Should Terrorism be Regarded as an International Crime? An Examination of the Theoretical Benefits and the Practical Reality
- Eoin Campbell
- Nov 22, 2022
- 13 min read
Updated: Mar 11
Introduction
An international crime is ‘an act universally recognised as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the State that would have control over it under ordinary circumstances’.[1] This essay will firstly examine whether proposed definitions of terrorism as a crime under customary international law should be accepted, and then discuss whether terrorism should fall within the jurisdiction of the International Criminal Court (ICC). It will examine the arguments for and against, including the potential to politicise the Court, the effect on the war on terror, the benefits to defendants and the impact on the role of the Security Council. Ultimately, this essay will conclude that whilst adding terrorism to the ICC’s jurisdiction could have an overall benefit, the practical reality renders this difficult to accomplish.
Terrorism in Customary International Law
To determine whether terrorism should be an international crime, it is important to establish a definition of terrorism. Traditionally, terrorism has been criminalised via a series of transnational treaties, which criminalise the modus operandi used by terrorists.[2] However, these treaties do not provide a general definition of terrorism. Therefore, it is important to focus on treaties which seek to create a general definition of terrorism, as the specific definitions would criminalise that specific act, such as the hijacking of an aeroplane, rather than the broader concept of terrorist acts, which may take many different forms.[3] Therefore, the two most important definitions to consider are found in The Convention for the Suppression of the Financing of Terrorism, as it is the most widely ratified treaty containing a general definition of terrorism, and the Interlocutory Decision on the Applicable Law, as this decision argued that terrorism already existed as a crime under customary international law.[4]
The Convention for the Suppression of the Financing of Terrorism includes a close generic definition of terrorism,[5] however, it only applies in situations of armed conflict, and acts of terrorism can already be categorised as war crimes in this context.[6] It is important to note that this definition did not have widespread consensus at its creation.[7] Instead, most states ratified the Convention in response to United Nations Security Council Resolution 1373, which imposed an obligation on states to ratify it following 9/11.[8] Therefore, this definition is unlikely to have strong support from states for the basis of a crime of terrorism in international criminal law. Considering that states opted against including a crime of terrorism in the Rome Statute, it seems unlikely that they would agree on including a definition that they were largely required to ratify. Furthermore, the ICC already has jurisdiction over attacks aimed at civilians during armed conflict.[9] As such, this definition should not be used to form the basis of defining terrorism as an international crime.
