Ben Saul

Attempts to Define 'Terrorism' in International Law

There have been numerous unsuccessful attempts to define terrorism generically in international treaty law since the 1920s, from early conferences on the unification of criminal law to efforts in the League of Nations, the International Law Commission, and the UN General Assembly. While these sources do not carry great weight as evidence of customary law, they illustrate the recurring normative and political disputes surrounding definition and elucidate the basic features of an international prohibition and/or crime of terrorism, as perceived by different international actors. The recurrent attempts at definition indicate that the international community attaches considerable normative importance to it. Drafting of a UN Comprehensive Terrorism Convention continues in the Sixth Committee, and the UN High-Level Panel on Threats, Challenges and Change advocated definition in treaty law in late 2004. Generic definition of terrorism can capture and stigmatize the political motives which distinguish terrorism from ordinary violent crime, or transnational organized crime for financial benefit. Following an historical pattern, agreement on the scope of any exceptions to a definition of terrorism remains the key obstacle, although much of the argument about exceptions is ideological, not substantive.

Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism

In 2011, the Appeals Chamber of the UN Special Tribunal for Lebanon purported to identify a customary international crime of transnational terrorism and applied it in interpreting domestic terrorism offences under Lebanese law. This article argues that the Tribunals decision was incorrect because all the sources of custom relied upon by the Appeals Chamber – national legislation, judicial decisions, regional and international treaties, and UN resolutions – were misinterpreted, exaggerated, or erroneously applied. The Tribunals laissez-faire attitude towards custom formation jeopardizes the freedom from retrospective criminal punishment, subjugating the human rights of potential defendants to the Tribunals own moralizing conception of what the law ought to be. The decision is not good for international law or public confidence in its institutions and processes.

China, Natural Resources, Sovereignty and International Law

Abstract This article explores China’s attitudes towards the regulation of key natural resources by international law, domestically and at the trans-boundary and international levels. It considers the impact of international law on China’s own practices, and the contribution of China towards shaping international law. The article suggests that popular conceptions of a relatively isolated, sovereign absolutist China do not accord with contemporary legal realities, including in its dealings with natural resources. While China’s construction of strong sovereignty shapes its attitudes towards legal regulation, practice also suggests that China adopts a nuanced approach which includes legal compromise, and a commitment to multilateral regulation or bilateral diplomatic settlement of issues previously within the competence of national governments. China is often an active and constructive participant in contemporary law-making, even if – like all countries – it also seeks to instrumentally use international law.

The International Protection of Journalists in Armed Conflict and Other Violent Situations

Media reporting of armed conflict and other situations of heightened violence has become increasingly perilous, with large numbers of journalists and other media personnel killed or deliberately targeted because of their professional work, including by government forces and non-government actors. The serious risks to the safety of media personnel raise questions about the adequacy and enforcement of the international legal frameworks available to protect them. This article examines the range of complicated, interlocking normative and institutional frameworks which govern media personnel and media objects in international and non-international armed conflict, and in violent emergency situations beneath the threshold of conflict, with a focus on international humanitarian law and human rights law. The legal characterisation of a violent situation has important implications for the status and treatment of media personnel, whether they are ‘war correspondents’, ‘embedded’ reporters, or independent journalists. This article reviews and clarifies the circumstances in which journalists and their equipment are protected from hostilities and when they may lose protection from attack; the measures of security, detention or restriction to which they may be subject; issues of professional privilege and confidentiality; and the perennial discussion about whether journalists should receive a special status and emblem in conflict situations.

International Terrorism as a European Crime: The Policy Rationale for Criminalization

Following the 11 September 2001 terrorist attacks on the United States, military responses have become entrenched as the international community’s preferred response to terrorist activity. Law enforcement and criminal justice responses have taken a back seat in the global ‘war on terror’, beginning with the pursuit of Al-Qaeda and the ousting of the Taliban in Afghanistan in 2002, through to targeted assassinations of suspected terrorists in Yemen in November 2002 and the invasion of Iraq in March 2003. States such as China, Israel and Russia have taken advantage of this shift by characterizing various forms of domestic political opposition as terroristic and reacting with military force. One consequence of the proliferation of military responses has been a failure by the international community to fix an appropriate and durable boundary between military and criminal justice responses to terrorist activity. It may well be legally difficult to determine when a terrorist act crosses the threshold of an armed attack, thereby authorizing the use of force in self-defence. Under the law of armed conflict, such a determination will depend on the nature and scale of the attack and whether self-defence is a necessary and proportionate response. Attribution of terrorist acts to a State may also be problematic, and the use of force in self-defence against nonState actors which are not controlled by a State is legally uncertain. While the boundary between law enforcement and the use of military force will always be ill-defined and shifting, the boundary is still essential in minimizing recourse to violence in international relations. After 11 September, the Security Council resolved that ‘any’ act of international terrorism constitutes a threat to international peace and security. The designation of any international terrorist act as a threat is significant because previously the Council had only found that such acts ‘may’ or ‘could’ threaten peace and security, thus reserving to itself the discretion to characterize some terrorist acts as international threats and others as not so serious. The hardening of the Council’s attitude reflects the general international shift towards militarized responses to terrorism, although

Responsive Antarctic Law-Making in the Asian Century

One aspect of the ‘Asian Century’ has been the growing interest from Asian states in Antarctica and the Southern Ocean that surrounds the continent. There has been a significant shift in the approach by a number of Asian states to the Antarctic Treaty and the Antarctic Treaty System (ATS) that has been built upon and around it. While Asian states continue to be under-represented in the ATS (there are seven Asian state parties to the Antarctic Treaty), participation has grown, and more significantly the view that the ATS is an ‘exclusive club’ dominated by developed states has given way to a more pragmatic, more cooperative and less ideological approach to Antarctic affairs. Broadening ATS membership and increasing interest from existing Asian state parties to the ATS, most notably China, prompts questions as to whether there are distinctive Asian-Antarctic issues, and if so whether the Antarctic regime can evolve to address them. Specifically, are the governance and law-making processes of the ATS, which have not changed significantly for decades, up to the task of providing an effective international system of Antarctic management in this Asian Century?

Throwing Stones at Streetlights or Cuckolding Dictators? Australian Foreign Policy and Human Rights in the Developing World

Abstract The history of Australian human rights policy in the developing world is chequered. Australias most consistent contribution has been in socio-economic rights through its aid programme, and in its support for decolonisation. During the Cold War, a premium was placed on civil rights, in ideological opposition to communism. After the activism of the Evatt era from 1945 to 1949, and a hiatus until 1972, renewed engagement with multilateral institutions, in part as a way of influencing human rights in developing countries, came with the Whitlam, Fraser, Hawke/Keating and Rudd governments, while there was some retreat under the Howard government. All governments since the early 1970s have had considerable human rights successes (including through bilateral diplomacy) and some often dramatic failures; most have sacrificed human rights at some point for other strategic objectives. Governments have also struggled with their choice of means in confronting violations. There remains room for Australia to articulate a more effective human rights diplomacy.

Election Violence in Sri Lanka: Implementing the Right to a Free and Fair Election

This article assesses the freedom and fairness of the 2001 parliamentary election in Sri Lanka according to a variety of criteria, judging the effects of violence and procedural irregularity on the election outcome. Despite its ambiguity, the international right to a free and fair election, expressed through the principles of the UDHR and the ICCPR, is substantially incorporated in the domestic law of Sri Lanka. The Constitution and elections legislation recognise essential democratic and electoral rights and establish administrative procedures and judicial remedies for enforcing them. Specific controversies over electoral laws have typically been resolved within the framework of the rule of law, through either the political process or the courts, including debates about the method of voting, the powers of the Election Commissioner and the registration of parties. Referendum and emergency powers have, however, been abused to interfere with free elections in some situations. Further, recent elections have degenerated into widespread violence, intimidation and procedural irregularity, culminating in the December 2001 parliamentary election. The violent events of the 2001 election suggest that despite the formal maturity of Sri Lankan election law, the law is not being adequately enforced and deterrence, through criminal sanctions, is failing. While most police and election officials are committed to ensuring the integrity of elections, many politicians and candidates have undermined elections, in a society militarised by a protracted ethnic separatist conflict.

Torture and Counter-Terrorism

Despite the international prohibition on torture and cruel, inhuman or degrading treatment, torture became more prevalent as a counter-terrorism instrument after the terrorist attacks of 11 September 2001. While torture is not new, the post-9/11 practice of torture exhibited its own distinctive characteristics. This chapter examines two key trends. First, the United States argued that aggressive or ‘enhanced’ interrogation techniques did not amount to torture or ill-treatment, despite fairly clear international legal authority to the contrary. Secondly, even where torture was prohibited, some state personnel acted in excess of their domestic legal authority in interrogating or detaining suspects. While sometimes dismissed as the misconduct of a few ‘bad apples’, their individual responsibility can only be understood in the light of the prevailing military and political institutional cultures generated by the ‘war on terror’ and the protection of the ‘homeland’. This chapter situates these practices within the international legal framework on torture and remedies for it. It concludes by examining efforts to secure accountability for US torture in the US, foreign courts, and international fora, in relation to both those who exceeded domestic legal authority and those who acted under the cover of it.

Civilizing the Exception: Universally Defining Terrorism

The first part of this chapter assesses whether there is now an accepted definition of terrorism in general international law, in the wake of a decision by the UN Special Tribunal for Lebanon in 2011, which declared the existence of an international crime of transnational terrorism. This chapter concludes that there is insufficient evidence of a customary international law definition of terrorism, largely because there is too much inconsistency and divergence in the material sources of law such as international and regional treaties, national laws and judicial decisions, and United Nations resolutions. There are nonetheless good international public policy reasons for defining terrorism, to protect important community values and interests. Those policy reasons can illuminate the proper approach to the technical problem of defining the elements of terrorism, particularly in ways which do not interfere with other important global values, such as human rights and humanitarian law. In this context, the chapter explores the advantages and costs of defining terrorism in certain ways.