Summary: March 17, 2005: European Parliament - Terrorists to be judged by the International Criminal Court?
In June the European Parliament will adopt a package of reports on the EU plan of action for combating terrorism and a European anti-terrorism strategy. Parliament's Civil Liberties Committee held a public hearing this Thursday to discuss one of these issues: whether terrorist offences should continue to be judged by national courts or by the International Criminal Court, which is already recognised by nearly 100 countries. Rosa DÍEZ (PES, ES) is drafting the committee's report on this
subject.
The International Criminal Court (ICC) was set up in Rome on July 1998 with the aim of ensuring that people who have committed particularly repugnant crimes - such as genocide, crimes against humanity and war crimes - do not go unpunished. Terrorist crimes were never laid down as a responsibility of the ICC. However, the world has experienced in the last years a new form of international terror attack which goes beyond the national dimension: more than 2000 dead in New York (September 2001),
200 dead in Bali (October 2002) and almost 200 dead in Madrid as a result of last year's train bombings. Is this a new form of terrorism? Should it be seen as a "crime against humanity" and hence fall within the jurisdiction of the ICC? Although the European Commission has never delivered a formal opinion on this matter, Commissioner Franco FRATTINI told the hearing that he supported the idea: "In my personal and political opinion, the EU should indeed make the effort to declare
terrorism a crime against humanity".
Defining terrorism
Most experts at the hearing argued that it was important to agree first on a harmonised international definition of terrorist crimes and the appropriate penalties. Gijs de VRIES (European Counter-terrorism coordinator) said it was "essential that a clear and accepted definition is agreed" at UN level but he added that "certain acts of terrorism could already be covered by the existing definitions of crimes against humanity" judged by the ICC. When defining the scope of terrorist
offences we must not be tempted to leave out so-called 'freedom fighters': "The right of any country to resist occupation cannot justify deliberate attacks against citizens", he concluded. Jean-Paul LABORDE (Head of the Terrorism Prevention Unit of the UN Office on Drugs and Crime) thought such a common definition would be useful but added: "we must not run away from the current debate or get bogged down. In terms of policy we have everything we need to fight terrorism, we must fight
it with the legal instruments we already have".
During the commemoration of the victims of 11 March 2004 in Madrid last week, UN Secretary General Kofi Annan called for a common definition of terrorism which would make it clear that "any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians or non-combatants, with the purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing any act".
Terrorism and drugs
When discussing the financing of terrorism, Antonio COSTA (Executive Director of the United Nations Office on Drugs and Crime) surprised the audience by stating that in almost every case the financing of terrorism is very closely linked with the business of drug trafficking. "Look at the Taliban in Afghanistan, the terrorist groups in Kosovo, the FARC in Colombia, the IRA in Ireland or Shining Path in Peru... all these groups have been financed by drug organizations". Even the 11 March
bombings in Madrid were financed by the sale of narcotics in Spain, he said. As further evidence he explained that since coca trafficking decreased by about 50% in the recent years in Colombia, terrorism has declined in parallel because terrorists are running out of money. Alexander ALVARO (ALDE, DE) wondered if it would therefore not be an idea to legalise drugs in order to cut off funds for terrorism. Mr. Costa replied that another proven source of financing terrorist attacks in some
countries was trafficking in women but this would never justify the liberalisation of that particular trade.
No consensus
When the speakers finally reached the central issue, they discovered that opinions differed greatly on whether to place terrorism under the jurisdiction of the ICC. Whereas Commissioner Frattini and the rapporteur Rosa Díez were in favour, other speakers strongly rejected the idea.
"I believe that Member States are in a better position to control measures against terrorism and that it should be dealt with by national courts", said Eduardo FUNGAIRIÑO (Chief Prosecutor of the Central Criminal Court, Spain). However, when a terrorist attack is perpetrated or favoured by a head of state who enjoys international immunity this person should be judged by the International Criminal Court, since the national courts have no jurisdiction in these cases, he explained. He gave
some examples, including the case of the Libyan President Gaddafi and Pinochet in Chile, who could never be judged in third countries for the crimes they were accused of.
Maria Luisa CESONI (Professor of criminal law, University of Louvain) agreed with Mr. Fungairiño but for different reasons. "Including terrorist crimes within the jurisdiction of the ICC would open the door to including many other competences in this court, like organised crime or drug trafficking. We would transform the ICC into a super international tribunal and we would water down the main purpose of this tribunal, which is to judge genocide, war crimes or crimes against
humanity".
Rapporteur Rosa Díez replied to this point and also brought the hearing to a close, saying: "You say that bringing terrorism within the ICC would not give any added value but you were only giving a legal answer. I have a political answer: I think that it would bring a political added value, because the most important measure for combatting terrorism is global condemnation, and ensuring the perpetrators do not go unpunished. The end of impunity has an effect and brings a lesson of democracy
that we cannot forget".
17.03.2005 Committee on Civil Liberties, Justice and Home Affairs
In the chair: Stefano ZAPPALÀ (EPP-ED, IT)
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