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Edited by Ben Saul

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Edited by Ben Saul

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Marcello Di Filippo

Notwithstanding the need for concerted international action to tackle the problem of terrorism, positive international law is far from offering a sound notion of it. The discussion of such a notion is conditioned by the recurrent abuse of the term ‘terrorism’ in the general debate and by a certain confusion between an empirical description of a phenomenon and its treatment in a legal setting. Proposing a core definition approach – deeply inspired by the conceptual rigour of criminal law – this chapter elaborates a notion based upon the basic rights of civilians and on the unacceptability of their violation by terrorist methods carried out by private organized groups. The definition proposed here, not recognizing any material relevance to the perpetrator’s motivations because of the overwhelming importance of the value infringed, is able to minimize the relevance of some abused arguments (such as state terrorism or ‘ freedom fighters’) and would prove useful in interpretation and in drafting exercises, both at international and national level.

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Kai Ambos and Anina Timmermann

The following chapter attempts to analyse if terrorism has become a crime under customary international law. We start with a brief look at the minimum requirements of customary law in general and its particularities regarding criminal law. It will be shown that there are several general concerns regarding the creation of criminal provision by custom, especially because of the inevitable vagueness of unwritten law and the ensuing conflict with the principle of legality (nullum crimen sine lege). We will then explain the different categories of international(ized) crimes, distinguishing between the core and the treaty-based crimes. The second section will focus on the crime of terrorism. We will inquire into the relationship between terrorism and international criminal law and how it is affected by custom. Other international law aspects, intimately related to the current terrorism debate, such as state responsibility, the duty to prevent terrorism, state territory being used by terrorists, and the lawfulness of the use of force against terrorism, will not be treated. The gist of the issue is whether terrorism fulfils the decisive criteria of a true international crime, thereby making it possible to prosecute perpetrators globally, notwithstanding their protection by states. We will, on the basis of several international treaties, suggest a possible customary law definition of terrorism. We will conclude though that at the current state of international law, terrorism can only be qualified as a particularly serious transnational, treaty-based crime that is, at best, on the brink of becoming a true international crime but has not achieved this status yet.

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Kimberley N. Trapp

Adopting the framework of primary and secondary rules set out in the ILC’s work on State Responsibility, this chapter explores (i) state obligations to refrain from engaging in and to prevent acts of international terrorism, and to extradite or submit terrorist actors for prosecution, and (ii) the particularities of applying the secondary rules of state responsibility to the terrorism context. In so doing, the chapter considers acts of state sponsored terrorism and the challenges involved in meeting relevant thresholds of attribution, discussing in particular the Ukraine’s case against Russia before the International Court of Justice (ICJ), in respect of the downing of MH17. Finally, the chapter explores the implementation of state responsibility in the terrorism context, looking to the ICJ as means of securing ‘justice’ for victim states without risking further (unnecessary) disruptions to international peace and security.

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Efthymios Papastavridis

Since 9/11 there have been numerous incidents highlighting the potential threats to international peace and security posed by the asymmetrical dangers of maritime terrorism and the proliferation of Weapons of Mass Destruction (WMD). The protection of international shipping from such threats is of great importance, given that over 90 per cent of the world’s goods are transported by sea. It is against this background that this chapter discusses the question of international terrorism at sea. Its purpose is to present the legal frameworks of the various initiatives that states and the international community have taken to counter these threats to international peace and security. Special emphasis will be placed upon the relevant legal bases that international law, including the 1982 UN Convention on the Law of the Sea and the 2005 Protocol to the Convention on the Suppression of Unlawful Acts at Sea (2005 SUA Protocol) affords for maritime interception operations to this end. Also, other measures taken by international organizations, such as the United Nations, the International Maritime Organization and NATO as well as unilateral initiatives like the Proliferation Security Initiative (PSI) will be addressed.

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David Fidler

The potential for terrorists to develop, acquire, or use biological, chemical, and nuclear weapons has been one of the most important security issues of the post-Cold War era. This chapter analyses the threat of terrorism involving weapons of mass destruction (WMD). It begins by reviewing policy responses to WMD terrorism and describing how states used international law to address WMD and terrorism during the Cold War. The chapter then catalogues the emergence of WMD terrorism in the post-Cold War period and the impact this development has had on international law. Specifically, it analyses how states (1) adapted and applied traditional international law on WMD and terrorism to WMD terrorism; (2) developed new instruments and strategies targeting WMD terrorism; (3) launched new ‘soft law’ initiatives against WMD terrorism; and (4) responded to the use of chemical weapons by state actors and terrorist groups in recent armed conflicts in the Middle East.

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Julie Atwell

This chapter provides an overview of international efforts since 1963 to suppress the many forms of aviation terrorism, which include hijacking civilian aircraft for transportation or financial gain; taking hostages for a financial or political motive; attacks against airports or airport facilities; destroying or sabotaging an aircraft (including through the use of explosive devices on board, and employing man-portable air defence systems (MANPADS) to fire at aircraft; remotely attacking an aircraft’s air navigation system; using an aircraft as a weapon including to disseminate deadly material and using an aircraft to transport material or individuals to carry out a terrorist attack. It considers the drafting of international treaties (including the most recent, the Beijing Convention and Beijing Protocol of 2010), as well as initiatives by the International Civil Aviation Organization (ICAO) and the UN Security Council.

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Amrith Rohan Perera

This chapter analyses the core negotiating issues surrounding the diplomatic efforts since 2000, and continuing to the present (2019), to conclude a Comprehensive Convention on International Terrorism (CCIT), under the auspices of the United Nations. It first considers the historical background, then turns to current controversy over the so-called ‘definitional issue’. Next, it addresses the rationale for the CCIT and how the Draft CCIT seeks to address gaps in the existing sectoral treaty framework. It then examines the way in which the CCIT seeks to deal with the ‘definitional issue’ through a ‘compromise package’, which addresses the different political and legal considerations involved, and the rationale for and elements of the package. The final section proposes a way ahead to overcome the current impasse.

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Ben Saul

This chapter examines the legal relationship between terrorism and other transnational crimes. It considers how terrorist groups instrumentally commit other transnational crimes in order to support their terrorist activities, as well as when terrorist acts can qualify as other transnational crimes. The overlap and differentiation between terrorism and transnational organized crime is explored by reference to the UN Transnational Organized Crime Convention 2000 (UNTOC) and its three protocols on human trafficking, migrant smuggling, and firearms trafficking. In particular, the chapter examines the distinction between politically motivated terrorism and the financial or material benefit that is central to the definition under the UNTOC. Beyond the UNTOC, the chapter then investigates the relationship between terrorism and a cluster of more disparate transnational crimes, including drug trafficking, illicit trafficking in cultural property, illicit exploitation of natural resources and environmental crimes, and kidnapping for ransom. The chapter identifies gaps in existing legal regimes.