| During the 51 st Session of the UN General Assembly in 1996,India submitted its Draft International Convention on the Suppression of Terrorism for discussion by Member States.In 2000,the 55 th Session of the UN General Assembly began to consider the revised Draft Comprehensive Convention on International Terrorism submitted by India.Article 2(1)of the Draft Comprehensive Convention defined―terrorist crime‖ as follows: ―Any person commits an offence within the meaning of this Convention if that person,by any means,unlawfully and intentionally,causes:(a)Death or serious bodily injury to any person;or(b)Serious damage to public or private property,a place of public use,a State or government facility,a public transportation system,or an infrastructure facility;or(c)Damage to property,places,facilities,or systems referred to in paragraph 1(b)of this article,resulting or likely to result in major economic loss;when the purpose of the conduct,by its nature or context,is to intimidate a population,or to compel a Government or an international organization to do or abstain from doing any act.‖ Malaysia on behalf of the Organization of the Islamic Cooperation(OIC)Group proposed to define ―terrorism‖and ―terrorist crime‖ respectively.And it suggested that a new paragraph should be added to article 2 which read as follows: ―Peoples‘ struggle including armed struggle against foreign occupation,aggression,colonialism,and hegemony,aimed at liberation and self-determination in accordance with the principles of international law shall not be considered a terrorist crime.‖ Two years later,the Member States of the OIC revised its proposal.The amended proposed text read: ―The activities of the parties during an armed conflict,including in situations of foreign occupation,as those terms are understood under international humanitarian law,which are governed by that law,are not governed by this Convention.‖ Since the Member States of the OIC and other states failed to reach a compromise on the issue of national liberation movements,this general counter-terrorism convention has not been adopted so far.Against this background,this thesis attempts to resolve the issue of identifying terrorist crime in national liberation movements by the proposed concept of terrorist crime during armed conflicts,and further removes obstacles for the adoption of the Draft Comprehensive Convention on International Terrorism.The solution in more detail is explained as follows.First,in accordance with the Additional Protocol I to the Geneva Conventions(hereinafter referred to as ―Additional Protocol I‖),situations of national liberation movements in the exercise of the right of self-determination constitute international armed conflicts,and are thus governed by international humanitarian law.Meanwhile,Additional Protocol I prescribes war crime of acts of terrorism as an international crime,implying that it is a rule of customary international law that acts or threats of violence for the primary purpose of spreading terror in national liberation movements constitute war crime of acts of terrorism.And such a rule applies to all nations.As can be seen,the research on terrorist crime during armed conflicts is significant,and relevant legal issues will be demonstrated at three levels.The first level concerns premised issues.As many scholars have pointed out,acts of terrorism during armed conflicts can be punished with war crimes and crimes against humanity.Then is it necessary to convict the perpetrators of terrorist crime? If so,does the crime of terrorism have theoretical and practical basis? The second level involves issues of the crime itself,i.e.,the definition of terrorist crime during armed conflicts.Besides fulfilling the elements of terrorist crime in general,it should also satisfy several special requirements thanks to the application of international humanitarian law.The third level is related to the application of terrorist crime during armed conflicts.Are there any precedents involving war crime of acts of terrorism in international criminal tribunals? How should this offence be added to the jurisdiction of the International Criminal Court? And if the same conduct leads to this war crime of acts of terrorism and other crimes in the Rome Statute,how shall the Court deal with the matter of cumulative convictions?Based on the above mentioned,the thesis is laid out in a progressive structure.Apart from the Introduction and Conclusion,this thesis consists of five chapters,discussing the theoretical basis,the definition and the application of terrorist crime during armed conflicts successively.Chapter I examines the concept and basis of terrorist crime during armed conflicts,involving a general introduction to terrorist crime during armed conflicts,the different laws for defining terrorist crime in peacetime and during armed conflicts,the formation of rules of international law prohibiting acts of terrorism during armed conflicts,and the legal basis for proving the existence of terrorist crime during armed conflicts in international law.This Chapter would provide an introduction to the concept of terrorist crime during armed conflicts,and explain the reason to distinguish it from terrorist crime in peacetime.Following these narration,this Chapter will finally demonstrate that the existence and establishment of terrorist crime during armed conflicts not only has legal basis in theory but also is necessary in reality.The terrorist crime during armed conflicts refers to acts or threats of violence against innocent persons committed by any person for the purpose of spreading terror and out of political motives,and the conduct does not conform to international humanitarian law.After numerous postwar investigations and trials from WWI to the adoption of the two additional protocols of 1977,the rule prohibiting acts of terrorism in armed conflicts has developed from a draft rule to a formal rule of international humanitarian law.Moreover,Additional Protocol I prescribes acts of terrorism as the grave breaches in article 85(3),thus implying the offence of war crime of acts of terrorism.However,this offence is not expressly prescribed in any comprehensive treaties,and most sectoral treaties exclude themselves from applying to armed conflicts.At the same time,terrorist crime would bring about prolonged atmosphere of fear in society because of its dolus specialis of spreading terror to the public.As a result,it is of special severity compared with ordinary crimes.The aforementioned factors show that it is both consistent with international law and urgent in practice to make terrorist crime during armed conflicts a separate crime.Chapter II discusses the elements of terrorist crime during armed conflicts,including its general elements(i.e.the objective elements,subjective elements and subject elements)and special conditions required in the context of armed conflicts.The main purpose of this Chapter is to clarify each constituent element for charging a defendant with terrorist crime.Among the general elements,the author focuses on the issue of state terrorism.Afterwards,based on the characteristics of the context of armed conflicts,the author proposes two additional elements not required by terrorist crime in peacetime—the acts of terrorism take place in the context of and are associated with an armed conflict,and the acts of terrorism are not consistent with international humanitarian law.Above all,the author separately analyzes the objective,subjective and subject elements of terrorist crime in accordance with international law in the first Section,concluding with the definition of this crime in international law.Terrorist crime is acts or threats of violence perpetrated by individuals,organizations or States,attacking any persons,a State or government facility,a public transportation system,an infrastructure facility,a public place,important natural resources,the environment,private properties and other innocent targets or targets significant to the interests of a State,with the purpose of seriously intimidating a population and creating the atmosphere of fear in society,and the ultimate political goal of unduly compelling a Government or international organization to perform or abstain from performing any act.Then the author will submit the additional requirements for fulfilling terrorist crime during armed conflicts.First,the acts of terrorism should take place in an armed conflict according to the time frame and geographical scope,and they shall be closely related to the armed conflict as well.Secondly,where the acts of terrorism are committed against persons,they shall not be deemed as terrorist crime if the perpetrator attacks the combatants or civilians taking a direct part in hostilities.Thirdly,where acts of terrorism are committed against properties,if the perpetrator attacks military objectives,and refrains from causing incidental injury to civilians and damage to civilian objects excessive in relation to the concrete and direct military advantage anticipated,he shall not be convicted of terrorist crime.Chapter III delves into the issue of the application of terrorist crime during armed conflicts to the situation of national liberation movements.Issues concerned include the legal basis each State relies on to support or oppose judging acts of terrorism in national liberation movements as terrorist crime,the relationship between terrorist crime and the principle of self-determination,and the solution of the issue of national liberation movements with war crime of acts of terrorism.This Chapter aims at finding out the reasons for excluding national liberation movements from the definition of terrorist crime,and then examining the legitimacy of these reasons one by one,finally proposing a solution to such a deadlock.The Draft Comprehensive Convention on International Terrorism is a multilateral treaty for suppressing terrorism across the board.Nevertheless,since the Member States of the OIC have been persistently objecting to including the situation of national liberation movements in the Convention,the negotiation came to a deadlock.This Chapter seeks out the justifications from the resolutions adopted through the OIC.These States believe that the national liberation movements launched by their people for fighting against alien occupation and striving for national independence and liberation is the exercise of their right of self-determination enshrined in the UN Charter,which is absolutely lawful.As a response,the author argues that the oppressed nations‘ right of struggling for self-determination by force prescribed by the Friendly Relations Declaration and the Definition of Aggression is not unlimited.There is a precondition for using force,that is only when the exercise of the right of self-determination by peaceful means is impeded by forcible action can the oppressed nations use force.Under this circumstance,the use of force shall comply with international law(esp.international humanitarian law).Notwithstanding,in order to protect their national interests,the Member States of the OIC as sovereign States can reject signing the Draft Comprehensive Convention covering the situation of national liberation movements,thereby preventing the acts of terrorism in these situations from punishments by the counter-terrorism treaties.Facing such an impasse,the author proposes her own solution.On the one hand,Additional Protocol I prohibits acts threats of violence with the primary purpose of spreading terror among the civilian population in international armed conflicts,and prescribes such acts as grave breaches to constitute war crime of acts of terrorism.On the other hand,Additional Protocol I also prescribes that national liberation movements fighting against colonial domination,alien occupation and racist regimes shall be deemed as international armed conflicts,which are governed by the rules of terrorist crime hereinabove.In other words,acts or threats of violence with the primary purpose of spreading terror among the civilian population in national liberation movements will constitute war crime of acts of terrorism.This conclusion is a rule of customary international law binding on all States.Therefore,it can be employed to rebut the OIC‘s contention of excluding national liberation movements from terrorist crime.Chapter IV addresses the issue of the concurrence of terrorist crime during armed conflicts and other similar crimes,including the relationship between terrorist crime during armed conflicts,war crimes and crimes against humanity,and the test accepted by international criminal tribunals to deal with the matter of cumulative convictions when the same act fulfils elements of multiple crimes.This Chapter would put forward and solve the issue of concurrence of crimes arising from the application of terrorist crime during armed conflicts.Now that elements of terrorist crime during armed conflicts overlap those of war crimes and crimes against humanity,it is possible that the same act would constitute several crimes simultaneously.At this time,shall the court convict with one crime or multiple crimes? Based on numerous precedents of the ICTY,ICTR and ICC,the author illustrates the widely accepted ―different elements test‖.According to this test,multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.An element is materially distinct from another if it requires proof of a fact not required by the other.Where this test is not met,the conviction under the more specific provision which contains an additional materially distinct element should be upheld.Afterwards,this Chapter analyzes the very contesting issue whether the context element shall be taken into consideration.Chapter V proposes suggestions for improving the mechanism of punishing terrorist crime during armed conflicts at the international plane.It looks into the practice of the international criminal tribunals under the UN which convicts the defendants with war crime of acts of terrorism,surveys the Preparatory Commission for the ICC‘s unsuccessful attempt to include terrorist crime into the jurisdiction of the ICC,and puts forward the proposal of adding war crime of acts of terrorism to the Rome Statute.By analyzing the precedents involving war crime of acts of terrorism of the ICTY and SCSL,this Chapter concludes with a feasible proposal for adding war crime of acts of terrorism to the jurisdiction of the ICC,thereby improving the judicial mechanism of the international society of punishing acts of terrorism in armed conflicts.Up to now,the ICTY and SCSL have convicted many defendants of war crime of acts of terrorism.Nevertheless,terrorist crime during armed conflicts has not been added to the Rome Statute so that the ICC could exercise jurisdiction over it.According to the records upon the crime of terrorism during the Rome Conference,the main reasons can be listed as follows.First,the crime of terrorism is not serious enough.Secondly,the crime of terrorism is a treaty crime.Thirdly,such a concept lacks a clear definition.Fourthly,the political nature of the crime of terrorism might hurt ICC‘s legitimacy and credibility as an impartial judicial institution.And the fifth ground is the desire to avoid overburdening the ICC.The author examines whether these reasons are still relevant today,and whether they are persuasive enough to exclude the crime of terrorism from the Rome Statute.After coming to a negative conclusion,the author not only advances the draft article of war crime of acts of terrorism to be added to the Rome Statute and the suggested text of its elements,but also analyzes in detail the way to decide whether to permit cumulative convictions of war crime of acts of terrorism and other crimes and the way to select a conviction if cumulative convictions are not permissible. |
