Max Planck Institute for Foreign and International Criminal Law

The changing nature of terrorism has posed significant challenges for the international community in its efforts to identify the most effective measures to combat it. The aftermath of 09.11.2001 has witnessed a significant expansion of repressive measures aimed at combating terrorism and recourse to a wide range of coercive powers by governments and international bodies alike. The quest for an optimal legal framework against terrorism has also led the international community to seek to expand its legal arsenal against terrorism by exploring new legal avenues including that of international criminal law (ICL).

The object of the thesis is to examine the suitability of ICL as a means of fighting terrorism. The fact that the "new terrorism" is characterized by its perpetration through multi-national networks acting through a complex division of labour has led many to advocate its repression through the use of ICL. This approach may also seem appealing given ICL’s inherent focus on universally condemned large-scale crimes. Despite the theoretical promise of ICL as a vehicle for combating terrorism, many practical questions related to feasibility and concrete application remain unresolved. These difficulties have notably led to the decision by States negotiating the Rome Statute to exclude "terrorism" from the International Criminal Court’s (ICC) material jurisdiction in 1998. The fact that several large-scale acts of terrorism have occurred since the Rome Conference as well as the fact that the ICC review conference is likely to revisit the issue have added to the topic’s currency.

The aim of the research is therefore to examine the possible development of an ICL legal framework against terrorism through an exploration of existing difficulties and a comprehensive appraisal of solutions to overcome them. As such, legal problems such as the absence of consensus as to a universally acceptable definition of "terrorism," whether terrorism should be a free-standing crime or incorporated within an existing ICL crime, issues relating to thresholds of gravity; as well as those of jurisdiction and referral will be addressed. The completed thesis will also describe various models for the incorporation of a crime of “terrorism” into the normative corpus of ICL as well as to examine the benefits and shortcomings of these alternate models.

From a methodological standpoint, research for the thesis will consist in a review of literature and primary sources. The thesis begins by contextualizing the topic through an examination of the development and relevant characteristics of ICL, including its reactive nature as well as the lack of established criteria for international criminalisation. The implications of the conclusions drawn in this section will be used to discuss the general suitability of ICL as a means of combating terrorism. A subsequent comparison between terrorism and existing "core crimes" will be undertaken with the view of exposing significant parallels between these forms of criminality which may bolster arguments for the criminalisation of terrorism in ICL. Substantive difficulties likely to emerge in the application of ICL to terrorist acts will be explored in detail and solutions put forward to address them. Finally, proposals will be made for measures designed to include terrorism within ICL.

Preliminary findings reveal that the effective repression of terrorism through ICL would require far-reaching reforms to the current body of law in order to be effective. In light of the extent of the contention surrounding many issues, inventive solutions will need to be found if the broadening of ICL to encompass acts of terrorism is to be realised. However, given the international community’s commitment to bolstering the legal framework against terrorism, such an outcome remains realistic.