Sample Paper on Comprehensive Convention on International Terrorism Currently Under Negotiation

International Terrorism has been one of the major challenges of the United Nations and the international community at large. This paper focuses on the evolution of the definition of terrorism as per the work of the impromptu Committee, its inclusive and exclusive elements. Although several scholars state that there is no universally agreed definition of terrorism. I advance a definition based on the inclusionary elements and exclusionary elements. I will deal with Criminal Law which deals with the prevention, suppression and punishment of International Terrorism.

For more than 80 years developments in the law have been the cornerstone to the establishment of legal frameworks to combat terrorism. The impromptu Committee was established at a time of renewed thrust to combat international terrorism. When the General Assembly first included international terrorism on its agenda in 1972, the political environment was such that there was a chasm among states on how to proceed. The first Ad Hoc Committee commenced its work in 1973. The major issues to deal with were with: (a) definition of international terrorism; (b) its underlying causes; and (c) measures to be taken to prevent it.

By the time it completed its work in 1979, it settled on several recommendations on politically problematic questions. Another milestone year was 1985, when the General Assembly unequivocally condemned criminal, all acts, methods and practices of terrorism, wherever and by whoever committed, including those which jeopardise friendly relations among States and their security. This position was reiterated biennially in 1987, 1989 and 1991.

Over and above the political considerations, the report of the impromptu Committee in 1979 acknowledged a variety of potential interventions of a legal nature, including the possibility of concluding additional instruments. It took ten years for renewed prospects to emerge. When the item was discussed in 1991, focus began to shift towards “a policy of firmness and effective measures”. It was followed by a request in 1993, to the Secretary-General to solicit views of member states on the proposals relating to practical measures on ways and means to enhance the role of the United Nations system-wide in combating international terrorism. A report was issued in 1994.

Also in 1994, the General Assembly had established an unplanned Committee to develop an international convention dealing with the safety and security of United Nations and associated personnel. The United Nations Convention on the Safety of United Nations and Associated Personnel was adopted in the same year. The stage was therefore set for the establishment of the unplanned Committee. This was done in resolution 51/210, to which is also annexed the 1996 Supplementary Declaration. The work of Ad Hoc Committee on the “second generation” of counter-terrorism instruments started in 1997, with negotiations on draft Convention on the Suppression of Terrorist Bombings, which was concluded the same year. Committee was such that it would meet biannually, with one session within the structure of a working assembly of the Sixth Committee.

Thereafter, in 1998, debates on the draft Convention on the Suppression of Nuclear Terrorism, on the basis of a proposal by the Russian Federation, commenced, but difficulties regarding exclusionary elements meant that the draft convention could not be concluded until 2005. In 1999, negotiations were started in earnest, concluding the same year, on Convention on the Suppression of the Financing of Terrorism on the basis of a proposal by France. In 2000, India submitted a revised text of a draft Comprehensive Convention on Terrorism, first submitted in 1996.

The Ad Hoc Committee thus pursued a “sectoral” approach for the first three instruments before embarking on a “comprehensive” one. The cooperation on the draft inclusive convention is still an on-going exercise. The completion is delayed by differences over “outstanding issues” which mainly concern the exclusionary elements of the definition of terrorism. Before the United Nations first took up the consideration of efforts to eliminate international terrorism in 1972, there were efforts done in 1920s and the 1930s by the International Conference for the Unification of Penal Law and the League of Nations.

By 1972, there were already substantial developments in the law, with implications for future discussions on terrorism.  Indeed, the “first generation” of counter-terrorism instruments had already begun.  International cooperation in criminal matters came of age during the 20th century.

Defining terrorism as a criminal offence was central to the pioneering work carried out by the International Conference for the Unification of Penal Law and of the League of Nations.

The “inclusionary” components of the definition had two aspects to it: One aspect focused on life, liberty or integrity of persons, while the second aspect elaborated further on the notion of “community endangerment” or creation of a “state of terror”. It was recognised that the rules of international law concerning the repression of terrorist activity were at that moment “insufficiently precise to guarantee efficiently international co-operation in the area”.

On 16 November 1937, the Convention for the Prevention and Punishment of Terrorism was concluded at Geneva. Although the Convention never entered into force, it is instructive that the Convention’s definition of “acts of terrorism” signified the dominance of the meaning of terrorism as denoting “criminal acts directed against a State”.Article 1(2) defined acts of terrorism as“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 public.” Article 2 addressed wilful acts causing death or grievous bodily harm against State officials.

It went further to deal with destruction of “public property or property devoted to a public purpose”, as well as acts “calculated to endanger the lives of members of the public”. When work of the impromptu Committee began in earnest in 1997, there was a reprise of some of these notions, including the concept of creating a situation of terror.

Exclusions took a variety of forms; when the 1937 Convention was being elaborated, the Committee of experts considered it important to exclude members of armed forces from the Convention.In some instances, treaty regimes have specified that they would not apply to aircraft used in military, customs or police services. Another controversial inclusion that remains to date is wars of national liberation.  The right of peoples to self-determination, as enshrined in the Charter of the United Nations, was defining as a fundamental principle of international law

            The contemporary legal edifice for the prevention and suppression of international terrorism has been erected around several components:

  • The criminalisation of particular conduct, which would be subject to domestication and on the basis, predominantly, of individual criminal responsibility;
  • The jurisdictional bases on which to proceed against an alleged offender;
  • The obligations of States in the prevention and suppression of terrorism;
  • Fair treatment, including rights and due process guarantees to be enjoyed by an alleged offender, while always mindful that the conventional regimes established operate against the background of general international law;
  • Schemes for extradition and mutual assistance in legal matter

The operation of extradition and mutual assistance in legal matters was constricted by the political, military or fiscal offence of the human rights exception clauses. Several terrorist conventions have raised common grounds on inclusionary elements on acts of terrorism. They are limited on the triad: Life, bodily injury and damage to property. Additional element is environmental damage.

Another aspect of the evolutionary nature is “state of terror” definition. The Terrorist Bombings Convention terms it as acts intended to aggravate a state of fear in the broad public or in a group or individual persons. In the Nuclear Terrorism Convention there is a conventional definition of a terrorist offence: a link to intent to compel another to do or refrain from doing an act. A consensus arrived at in article 2.

The preliminary working document proposed by France regarding the Terrorist Bombing Convention contained a draft article providing exclusions but this provision did not find favor. The major preoccupation in the negotiations was the scope of the exclusion, carving out the activities of armed forces.  There was legitimate appreciation that peacekeeping should not be termed as criminal but there was a concern that exclusion should not be so broad as to give rise to impunity.

There was a search for balance that would be based on sound legal considerations in various committees and congresses. Costa Rica submitted for adoption the text of the Terrorist Bombings Convention in the Sixth Committee. The text of draft article 3 was to become article 19. Even though article 19 was to serve as the new benchmark for an exclusionary clause in the elaboration of subsequent counter-terrorism instruments, the debate aimed at arriving at a right balance on the exclusion has continued. Several conventions have been done to settle on the basic exclusion of acts of terrorism. The consensus was joined with the clarification by some delegations that terrorist acts were criminal regardless of who committed them.

Nevertheless, the differences on the scope of the exclusionary elements have remained in the negotiation of the draft inclusive convention.  It is worth noting that the work of the unplanned Committee has yielded important results in the definition of International Terrorism and creating awareness about it. The three instruments adopted as a consequence of its work have already been widely accepted, and have informed other processes which have led to the adoption of newer instruments.

I agree on its definition of International Terrorism as it embraces all aspects that pertain to terrorism. Its inclusive elements are far more accommodative since they are workable and realistic. In as much as the exclusionary elements continue being subjects of debates in the international forum, much reference should be put on the precepts of the International Law.

In conclusion, terrorism continues to be huge menace in the development and progress of all countries and states. Moreover its evolutionary tactics and trends always hit with unimaginable magnitude such that the impact felt is sometimes difficult for a country to quickly deal with. However, this should not deter United Nations and all other states to rise up in unison and resist terrorist activities with the resistance it deserves. We should allow ourselves to be enslaved by a few individuals who have no respect for human life, property and progress.