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bombing in 1984, the 911 Incident in 2001, the Bali Bombing in 2002, etc, would easily
classify as acts of terror.
5
As a matter of law, though, there are numerous deinitions of “terrorism”, both in
national and as international instruments.
6
No single deinition has been universally agreed upon,
7
but there are two general elements that are common to all deinitions of
terrorism, namely: objective element mainly the use of physical violence, and subjective
element the intention to create terror and fear, or coerce governments international
organisations.
8
The aforementioned deinition covers acts that are not normally be referred to as
terrorism, e.g. the Iraq invasion this will be explained later.
9
However, this may generally be the best elements of a deinition.
This essay will use that together with examples from incidents that are commonly
labelled as terrorist acts. In addition, since the act of aggression
involves transgressing “[…] sovereignty, territorial integrity, or political independence
[…]”,
10
acts of terrorism committed by actors within the state’s territory will not be
analysed.
11
In order to answer whether acts of terrorism can be classiied as a Crime of
Aggression, the ive elements of the crime as prescribed in the Elements of Crime
should be fulilled. However, there are a few elements that will be assumed to be satisied
in this essay. The element of involvement planning,
preparing, initiating, or execution is assumed to be satisied, as this essay will focus on
terrorists that are already assumed to be
directly involved in the actions. The element of transgressing sovereignty together
with territorial integrity and political independence, the three as alternatives are
assumed to be satisied as well, as it has been mentioned that this essay will eliminate
terrorist acts conducted from within a State’s territory. The mental element awareness
of the transgressing sovereignty is also assumed to be satisied, because the terrorists
are assumed to have deliberately planned
such kind of transgression. It is the remaining two elements
that will be shown to have some extent of controversy to be explored in this essay: the
“leadership” requirement, and the ‘manifest breach’ test.
2. The “Leadership” Requirement
Article 8bis of the ICCSt deines the crime of
aggression as an act of aggression committed “[...] by a person in a position effectively to exercise control
over or to direct the political or military action of a State [...]”. This is also the second element of the
Crime of Aggression in the ICC Elements of Crime.
a. De Jure Control
A simple reading of the aforementioned provision would result in a conclusion that
people who have formal positions in a State, with authority to control over the armed
forces of that State, can commit a crime of aggression. One would easily think of
5
Ibid
6
National: UK Terrorism Act 2000, Indonesian Anti-Terrorism Law No. 15 of 2003, etc, International: European Convention on the Suppression of Terrorism 1977, UN General Assembly UNGA Resolution No. 53 1995, etc
7
Angela Hare, “A New Forum for the Prosecution of Terrorists: Exploring the Possibility of the Addition of Terrorism to the ICCSt’s Jurisdiction”, Loyola University Chicago International Law Review. Vol. 8, No.1, 2010, p. 97.
8
Christian Walter, “Deining Terrorism in National and International Law”, in Christian Walters et al, 2004, Terrorism as a Challenge for National and International Law: Security versus Liberty? Sprinter, Heidelberg, pp. .42-43.
9
Jacqueline S. Hodgson and Victor Tadros, Op.cit., p.501.
10
Article 8bis2 of the ICCSt.
11
Such as the Bali Bombing by the Indonesian Jamaah Islamiyah, although there may be some links to Al-Qaeda. See also, Muhammad Haniff bin Hassan, “Imam Samudra’s Justiication for Bali Bombing”, Studies in Conlict and Terrorism, Vol. 30, Iss.12, 2007, pp.1034-1035, 1042-
1043.
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Ayman Al-Zawahiri of Al-Qaeda AQ, or Abu Bakar Baashir of the Jemaah Islamiyah
when it comes to terrorist leaders. However, these names do not exercise any control of
any military of any states, therefore any of their acts cannot easily qualify as an act of
aggression.
1 Terrorism by State?
Is it, then, possible for a state to commit an act of terrorism? In 1992, the
UN Security Council UNSC issued Resolution 748 1992, to demand Libya to
“[…] commit itself deinitively to cease all forms of terrorist action […]”. The wording
suggests that Libya has been committing acts of terrorism.
Some legislation may suggest this conclusion. The UK Terrorism Act provides
an “action based” deinition of terrorism describing acts constituting an act of terror,
but not specifying who can perpetrate it.
12
This is unlike the Indonesian Anti-Terrorism Law No. 15 of 2003 that speciies that only
persons can commit act of terrorism.
13
The Lockerbie incident, labelled as an act of terrorism,
14
was attributed to Libya since UNSC Resolution 731 1992 and then
748 1992. Further, in 2011, the former justice minister of Libya mentioned that
Ghaddafy actually personally ordered the act of terrorism in the Lockerbie incident.
As note: this minister was a defector during the civil war, the claim was not investigated,
and Ghaddafy himself denied giving such orders.
15
Assuming for argument sake that Ghaddafy actually did gave such orders, this
is one very straightforward example of a person in effective control over a state and
its military power, committing an act of terrorism. Although, the Lockerbie incident
does not constitute as an act of aggression which requires the aircraft attacked to be a
military aircraft
16
while the Pan Am Air 103 was a commercial light.
The invasion to Iraq in 2003 may serve as an elusive example of acts of terror in form
of aggression committed by a State.
17
This invasion was clearly an act of violence both
to the sovereignty of Iraq as well as the lives and property of the Iraq civilians satisfying
the objective element.
18
Further, the purpose of the invasion was to coerce the Iraq
government to commit certain acts in this case, allegedly to obey UNSC resolutions
or to institute democracy, etc, will be further explained later, satisfying the subjective
element.
19
The UK was involved in the invasion,
20
while the UK Terrorism Act 2000 mentions the same subjective element in Section
11b-c, while the objective element in Section 12 is met serious violence against
a person or property, endangering a person’s life, serious risk to health or safety of the
public, etc. This might mean that the UK, under its’ own law, committed an act of terror
in the invasion to Iraq. In a national law regime, one may
propose to exclude oficial state’s acts so
12
Part I Section 1 The UK Terrorism Act.
13
Oficiating Government Regulation in Lieu of Law No. 1 of 2002, see Articles 12, 6, and 7.
14
Steven Stottlemyre, “Libya and the International System: Retracing the Aftermath of the Lockerbie Bombing”, Digest of Middle East Studies, Vol. 20, No.1, May, 2011, pp.54-55.
15
BBC, “Colonel Gaddai ‘ordered Lockerbie bombing”, http:www.bbc.co.uknewsuk-scotland-south-scotland-12552587, accessed on 6 April 2014.
16
Article 8bis2d of the ICCSt
17
Jacqueline S. Hodgson and Victor Tadros, Op.cit., p.501.
18
BBC, “Iraq War in Figures”, http:www.bbc.co.uknewsworld-middle-east-11107739, accessed on 6 April 2014.
19
Mathew Gillet, “The Anatomy of an International Crime of Aggression at the International Criminal Court”, International Criminal Law Review, Vol. 13, No. 4, 2013, pp.848-849.
20
The Telegraph, “Iraqi War: Timeline of Tony Blair’s Role”, http:www.telegraph.co.uknewspoliticstony-blair8272699Iraq-War-timeline- of-Tony-Blairs-role.html, accessed on 6 April 2014.
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the UK government does not commit acts of terror if it is an act committed by itself
this is regardless whatever the act may be. However, such a proposal would also
legitimize Libya’s actions
21
or even the Bali Bombing and the 911 Incident as well if the
allegations was true that they were inside jobs.
22
In the international law regime, the determining factor may be the element
of ‘manifest violation of the UN Charter’ which will be explained later. However, the
aforementioned analysis has given some examples how acts of terror can be attributable
to states and therefore, state actors, and thus possibly satisfying one requirement of the
Crime of Aggression.
2 Gaps in the Law: Eluding Capture
It may seem that State acts of terror in form of aggression might easily “check
the boxes” of the Elements of Crime of Aggression. However, the fact that such act is
committed by States would present different kinds of challenges.
The fact that the ICC relies on the cooperation of States to surrender
the suspects is a problem in itself.
23
The “leadership requirement” suggests that the
crime can only be committed by high state oficials, who are not known to be fond of
surrendering. For example, Omar Al Bashir who is also protected by other States during
visits not for aggression, but example of head of State refusing to surrender despite
ICC arrest warrant.
24
Further, heads of States enjoy immunity from criminal jurisdictions from
customary international law,
25
despite claims of exception for perpetrators of the most
serious crimes of international law.
26
The ICCSt seems to dismiss immunity in Article
27, but gives leeway in other places. The USA, invoking Article 98 of the
ICCSt, up to December 2006 has signed over one hundred agreements with other
states to not surrender persons to the ICC – including forty six ICC State Parties.
27
They even withdrew inancial aid from twenty
four ICC State Parties who refused to sign these agreements.
28
This is because the USA oficials are afraid of prosecutions,
29
which is a well-founded fear e.g. Iraqi invasion,
and torture to Iraqi prisoners.
30
The ICC has jurisdiction over crimes committed in the
territory of State Parties
31
so the USA is not entirely safe by not being a member.
Bearing this in mind, some states signing the bilateral agreements are State
Parties to the ICC. Certainly, if these kinds of agreements are made between State Parties,
21
Jacqueline S. Hodgson and Victor Tadros, Op.cit., p.523.
22
Bali Bombing: Centre for Research on Globalization, “US-Australia Coverup: Was Al-Qaeda Behind the 2002 Bali Bombing?”, http:www. globalresearch.caus-australia-coverup-was-al-qaeda-behind-the-2002-bali-bombing5307992 , accessed on 6 April 2014. See also 911:
Dailymail, “Fury as Academics Claim 911 was ‘Inside Job’”, http:www.dailymail.co.uknewsarticle-403757Fury-academics-claim-9-11- inside-job.html, accessed on 6 April 2014.
23
Part 6 of the ICCSt.
24
Human Rights Watch, “Chad: Don’t Welcome Back Al-Bashir”, http:www.hrw.orgnews20130409chad-don-t-welcome-back-al-bashir, accessed on 10 April 2014.
25
Arrest Warrant of 11 April 2000 Democratic Republic of the Congo v. Belgium, Judgment, I.C.J. Reports 2002, p. 3.
26
Ibid, dissenting opinions of Judge Khasawneh and Judge Ad-Hoc Van den Wyngaert.
27
Coalition for the International Criminal Court, “Status of US Bilateral Immunity Agreements”, http:www.iccnow.orgdocumentsCICCFS_ BIAstatus_current.pdf, accessed on 10 April 2014.
28
Ibid
29
Paul C. Szasz, “The United States Should Join the International Criminal Court”, US Air Force Journal of Legal Studies, Vol. 9, 1998-1999, p.13.
30
Dailymail, “British Forces ‘Witnessed Electric Shocks, Beatings, and Dog Kennel Torture of Iraqi Prisoners in Secret US Prison in Baghdad”, http:www.dailymail.co.uknewsarticle-2302646British-forces-witnessed-torture-Iraqi-prisoners-secret-US-prison-Baghdad.html, accessed
on 10 April 2014.
31
Article 122a of the ICCSt.
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then such agreements are incompatible with the object and purpose
32
as well as these States” obligations under the ICCSt.
33
However, if such an agreement was concluded between a State Party and a non-State Party,
provisions of the ICCSt cannot apply to that non-State.
34
b. De Facto
