Eight decades after it was first mooted, the world needs a mechanism to prosecute cross-border terrorists in peacetime.
The global toll of terrorism is rising at an alarming rate. According to the Institute for Economics and Peace, terrorist incidents claimed 3,329 lives in 2000 but 32,685 in 2014, and the economic costs of terrorism skyrocketed at least tenfold during the same period. As a result, certain governments are proposing that the UN establish a new court with a specific remit to prosecute international terrorist crimes.
This would be the first ever court with a remit to try international terrorists in peacetime on the basis of international law. It would be designed to complement the mechanisms countries already have in place to deal with domestic terrorism, which sometimes struggle to deal with terrorist acts committed across borders and all the legal problems they cause.
The court would join the growing ranks of international courts and tribunals that have been rapidly proliferating since the end of the Cold War. Of the more than 37,000 legally binding judgements passed by these international courts, some 90% have come down since 1990.
Attempts to give international judges jurisdiction over transnational terrorist acts is not new. After the king of Yugoslavia and the French minister of foreign affairs were assassinated in Marseilles in 1934, several members of the League of Nations for the first time signed up to international anti-terrorism treaties.
Among their various provisions was a call to create an international court for trying international terrorists. It never came to pass – but some 80 years later, spurred by a series of devastating Islamic State-inspired suicide attacks and the highly internationalised war in Syria, the idea is undergoing something of a revival.
A critical juncture
The notion of an international terrorism court has been gaining traction ever since the events of 9/11, and the time might just be right to set one up.
Even though terrorism still has no single globally accepted legal definition, broadly defined, it’s increasingly thought of as a global phenomenon and an international crime. It is now routine for the UN Security Council to qualify every major international terrorist act as “a threat to international peace and security”, the same phrase it used to describe the 2014 Ebola outbreak.
There’s also a lot of pressure on the international legal system to define what transnational terrorism is so it can be effectively prosecuted. In 2011, the UN Special Tribunal for Lebanon declared the existence of an “international crime” of international terrorism, opening a debate on whether a new “crime against the law of nations” had emerged.
There’s also something of a gap in the international system that a terrorism court would be well-placed to fill. The international criminal courts for Yugoslavia and Rwanda and the special courts for Sierra Leone and Lebanon are at various stages of being wound up; as they close down, resources are being released and jurisdictional space is being opened up.
As things stand, the demand for a way to prosecute international terrorism is being met regionally rather than globally. One proposal is the African Court of Justice and Human Rights, which would be the “first regional court to have jurisdiction over a crime of terrorism” in times of peace. The International Criminal Court is under more pressure than ever to reassert its authority, as Russia and numerous African states move to withdraw from it.
This is all happening as the forces of nationalism, populism and international tension roil the world order. Global diplomatic relations are reaching a critical juncture; fundamental economic, political and cultural structures are suddenly in flux. If there’s suddenly a truly catastrophic terrorist attack, or even if the frequency of major ones increases, the project of creating a single global mechanism to prosecute the culprits might finally take off.
Treading on eggshells
But setting up a court such as this would be very difficult, with obstacles both technical and political. From the off, it would have to defuse governments’ concerns over sovereignty, take a side in rows over the definition of terrorism, placate worries about its legitimacy, and take steps to ensure that its power could not somehow be abused for political ends.
As the UK and US have recently shown, many governments are reluctant to pool their sovereignty with other states in any arena. That would be especially true in a sensitive area so closely entwined with national security. As they see it, the transnational treaty regime for terrorism works well enough, at least for their own purposes.
Then there’s the problem of clearly defining what legally constitutes terrorism in the first place. The UN has spent decades trying to agree on a globally accepted definition to no avail. If a specialist court were set up using an underdeveloped definition, it would be walking into a legal and political minefield; without fine-tuning its remit, it could unintentionally interfere with global human rights standards by stigmatising people and groups currently not labelled as terrorists. The knock-on effect would be to exacerbate the repressive effects of numerous counter-terrorism laws and policies in areas from extradition and universal jurisdiction to refugee law.
These risks are all too apparent, and go some way to explaining why the court has never been set up. Nonetheless, there is a shortcut available: the UN Security Council, whose five permanent members can set a court up via a resolution. If they clubbed together to do it, this eight-decades-in-the-making institution could be made reality sooner than expected.
But even if the Security Council managed to strike such a remarkable consensus and get things moving, there could still be trouble ahead. A court set up by fiat at the behest of a handful of great powers would inevitably face legitimacy problems when dealing with crimes committed in other states who didn’t have a say in what the court looked like. And more than that, it would do nothing to answer the ultimate question that bedevils so many global institutions: who will foot the bill?
Ignacio De La Rasilla Del Moral, Senior Lecturer in Law, Brunel University London