Published in July 2018.

 

 
  This module is a resource for lecturers  

 

Exercises and case studies

 

This section contains suggestions for in-class or pre-class educational exercises, while a post-class assignment for assessing student understanding of the Module is suggested in a separate section.

The exercises in this section are most appropriate for classes of up to 50 students, where students can be easily organized into small groups in which they discuss cases or conduct activities before group representatives provide feedback to the entire class. Although it is possible to have the same small group structure in large classes comprising a few hundred students, it is more challenging and the lecturer might wish to adapt the facilitation techniques to ensure sufficient time for group discussions as well as providing feedback to the entire class. The easiest way to deal with the requirement for small group discussion in a large class is to ask students to discuss the issues with the four or five students sitting close to them. Given time limitations, not all groups will be able to provide feedback in each exercise. It is recommended that the lecturer makes random selections and tries to ensure that all groups get the opportunity to provide feedback at least once during the session. If time permits, the lecturer could facilitate a discussion in plenary after each group has provided feedback.

All exercises in this section are appropriate for both graduate and undergraduate students. However, as students' prior knowledge and exposure to these issues varies widely, decisions about appropriateness of exercises should be based on their educational and social context.

Exercise 1: National anti-terrorism legislation

  • Select three journal articles from the advanced reading list for 'defining terrorism' and 'criminal justice approach' focusing on national anti-terrorism instruments, drawn from different jurisdictions. Alternatively, research the definitional approaches adopted by 3-4 countries of your choosing, e.g., your own country plus 2-3 others.
  • Identify 2-3 common themes and issues arising from your research that struck you, e.g. key differences between them, legislative strengths or weaknesses, challenges of effective implementation, rule of law concerns (e.g., non-compliance with international human rights standards), etc.
  • Prepare a short presentation (e.g., five minutes) to share with your class (e.g., at the start of the next class together).
 

Exercise 2: Moot before the International Court of Justice

 

Exercise details

This moot exercise is based upon, but further develops aspects of, the Lockerbie bombing case study ( Case study 2).

(1) The facts

In January 2017, an Al Qaida cell based in the state of Arcadia successfully carried out a terrorist bombing on board FlyGlobal Airline Flight 231, registered in the State of Curia, detonating explosives members of the cell had smuggled on board hidden in their electronic devices such as mobile phones and laptops. Since Flight 231 was flying between Arcadia and Butavia via Curia, predominantly nationals of all three States were killed in the bombing. Additionally, the explosion of Flight 231 took place over the territory of Curia, causing significant deaths, casualties and damage to property due to falling pieces of aircraft. The inhabitants of that city remain traumatized to this day.

Unfortunately, before the masterminds behind this terrorist attack could be identified and apprehended in Arcadia, they managed to escape to Duradia which is likely to become a failed State imminently and, as such, has little in the way of effective resources to investigate and prosecute suspected criminals of any nature, never mind those persons accused of having perpetrated international terrorist crimes. Additionally, it is suspected that Duradia has harboured al Qaeda and permitted its training activities in recent years. Although the terrorists who committed this attack now operate out of Duradia, they are all nationals of Eqatoria which has adopted a robust anti-terrorism stance which is reflected within its domestic legislation and policies.

In March 2017, under considerable international pressure, Duradia apprehended three suspects. It has elected to investigate the offences itself and, if appropriate, try the suspects. However, Arcadia and Butavia jointly, Curia, and Eqatoria, all wish for the suspects to be extradited to them for both investigation and any subsequent trial since they do not believe that justice will be achieved if Duradia carries out this process. However, Duradia has refused to extradite the suspects. Consequently, Arcadia and Butavia, as P5 Members, persuaded the Security Council to pass resolution 2002 (2 May 2017) to put further political pressure on Duradia to extradite the three suspects to either Arcadia or Butavia, threatening the imposition of smart sanctions if Duradia did not comply by 30 June 2017.

However, Duradia refused to comply and, in response, issued proceedings at the International Court of Justice for a declaration on the legality of its actions. In response, and following the expiry of the 30 June 2017 deadline, Arcadia and Butavia persuaded the Security Council to pass Resolution 2010 (10 July 2017) which mandated Duradia to extradite the suspects to Arcadia or Butavia, imposing severe economic sanctions on Duradia with immediate effect until they complied. During the past seven months, the sanctions have had a significant impact on the economy and infrastructure of Duradia, which claims that already several hundred citizens have died due to inadequate food and access to essential healthcare. Meanwhile, Curia is seeking a declaration that should the suspects be extradited out of Duradia, that they be extradited to Curia since it has the most interest in trying the suspects, and not to Arcadia or Butavia; while Equatoria is seeking a declaration that the suspects be extradited to it as the country of citizenship.

All five states are parties to the 1971 Montreal Convention, the 2010 Beijing Convention  (assume for the purpose of this exercise that it has come into effect), as well as the 1997 Suppression of Terrorist Bombings Convention. The case has now come before the International Court of Justice (ICJ).

(2) Moot exercise (see Teaching Guide)

Put the students into five groups representing one of the following positions: (a) the joint position of Arcadia and Butavia; (b) Curia; (c) Duradia; (d) Eqatoria; and (e) the judges of the ICJ.

Ensure that they all have access (whether in hard copy and/or electronically) to the 1971 Montreal Convention; the 1997 Suppression of Terrorist Bombings Convention; the 2010 Beijing Convention  (you may wish to give advance warning to them to bring these materials to class with them).

Allow the students e.g. 20 minutes to prepare the case for their client State(s), identifying the key issues and relevant provisions of the treaty texts; or, in the case of the ICJ judges group to consider the key issues each State is likely to raise and their planned to response to these.

Allow each of the groups e.g. five minutes to present their case to the ICJ (this may be made by one or more students).

After hearing all of the submissions, there should be a short adjournment (e.g. 5-10 minutes) for the ICJ judges group to consider the arguments made and their deliberations as to which State, and why, should try the terrorist suspects. The judges group should then give its decision and brief reason for it.

At the end, give a few reflections and feedback of your own to the groups, whether individually or as class.

Estimated length of time: 45-60 minutes.

 

Case study 1: Hypothetical case: suppression of terrorist financing

 

Arcadia v. Greenlandia *

Arcadia institutes proceedings in the International Court of Justice against Greenlandia with regard to alleged violations of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) ...". On the same day, Arcadia submits a request for the indication of provisional measures pending the Court's decision on the merits.

The Court recalled in its Press Release that "[…] for the purposes of the request for the indication of provisional measures, Arcadia invoke[d] its rights and the respective obligations of Greenlandia solely under article 18 of the ICSFT. This Article provides in substance that States parties are obliged to co-operate to prevent the financing of terrorism, i.e., the provision or collection of funds with the intention that they should be used or in the knowledge that they are to be used in order to carry out acts of terrorism as defined in article 2 of the Convention. Consequently, for the purposes of a request for the indication of provisional measures, a State party to the Convention may avail itself of the rights under article 18 only if it is plausible that the acts complained of constitute acts of terrorism. The Court observes that the acts to which Arcadia refers have given rise to the death and injury of a large number of civilians. However, in order to determine whether the rights for which Arcadia seeks protection are at least plausible, it is necessary to ascertain whether there are sufficient reasons for considering that the elements set out in article 2, such as intention and knowledge, as well as the element of purpose, are present. The Court is of the view that, at this stage of the proceedings, Arcadia has not put before it evidence which affords a sufficient basis to find it plausible that these elements are present. Therefore, it concludes that the conditions required for the indication of provisional measures in respect of the rights alleged by Arcadia on the basis of the ICSFT are not met". Proceedings continue.

* International Court of Justice, "The Court finds that Greenlandia must refrain from imposing limitations on the ability of a constituent community to conserve its representative institutions, and ensure the availability of education in the Arcadian language".
 

Case study 2: Lockerbie bombing *

This case study raises many interesting issues, including regarding the relationship between the universal instruments against terrorism - in this case, the 1971 Montreal Convention - and Chapter VII resolutions of the Security Council; the possible implications of international politics in criminal justice approaches; challenges (legal, diplomatic, practical, etc.) associated with investigating and prosecuting complex cases such as terrorist attacks; as well as the availability of review mechanisms for Security Council decision-making.

On 21 December 1988, Pan Am Flight 103 exploded above the Scottish town of Lockerbie, killing all 259 passengers on board as well as 11 people on the ground; others were injured and properties were damaged. Following extensive investigation, in 1990 the cause of the explosion was attributed to a bomb and was traced back to two Libyan suspects, Abdelbeset Ali Mohamed al Megrahi and Al Amin Khalifah Fhimah. In 1991, the two suspects were indicted for 270 counts of murder by UK and US authorities. The primary States involved - the UK, US and Libya - were all States parties to the 1971 Montreal Convention.

Libya refused to hand over the suspects, arguing that as provided for under the Montreal Convention 1971, it had elected to investigate and prosecute the two suspects itself. The States of nationals who were killed, especially the UK and US, were concerned about the impartiality, effectiveness and bona fide nature of any such criminal investigation and proceedings, especially since many considered the suspects to be Libyan intelligence officials. Therefore, as Permanent 5 members of the Security Council, they persuaded the Council to adopt two Security Council Resolutions: first, Resolution 731 (21 January 1992) putting political pressure on Libya to extradite the suspects as sought by the UK and US; and Resolution 748 (15 April 1992) imposing sanctions on air travel and arms sales to Libya when Libya continued to refuse to extradite the suspects. The effect of these Chapter VII resolutions was to override the treaty obligations of the 1971 Montreal Convention.

After several years of intensive political negotiations, on 5 April 1999, Libya handed over the suspects to the United Nations to be tried by a Scottish Court convened in the Netherlands. In response, Security Council sanctions against Libya were suspended immediately. On 31 January 2001, al Megrahi was found guilty and sentenced to a minimum of 27 years of imprisonment; Fhimah was found to be not guilty. On 14 March 2002, al Megrahi lost his appeal against his murder conviction.

In 2003, President Gadhafi agreed to pay $2.7 billion in compensation to the relatives of those killed, and in June 2004, the US resumed diplomatic relations with Libya. In August 2009, al Megrahi was returned to Libya on compassionate grounds with terminal cancer and died in May 2012. In October 2015, both the UK and US announced that they believed that other suspects were involved in the plane's bombing; some have doubted al Megrahi's innocence. Investigations continue.

* Case concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising fro mthe Aerial Incident at Lockerbie (Libya v USA) , Provisional Measures, I.C.J Reports 1992, p. 126.
 
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