Negotiating the draft Comprehensive Convention on international terrorism

Journal of International Criminal Justice

Volumn 4, Issue 5, 2006, Pages 1031-1043

  Hmoud, Mahmoud ^a,b  

^a Jordanian Foreign Ministry   (Jordan)

^b International Law Commission   (Jordan)

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EID: 33846652968     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mql081     Document Type: Article

References (40)

1. See, e.g. the Report of the Working Group, UN Doc. A/C.6/53/L.4, 28 October 1998, Annex III.
2. See Measures to Eliminate International Terrorism, Report of the Working Group, UN Doc. A/C.6/55/L.2, 19 October 2000, Annex II.
3. See Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, UN Doc. A/57/37, Sixth Session (28 January-February 2002), Annexes I to IV.
4. Supra note 2.
5. Proposal submitted by Malaysia on behalf of the OIC Group, A/C.6/55/WG.1/ CRP.30 ('CRP 30'), reproduced in UN Doc. A/C.6/55/L.2, Annex III, supra note 2, provides the following definitions: 'Terrorism' means any act of violence or threat thereof notwithstanding its motives or intentions perpetrated to carry out an individual or collective criminal plan with the aim of terrorizing people or threatening to harm them or imperilling their lives, honour, freedoms, security or rights or exposing the environment or any facility or public or private property to hazards or occupying or seizing them, or endangering a national resource, or international facilities, or threatening the stability, territorial integrity, political unity or sovereignty of independent states. 'Terrorist crime' means any crime executed, started or participated in to realize a terrorist objective in any of the Contracting states or against its nationals, assets or interests or foreign facilities and nationals residing in its territory punishable by its internal law.
6. For the text of the OIC Convention, see International Instruments related to the Prevention and Suppression of International Terrorism (New York: United Nations Publication, 2001), 187.
7. Supra note 5.
8. For more on the deliberations on the points of contention in the session of theWorking Group in 2000, see UN Doc. A/C.6/55/L.2, supra note 2.
9. For details of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, UN Doc. A/56/37, Fifth Session (12-23 February 2001).
10. See SC Res. 1373 (2001).
11. This remains the OIC position. See, for example, the summary of the coordinator on the informal consultations of the Ad Hoc Committee in 2002, supra note 3, Annex VI.
12. See, for example, ICJ Judgment, East Timor (Portugal v. Australia), ICJ Reports (1995), at 102, §29.
13. The revised text of Art. 2(1), suggested by the coordinator, is found in Measures to Eliminate International Terrorism, Report of the Working Group, UN Doc. A/C.6/56/L.9, 29 October 2001. It reads as follows: 'Any person commits an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally, causes: (a) Death or serious bodily injury to any person; or (b) Serious damage to public or private property, including a place of public use, a state or government facility, a public transportation system, an infrastructure facility or the environment; or (c) Damage to property, places, facilities, or systems referred to in paragraph 1 (b) of this article, resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act.'
14. Art.18(2), of original Indian proposal, is found in UN Doc. A/C.6/55/ L.2, supra note 2. It reads as follows: 'The activities of armed forces during an armed conflict, as those terms are understood under international law, which are governed by that law, are not governed by this Convention, and the activities undertaken by the military forces of a state in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.'
15. See ICRC, Commentary III Geneva Convention Relative to the Treatment of Prisoners (Geneva, 1960), at 51, on the meaning of the term'members of the armed forces'of a party to the conflict.
16. ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, 1987), at 505, on Art. 43.
17. See the coordinator's revised text, supra note 3, Annex IV.
18. International Convention for the Suppression of Terrorist Bombings, 15 December 1997, UN Doc. A/RES/52/164, Annex.
19. Paragraph 4 in the coordinator's text, supra note 3, Annex IV, reads: 'Nothing in this Article condones or makes lawful otherwise unlawful acts, nor precludes prosecution under other laws.'
20. Supra note 13, §14.
21. R.R. Baxter, 'So-called "Unprivileged Belligerency": Spies, Guerrillas, and Saboteurs', 21 British Year Book of International Law (1951), at 340.
22. See also K. Watkin, Warriors without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy, Program on Humanitarian Policy and Conflict Research, Harvard University, Occasional Paper Series (Winter 2005), 49.
23. ICRC, Direct Participation in Hostilities. Summary reports of expert meetings organized by the ICRC and TMC Asser Institute, 2003-2005; online at www.icrc.org (visited 23 October 2006).
24. Art. 18(3), in the coordinator's text, supra note 3, Annex IV, reads: "The activities undertaken by the military forces of a state in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.'
25. Art. 1(4) of the Additional Protocol I to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, Geneva, 8 June 1977.
26. Supra note 16. For example, on Art. 4, §166 of the ICRC Commentary states: 'It is possible for a Party to contest the international character of a conflict, because it considers that the other Party to the conflict is neither a state, nor a people referred to in article 1.' (emphasis added). Also, in §168: 'Thus . . . the application of humanitarian law does not change the legal status of the state, of a people fighting for self-determination or an authority representing such a people'.
27. On Article 43, the Commentary states in §1663: 'It is not impossible that various authorities might all claim to represent one and the same Party to the conflict, such as a "people" fighting against "alien occupation"'.
28. Ibid., §1659.
29. Eventually the OIC group proposed formally a text for Art. 18(2) which reads: 'The activities of the parties during an armed conflict, including situations of foreign occupation, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention.' Supra note 3, Annex IV. The addition of 'including in situations of foreign occupation' was due to the insistence of some OIC delegations, although IHL makes it clear that situations of foreign occupation resulting from an armed conflict are considered situations of armed conflict.
30. Responsibility of States for Internationally Wrongful Acts, Official Records of the General Assembly, Fifty-Sixth Session, Supplement No.10, UN Doc. A/56/10, 2001.
31. Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Geneva, 17 August 1949.
32. GA Res. 46/51, 1991, operative §3.
33. During war time, OIC position has been to separate the convention's law from IHL and keep armed conflict situations within the umbrella of IHL only.
34. A/C.6/55/WG.1/CRP.28 contained in UN Doc. A/C.6/55/L.2, supra note 2, Annex III.
35. Art. 19(2), supra note 18.
36. In the spirit of compromise, both New Zealand and Switzerland dropped their proposal during the 2001 Working Group's session.
37. See the full text of OIC proposal, supra note 3, Annex IV.
38. UN Doc. A/59/894, 12 August 2005, Appendix I.
39. See, for example, comments by OIC delegations during the Working Group's session in 2005, contained in UN Doc. A/C.6/60/L.6, 14 October 2005, Annex.
40. The two texts of the 'Friends of the Chairman', concerning a new preambular paragraph and a new paragraph 5 of Art. 18 are found respectively in UN Docs A/C.6/601/INF/1 and A/C.60/INF/2.