Should “Grave Crimes of International Terrorism” be included in the Jurisdiction of the International Criminal Court?

Abstract

Genocide, crimes against humanity and war crimes are among the most serious categories of crimes known to international law. For decades lawyers and others debated whether a standing international court should be established to prosecute and punish such crimes. In 1998 the debate ended with the adoption of the Rome Statute for the establishment of an International Criminal Court (ICC). The Statute defines the elements of each of these crimes and includes them in the ICC's jurisdiction. The idea of including “grave crimes of international terrorism” as an additional category in the ICC's jurisdiction was considered, but abandoned as too difficult. Firstly, there is at present no universally agreed definition of terrorism and the whole subject is politically sensitive. Secondly, democratic and other States have long recognised that certain acts that would ordinarily be considered criminal should be treated differently if they can be characterised as “political offences”. This paper argues that both these difficulties can be overcome. A solution to the problem of definition is to confine “terrorism” to those acts that are outlawed by existing anti-terrorist multilateral conventions, as listed by the UN, at least to the extent that those conventions are declaratory of customary international law. It is also argued that the “political offence” issue has been rendered obsolete by the creation of the ICC, with its numerous safeguards to ensure the Court's impartiality. In 2009 the Rome Statute will be reviewed and there will be an opportunity to expand the ICC's jurisdiction to include grave crimes of international terrorism. For the international rule of law to be supported and strengthened, that opportunity should not be missed.