Published in July 2018.

 

 
  This module is a resource for lecturers  

 

Key issues

 

In Module 3, two principal but very different approaches to counter-terrorism responses were identified, each of which have their own applicable legal frameworks: a criminal justice approach (sometimes referred to in such terms as a "criminal justice/law enforcement" or "criminal justice/preventive" approach), and a military/armed conflict approach ( Module 6). Either may be valid, depending on particular factors, such as whether counter-terrorism responses are occurring in a peacetime context or whether the legal threshold for an armed conflict has been crossed. That said, as it was also explained in Module 3, the preferred response to terrorist threats and activities should be a criminal justice approach, which is the premise upon which the United Nations Global Counter-Terrorism Strategy is based, with an armed conflict (or "military") response remaining exceptional. Certainly, the existence of robust, effective criminal law responses to terrorism may avoid any perceived need by national authorities to resort to military force or other exceptional emergency measures.

An effective and prevention-focused response to terrorism should include a strong criminal justice element, i.e. one that is guided by a normative legal framework and embedded in the core principles of the rule of law, due process and respect for human rights (see Module 11). Perpetrators of terrorist acts as defined in the universal and international legal instruments against terrorism discussed in Module 4 are criminals and they should therefore be dealt with by the criminal justice process. This is the most appropriate and fair mechanism to ensure that justice is achieved and that the rights of the accused are protected. Further, by way of preliminary explanation, international anti- and counter-terror instruments will be referred to as "universal" conventions, in line with the practice of the United Nations Office on Drugs and Crime (UNODC), although the meaning of the two terms (including in the context of establishing jurisdiction) is different, as is explained below. In addition to the core function of criminal justice approaches to terrorism, these instruments also provide for effective prevention mechanisms, including interventions that target the funding of terrorists and terrorist organizations and allow for the interception of conspiracies to commit attacks and the prohibition of incitement to terrorism.

Although criminal justice responses to terrorist activities are not new, they have taken on renewed significance as a central component of global counter-terrorist efforts, especially since the 9/11 terrorist attacks. This has resulted in a multitude of related activities, including greater international cooperation, the increased ratification of existing conventions against terrorism (some of which were lagging behind in ratifications or accessions prior to 9/11, such as the International Convention for the Suppression of the Financing of Terrorism 1999), drafting and implementation of new counter-terrorism laws, policies and practices, accompanied by capacity building activities including by UNODC. In addition, there has been an increase in the prosecution of terrorism-related crimes, whether directly or indirectly, within both national and international courts and tribunals.

Specifically, this Module starts by examining challenges associated with ongoing efforts to reach agreement on a universal definition of terrorism, including in the context of continuing international efforts to finalize the text of the Draft Comprehensive Convention on International Terrorism (Comprehensive Convention). It also explores different regional and national definitional approaches as well as whether a definition of terrorism may exist under customary international law. The Module then considers criminal justice approaches, specifically the concepts and accompanying principles of international criminal justice and international criminal law of particular relevance to terrorism-related offences, including elements of crime as well as different types of jurisdiction. It then examines treaty-based crimes of terrorism, giving a brief overview of each of the universal anti-terrorism instruments. The Module concludes by considering whether and how terrorism offences can be prosecuted as core international crimes, whether as genocide, crimes against humanity and/or war crimes, together with the related challenge of their being no permanent international court or tribunal with express jurisdiction over terrorist crimes, though some ad hoc tribunals have overcome this difficulty in practice.

The sub-pages to this section provide a descriptive overview of the above mentioned key issues.

 
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