COUNTERING TERRORISM:
NEW INTERNATIONAL CRIMINAL LAW PERSPECTIVESJean Paul Laborde*
I. BACKGROUND
In 1994 the United Nations General Assembly established that terrorism was “criminal and unjustifiable,
wherever and by whomever committed”… “what ever the considerations of a political, philosophical,ideological, racial, ethnic, religious or any other nature that may be invoked to justify them”.1 By defining
terrorism as a crime rather than as an international security issue, the General Assembly has chosen acriminal law approach rather than a war model of fighting terrorism. 2 While the General Assembly
categorized international terrorism in 1994 in terms of a criminal justice model as a serious crime, theUnited Nations Security Council categorized it, on 12 September 2001, in resolution 1368, “like any act ofinternational terrorism, as a threat to international peace and security”, thereby applying a security rather
than a crime model to such acts. It is widely accepted that a number of countries are strongly supporting theSecurity Council approach while other members of the international community feel more comfortable with
the General Assembly method. Nevertheless, as we will see, with the passage of its resolutions 1267 (1999),1373 (2001), 1624 (2004) and several others, the United Nations Security Council (UNSC or just SC) has put
unprecedented obligations on Member States to implement its decisions through their national criminal
justice systems. Taking into account that UNSC resolutions are usually not written by international criminal
law specialists, it leaves States under a heavy burden of finding their own ways to live up to theircommitments under the UN Charter. We, at the Terrorism Prevention Branch of the United Nations Officeon Drugs and Crime, stand readily to provide assistance to countries, upon request, for ratifying andimplementing the universal legal instruments against terrorism, strengthening their national legislative basefor complying with their international obligations on developing a robust international legal regime against
terrorism (please refer to the Appendix). It is widely accepted that a working international legal regime
against terrorism will help us to bring terrorists to justice and prevent future possible attacks. Therefore,
more and more accent is put not on punishing terrorists for the acts already committed (although it does
remain an extremely important function of a criminal justice system) but rather on preventing new attacks
from happening.

II. NEW APPROACH
In one of the TPB working papers it is explained that “‘Proactive law enforcement’ is a phrase used toconvey a contrast with ‘reactive law enforcement’. The proper grammatical usage may simply be “active” or“activist”, but the adjective “proactive” has become accepted in both popular and criminological writing.
Proactive law enforcement emphasizes preventing and interrupting crime, rather than reacting to crimesalready committed, and its novelty is often overstated. Public safety authorities have always attempted bothto prevent crime and to solve offences already committed, although the two functions have sometimes beeninefficiently separated and characterized by a lack of communication. Nevertheless, the label “proactive” isnow used for almost every initiative to reduce crime, having been expanded far beyond its original reference
to police patrolling (emphasis added)”3
Terrorism is one of the gravest crimes. Therefore, it would be logical to conclude that a great deal ofattention should be paid to preventing possible terrorist attacks. Referring to the above-mentioned paper a
successful proactive criminal justice approach to terrorism prevention would need ‘a strategy to permit
intervention against terrorist planning and preparations before they mature into action. The goal is to* Chief, Terrorism Prevention Branch, UNODC, Vienna International Centre, Vienna, Austria.
1 Declaration on Measures to Eliminate International Terrorism. General Assembly resolution 49/60 of 9 December 1999.
Annex; repr. in United Nations. International Instruments related to the Prevention and Suppression of InternationalTerrorism. New York, UN Office of Legal Affairs, 2001, p. 233.
2 M. J. Peterson. Using the General Assembly. In: J. Boulden & Th. G. Weiss, op .cit., p. 183.
3 Preventing Terrorist Acts: A Criminal Justice Strategy Integrating Rule of Law Standards in Implementation of United
Nations Anti-Terrorism Instruments. Terrorism Prevention Branch Technical Assistance Working Paper. P.2.

10

132ND INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

proactively integrate substantive and procedural mechanisms to reduce the incidence and severity ofterrorist violence and to do so within the strict constraints and protections of the civilian criminal justicesystem and the rule of law’ 4 (emphasis added).
Thus, countering terrorism through penal prevention would mean criminalizing acts that are committed
BEFORE any terrorist acts take place. And indeed in recent years, the international community has moved
in this direction. Most importantly there were efforts made to criminalize recruitment, training, supplying
weapons to, support, financing, conspiracy, incitement, and glorification of terrorism.
Thus UNSC resolution 1373 (2001) “Decides that all States shall: (a) Prevent and suppress the financing
of terrorist acts; Decides also that all States shall: (a) Refrain from providing any form of support, active orpassive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members ofterrorist groups and eliminating the supply of weapons to terrorists; (b) Take the necessary steps to preventthe commission of terrorist acts, including by provision of early warning to other States by exchange ofinformation; (c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or providesafe havens; (d) Prevent those who finance, plan, facilitate or commit terrorist acts from using theirrespective territories for those purposes against other States or their citizens; (e) Ensure that any person
who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting
terrorist acts is brought to justice and ensure that, in addition to any other measures against them, suchterrorist acts are established as serious criminal offences in domestic laws and regulations and that thepunishment duly reflects the seriousness of such terrorist acts;…“. Ideally these provisions of theResolution should be incorporated into criminal codes of the countries in order to insure that they become
separate criminal offences punishable under national laws.
The UNSC in its Resolution 1624(2005) further expanded this list of offences to incitement when it
decided to “Calls upon all States to adopt such measures as may be necessary and appropriate and inaccordance with their obligations under international law to:(a) Prohibit by law incitement to commit a terrorist act or acts;(b) Prevent such conduct;(c) Deny safe haven to any persons with respect to whom there is credible and relevant information
giving serious reasons for considering that they have been guilty of such conduct.”5III. CHALLENGES TO NATIONAL CRIMINAL JUSTICE SYSTEMSAs we all have read and heard in recent years, this trend to outlaw the preparatory and supporting acts
committed before or even regardless of whether actual terrorist attacks take place have attracted a lot ofcriticism from human rights activists. The concern is that new legislation is contradictory to the humanrights standards and obligations under international human rights norms.
On the one hand, these concerns are very understandable in the countries with weak criminal justicesystems where there is a certain risk that these offences will be used for political reasons.
On the other hand, the argument that these new proposed offences are contradictory to the international
legal human rights norms is not correct.
Let us go back to the cornerstone of international human rights law – the International Covenant on Civil
and Political Rights (ICCPR). Article 6 of the Covenant, from which no derogation is permitted, provides
that:Every human being has the inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.
As the TPB working paper quoted above explains this provision:
To the average person, protecting the right to life means preventing its loss, not punishingthose responsible for a successful or attempted deprivation. Protection by law thus demands

4 Ibid.
5 UNSC resolution 1624 (2005). P.3. par 1.

11

RESOURCE MATERIAL SERIES No.71

legal measures to interrupt and interdict preparations for terrorist violence, not merely theidentification and punishment of the perpetrators after a fatal event. (emphasis added).6
We can therefore conclude that all the recent criminal justice initiatives to criminalize the conduct thatfacilitates the possibility of commission of terrorist acts, regardless of whether or not actual attacks takeplace, are not only in full compliance with but are aimed at safeguarding a fundamental human right - theright to life!

IV. NEW INTERNATIONAL CRIMINAL JUSTICE POLICYWith its recent move to criminalize conduct facilitating the commission of terrorist attacks and imposing
legal obligations on the UN Member States to strengthen their criminal justice systems to be better
equipped to prevent the terrorist attacks from happening, the Security Council moved into domaine reserveof sovereign States - their criminal justice system and policy. It has done so on the basis of the United
Nations Charter-document that all countries have to agree to when they are becoming a member of theUnited Nations.
The following Articles of the Charter will help us to better understand the authority of the Security
Council in these matters.

Article 24
In order to ensure prompt and effective action by the United Nations, its Members confer on
the Security Council primary responsibility for the maintenance of international peace andsecurity, and agree that in carrying out its duties under this responsibility the Security Council
acts on their behalf.
Article 25
The Members of the United Nations agree to accept and carry out the decisions of the Security
Council in accordance with the present Charter.
Article 103
In the event of a conflict between the obligations of the Members of the United Nations under
the present Charter and their obligations under any other international agreement, theirobligations under the present Charter shall prevail.

V. CONCLUDING REMARKSThe UN is often criticized for its action (or more accurately lack of action) on terrorism. “Lack of thedefinition” of terrorism, not addressing its “root causes”, “victims” and other issues are often cited by thecritics to highlight UN impotence in dealing with this gravest manifestation of crime. But the critics often
fail to acknowledge that these accusations do not reflect the reality adequately and present only a one-sided
picture of the problem.
The UN effectively addresses various issues related to the fight against terrorism through its different
departments and agencies. For example, on the “root causes of terrorism front” the UNDP deals withpoverty and UNHCHR deals with the issues of human rights. UNODC supports countries in their efforts topromote the rule of law. And finally, the International Criminal Court, although it does not deal withterrorism directly does have a victims’ fund that could be applicable to the victims of taking hostages whichis under its jurisdiction according to the Statute. And most importantly, although a comprehensive definitionof terrorism would be extremely useful, the international legal regime against terrorism exists and if allowed
to work properly (especially with regard to the provisions of international cooperation in criminal matters)
could contribute greatly to the work of the nations of the world on the counter-terrorism front.

6 Preventing Terrorist Acts: A Criminal Justice Strategy Integrating Rule of Law Standards in Implementation of United

Nations Anti-Terrorism Instruments. Terrorism Prevention Branch Technical Assistance Working Paper. P.1.

12

132ND INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERSAPPENDIX
Number of Member States, which are Parties to the Twelve Universal Anti-Terrorism
Conventions and Protocols.
Mid-2000

November 2006

1. Tokyo Convention (1963)

169

182

2. Hague Convention (1970)

171

183

3. Montreal Convention (1971)

174

184

4. Int. Protected Persons Convention (1973)

102

163

5. Hostage Convention (1979)

89

156

6. Nuclear Material Convention (1980)

64

120

6a. Amendment to the Nuclear Material Convention (2005)—6

7. Airports Protocol (1988)

99

160

8. Maritime Navigation Convention (1988)

39

141

8a. Protocol to the Maritime Convention (2005)

n/a0

9. Fixed Platform Protocol (1988)

351309a. Protocol to the Fixed Platform Protocol (2005)

n/a0

10. Plastic Explosives Convention (1991)

56

129

11. Terrorist Bombing Convention (1997)

8150

12. Terrorist Financing Convention (1999)0154

13. Nuclear Terrorism Convention (2005)

n/a8

Source: Data from UN Office of Legal Affairs; updates by Terrorism Prevention Branch (20/05/2005).

13