Terrorism And The International Court Of Justice

Michelle Rose Gowka
04/26/01
PL SC 14H
S. Bremer
Terrorism and the International Court of Justice
I.History of International Terrorism
II.State Sponsored Terrorism
A.Iran
B.Sudan
III.Benefits Derived From Terrorism
A.Inexpensive and ability to advance ideologies
B.Fear
C.Publicity
D.Minimal risk
E.Lack of public defeat
IV.Aspects of Terrorism
A.Technological advances
B.Weapons of mass destruction
C.Cyber terrorism
D.Suicide bombing
V.Islamic Terrorist Organizations
A.Islamic Jihad
B.Al-Gama’a ai-Islamiyyah
C.Hamas
D.Hizballah
E.Usamah Bin-Laden
1.Status of Bin-Laden
2.Applicability of International Law
3.International Court of Justice Ruling
4.Discussion of Ruling
VI.United States’ Terrorism Policy
A.Make no deals
B.Must be held accountable in a court of law
C.Isolate and apply pressure to states that sponsor terrorism
VII.Conclusion
Terrorism, as defined by Title 22 of the United States code, section 2656f(d), is the “pre-meditated, politically motivated violence perpetrated against noncombatant targets by sub-national groups or clandestine agents, usually intended to influence and audience.” Islamic terrorism is a serious problem for the United States because of the threat to national security, innocent civilians, and the foundations of democratic societies throughout the world (1997 Global Terrorism: NP).
International terrorism has changed in structure and design over the centuries. Jewish zealots conducted campaigns against the Romans in the first century AD, and the Hashshashin, a Shi’ah Muslim group who gave us the word assassin, systematically murdered those in positions and leadership during the 19th century (CSIS, July 1999). The modern age of terrorism began in the 1960’s. International terrorism in its current form began in 1968. As the 1970’s passed by, the explosion of extremist groups and related incidents sparked a new awareness of the dangers of terrorism. In the 1980’s, Canada was the victim of several terrorist attacks carried out by Armenian and Sikh extremists, including a bombing of an Air India flight originating in Toronto, which exploded off the coast of Ireland, killing 329 people (CSIS, July 1999).
The 1995 Sarin gas attack by the Aum Shinrikyo Cult in a Tokyo subway marked a new threshold in international terrorism. For the first time, people began to realize that similar groups could use weapons of mass destruction or plan attacks to inflict maximum casualties. The long-term effects of exposure are yet to be determined, but preliminary tests of eighteen victims conducted in January 1998 showed that their sense of balance was affected by the nerve gas (ACOEM, January 1998).

Most of the Islamic world view the West, especially the United States, as the foremost corrupting influence on the Islamic world today. The Hizballah, an Iranian terrorist group, have labeled the United States as “the Great Satan” (Sinha. “Pakistan-The Chief Patron-Promoter of Islamic Militancy and Terrorism”: NP). This growing animosity that Islamic nations feel toward the Western world has been continually demonstrated by the increase in international terrorism. However, Muslims view their actions as acts of self-defense and religious duty and not as terrorism. The Islamic radical movements main success has been their ability to gain legitimacy from the general public (Paz 1998: NP). During the past two decades, they have had enormous success with their ability to present themselves to the Arab and Muslim world as the true bearers of Islam.They appeal to the lower class due to the shared resentment of wealthy westerners while the middle class and intellectuals are drawn toward these radical groups in order to expel imported ideologies and forms of government (State Department. “Anti-US Attacks” 1997: NP). Radical Islamic organizations have declared a holy war, Jihad, in order to bring the Arab world together and take their place as a world power. In order to accomplish these goals, Islamic radicals have mainly used terrorism as their main instrument of persuasion.
The largest and most active terrorist organizations are those which are state funded. These organizations act as both an overt and covert way of spreading the sponsor countries ideologies. The U.S. Secretary of State has designated seven governments as state sponsors of terrorism: Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria (State Department. “Over of State-Sponsored Terrrorism” 1997: NP). These governments support international terrorism either by engaging in terrorist activity themselves or by providing arms, training, safe haven, diplomatic facilities, financial backing, logistic and/or support to terrorists (“Over of State-Sponsored Terrorism” 1997: NP).
Iran is one of the most active state sponsors of terrorism, involving themselves in the planning and execution of terrorist acts by its own agents and by surrogates such as the Hizballah. Tehran conducted 13 assassinations in 1997, the majority of which were carried out in northern Iraq against the regime’s main opposition groups. In January of 1997, Iranian agents tried to attack the Baghdad headquarters of Mujahedin-e Khalq using a supermortar. However, despite sanctions and foreign political pressure, Iran continues to provide support in the form of training, money, and weapons to a variety of terrorist groups, such as Hizballah, HAMAS, and the PIJ (State Department “Over of State-Sponsored Terrorism” 1997:NP).
Sudan is another large supporter of terrorist organizations. The Sudanese Government supports terrorists by providing paramilitary training, indoctrinization, money, travel documents, safe passage, and refuge. They also condone many of the objectionable activities of Iran, such as funneling assistance to terrorist and radical Islamic groups operating in and transiting through Sudan. Since Sudan was placed on the United States’ list of state sponsors of terrorism in 1993, the Sudanese Government still harbors members of the most violent international terrorists and radical Islamic groups (State Department “Over of State-Sponsored Terrorism” 1997: NP).
Middle-Eastern countries have found terrorism beneficial for many reasons. First, terrorism is an inexpensive alternative to fighting a war, while still spreading their ideology and advancing their political agenda. Alternately, defending against terrorism is very expensive; the United States spends approximately five billion dollars annually to guard against terrorism (Wilcox 1996: NP). Even though terrorism kills relatively few people, the random nature by which innocent civilian are killed evokes a deep fear and insecurity upon the population. This form of terrorism was successfully used to target tourism and damage Egypt’s economy in 1997. Publicity is another benefit of terrorism. By involving acts which are designed to attract maximum publicity, terrorism can bring the smallest group to the forefront of attention (Rajeswari NP). All this is done while exposing the terrorist to minimal risk when compared to war.
By secretly funding terrorist organization, the patron state avoids the possibility of defeat and does not appear to be the aggressor. Modern technology has now made terrorism an efficient, convenient, and general discrete weapon for attacking state interests in the international realm. Furthermore, the fear evoked by terrorism creates an ideal setting to launch propaganda, which enables patron states to organize revolts, coups, and even civil war.
History shows that terrorism has only been successful in prolonging conflicts, as in Ireland. However, technology is constantly changing the nature of life-threatening hostilities by delivering more sophisticated devices that cause greater damage. No longer are terrorists restrained to simple car bombs and explosives; now nuclear, biological, and chemical weapons are becoming more readily available. The terrorist attack in Tokyo that injured 5,000 people is an example of this kind of terrorism. The latest threat is the cyber terrorist, who can corrupt a governments computer system, steal money, and/or classified information while never leaving his house. Changing methods and techniques that terrorists employ today make threat of attack worse than ever. First, terrorists operate at an international level, no longer concentrating on a particular region or a country. The dawn of the modern age of terrorism dates back to September 5, 1972, when the Palestinian terrorists attacked the Israeli Olympic team in Munich. Following this, there has been a period of hijacking of commercial airlines, which culminated in the destruction of Pan Am 103 over Lockerbie, Scotland (Rajeswari: NP).
Another new aspect of terrorism is the growing possibility of terrorists making use of weapons of mass destruction-nuclear, biological and chemical. Also, the governments have to think seriously about the threat of chemical weapons and biological toxins. Both these types of weapons are easy to manufacture but have horrifying after-effects on the civilian population. The Sarin gas attack in the Tokyo subway in 1995 by Aum Shinrikyo showed that the threat of chemical terrorism is now a reality (Sinha “Threat of Islamic Terrorism”: NP).
For many years, it had been thought that weapons of mass destruction did not serve the purpose of terrorists, and it was not mass murder they wanted. But in the modern age of terrorism, one sees a wider use of powerful explosives that attack mostly the civilian population, and availability is the only thing that prevents the use of larger weapons. This trend towards larger attacks is represented by a 25-year low in international terrorism in 1996, with reported incidents down from a peak of 665 in 1987 to 296 in 1996. At the same time, the number of casualties rose dramatically (1997 Global Terrorism: NP).
The third aspect of terrorism that is new is cyber terror. It has become very easy to penetrate the telecommunications and computer systems of nations as well as private organizations, and enter new computer codes that cause the system to shutdown or to make it accessible only to the intruder. Terrorists use computers, cellular phones, and encryption software to evade detection and they also have sophisticated means of forging passports and valuable documents. Similarly, they could even introduce “morphed” images and messages into a country’s radio and television network, and spread lies that could incite violence. Technology advancement has made it possible to carry powerful explosive devices in a purse and explode these at the right place and at the right time.
Another recent trend in terrorism is suicide bombing. Suicide bombings have emerged as a tactic used particularly by radical Islamic terrorists. Even though Islam prohibits suicide, these suicide bombers believe that death in a holy struggle assures them a faithful place in heaven; thus, by committing this act of war, they feel they are guaranteed to go to heaven. This method of terrorism is almost impossible to defend against and the reason why terrorists must be prevented, not only deterred.
Many radical Islamic terrorist organizations have developed in recent years, but the biggest organizations are the Islamic Jihad, Hamas, Al-Gama’a ai-Islamiyyah, and the Hizballah. These organizations all seek the elimination of western and Jewish influence, and will not hesitate to go to any length to prevent foreign influence (State Department “Armed Islamic Group, IG: NP).
The Islamic Jihad Group , in Egypt, has been active since the late 70’s, and currently includes two factions. The goal of these factions is to overthrow the Egyptian government and replace it with an Islamic state. To accomplish this, the Jihad operates in small underground cells and attacks elite government officials. Their most notorious acts of terrorism have been the 1981 assassination of President Anwar Sadat and the 1993 attempted assassination of Prime Minister Atef Sedky (Jihad Group:NP).

Al-Gama’a ai-Islamiyyah, The Islamic Group, or IG, evolved from a group of Islamic prisoners in Egypt. After being released from prison in 1971, they began forming militant groups that operated separately but were loosely organized. These groups target police officers, liberal intellectuals, Coptic Christians, and tourism in order to hurt the economy and rid Egypt of Western influence. The IG’s most recent attack was November 17, 1997, when 58 tourists were killed; this severely impacted Egyptian tourism for several months (The Islamic Group: NP).
Hamas is the Arab acronym for, “The Islamic Resistance Movement,” and means courage and bravery (Al-Islamiyya: NP). This organization has evolved from the Muslim Brotherhood and was active in the early stages of Intifada, operating in the Gaza strip and the West bank. The main objective of the Hamas is a “Holy War” for the liberation of Palestine and the establishment of an Islamic Palestine. A variety of non-governmental charitable organizations in the Gulf States, four central charity funds throughout the world, and Iran have enabled Hamas to become the second most powerful terrorist organization. During Intifada, Hamas claimed responsibility for 43 attacks that killed 46 Palestinians, and is believed to be responsible for another 40 deaths (Al-Islamiyya: NP).
Hizballah, meaning party of God, is an extremist political-religious movement based in Lebanon. The movement was created and sponsored by Iran in July 1982, initially as a form of resistance to the Israeli presence in Southern Lebanon. Hizballah followers are radical Shi’ite which adhere to Khomeinistic ideology. The principle goals established by Khomeinism are the equality of all Lebanon’s citizens, complete American and French withdrawal from Lebanon, the complete destruction of Israel, and the establishment of Islamic rule over Jerusalem. The Hizballah has tried to accomplish these goals through the use of terrorism, of which 704 attacks were committed from 1991 – 1995 (Information Division: NP). The scope and nature of Hizballah’s terrorist campaign reflect its close dependency on Iranian support for both the ideological and financial levers. Iran donates vast amounts of money to Hizballah, which among other things funds the movement’s health and education services.The funds received from Iran in the 1980’s totaled $60-$80 million a year (Rajeswari: NP).
Throughout researching these groups, once case involving a Saudi Arabian National, Usama Bin Laden, exemplifies the difficulties with prosecuting terrorists in the International Court of Justice. Whether domestic or international in nature, terrorism is having an ever-increasing impact upon the international community. The United States has fallen victim to acts of terrorism recently, most notably the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, OK, and the 1998 bombings of U.S. Embassies in Kenya and Tanzania. Upon investigation, it was revealed that the embassy bombings were linked to Usama Bin Laden, a former Saudi Arabian National whose excessive bank accounts fund a worldwide terrorist operation.
Further investigation revealed that Bin Laden was living in Afghanistan in a camp protected by his own 200-man private army and a sub-unit of the Taliban, a quasi-religious organization operating within Afghanistan’s borders (MSNBC, 10/12/99). The United States, backed by other nations who have had terrorist attacks related to Bin Laden, appealed to the United Nations Security Council to call for the extradition of Usama Bin Laden for trial.

In response to the request, the United Nations Security Council unanimously adopted resolution 1267 on October 15, 1999. The resolution called for sanctions to be placed on Afghanistan unless the Taliban turned over suspected terrorist Osama Bin Laden to the appropriate authorities. Bin Laden is currently a suspect in financing terrorist activities in nation-states such as Algeria, Jordan, Egypt, Israel, Kenya, and the United States of America. Worldwide intelligence networks have been attempting to maintain constant surveillance of him in order to help deter further acts. However, he is still free, protected by the Taliban, who share many of the same fundamentalist beliefs with him.

International Law has established several procedures for the extradition and trial of international terrorists. Currently, there are eleven documents of international law, which address the issue states’ responsibility for combating terrorism (USIA, Feb. 1999). Bearing in mind the precedence established in international law as well as the nature of these activities that have been associated with Osama Bin Laden, it is appropriate to impose sanctions upon the Taliban for the surrender of Osama Bin Laden to the proper authorities.

At present, Bin Laden controls a comprehensive international terrorist network, all financed through Bin Laden’s personal fortune. His headquarters are located in Afghanistan, and are protected by numerous Taliban soldiers. While tensions between Bin Laden and Taliban members have become strained since August 1998, he nonetheless has remained free from capture to this point. However, Security Council Resolution 1267 does indeed call for Afghanistan to turn him over to the proper international authorities.

Bin Laden is officially a man without a country, as Saudi Arabia pulled his passport in 1994 amidst allegations of financing subversive activities in Egypt, Algeria, and Yemen. Bin Laden fled to Sudan, where he began working with the National Islamic Front (NIF), led by Hassan al-Turabi. While in the Sudan, he financed three terrorist training camps in cooperation with the NIF (ERRI, June 1998). After May 1996, his exact whereabouts have been unknown, with rumors placing him in places such as Yemen, in Saudi Arabia with a false passport, even captured by the Afghanistan government. Bin Laden issued three Fatwas calling for a Holy War against U.S. Forces in April 1996, February 1997, and February 1998. He is currently suspected in acts including the World Trade Center bombing, a Saudi Arabian National Guard base in Riyadh, Saudi Arabia, and U.S. embassies in Kenya and Tanzania (MSNBC, 10/12/99).

Current international law, even precedence established by this very court, indicates that the process of bringing Osama Bin Laden to trial is legal. Numerous conventions and treaties support this action, both globally and regionally as well. The first convention which applies is the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, brought into effect on February 20, 1977, with 26 signatories and 126 parties to it. This convention can be applied specifically to the 1998 bombings of the U.S. embassies in Kenya and Tanzania.
Article I of the Convention defines “internationally protected persons” as “any representative or official of a State or any official or other agent of an international organization of an intergovernmental character who, at the time when and in the place where a crime against him, his official premises, his private accommodation or his means of transport is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household.” Bearing in mind the fact that these bombings did occur at official buildings, these acts fall under this convention. Article 7 further states that the nation-state which houses the alleged offender shall either extradite him for trial or hold a trial on their own soil. This treaty lays out the definition of “protected persons” and establishes a code of conduct for bringing such criminals to trial.

The next convention that holds precedence in this situation is that of the International Convention for the Suppression of Terrorist Bombings. The convention provides for one exemption: if the alleged act occurs within a state in which the offender and the victims both reside and the alleged offender is still in the state. For example, the bombing of the U.S. Federal Building in Oklahoma City, Oklahoma is an example of an act that is exempt from the provisions of the convention. However, Osama Bin Laden does not fall under this exemption. Therefore, Articles 5, 6, and 7 directly apply to the situation at hand. Furthermore, Article 9 supplements Article 7 of the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents. Bearing in mind that both of the conventions are entered into force, nation-states are to be held accountable to them, including Afghanistan.

Finally, the Convention on the Organization of the Islamic Conference on Combating International Terrorism, ratified in Tehran in December 1997 at a meeting of the Organization of the Islamic Conference, can be directly be applied to Afghanistan, as they were one of the principal signatories to it. This convention not only reiterates support for the previous conventions mentioned here, but for numerous others as well. This convention uses all previous international treaties regarding terrorism as precedence, and then builds on them.Furthermore, this Convention does not call for the application of Islamic law over Anglo-Saxon law. Since the OIC Convention does not conflict with international law conventions previously established by the United Nations, Afghanistan is further bound to this convention.
The primary responsibility of the UN Security Council is to maintain international peace and security. Under Article 24, the Security Council has primary responsibility for maintaining international peace and security. The Security Council used their powers under this Article, as well as Article 24, to pass resolution 1267 calling for sanctions against the Taliban. Bringing Osama Bin Laden to trial for his actions was a means by which the United Nations Security Council took measures by which to ensure security.
The call by the Security Council to bring Osama Bin Laden to justice does have its merits, and is legally justified under current international law. Bin Laden has been implicated in acts of terrorism all over the world, and his financial backing, while weakening, is still considerable. By getting Afghanistan to turn Bin Laden over to the proper authorities, a measure of peace and security can be attained once again. By bringing him to trial, these prevailing instruments of international law that apply to terrorism can be viewed in force.

After the special session of the International Court of Justice, held on December 1, 1999, my opinion regarding the legality of imposing sanctions against the Taliban changed. After reviewing the merits of this action and what other steps should have been taken, I now find myself in the unusual position of completely changing my view on this issue. During review, four main questions became apparent.

The first question is whether all other options were attempted before imposing sanctions. This first question is one of paramount importance. Unless all other steps had been taken, the Security Council would have jumped the gun and moved too soon to impose sanctions. While there was scattered evidence indicating that there had indeed been some sort of discussion between the U.S. government and the Taliban regarding a deal for bringing Bin Laden to trial, nothing was certain. All evidence pointing to this fact also pointed to the fact that neither side had tried too hard. Further complicating matters is the fact that there was an insufficient amount of information from any of the members of the panel that clearly proved whether or not all other measures had first been taken. Article 33 of the UN Charter was used repeatedly to illustrate the need for these other steps to be taken first.
Personally, I felt that while Article 33 did call for this, Article 41, which gives the Security Council authority to step in after determining that a threat to peace exists under Article 39 of the Charter, authorizes the Security Council to use any measures short of military force, “including the complete or partial interruption of economic relations” (UN Charter, Article 41). I find it difficult to conclude whether or not other options had been considered because of a lack of sufficient evidence which would enable one to review what actions had been taken by both sides.
The second question is who has jurisdiction over Bin Laden. This question was also interesting in that it called into question who should be responsible for trying Bin Laden if he is brought up for trial. Since the bombings in question took place in Kenya and Tanzania, the committee thought that they would have had first opportunity to try him. However, the fact that these bombings took place at United States Embassies meant that the US also had jurisdiction. This fact, although unimportant in the end, was largely ignored after brought up briefly in the beginning of the session. Another question affecting the jurisdiction issue was the question of whether or not the Taliban was the de facto government of Afghanistan. The fact that the Afghan representatives were not from the Taliban clouded this issue amidst questions of command, control, and recognition.

This question was ultimately split, as the voting members of the committee (Kenya/Tanzania, Saudi Arabia and Afghanistan excluded) could not reach consensus on whether the Taliban or the United States should have jurisdiction in this case. The Taliban had apparently made overtures to United States officials regarding a deal, but the US refusal to come to terms left questions. The answer to this question was ultimately determined with the next question.

The third question to answer is whether Usama Bin Laden should be extradited. The question of whether Usama Bin Laden should be extradited was yet another point of contention. Since the Taliban was receiving little or no cooperation from other nations in terms of gathering evidence from which to begin court proceedings, it was determined that the Taliban should not be forced to extradite him at the present time. However, the members of the committee were quick to point out that while Bin Laden should not be extradited at this time, measures should be taken to extradite him if the Taliban fails to begin court proceedings within a “reasonable” timeframe of undetermined duration. This question took into account the previous two questions, which when combined led to the final question of the evening.

The final question raised is whether the decision to impose sanctions on the Taliban was legal.The question at hand is the one the International Court of Justice Special Advisory Committee was asked to answer. Whether or not this action was legal under international law could mean the difference between success and failure in terms of finding a way to bring Osama Bin Laden to trial for these bombings. The committee decided by a 5-1 margin that the sanctions were not legal under international law. I felt that the committee had made the proper decision given the available information with a few exceptions.

The committee, prodded by the Justice from Afghanistan, considered Article 33 to be above and beyond anything outlined elsewhere in the Charter. This meant that the question was only considered from the one perspective, and not from the perspective of Article 44, which was also brought up for discussion.Additionally, the fact that there is no clear information regarding whether or not Kenya and Tanzania had given up their right to try Bin Laden left the committee with questions regarding who had jurisdiction over the case if it was ever brought forth. Finally, the fact that most of the justices agreed that there was insufficient information to determine whether all other measures were taken first was troublesome. I felt that without sufficient information either confirming or denying that other steps has previously been taken, the decision to rule on the question at all would set a dangerous precedent if carried out in the real international Court of Justice. Therefore, I felt that any decision should have been made only after information was found clearly outlining what measures had and had not been taken by the United States and the Taliban in resolving this dispute.

In conclusion, I felt that while the ICJ members did an exceptional job in disseminating information and utilizing international law to make a determination regarding the legality of imposing sanctions, there should have been more information available to make this determination. In most legal systems, attempts are made to obtain all available evidence before making judicial decisions, and I believe that more information was needed, because I still have numerous questions regarding this issue on the whole.

This case is certainly only one example of the difficulties with an international court. But, these obstacles should not be used as a reason to dismiss the court’s actions nor the logic for the court’s existence. These obstacles should be used as motivating factors for strengthening, improving, and expanding the international court system. However, until the international community bears prosperity and peace for all, terrorism will always remain a reasonable and considerable threat to the United States and it’s national security.
And, because of these threats to security and the very nature of terrorism, the United States has a counter-terrorism policy that consists of three parts. First, the US will make no concession to terrorists and strike no deals. If the US were to give in to terrorists’ demands, it would inspire every other terrorist to commit violent crimes. An example of this plan is the hostage situation in Peru, where 72 hostages were taken and four months later a successful rescue took place. The second US policy is that all terrorist will be held accountable for their crimes in a court of law. In recent years many international terrorists have been convicted and sent to prison. The third, and most important policy is to isolate and apply pressure on states that sponsor and support terrorism and force them to change their behavior. UN sanctions and the use of military force are now actively used to force host countries to change their views on terrorism (1997 Global Terrorism: NP).
Radical Islamic terrorist organizations have the ability and desire to threaten the United States. Sanctions and diplomatic bargaining will not solve the problem of Islamic terrorism, yet military force will only make the problem worse. There will be no resolution to this problem in the near future, meanwhile the gap between the Western world and the Arab nations will continue to grow. Constant monitoring, careful planning, and the preservation of the International Court of Justice are our only means of prevention, or deterrence, against terrorism.
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