From Rome to Nuremberg with romanticism: on terrorism.

• Author: Wattad, Mohammed Saif-Alden

1. ABSTRACT II. INTRODUCTION III. THE QUEST FOR INTERNATIONAL CRIMINALIZATION OF TERRORISM IV. THE ENIGMA OF DEFINING 'TERRORISM' V. THE ROME STATUTE: CRIME AND PUNISHMENT VI. THE CONCEPTUAL DEFINITION AND THE LEGALITY PRINCIPLE VII. EPILOGUE: ROMANTICS IN INTERNATIONAL CRIMINAL LAW I. ABSTRACT

   The Rome Statute is the ultimate treaty-based code on individual criminal liability, whereby the International Criminal Court was established as the first permanent international court with the jurisdiction to try the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. Insofar as crime and punishment are concerned, I believe that the Rome Statute is a common law oriented code rather than a continental law based code. At the Rome Conference, several proposals to extend the Court's jurisdiction over terrorism were rejected, primarily due to the lack of consensus on a single definition for 'terrorism.' In this article, I argue against the ongoing calls to amend the Rome Statute to incorporate the crime of terrorism within the Court's jurisdiction. In my view, 'terrorism' represents an overriding motivation which is associated with other 'ordinary crimes' and, thus, reflects the high degree of dangerousness that characterizes the actors. In criminal law systems based upon common law tradition, the dangerousness question bears upon the sentencing stage, and, therefore, a conceptual definition for factors that address criminal punishment complies with the legality principle on fair notice. Accordingly, I propose a conceptual definition that reflects the basic features of 'terrorism,' whereby it represents a notion of extreme fear imposition on the nation as such. In my view, this approach is valid in respect to terrorism of the nineteenth century exactly as to that of the twenty-first, and probably the twenty-fifth as well. In conclusion, I argue that this kind of conceptual understanding of 'terrorism,' as well as its legal nature in the realm of criminal law, was well addressed during the Nuremberg Trials, and, thus, I suggest invoking the Nuremberg experience vis-a-vis the Rome Statute.

2. INTRODUCTION

   Reading through the provisions of the Rome Statute on Individual Criminal Responsibility (Statute) leaves no doubt as to the absence of the word 'terrorism.' The Statute limits the jurisdiction of the International Criminal Court (ICC or the Court) to four crimes: the crime of genocide, crimes against humanity, war crimes, and crimes of aggression (Core Crimes). (1)

   Although the possibility of including the crime of terrorism was discussed during the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, held in Rome, June 15-July 17, 1998 (Rome Conference), (2) eventually such a crime was not established within the Statute's premises, to a great extent, due to the lack of agreement on a clear accepted definition for 'terrorism.' (3)

   Among the variety of legal tools, criminal law plays an important role, both at the national and the international levels, in fighting terrorism. In absolute terms, it is well understood that criminal law aims at seeking justice for the society in general and for the victims of the criminal commission in particular. (4) Justice can be thus achieved, inter alia, by reaching those who are responsible for harming certain socially protected interests, denouncing and condemning them for their wrongs, and, consequently, punishing them for their guilt. However, one may not simply assume that an individual is liable for an act of terrorism; the individual's guilt must be proved, beyond a reasonable doubt--until then, the individual is presumed innocent.

   For legal purposes, the enigma surrounding defining 'terrorism' is of the utmost importance, particularly in the context of criminal law. The legality principle is one of the most significant principles of criminal law theory. One of the most important protections that the legality priciple provides to those who are subject to criminal law is the requirement of fair notice, which stipulates that crimes must be defined in enough detail to put a person on notice of the behavior prohibited. (5) It is the promise that individuals must know what the 'law' is before they violate it. It is a constitutional requirement (6) that suspects of criminal activity, being, first and foremost, human beings, are to be treated with dignity i.e. as rational persons, who are capable of distinguishing between right and wrong. (7) Accordingly, the legality principle suggests that once individuals have received the above-mentioned prior fair notice, attributing criminal guilt to them for choosing what had already been defined as criminally wrong constitutes a just, right, and fair condemnation. (8) The legality principle widely appears in bold letters across domestic criminal law codes as well as in the Rome Statute; it is an essential requirement of criminal justice.

   Despite the decisive position that the state parties took at the Rome Conference against establishing a crime of terrorism, scholars of international criminal law have not given up; they continue to seek the amendment of the Rome Statute in this regard. To this end, they call for articulating a distinct international crime of terrorism or a sub-category within the scope of one of the Core Crimes. In this context and by virtue of the legality principle, a variety of possible detailed definitions for 'terrorism' have been proposed. Generally speaking, the common grounds for these proposed definitions are influenced by the aftermath of the tragic 9/11 attacks, which have been politically described as acts of terror.

   In this article, it is argued that these scholars have been mistaken in perceiving 'terrorism' as a form of action. In my view a conceptual definition is needed to appropriately and accurately evaluate terrorism, one in which 'terrorism' represents the kind of motivation that incites those criminals whose aim to inflict extreme fear on the nation as such, as a means to accomplish some other ends. This motivation must be distinguished from the classic mens rea, an essential requirement for the establishment of criminal guilt. In my opinion, the motivation behind acts of terrorism represents the level of dangerousness, which is relevant for criminal punishment.

   The distinction between the guilt/innocence proceedings and the sentencing stage is of the utmost importance, given that the Rome Statute, as a criminal code, is highly influenced by the common law tradition, as compared to the continental tradition. As for the guilt/innocence proceedings, the burden of proving the defendant's guilt, beyond a reasonable doubt, is laid on the prosecution's shoulders. At the sentencing stage both sides bear the burden of proving, by the preponderance of the evidence, aggravating elements (the prosecution) and mitigating elements (the convicted person).

   It is my view that 'terrorism' does not bear on the guilt question but, rather, on the determination of the convicted person's dangerousness, as it represents the terrorist's overriding motivation of imposing extreme fear on the nation as such. The assessment of dangerousness is reserved for the sentencing stage. Accordingly, for the purposes of criminal law, there is no need to articulate a detailed definition for 'terrorism,' thus a conceptual understanding of this phenomenon complies with the legality principle.

   In conclusion, I argue that this understanding of the conceptual meaning of 'terrorism' as well as its legal features in the realm of criminal law is romanticized in the Nuremberg Trials. At Nuremberg, the Charter of the International Military Tribunal (9) (IMT) did not include a crime of terrorism; however, the conceptual nature of 'terrorism' as well as its characteristics as an aggravating factor in sentencing was aptly and manifestly expressed in the opening statement by Justice Robert H. Jackson, the Chief United States prosecutor at the Nuremberg Trials.

3. THE QUEST FOR INTERNATIONAL CRIMINALIZATION OF TERRORISM

   The ICC was established as a permanent, treaty-based, institute that provides a forum to try individuals of flesh and blood (10) for "the most serious crimes of international concern," (11) which "shock the conscience of humanity" (12) and are, thus, deemed as grave crimes that "threaten the peace, security and well-being of the world." (13) The Statute aims at putting an end to "impunity for the perpetrators of these crimes," (14) hence realizing that such crimes "must not go unpunished, and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation." (15) Ultimately, this sentiment coalesced into the four Core Crimes (16) that were adopted by the member states at the Rome Conference and codified in the Statute, over which the ICC has jurisdiction. (17)

   The 1994 Declaration on Measures to Eliminate International Terrorism (18) recognizes that "terrorism constitute [s] a grave violation of the purposes and principles of the United Nations, which may pose a threat to international peace and security." (19) However, the Rome Statute--which extends the ICC's jurisdiction over "the most serious crimes of international concern" (20) --does not provide an explicit reference to 'terrorism,' neither as a distinct international crime nor as a sub-category of any of the Core Crimes.

   A review of the summary records of the Rome Conference shows that the possibility of criminalizing 'terrorism' for the purposes of the ICC's jurisdiction was expressly brought to the state parties' attention. (21) However, the inclusion of 'terrorism' within the Statute was decisively rejected by the majority of the state parties. (22) It is remarkable that at the conclusion of the Rome Conference, terrorism was addressed solely in Resolution E in the Annex to the Final Act, which recommended...