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Defining ‘Terrorism’: Ad hoc Committee Still Struggling to Adopt a Comprehensive Anti-Terrorism Convention

In Uncategorized on April 29, 2011 at 10:53 am

The Ad Hoc Committee (established by General Assembly resolution 51/210) recently held its 14th session (Apr. 12-16) where negotiations on a comprehensive anti-terrorism convention continued to stall. The views of delegates are still divided on draft article 3 (formerly draft article 18) of which three draft proposals are still being considered.  Divisions remain among delegations on:

1) whether or not “activities undertaken  by national liberation movements”, within the context of “foreign occupation and colonial or alien domination”, should be excluded from the Convention.

2) whether or not “State terrorism” or actions taken by military forces of a State should be excluded from the Convention.(And if “State terrorism” is included within the scope of the Convention then the question arises whether or not to exclude only that conduct that would be “governed by” or ” in conformity with”  other “rules of international law”, namely international human rights law)

3) whether or not activities of  “dissident forces” (in addition to State’s armed forces) during an armed conflict situation should be excluded from the Convention, given that the conduct would be governed by International humanitarian law

According to the most recent Draft Committee report some delegations support a 2007 draft proposal introduced by the Coordinator of the draft convention, Maria Telalian, while others are divided between two earlier draft proposals submitted in 2002, which includes a proposal by the Organization of the Islamic Conference (OIC).

Draft text of the 2007 proposal:

 1. Nothing in this Convention shall affect other rights, obligations and responsibilities of States, peoples and individuals under international law, in particular the purposes and principles of the Charter of the United Nations, and international humanitarian law.

2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention.

3. The activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.

4. Nothing in this article condones or makes lawful otherwise unlawful acts, nor precludes prosecution under other laws; acts which would amount to an offence as defined in article 2 of this Convention remain punishable under such laws.

5. This Convention is without prejudice to the rules of international law applicable in armed conflict, in particular those rules applicable to acts lawful under international humanitarian law.

Draft text of Organization of the Islamic Conference (OIC) 2002 proposal:

1. Nothing in this Convention shall affect other rights, obligations and responsibilities of States, peoples and individuals under international law, in particular the purposes  and principles of the Charter of the United Nations, and international humanitarian law.

2. The activities of the parties during an armed conflict, including in situations of foreign occupation, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention.

3. The activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are in conformity with international law, are not governed by this Convention.

4. Nothing in this article condones or makes lawful otherwise unlawful acts, nor precludes prosecution under other laws.

Debate and discussion on the Draft Convention at the 14th session according Ad hoc Committee’s draft report:

11. Concerning the outstanding issues surrounding the draft convention, several delegations stressed the need for the convention to include a clear definition of terrorism. It was reiterated that it should distinguish between acts of terrorism and the legitimate struggle of peoples in the exercise of their right to self-determination under foreign occupation and colonial or alien domination. Some delegations suggested that the draft convention should include the notion of State terrorism, including acts committed by Governments against innocent civilians, while also reiterating the relevance of previous proposals (see A/60/37, annex III). Moreover, the view was expressed, subject to progress on draft article 18, that the definition contained in draft article 2 of the draft convention might need to be reconsidered in order to further emphasize the above concerns. It was also pointed out that the draft convention should cover activities undertaken by the armed forces of a State that were not covered by international humanitarian law. It was further suggested that the draft convention should address the root causes of terrorism.

12. While expressing a willingness to continue considering the 2007 elements of an overall package made by the Coordinator relating to draft article 18, some delegations reiterated their preference for the proposal circulated in 2002 by the Organization of the Islamic Conference, which they considered better addressed their concerns. Some other delegations expressed a preference for the proposal circulated in 2002 by the former Coordinator. These delegations nevertheless reiterated their willingness to seriously consider the 2007 elements of a package. They took note of the fact that there was a certain momentum for a decisive step forward and expressed support for an approach that did not seek to modify or create new obligations under international humanitarian law and that ensured respect for those rules.

13. According to another view, progress on the draft convention was predicated on two principles, namely that the draft convention excluded from its scope the activities of military forces of a State, which were already covered by other regimes, and that it included activities undertaken  by national liberation movements. It was recalled that previously concluded counter-terrorism instruments, and in particular the International Convention for the Suppression of Terrorist Bombings, had been adopted based on such premises. The concern was expressed that the 2007 elements of the package could introduce ambiguities with regard to the scope of application of the draft convention that did not exist in the 2002 Coordinator’s text or in similar provisions in the sectoral conventions. To move forward, it was necessary to agree that the 2007 elements of a package did not attempt to modify these principles. As a response to these concerns, it was suggested that an accompanying resolution could provide an understanding with regard to the interpretation of the scope of application of the draft convention.

14. Several delegations reiterated their support for the 2007 elements of a package by the Coordinator and considered that it constituted a legally sound basis for compromise. In their view, the 2007 elements of a package fully addressed the concerns raised by delegations during the negotiations; it respected the integrity of international humanitarian law and other international legal regimes, without granting anyone impunity. It was observed that the activities of a member or of a group of the military forces could fall under the draft convention if these activities were unlawful. In this regard, it was pointed out that it was necessary to consider draft article 2 and draft article 18 together to properly appreciate the inclusionary and exclusionary elements. It was also pointed out that the “without prejudice” clauses contained in paragraphs 1 and 5 of draft article 18 effectively left the right to self-determination under international law intact. It would not be possible to go any further without affecting existing legal principles. Recalling that the draft convention was a law-enforcement instrument based on an aut dedere aut judicare regime, the view was also expressed that the notion of State terrorism must be avoided. While several delegations expressed their willingness to consider the 2007 elements of a package as a basis for negotiations, it was also emphasized that they needed to be considered as a package and that delegations should not be able to pick and choose among the suggested elements. Some delegations also stressed that work should focus on draft article 18 relating to the scope of application of the draft convention. It was pointed out that it would be unwise to reopen texts elsewhere in the draft convention that had, in principle, already been agreed upon.

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