Terrorism in the 21st century in the light of law ebook

Preface

This book explorers the most recent trends in terrorism in the 21th century. A central theme of this book is the in-depth analysis of the West with the risk from the Islamic State and Al-Quaida that could be seen for example in Paris and Brussels attacks; their strength is also seen in the ISIS territory. The Islamic State and Al-Quaida can loose their role in the war, but it seems that Al Quaida and Islamic State are expanding their role through Internet that provides to “do-it-yourself” terrorism. Many younger could be radicalised in this way. At the same time North Korea can have nuclear weapon. It should be remembered to be balanced between the States and the work of many agencies and officers dealing with these problems. It should be remembered comprehensive convention on International terrorism in the UN legal committee which is still under consideration and the proposal to include International terrorism as International crime within the jurisdiction of ICC. This essential and up-to-date analysis helps us to make sense of the most recent trends in terrorism and helps us to find ways to prevent this. I would strongly recommend this book.

Dr. S. Rama Rao

The delegate in all UN ICC meetings from its Ad hoc Committee toPrepCom to Rome Diplomatic Conference;

a Director of World Intellectual Property Organization (WIPO) at theUN headquarters, New York from 1998 to 2013;

the adjunct Prof. in Columbia University and Pace Law School in NewYork, 2015;

a visiting Prof. in the NALSAR University in India.

1. Preliminary Considerations

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. Regardless, however, of the above, the rules still seem to be similar. Analogies as to how to combat it can be problematic.

The word “terror” appeared as a result of the French Revolution. The notion of terror invoked by A. Kaplan1, and K. Indecki2, means the use of force by the ruling power in order to evoke fear. Nazi Germany is often mentioned as a contemporary example of a terror state3. It can be said that this is a special way of exercising power – when the power uses terror as a method of governing4. The notion of “terrorism” derives from the concept of “terror”.

However, until now it has not been possible to build a legal definition of the 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 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 sovereignty5.

The term terrorism, as mentioned, was first emerged during the French Revolution. Terrorism was linked then with the notion of state-instigated terror “unleashed on a state’s own population as a mechanism of control”6.

In 1926, in Brussels, under the auspices of the International Association of Penal Law, numerous efforts were made to define international terrorism. It was supposed to be an unlawful act of violating the international order. This offense was to be prosecuted regardless of the place where it was committed. During subsequent conferences in the field of 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 communities7.

Germany was the example of a state of terror of the time8. Later, murders of celebrities in Russia or France became the basis for the creation in 1934 of a preliminary draft of the convention for the League of Nations adopted in the project on ensuring repression and cooperation in counteracting the committing of crimes “with political and terrorist aim”9.

The interwar period was not assessed as significant in the subject’s literature for the development of works on terrorism in its legal aspects. There was an increased interest in the problem on the part of representatives of science. It was the subject of many conferences. As it was said, on November 10, 1934, the League of Nations adopted a draft international convention on ensuring retaliation and cooperation in counteracting committing crimes with a political and terrorist aim. Works carried out under the League of Nations focused on the possibility of adopting a general ban on the terrorists acting in political circles on the territory of the League of Nations member states and their commitment to preventive and repressive actions against the manifestations of terrorism. This convention was considered to be the cause of international tensions due to over-ambitious targets regarding the fight against terrorism and the lack of consent to the definition of terrorism. The crowning achievement of these works was the Convention of 1937 Convention on the Prevention and Punishment of Terrorism10. This convention was treated as the cause of international tensions.

In the first intent that the International Community wanted to made to have an International Court in 1937, where terrorism was defined as “all 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 public11”. While the Statute was never ratified and the Court never entered into existence, this first attempt at creating a definition is an important precedent and clear evidence that it was of interest to many states to have a permanent international tribunal that would claim jurisdiction over the crime of terrorism12.

Soon after the World War II no one came back to the topic of terrorism in a meaningful way13. The later, second stage can be linked to national movements (the Abu Nidal Organization and then the PLO – Palestine Liberation Organisation) and the Olympics in Munich, which contributed to the signing of international UN conventions on, inter alia, civil aviation and maritime safety. Only in the seventies of the twentieth century did The United Nations broaden its efforts to reduce the phenomenon of terrorism14.

The third stage could be the activities of the Taliban, Al Qaeda, ISIL, ISIS, etc. This has led to the formulation of a UN convention on protection of nuclear materials, prevention of unlawful acts against the safety of maritime shipping on the labelling of plastic explosives for the purpose of their detection, and on combating terrorist bomb attacks.

UN conventions include15:

Convention on Offences and Certain Other Acts Committed On Board of Aircraft 16;

Convention on combating the unlawful seizure of aircraft17;

Additional Protocol to the Convention on combating unlawful seizure of aircraft18;

Convention on the Suppression of Unlawful Acts against the Safety of Civil Aviation19;

Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons20;

International Convention against the Taking of Hostages21

Convention on the Physical Protection of Nuclear Material22

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 Aviation23

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation24

Additional Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation25

Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf26

Additional Protocol to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf27.

Convention on the Marking of Plastic Explosives for the Purpose of Detection28

International Convention for the Suppression of Terrorist Bombing29

International Convention for the Suppression of the Financing of Terrorism30;

International Convention for the Suppression of Acts of Nuclear Terrorism31;

Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation32.

We can find more informations in The Declaration attached to SC Resolution 1456, adopted unanimously on 20 January 2003, that explicitly affirms that acts of terrorism “are to be unequivocally condemned, especially when they indiscriminately target or injurecivilians”33. Later, Resolution 1566 of 8 October 2004 renewed the emphasis on the unacceptability of terror violence directed against civilians34.

Starting with considerations related to terrorism, one can distinguish after K. Indecki35 general definitions, partial definitions and mixed concepts of terrorism.

Within the first group, terrorism is recognised as a kind of criminal act serving the use of violence to achieve specific strategic goals36.

General definition of A. Schmidt depicts terrorism as a method of combat, in which rare or symbolic victims are the instrumental target of violence. Such instrumental sacrifices 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 introduced 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 being recruited from witnesses based on their sense of threat (period of peace) or a place (not 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; individual segments of such an indirect method may alternate with the main object 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 targets of attention (e.g. public) to change attitudes or behaviour, taking into account short or long-term interests of those using such methods of struggle37.

The second method is “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 and many other kinds of terrorism”38.

The third method is, according to K. Indecki39, most often used in international documents. K. Indecki calculated the frequency of occurrence of particular elements:

Violence, force;

Political character;

Fear, emanation of terror

Threat;

Psychological results and anticipated reaction;

Diversity of victim-purpose;

Expediency, planning, regularity, organised action;

Method of combat, strategy, tactics;

Extranormality in breaking the accepted rules, without humanitarian limitations;

Coercion, extortion, evoking submission;

Public aspect;

Arbitrariness; impersonality, random character;

Civilians, not engaged in combat, neutral;

Intimidation;

Focusing on innocent victims;

Group, movement, organisation, as the perpetrator;

Symbolic aspect;

Incalculable, unpredictable, unexpected appearance of violence;

Secret, hidden nature;

Repeatability, serial or campaign nature of violence;

Criminality;

Damage caused to third parties.

The world is changing, so is technique and concepts related to terrorism. Therefore, terrorism is also subject to evolution. The concept of “new terrorism”40 emerged, which was introduced in 1986 by researchers from the Institute for the Study of Conflict41. This 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 people cooperating with one another, led to communication with each other only through the network42.

The UN’s Security Council required states to withhold operations with weapons of mass destruction43, or to identify and implement measures to prevent acts of terrorism44. Excessive wording was also noted by J. Alvarez, who wrote that “the problem of human rights was associated with the list of suspected terrorists and their helpers created by the UN’s Security Council, which begins to attract the attention of ‘global opinion, including legal representatives’”. He gave an example of a fictitious Mohamed who, as a result of the actions of the UN’s Security Council, may lose his job, income, similarly his wife and children, because they have been identified as terrorism-related persons45.

It was said that it was the “dark side” of the Security Council46.

However, one should remember about new versions of cyber law. It is about network terrorism, otherwise known as cyberterrorism, 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 account the introduction of prohibitions on sending information via the internet, or the transmission of information about planned disasters in the state, as well as conducting 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’s Security Council47.

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

In 1994, the ILC prepared a Draft Statute for an International Criminal Court. “This draft did not define the crimes to be prosecuted by the Court, instead, drafters thought that the jurisdiction of the Court should be on crimes defined in international treaties, along with crimes part of the Draft Code of Crimes Against the Peace and Security of Mankind, and those crimes considered part of customary international law”48. Recognising that Trinidad and Tobago raised the issue of bringing in an international court that could prosecute drug trafficking and other transnational criminal activities, the United States approached the first session of the Ad Hoc Committee on a Permanent International Criminal Court with the unique mission of excluding these matters from the jurisdiction of the Court49. “Washington was concerned that the statute could jeopardize its national security, especially on the prosecution of international terrorists and narcotic traffickers. After extensive deliberation and discussions, on July 17, 1998, the conference adopted the Statute for a permanent international criminal court by a vote of 120 in favor, seven against (including the United States) and twenty-one abstentions50”. In the end, drug trafficking and other transnational criminal activities, which were the crimes that brought the ICC conversation in the first place, were left out of the jurisdiction of the Court. However, the Rome Conference adopted a Resolution that recommended a Review Conference that would “consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court51”. The Rome Statute entered into force on July 1, 2002 after 60 states had ratified, accepted, and approved it.

R. Clark assumed that taking into account terrorism from a criminal point of view in the Statute of the International Criminal Court, the UN conventions on the prohibition of terrorism should also be considered52. A. Cassese, in turn, proposed the creation of a court in Lebanon, which in its Statute provided for the crime of terrorism, that was later taken into account during the court’s judgment53. In 2007 A. Cassese as Judge and President of the Special Tribunal for Lebanon (STL), established a clear legal foundation for the international crime of terrorism under international customary law54.

When building the definition of terrorism, such proposals should be taken into account, combining them into one definition of terrorism, the methods of which seem to be more and more cruel. Such an attempt will be made in this study, taking into account the existence and functioning of the International Criminal Court, which, in fact, should have a definition of such a crime in its Statute. This paper has limited its reach to exposing the existing records that can give the crime of terrorism universal jurisdiction, it has intent here to propose a solution.

There are two ways in which the crime of terrorism can be included within the Rome Statute. The first option would be to amend the Statute in order to create a new article that would focus on the specific crime of terrorism, specifying the conditions to be met. This would then become a fifth crime in which the ICC could exercise jurisdiction. If an amendment is made to the Statute, it will only be binding to those State Parties that accept it. Article states that after seven years from the entry into force of the Statute “any State Party may propose amendments55. The first review conference took place in Kampala, Uganda in 2010. There was a recommendation since the Rome Conference to review the possibility of including drug crimes and the crime of terrorism within the Statute. This recommendation was not taken into consideration during the conference.

The other way to include terrorism within the Court’s jurisdiction would need interpretation acts of terrorism as crimes that fall under the definition of one of the crimes already within the ICC competence56. Contextualizing this, there are little possibilities for the Court to interpret acts of terrorism under Genocide57, but there is a possibility for these acts to be under the definition of War Crimes or under the definition of Crimes Against Humanity.

2. ISIS activities against states and individuals

The so-called ISIS state (Islamic State of Iraq and Sham) operates against selected countries, but also wants to expand its own territory. Considerations in this regard must take into account the history of the world, including first of all such states as: the United States, European states and Australia or the Philippines. Part of Iraq and Syria is supposed to belong to ISIS.

This part deals with humanitarian law and human rights in the context of ISIS-related terrorism events around the world. Issues related to the International Criminal Court are also considered, which in the future should be able to assess cases related to terrorism.

The world of Al Qaeda and the world of Islamic State – the Iraqi wing of Al Qaeda (AQ) are places from which well-known terrorists originate. Returning to the creation of both these environments, one points to Al Zawahiri, bin Laden and Azaam fighting in Afghanistan with the Soviet invasion. The former was a doctor, he looked for money and contacts, which, in turn, possessed Osama bin Laden.

Al Qaeda (AQ) was supposed to be a part of ISIL (Islamic State in Iraq and the Levant), not ISIS. Territorial conditions resulted in the lack of consent for the operation of Barack Obama’s administration there. The administration needed the constitutional consent of the congress for military operations after 9/11 against the Taliban and AQ. Similar consent has been given earlier for actions in Afghanistan and Iraq58, and now there was no such consent for actions in Syria59 – the world of AQ and the world of Islamic State (IS) – the Iraqi Al Qaeda branch.

The AQ plan included 7 phases. The first “awakening phase” was the attack on the United States World Trade Center, which declared war against Islam. The second – “awakening of the eyes” was to make Iraq the centre of resistance against the West. Awakening and rebellion is the third stage, consisting in attacks in Turkey and Israel. The fourth stage was the collapse of the Islamic regime to direct the masses towards AQ. The fifth stage was associated with the creation of Caliphate. The sixth was connected with a total confrontation between the believers and the infidels. The very last stage is the ultimate victory60. In turn, the strategic plan of the Islamic State (IS), which was to be achieved within 5 years, concerned all of Africa, except for the Levant, north of the equator, the Caucasus, the Balkans, West Asia and Spain61. IS, unlike AQ, accepts young people without analysing their biography so that they become soldiers of Caliphate62. Radicalised young people in the West therefore take part in terrorism carried out on the principle of “do-it-yourself”63. They can become part of these groups, or operate in their own countries (as a “lone wolf”), inspired by, for example, Internet sources.

Terrorist groups operate in the above-mentioned areas of the world. For example, ISIL started operations in Iraq and Syria, and it was later named ISIS64. It should also be pointed out that it was no longer about action against ISIL but against ISIS65.

In the 1980s and 1990s, Jihadism terrorist in Turkey was an isolated phenomen represented by Turkish Hezbollah and Great Raiders Islamic Font66. Since the 2000s, there has been a rise in attacks from Islamist groups, some with links to Alkaida67.

Turkey needed help from NATO in 2015 after threats by Islamic State of Iraq and Levant to its territorial integrity68. On 10 October 2015 in Ankara, capital city of Turkey, two bombs were detonated with the death of 109 persons69. Another 500 hundred civilian were injured. No organization has claimed responsibility to this attack. That was the first bomb. On 19 October, one of the two suicide bombers was officially identified as Yunus Emre Alagöz. By June 2016, responsibility for the attack had not been claimed; the Turkish government blamed ISIL. The Dokumaklar is an Islamic terrorist group composed of about 60 Turkish militants who joined ISIL. The group is responsible for the 2015 Suru¸c bombing which resulted in 32 deaths.

There were an international airport bombing, an ambassador assassinated, a nightclub massacre70. These and many other attacks in the last year show how Turkey has been hit hard by terrorism. It’s not an unfamiliar position for the country, but there are now new threats that add to the longstanding reasons for Turkey’s particular position in the crosshairs. Turkey launched its biggest military offensive in Syria last summer, backing opposition forces to drive ISIS out of a strategic area along the border and block further advances by Syrian Kurds allied with Turkish separatists. The advance drew approval from Russia and air support from the United States71. There were other attacks, like the 2017 Istanbul nightclub massacre However, initially, the Turkish government avoided labelling ISIL as a terror organization72.

Turkey launched its biggest military offensive in Syria in 2016 summer, backing opposition forces to drive ISIS out of a strategic area along the border and block further advances by Syrian Kurds allied with Turkish separatists. The advance drew approval from Russia and air support from the United States. Insecurity in Syria has crossed the border into Turkey. At the start of the Syrian civil war, Turkey under President Recep Tayyip Erdogan backed the rebels, who were Sunni Muslim, against the regime of Assad, who is Alawite. Turkey had left ISIS alone, and ISIS largely left Turkey alone in terms of attacks, though fighters and supplies were routed through the country. By the time Turkey decided to take more precautions, ISIS had established many footholds and supporters73.

ISIS attacks can take place against members of various communities. Mainly due to cultural and religious differences, ISIS operates in the United States and European countries.

And so, for example, attacks took place in Paris in 2015. 13.11.2015 – 130 people died. First in the restaurant “Small Cambodia”, then next to the football stadium, then, in the concert hall and entertainment and shopping center; florists, restaurants have also become the object of terrorist interest74.

On February 3rd, 2017, a terrorist attack took place in front of the entrance to the Louvre museum in Paris and on April 20th a policeman was murdered and two others were wounded on the Champs Elysées75. The killed perpetrator left a note that he acted on behalf of Allah. ISIS pleaded guilty to the assassination, although another person was initially mentioned.

On March 22nd, 2016 in Belgium, two suicide bombers detonated explosives at the Brussels airport. A third suicide bomber blew himself up in a subway car between the stations. The Islamic State has admitted to the attack. On March 29th, 2016, assassins detonated two homemade bombs next to passing cars on the road leading to the airport near Kaspijsk. (Russia). ISIS admitted to the attack. On March 30th, 2016, a car exploded while trying to stop it from being checked by police officers. Again, ISIS admitted to the attack.

The bombings in Brussels in March 2016 are a series of three coordinated terrorist bombings carried out on the morning of March 22nd, 2016, in Belgium: two at the airport in Zaventem and one at the metro station in Brussels. 32 people and three assassins died in the attacks, and over 316 people were injured76. The third bomb was found during the search of the airport and detonated by bomb squad. ISIS admitted to the attacks.

Islamic State also declared its responsibility for the attack with a knife on three Belgian soldiers on Friday 27.07.2017 in Brussels. Belgium is an active participant in the coalition against Islamic State during the Iraqi civil war. It can be assumed that attacks by jihadists are a consequence of Belgium’s actions in Iraq. On October 5th, 2014, Belgian F16 plane dropped the first IS target bomb. In turn, on November 12th, Iraq warned coalition members that IS Abu Bark leader al-Baghdadi had ordered retaliatory attacks on the coalition countries77.

In April 2017 ISIS fighters occupied Marawi located in the southern part of the Philippines. Hundreds of thousands of residents fled the city from the hell of life under jihadist rule and continued firing from the Philippine Armed Forces. The flight of thousands of Filipinos resembles the gehenna of the inhabitants of Iraq and Syria under the ruling of the so-called Islamic State. It is claimed that the authorities there are afraid of deteriorating the situation. It is possible that fighters who survived the offensive in the Middle East will withdraw to the Philippines78. Currently, it is said that the next country to be considered by ISIS would be Australia. The Prime Minister of Australia, Malcom Turnbull, speaks openly about the threat79