those not specifically listed or mentioned. Genocide, for example, would be considered a crime against humanity, but it has a specific criminal definition, in order to distinguish it from the broad term “Crimes against Humanity”.
In the same way, widespread and systematic acts of terrorism are crimes included in the broad definition of “Crimes against humanity”, according to the definition provided above. Notwithstanding, Terrorism could be prevented and repressed more sharply if the criminal act of “Terrorism” were defined as a crime in international law.
Definitions of terrorism are found in local and international laws (see Chapter 4), but all Members-States had to define terrorism as crimes in their national laws in order to fulfill its terms. However, if we consider terrorism as a crime in international law, only one definition is required, based in international grounds, and it would be applicable to the entire international community.
Even with no specific definition in the Statute of Rome, any of the acts described in Article 7 of the Rome Statute may be considered terrorism (The Draft Code of Crimes against Peace and Security of Mankind, Art. 20, f, (iv), refers to acts of terrorism committed in violation of IHL in NIAC as international crimes. According to Brownlie, the draft articles became redundant after the Statute of the International Criminal Court. BROWNLIE, Ian. Principles, pg. 561), especially the great suffering or serious injury to body or mental health prescribed in item (k), when committed by an organized group, guerilla or rebel faction.
Guerillas are not terrorist organizations, but when they use terror as a means of warfare against a State or Nation, they are also committing a crime of international law.
Guerillas are combat operations carried on in the territory occupied by the enemy, mainly by military or paramilitary forces of the occupied country.
Guerilleros are allowed to combat (they are legal combatants), and they receive the status of Prisoner of War when captured. They are resistance fighters, militia and volunteer corps that are not part of regular Armed Forces of a country, they operate within or without its own territory, even if this territory is occupied, but they must fulfill four requirements:
- Have a commander responsible for their subordinates (chain of command);
- Have a distinctive sign recognizable at a distance (uniforms, fatigues);
- Hold weapons ostensibly;
- Respect, in their operations, the laws and uses of war.
(Article 4th of the Third Geneva Convention about the treatment of Prisoners of War).
When the guerillero uses illegal methods or means of warfare, terrorism included, he becomes a war criminal, loses the status of Combatant and, when captured, is not considered a Prisoner of War, and shall be prosecuted by an international court, or a national court using the Universal Competence.
On the other hand, the terrorist does not fulfill all the requirements above. He cannot be considered a Prisoner of War, but that doesn’t mean he is not a Combatant, due to the obvious fact that there still is an Armed Conflict. So he is an illegal Combatant, using illicit means and methods of warfare.
Any Combatant, recognized as one by International Humanitarian Law, may be considered a Prisoner of War or not, depending on his conduct in the field when he takes up weapons against a Government, a State or a Nation. The terrorist is no different than any combatant in the beginning of the warfare, but at the moment that the agent attacks civilians with the purpose to win the combat through fear among the population, he is no more combating legally, and loses the protection in International Humanitarian Law.
In conclusion, the terrorist is a war criminal, and need to be prosecuted as such (By considering terrorism as a crime in International Law it is created an obligation erga omnes to all States to prevent and repress terrorist activities, and prosecute their authors. One State may not claim that terrorism is a not a crime in their national laws, or give asylum/immunity to terrorists).
Another example is the terrorist that uses a civilian as hostage with the dolus specialis to bargain with the Government, and also as a human shield during a situation; he is using an illegal method of warfare against a Government for political purposes. This is terrorism when it reaches a great extent and gravity, i.e. a threat to the existence of a State.
In all those cases, may it be judged by a national court? This question may be put in other way: Is the national judge capable and impartial enough to deal with such a crime, when his Motherland, the Population that includes him and his family and friends, the State for which he works, has been harassed?
An economically powerful and democratically strong Nation may not feel a threat to its existence by an explosion of a building, or a kidnapping of a high official of the Government. But feeble States, like those that require the support of a Peace Operation, are much easier to be demolished, and its population is more vulnerable to terrorism.
The roles of national courts that may analyze, prosecute the terrorist act, and punish its authors, and international courts that may perform these tasks, are exposed in the next chapter.
6. ROLE OF LOCAL AND INTERNATIONAL COURTS OF JUSTICE
Once defined that terrorism can be considered a crime in international law for proper judicial repression, five different options are available for the jurisdictional system to prosecute the crime of terrorism:
- begin the legal procedure in a national court, composed of national judges only;
- set up a special criminal court to analyze this specific crime;
- institute an international criminal court, for the same purpose;
- send the case to the International Criminal Court, in The Hague;
- create an hybrid court, with national and international judges, for the case;
From all that has been exposed in the previous chapters, we conclude that the national court (a criminal court of the affected State or Nation) may not prosecute and judge the terrorist properly, for a number of reasons: the public clamor to give the terrorist a severe punishment may spoil the impartiality of the national judge (His impartiality would be granted if the act did not involve him or any of his family or close friends, for example. But this is very unlikely, because a terrorist attack aims the civilian population as a whole). The judge himself may lose his impartiality for the hatred that the terrorist act may cause on him, since he attacked or tried to collapse the political institutions of his motherland.
On the same way, special criminal courts (or special military courts) usually do not have enough independence and impartiality, which may lead to violations of the right to a fair trial, and/or limited access to lawyers, witnesses and other means to prove his innocence.
Example: Special Court for Sierra Lione, created in 2006 to prosecute and judge Charles Taylor, under the accusation of 11 counts of war crimes and crimes against humanity. His presence in Liberia threatened the fragile peace process, and he was transferred to the Hague for prosecution (RAM, Sunil. The History of UN Peacekeeping Operations From Retrenchment to Resurgence, pg. 168).
Making justice outside the rule of law is mere revenge, and it does not prevent terrorism. On the contrary, it insufflates the hatred by other persons against the vengeful government, creating a vicious circle of violence between the Government and the armed opposition, in which the population suffers the centrifugal force in the center.
A crime in international law requires a prosecution and judgment by a court using the Universal Competence, which is granted to any federal court (The judicial competence for analyzing severe Human Rights violations is usually given to Federal Courts because, in these cases, the State may have disrespected an obligation in international law (for example, from the ICCPR, GA Res. 16 Dec 1996). Ex: Art. 109, §5º, Brazilian Constitution. Ex: U.S. Bill of Rights) court of a government). However, in order to guarantee the Due Process of Law when prosecuting crimes that have caused a common and widespread feeling of repulse and indignation, we must learn from the previous experiences and lessons from the past.
6.1. INTE
RNATIONAL CRIMINAL COURTS
The International Criminal Tribunal for the former Yugoslavia (ICTY) was created by Security Council Resolution 827, of May 25 1993, based on Chapter VII of the UN Charter. It had competence to prosecute individuals responsible for high breaches of International Humanitarian Law committed in the territory of ex-Yugoslavia since 1991, according to dispositions of its Statute (Article 1 of the Statute of International Criminal Tribunal for the former Yugoslavia).
The jurisdiction of the ICTY was limited to grave violations of the Geneva Conventions, in other words, violations to the laws and uses of war, crimes of genocide and crimes against humanity committed in the territory of the former Yugoslavia since January 1st, 1991.
Despite its parallel jurisdiction with national tribunal of each State Party, the ICTY had primary jurisdiction and could request that national tribunals renounce their competence. According to the Principle of non bis in idem (the person cannot be condemned more than once for the same crime), cases already prosecuted and judged by a national tribunal could not be reanalyzed by ICTY. However, by derogation, so that nobody escapes from its criminal responsibility, the author may be submitted again to the ICTY if the factum delicti was described as a crime of national law, if the decision was not impartial or independent, or if the
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