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The International Convention for the Suppression of Terrorist Bombings

Published online by Cambridge University Press:  27 February 2017

Samuel M. Witten
Samuel M. Witten*
Affiliation:
Office of the Legal Adviser, U.S. Department of State
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Extract

On December 15, 1997, the United Nations General Assembly adopted the International Convention for the Suppression of Terrorist Bombings (Convention or Terrorist Bombing Convention). The Convention sets forth a broad regime of jurisdiction for international cooperation in connection with the unlawful and intentional use of explosives and other lethal devices, in, into or against various defined public places, with intent to kill or cause serious bodily injury or to cause extensive destruction of the defined public place. It will fill an important gap in international law by expanding the legal framework for states to cooperate in the investigation, prosecution and extradition of persons who engage in such international terrorism. While generally patterned after prior counterterrorism conventions, the Convention contains several important innovations.

Type
Current Developments
Information
American Journal of International Law , Volume 92 , Issue 4 , October 1998 , pp. 774 - 781
Copyright
Copyright © American Society of International Law 1998

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References

1 37 ILM 249 (1998) [hereinafter Convention]. The Convention is annexed to General Assembly Resolution 52/164 (Dec. 15, 1997). The Convention will enter into force on the 30th day following the date of the deposit of the 22d instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations. See Convention, Art. 22(1). As of September 8, 1998, it had been signed by 29 countries. In addition to the United States, it had been signed by Argentina, Austria, Belgium, Burundi, Canada, Costa Rica, Cyprus, the Czech Republic, Finland, France, Germany, Greece, Ireland, Italy, Japan, Lithuania, Luxembourg, the Netherlands, Norway, Romania, the Russian Federation, Slovakia, Spain, Sri Lanka, Sweden, Togo, the United Kingdom and Uzbekistan. In the United States, the Convention is now being prepared for transmittal to the U.S. Senate for advice and consent to ratification.

2 See U.S. Dep't of State, Pub. No. 10,433, Patterns of Global Terrorism: 1996, at 35 (1997).

3 These include the poison gas attacks in Tokyo's subways, see U.S. Dep't of State, Pub. No. 10,321, Patterns of Global Terrorism: 1995, at 5 (1996); a bombing in Colombo, Sri Lanka, see U.S. Dep't of State, supra note 2, at 28; bombings in Tel Aviv and Jerusalem, see id. at 29; and a bombing in Manchester, England, see id. at 32.

4 See Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 20 UST 2941, 704 UNTS 219 [hereinafter Tokyo Convention]; Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 UST 1641 [hereinafter Hague Convention]; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Sept. 23, 1971, 24 UST 564 [hereinafter Montreal Convention].

5 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, Dec. 14, 1973, 28 UST 1975, 1035 UNTS 167 [hereinafter IPP Convention].

6 Convention on the Physical Protection of Nuclear Materials, with annex, Oct. 26, 1979, TIAS No. 11,080 [hereinafter Physical Protection Convention].

7 International Convention against the Taking of Hostages, Dec. 17, 1979, TIAS No. 11,081, 1316 UNTS 205 [hereinafter Hostages Convention].

8 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, with Related Protocol, Mar. 10, 1988, S. Treaty Doc. No. 101–1 (1989) [hereinafter Maritime Terrorism Convention].

9 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the convention of September 23, 1971, Feb. 24, 1988, S. Treaty Doc. No. 100–19 (1988).

10 After terrorist acts, lacunae in international terrorism law have often stimulated subsequent negotiations. See, e.g., David Freestone, The 1988 International Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 3 Int'l J. Estuarine & Coastal L. 305, 305–06 (1988); Message from the President of the United States transmitting the 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, S. Treaty Doc. No. 100–19, supra note 9, at v; Message from the President of the United States Transmitting the 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, S. Exec Doc. T, 92d Cong., 2d Sess., at v (1972).

11 In their joint statement, G7/P8 Ministers agreed to “promote the consideration and development of an international convention on terrorist bombings or other acts creating collective danger to persons, to the extent that the existing multilateral counter-terrorism conventions do not provide for cooperation in these areas.” For the full text of the official document adopted at the conference, see UN Doc. A/51/261 (1997).

12 See GA Res. 51/210, para. 9, UN GAOR, 51st Sess., Supp. No. 49, Vol. 1, at 346, 348, UN Doc. A/51/49 (1996).

13 See Preliminary Working Document Submitted by France on Behalf of the Group of Seven Major Industrialized Countries and the Russian Federation, UN Doc. A/AC.252/L.2 (1997).

14 Report of the Sixth Committee: Measures to Eliminate International Terrorism, UN GAOR 6th Comm., 52d Sess., Agenda Item 152, at 6, UN Doc. A/52/653 (1997).

15 The Convention was adopted by the General Assembly without a vote at its 52d session, on December 15, 1997. See UN Doc. A/52/PV.72 (1997).

16 See Convention, Art. 21(1). In addition to being open for signature and ratification, acceptance or approval, the Convention is also open for accession by any state pursuant to Article 21(3); instruments of accession are to be deposited with the UN Secretary-General.

17 Article 2(3) provides that such a contribution must be “intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.”

18 The Hague, Montreal and Hostages Conventions, for example, do not use such detailed formulations of ancillary offenses, stating only that those who “attempt” to perform an offense or those who are an “accomplice of a person” who performs or attempts to perform an offense are also offenders. See Hague Convention, supra note 4, Art. 1; Montreal Convention, supra note 4, Art. 2(2); and Hostages Convention, supra note 7, Art. 1(2).

19 Article 1 defines these four categories as follows:

1. “State or government facility” includes any permanent or temporary facility or conveyance that is used or occupied by representatives of a State, members of Government, the legislature or the judiciary or by officials or employees of a State or any other public authority or entity or by employees or officials of an intergovernmental organization in connection with their official duties.

2. “Infrastructure facility” means any publicly or privately owned facility providing or distributing services for the benefit of the public, such as water, sewage, energy, fuel or communications.

…

5. “Place of public use” means those parts of any building, land, street, waterway or other location that are accessible or open to members of the public, whether continuously, periodically or occasionally, and encompasses any commercial, business, cultural, historical, educational, religious, governmental, entertainment, recreational or similar place that is so accessible or open to the public.

6. “Public transportation system” means all facilities, conveyances and instrumentalities, whether publicly or privately owned, that are used in or for publicly available services for the transportation of persons or cargo.

20 The Convention thus significantly broadens the international legal regime for law enforcement cooperation in combating the illegal use of chemical, biological, and radiation and radioactive materials. For example, while the Physical Protection Convention, supra note 6, also includes a “prosecute or extradite” provision, see Art. 7, it is strictly limited to the commission of certain offenses regarding nuclear material as defined in Article 1 (a) of the Convention. The Terrorist Bombing Convention broadens the international legal regime in this area by criminalizing the unlawful and intentional use of “radiation and radioactive material” in connection with offenses in Article 2 of the Convention. In addition, the Convention's inclusion of “toxic chemicals, biological agents or toxins” in the definition of “explosive or other lethal device” in Article 1(3) is the first time that the illegal use of such materials by individuals for the purposes set forth in the Convention is the subject of an international counterterrorism instrument requiring international cooperation in extradition and mutual legal assistance. While the major international conventions addressing chemical and biological weapons impose other important undertakings on states, including requirements to criminalize certain conduct, they lack the broad law enforcement cooperation provisions of the Terrorist Bombing Convention. See Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972, Art. 4, 26 UST 583, 1015 UNTS 163; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, Art. 7, 32 ILM 800 (1993).

21 In generally limiting its scope of application to cases involving elements from more than one state, the Convention follows the precedents of prior counterterrorism conventions. See, e.g., Hague Convention, supra note 4, Art. 3(3) (“This Convention shall apply only if the place of take-off or the place of actual landing of the aircraft on board which the offence is committed is situated outside the territory of the State of registration of the aircraft”). See also Hostages Convention, supra note 7, Art. 13.

22 There is no parallel to this article in the prior counterterrorism conventions. This provision was added during the negotiations primarily because some delegations thought it important to include the concept that conduct described in the Convention can instill “terror” in the public (although the word is not defined and it is not an element of the offenses in Article 2) and to emphasize that the offenses outlined in Article 2 should be universally condemned and criminalized regardless of the motivations of the perpetrators.

23 Although the Hostages Convention and the Maritime Convention include a similarly broad array of bases of criminal jurisdiction, the earlier counterterrorism conventions do not. See, e.g., Hague Convention, supra note 4, Art. 4; and Montreal Convention, supra note 4, Art. 5 (excluding nationality and passive personality jurisdiction).

24 Article 6(2)(b) of the Terrorist Bombing Convention refers to any “State or government facility of that State abroad, including an embassy or other diplomatic or consular premises of that State.” Thus, the Convention will reach attacks on extraterritorial government facilities such as tourist centers, economic development offices and military facilities. The Convention also includes as an offense an attack on any “State or government facility,” not only with the intent to cause death or serious bodily injury, see Art. 2(1) (a), but also “[w]ith the intent to cause extensive destruction of such a … facility … , where such destruction results in or is likely to result in major economic loss,” see Art. 2(1) (b). The provisions of the Bombing Convention regarding attacks on government facilities are thus broader than those of the 1973 Internationally Protected Persons Convention, which addresses attacks only on “the official premises, the private accommodation or the means of transport of an internationally protected person likely to endanger his person or liberty.” See IPP Convention, supra note 5, Art. 2(1).

25 Article 6(5) makes clear that the Convention does not preclude criminal jurisdiction exercised in accordance with domestic law.

26 This provision is a classic aut dedere aut judicare requirement found in all of the counterterrorism conventions that define an offense and require states to assert jurisdiction over offenders. See analogous provisions in the Montreal Convention, supra note 4, Art. 7; the Hostages Convention, supra note 7, Art. 8(1); and the Maritime Terrorism Convention, supra note 8, Art. 10(1).

27 Specifically, Art. 8(2) provides:

Whenever a State Party is permitted under its domestic law to extradite or otherwise surrender one of its nationals only upon the condition that the person will be returned to that State to serve the sentence imposed as a result of the trial or proceeding for which the extradition or surrender of the person was sought, and this State and the State seeking the extradition of the person agree with this option and other terms they may deem appropriate, such a conditional extradition or surrender shall be sufficient to discharge the obligation set forth in paragraph 1 of the present article.

28 See, e.g., Extradition Treaty, Mar. 9, 1990, U.S.-Bah., S. Treaty Doc. No. 102–17, Art. 3 (1991).

29 See, e.g., Mutual Legal Assistance Treaty, June 24, 1980, U.S.-Neth., Art. 10, TIAS No. 10,734; Extradition Treaty, Dec. 14, 1983, U.S.-Thail., Art. 3, S. Treaty Doc. No. 98–16 (1991).

30 Hostages Convention, supra note 7, Art. 9.

31 This provision is similar to provisions found in virtually all of the recent bilateral mutual legal assistance treaties to which the United States is a party. See, e.g., Mutual Legal Assistance Treaty, U.S.-Spain, Nov. 20, 1990, Art. 11, S. Treaty Doc. No. 102–21 (1992).

32 In construing the armed conflict “carve-out,” an appropriate source of authority would be the widely accepted provision in Article 1 (2) of Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 609. That paragraph states that “armed conflict” does not include “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.”

33 The conduct of certain civilians who act in support of official activities of state military forces is also exempted from the Convention's scope of application. The phrase “military forces of a State” is defined broadly in Article 1(4) as meaning “the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security and persons acting in support of those armed forces who are under their formal command, control and responsibility.” In addition, because the Convention does not reach the official activities of state military forces, it similarly does not reach persons, including nonmilitary policy-making officials of states, who might direct or organize the activities of state military forces or who might otherwise have been subject to the ancillary offenses in Article 2 if state military forces had not been so excluded.

34 Article 20(1) provides that

[a]ny dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court.

Article 20(2) provides that each state may declare at the time of signature, ratification, acceptance or approval of the Convention or accession thereto that it does not consider itself bound by Article 20(1). Under Article 20(3), any state that has made a reservation in accordance with Article 20(2) may withdraw that reservation at any time by notification to the Secretary-General of the United Nations.