Seminar: ICC &Terrorist Offences

On Thursday 30 June, ICCT hosted a Seminar with Prof. Tim McCormack on “International Criminal Court and Terrorist Offences” with support of the Australian Embassy in The Hague.

Prof. Tim McCormack is a Professor of Law at the Melbourne Law School and the Special Adviser on International Humanitarian Law to the prosecutor of the International Criminal Court in The Hague. He is also an Adjunct Professor of Law at the University of Tasmania Law School. From 2002 – 2006 he acted as amicus curiae on international law matters to the judges of Trial Chamber III of the International Criminal Tribunal for the Former Yugoslavia in The Hague for the trial of Slobodan Miloševic. From 2003 – 2007, he provided expert International Humanitarian Law advice to Major Mori for the defence of David Hicks. In that capacity Tim travelled to Guántanamo Bay to attend the US Military Commission proceedings against David Hicks in March 2007. He is a member of the international advisory boards of a number of academic institutions in Israel, Germany and Sweden.

At the Seminar, Prof. McCormack discussed whether terrorist offences fall within the jurisdiction of the ICC, even though the Rome Statute does not expressly refer to this type of crime. During the Kampala Review Conference a proposal to have terrorism included as a specific crime in the Rome Statute Important: there was no such proposal during the Kampala Review Conference. (It did not make it to the Kampala agenda.) There was a proposal to put it on the Kampala agenda, to have it included in the Rome Statute during the Review Conference in Kampala, but that proposal was defeated , because delegations felt, among other things, that:

• There was no generally accepted definition of terrorism;
•  inclusion could politicise the Court; and,
• The ICC could already try acts of terrorism.

On the latter point, McCormack explained that the Court could exercise jurisdiction over acts of terrorism as a crime against humanity (Art. 7 Rome Statute) and/or as a war crime (Art. 8 Rome Statute) in specific cases. The advantage of not creating a specific crime of terrorism is that Art 7. (crimes against humanity) and Art. 8 (war crimes) do not require one to show, for instance, ideological motives behind the act, but only that the act was committed intentionally.

According to McCormack, however, there are also  disadvantages of not classifying terrorism as a separate crime. Firstly, there seems to be a desire to label terrorism as a distinct crime, similar to the crime of genocide. Secondly, there is a danger that terrorist acts that do not meet the threshold of war crimes or crimes against humanity cannot be tried – and these thresholds are quite high. Moreover, if there is no distinct crime of terrorism in international law, states are free to use the label as they want, which increases the danger of abuse. Cf. paras. 22-23 of the ‘Report of the United Nations High Commissioner for Human Rights on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’ (A/HRC/8/13, 2 June 2008): “22. Some States have included non-violent activities in their national definitions of terrorism. This has increased the risk and the practice that individuals are prosecuted for legitimate, non-violent exercise of rights enshrined in international law, or that criminal conduct that does not constitute “terrorism” may be criminalized as such. 23. Defining crimes with insufficient precision can also lead to an inappropriate broadening of the proscribed conduct by means of judicial interpretation. There are several examples of hastily adopted counter-terrorism laws which introduced definitions that lacked in precision and appeared to contravene the principle of legality. Particular care must be taken, for instance, in defining offences relating to the support that can be offered to terrorist organizations or offences purporting to prevent the financing of terrorist activities in order to ensure that various non-violent conducts are not inadvertently criminalized by vague formulations of the offences in question.” An agreed definition would not eliminate these abuses, but would create a platform from which to criticise them.
Watch an interview with Prof. Tim McCormack about this seminar here.