Terrorism and terroristic act in the world in the light of law - dr Dominika Dróżdż - ebook

Terrorism and terroristic act in the world in the light of law ebook

Dominika Dróżdż

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Opis

The purpose of this monograph is to consider the terms “terrorism” and “terrorist act” from the point of view of mainly legal sciences. This study takes into account selected legal acts on terrorism, including the prohibition of terrorism in India, the United Kingdom, the United States and Poland. Attempts were made to define terrorism for the Statute of the International Criminal Court. The project of act of terrorism and the activities of international criminal tribunals including terrorist act were also presented. This subject ends witha proposal for the definition of terrorism.

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Dominika Dróżdż
Terrorism and terroristic act in the world in the light of law
© Copyright by Dominika Drózdż 2019 Reviewer: PhD Rama RAO, a visiting Professor in the NALSAR University (India)
ISBN 978-83-7564-580-4
My book Publishing www.mybook.pl
All Rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the permission of Publisher.

Review

The monograph Terrorism and terrorist act in the world in the light oflaw undertakes a deeper analytical study of terrorism and a terrorist act, both before domestic courts and international criminal tribunals. This study would seem a further extension of the interest of the author earlier expressed in her book Terrorism in the 21stcentury in the light of law, which I also had the opportunity to peruse.

The monograph of seven chapters begins with an introduction to the problem. I have studied its English version.

The first chapter focused on the concept of “terrorism”. The second chapter presented a historical perspective on the creation of legal acts and surveyed the legal outcomes and documents developed under the auspices of the International Association of Criminal Law, League of Nations, UN Security Council and United Nations General Assembly have also been presented in detail. Attempts have been made to introduce terrorism within one of the legal acts that was to be implemented by the United Nations General Assembly.

In addition to the above, the issue of the prohibition of terrorism in select countries, namely – India, Great Britain, Poland – was addressed in chapter II.

The third chapter dealt with the prevention of terrorism and attempts to introduce international legal controls over terrorism. In this connection, the difficulties faced in dealing with “terrorists” in some countries usually not being members of the International Criminal Court (i.e. the ICC) were also taken into account.

The author’s focus on the elements of the act of terrorism and its forms was found its rightful place in chapter IV. The next chapter took into account circumstances excluding criminal liability due to lack of unlawfulness or lack of guilt. The seventh chapter studied terrorism as it related to and unfolded before international criminal tribunals.

Each chapter ended with a short summary to assist the reader.

The monograph concludes with a summary pinpointing the most important issues with the proposal to solve them by introducing a new definition of international terrorism, which may be considered as a specific perspective and contribution of this work.

Finally, the study closes with a separate list of references along with documents that were used in the writing of this study, as an addition tot he appropriate footnotes. The layout of the study is logical and transparent.

The contribution of this monograph lies in its consideration of the most important elements of terrorism and terrorist act, not only the subjective and objective side of this crime, but also the need to include self-defense or internal disturbances outside the scope of international terrorism, just as it did for the crime of aggression in the ICC Statute. These rules would be similar to the rules in force in relation to the crimes of aggression formulated in understandings in the ICC Statute. Therefore, the theoretical possibility of introducing a crime of terrorism in the Statute of the ICC would not be a surprise, as it was used, for example, together with war crimes in the Statute of the International Criminal Court. There is also the possibility of using international terrorism in a country that wishes to apply principles preventing international terrorism.

As some one who personally introduced the draft Comprehensive Convention on International Terrorism in the UN Legal Committee couple of decades ago as well as campaigned for inclusion of international terrorism to e included in the Rome Statute during it drafting in the PREPCOM and the Rome Conference, I see the need for a realistic perspective which is contained in the current study. In a way, the thrust oft he current study is based on the conceptual orientation contained in the research significantly undertaken by Professors Indicky, Roger Clarke and Berry Kellman, which the reviewer highly appreciates.

I also agree with the author on the need to introduce this very form of crime of international terrorism in countries that wish to protect themselves against this crime.

Even as the reviewer is reading this monograph two inhuman terrorist acts have taken place- one in India and another in New Zealand. In the first case, a terrorist organization with headquarters located across borders employed a suicide terrorist to blow up a 40 member military personnel of Indian army personnel, which led to tension between two nuclear power nations of South Asia. In the second instance, there was a terrorist attack on a Muslim masque killing 50 persons praying in that mosque.

There is no doubt that terrorism is an international crime, which needs to be brought under the rule of law than by sheer use of force. No reason or cause for hatred on whatsoever ground can justify terrorism aimed at creating panic in the minds of the general public. Human rights of the public, victim of the heinous crime of terrorism, are sine qua non. Democracies are more vulnerable to this menace but it is their responsibility to ensure safety of public and make rule of law available to all.

I value the research done by the author, Dominika Dróżdż, and recommend the monograph for publication.

Professor S. Rama Rao

List of major abbreviations:

CCIT – Comprehensive Crime of Terrorism

ECHR – European Court of Human Rights

EU – European Union;

ICC – International Criminal Court

ISIL – Islamic State of Iraq and the Levant

ISIS – Islamic State of Iraq and Sham

LN – League of Nations

SC – Security Council

StMTK – Statute of the International Criminal Court; Statute of the ICC

STL – Special Tribunal for Lebanon

USA – United States of America

GA – General Assembly of the United Nations

Introduction

The content of the concept of terrorism in the 21st century differs from that which influenced the understanding of this concept several decades earlier. Terrorism, after all, is not a new phenomenon. These differences result from new opportunities, growing technology, the Internet. Nevertheless, the rules seem to be still similar. Analogies as to how to combat it can, however, be problematic. The starting point was the determination of the type of behaviour for the crime of terrorism, including the selection of their features for international, European and Polish criminal law.

The concept of terrorism has taken on legal character only recently. The phenomenon of terrorism has been noticed since the Jacobins in France. Considerations were initiated about the crime of terrorism, which also functioned in social sciences. At the beginning it was pointed out that states were actually the “guilty” ones. The use of this term was used to stigmatise or delegitimise the opponent, leaving them outside the law.

Nowadays, the term “terrorism” is also used in social or political sciences. Terrorism is supposed to be separate from crime, because terrorists would be guided by higher goals1. Ideology is not supposed to “predict” what targets will be attacked. Terrorists are addicted to the publicity of their deeds. The publicity of terrorist acts is connected with ideological justification2. Usually, terrorists want to maximise their successful attacks, which are supposed to result from ideologies that are supposed to be the reason for their actions3.

N. Melzer claims that the war on terrorism is unpredictable, has unpredictable duration and unspecified limits, and their non-states – that is, entities that are non-states parties, are not precisely specified. The author also believes that the war on terrorism cannot be qualified as an armed conflict in the understanding of international law4. You have to remember about new versions of cyber law. It concerns network terrorism, otherwise known as cyberterrorism5, that is, terrorist attacks that take place in the global network. Here, in turn, it can be difficult to identify people involved in such activities. It is necessary to take into consideration the introduction of prohibitions on sending information via the Internet, or the transmission of information about planned disasters in a state, as well as conduct preventive actions that should belong to the police. On the other hand, in response to these problems, Interpol is obliged to protect human rights at the request of the UN Security Council6.

Some countries, in turn, undertake activities that, with the use of targeted killings, are to be a fight against terrorism7. It is possible to consider the extent to which these activities are lawful, and to what extent the fight against terrorism will be recognised as legitimate activities.

The UN conventions are so far sectoral, not comprehensive. Until now, no definition that would have this nature has been created. In specific cases, national and international court proceedings were taken to give contribution and basis for creating specific definitions for specific cases. Until the present day, this definition has not been formulated. Such an attempt will be made in this study, taking into account the existence and functioning of the International Criminal Court, which should have a definition of such a crime in its Statute.

R. Clark assumed that tackling terrorism from a criminal point of view, the Statute of the International Criminal Court should also take into consideration the above-mentioned UN conventions relating to the prohibition of terrorism8. A. Cassese, in turn, proposed the creation of a court in Lebanon, which in its statute provided for terrorism, that was later taken into account during the court’s judgment.

This study is to show whether and to what extent there is a chance to create a definition of terrorism and an act of terrorism. In the considerations, normative acts, legislation of some countries and documents were used. Other fields of knowledge, such as history, sociology, and psychology are also helpful in understanding this subject.

Chapter 1The concept of ‘terrorism’

The concept of terror invoked by A. Kaplan9 and K. Indecki10 is supposed to mean to use of force by prevailing power to create fear. The modern example of the state of terror is attributed to Nazi Germany11. It can be said that this is a special way of exercising power – when the power uses terror as a method of governing12. The term ‘terrorism’ derives from the concept of ‘terror’.

However, it has not been possible to build a legal definition of this concept that would be recognised by all states. National and international attempts were made to address specific situations of defining this concept. However, there was no universal definition – there was no agreement between the countries in this matter. An attempt to define this concept will be taken in this study, taking into account the changes that have appeared in the Statute of the International Criminal Court. Concepts such as “national state” and “democracy” are concepts appropriate for the West, not for populations created for centuries by nomadic groups not based on sovereignty13.

Starting with considerations related to terrorism, one can distinguish after K. Indecki14, general definitions, partial and mixed concepts of terrorism grouped below.

Within the first group, terrorism is recognised as a kind of criminal acts serving the use of violence to achieve specific strategic goals15. General definition of A. Schmidt, evaluated highly in the literature of the subject, depicts terrorism as a method of combat, in which rare or symbolic victims are the instrumental target of violence. Such instrumental victims belonging to a group or class are the basis for their characterisation for the purposes of victimisation. By the prior use of violence or the credible threat of its use, other members of this group or class are put into a state of chronic fear (terror). The target of terror is a group or class, in which the sense of security of its members is disturbed. Victimisation of the target of violence is perceived as extranormal by the majority of observers recruited from witnesses (witnessing audiences) on the basis of their sense of threat (like period of peace) or a place (not being a battlefield) of victimisation, or contempt for the rules of combat accepted in conventional warfare. The intensity of violence places the attentive audience beyond the goal of terror. Its individual segments of such an indirect method may alternately become the main subject of manipulation. The goal of such an indirect method of struggle is both to demobilise the target of terror – to create confusion and / or submission, as well as to mobilise successive targets of attention (e.g. government) or attention [targets of attention, like public opinion, for instance] to change attitudes or behaviours, taking into account short or long-term interests using such methods of combat16.

The second method is “a structural approach to the analysis of terrorism based on partial descriptions of its varieties, specified from the point of view of different criteria and for different needs, including typological ones. The descriptions refer to political, individual, group, international, white, red, black, air, internal terrorism and many other”17.

The third method is, according to K. Indecki18, most often used in international documents. K. Indecki enumerated the frequency of occurrence of elements:

Violence, force,

Political

character,

Fear, the

emanation of terror;

Threat

;

Psychological

results and anticipated reaction;

Diversity

of victim-purpose;

Expediency, planning, regularity, organised

action;

Combat

method, strategy, tactics;

Abnormality

in breaking accepted rules, without humanitarian limitations;

Coercion;

extortion, calling submission;

Public

aspect;

Arbitrality;

impersonality, random character,

Civilians, not

involved in the fight, neutral,

Intimidation

;

Focus

on innocent victims;

Group, movement, organisation

as the perpetrator;

Symbolic

aspect, demonstration;

Unpredictable, unexpected

appearance of violence;

Secret

hidden nature;

Repeatability;

the serial or campaign nature of violence;

Crime

;

Damage

caused to third parties.

Summary:

The world is undergoing constant changes, technology develops, concepts related to terrorism are changing. Therefore, terrorism is also subject to evolution. The concept of “new terrorism” appeared19, which was introduced in 1986 by researchers from the Institute for the Study of Conflict. It meant the “network nature of the organisation”. This change leads to a departure from the classic hierarchical structure – from an unambiguous, permanent location to the non-territoriality. This departure from the hierarchy, in favour of cooperating people, led to communication with each other only through the network20.

Ideology is not supposed to „predict” what targets will be attacked. Terrorists are addicted to the publicity of their deeds. The publicity of terrorist acts is connected with ideological justification21. Typically, terrorists are required to maximize their successful attacks, which are to result from ideologies being the cause of their actions22.

Chapter 2Selected legal acts on terrorism

2.1Document from 1919

In international martial (humanitarian) law, for many years, attempts have been made to create a definition of the crime of terrorism. First efforts to describe terrorism as crimes against civilians during armed conflict23 began in 1919, after the First World War24. It has been found that one can call terrorism a crime committed during war against civilian population. However, it has not been clarified whether this is a comprehensive definition of terrorism, or is “terrorism” only part of the notion of “crime against humanity” or whether it falls within the notion of “crime against humanity”25.

2.2Document from 1926 under the auspices of the International Association of Criminal Law

In 1926, in Brussels, at a conference conducted under the auspices of the International Criminal Law Society, a definition of international terrorism was formulated, recognising that it could be any unlawful act of violating international order26.

This year in Brussels, under the auspices of the International Criminal Law Society, efforts were made to define international terrorism. It was to be an unlawful act of violating international order. This offense was to be prosecuted regardless of the place where it was committed. During subsequent conferences devoted to criminal law, it was confirmed that the definition of terrorism was to belong to universal competence. The responsibility was extended to other forms of intermittent cooperation, to participation in relationships aimed at committing a terrorist act. It was not supposed to be a manifestation of political activity. The act of terrorism was to be a criminal act, aimed at evoking a state of terror in the minds of individuals, groups of people or communities27.

There was also a conference held in Warsaw in 1927. Terrorism was understood as “the intentional use of a measure that could cause widespread danger, which was to be pursued independently of the place where the act was admitted, or of the nationality of the perpetrator”. Other conferences were also devoted to the unification of criminal law. It concerns conferences in Brussels (June 1930), Paris (December 1931), Madrid (October 1935) and Copenhagen (August-September 1936). People working on the concept of “terrorism” determined its scope and types of acts entering it28.

2.3Documents created under the auspices of the League of Nations

Germany was then an example of a state of terror29. Later, assassinations of celebrities in Russia or France, for example, became the basis for the creation in 1934 of a preliminary draft convention for the League of Nations adopted in the project on ensuring repression and cooperation in counteracting crimes “with political and terrorist aim”30.

The law of war was codified for the first time in 1899. Martens Clause constituted a compromise between the great forces that recognised soldiers detained during military operations as unlawful combatants targeted for execution, and smaller states that considered them fully-fledged veterans31