Legal Instruments to prevent terrorist attacks

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In 1934 the League of Nations took the first tentative steps to outlaw the scourge of Terrorism through the discussion of a draft convention outlining the penalties for terrorism and its future prevention. In 1937 the convention was adopted though it never actually came into force.

The international dimension of terrorism urged many states to perceive that they have a shared interest in co-operating with each other in order to suppress specific manifestations of terrorism, which they perceived to be a common threat. Starting from the least ambitious threshold of the conventions regulating hijacking in the 1960's and 1970's, the 1990's finds the international community forming and adopting new instruments, dealing with more specialized forms of terrorism with increasingly advanced language. The United Nations General Assembly has played an important role in addressing some of the more specific manifestations of international terrorism, such as airline hijacking, unlawful seizure of aircraft and hostage taking, by adopting resolutions and conventions that require States to criminalize these acts. International co-operation between States for the suppression of international terrorism was manifested by a series of agreements dealing with a crime that threatens not only human life and safety, but also the existence of every civilized society. [1] An analysis of the subject matter of the international instruments dealing with terrorism reveals that they encompass different manifestations of violence upon civil aviation, [2] civil maritime navigation and sea based platforms, [3] well as attacks upon persons, including hostages, diplomats and other internationally protected persons. [4] Among the most notable elements of the relevant conventions is the absence of universal jurisdiction in respect of the offences prescribed therein. For example, the provisions of the Tokyo Convention [5] provide for jurisdiction on a variety of bases, such as the registration of the aircraft, the nationality of the personnel harmed, but none of these amounts to universal jurisdiction. The Hague and the Montreal conventions contain explicit punishment for the potential offender and oblige member States either to extradite or punish. However, the present author expresses his serious doubts as to the extent that States are ready to comply with the 'aut detere aut judicare principle', especially since neither the Hague nor the Montreal Convention contains provisions for the application of sanctions. [6] Moreover, the aut dedere principle is not ipso facto directly applicable, but requires the existence of a bilateral extradition treaty, or a declaration lodged in a multilateral convention containing the aut dedere principle with which the declaring State expressly consents to extradition regardless of the existence of a bilateral treaty.

The necessity to suppress acts of hostage taking led to the adoption of the 1979 Convention against the Taking of Hostages. The Convention recognizes the grave nature of the offence [7] and obliges member States to define it as an extraditable offence under their domestic laws. [8] The Convention makes no provision regarding the handling of hostage situations but requires member States to take all appropriate measures [9] to ease the situation and secure the release of the hostages. [10] It is evident that both in the case of civil aviation and hostage taking the emphasis is not on the protection of the victims once these are caught in the middle of a particular incident; rather, co-operation focuses more on the criminal justice dimension thus adopting a suppressionist model. The basic model followed by the international anti-terrorism instruments is the following: a type of terrorist activity of particular concern at the time is identified; states are obliged to criminalize the conduct and impose penalties. Thus, the pre-September 11 model was utilizing international law to declare that certain acts should be criminalized in the domestic law of each signatory state.

Thirteen universal legal instruments for the prevention of terrorist acts have been elaborated by the international community since 1963, including three amendments. These instruments have been developed in cooperation with the International Atomic Agency under the guidance and endorsement of the United Nations and are open to participation by all UN member States.

Following is a summary of the thirteen major legal instruments dealing with terrorism.

1963 Convention on Offences and Certain Other Acts Committed On Board Aircraft - (Aircraft Convention)

This convention applies to acts affecting the safety of the aircraft during flight and the passengers and crew. It authorizes the commander of the aircraft to impose reasonable measures that are both legal and practical in nature, including forceful restraint, on any person that he or she has reasonable grounds to believe has carried out or is about to carry out such an act as defined in Article 1, paragraph 1, in order to protect the safety of the aircraft. It further requires all participating States to take whatever measures are necessary to restore control of the aircraft to the lawful operators.

1970 Convention for the Suppression of Unlawful Seizure of Aircraft - (Unlawful Seizure Convention)

This convention makes it an offence for anyone on an aircraft during flight to "unlawfully, seize or take control of that aircraft by threat or use of force, or by any form of intimidation; It requires member States to the convention to make seizure of aircraft severely punishable; It requires member States that have taken offender(s) into custody to either extradite or prosecute such offender(s); and it further requires participating States to assist one another in laying criminal charges under the convention.

1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation - (Civil Aviation Convention).

This Convention makes it an offence for anyone to intentionally and unlawfully, perform any violent act against another person on board an aircraft during flight, if that act might endanger aircraft; to secret an explosive device on board an aircraft; to attempt to carry out such acts; or to accompany or assist a person who carries out or attempts to carry out such acts. It requires member States that have taken the offender(s) into custody to either have the offender(s) extradited or prosecuted; and it further requires participating States to assist one another in bringing criminal proceedings under this convention.

1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons - (Diplomatic Agents Convention)

This Convention provides for the protection of Officials of State or International Organizations, Heads of State, Foreign Affairs Ministers and their families. It requires participating States to criminalize international murder, attacks on internationally protected persons, vehicles of officials or official premises. It also requires participating States to take into account the gravity of the offence in determining appropriate penalties.

1979 International Convention against the Taking of Hostages - (Hostages Convention)

This convention makes it a criminal offence for anyone to take a hostage or hostages within the meaning of this convention, by any person who detains, seizes, makes threats to injure or kill, or detain another person for the purpose of compelling or inducing a third party, namely, a State, a juridical or natural person, an international intergovernmental organization, or a group of persons, to do or abstain from doing any act as an implicit or explicit term or condition for the release of the hostage(s).

1980 Convention on the Physical Protection of Nuclear Material - (Nuclear Materials Convention)

This convention makes it a criminal offence to unlawfully possess, use, transfer, or steal nuclear material or threaten to use such material to cause serious injury, death or property damage. Further, amendments regarding the physical protection of nuclear material makes legally incumbent upon States to insure the protection of nuclear facilities and material for peaceful domestic use and storage as well as transport; and provides for increased cooperation between and among participating States regarding rapid response measures to locate and recover stolen or smuggled nuclear material, minimize or prevent any radiological outcomes or sabotage, and negate any related offences.

1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Extends and supplements the Montreal Convention on Air Safety) - (Airport Protocol).

This protocol extends the provisions of the Montreal Convention to include terrorist acts carried out at international airports.

1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation - (Maritime Convention).

This Convention institutes a legal regime which is applicable to acts against international maritime navigation. It is similar to the regime which has been established for international aviation; and makes it a criminal offence for any person to intentionally seize or take control of a ship by acts of intimidation or by threat or force; to perform any violent act against another person on board a ship if such act is likely to endanger the safety of the ship; to secrete an explosive device on board a ship; and other acts detrimental to the safety of ships.

2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation

This protocol Outlaws the use of a ship as a vehicle to further an act of terrorism; Outlaws the transport of various materials on board a ship in the knowledge that they are intended to be used threateningly or to cause, damage, injury or death to further an act of terrorism; Outlaws the transporting of persons on board a ship who have carried out an act of terrorism; and Introduces policy and procedures for governing the boarding of a ship believed to have committed an offence under the Convention.

1988 Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf - (Fixed Platform Protocol)

This Protocol is similar to regimes established against international aviation in that it establishes a legal regime which applies to acts carried out against fixed platforms on the continental shelf.

2005 Protocol to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf

This protocol adapts the changes to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation to the context of fixed platforms located on the continental shelf.

1991 Convention on the Marking of Plastic Explosives for the Purpose of Detection - (Plastic Explosives Convention)

This convention was designed to mitigate the use of undetectable and unmarked plastic explosives. (this was negotiated after the 1988 Lockerbie bombing of Pan Am flight 103). Participating states are obliged to ensure control over "unmarked" plastic explosive within their respective territories.

Each member state must tall all necessary measure to mitigate the manufacture of unmarked plastic explosives, prevent movement of unmarked plastic explosives across its territory, maintain control over transfer and possession of unmarked plastic explosives manufactured or imported prior to the convention coming into force, ensure that all inventories of unmarked explosives which are not in the possession of the police or military are destroyed, used, marked or made ineffective within three years, to take all essential measures to ensure that unmarked plastic explosives which are in the possession of the police or military are destroyed, used, marked or made ineffective within fifteen years and as soon as possible ensure the destruction of any unmarked explosives made after the convention came into force within that state.

1997 International Convention for the Suppression of Terrorist Bombings - (Terrorist Bombing Convention)

This convention establishes a global jurisdiction covering the intentional and unlawful use of explosives and other devices against various defined public property with the intention of killing, maiming or causing serious personal injury, or with the intent to cause extensive destruction of such public property.

1999 International Convention for the Suppression of the Financing of Terrorism- (Terrorist Financing Convention)

This convention requires all State participants to take all necessary steps to circumvent the financing of terrorists, either directly or indirectly, through organizations claiming to have social, charitable, or cultural ties or which also participate in illegal acts such as trafficking in drugs or arms. It also requires commitment from parties to hold those who finance terrorism criminally, civilly or administratively liable for those acts; and provides for the seizure of funds allocated to those acts of terrorism.

2005 International Convention for the Suppression of Acts of Nuclear Terrorism- (Nuclear Terrorism Convention)

The purpose of this convention is to cover a range of illicit acts and possible targets, including nuclear and power plants. It further covers the threats and attempts to commit such illicit acts or to participate in them, as an accomplice and commits States that have taken the offender(s) into custody to either have the offender(s) extradited or prosecuted; It encourages participants to assist each other in the prevention of terrorist attacks by sharing information. It further deals with both crisis and post-crisis situations including rendering nuclear material harmless through the International Atomic Energy Agency (IAEA).

Legal instruments to prevent Piracy attacks

International conventions

UNCLOS Article 101: Definition

In the United Nations Convention on the Law of the Sea (UNCLOS) of 1982, "maritime piracy" consists of:

“(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”

One of the limitations of Art 101 UNCLOS is that it confines piracy to the High Seas. As the majority of acts of maritime piracy occur within territorial waters, some pirates escape the law because some jurisdictions do not have the necessary resources to monitor their borders adequately.

IMB Definition

The International Maritime Bureau (IMB) defines piracy as:

“the act of boarding any vessel with an intent to commit theft or any other crime, and with an intent or capacity to use force in furtherance of that act.”

Uniformity in Maritime Piracy Law

Given the diverging definitions of piracy in international and municipal legal systems, some observers argue that the law requires greater uniformity in order to strengthen anti-piracy legal instruments.