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International Law and Terrorism: Age-Old Problems, Different Targets

Published online by Cambridge University Press:  09 March 2016

Sharon A. Williams
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 26 , 1989 , pp. 87 - 117
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1989

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References

1 Tokyo Convention on Offences and Certain Other Acts on Aircraft, 1963, 704 UNTS 219, 1970, Can. T. Ser. No. 5, hereinafter “Tokyo Convention.”

2 Hague Convention for the Unlawful Seizure of Aircraft, 1970, 860 UNTS 105, 1972, Can. T. Ser. No. 23, hereinafter “Hague Convention.”

3 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 1971, 974 UNTS 177, 1973 Can. T. Ser. No. 23, hereinafter “Montreal Convention.”

4 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons including Diplomatic Agents, 1974 UNGA Res. 3166 (XXVII), 28 UN GADR Supp. (No. 30), 147, UN Doc. A/9030, reprinted in (1974) 13 Int’l Leg. Mat. 41, hereinafter “IPP Convention.”

5 The Convention Against the Taking of Hostages, 1979, (1979) 18 Int’l Leg. Mat. 1456, hereinafter “Hostages Convention.”

6 Note the 1937 Convention on Terrorism, Hudson, International Legislation, vol. 7, at 86a, which is the only global comprehensive treaty on terrorism. The Convention never came into force as there was a failure on the part of the states that signed to ratify. In fact only India did so. See also the 1977 European Convention on the Suppression of Terrorism, 1977 E.T.S. No. 97, which contains a composite approach following along the lines of the 1937 Convention. This Convention has been looked at as a major breakthrough, as it covers terrorism in almost all its aspects. It demonstrates that the states belonging to the Council of Europe, on account of their regional similarities, are capable, at least in theory, of taking a more comprehensive tack. See also the European Convention on Extradition, 1957 E.T.S. No. 98.

7 See Friedlander, R., Terrorism: Documents of International and National Control (3 vols., 1979)Google Scholar. There have been countless articles written on this subject generally as well as on its specific aspects. This is illustrated by the comments contained in Bassiouni, M. G. (ed.), Legal Responses to International Terrorism: U.S. Procedural Aspects (1988)Google Scholar. In particular, see therein Bassiouni, M. C., “A Policy-Oriented Inquiry into the Different Forms and Manifestations of ’International Terrorism’,” at xv.Google Scholar

8 UNGA Res. 40/61, Dec. 9, 1985.

9 Kirsch, P., Representative of Canada in the Sixth Committee, 42nd Session of the General Assembly, Statement of Oct. 21, 1987, at 2 (original in French).Google Scholar Note also the condemnation of terrorism made at the Venice Economic Summit on June 9, 1987, by the seven industrialized states and transmitted to the General Assembly and Security Council of the United Nations : see UN Docs. A/42/336 and S/18913.

10 See the proposal by the Syrian Arab Republic to convene an international conference to do this: UN Doc. A/42/193. Note the support for this by Democratic Yemen, Algeria, and Kuwait on behalf of the Group of Arab states: UN Doc. A/42/193/ Add. 1–3.

11 Supra note 9, at 6. Many other delegations took the same view and twenty states together with Canada introduced draft resolution A/C.6/4S/L.2, which reaffirms and is largely based on the earlier resolution 40/61.

12 Ibid., 7.

13 Hague Convention on the Unlawful Seizure of Aircraft, 1970.

14 Montreal Convention, 1971.

15 IPP Convention, 1974.

16 Hostages Convention, 1979.

17 The Convention on the Physical Protection of Nuclear Material, 1979, reprinted in ( 1979), Int’l Leg. Mat. 1419.

18 For a recent summation of the work of ICAO in the area before adoption of the 1988 Convention under consideration here, see the article by the late FitzGerald, G. F., “Aviation, Terrorism and the International Civil Aviation Organization,” (1987) 25 Canadian Yearbook of International Law 219.Google Scholar

19 See, for example, the 1988 Protocol to the Extradition Treaty between Canada and the United States of America, 1976 Can. T.S. No. 3. This Protocol, which is not yet in force, will amend the treaty by limiting the political offence exception to the greatest extent. See Art, 4. Similarly, see the new extradition treaty of 1987 between Canada and India which in Art. 5 contains a similar restriction.

20 The El Al check-in counter was the target and two passengers were killed and 39 wounded.

21 This incident occurred on Dec. 27, 1985, in front of the El Al check-in counter. The terrorists opened fire with guns and grenades and 15 people were killed and 77 wounded.

22 The following non-exhaustive list of airport violence reinforces the problem : 1973 J 3 incidents (Calvi; Rome; Athens) ; 1974, 2 incidents (Heathrow; Los Angeles); 1975, 2 incidents (Orly; La Guardia); 1976, 4 incidents (Tel Aviv; Delhi; Beirut; Ajaccio); 1979, 2 incidents (Frankfurt) ; 1981, 2 incidents (Collingwood; Cairo) ; 1982, 2 incidents (Miami; Los Angeles) ; 1983, 2 incidents (Narita; Orly) ; 1984, 2 incidents (Kabul; Beirut) ; 1985, 4 incidents (Frankfurt; Vienna; Rome; Narita). Note the European Conference of Ministers Responsible for Combatting Terrorism, Strasbourg, Nov. 4-5, 1986, Rec. 1024 (1986) Doc. 5518 on the European Response to Terrorism.

23 Montreal Convention, Art. 2(a).

24 Montreal Convention, Art. 2(b).

25 Australia, Austria, Belgium, Chile, Columbia, Denmark, France, Finland, Greece, Iceland, India, Ireland, Italy, Luxembourg, Mexico, Norway, The Netherlands, New Zealand, Philippines, Portugal, Saudi Arabia, Sweden, Switzerland, Turkey, and Uganda.

28 Doc. A26-WP/4i,EX/g, 14/7/86.

27 E.g., see Green, L. C., “Terrorism and International Law,“ Research Report, Institute of Jewish Affairs, in Association with the World Jewish Congress (1981), II.

28 See ICAO Doc. 9502-LC/186 (1987), at 4–1.

29 Res. A26-4. See ibid., at 1 and 4–1.

30 Ibid. The Sub-Committee was established by the Chairman of the Legal Committee under Rule 12(b) of the Rules of Procedure of the ICAO Legal Com-mittee. See ibid., 4–1.

31 Dr. R. D. van Dam (The Netherlands) was appointed Rapporteur under Rule 17 of the Rules of Procedure of the ICAO Legal Committee by the Chairman. Ibid.

32 Supra note 28, at 4–10.

33 See the Sub-Committee Report on the Development of an instrument for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Montreal, January 1987, LC/SC-VIA, Part II, 5. Note also Art. 1 of the Protocol itself.

34 Supra note 28, at 4–27.

35 Ibid., 4–27.

36 Ibid., 4–5.

37 It would have been included as para. 2 bis to Art. 4 of the Montreal Convention. See supra note 33, at 8.

38 Ibid., 9.

39 Ibid.

40 Ibid.

41 Ibid.

42 Supra note 28, at 4–18.

43 Ibid., 4–20.

44 ICAO Doc. LC/26-WP/4–6.

45 Supra note 28, at 4–19.

46 Kirsch, “The [988 ICAO and IMO Conferences Against Terrorism and a Look at History: Will the Consensus Hold?,” unpublished speech given in his capacity as Director, Legal Operations Division, Dept. of External Affairs, Canada, at a dinner meeting of the International Law Association, Ottawa Branch, May 18, 1988.

47 Supra note 28, at 4–5.

48 Ibid., 4–5.

49 Ibid., 28, 4–20–4–21.

50 Ibid., 4–21.

51 Ibid.

52 Emphasis added.

53 There have been other instances, such as the seizure in 1975 of the Suehiro Maru in Malsugat Bay in the Philippines by members of the Moro Liberation Front. See Stephens, H. , “Maritime Terrorism and Piracy: Problems and Solutions in the Mid-1980s,” in Alexander, Y. (ed.), The 1986 Annual on Terrorism 165 (1987).Google Scholar

54 See ibid., 172, where the author states to the contrary that reactions to the Achille Lauro affair was “long on symbolism, but short on substance.” However, this article was written before the adoption of the 1988 Rome Convention. At the stage of his writing, the IMO had only in 1986 adopted a non-binding resolution expressing concern about maritime terrorism with the recommendation that states adopt more stringent security measures for passenger ships and their ports of call.

55 See e.g., on the Achille Lauro, G. Constantinople, “Towards a New Definition of Piracy: The Achille Lauro Incident,” (1986) 26 Va. J. Int’l L. 723; J. McCredie, “Contemporary Issues of Force Against Terrorism: The United States Response to Achille Lauro — Questions of Jurisdiction and Its Exercise,“ ( 1986) 16 Ga. J. Int’l and Comp. L. 435; G. McGingley, “The Achille Lauro Affair: Implications for International Law,” (1985) 52 Tenn. L. Rev. 691 ; and Paust, J., “Extradition and United States Prosecution of the Achille Lauro Hostage-Takers: Navigating the Hazards,” (1987) 20 Vand. J. Int’l L. 235.Google Scholar

56 IMO Doc. SUA/CONF/15, Mar. 10, 1988.

57 IMO Doc. SUA/CONF/16, Mar. 10, 1988.

58 UNGA Res. 3166 (XXVIII), Sept. 14, 1973.

59 IMO Doc. SUA/CONF/WP. 1, Mar. 9, 1988, at 1.

60 Ibid.

61 Ibid., 1–2.

62 IMO Doc. PCUA a/a. See IMO Doc. PCUA 2/5, June a, 1987, at 2 and IMO Doc. PCUA 1/3, Feb. 3, 1987, at 1.

63 450 UNTS 82.

64 Third UN Conference on the Law of the Sea, Off. Rec, Vol. XVII, at 139; reprinted in (1982) 21 Int’l Leg. Mat. 1245.

65 Supra note 55.

66 IMO Doc. PCUA 2/5, June 2, 1987, at 4.

67 See Rome Convention 1988, Art. 2(2) and IMO Doc. PCUA 2/5 at 7.

68 Ad Hoc Preparatory Committee, ist Sess. Agenda item 4, IMO Doc. PCUA/14, Mar. 16, 1987, para. 30.

69 Ibid.

70 Ibid.

71 Supra note 62, IMO Doc. PCUA 2/5, at 12.

72 Ibid.

73 IMO Doc. PCUA 1/4, Mar. 16, 1987, at 22.

74 IMO Doc. PCUA 1/3/3.

75 IMO Doc. SUA/CONF./WP. 1, Mar. 9, 1988, at 6.

76 Supra, note 56, Art. 5.

77 See Art. 6(5).

78 J. Paust, supra note 55, at 254, with respect to the same provision in the Hostages Convention.

79 Halberstam, M., “Terrorism on the High Seas : The Achille Lauro, Piracy and the IMO Convention on Maritime Safety,” (1988) 8 a Am. J. Int’l L. 269, at 271. See also ibid., where the author argues further that terrorism is subject to universal jurisdiction under customary international law and that the conventions “create customary international law.”Google Scholar

80 Ibid., 296. Note that the Restatement (Third) of Foreign Relations Law of the United States ( 1987), s. 402, provides that although not generally accepted for all crimes, it has been increasingly used concerning terrorist acts.

81 Ibid.

82 See Halberstam, supra note 79, at 296 citing IMO Doc. PCUA 2/5, at 18, June 2, 1987, para. 89.

83 See supra note 64, Art. 110.

84 Ibid., Art. 111(2).

85 Supra note 44.

86 See Halberstam, supra note 79, at 297. Note Rosenstock, R., “International Convention Against the Taking of Hostages: Another Community Step Against Terrorism,” (1980) 9 Den. J. Int’l L. and Pol. 169, at 181,Google Scholar where he argues that, based on the legislative history of that Convention, there is no doubt that prosecution is not dependent upon an extradition request.

87 Halberstam, ibid., 303.

88 Supra note 73, at 22.

89 Arts, 12–14.

90 Art. 12(1).

91 E.g., see the 1985 Treaty between Canada and the United States on Mutual Assistance in Criminal Matters, not yet in force, reprinted in ( 1985) 24 Int’l Leg. Mat. 1092. Note also the European Convention on Mutual Assistance in Criminal Matters, 1959 Eur. T.S. No. 30.

92 Art. 13(1) (a).

93 Art. 13(1) (b).

94 See Arts. 4(a) and (b).

95 See also Art. 1 a of the Montreal Convention.

96 IMO Doc. PCUA i/WP.17, Mar. 5, 1987.

97 Art. 16(1).

98 Art. 16(2).

99 Art. 18(1).

100 SeelMODoc. SUA/CONF. 16/Rev. i.Mar. 10, 1988.

101 Ibid., Art. 5(4).

102 IMO Doc. SUA/CONF. 4, Aug. 28, 1987.

103 Supra note 100, Art.

104 Ibid., Art. 1(2).

105 Ibid., Art. 1(3).

106 PCUA 2/5, at 29.

107 Ibid.

108 Ibid.

109 Ibid., 30.

110 Ibid.

111 Supra note 62, at 3.

112 Supra note 100, Art. 6(1).