Tag Archive | "Terrorism"

The State of European Burqa Bans

 

 "The many garments of Islam including hijabs, niqabs, burkas, and burkinis." - Photo Credit AFP

“The many garments of Islam including hijabs, niqabs, burkas, and burkinis.” – Photo Credit AFP

Recent attacks in France and Germany have put the international community on alert and caused governments in those countries to draft or enforce legislation aimed at preventing future attacks. While countries in France have drafted legislation directly targeting what is believed to be symbols pertaining to Islamic extremism, Germany has chosen a more neutral approach by targeting all items of clothing that obscure facial identity in public places. However, despite the approach taken, both countries have come under heavy criticism for enforcing such laws in the name of public safety.

Though France was the first country to ban both the burka (full-face Islamic veil) and the niqab (partial facial covering) in 2011, the mayor of Cannes in southern France, David Lisnard, has recently faced criticism for banning burkinis (full-body swimsuits) from beaches. Many critics have questioned the legality of the ban by pointing out that French law only bans facial coverings. However, David Lisnard has disregarded those questions and instead attempted to focus the conversation on the public policy reasons behind the law. One reason cited for the ban was to prevent incidents of public disorder. The idea behind that reasoning is that beachwear displaying a religious affiliation at a time when France and places of worship are targets of terrorist attacks is a portent for augmenting tensions and disrupting public order.

Similar to the French, Germany’s Interior Minister, Thomas de Maiziere, has called for a partial ban on burkas in public places only days after saying a full ban on burkas would be unconstitutional. The law would prevent any facial veil in schools, universities, nurseries, public offices, or while driving. While the proposal still has to be approved before becoming law, many feel it is only a matter of time, given Germany’s victimization by Islamic State attacks and a record number of Muslim asylum seekers seeking entry into the country. Thomas de Maiziere has endorsed the partial ban as essential to the social cohesion of Germany’s citizens while in public and open society. Moreover, he has emphasized that the proposal is not a ban on the burka specifically, but rather a ban on any full veil where only the eyes are visible.

While government officials in France have faced criticism from citizens and political activist groups, Germany’s government officials’ political motives have been questioned. In response to the Cannes ban on burkinis, groups such as the League of Human Rights (LDH) and the Collective Against Islamophobia in France (CCIF) have announced their intent to challenge the law. In Germany, however, critics are questioning whether the proposal is purely political since recent statistics demonstrate it is uncommon to see a woman in Germany wearing a full-face veil or even a scarf. Moreover, two issues central to Germany’s general election next year will focus on asylum seekers and preventing future terrorist attacks.

Given the criticism and public outrage towards the Cannes’ ban on burkinis, future news may be expected regarding the status of the law. Also, Germany’s proposal may continue to make news up until the general election if the law is of importance to the main issues discussed in next year’s general election.

Nicole Chaney is a 2L at University of Denver Sturm College of Law and Online Managing Editor on the Denver Journal of International Law and Policy and Staff Editor on the Denver Law Review.

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War and Displacement – A Nigerian Story

Photo Credit: Vibe.com

Photo Credit: Vibe.com

In 1903, the Sokoto caliphate in Northern Nigeria, Niger, and southern Cameroon fell, placing the preceding areas under British control. After the British took control, some of the Muslims in these areas expressed their resistance to Western influences. In 2002, Mohammed Yusuf formed Boko Haram, which in loose translation means western education is a sin. The United States has designated Boko Haram, whose primary goal is to create an Islamic state, as a terrorist organization. Since its conception in 2002, the organization is responsible for thousands of deaths.

In 2009, Nigeria’s security force killed Mohammed Yusuf, and Nigeria thought it had seen the end of the organization. However, the organization reorganized under Abubakar Shekau. Under Shekau’s leadership, the organization has led indiscriminate, targeted attacks against school children, police, religious leaders, politicians, and civilians. These tragic crimes led Nigerian President Goodluck Jonathan to declare a state of emergency almost three years ago in May, in the three states where Boko Haram is the strongest—Borno, Yobe, and Adamawa.

Unfortunately, Boko Haram continues to gain traction. In April 2014, Boko Haram kidnapped over 200 Chibok school girls and released a video stating that the girls would serve as their personal slaves or be sold off. UN Secretary-General, Ban Ki-Moon, has been working with President Goodluck Jonathan, to find the children and stop the Boko Haram. Ki-Moon stated that “the targeting of children and schools is against international law and cannot be justified under any circumstances”; therefore, the Nigerian Government has been urged to “take all necessary measures to ensure [the children’s] safe return and to hold the perpetrators accountable.”

Among the tens of thousands of people that have been killed, injured, or kidnapped, there are hundreds of thousands of people that have been displaced due to the violence in their countries. According to the National Emergency Management Agency-Nigeria (“NEMA”), 250,000 people have been internally displaced, and over 61,000 people have fled to neighboring countries. By the end of 2012, there were 17.7 million internally displaced persons in the world, and only 1.5 million returned to their place of origin. Most internally displaced persons never return home. In the first half of 2013, over 5.9 million people are refugees within or outside of the borders of their countries. The United States resettles less than 80,000 people each year. Could the United States be doing more? Could every country do more to save people and lower the hurdles of resettlement?

It has now been over 670 days since over 200 Chibok school girls were kidnapped. In September 2015, news emerged that negotiations were underway and there was a dim light shining to the girls’ release. However, Boko Haram has still not returned the girls to their families. Unfortunately, this story has fallen silent in the public eye. The United Nations set aside October 11 to be International Day of the Girl Child, but is this new international day of recognition enough to save future girls, or any individuals for that matter, from being used to send a message?

This article only covers one current war, in one part of the world, affecting millions of people all around the world. Leila Zerrougui, Special Representative for Children and Armed Conflict, stated “[e]very child, regardless of gender, ethnic origin, social status, language, nationality or religion, has the right to education and to live without fear of violence.” Children should not be used as pawns or soldiers in wars and millions of people should not have to lose their home. To learn more about how to be involved and continue to raise awareness on this issue, follow #BringBackOurGirls.

 

Cheyenne Moore is a 3L at the University of Denver and a Staff Editor on the Denver Journal of International Law and Policy.

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Responsibility to Protect in the Wake of the Paris Attacks

On Friday November 13, 2015, France experienced a sequence of horrific terrorist attacks, for dddwhich the Islamic State claimed responsibility; nonetheless, the attacks have also been linked to Syria. In our reaction to the events on Friday, it is important to remember all of the positive efforts that France has engaged in to aid the persecuted peoples of Syria. In reflecting on the grim events there are two important things to remember: the Responsibility to Protect (R2P) and “Liberté, Egalité, Fraternité.” The first, is the UN doctrine of humanitarian intervention to protect the welfare of individuals, which France has heavily advocated for throughout the Syrian conflict. The second, is the French national motto, “Liberty, Equality, Fraternity,” which embodies the French spirit and is reflected in Article 1 of the Universal Declaration of Human Rights, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” It is critical in this time of crisis for France to base its reaction on the foundation these two principles.

Over the last four years, France has advocated for the use of the R2P doctrine, led the investigation into the humanitarian violations of President Bashar al-Assad, and offered protection to about 5,000 Syrian refugees (more than double the number the U.S. has admitted). However, in reaction to Friday’s attacks, President Hollande stated that France will “lead the fight and we will be ruthless.” In this moment of crisis, President Hollande should rather stand steady in France’s position based on humanitarian intervention.

To honor the 129 (and counting) lives lost in the terrorist attacks, France, and the world, should stand by those still suffering from the extreme persecution that is occurring in the Syrian state. Less than a month ago, Laurent Fabius, Minister of Foreign Affairs and International Development, met with other leading nations to discuss a transition in Syria to protect the civilians and “confirm[ed] the commitment of France to go forward with its initiative on a collective code of conduct.” The “code of conduct” to which Minister Fabius referred was R2P. In 2005, the United Nations Member States agreed to the R2P doctrine and it should be with this doctrine that we continue to intervene in Syria. R2P is comprised of three pillars:

  1. The State carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing, and their incitement;
  2. The international community has a responsibility to encourage and assist States in fulfilling this responsibility;
  3. The international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes. If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action to protect populations, in accordance with the Charter of the United Nations.

The implementation of R2P requires that action be ordained under the provisions of the United Nations Charter, which essentially gives decision-making authority to the Security Council. The implementation of R2P begins when states have failed to meet the needs of their people; then international obligation requires states to prevent and punish genocide, war crimes, and crimes against humanity. Conventional and customary international law understands this obligation. However, the R2P is not meant to be a military intervention that threatens sovereignty, rather, it is designed to prevent atrocities, react to the active occurrences of violations, and help rebuild after a crisis has passed. In essence, as Secretary General Ban Ki-Moon put it, the R2P is satisfy “the aspirations of people everywhere for a safer, more secure world for ‘We the peoples.’”

The R2P is, admittedly, only an international norm, carrying with it no obligation under international law. Thus far, implementation of the R2P has been prevented by Security Council vetoes from China and Russia. Dr. Simmon Adams argued in a Global Centre for the Responsibility to Protect Occasional Paper Series that each failure of the Security Council to act has increased the level of violence used by President Bashar al-Assad.

The violence used by President Bashar al-Assad has indeed been horrific. In April 2014, the Permanent Representative of France to the United Nations addressed a letter to the Security Council, S/2014/244, which provided testimonial, photographic, and medical evidence of crimes against humanity and war crimes. Included in the letter were graphic images of Syrians who had been detained by the agents of the Syrian government; in viewing the photos, the images are reminiscent of images from the Holocaust. Following this report, France proposed a resolution, backed by 58 countries, to have the Security Council refer the situation in Syria to the International Criminal Court (ICC). Unfortunately, this resolution was vetoed by Russia and China. This veto occurred in spite of France’s previous advocacy that the Security Council members refrain from using their veto power when mass atrocity crimes are at stake.

Nonetheless, in a bold move France began its own investigation of President Bashar al-Assad in September, to hold him accountable for his administration’s human rights violations. This investigation will require that France identifies French nationals among the victims, but France’s continued attempts to hold President Bashar al-Assad accountable are commendable. While this effort may ultimately be unsuccessful, the investigation is giving attention to the 8,871 Syrians being kidnapped, detained, and/or tortured; not to mention the larger number of 200,000, which is how many Syrians have died since the beginning of the conflict. These lives certainly do not diminish the value of the lives lost in France on Friday, but France should be proud of its efforts to help end the Syrian crisis; and should not abandon these efforts.

Currently, there are 4,287,293 registered Syrian refugees. What is important now for France, and the world, is to remember that there are people in Syria who need international humanitarian protection. In light of the inhumanity that we, as a world, have witnessed, we must not be so feeble-hearted as to close our borders to those seeking refuge. France, and all of us, need to take to heart the words of Remi Piet, an assistant professor of international affairs at Qatar University, “any link to the refugees coming from Syria is an error because refugees are the first victims of Daesh [ISIL].” Providing shelter to refugees and acting with integrity, a spirit of protecting our innate humanity, are embodied in the guiding principles of the Responsibility to Protect and “Liberté, Egalité, Fraternité.”

Alison Haugen is a 3L Sturm College of Law and Graduate School of Social Work dual degree student and a Staff Editor on the Denver Journal of International Law and Policy.

 

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Mistaken as Terrorists: How innocent Syrian refugees are prevented from resettling in the US

The Syrian refugee crisis is one of the most horrific this generation has ever seen.

Syrian refugees living in a camp Credits: © Nikolay Doychinov/AFP/Getty Images

Syrian refugees living in a camp Credits: © Nikolay Doychinov/AFP/Getty Images

The United States, which has a long history of welcoming refugees into its borders and giving protection to those fleeing from persecution, has yet to put a significant resettlement initiative for Syrian refugees into motion. The United States has resettled 546 Syrian refugees since the crisis began.  UNHCR, on the other hand, hopes to resettle 50,000 Syrian refugees in 2015, and another 50,000 Syrian refugees in 2016 in permanent resettlement placements around the world.  The lack of action on the part of the United States is due, in part, to its strict immigration laws in regards to terrorism.  The Terrorism Related Inadmissibility Grounds (“TRIG”) sweep broadly over many individuals who are not dangerous in any way.  The TRIG statutory language, codified in the Immigration and Nationality Act (“INA”) prevents many innocent Syrians from finding a stable and safe living situation.

There are two areas of the INA that stand as a significant obstacle for many Syrian refugees wanting to resettle in the United States. First is the definition of “terrorist activity,” defined in INA §212(a)(3)(B)(iii) as “any activity that is unlawful under the laws of the place where it is committed.” Because the law defines any military action against a regime as “terrorist activity,” individuals who were once seen as friends of the Untied States are now labeled as terrorists. For Syrians, opposition fighters are labeled as terrorists and are excluded from entering the United States, even though the United States government supports them. In contrast, those who were in Assad’s army, which the United States opposes for its violations of international law, would still be admissible, because the statute only applies to non-state actors.

Second, many Syrians may be found inadmissible due to their insignificant material support to a Tier I or Tier II terrorist organization (designated terrorist organizations by the Secretary of State and Attorney General, respectively). In INA §212(a)(3)(B)(iv)(VI), the giving of material support to a terrorist organization labeled as “terrorist activity.”  DHS, in past oral arguments before the BIA, has stated that they would consider even the most minimal support given to a terrorist organization, like a glass of water or five cents, as material support.  Syrians deemed inadmissible due to their material support of a terrorist organization include a family that sheltered an opposition fighter in their home when their town was being bombed, a young boy who joined the opposition fighters for a short time when his father was killed, eventually leaving the war to join his mother and siblings, and even the man who sold falafel sandwiches to opposition fighters in a war-zone.

In order for the United States to continue its longstanding tradition of welcoming people fleeing from persecution, the TRIG laws need to be changed.  DHS needs to use its discretionary authority and expand the available TRIG waivers. Civilians living in Syria were subject to innocent contact with Tier I and Tier II terrorist organizations on a regular basis; this is the nature of living in a conflict zone.  The armed group that took control over the territory they lived in became their customers in their stores—innocent, insignificant material support is unavoidable.  Additionally, exceptions should be given on a case-by-case basis to former combatants who pass a security background check and are not barred for any other statutory reason, including those who were children at the time they were combatants, or to individuals who did not participate in targeting civilians.

Kitty Robinson is a 2L at the University of Denver and is the incoming Candidacy Editor for the Denver Journal of International Law and Policy  

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Canadian flag.

Critical Analysis: Canada’s Involvement in the War on Terror

When people think of Canada, they generally do not think of its intensive involvement with counter terrorism measures. In fact, most Canadians also do not consider Canada to be highly involved in the international “war on terror.” However, recent events have brought increased attention to Canada’s extensive involvement in anti-terrorism measures and have called Prime Minister Stephen Harper’s recently proposed anti-terrorism legislation into question.

First, on October 20th, 2014, Martin Couture-Rouleau struck and killed Warrant Officer Patrice Vincent with his car. He was pursued and later gunned down. Prior to the hit and run, Couture-Rouleau was placed on a terrorist threat list and his passport had been confiscated earlier due to fears that he would travel abroad to participate in extremist militant activities. Friends close to Couture-Rouleau stated that he had recently converted to Islam. Apparently, he was also going through an intensive bought of depression. As his depression deepened, Couture-Rouleau turned increasingly inwards and towards online networking sites. Although he was a recent convert to Islam, he did not appear to receive any direction from any extremist groups beyond a recent call for individuals to pose attacks on countries that have become more involved in the war on terror such as the UK, Canada, France, the US, Germany, and Australia.

Canadian flag.

Canadian flag. Image courtesy of Wikipedia.com.

Only two days later, Canadians were shocked and horrified when Corporal Nathan Cirillo was shot and killed at the National War Memorial in Ottawa on Parliament Hill. Michael Zehaf-Bibeau, a Quebecois native, next opened fire slightly north of the National War Memorial in the Centre Bloc of Canada’s Parliament Building. Some reports say that he fired as many as 50 shots before Sergeant-At-Arms Kevin Vickers took down the gunman. Michael Zahaf-Bibeau presents similar issues as Martin Couture-Rouleau. Although he was also operating alone and without any direct orders from Islamic terrorist organizations, Zahaf-Bibeau was also a recent convert to Islam, but as with Couture-Rouleau, there were other mental health factors at play. Zehaf Bibeau had a criminal record and had been staying at a homeless shelter prior to the shooting. He had apparently also been psychologically unstable, experiencing delusions relating to government surveillance and engaging in heavy drug use. These issues cause questions to arise relating to how an unstable individual was able to gain access to a firearm.

Prime Minister Stephen Harper has referred to these two unrelated attacks in a consolidated context. He is promoting a new piece of legislation, Bill C-13, which is similar to the U.S. PATRIOT Act. The House of Commons voted to pass the bill on the same day of Michael Zahaf-Bibeau’s attack. The bill is still subject to a vote from the Senate, but it is likely that the Senate will not impede its implementation. Bill C-13 is similar to the PATRIOT Act in that it calls for police to have increased pre-emptive detainment powers and the power to revoke passports of individuals to restrict their ability to travel internationally. These measures go directly against Canada’s Charter of Rights and Freedoms, which guarantees Canadians the right to “enter, remain in and leave Canada.” Bill C-13 also confers increased investigation powers upon police such that they may seize data related to all telecommunications. Many are angered at Prime Minister Stephen Harper’s decision to implement and fight for the bill given Canada’s extensive counter-terrorism safeguards and accuse PM Harper of using the recent attacks as a means to push his security agenda. Proponents of the bill argue that these measures are simply required in the face of modern terrorist tactics.

As with most controversies, the truth of the matter can likely be found somewhere in the middle. On one hand, the terrorist group known as ISIS likely partially motivated both of the attacks when they issued their call to action. On the other hand, these attacks were largely unrelated and executed by mentally unstable individuals. Likewise, the passing of the anti-terrorism bill may not be as bad as it has been made out to be, but it does appear to be somewhat inconsistent with the rights granted in the Canadian Charter of Rights and Freedoms. It remains to be seen how these controversies play out, and how Bill C-13 will operate upon its implementation.

Katie McAuley is a 3L law student at the University of Denver Sturm College of Law and Candidacy Editor for the Denver Journal of International Law and Policy.

 

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Putting political convenience aside, pirates are rarely also terrorists

A few months ago, I wrote a post entitled Putting political convenience aside, pirates are simply not terrorists.  The piece argues that calls to treat all pirates as terrorists are totally unfounded, at least from a legal perspective. This is because, under international law, terrorism and piracy are accompanied by explicitly-defined, mutually exclusive motives.

Although I am standing by my substantive argument, the story of the MV Asphalt Venture is enough – as more astute readers may have noticed – to make me recalibrate my title a bit.

The Good Ship Asphalt Venture
(MarineTraffic.com)

The Asphalt Venture is a Panamanian-flagged, Korean-owned vessel that was captured by pirates on September 28, 2010. On April 15, 2011, the pirates released eight of the Asphalt Venture’s fifteen crew members in exchange for a ransom payment, but the kept the remaining seven crew on board. Subsequently, the pirates issued a demand to the Indian government, particularly to the coastal state of Kerala, that the remaining hostages would not be released until India freed around 100 Somalis convicted of piracy and serving their sentences in India. Recently, the Asphalt Venture pirates have added a $5 million ransom to their list of demands of the Indian government. Old title notwithstanding, these pirates indeed became terrorists.

As I explained in my earlier post, terrorism is characterized by a desire to either incite fear among the general public or to otherwise coerce a government. Conversely, piracy must be committed with the hopes of making money. Thus, where an individual takes hostages on the high seas in hopes of a ransom from a private entity, he is a pirate. Where he takes hostages on the high seas in hopes of shaping the behavior of a government, he is a terrorist.

Pirates are not to be trusted.
(IBN Live)

Those who took the Asphalt Venture managed to be both. From September 28, 2010, to April 15, 2011, they were merely pirates, only interested in money moving from one private party to another. But the moment that the pirates engaged the Indian government, actively seeking to affect its behavior, those pirates also became terrorists.

Still, the case of the Asphalt Venture is best seen as an exception that proves the rule. Governments are famous for their refusal to pay ransoms, and pirates generally look to shipping companies and their insurers as the primary source of ransoms. Even with the Asphalt Venture itself, the pirates turned to the insurance company first, received their ransom, and only then did they make non-pecuniary demands of the Indian government.

I ended my last terrorism-related piece by noting that if “pirates tak[e] a less profitable course in favor of a strategy with large political payoff,” the terrorist-pirate distinction would come into play. This is exactly what has happened in the case of the MV Asphalt Venture. In abandoning their private ends in favor of increased political pressure, those who took the Asphalt Venture did not shed the moniker “pirate,” but they certainly gained the additional, arguably even less appealing label, of “terrorist.”

In the end, however, we should continue to be mindful that nothing short of actively pressuring a government to either take or refrain from a certain action can result in an accurate branding with the scarlet “T.” Looking at a single discrete incident to determine an individual’s motives and classify him as a pirate, terrorist, or both is one thing; seeking to apply the blanket term, “terrorist” to all pirates for political convenience is quite another.

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

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The Enrica Lexie and Unintentional Terrorism

Cross-posted at piracy-law.com

An interesting exchange took place at the High Court of Kerala on Friday between presiding Justice PS Gopinathan and VJ Matthew, counsel for the owner of the Enrica Lexie. Regardless of the level of significance one attributes to Justice Gopinathan’s remarks, the dialogue sheds light on the tension and deep mistrust surrounding the events of February 15th.

Mr. Matthews, representing Dolphin Tankers argued that the Italian marines had to be classified as terrorists in order for the India’s statute implementing the IMO’s SUA Convention (SUA Act)[1] to apply. In response, Justice Gopinathan said, “[t]he firing on Indian fishermen by two Italian marines- Massimiliano Latorre and Salvatore Girone-off the Kerala coast was an act of terrorism…As far as victims are concerned, their relatives are concerned, as far as Indians are concerned [the alleged shooting was] a terrorist act.”

The High Court of Kerala

To be fair, Justice Gopinathan did not declare the Italian marines terrorists as a matter of law. He merely stated that that is how the general public viewed them. It is nonetheless disturbing for an officer of an Indian High Court to give voice to his private opinion about the facts of a case before him, especially when that opinion deviates so far from reality.

Where Mr. Matthew’s claims are concerned, it is far from certain that the marines must be classified as terrorists for the SUA Act to apply. Although the SUA Convention was passed with the goal of suppressing international terrorism in mind,[2] the Convention seeks to achieve its aim by proscribing acts, not classes of people. Article 3 of the SUA Convention lists the crimes punishable under the Convention, stating that if “any person” “performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship,” that person has “commit[ted] an offense” under the Convention. Similarly, the SUA Act states that “whoever unlawfully and intentionally” commits an act of violence against a person on board a ship has violated the Act and is subject to punishment for that act under Indian law.[3]

The words “terror,” “terrorist,” or “terrorism” do not appear at all in the operative clauses of the SUA Convention, nor do they appear in any portion of India’s SUA Act. Thus Mr. Matthew’s argument that legal classification as a terrorist is a prerequisite to be charged under the SUA Act appears at odds with the text of the SUA Act itself and the Convention upon which it is based.

But Justice Gopinathan’s response to Mr. Matthew’s good faith legal claim was far more dubious than the claim itself. Rather than satisfying himself by pointing out that an individual need not be legally classified as a terrorist for the SUA Act to apply, Justice Gopinathan declared by fiat, and counter to all reason, that the Italian marines had indeed committed “an act of terrorism.”

Though some argue that there is simply no internationally recognized definition of terrorism,[4] Judge Antonio Cassese, presiding over the Appeals Chamber at Special Tribunal for Lebanon, announced last year that a definition of terrorism “has gradually emerged” in customary international law.[5] According to the STL, terrorism is defined under customary international law as consisting of the following three elements:

(i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element.

Of the three enumerated elements, only the third, that the act must involve a transnational element, is clearly present. As for the second, there is no way to argue that the Italian marines fired upon the Indian vessel to spread fear among the Indian population or coerce the Indian government. They were acting as agents of the Italian government charged with the protection of a merchant vessel from the real and credible threat of maritime piracy. The unfortunate deaths of two fishermen do not change the character of the marines’ actions. Finally, it is presently impossible to know whether the Italians’ acts could be considered “murder” under the first prong. That determination can only be made once a competent tribunal establishes that the Italians were in fact the ones who shot the Indians and entertains any affirmative claim of self-defense made by the marines.

Furthermore, the alleged acts of the marines fails to satisfy even the minimal, “core definition” of terrorism propsed by Professor Marcello Di Filippo in the European Journal of International Law.[6] After surveying relevant international and domestic laws and sloughing aside any contested definitional aspect of terrorism, Professor Di Filippo concludes that an act of terrorism requires, at the very least: (i) an act of violence; (ii) when that act is targeted at civilians.[7] According to Di Filippo, this core definition is the absolute minimum standard under which an act could be properly considered terrorism.

Implicit in Di Filippo’s core definition is the requirement that the actor must at least believe that the targets are civilians, and one could even argue that the actor must intend to target the victims because they are civilians. Thus unless the Indian authorities can prove, at minimum, that the Italians knew that the Indians were unarmed before firing upon them, the acts of the marines do not rise to the level of terrorism. Justice Gopinathan’s statement that the marines committed a “terrorist act” accuses the Italians of a crime that does not exist – negligent or reckless terrorism.

An oral pronouncement by a Justice with no legal ramifications is hardly a groundbreaking development in what will surely be an interesting case. It does, however, illustrate the depth of mistrust between the Italians and Indians in this particular instance, with the Italians accusing the Indians of a vast conspiracy involving fabricated evidence and the Indians accusing the Italians of murder and now, apparently, terrorism. We are thus back where we started: waiting for the results of the ballistics report and hoping, perhaps against the available evidence, that cooler heads will prevail and due process will be afforded to all.



[1] Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002

[2] The Preamble of the SUA Convention notes that the state parties are “DEEPLY CONCERNED about the world-wide escalation of acts of terrorism in all its forms.”

[3] The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 Act No. 69 of 2002, art. 3(1)(a) (Dec. 20, 2002).

[4] Jean-Marc Sorel, Some Questions About Terrorism and the Fight Against its Financing, 14 Eur. J Int’l L. 365, 368 (2003) (describing the “confused mix” of definitions).

[5] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I, at para. 83 (Feb. 16, 2011), available at http://www.stl-tsl.org/x/file/TheRegistry/Library/CaseFiles/chambers/20110216_STL-11-01_R176bis_F0010_AC_Interlocutory_Decision_Filed_EN.pdf

[6] Marcello Di Filippo, Terrorist Crimes and International Co-Operation: Critical Remarks on the Definition of Terrorism in the Category of International Crimes, 19 Eur. J. Int’l L. 533 (2008).

[7] Id. at 558-61.

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News Post: Terrorism, the United Kingdom, and the ECtHR

Omar Mahmoud Mohammed (Abu Qataba)

Since the September 11th attacks, the United States and its Allies have struggled in dealing with suspected terrorists found both on the battlefield and as civilians in their respective countries; a topic that has remained prevalent in the news and in political discourse over the last decade. The United Kingdom experienced similar problems. One solution that the U.K. is employing is to deport terror suspects to foreign countries. This strategy must now overcome a ruling from the European Court of Human Rights that restricted Britain from deporting, also known as Abu Qataba, al-Qaeda’s main European inspirational leader, to Jordan because his trial would be tainted by evidence obtained through the administration of torture.

Over the past decade, Britain has struggled to find a balance in protecting civil liberties and national security. Mr. Othman has been in prison for over ten years for terrorism related offenses, and Britain planned to deport him to Jordan, as part of a wider strategy of dealing with terror suspects. The Court’s decision is the latest of several disagreements between Britain and rest of the European community. Britain’s right-leaning politicians are beside themselves with the placement of European restrictions on Britain. Prime Minister David Cameron plans to address the Council of Europe next week where he will present proposals to limit the European Court of Human Right’s ability to overrule domestic courts decisions.

Many in Britain are outraged that the European Court is interfering with Britain’s internal affairs. One British editorialist argues that the Abu Qatada rulings demonstrate that the European Court has lost its vision. Post 9/11 Britain did not want to try Abu Qatada, and men like him, but rather get rid of them. His initial incarceration ended with him being compensated for unlawful imprisonment under the European Charter of Human Rights. In response, the government introduced a system of house arrest, which was also found to be a human rights violation. After this, Britain arranged for him to be deported to Jordan where he would they promised to treat him humanely, but has since been overruled once again by the European Court. The editorialist calls the court an “affront to the enlightened attitudes that inspired the convention . . . [as it was not envisioned to make it] impossible for democracies to defend themselves . . . .”

The U.K. cautiously welcomed the decision of the court. While they praised that they court protected Abu Qatada’s right to trial, they are worried about the implications of the Court’s holding that diplomatic assurances do not violate the right to be not be tortured. Amnesty International highlighted that such assurances have been regularly ignored as terror suspects have been transferred to countries that will administer torture. Amnesty felt that the positive holding of the case was overshadowed by the Court’s affirmation of unreliable diplomatic assurances.

Over the past decade, there have been no easy answers for what to do with terror suspects. The United Kingdom is struggling to find the right balance. In addition to the obstacles of domestic politics, it must also comply with its treaty obligations under the European Convention of Human Rights.

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University of Denver Sturm College of Law

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