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The ‘law’ and ‘transnational terrorism’*

Published online by Cambridge University Press:  07 July 2009

G. Gilbert
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One of the fears mentioned most often in regard to the ending of border controls within the European Union is that it will make it easier for transnational terrorists to perpetrate their cross-frontier crimes. And this despite the fact that there are within the Treaty of European Union (hereinafter TEU) mechanisms designed to meet the problem. The defenders of open borders would point to the Third Pillar of the TEU as showing how the Member States have agreed in international conclave to fight transnational terrorism. However, this reference to an international agreement ignores the fact that the attitude of States towards transnational terrorism, even States within Europe, has hardly been rigorous in the past. This article looks at the effectiveness of international measures taken to combat transnational terrorism and the reasons that lie behind the limitations found within those laws. While the relaxation of border controls may be ‘the spark that lit the fire,’ the effectiveness of international anti-terrorist agreements in general is of such fundamental relevance that some consideration is due this wider question in order to determine possible future strategies towards transnational terrorism, whether within the European Union or beyond. It is these more fundamental issues that are the focus of this article.

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Articles
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Netherlands Yearbook of International Law , Volume 26 , December 1995 , pp. 3 - 32
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Copyright © T.M.C. Asser Press 1995

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References

1. OJ 1993 C 224.

2. Title VI – Provisions on Co-Operation in the Fields of Justice and Home Affairs. See for example, Art. K.1.

‘K.1 For the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community, Member States shall regard the following areas as matters of common interest:

…

7. judicial co-operation in criminal matters;

…

9. police co-operation for the purposes of preventing and combatting terrorism, unlawful drug trafficking and other serious forms of international crime, …, in connection with the organisation of a Union-wide system for exchanging information within a European Police Office (Europol).’ See also den Boer, M., ‘Europe and the Art of International Police Co-operation: Free Fall or Measured Scenario?’Google Scholar, in: O'Keeffe, D. and Twomey, P.M., Legal Issues of the Maastricht Treaty (1994) pp. 279–291.Google Scholar

3. See Judge, Baxter, ‘A Sceptical Look at the Concept of Terrorism’, 7 Akron L Rev. (1974) p. 380, esp. at p. 385.Google Scholar

4. M.Ch. Bassiouni, A Policy-Oriented, loc. cit. n. 16, at p. xvi.

5. Alexander, Y. and Myers, K.A., Terrorism in Europe (1982)Google Scholar; Clutterbuck, R., Terrorism, Drugs and Crime in Europe After 1992 (1990)Google Scholar; Vercher, A., Terrorism in Europe (1992) p. 1.Google Scholar

6. Cf., Laqueur, W., Terrorism (1977)Google Scholar; O'Sullivan, N., Terrorism, Ideology and Revolution (1986)Google Scholar; Lodge, J., Terrorism: a Challenge to the State (1981)Google Scholar; Joll, J., The Anarchists, 2nd edn., (1979)Google Scholar; Abu-Lughad, I., Unconventional Violence and International Politics (1976).Google Scholar

7. No attempt is made to look at the influences affecting governments when creating and implementing domestic anti-terrorist legislation: this article is concerned solely with attempts in the international arena to deal with terrorism. For a consideration of domestic anti-terrorist laws in the United Kingdom, see Finnie, W., ‘The Prevention of Terrorism Act and the European Convention on Human Rights’, 52 MLR (1989) p. 703Google Scholar; O'Higgins, P. and Hayes, J., Lessons from Northern Ireland (1990)Google Scholar; Hogan, G. and Walker, C., The Law and Political Violence in Ireland (1990)Google Scholar; and Walker, C., The Prevention of Terrorism in British Law, 2nd edn. (1992).Google Scholar

8. See Gilbert, G., ‘Crimes Sans Frontières: Jurisdictional Problems in English Law’, 63 BYIL (1992) p. 415.Google Scholar

9. GA Res. 3034 (XXVII) (1972). The resolution refers to terrorism both as acts of violence by individuals (para. 5) and as the behaviour of colonial, racist and alien regimes (para. 4). See also GA Res. 31/102 (1976); GA Res. 32/147 (1977); GA Res. 34/145 (1979); GA Res. 36/109 (1981); GA Res. 38/130 (1983); GA Res. 61/40 (1985); GA Res. 44/29 (1989); GA Res. 46/51 (1991); cf., GA Res. 48/122 (1993).

10. GA Res. 48/122 (1993).

11. GA Res. 2200A (XXI) (1966); 999 UNTS 171; 6 ILM (1967) p. 368; 61 AJIL (1967) p. 870. Western Sahara Case, Advisory Opinion, ICJ Rep. (1975), 12 Cf., Higgins, R., Problems and Process: International Law and How We Use It (1994)Google Scholar; Henkin, L., The International Bill of Rights, Ch. 4 (1981)Google Scholar; H.G. Espiell, The Right to Self-Determination: Implementation of UN Resolutions, UN Doc. E/CN.4/Sub.2/390 (1980); Shaw, M., The Title to Territory in Africa (1986)Google Scholar. In conclusion, an argument may be made that GA Res. 48/122 (1993) refers to ‘human rights’ while Art. 1 ICCPR is a right of ‘peoples‘, but in this context the distinction is fine.

12. See Lodge, op. cit. n. 6, Ch. 6.

13. Eg., Baader-Meinhof in the former West Germany.

14. Considered below. Briefly, a State may refuse extradition if it believes the offence for which the fugitive is requested is of a political character - how political character is to be defined creates as many problems as the definition of terrorism. See Gilbert, loc. cit. n. 89, Ch. 6.

15. Prepared statement of Judge Sofaer, Legal Adviser, US State Department at the Senate Hearing on the Anglo-US Supplementary Extradition Treaty, S.HRG 99–703 re TR.Doc.99–8, 1 August 1985, at p. 263.

16. See Vercher, op. cit. n. 5; D. Freestone, The Principle of Co-Operation: Terrorism, in: Lowe, A. V. and Warbrick, C., The United Nations and Principles of International Law (1994) pp. 137 et seq., at p. 138Google Scholar; Green, L.C., ‘International Crimes and the Legal Process’, 29 ICLQ (1980) p. 567, esp. at p. 573 et seq.Google Scholar; Bassiouni, M.Ch., ‘The Penal Characteristics of Conventional International Criminal Law’, 15 Case W Res. JIL 27 (1983)Google Scholar, and ‘A Policy-Oriented Inquiry into the Different Forms and Manifestations of “International Terrorism”, in: Legal Responses to International Terrorism, (1988) esp. at p. xxiiiGoogle Scholar; see also Arts. 17 and 24, Draft Articles on the Draft Code of Crimes Against the Peace and Security of Mankind, 30 ILM (1991) pp. 1584–1593 at p. 1554; Bassiouni, M.Ch., ed., Commentaries (1993)Google Scholar; McCormack, T.L. and Simpson, G.J., ‘An Appraisal of the Substantive Provisions’, 5 CLF (1994) p. 1.Google Scholar

17. Supra, n. 16 in Legal Responses, at p. xxv.

18. Ibid. These provisions were to be reviewed in the 47th Session of the ILC in 1995.

19. In the words of one of my students, ‘… a bombing raid by the USA’, which is, of course, quite clearly and obviously not “terrorism’! More seriously, see the debates in the 46th Session of the ILC (UN GAOR, 49th Session, Supplement No. 10, A/49/10, at para. 103) on the need to determine penalties.

20. Cf., Art. 17 might also include the leader of one State who supports the acts of a terrorist group in another State, but that is more related to Art. 24.

21. Eg., Baader-Meinhof or the Red Brigades.

22. See Bassiouni, ‘The Penal’, loc. cit. n. 16, at p. 29.

‘Similarly, the undefined “transnational” element could encompass a multitude of activities which may affect the interests of more than one State, involve transborder activities or involve nationals of more than one State. This is potentially a very elastic concept.’ See also Gal-Or, N., International Co-operation to Suppress Terrorism (1985).Google Scholar

23. See Green, loc. cit. n. 16, at p. 576.

‘Acts of terror committed during internal disturbance, as for example in Northern Ireland, do not really concern the international lawyer, other than in his capacity as a human being who may be concerned with terrorism wherever it may occur. In law, such acts fall within the purview of the national criminal law. Similarly, acts of terror committed during an armed conflict, whether recognised or not, are more correctly treated as war crimes than acts of terrorism, even though the country which experiences such acts, as is the case with Israel, may treat them as acts of criminal terror.’

24. In Re Reyat, unreported, QBD (1989) Watkins LJ held that Reyat was at all times a subject of Her Majesty resident in Canada. Given that he had planted a bomb on a Cathay Pacific ‘plane which blew up at Narita Airport, Japan, killing two Japanese baggage handlers (the bomb had been planted with the intention of intimidating the Indian Government into granting independence to a new Sikh State), he would be triable in the United Kingdom under section 9 Offences Against the Person Act 1861.

‘The next question is, could the applicant be tried here? The answer to that must be, in my view, seeing that at all material times he was and is a subject of Her Majesty and the offences of manslaughter took place on land out of the United Kingdom, that by the provisions of section 9, he could.’

25. Green, loc. cit. n. 16, at p. 573 et seq.

26. Although torture is now covered by Convention, customary international law, it is suggested, would also deem it to be an international crime – see Rodley, N.S., The Treatment of Prisoners under International Law (1987) at pp. 63–64 and 99–107Google Scholar. In the light of the War Crimes Tribunals for the former Yugoslavia, established under UN SC Res. 827 (1993), and Rwanda, UN SC Res. 955 (1994), crimes against humanity and genocide should also be borne in mind as other crimes susceptible to the epithet international.

27. Eg., The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, 860 UNTS 105; 10 ILM (1971) p. 133. The principle requires the requested State either to extradite the fugitive or submit her/him for prosecution before its domestic courts – infra, n. 36.

28. Eg., White Slave Convention, 150 LNTS (1934) p. 431.

29. Cf., Refusal by the executive of extradition to a democracy and party to the same international conventions as France would be anomalous – Vigouroux, on the Conseil d'Etat's decision of 14 December 1994, Req. No. 156490, Switzerland's request for two Iranians: [1995] AJDA 56.

30. See also Freestone, loc. cit. n. 16, at pp. 141 et seq.

31. Nadelmann, K.H., ‘Global prohibition regimes: the evolution of norms in international society’, 44 I Org. (1990) p. 479.Google Scholar

32. 704 UNTS 219; UKTS 126 (1969); Cmnd. 4230.

33. Convention for the Suppression of Unlawful Seizure of Aircraft, supra, n. 27.

34. Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, done at Montreal, 23 September 1971, 10 ILM (1971) p. 1151. See also Alexander, Y. and Sochor, E., Aerial Piracy and Aviation Security (1990).Google Scholar

35. See Lord Mackay's comments, obiter, in: Rees v. Secretary of State for the Home Dep't, [1986] 2 All ER 321 at 327.

36. A tabular representation of these provisions is given here (A = Extended Jurisdictional Competence; B = Extradition Crime; C = Surrogate Extradition Treaty; D = Aut dedere, aut judicare). The figures refer to Articles in the respective Conventions (New York and Hostages are referenced in subsequent footnotes; see infra, nn. 38 and 39).

37. Lillich, R.B. and Paxman, J.M., ‘State Responsibility for Injuries to Aliens Occasioned by Terrorist Activities’, 26 AMUL Rev. (1977) p. 217 at pp. 277–278.Google Scholar

38. UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents, New York, 14 December 1973, 1035 UNTS 167; 13 ILM (1974) p. 41. See also Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance, infra, n. 43.

39. 1316 UNTS 205; 18 ILM (1979) p. 1456.

40. IMO Doc. SUA/CON/15, 27 ILM (1988) p. 668.

41. McGinley, G., ‘The Achille Lauro Case: A Study in Crisis Law Policy and Management’, at p. 323 et seqGoogle Scholar. in: Bassiouni, Legal Responses, op. cit. n. 16, and Cassese, A., Terrorism, Politics and Law, (1989) esp. at pp. 95–96.Google Scholar

42. Cmnd. 8112.

43. 1137 UNTS 93; ETS 90 (1977); hereinafter, ECST. See also Müller-Rappard, E., ‘The European Response to Terrorism’, in: Bassiouni, Legal Responses, op. cit. n. 16, at p. 385 et seq.Google Scholar; Lagodny, O., ‘The European Convention on the Suppression of Terrorism: A Substantial Step to Combat Terrorism’, 60 U Colo. L R (1989) p. 583Google Scholar; Baker, M.B., ‘The Western European Legal Response to Terrorism’, 13 Brooklyn JIL (1987) p. 1Google Scholar; Weis, P., ‘Asylum and Terrorism’, 19 I Comm. J (1977) p. 37Google Scholar; Warbrick, C., ‘The European Convention on Human Rights and the Prevention of Terrorism’, 32 ICLQ (1983) p. 82Google Scholar; Swart, A.H.J., ‘Refusal of Extradition and the United Nations Model Treaty on Extradition’, 23 NYIL (1992) p. 175 at pp. 185–186Google Scholar. Cf., OAS: Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance, Washington, 2 February 1971, OAS Doc.AC/88.1, 10 ILM (1971) p. 255, 65 AJIL (1971) p. 898.

44. See Arts. 6 and 7, infra.

45. Supra, n. 33.

46. Supra, n. 34.

47. Supra, n. 38.

48. Supra, n. 39.

49. See the attitude of the Irish Supreme Court in the Finucane case, infra, n. 51, to a request from the United Kingdom authorities.

50. Violence could only be justified if it were to be the sole means of enhancing democracy and human rights, see generally Rawls, J., A Theory of Justice (1972)Google Scholar and Political Liberalism (1993).

‘We would all agree, I think, that under a dictatorship men have the right to defy the State or even to attack its representatives when their interests are denied and their needs ignored – the only rule that binds them is the general caution against doing more harm than they accomplish good.’ Wolff, R.P., The Rule of Law (1971) at p. 64.Google Scholar

‘Why not ask yourself, Miss Feletti, what sort of democracy requires the services of dogs such as these? I'll tell you. Bourgeois democracy which wears a thin skin of human rights to keep out the cold, but when things hot up, when the rotten plots of the ruling class fail to silence our demands, when they have put half the population on the dole queue and squeezed the other half dry with wage cuts to keep themselves in profit, when they have run out of promises and you reformists have failed to keep the masses in order for them; well then they shed their skins and dump you, …, and set their wildest dogs loose on us all.’ ‘Dario Fo’, Accidental Death of an Anarchist (1980).Google Scholar

51. One justification would be that not all States allowed individual petition and that therefore the requested State would have to protect the fugitive in those circumstances (see Soering, Series A, Vol. 161, 1989). Furthermore, the United Kingdom has found that States from whom it requested the extradition of fugitives have not granted surrender for fear of the treatment such a fugitive might receive. In Finucane v. McMahon, [1990] IR 165, the Supreme Court of Ireland, in part, based its refusal to grant extradition on Art. 40(3) of the 1937 Irish Constitution.

‘1. The State guarantees in its laws to respect, and, as far as is practicable, by its laws to defend and vindicate the personal rights of the citizen.’

Although by the time the case reached the Supreme Court, the warrant for his arrest for the murder of Prison Officer Ferris during the Maze Prison breakout had been withdrawn, Finucane alleged that he would be subject to violence by other prison officers. He based this assertion on the following facts (at pp. 218–221): that immediately after the breakout, other prisoners being moved within the Maze were beaten and attacked by guard dogs; that they were denied medical treatment for those injuries for at least four days; that they were denied access to lawyers for a similar period; that subsequently the prison officers conspired to frustrate an inquiry into those attacks; that prison officers committed perjury in actions brought by individual prisoners for their injuries; that while the death of Prison Officer Ferris had been found at a criminal trial in N.Ireland not to have been caused by a stab wound inflicted during the breakout, Finucane would still be treated as Ferris’ murderer by other prison officers; and that despite the litany of evidence against the prison officers on duty when the assaults occurred, not one of them had been disciplined. On the basis of this evidence, the Supreme Court was unanimous that there was a ‘real danger’ that the accused's rights under Art. 40(3) would be violated if he were to be extradited. The potential violation of the fugitive's rights was too great to risk his extradition. According to Finlay CJ, when applying Art. 40(3) the courts should in future:

‘balance a number of factors, including the nature of the constitutional right involved; the consequence of an invasion of it; the capacity of the Court to afford further protection of the right and the extent of the risk of invasion. Upon the balancing of these and other factors in each case, the Court must conclude whether its intervention to protect a constitutional right is required and, if so, in what form.’ (at pp. 203–204)

While necessary, therefore, the inclusion of Art. 5 in the ECST does seem somewhat incongruous. Either there is still potential justification for violent protest within the Council of Europe area, or Art. 5 simply reflects a desire on the part of States to retain as much discretion as possible while seeming to tackle terrorism.

52. There may be greater justification for incorporating such a provision in extradition treaties where the other party is not party to the ECHR, see for example, the Anglo-US Supplementary Treaty (the Supplementary Treaty in its final form is to be found in Cm. 294, UKTS 6 (1988) and, with comments, in Appendix 1 to the US Senate EXEC. REPT 99–17, accompanying TR. DOC.99–8. It was ratified on 23 December 1986) and the Anglo-Indian Extradition Treaty signed on 22 September 1993 (approved and put into effect through the Suppression of Terrorism (India) Order, SI 1993 No. 2533).

53. Section 4(2)(a). Section 1(1)defines serious offences as those carrying a penalty of five years imprisonment under Irish law.

54. McCarthy J had tried, prior to the enactment in 1987 of this concept of proximity, to provide some common law principles by which to assess just how proximate the fugitive's offence must be in order to distinguish common crimes from political offences: see Shannon v. Fanning [1984] IR p. 548 at pp. 597–598 (emphasis added).

‘In my opinion, without seeking to delimit the circumstances there are to be considered, the objective determination of whether or not an offence charged is a political offence or an offence connected with a political offence within the meaning of the Act should primarily rest upon an assessment of three factors:

1. The true motivation of the individual or individuals committing the offence. I do not share the view that, in order to assess motive, the individual charged must admit his involvement in the crime.

2. The true nature of the offence itself.

3. The identity of the victim or victims.

In assessing all or any of these factors, the proximity of each to the alleged political aim is critically important and is capable of objective assessment.’

See also O'Higgins CJ in McGlinchey v. Wren [1982] IR p. 154 at p. 159, who held that:

‘it should not be deduced that if the victim were someone other than a civilian who was killed or injured as a result of violent criminal conduct chosen in pursuance of a political aim, …, the offence would necessarily be classified as a political offence or an offence connected with a political offence.’

And see Magee, infra, n. 62.

55. See Green, loc. cit. n. 16, at p. 582. See also, Trb. 1985 No. 66 pp. 3–5: Sweden and Cyprus entered reservations under Article 13 allowing them to refuse extradition if the offence was considered to be political. Switzerland and Norway made reservations that they would refuse extradition if the offence was deemed political, connected with a political offence or inspired by political motives, taking into account, however, any particularly serious aspects of the offence, including (a) that it created a collective danger to the life, physical integrity or liberty of persons, (b) that it affected persons foreign to the motives behind it, or (c) that cruel or vicious means had been used in the commission of the offence. The Netherlands and Iceland reserved the right to refuse extradition simply if the offence was deemed political, connected with a political offence or inspired by political motives. (I am grateful to the Editorial Board of the Yearbook for providing me with this information produced by the Dutch Government).

56. See J. Kelly, Problems of Establishing a European Judicial Area, AS/POL/COLL/-TERR(32)8, p. 3. Cited in Warbrick, loc. cit. n. 43, p. 82 at n. 203.

57. See S. Nagel, A Socio-Legal View on the Suppression of Terrorism, AS/POL/COLL/TERR(32)19. Cited in Warbrick, loc. cit. n. 56, at n. 204.

58. 19 ILM (1980) p. 325. As a 12th July 1995, only four States had ratified the Dublin Convention and, thus, it was not in force – I am once again grateful to the Editorial Board of the Yearbook for providing me with this information.

59. Bassiouni, The Penal, loc. cit. n. 16, at p. 27.

60. Both Arts. 6 and 7 talk of referring a case to the requested State's prosecuting authorities after an extradition request has been received and rejected.

61. And it is administratively more convenient to prosecute where the offence occurred, especially for common law States bound by the hearsay rule in evidence.

62. See how the Irish courts interpreted collective danger (Art. 13) in the Extradition (ECST) Act 1987 in Magee v. O'Dea, unreported, HC 1993 No. 732 SS, 25 February 1994.

63. Supra, n. 32.

64. Eg., Re Kexel and Tillman's Application for Habeas Corpus, unreported, QBD, CO/962/83, CO/963/83, 10 April 1984; Pourvoi N# 91–80.630, Cour de Cassation, Chambre Criminelle, 16 April 1991. The District Court of Amsterdam, on the other hand, held that the ECST did not prevent offences committed by a member of the IRA escaping from the Maze Prison in N.Ireland, during which prison officers were unlawfully imprisoned, assaulted and murdered, from being political since none of his crimes were covered by Article 1 - McFarlane v. Public Prosecutor, 19 NYIL (1988) p. 462 at p. 464, n. 100. I am yet again grateful to the Editorial Board of the Yearbook for providing me with this information.

65. See the Hague Convention, supra, n. 33.

66. R. v. Moussa Membar, [1983] Crim. L Rev. 618.

67. Criminal Jurisdiction Act 1975 (UK) and Criminal Law (Jurisdiction) Act 1976 (Ireland).

68. The Guardian (14 July 1982) p. 2, and (3 May 1983) p. 2.

69. See The Times (26 November 1988) p. 1; (29 November 1988) p. 1; (3 December 1988) p. 1; (5 December 1988) p. 1; (8 December 1988) p. 2; (14 December 1988) pp. 1 and 6; and (15 December 1988) pp. 1 and 16; The Guardian (9 February 1989) p. 2.

70. UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, E/Conf.H2/15, Corr. 1 and 2; 28 ILM (1989) p. 493.

71. Supra, n. 1.

72. 30 ILM (1991) p. 68.

73. See for example, Art. 12 Hague, supra, n. 33, and Art. 14 Montreal, supra, n. 34. Both Conventions also make provision for reference to the ICJ – see the Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie, Libyan Arab Jamahiriya v. United Kingdom and the USA, ICJ Rep. (1992) 3, 31 ILM (1992) p. 662; Beveridge, F., The Lockerbie Affair, 41 ICLQ (1992) p. 907 at pp. 916–919.CrossRefGoogle Scholar

74. See the Galván case (Mexico v. United States), 4 RIAA (1927) p. 273.

75. Cf., The sanctions imposed on Libya by the UN Security Council. See Beveridge, loc. cit. n. 73 and The Guardian (14 September 1993) p. 24.

76. Lillich and Paxman, loc. cit. n. 37, at p. 300.

77. Eg., Chase case (United States v. Mexico) 4 RIAA (1927) p. 337.

78. See Bassiouni, The Penal, loc. cit. n. 16, and see provisions listed supra, at n. 36.

79. Compare Lillich and Paxman, loc. cit. n. 37, at pp. 304–305 and 312–313, with the much less enthusiastic Cassese, A., ‘The International Community's ‘Legal’ Response to Terrorism’, 38 ICLQ (1989) p. 589 at p. 593Google Scholar. Murphy initially felt that taking such actions against recalcitrant States would be counter-productive – see Evans, A. and Murphy, J., Legal Aspects of International Terrorism (1978) Ch. 12, esp. pp. 568–570Google Scholar. However, given the limited options open to States where another State fails to act, Murphy has more recently agreed that State responsibility claims ought to be attempted – see Punishing International Terrorists (1985) at pp. 134–135.Google Scholar

80. 78 Dept. of State Bulletin No. 2018, 17 ILM (1978) p. 1285. See Schwenk, W., The Bonn Declaration on Hijacking, 4 Ann. Air & Space L (1979) p. 307Google Scholar; Busuttil, J.J., ‘The Bonn Declaration on International Terrorism: A Non-Binding International Agreement on Aircraft Hijacking’, 31 ICLQ (1982) p. 474Google Scholar; and Chamberlain, K., ‘Collective Suspension of Air Services with States which Harbour Hijackers’, 32 ICLQ (1983) p. 616.Google Scholar

81. Supra, n. 33.

82. Supra, n. 34.

83. See the Montebello Declaration, 20 ILM (1981) p. 956.

84. The threat of its imposition forced South Africa to prosecute mercenaries who had attempted to overthrow the Seychelles Government, Busuttil, loc. cit. n. 80.

85. Pressure from the Bonn 7 and the ICAO forced Sri Lanka to, first of all, pass anti-hijacking legislation and then prosecute one of its nationals who extorted money through a hijack, The Guardian (28 December 1982) p. 4.

86. Supra, nn. 73 and 75. In addition to the claim against Libya for the aerial incident over Lockerbie, the French protested over the bringing down of a plane in Niger, see exchange of letters, 31 ILM (1992) p. 744.

87. Supra, n. 34.

88. Art. 8.2.

89. See Gilbert, G., Aspects of Extradition Law (1991) pp. 95 et seq.Google Scholar

90. Supra, n. 73. See also Gowlland-Debbas, V., ‘Security Council Enforcement Action and Issues of State Responsibility’, 43 ICLQ (1994) p. 55.CrossRefGoogle Scholar

91. Supra, n. 73, at pp. 671–672.

92. See Ferencz, B.B., An International Criminal Court, 2 Vols. (1980).Google Scholar

93. Supra, n. 16. Arts. 6 and 9 were reviewed at the 46th Session ofthe ILC (A/49/10 at pp. 173 and 180). It was even suggested that in the event of there being several requests for extradition, the International Criminal Court should have priority, para. 145 at p. 175.

94. ILC, Report of the Working Group on a Draft Statute for an International Criminal Court, 1993, 33 ILM (1994) p. 253; the Draft was heavily revised without any absolute conclusion being reached at the ILC's 46th Session in 1994 (A/49/10 at pp. 29–161); see also Warbrick, C., ‘International Criminal Courts’, 44 ICLQ (1995) p. 466 at p. 473Google Scholar; Crawford, J. ‘The ILC's Draft Statute for an International Criminal Tribunal’, 88 AJIL (1994) p. 140Google Scholar. In 1989, Trinidad and Tobago had recommended in the UN Sixth (Legal) Committee that an international tribunal be established to deal with international drug trafficking, see also the ILC proposal for an international drugs court, The Times (28 September 1992) p. 10.

95. See Secretary-General's Report pursuant to UNSC Res. 808 (1993) S/25704 3 May 1993, approved in UNSC Res. 827 (1993), which decided to establish an international tribunal for the prosecution of violators of humanitarian law in the former Yugoslavia from 1 January 1991. See also C. Warbrick, loc. cit. n. 94, at pp. 469–472; Paust, J J., Applicability of International Criminal Laws to Events in the Former Yugoslavia, 9 AUJIL & Pol. (1994) p. 499Google Scholar; Reckewerth, ‘The Tadic Case: The Situation in Germany Regarding his Extradition to the International Criminal Tribunal for the Former Yugoslavia’, unpublished paper given at the British Institute of International and Comparative Law, 13 December 1994. The Rwanda Tribunal was established by UNSC Res. 955 (1994), 8 November 1994, Warbrick, loc. cit. n. 94, at pp. 472–473.

96. See Home Affairs Select Committee, Seventh Report, Practical Police Co-operation in the European Community, HCP 363 (1989–90), Vol. 2, at p. 54.

97. Warbrick, loc. cit. n. 94, atp. 473 et seq. See also Woetzel, R.K., Report ofthe First and Second International Conferences, Wingspread-Bellagio (1973), at p. 6.Google Scholar

98. See Green, loc. cit. n. 16, at pp. 571–572. See also the confused state of the 1993 provisions on jurisdiction in ILC Draft Statute, supra, n. 94. See also British attitude to UN Naples Conference November 1994 on Co-ordinating responses to International Crimes, The Guardian (21 November 1994) p. 8.

99. Thirty-fifth session, 3 May-22 July 1983.

100. See the Report of the ILC, 38 UN GAOR Supp. (No. 10) UN Doc.A/38/10 (1983) esp. pp. 21–25.

101. Supra, n. 94.

102. A/49/10 at pp. 35–38.

103. See Arts. 20–24 of the 1994 Draft, A/49/10 at pp. 66–88 with commentary.

104. Supra, n. 95.

105. See Warbrick, loc. cit. n. 94, at p. 470.

106. See the ILC's revised Draft Statute, supra, n. 94.

107. The US Federal Aviation Authority also holds information on this matter. My own experience trying to get data from European Governments is that there is no problem to obtaining raw statistics, but whereas the Dutch Government officials would allow me access to case materials in order to trace the case from inception to disposition, some parts of the British Home Office would not supply any more detailed information than the raw figures; such data provides no background information by which to analyze those raw figures.

108. See Murphy, op. cit. n. 79, at p. 109, and also Table 5.1 at pp. 110–112, the information from Table 5.2 is set out here.

International Rendition of Hijackers, 1977–81 (Rendition encompasses all methods of surrendering a fugitive from one State to another)

(a) Extraditions (the handing over of the fugitive to a State following a request by that State)

1977: USSR's request to Sweden refused, but Swedes sentenced hijacker to four years imprisonment.

1978: The disposition of Bulgaria's request to Yugoslavia is unknown.

1979: The Netherlands extradited the fugitive hijacker to Spain.

(b) Deportations (the removal of a person from the State with, in principle, no regard to that person's ultimate destination)

(Notes: a = plane registered in USA; b = plane registered in Chile; c = plane registered in Lebanon).

(c) Exclusions (the individual involved is not allowed in law to enter the State and is sent back to the State from which he arrived)

(d) Expulsions (the fugitive has entered the territory, but is then sent back to the source State)

1979: the Costa Ricans expelled to Panama the hijacker of a flight emanating from Nicaragua.

109. See Evans, A., International Procedures for the Apprehension and Rendition of Fugitive Offenders, [1980] ASIL Proc. p. 274Google Scholar. Cf., C. Gordon, ibid., at pp. 284–286, who produces evidence to suggest that deportation and exclusion are no more speedy or effective than extradition.

110. See United States v. Humberto Alvarez-Machain 119 L.Ed 2d 441 (1992). Cf., R v. Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42, where the House of Lords held there was a discretion to reject competence; Choo, , Ex Parte Bennett: The Demise of the Male Captus, Bene Detentus Doctrine in England?, 5 CLF (1994) p. 165.Google Scholar

‘In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means - to declare that the Government may commit crimes in order to secure the conviction of a private criminal - would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.’ Olmstead v. United States, 277 US p. 438 at p. 485 (1928) (J. Brandeis, dissenting).

111. See the authorities cited, supra, nn. 16 and 79.