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Preliminary Thoughts Towards an International Convention on Terrorism

Published online by Cambridge University Press:  28 March 2017

Thomas M. Franck  and
Bert B. Lockwood Jr.
Thomas M. Franck
Affiliation:
Of the Board of Editors
Bert B. Lockwood Jr.
Affiliation:
Center for International Studies, New York University
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American Journal of International Law , Volume 68 , Issue 1 , January 1974 , pp. 69 - 90
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Copyright © American Society of International Law 1974

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References

1 Measures To Prevent International Terrorism Which Endangers Or Takes Innocent Human Lives Or Jeopardizes Fundamental Freedoms, And Study Of The Underlying Causes Of Those Forms Of Terrorism And Acts Of Violence Which Lie In Misery, Frustration, Grievances And Despair And Which Cause Some People To Sacrifice Human Lives, Including Their Own, In An Attempt To Effect Radical Changes” (Study prepared by the Secretariat for the Sixth Committee), UN Doc. A/C.6/418, at 10 (1972). First, Warsaw, Nov. 1–5, 1927; Second, Rome, May 21–25, 1928; Third, Brussels, June 26–30, 1930; Fourth, Paris, Dec. 27–31, 1931; Fifth, Madrid, Oct. 14–20, 1934; Sixth, Copenhagen, Aug. 31-Sept. 3, 1935. The specific types of revisions are discussed in the text at notes 79–81 infra.

2 A concise procedural history of the steps leading to the 1937 Convention on Terrorism are set out in the opening speech of the President of the Conference which drew the final draft. “Proceedings of the International Conference on the Repression of Terrorism,” League of Nations Doc. C.94.M.47.1938.V(1938.V.3), at 49–50.

3 Id. Annex I at 183. The Committee was composed of experts appointed by the following governments: Belgium, United Kingdom, Chile, France, Hungary, Italy, Poland, Romania, Spain, Switzerland, and the USSR. Id., at 49.

4 Supra note 2, Appendix I, at 196. The text of the 1937 Convention is also set out in the UN Secretariat Study supra note 1, Annex I, at 1.

5 India ratified the Convention on Jan. 1, 1941. The Convention was signed, however, by the following states: Albania, Argentine Republic, Belgium, India, Bulgaria, Cuba, Dominican Republic, Egypt, Ecuador, Spain, Estonia, France, Greece, Haiti, Monaco, Norway, Netherlands, Peru, Romania, Czechoslovakia, Turkey, Union of Soviet Socialist Republics, Venezuela, and Yugoslavia.

6 Dugard, , Toward the Definition of International Terrorism, Proc. Amer. Soc. Int. Law, 67 AJIL 94 (No. 5) (1973)Google Scholar.

7 29 Brit. Y.B. Int. L. 215 (1938).

British criminal law differs in many ways from continental codes, and it would not be easy to give simple and accurate effect to obligations making penal incitement to the commission of terrorists acts abroad and instituting certain new offenses as to explosives.

The separate action taken by India in relation to the Convention is worthy of remark. It is believed that this is the first occasion on which India has signed at Geneva a multilateral diplomatic convention to which no other member of the British Commonwealth is becoming a party. India has her own special terrorist problem; it was thus natural that her attitude should not be the same as that of the other members of the British Commonwealth. Her separate membership of the League enabled her to give appropriate effect to her own policy. From the Indian point of view it is to be observed with regret that the French signature of the Convention was expressly declared to have no effect as to French colonial possessions, and in particular as to Pondicherry and Chandernagore.

Id., at 215–16. See also statement by the British delegate to the 1937 Conference, supra note 2, at 52.

8 UN Doc. A/C.6/418, at 40 (1972).

9 For an overall view see the analytical study prepared by the Secretary-General on the “Observations of States Submitted in Accordance with General Assembly Resolution 3034 (XXVII),” UN Doc. A/AC. 160/2 (1973).

10 Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, [1969] 3 UST 2941, TIAS No. 6768; 58 AJIL 566 (1964).

11 Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, [1971] 22 UST 1641, TIAS No. 7192; 65 AJIL 440 (1971).

12 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, TIAS No. 7570; 66 AJIL 455 (1972); 10 ILM 1151 (1971).

13 For twenty-five days, the 101 members of the International Civil Aviation Organization met in two sessions. One was an extraordinary assembly to update the thirty-year old constitution for the agency; the other was a diplomatic conference on new measures to strengthen its agreements. A number of proposals calling for harsh measures against hijackers and nations that failed to take effective action against hijackers were voted down. The Arab-Israeli dispute was in large part responsible. Even a mild U.S. backed Soviet proposal giving preference to extradition of hijackers over their prosecution in the country in which they land was rejected. The Arab states voted against the Soviet proposal, and it failed to get the required two-thirds majority. The proposal would have been binding only on states signing it, rather than on all the members of the organization. Toronto Globe & Mail, Sept. 22, 1973, at 11. See also Washington Post, Sept. 22, 1973, §A at 18.

14 OAS Off. Records/Ser. G, CP/Doc. 54/70 Rev. I (1970); 65 AJIL 898 (1971). For a discussion of the Convention see Comment, , The Inter-American Convention on the Kidnapping of Diplomats, 10 Col. J. Transnat’l L. 392 (1971)Google Scholar. See also note, , Terrorist Kidnapping of Diplomatic Personnel, 5 Cornell Int. L. J. 189 (1972)Google Scholar.

15 27 UN GAOR Supp. 10, at 94, UN Doc. A/8710/Rev.l (1972).

16 UN Doc. A/8791 (1972).

17 UN Doc. A/8800/Rev.l (1972).

18 UN Doc. A/C6/418, at 5 (1972).

19 UN Doc. A/8969 (1972).

20 G. A. Res. 3034, 27 UN GAOR Supp., para. 9 (1972). The thirty-five members of the Committee include: Algeria, Austria, Barbados, Canada, Congo, Czechoslovakia, Democratic Yemen, France, Greece, Guinea, Haiti, Hungary, India, Iran, Italy, Japan, Mauritania, Nicaragua, Nigeria, Panama, Sweden, Syrian Arab Republic, Tunisia, Turkey Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, United Kingdom of Great Britain and Northern Ireland, United Republic of Tanzania, United States of America, Uruguay, Venezuela, Yemen, Yugoslavia, Zaire, and Zambia. Panama has been designated permanent Chairman.

21 Draft Report of the Ad Hoc Committee on International Terrorism, UN Doc. A/ AC.160/L.3, at 4 (1973).

22 9 The Oxford English Dictionary 216 (1911). For a recent study of “state terrorism” which is both theoretical and case-oriented see Walter, E., Terror and Resistance (1969)Google Scholar. For a revealing account of the tactics of intimidation employed by the South African Government see Carlson, J., No Neutral Ground (1973)Google Scholar.

23 Supra note 1, at 6. The term “terrorism” was expressly used for the first time in an international penal instrument at the Third (Brussels) International Conference for the Unification of Penal Law, June 26–30 (1930), Actes de la Conférence (1931). The pertinent sections are quoted in the Secretariat Study, supra note 1, at 11–12.

24 Supra note 9, at 9.

25 Observation to the Ad Hoc Committee on International Terrorism submitted by the Syrian Republic, UN Doc. A/AC. 160/1, at 36 (1973). Not surprisingly Syria lists as the principal example of state terrorism the practises of Israel respecting the Palestinians. Id., at 37. See further the statement of the Yemen Arab Republic, UN Doc. A/AC.160/l/Add.l, at 29 (1973). See also the draft proposal, submitted to the Subcommittee by the non-aligned group in the Ad Hoc Committee, UN Doc. A/AC.160/L.3/Add.l and/Corr.l (1973). This defines state terrorism to include: “Tolerating or assisting by a State the organizations of the remnants of fascist or mercenary groups whose terrorist activity is directed against other sovereign countries.” The non-aligned states on the Ad Hoc Committee were: Algeria, Congo, Democratic Yemen, Guinea, India, Mauritania, Nigeria, Syrian Arab Republic, Tunisia, Tanzania, Yemen, Yugoslavia, Zaire, and Zambia.

26 Id., at 37.

27 Syria’s concept of state terrorism would extend to U.S. actions in Vietnam. UN Doc. A/AC.160/1, at 36 (1973). See also UN Doc. A/AC.160/L.3/Add.l and/Corr.l (1973). On Aug. 10, 1973, Israel jets intercepted a Middle East Airlines jetliner out side of Beirut, Lebanon, and forced the plane to land in a military airfield in Israel. The purpose of the diversion was to capture four leaders of the Palestinian Liberation Organization and to hold a show trial in Israel. The leaders were not on board the aircraft, and after a few hours of inspection and questioning Israel permitted the airliner to resume its flight. The incident provoked widespread protests in the international community, culminating in a UN Security Council Resolution condemning Israel by a vote of 15–0 (Security Council Res. 337 (1973), Aug. 15, 1973). For various accounts of the above incident and world reaction see N.Y. Times, Aug. 11, 1973 at 1, cols. 3 & 4; id., Aug. 12, 1973, at 9, col. 1; id., Aug. 13, 1973, at 1, col. 7; id., Aug. 13, 1973, a t 10, col. 3; id., editorial, Aug. 14, 1973, at 32; id., Aug. 15, 1973, at 1, col. 7; Christian Science Monitor, Aug. 13, 1973, at 1; id., Aug. 14, 1973, at 1; id., at 7; id., editorial at 18. On Aug. 9, 1973, Kim Dae Jung, the leader of the opposition to South Korean President Park Chung Hee, was abducted from a hotel in Tokyo and released in Seoul five days later. At the time of this writing there is evidence to suggest that it was the work of the South Korean CIA. Mr. Kim was released only after the Japanese Government reacted vehemently to the infringement of its sovereignty. Mr. Kim was in exile. For various accounts of the above incident see N.Y. Times, Aug. 9, 1973, at 8, col. 1; id., Aug. 10, 1973, at 3, col. 7; id., Aug. 11, 1973, at 2, col. 1; id., Aug. 15, 1973, at 3, col. 1; Christian Science Monitor, editorial, Aug. 10, 1973, at 16. Six foreigners, including two Israeli agents, have been charged in the murder of a Moroccan waiter slain on July 21, 1973, in Lillehammer, Norway. The Moroccan, according to newspaper accounts, was mistakenly thought to be a member of a Palestinian guerrilla organization. The incident assumed international proportions when the two Israeli agents were discovered hiding in the home of an Israeli Embassy security officer. On Aug. 14, 1973, the Norwegian Government expelled the Israeli security officer. For accounts of the above incident see N.Y. Times, Aug. 15, 1973, at 6, col. 1; Christian Science Monitor, Aug. 2, 1973, at 4.

28 Whiteman, M., 5 Digest of International Law §22 “Nonaggression,” at 719–873 (1965)Google Scholar; 11 Whiteman §2 “Genocide,” at 848–73 (1968); 12 Whiteman §10 “Reprisals,” at 321–28 (1971); 13 Whiteman §11 “Human Rights,” at 660–78 (1968).

29 “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance With the Charter of the United Nations,” G.A. Res. 2625, 25 UN GAOR Supp. 28 (1970). See also 12 Whiteman, supra note 27, §7 “Indirect Aggression,” at 215–33 (1971).

30 The three draft definitions are contained in two annexes to the “Report of the Working Group of the Special Committee on the Question of Defining Aggression,” UN Doc. A/AC.134/L.37 (1972); Annex I, at 2–3.

Indirect Use of Force

Alternative I

The sending by a State of armed bands, irregulars or mercenaries which invade the territory of a State in such force and circumstance as to amount to armed attack as envisaged in Article 51 of t he Charter.

When a State is victim in its own territory of subversive and/or terrorist acts by armed bands, it may take all reasonable and adequate steps to safeguard its existence and its institutions, without having recourse to the right of individual or collective self-defence against the other State.

Alternative II

Every State has the duty to refrain from organizing, or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State.

Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized acivities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.

Indirect Use of Force and Minor Incidents

The Security Council may however in a particular case refrain from the determination of an act of aggression if the act concerned either in regard to intent or extent is too minimal to justify such action.

Annex II (Proposal submitted to the Working Group by Australia, Canada, Italy, Japan, the United Kingdom, and the United States). UN Doc. A/AC.134/L.37/Add. 1, at 1 (1972).

1. The organization or encouragement of the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State.

2. The organization or instigation of or assistance or participation in acts of civil strife or terrorist acts in another State, or acquiescence in organized activities within its territory directed towards the commission of such acts.

31 Art. 2(1), supra note 2, at 197.

32 Art. 2(3), supra note 2, at 197.

33 Art. 2(2), supra note 2, at 197.

34 Art. 2(5), supra note 2, at 197.

35 Supra note 1.

36 Art. 1, Third International Conference for the Unification of Penal Law, supra note 23. For the entire text see Annex I to the reports submitted by the special rapporteurs to the Sixth International Conference for the Unification of Penal Law, Copenhagen, Aug. 31-Sept. 3 (1935), Actes de la Conference 176 (1938). For parts of text pertinent to the discussion on terrorism see the Secretariat Study, supra note 1, at 11.

37 Art. 2(1). Id., at 15.

38 Art. 2(2).

39 Art. 2(4).

40 Art. 6.

41 Art. 1, UN Doc. A/C.6/L850, at 2 (1972). The U.S. draft convention significantly restricts the scope of its provisions, and such restrictions are described below.

42 “The Role of International Law in Combating Terrorism,” Dept. State Pub. 8689, General Foreign Policy Series 270 (1973).

43 UN Doc. A/AC.160/l/Add. 1, at 17 (1973).

44 Id., at 19.

45 Art. 2(1)(6), 27 UN GAOR Supp. 10, at 94, UN Doc. A/8710/Rev. 1 (1972).

46 Art. 1(1), UN Doc. A/C.6/L.850, at 2 (1972), emphasis added.

47 Art. 3(1).

48 Art. 3(2).

49 Art. 3(3).

50 Art. 3(4).

51 Art. 3 (5).

52 Article 1 reads:

Any person who, with a view to terrorizing the population, makes use against persons or property of bombs, mines, explosive or incendiary devices or products, fire-arms or other lethal or destructive devices, or who causes or attempts to cause, propagates or attempts to propagate any epidemic, animal disease or other calamity, or who interrupts or attempts to interrupt any governmental or public utility service shall be punishable by . . . .

This is part of the text adopted by Committee III of the Fourth (Paris) International Conference “together with the recommendation that the consideration of offenses creating a common and general danger should be deferred until the Fifth Conference.” The Fifth Conference did not adopt the five articles as presented by Committee III of the Fourth Conference.

Article 5 of Committee III’s text is also interesting. It reads:

Any persons other than the instigator who, prior to the commission of the offences referred to in the preceding articles and prior to any prosecution, inform the public authorities thereof and disclose to them the perpetrators or who, even after prosecution has been initiated, cause the arrest of the other offenders shall be exempt from punishment.

See Secretariat study supra note 1, at 12–13.

53 Id.

54 27 UN GAOR Supp. 10, at 94, UN Doc. A/8710/Rev. 1 (1972).

55 Id., at 94–95.

56 Id.

57 Id.

58 Id., at 95. Article 2 of the OAS Convention, supra note 14, contains a similar provision:

For the purposes of this Convention, kidnapping, murder and other assaults against the life or personal integrity of those persons to whom the State has the duty to give special protection according to international law, as well as extortion in connection with those crimes, shall be considered common crimes of international significance, regardless of motive.

59 Art. 1(d), UN Doc. A/C.6/L.850, at 2 (1972).

60 Supra note 42, at 5.

61 UN Doc. A/AC.160/l/Add. 1, at 9 (1973), quoted in Secretary-General’s Analysis of Observations, supra note 9, at 7. Similar views were expressed by Germany, Italy, the Netherlands, and the United Kingdom. Id., at 6.

62 Art. 1(2), supra note 2, at 197.

63 UN Doc. A/AC.160/1, at 32 (1973). Quoted in Secretary-General’s Analysis of Observations, supra note 9, at 7.

64 For a summary of these positions, see id., at 7–8.

65 The phrase “indiscriminate acts of violence” appears in the draft reports of the Ad Hoc Committee. UN Doc. A/AC.160/L.3, at 5 (1973). Austria states:

It strongly believes there are limits to the indiscriminate use of force in every form of human conflict. Individual acts of terrorism, particularly those resulting in the loss of innocent human lives in countries which have nothing to do with the conflict in question do . . . exceed these limits and therefore must be condemned. They are likely to threaten the very basis of present day civilization.

Ibid. For statements echoing this sentiment see Belgium (9), Fiji (11), Federal Republic of Germany (10), Iran (13), Italy (14), United Kingdom (41), United States (43), Japan, UN Doc. A/AC.160/l/Add. 1, at 22 (1973); Czechoslovakia, UN Doc. A/AC.ieO/1/Add. 2, at 3 (1973); Yugoslavia, Id., at 5.

66 UN Doc. A/AC.lGO/1/Add. 1, at 5 (1973). Quoted in Secretary-General’s Analysis of Observations, supra note 9, at 19.

67 UN Doc. A/AC. 160/2, at 19 (1973).

68 Art. l ( l ) ( a ) - ( b ) , UN Doc. A/C.6/L.850, at 2 (1972).

69 UN Doc. A/AC.160/l/Add. 1, at 5 (1972).

70 UN Doc. A/AC.160/1, at 25 (1973). The international element in the 1937 Convention was the requirement that “the acts” be directed against another state. Art. 1(2), supra note 2, at 197.

71 Art. 1(1) (b) (i), UN Doc. A/C.6/L.850, at 2 (1972).

72 Art. 1(1) (b) (ii), id.

73 Restatement (Second) of the Foreign Relations Law of the United States. §§17, 30, 33, and 34 (1965).

74 Draft Convention on Jurisdiction. Harvard Law School Research in International Law 519 (1935).

75 Sarkar, , The Proper Law of Crime in International Law in Mueller, G. and Wise, E. (eds.), International Criminal Law 50 at 51 (1964)Google Scholar.

76 Supra note 74, at 543.

77 Jimenez de Azua, L., 2 Tratado de Dehecho Penal 757 (1964)Google Scholar. Respecting piracy, see supra note 74, at 563.

78 UN Doc. A/C.6/418, at 16 (1972).

79 Id., at 17–18. Cited by way of illustration is the Agreement on Extradition among Ecuador, Peru, Colombia, Bolivia, and Venezuela of 1911: “Article 4 . . . an attack on the life of a Chief of State will not be considered a political offense or an act in connection with it.” 2 Tratados Publicos de Venezuela 435.

80 Id., at 19. Cited by way of illustration is the Central American Extradition Convention of 1934: “Article 3 . . . anarchistic attacks shall not be considered as political crimes.” 68 Pan American Union Bull. 416 (June 1934).

81 Id., at 21. Cited by way of illustration is the Draft Extradition Convention approved by the International Law Association in 1928: “Article 7 . . . Nevertheless the extradition of a person accused or convicted of a crime involving the loss of human life or grievous bodily harm . . . shall be accorded notwithstanding the political character of the crime alleged.” International Law Association, Report of the 35th Conf. 326 (1928).

82 Supra note 15, at 98.

83 Id., at 99.

84 R. v Governor of Pentonville Prison, ex parte Tzu-Tsai Cheng [1973] 1A11 E.R. 935 (Q.B.), aff’d [1973] 2 All E.R. 204 (H.L.). The case involved a dissident Taiwanese who attempted to murder Chiang Kai-shek’s son in New York on April 24, 1970. He was convicted of attempted murder but fled to Sweden while on bail awaiting sentencing. After long extradition proceedings in Sweden, he was placed on a plane to New York; however, he fell unconscious during flight and was taken to London. The United States applied for extradition, and the Taiwanese national applied for a writ of habeas corpus contending that the offense was one of a political character and not extraditable. Noting that this was “the first occasion on which this precise point” had arisen, James, L.J., drew upon the reasoning in another extradition case, quoting Lord Radcliffe “In my opinion the idea that lies behind the phrase ‘offence of a political character’ is that the fugitive is at odds with the state that applies for his extradition on some issue connected with the political control or government of the country. The analogy of ‘political’ in this context is with ‘political’ in such phrases as ‘political refugee’, ‘political asylum’ or ‘political prisoner’. It does indicate . . . that the requesting state is after him for reasons other than the enforcement of the criminal law in its ordinary, what I may call its common or international aspect.” (Schtraks v. Government of Israel, [1962] 3A11 E.R. 529, 540; [1964] A.C. 556, 591, quoted in id., at 938–39.) On Aug. 8, 1973, the Taiwanese dissident was sentenced by a New York Court to a maximum of five years. N.Y. Times, Aug. 9, 1971, at 9, col. 1.

85 Art. 8(1):

When the principle of the extradition of nationals is not recognised by a High Contracting Party, nationals who have returned to the territory of their own country after the commission abroad of an offence mentioned in Articles 2 or 3 shall be prosecuted and punished in the same manner as if the offence had been committed in their own country, even in a case where the offender has acquired his nationality after the commission of the offence.

Supra note 2, at 188.

86 UN Doc. A/C.6/L.850, at 3 (1972). Art. 3:

A State Party in whose territory an alleged offender is found shall, if it does not extradite him, submit, without exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State.

87 UN Doc. A/C.6/418, Annex III, at 3 (Hague); Annex IV, at 4 (Montreal) (1972). Hague and Montreal Conventions, Art. 7:

The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.

88 UN Doc. A/AC.160/l/Add. 1, at 5 (1973).

89 Canada’s provisions respecting piracy and hijacking are illustrative of this type of legislation.

Piracy

(1) Every one commits piracy who does any act that, by the law of nations, is piracy.

(2) Every one who commits piracy while in or out of Canada is guilty of an indictable offence and is liable to imprisonment for life, but if while committing or attempting to commit piracy he murders or attempts to murder another person or does any act that is likely to endanger the life of another person he shall be sentenced to death.

2 Can. Rev. Stat. C. 34, §75 (1970).

Air Crimes

Notwithstanding this Act or any other Act, every one who . . .

In relation to an aircraft in service, commits an act or omission outside Canada if committed within Canada would be an offence . . . shall, if he is found anywhere in Canada, be deemed to have committed that act or omission in Canada.

§6.1(1) (b) Can. Criminal Code, as amended by §3, Criminal Law Amendment Act of 1972.

90 E.g., see Report of UN Consultative Group on Prevention of Crime and Treatment of Offenders, UN Doc. St/SOA/91 (1968).

91 U N Doc. A/C.6/L.850, at 2 (1972).

92 See Dawson, F. & Head, I., International Law, National Tribunals, and the Rights of Aliens 114–19 (1971)Google Scholar.

93 UN Doc. A/AC.160/L.3/Add. 2, Annex, at 6–7 (1973).

94 UN Doc. A/AC.160/L.3/Add. 1/Corr. 1, para. (3) (1973).

95 Cf. Meron, , Some Legal Aspects of Arab Terrorists’ Claims to Privileged Combatancy, 40 Nordisk Tidsskrift for International Ret 47 (1970)Google Scholar.

96 See Carey, J., Un Protection of Civil and Political Rights (1970)Google Scholar.

97 See, for example, the recent flexible approach of the Court to the expanding use of the advisory opinion process reflected in: Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, [1973] ICJ 166.