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Criminalizing Terrorist Offenses

Defense Institute of International Legal Studies

Regional Defense Combating Terrorism Fellowship Program

I. Introduction

II. Criminalization of Terrorist Offenses

III. Forums for Prosecution

IV. Minimum Standards for Prosecution

V. Conclusion

2

Introduction:Module Objectives

• Participants will be able to describe the approaches to criminalizing terrorist offenses

• Participants will be able to list the forums for terrorist prosecution

• Participants will be able to list the minimum standards forprosecution ofterrorist offenses

I. Introduction




V. Conclusion

I. Introduction

• Pre-9/11 vs. Post-9/11 worldviews

• Law enforcement, military action and other instruments of national power

• Deny safe haven

• Prevention of future attacks

3

II. Criminalization ofTerrorist Offenses

• Are special terrorism laws necessary?

• Attacks, planning, support, resources, organizations

• Appropriate level of knowledge or intent? Extent of participation?

I. Introduction




V. Conclusion

4

II. Criminalization ofTerrorist Offenses

• Amended laws since 9/11 (e.g., Patriot Act)

• Law driven by history: CT Conventions

I. Introduction




V. Conclusion

5

II. Approaches to Criminalization

• Explicit definition of “terrorism” and terrorist crimes

• Reliance on ordinary criminal law

• Use of terrorist intent elements or aggravating circumstances

I. Introduction




V. Conclusion

6

• Reliance on convention-based offenses

• Combination of approaches

I. Introduction




V. Conclusion

7

II. Approaches to Criminalization

II. Terrorism as a Crime

• Violent acts or acts dangerous to life

• Damage to property?

• Risk to public health or safety?

• Interference or disruption of services or systems?

I. Introduction




V. Conclusion

8

• Terrorist intent element: intimidation or coercion of the public or a government

• Political, religious or ideological motive?

I. Introduction




V. Conclusion

9


Criminal offenses +

terrorist intent element:

Involve violent act or acts dangerous to human life that are a violation of the criminal laws of the United States …and…

I. Introduction




V. Conclusion

10


…appear to be intended to:

•Intimidate or coerce a civilian population;

•Influence the policy of a government by intimidation or coercion; or

•Affect the conduct of a government by mass

destruction, assassination or kidnapping (U.S.)

I. Introduction




V. Conclusion

11


Criminal offenses +

terrorist intent element:

“an individual or collective undertaking, the aim of which is to cause a serious disturbance to public order by means of intimidation or terror” (France)

I. Introduction




V. Conclusion

12


Criminal offenses +

terrorist connection:

belong to, act in the name of, or collaborate with armed bands, organizations, or groups whose goal is to severely disturb the constitutional order or public peace (Spain)

I. Introduction




V. Conclusion

13


II. Jurisdictional Reach

• Commission or support within border

• Foreign support of terrorist acts within border

• Domestic support of foreign terrorist acts

• Terrorist activities against nationals abroad

• Terrorist activities by nationals abroad

• “No safe haven” and “extradite or prosecute”

I. Introduction




V. Conclusion

14

II. Material Support

• Facilities, transportation, communication

• Personnel and training

• Documentation

• Weapons and explosives

• Medicine and religious material?

• Harboring, concealing or disguising nature, location, source or ownership

• Knowledge or intent regarding use

I. Introduction




V. Conclusion

15

II. Financing Terrorism

• Provide, collect or manage funds, financial services or property with knowledge or intent of use

• Money laundering

• Currency smuggling

• Transactions with terrorists or terror organizations

• Freeze, seize and confiscate terrorist assets, instruments and proceeds

• Monitoring and reporting obligations

I. Introduction




V. Conclusion

16

II. Attempt and Participation

• Does offense cover attempts and conspiracies?

• General code provisions:

• Aiding and abetting

• Accessory after the fact

• Conspiracy

• Solicitation

• Is commencement by principal necessary?

I. Introduction




V. Conclusion

17

II. Terror Organizations

• Formation and existence

• Threats to national security or public order

• Support or commit criminal offenses

• Advocate, solicit or incite violence

I. Introduction




V. Conclusion

18

• Oppose international understanding or peaceful coexistence? Disrespect for human dignity?

• Different treatment for organizations with mostly foreign members?

• Direction, membership, support, collaboration

I. Introduction




V. Conclusion

19


• Professing to belong to such an organization?

• Dress or wear, carry or display an article in a manner that arouses reasonable suspicion of membership?

• Suspension, dissolution or other restrictions on activities and support

• Terrorism and organized crime

I. Introduction




V. Conclusion

20


II. Other Issues

• Incitement or advocacy of terrorism (Ex. encouragement or glorification in proposed UK law)

• Use of WMD

• Environmental terrorism

• Convention-related crimes

• Sensitive information disclosure

• Ordinary criminal laws

• Sentencingenhancements

• Limitations periods

I. Introduction




V. Conclusion

21

III. National Criminal Courts

Advantages

• Comprehensive and experienced

• (Mostly) public evidence

• Greater confidence in outcome

• Information about goals and tactics

• Demonstrates willingness and ability of civilian justice system

• Commitment to anti-terrorismobligations

I. Introduction




V. Conclusion

22

Disadvantages

• High burdens of proof

• Strict procedure and evidence requirements

• Reluctance to use sensitive information

I. Introduction




V. Conclusion

23


• Limits on death penalty

• Security risks and logistical problems

• Inability to deter committed extremists

• Possibility of political spectacle

• Length and expense

I. Introduction




V. Conclusion

24


Foreign National Courts

• Advantages

• International support

• Accountability for foreign activities

I. Introduction




V. Conclusion

25


• Disadvantages

• Availability of sensitive evidence

• Legal inconsistency or incompatibility

• Limits on death penalty

• Terrorist reprisals or political violence

I. Introduction




V. Conclusion

26


III. International Tribunals

Advantages

• Blueprint of ICTY and ICTR

• Security Council Chapter VII authority to require cooperation

• Judges and prosecutors selected by General Assembly or Security Council

• Internationalauthority and legitimacy

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I. Introduction




V. Conclusion

27

Disadvantages

• Tribunal fatigue

• Expensive and lengthy

• No definition of terrorism

• Concern for undermining ICC

I. Introduction




V. Conclusion

28


• Arguments over jurisdiction

• Access to sensitive evidence

• Death penalty unavailable

• Security concerns

I. Introduction




V. Conclusion

29


III. Coalition Tribunals

Advantages

• Treaty based

• Consensus on definition of terrorism

• Coalition control

I. Introduction




V. Conclusion

30

Disadvantages

• Limited jurisdiction

• Expense to coalition only

• Time needed to establish

• Fluctuating coalition

• Limited legitimacy

• Lack of non-party cooperation

I. Introduction




V. Conclusion

31

III. Coalition Tribunals

III. Military Tribunals

Advantages

• Greater control

• Fewer procedural constraints

• Greater security

• Use of sensitive evidence

I. Introduction




V. Conclusion

32

Disadvantages

• Negative international reaction

• POW and lawful belligerent defenses

• Recast terrorist crimes as part of military struggle

I. Introduction




V. Conclusion

33

III. Military Tribunals

IV. Prosecution Standards

• Human Rights Law (Ex. ICCPR)

• No arbitrary arrest

• Accused informed of charges

• Prompt hearing on lawfulness of detention

• Right to public trial, except for national security

• Presumption of innocence

I. Introduction




V. Conclusion

34

• Time and resources to prepare defense

• Right to remain silent

• Speedy trial and appeal to higher tribunal

• Previously defined or generally recognized offenses

• Separate standards setby Law of Armed Conflict

I. Introduction




V. Conclusion

35

IV. Prosecution Standards

V. Conclusion

• Criminal prosecution has risks and benefits

• Multilateral and domestic legal action enables civilian criminal prosecution

I. Introduction




V. Conclusion

36

V. Conclusion

• Continued improvement and use of civilian criminal justice systems demonstrates willingness and ability of civil democratic institutions to engage terrorist threat

• Nature and gravity of terrorist threat may require adjustments to existing criminal law and concurrent use of alternatives

I. Introduction




V. Conclusion

37

Criminalizing Terrorist Offenses

Defense Institute of International Legal Studies

Regional Defense Combating Terrorism Fellowship Program

criminalizing terrorist offenses defense institute of international legal studies regional defense...

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