Terrorism: The Politics of Prosecution

International terrorism lies at the cusp of crime, states' domestic politics, and international relations. Precisely because terrorist offenses are poised at that volatile intersection, significant practical, legal, and political difficulties attend the exercise of criminal jurisdiction over terrorist crimes in any forum. Prosecutions in the domestic courts of affected states pose one set of concerns, while prosecutions in an international criminal court-or in the domestic courts of third-party states under universal jurisdiction-pose others. This essay examines the factors underlying the jurisdictional difficulties in this field and considers the implications of those factors for future policy. I. THE IMPETUS TO INTERNATIONALIZE ENFORCEMENT Most crime is prosecuted at the national, not the international, level. This is true even of cross-border crime. For the most part, states criminalize conduct domestically. Where states need to cooperate with other states to enforce their domestic criminal law, they do so through mutual legal assistance agreements, extradition treaties, coordination of investigations, and the like. Terrorism, however, is not ordinary crime. It is not even ordinary cross-border crime. Although the term "terrorism" has no international legal definition, the term would seem to indicate, at a minimum, an unlawful violent act committed for a political purpose. Since terrorism has political motives, states typically are the targets and, not infrequently, the sponsors of terrorism. This fact enormously complicates the issue of criminal jurisdiction over terrorism. The likely involvement of states as targets or sponsors of terrorism creates an impetus to resort to some authority for the handling of terrorist offenses that is outside the state that is the sponsor or target of the terrorist act. Such outside authorities might include the UN Security Council, the International Criminal Court, or a third-party state operating under universal jurisdiction. II. INTERNATIONALIZED ENFORCEMENT FROM A POLICY PERSPECTIVE It is easy to understand the impulse to resort to international or universal jurisdiction for the handling of terrorist offenses when the alternative would be to rely for law enforcement on the very state that has sponsored the terrorist act. Take, for instance, the bombing of Pan Am flight 103, the flight that exploded over Lockerbie, Scotland. It appears that the bombing was in fact sponsored by the government of Libya.1 The Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation criminalizes and provides for the prosecution of aircraft bombing.2 Libya, the UK, and the US each were parties to that treaty at all times relevant to the Lockerbie case.3 The Montreal Convention provides that whenever an individual suspected of aircraft bombing is found on the territory of a state party to the treaty, that state must either prosecute or extradite the suspect.4 This provision for "aut dedere, aut judicare" is quite standard in the several multilateral treaties dealing with what would generally be thought of as "terrorist offenses."5 The two suspects in the Lockerbie case lived in Libya and were Libyan nationals. Libya indicated that it would prosecute the suspects in its own national courts. Since there was evidence that Libya had sponsored the bombing, this posed a problem. The UK and the US insisted that Libya not prosecute the suspects but, rather, extradite them to the US or the UK for prosecution. The issue was presented to the UN security Council. Based on the evidence that Libya itself was implicated in the crime, the security Council issued Resolution 748, under Chapter VII of the UN Charter, effectively requiring the extradition of the suspects.6 Libya took the position that the security Council lacked the authority to issue that resolution. This dispute resulted in cases brought by Libya against the UK and the US before the International Court of Justice ("ICJ"). …