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The Proposed use of the International Criminal Court in Response to the Jurisdictional Shortcomings of International and Domestic Law Andrew Majoran, MSc. NATO Council of Canada – Security Analyst Hudson Institute – Political /Military Analyst MacKenzie Institute – Security Analyst .

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combatting international terrorism

The Proposed use of the International Criminal Court in Response to the Jurisdictional Shortcomings of International and Domestic Law

Andrew Majoran, MSc.

NATO Council of Canada – Security Analyst

Hudson Institute – Political /Military Analyst

MacKenzie Institute – Security Analyst

Combatting International Terrorism

available options
Available Options

International Law

or

Domestic Law

modern challenges
Modern Challenges
  • Modern Terrorism is something that cannot be dealt with traditionally in a common-law manner using domestic laws.
  • International Law has proven incapable of combating Modern Terrorism.
domestic law and the unilateral approach
Domestic Law and the Unilateral Approach
  • The size and scope of Domestic Law is too narrow and lacks the jurisdictional ability to combat International Terrorism.
  • Nations struggle to apprehend International Terrorists, or even bring them to trial.
  • States are forced to act outside of domestic and international legal regulation to apprehend and try suspected terrorists. (Ex. FawazYunis Case -1985).
fawaz yunis case 1985
FawazYunis Case - 1985
  • Lebanese hijacker who was forcibly extradited and imprisoned by the United States.
  • On June 11, 1985, he led a team

that hijacked Royal Jordanian

Flight 402 with four American

nationals on board.

international law and the multilateral approach
International Law and the Multilateral Approach
  • The integrity of international law is subject to the willingness of states involved in the cooperation.
  • The inherently realist nature of many modern Western states makes cooperation at the international level difficult. (Ex. USA, China).
examples of the failures of international law
Examples of the Failures of International Law
  • 9/11 is a commonly understood example of modern international law failing to suppress global criminal activity.
  • Nothing holds states legally accountable to cooperate with the requests of nations, unless they are connected via treaty. Evidence of this is apparent in the Lockerbie Bombing Case.
lockerbie case
Lockerbie Case
  • Pan Am transatlantic flight from London Heathrow Airport to John F. Kennedy International Airport in Queens, New York that was destroyed by a bomb in 1988, killing all 243 passengers and 16 crew members.
  • Two Libyan nationals

were suspected of

committing the

crimes.

the feasibility of the icc
The Feasibility of the ICC
  • The ICC is a multilateral body that can effectively and efficiently combat the jurisdictional issues associated with the trials of suspected international terrorists.
  • The ICC has proven effective in establishing a legal guideline for matters that have exceeded the capacity of individual states in the past (Ex. Genocide, War Crimes, Crimes Against Humanity).
international terrorism and the rome statute
International Terrorism and the Rome Statute
  • Including international terrorism as a punishable offense would not require any amendment to the ICC’s Rome Statute.
  • International terrorism is applicable to Article 1, 7, 12, and 17 of the Rome Statute.
  • International terrorism fits soundly as a “Crime Against Humanity”. (Article 7).
article 7 crimes against humanity
Article #7 Crimes Against Humanity
  • Article #7 of the Rome Statute is known for defining and condemning “Crimes against Humanity”.
  • It identifies a series of acts that constitute a crime against humanity:
  • Widespread or systemic act
  • Committed against a civilian population
article 17 icc power of exercise
Article #17 ICC Power of Exercise
  • Article 17(a) clearly gives the ICC the power to exercise jurisdiction in instances where a state party is unwilling or unable to prosecute the offender. Unwillingness is defined in Article 17 as being “if a state investigates and prosecutes a case in a manner which reveals an attempt to shield a person from criminal responsibility or if the proceedings are unjustifiably delayed or not conducted independently or impartially”.
article 12 jurisdiction over signatory states
Article #12Jurisdiction Over Signatory States
  • According to Article 12, “A state which becomes a Party to this Stature thereby accepts the jurisdiction of the Court.”
  • The ICC’s jurisdiction cannot be questioned by signatory states, and offenders may be tried regardless of the state the act was committed in, or the parties which were affected by the attack.
article 1 legal sovereignty guarantee
Article #1 Legal Sovereignty Guarantee
  • Article 1 of the Rome Statute dismisses any concerns states might have in regards to sacrificing any of their legal sovereignty as it ensures that their legal sovereignty will not be infringed upon, and the ICC serves to function in conjunction with states domestic legal systems.
conclusions
Conclusions
  • The ICC is a feasible solution to the jurisdictional shortcomings of modern domestic and international law.
conclusions1
Conclusions
  • The ICC would not require any amendments to include international terrorism as a “Crime against Humanity” under Article #7 of the Rome Statute.
conclusions2
Conclusions
  • The ICC does not infringe on the sovereignty of it’s member states, and works in conjunction with previously established domestic legal systems, and only on issues that meet the jurisdictional criteria.
bibliography
Bibliography
  • Abbasov, Namiq . "The Application of Jurisdiction on the International Terrorism: What About the ICC?." Afro Eurasia Strategic Resources Center: Department of European Studies 1 (2012): 1-5.
  • Badey, Thomas J.. "Defining International Terrorism: A Pragmatic Approach." Terrorism and Political Violence 19, no. 5 (2007): 90-107.
  • Banchik, Mira. The International Criminal Court and Terrorism. New York: Peace Studies Journal, 2003.
  • Beck, Ulrich. "The Silence of Words: On Terror and War." Security Dialogue 34 (2003): 255-267.
  • Bentley, Michelle. "Multilateral Approach to Counterterrorism: Issues, Problems, and Responses." In Counterterrorism: From the Cold War to the War on Terror. California: Praeger, 2012. 1-9.
  • Blum, Gabriella , and Phillip B. Heymann. Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism. Cambridge, Mass: The MIT Press, 2010.
  • Cassese, Antonio. International Law. Oxford, UK.: Oxford University Press, 2005.
  • Chaliand, Gerard , and Arnaud Blin. The History of Terrorism: From Antiquity to Al Qaeda. Los Angeles, CA.: University of California Press, 2007.
  • Convention for the Unification of Certain Rules for International Carriage by Air - Montreal, 28 May 1999. Available at: http://www.jus.uio.no/lm/air.carriage.unification.convention.montreal.1999/ [accessed 29 July 2013]
  • Greenwood, Christopher. "International Law and the "War against Terrorism"." International Affairs 78, no. 2 (2002): 301-317.
  • Herschinger, Eva. "A Battlefield of Meanings: The Struggle for Identity in the UN Debates on a Defintion of International Terrorism." Terrorism and Political Violence 25, no. 2 (2013): 183-201.
  • Horsley, William. "Polls Find Europeans Oppose Iraq War." BBC News [London] 11 Feb. 2003: n. pag. news.bbc.co.uk. Web. 22 June 2013.
  • Kelsen, Hans. The Law of the United Nations: A Critical Analysis of its Fundamental Problems with Supplement 1964. New York: The Lawbook Exchange, 2000.
  • Lowenfeld, Andreas F. . "U.S. Law Enforcement Abroad: The Constitution and International Law." American Society of International Law 83, no. 4 (1989): 880-893.
  • McDonnell, Thomas M.. The United States, International Law, and the Struggle Against Terrorism. London: Routledge, 2009.
bibliography continued
Bibliography Continued…
  • McGoldrick, Dominic . The Permanent International Criminal Court . Portland, Ore.: Hart Publishing , 2004.
  • Proulx, Vincent-Joel . "Rethinking the Jurisdiction of the International Criminal Court in the Post-September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity ." american university international law review 19, no. 5 (2004): 1010-1089.
  • Reports of Judgements, Advisory Opinions and Orders . Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie. United Kingdom: International Court of Justice, 1998.
  • Romaniuk, Peter. "Institutions as Swords and Shields: Multilateral Counterterrorism since 9/11." Review of International Studies 36, no. 3 (2010): 591-613.
  • Romaniuk, Peter. Multilateral Counter-Terrorism: The Global Politics of Cooperation and Contestation. London: Routledge, 2010.
  • Schrijver, Nico. "September 11th and Challenges to International Law." In Terrorism and the UN: Before and After September 11th. Bloomington, Ind.: Indiana University Press, 2004. 55-72.
  • UN General Assembly, Basic principles of the legal status of the combatants struggling against colonial and alien domination and racist régimes, 12 December 1973, A/RES/3103, available at: http://www.refworld.org/docid/3b00f1c955.html [accessed 5 August 2013]
  • UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 12 July 2013]
  • United States of America, Appellant, v. FawazYunis., 867 F.2d 617 (D.C. Cir. 1989). Available at: http://www.leagle.com/decision/19891484867F2d617_11383 [accessed 21 July 2013]