Rethinking the Jurisdiction of the International Criminal Court in the Post-September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity?

Abstract

Following the events surrounding September 11th, many categories of international law are being revisited. The jurisdiction of the International Criminal Court (ICC) should be no exception. This article argues that acts of international terrorism, such as those perpetrated on September 11th, qualify as crimes against humanity under the Rome Statute. Mindful of the concept of complementarity found under the statute, this article identifies several situations where it would be desirable to grant the ICC jurisdiction over acts of terrorism. The article first examines the jurisdiction of the ICC as it currently stands, along with the reasons why state parties did not feel the need to include terrorism under ICC jurisdiction. Conversely, it presents the view, held by various states and legal scholars, that crimes of terrorism could be adjudicated on the international level. The article then moves toward the concrete process of rethinking the jurisdiction of the ICC so as to adapt to the modern war on terrorism. Before engaging in legal analysis, this article references the ongoing debate regarding adoption of an internationally-accepted definition for terrorism. Taking into consideration the fact that a majority of states share a common understanding of the minimal contents of such a definition, the author provides a solution to that polemic. In addition, this article briefly reviews the notion of crimes against humanity so as to demonstrate a prima facie proximity or compatibility between that infraction and acts analogous to those perpetrated by members of Al Qaeda. Finally, the article culminates with an analysis of Article 7 of the Rome Statute. Before dissecting every element found in that provision, the author surveys jurisprudential elements of the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) that delineate the legal boundaries of crimes against humanity. This project ultimately leads to a detailed analysis of the requirements found under Article 7, and applies these requirements to the acts perpetrated on September 11th. In sum, the position taken in this article is that the Rome Statute does not have to be modified in order to characterize acts of terrorism as crimes against humanity. Most importantly, it follows from this proposition that where genuine national prosecutions prove illusory, the ICC could assert jurisdiction over acts of international terrorism.

Keywords: terrorism, crimes against humanity, international law, International Criminal Court, Rome Statute, jurisdiction, International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda

JEL Classification: K33, K19