they are not considered a terrorist group, despite the fact that they have the same motivation of Hezbollah, the ethnic cleansing of a region from a population (Jewish people in Lebanon and an ethnic group in Sudan) (JONES, Bruce. Looking to the Future: Peace Operations in 2015, pg. 14).
Counterterrorism has already been present in a peace operation in different opportunities. In Afghanistan, ISAF engaged in offensive operations against Taliban, a group considered by the international community as a supporter of terrorism. In the Philippines it was conducted a counterterrorism campaign to stabilize the environment, threatened by the Moro Liberation Front. In Lebanon, UNIFIL’s mandate and force capacity has been conceived to engage in counterterrorism operations against Hezbollah (SC Res 1701 (2006), drafted after the Israeli-Hezbollah War, Article 1. calls “for a full cessation of hostilities based upon, in particular, the immediate cessation by Hezbollah of all attacks”. ).
A peacekeeping mission, robust enough for the mission, may be necessary to prevent spoilers to the peace process, and protect the civilian population against terrorist threats. This is not peace enforcement, another kind of operation that is done when there’s no political settlement, and parties to the conflict are to be dealt militarily (no consent in the strategical level). For example, the operations in Afghanistan, the Philippines and Lebanon are peacekeeping, robust enough to fulfill its mandate, because the objective of the operation is in support of a political agreement (JONES, Bruce. Looking to the Future: Peace Operations in 2015, pg. 15).
Besides the threat that terrorism poses against the civilian population, there is another reason why a peace operation cannot lack the capacity to face terrorism. The United Nations and its members are a privileged target for a terrorist attack. Kidnapping or murdering a Blue Helmet may cause a lack of political support for the Troop Contributing Country, and bring (or rise) unfriendly propaganda against the Mission in the local and international media.
The United Nations had an impressive setback in Iraq after the attack of the United Nations Headquarters in Baghdad, at August 19th, 2003, when the Special Representative of the Secretary General, the Brazilian Sergio Vieira de Mello, was killed by a vehicle rigged with explosives. The impartiality and credibility of the UN cannot protect the Blue Helmets when the terrorist uses impartial and credible targets to achieve as much media attention and public repulse as possible.
In conclusion, an adequate counterterrorism capability is essential in a peacekeeping mission for two reasons: the Blue Helmets may be targets or victims of terrorism, and also because terror may be used by any party trying to ruin the peace process.
In order to have CT included, a PKO with counterterrorism capability must have (The UN, SC and SG positions about Counter Terrorism and Peace Operations are exposed in Chapter 8):
- Specialized officers in hostage-negotiation, bomb-detection and disarming, security of installations and infrastructures, an assault group and counter-intelligence measures;
- Adequate equipment for surveillance and gathering of intelligence from potential terrorists in the Area of Responsibility of the Mission, and specialized personnel;
- Preview in their mandates of the possibility of deploying these specialized officers and equipment, to work in coordination with the local government;
- Preview in their mandates the use of this intelligence gathered for a criminal prosecution against the persons accused of terrorism.
5. WHAT KIND OF CRIME IS TERRORISM?
From the brief exposition about the concept of terrorism in the previous chapter, we can define in legal terms what kind of crime is this illegal conduct, and the competent courts to prosecute terrorists. A clear and certain mechanism of crime repression is essential to prevent an illegal act, and from this point of view terror is no different than other crimes.
In brief, terrorism is the illegal use, or the illegal threat of using, force or violence against persons or assets, with the intention to coerce or intimidate governments or groups in order to achieve political, religious or ideological objectives.
Terrorism is forbidden by International Humanitarian Law, and it may never be used as a method of warfare. Article 51, § 2, of Additional Protocol I to the Geneva Conventions disposes that, in any circumstances, it is prohibited to commit or threaten to commit violence whose main objective is to disseminate terror among the civilian population.
Although the Law of Armed Conflicts does not specify its definition, a terrorist act, which is strictly forbidden, is different than actions done by regular Armed Forces or guerilla groups that work based on, and in the name of, a hierarchical organization, hold weapons ostensibly during engagement and distinguish themselves from the civilian population.
In Brazil, as in many countries around the world, terror is previewed in the Federal Constitution of 1988, its practice is repudiated (Article 4th, VIII), and is considered unbailable and no amnesty or grace is allowed (Article 5th, XLIII). However, in many countries there is no legal definition of terrorism as a crime, nor the description of a criminal conduct and a punishment for the crime understood as Terrorism. This absence is explained by two reasons.
The first reason is that an act of terrorism is also prescribed in other criminal definitions, like homicide, kidnapping and explosion. But the animus (dolus, or criminal intention) of the terrorist agent is very different than the common criminal, when he offends the physical integrity, the freedom and the security of the individual. The end of the terrorist is another, and this leads to the second reason.
The intention of the terrorist is to offend the Nation or State, its political or territorial integrity as a Sovereign Nation. Thus, terrorism is committed against a legal entity of public international law, and the conduct must be considered a crime in International Law, because it harms legal rights protected by this branch of law.
The main problem that Rousseau’s Social Contract was made to solve is to “find a form of association which will defend and protect with the whole common force the persons and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before” (ROUSSEAU, Jean Jacques. Du Contrat Social. Université de Nice, 2010).
Terror takes away from the citizen the defense and protection guaranteed by the Social Contract. So, as well as crimes against humanity, war crimes, genocide, aggression, pirating and slavery, terrorism shall be punished by a judge or a Court using the Universal Competence, instead of territorial, material or other criteria of jurisdictional competence, because it is a crime against the Sovereignty of a Nation, and must be punished throughout the world, even if committed in countries that do not have specific laws against it, or in places where there is no Sovereign State to create national laws, like high seas and international airspace (further explanations about jurisdictional competence is provided in Chapter 6).
The examples below corroborate that terrorism is a crime of international law.
An Intra-State warfare in which a guerilla, a rebel faction or any kind of organized group, disguises within the population and does not claim the territory or part of the territory of the Nation, is a Non-International, Asymmetrical and Low Intensity Armed Conflict, when it reaches a level of operability that is higher than mere insurgency. This explanation corresponds to the brief definition of terrorism previously shown.
A “war on terror” is more rhetorical than practical, like “war on hunger”, “war on drugs” or “war on crime”, because, in order to have a war, there must be at least two belligerents or warring parties. Besides, declaring war is no longer a lawful instrument for international relations (Article 2, § 4, of the UN Charter).
However, a Government may use the right of self-defense, preemptive or real, disposed in Article 51 of the UN Charter, against threats to its territorial integrity or Sovereignty, when they are committed by rebel factions (Hezbollah in Lebanon, Hamas towards Israel), guerrillas (Sendero Luminoso in Peru), and criminal organizations or groups (Fuerzas Armada
s Revolucionarias de Colombia and al Qa’ida).
These entities committed crimes against the integrity of legal entities in international public law (States) or their population (an essential element for a Nation), so they may be prosecuted by international criminal courts. In conclusion, their terrorist acts against States or Nations are considered crimes in international law.
The Rome Statute (that created the International Criminal Court, signed in July 17th, 1998) defines Crimes against Humanity (Article 7 of the Rome Statute) any of the acts below, when executed by an attack, widespread or systematic, against any civilian population, with the specific intention (dolus specialis) to commit them (some definitions are not directly related to terrorism, and were omitted):
(a) Murder;
(b) Extermination;
(d) Deportation or forcible transfer of population;
(h) Persecution against any identifiable group;
(i) Enforced disappearance of persons;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Crimes against humanity, as defined in the Rome Statute, are a broad legal definition that encompasses many crimes in international law, except
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