The need to develop an autonomous classification of the ‘crime of terrorism’ in international criminal law

‘Whoever is a terrorist for some is a freedom fighter for others’. This adage outlines the contours of a debated in international law. No definition of the concept of ‘terrorism’ has been approved in international law, although it is central to political debates, and the introduction of a ‘crime of terrorism’ is becoming increasingly necessary. However, according to Amnesty International, the term ‘terrorism’ usually refers to acts of violence committed by armed groups, particularly those targeting civilians. States and observers describe as ‘terrorist’ acts or political motivations to which they are opposed, while rejecting the use of the term when applied to activities or causes they support’. Terrorism is used to try to impose a particular vision or idea by violent means, in other words, to get a message across through terror. The Special Tribunal for Lebanon was the only international court responsible for judging terrorist acts, those of 14 February 2005, as such.

The current situation between Israel and Hamas crystallises the debate on this notion. On 5 February 2021, Pre-Trial Chamber I of the International Criminal Court decided by a majority that the Court’s territorial jurisdiction over the situation in Palestine – a State party to the Rome Statute of the ICC – extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem. The current situation since the attacks on 7 October falls within the jurisdiction of the Court. These Hamas attacks, in which 1,200 Israelis lost their lives, have been described as terrorist acts by Israel and the international community, in particular the Secretary of the United Nations, António Guterres,1 while Israel’s actions in response to these attacks on the Palestinian territories and Gaza have been described as self-defence.2 When we know that the force of Israel’s attacks and their impact on civilians exceeded the conditions of self-defence as laid down in Article 51 of the United Nations Charter.

The International Criminal Court is under pressure to issue arrest warrants for ‘war crimes’ and ‘genocide’ against Hamas and Israel, as part of an investigation launched by Prosecutor Karim Khan. The ICC’s jurisdiction is limited to war crimes, genocide, crimes against humanity and crimes of aggression. However, wouldn’t the development of a crime of terrorism be more appropriate to the current situation, giving greater weight to convictions?

In the first three weeks of the reprisals, Israel sent more than 6,000 bombs a week into Gaza. More than 66,452 people have been injured and 25,000 Palestinians in Gaza have lost their lives since 7 October.3 Numerous attacks were carried out in order to ‘eliminate Hamas’4. Their impact demonstrates the lack of consideration for civilians, their homes and their lives. At the same time, humanitarian aid is being blocked from reaching Gaza. In 2002, the European Union and the Council of Europe established, in a framework decision,5 a series of offences ‘terrorist’, ‘related to a terrorist group’, or linked to ‘terrorist activities’, with the aim of seriously intimidating the population or destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.6 In this sense, isn’t the State of Israel, through its policy, using terror to impose its ideology on the Palestinian territories for more than three months? This qualification takes on a particular significance because it is so meaningful and far-reaching, condemning not only serious acts, but also an entire policy. Israel, accused of genocide by South Africa against the Palestinian people before the ICJ. However, the mass killings caused by Israel’s bombardments, the humanitarian blockades causing famine in Gaza, and the destruction of civilian infrastructure and first aid are aimed at destroying the fundamental structures of the Palestinian people. These acts would be qualified as terrorist acts, in the light of the preceding development, fuelling the crime of genocide. Wouldn’t combining the prosecution of the crime of genocide with the crime of terrorism give greater weight to the prosecutions and charges against the perpetrators?

Establishing a crime of terrorism would make it possible to set up a derogatory regime, following the example of French criminal law. This specific legal regime would apply in emergency situations justifying the adoption of exceptional measures. In fact, creating a legal qualification in international criminal law would provide international courts and organisations with a privileged tool in their fight against these acts, while at the same time affixing a meaningful label to their perpetrators.

Acts of terrorism are plural, diverse and ingenious. They evolve, change form, adapt and continue to pose a legal challenge. Although the existence of terrorism is undeniable, as is the cross-border use of its acts, States are reluctant to see it as an autonomous offence before international courts. The vast majority consider that acts of terrorism are a national matter, generally political, and run counter to the policies in place. Continuing to deny that terrorism is part of international criminal law means denying serious acts that violate the most fundamental human rights, to which the ICC and the ICJ must respond. Since ‘terrorism’ is a political concept, it does not seem inconsistent to assert that, in the absence of a common and universal definition, it is subject to political variations and State ideologies. In this sense, the absence of a common definition constitutes a danger for international criminal justice, particularly in terms of the rights of the defence, as this qualification, being arbitrary, navigates in a legal limbo, fuelling ideologies and inter- and intra-state tensions. Being arbitrary, it can be used by the authorities to legitimise serious acts of violence committed in response. In conclusion, as long as there is no common definition, and as long as there are no legal changes, these attacks will continue to go unpunished.

This lack of jurisdiction on the part of international criminal courts raises questions about the real effectiveness of international criminal law in the light of the complexity and diversity of current events. Indeed, the absence of such jurisdiction amounts to denying the existence of State terrorism acting on territories that the said State claims as its own.7 Indeed, disagreements persist between two blocs that wish to exclude their respective modes of action, which they consider legitimate: national liberation movements for States that have emerged from decolonisation, and the use of armed force by State armed forces in peacetime. This terrorism has a place in international criminal law because it has been perpetuated for decades without being legally condemned, apart from under other qualifications. This seems inconsistent with the various resolutions and declarations placing terrorism among the most serious criminal offences.8 Establishing a crime of terrorism would add weight to UN legal decisions and political discourse that could have a preventive impact on state attacks in the long term, while anchoring the rights of the defence in a clearer and more circumscribed legal framework.

Lastly, although there have been debates about the proximity between ‘terrorist’ acts and crimes against humanity, a crime against humanity is defined as ‘a widespread or systematic attack directed against any civilian population, with knowledge of the attack’9. The ‘terrorist’ act cannot meet this sine qua non condition. That is why it is important to establish the crime of terrorism as an autonomous qualification, not as part of a crime against humanity.

Making it a crime would make it possible to prosecute and convict not just those who kill, but also those who incite, who are part of illegal groups, and who finance them. In effect, this would make the leaders of states that finance terrorist groups criminally responsible for their actions. Under the guise of diplomatic policy and maintaining good relations with their neighbours, they would no longer be able to escape the consequences of their actions. This would help to make effective the preventive and repressive obligations to which they are subject under international criminal law.

Finally, it might be relevant to ask whether the political discourse and the absence of a definition and legal framework for the notion of ‘terrorism’ would have been different if the International Criminal Court had been created in the wake of 11 September 2001?

Footnotes

1 13 october 2023 ONU info: Israël et Hamas : « Même les guerres ont des règles », affirme le chef de l’ONU | ONU Info (un.org)

2 24 October 2023 – Emmanuel Macron’s speech: Israel’s legitimate right to defend itself

3 03 February 2024, Le Monde with AFP, Israel-Hamas war, day 120; statement by Adila Hassim (lawyer for South Africa) before the ICJ, 11 January 2024

4 25 December 2023, article by Benjamin Netanyahu in the ‘Wall Street Journal’: ‘The leaders of Hamas have vowed to repeat the massacre of 7 October “again and again”. This is why their destruction is the only proportional response to prevent the repetition of such horrific atrocities’; South Africa’s plea before the ICJ on 11 January 2024; “Gaza is becoming a cemetery for children” – statement by Secretary General Antonio Guterres on 6 November 2023.

5 Council Framework Decision of 13 June 2002 on combating terrorism, J.O., L 164, 22 june 2002, p. 3.

6 Article I § I of the 2002 Framework Decision cf.supra.

7See P. Klein, op. cit. P. Klein, op. cit. pp. 243 et seq.; M.G. Cohen, ‘Les controverses sur la question du “terrorisme d’Etat”’, in K. Bannelier, T. Christakis, O. Corten and B. Delcourt, op. cit. pp. 121 et seq.

8Statements by the President of the Security Council S/PRST/2005/34 of 20 July 2005, S/PRST/2005/45 of 4 October 2005, S/PRST/2005/53 of 31 October 2005, resolutions 1617 (op. cit.), 1624 (op. cit.).

9 Article 7-1 Rome Statute.