code carries with it the risk of a 'slippery slope', i.e., the gradual broadening of the notion of terrorism to acts that do not amount to, and do not have sufficient connection to, acts of serious violence against members of the general population. (General Assembly, Human Rights Council report A/HRC/10/3/Add.2, paras. 9 and 52).

In terms of drafting progress, much has been accomplished since negotiations began, with most of the Draft Convention text now having been agreed. What remains elusive, however, is reaching final agreement on a definition of terrorism due to disagreement regarding exceptions to prosecution, such as acts perpetrated during liberation wars, as expanded below. Since this represents the very cornerstone of the treaty's text and is one of its key objectives, it cannot be finalized and adopted without agreement on this. That said, consensus has been reached on a number of the key associated elements, namely that the definition should cover serious criminal acts (the main examples of which are those found in the existing universal instruments) against civilians with the aim of intimidating a population or part of it, or compelling a national government or international organization from doing or abstaining from some act; irrespective of any political, ideological or religious motive behind it. (See Interlocutory Decision, 2011, para. 85; General Assembly resolution 49/60).

Draft Comprehensive Convention text *

The most recent version of article 2 of the draft United Nations Comprehensive Convention governing the criminal acts reads as follows:

1. Any person commits an offence within the meaning of the present Convention if that person, by any means, unlawfully and intentionally, causes:  

(a) Death or serious bodily injury to any person; or

(b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or to the environment; or

(c) Damage to property, places, facilities or systems referred to in paragraph 1 (b) of the present article resulting or likely to result in major economic loss;

when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.

* United Nations, General Assembly (2005). Letter dated 3 August 2005 from the Chairman of the Sixth Committee addressed to the President of the General Assembly . 12 August. A/59/894. Appendix II Draft Comprehensive Convention against International Terrorism, p. 9.
 

Current position (as at June 2018)

Although much negotiating and drafting progress has been made, a number of significant obstacles remain, which need to be successfully overcome if the Draft Comprehensive Convention is ever to be adopted as a treaty text. The remaining primary obstacles relate to any permissible exceptions to the Convention's scope.

One remaining hurdle is how to define terrorism and terrorist offences, particularly with respect to self-determination as well as those of struggles and groups. A primary tension here has been between those States and other actors, which wish for the Draft Convention to be made comprehensive in its reach with no exceptions, even for those engaged in armed self-determination struggles; and those States and entities which do not regard such persons and groups, when engaged in what those States consider to be legitimate self-determination struggles, to be terrorists.

Another sticking point has been trying to reach agreement regarding the scope of the Convention, with respect to the activities of State armed forces when engaged in fighting non-State actors engaged in armed self-determination struggles as well as those of State armed forces. A particular concern here has been to ensure that any definition of terrorism developed for criminal justice purposes does not confuse the existing regime applicable to situations of armed conflict or other situations when international humanitarian law applies, especially since this regime has clear provisions dealing with terrorist means and methods of warfare. Issues regarding so called State sponsorship of terrorism are an unspoken, but lingering, source of contention.

In 2011, the impasse on reaching agreement on a global definition of terrorism, and therefore on the whole treaty text, due to continuing disagreement in relation to contentious issues, led to the General Assembly's Sixth Committee effectively suspending treaty negotiations until 2013 when the Ad Hoc Committee reconvened, but once again without making tangible progress towards reaching agreement, without which an international conference to finalize the text cannot be scheduled. The Ad Hoc Committee works on the basis that nothing is agreed until everything is agreed.

Since then, there have been no more working sessions of the Ad Hoc Committee (2014-2017) on the draft text, although work is continuing within the framework of a working group of the Sixth Committee of the General Assembly. In its 2016 resolution on the issue (71/151), the General Assembly once again recommended the establishment of a working group with a view to finalizing the text of the draft Comprehensive Convention, encouraging all Member States to redouble their efforts to resolve any outstanding issues. To date, agreement remains elusive.

 

Principles and mechanisms underpinning the universal counter terrorism instruments  

An important and notable feature of the universal instruments is that they are premised on common core legal principles and related mechanisms aimed at facilitating international cooperation.

Notably, these principles guide mutual legal assistance, extradition, transfer of prisoners, transfer of proceedings in criminal matters, international cooperation for the purposes of confiscation of criminal proceeds and asset recovery, etc. The related mechanisms, while essentially governed by domestic law, are supported by regional or international agreements or arrangements, including the universal instruments against terrorism, the 2000 Convention against Transnational Organized Crime and the 2003 United Nations Convention against Corruption. All of these mechanisms are evolving rapidly to keep pace with new technologies. In order for these principles and mechanisms to be effective in practice, it is important for them to be fully incorporated and implemented within national legal systems.

 

Obligation to extradite or prosecute

The principle of aut dedere, aut judicare, otherwise known as extradite or prosecute, is an obligation expressed in the universal instruments against terrorism and is implicit in Security Council Resolution 1373 (2001) (paras. 2(e) and 3(d)). (See also UNSC Resolution 1456 (2003), para. 3; 1566 (2004), para. 2). The principle expresses the common objective of States in fighting serious forms of crime and sets out the alternatives for the requested State whenever the extradition of an individual present in its territory is requested: after investigation, a State must either hand over the person concerned to the requesting State or prosecute and try the case itself (as is appropriate on the facts and evidence, and in accordance with national law and procedures). [The requested State must also comply with its own double criminality/extradition treaty obligations for which - unless there is an agreement to base extradition on a prima facie case only, such as with the European Union's arrest warrant - the requested State's investigation will need requesting State evidence, letters rogatory, etc.] A key underpinning, guiding principle here is that in determining whether or not to prosecute or extradite persons suspected of having perpetrated terrorist offences, any preliminary investigation, decisions and proceedings undertaken by the requested State must be in good faith.

The principle of "extradite or prosecute" generally requires concerned States to assert their jurisdiction, which can be done in a number of ways, such as through reliance upon: the principle of territorial jurisdiction, either ordinary or extended, notably to flag vessels and State-registered aircrafts; and the nationality principle, in particular active nationality, by establishing the nationality for purposes extending State jurisdiction to those suspected of committing the offence. There is also passive nationality, whereby the State of which the victim is a national has jurisdiction to prosecute the offender. Furthermore, some conventions allow States to create optional jurisdiction over an alleged offender who is a habitual resident of that State or if the offence involves that State's interests.

The universal instruments provide a clear legal framework for the prosecution and punishment of terrorists, although with some limitations which can also serve as safeguards. For instance, due to the existence of prosecutorial discretion as a prerogative of the State, a State may refuse a request for extradiction or competing claims to jurisdiction may exist. As the Lockerbie bombing case demonstrated in 2000 (discussed later in the Module), the system is also not immune to politicization.

There are some common challenges which can arise in practice in relation to this prosecute or extradite principle. In most cases, for instance, a State that decides to prosecute instead of extraditing will not usually have all the necessary evidence at its disposal since the crime has been committed outside its territory. This is one of the reasons why it might be almost impossible for a State to implement fully this part of the treaty obligation particularly in the absence of well-functioning channels of mutual legal assistance with other States parties. Political difficulties may arise in other circumstances, for example, the State that has seen its request for extradiction rejected on the basis of human rights grounds may not be willing to contribute (by transmitting evidence, sending witnesses, etc.) to the prosecution taking place in the rejecting State. Despite such obstacles, the aut dedere aut judicare principle forms the cornerstone of the universal instruments against terrorism, including as a key judicial mechanism for encouraging international cooperation.

Extradition

Extradition is the procedure whereby a sovereign State, referred to as the "requested State", agrees to hand over an individual to another sovereign State, referred to as the "requesting State", for prosecution or, if that person has already been tried and convicted, for enforcement of the sentence.

Under the requirement of dual criminality, extradition is possible only when the act is punishable under the law of both the requested and the requesting States. The name of the offence and the elements that make it criminal need not be precisely the same, provided that the suspect could be punished for the act in both States. For that reason, the criminalization of defined terrorist acts and their incorporation into national criminal law is a central element of the relevant universal instruments in order to facilitate such international cooperation.

As was noted above, when a person accused of having committed a terrorist offence is present in the territory of a State party and the authorities of that State party after investigation are satisfied that the circumstances so warrant, that State must, in accordance with its law, take the person into custody (if it has not already done so) or take such other measures as are necessary so as to enable any criminal or extradition proceedings to be instituted. That is to be done independently of whether the crime was committed on its territory and whether the State has received a request for provisional arrest pending a formal request for extradition. The universal instruments against terrorism do not make the extradition of the offender mandatory but define it as one possible course of action. The obligation to submit the individual to prosecution thus depends on a decision not to extradite.

Recent trends in extradition treaties have focused on relaxing the strict application of certain grounds for refusal of extradition requests. In addition, the principle of mutual recognition is increasingly perceived as a means of improving judicial cooperation between countries with different legal systems and of replacing cumbersome procedures with swift procedures that recognize the integrity of other legal systems. This can take various forms, such as bilateral agreements between States, or regionally illustrated by the European arrest warrant.

There are a number of circumstances in which extradition to a requesting State may not be possible or likely, such as when the alleged offence falls into the category of a political crime, i.e., of being perpetrated as part of a political uprising. (See e.g. In re Castioni, 1890). Difficulties can arise too where, e.g., the suspect, if convicted, could face the death penalty contrary, e.g., to the European Convention on Human Rights if the sending State is a Contracting Party, or where a significant risk exists that the person might be subjected to jus cogens prohibited treatment such as torture, or would have an unfair trial due to the risk of reliance upon evidence obtained through torture, or with the consequence that extradition would also be contrary to the principle of non-refoulement ( Case of Osman v. The United Kingdom, 1998). In some circumstances, such hurdles may be overcome, e.g., through diplomatic agreement or assurances that the person would not face the death penalty if convicted or be subjected to mistreatment such as torture (see further Module 3 and 9).

Mutual legal assistance

With the globalization of crime, which is often transnational in nature, national authorities increasingly need the assistance of authorities in other countries for the successful investigation, prosecution and punishment of wrongdoers, in particular, those who have committed international terrorist offences, which often transnational in nature. This necessity is reflected in the text and related obligations of Security Council Resolution 1373 (2001). For example, relevant evidence may exist in a number of jurisdictions. It may be too that one State is in a stronger position to prosecute terrorist suspects compared with another (e.g., due to the presence of evidence and witnesses), thereby increasing the likelihood of a successful prosecution.

To achieve that objective, States most frequently make use of bilateral and multilateral treaties on mutual legal assistance in criminal matters, in addition to existing informal cooperation mechanisms. Those instruments assist the work of criminal justice officials in several ways. For instance, they enable the authorities to obtain evidence abroad, through a procedure that is admissible under their domestic law, in order to summon witnesses, trace individuals, secure the production of documents and other evidentiary items and issue arrest warrants and subpoenas.

Offences defined in the universal instruments against terrorism may not, for the purposes of mutual legal assistance, ordinarily be regarded as political offences, as offences related to political offences or as offences inspired by political motives, although some regional anti-terror instruments continue to retain the exception. Accordingly, a request for mutual assistance based on any such offence may not be refused solely on such grounds.

 

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