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p This Convention as well as, incidentally, other documents of a similar character, had been worked out in view of 84 the events which the international community could not pass over.

p While acts of terrorism were committed against Soviet political representatives in the 1920s, the leaders of the West shut their eyes to the obvious trampling oi the generally recognised prescriptions ol international law  [84•1  concerning the provision ol proper protection lor the diplomatic representative ol the State with which diplomatic relations had been established; but when King Alexander I of Yugoslavia and Prime Minister Louis Barthou of France were killed in Marseilles on October 9, 1934, the Government of Yugoslavia, basing itself on head (2) of Art. II of the Covenant of the League ol Nations, asked the Council ol the League ot Nations tor an inquiry. That request also charged a toreign government (meaning that of Nazi Germany) with involvement in the crime which had been committed. In a letter of December 9, 1934, the Government ol France sent an aide memone to the Council ot the League ot Nations setting out basic principles to govern an International Convention for the Repression of Grimes committed with a “political and terrorist" purpose.  [84•2 

p On December 10, 1934, the Council of the League of Nations unanimously passed a resolution to institute a 85 Committee of Experts  [85•1  with a view to drafting a tentative International Convention to curb any scheming or offences in pursuit of “political terrorism".  [85•2 

p Maxim Litvinov, People’s Commissar for Foreign Affairs of the USSR, speaking in the Council of the League of Nations, declared that “one particular feature of this kind of terrorism is that it is almost always prepared and carried out in foreign territory, financed from foreign sources and ... becomes an instrument of a foreign policy".  [85•3 

p The Assembly of the League of Nations, having’ considered the preliminary drafts of the Convention for the Prevention and Punishment of Terrorism, adopted a resolution on October 10, 1936, pointing out that “...the contemplated Convention, founding itself upon the principle that it is the duty of every State to abstain from any intervention in the political life of a foreign State, should have as its principal objects:

p (1) to prohibit any form of preparation or execution of terrorist outrages upon the life or liberty of persons taking part in the work of foreign public authorities and services (emphasis added);

p (2) to ensure the effective prevention of such outrages and, in particular, to establish collaboration to facilitate early discovery of preparations for such outrages;

p (3) to ensure punishment of outrages of a terrorist 86 character in the strict sense of the word which have an international character (emphasis added) either in virtue of the place in which preparations for them were made or the place in which they were carried out, or in virtue of the nationality of those participating in them or their victims".  [86•1 

p The international conference, meeting in Geneva from November 1 to 16, 1937, examined and adopted two conventions: one for the prevention and punishment of terrorism and the other, for the creation of an international criminal court.

p The Convention for the Prevention and Punishment of Terrorism consists of a preamble and 29 articles. The Preamble emphasises that the Convention is designed to make more effective the prevention and punishment of terrorism of an international character.

p Art. I of the Convention reaffirms the principle of international law in virtue of which it is the duty of every State to refrain from any act designed to encourage terrorist activities directed against another State.

p Under the provisions of Art. 1, the expression “acts of terrorism" means criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, a group of persons or the general public.

p This warrants the reference in the Preamble to “ international character”, as the term that follows from the aims of an act of terrorism designed to inflict damage or exert pressure on a State by spreading fear among 87 particular persons, a group of persons or the general public.

p Art. 2 plays an important part in the structure of the Convention since, on the one hand, it defines what constitutes an act of terrorism of an international character and, on the other, comprises a commitment of the participating States of the Convention to have its respective criminal legislation stipulate, if it does not yet, liability for any breach of the law within the meaning of Art. 1.

p Constituting acts of terrorism of an international character are: 

p (1) Any wilful act causing death or grievous bodily harm or loss of liberty to: 

p (a) Heads of States, persons exercising the prerogatives of the heads of State, their hereditary or designated successors; 

p (b) the wives or husbands of the above-mentioned persons; 

p (c) persons charged with public functions or holding public positions when the act is directed against them in their public capacity.

p (2) Wilful destruction of, or damage to, public property or property devoted to a public purpose and belonging to or subject to the authority of another High Contracting Party.

p (3) Any wilful act calculated to endanger the lives of members of the public.

p (4) Any attempt to commit an offence falling within the foregoing provisions of the present Article.

p (5) The manufacture, obtaining, possession, or supplying of arms, ammunition, explosives or harmful substances with a view to the commission in any country whatsoever of an offence falling within the present Article.

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p Let us note that the essential provisions of this Article are: 

p 1) qualification of the above-mentioned act of terrorism as a criminal offence; 

p 2) unification of the concept of an act of terrorism of an international character; 

p 3) definition of the object of the commission of an act of terrorism, with this definition based either on the function or position of the person in public service or the designation of property being the object of an act of terrorism.

p Consequently, the international character of an act of terrorism, under the 1937 Convention, is determined by its being directed against the State in the person of its representatives (Head of State, or a person charged with public functions or holding public positions).

p Art. 2 may be found deficient because of the organic ununiformity, from the legal point of view, of actions constituting an act of terrorism within the meaning of this Article. Whereas heads (1), (2), (3) and (4) are consistent enough as making up the elements of an offence, head (5) has nothing to do with the elements which usually characterise an act of terrorism as an act of violence since actions falling within head (5) pertain to the organisation, complicity, or assistance in the commission of an act of terrorism, and require to be treated in a special Article.

p For example, head (5) could be transferred to Art. 3 of the Convention, which provides for each of the High Contracting Parties to make the following acts criminal offences when they are committed on his own territory with a view to an act of terrorism falling within Art., 2 89 and directed against another High Contracting Party, whatever the country in which the act of terrorism is to be carried out: 

p (1) conspiracy to commit any such act; 

p (2) any incitement to any such act, if successful; 

p (3) direct public incitement to any act mentioned under heads (1), (2) or (3) of Art. 2, whether the incitement be successful or not; 

p (4) wilful participation in any such act; 

p (5) assistance, knowingly given, towards the commission of any such act.

p Furthermore, under Art. 4 of the Convention, each of the offences mentioned in Art. 3 shall be treated by the law as a distinct offence in all cases where this is necessary in order to prevent an offender escaping punishment. It is understandable that the inclusion of head (5) of Art. 2 in the wording of Art. 2 concerning the manufacture, obtaining, possession, or supplying of arms, ammunition, etc., has been prompted by the determination to provide for these acts to be punishable under an Article of national criminal legislation as much as for the very commission of an act of terrorism.

p It is necessary to remark in this context that a community of the social danger of any particular act, even in the event of an equal measure of punishment for these acts, must not necessarily lead to the unification of such acts within the meaning of an offence under the same principle of a nation’s criminal legislation. This consideration has found itself reflected in the wording of Art. 5 which emphasises that each High Contracting Paity shall provide the same punishment for the acts set out in Arts. 2 and 3 whether they be directed against that or another High 90 Contracting Party, with proper consideration being taken of special provisions (emphasis added) of national legislation concerning the protection of persons mentioned under head (1) of Art. 2 or of the property mentioned under head (2) of Art. 2.

p Arts. 6 and 7 of the Convention consider the questions of recognition of previous convictions and sentences passed by foreign courts “within the conditions prescribed by domestic law" and also include the provision that in so far the domestic law admits parties civiles, foreign parties civiles, including, in proper cases, a High Contracting Party, shall be entitled to all rights allowed to nationals by the law of the country in which the case is tried.

p Art. 8 formulates, in practical terms, the principle of aut dedere aut judicare since its heads (1), (2) and (3) establish the ground for the extradition of criminals having committed offences set out in Arts. 2 and 3; along with that, head (4) stipulates that the obligation to grant extradition under the present Article shall be subject to any conditions and limitations recognised by the law or the practice of the country to which application is made. This principle is reinforced by the wording of Art. 9 which formulates the obligation of a State which does not recognise the principle of extradition of its nationals to prosecute and punish its nationals who have returned to the territory of their own country after the commission abroad of an offence mentioned in Arts. 2 or 3, even in a case where the offender has acquired his nationality after the commission of the offence. However, the provisions of this Article shall not apply if, in similar circumstances, the extradition of a foreigner cannot be granted.

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p It is necessary to note in this context that the relationship between the necessity of prosecution for an offence and the presence of political motives for the refusal to extradite a foreigner or a national of one’s own State is always decided by fixing a standard with some political substance in it. There arises, consequently, a blanket standard which creates a compromise version half way between the necessity of prosecution following from the consistency of legal logic and the political motives behind the selection of a legal system for prosecution. The principle of aut dedere aut judicare is exactly one of the cases of combining the legal substance and political motive for the choice of the legal system.

p Art. 10 supplements the provisions of the Convention designed to make certain the punishment of the offences mentioned under the relevant articles of the Convention, emphasising that foreigners who have committed abroad any of the offences set out in Arts. 2 and 3, while on the territory of a High Contracting Party, shall be prosecuted and punished as though the offence had been committed in the territory of that High Contracting Party, if the following conditions are fulfilled—namely, that:

p (a) extradition has been demanded and could not be granted for a reason not connected with the offence itself; 

p (b) the law of the country of refuge recognises the jurisdiction of its own courts in respect of offences committed abroad by foreigners; 

p (c) the foreigner is a national of a country which recognises the jurisdiction of its own courts in respect of offences committed abroad by foreigners.

p As regards the sentence, Art. 11 stipulates that it must 92 not exceed the maximum provided for by the law of the country where the offence was committed.

p That is to say that in one of its basic aspects of sanction, the Convention applies lex loci actus but not in its full volume, but only within the limits of sanction conforming to the law of the country where the offence has been committed.

p Art. 12 provides for indispensable legislative and administrative measures to be taken to ensure the purpose of the present Convention, while Art. 13 deals with the question of regulation of the carrying, possession and distribution of firearms and of ammunition, and establishes the necessity of punishment of persons who do not hold any licence to possess or carry arms. Arts. 12 and 13 operate contrary to the uniformity of the structure of the Convention offering an excuse for divergent interpretations of the provisions of the Convention relative to the same questions but set out in other articles.

p Art. 14 considers punishment for action involving any fraudulent manufacture or alteration of passports or other equivalent documents, irrespective of the’national or foreign character of the document. In respect of this Article, one can make the same remark as in respect of Arts. 12 and 13 on the understanding that all action punishable under this Convention shall not be dispersed throughout the Convention but located in one point of the Convention in an order dictated by the social danger of such action.

p Arts. 15, 16 and 17 stipulate the order, method and form, of exchange of information and cooperation between the appropriate agencies of the High Contracting Parties as well as, the execution of letters of request relating to 93 offences referred to in the Convention with nothing to be interpreted in this context as a circumstance allowing the national judiciaries to apply methods of proof contrary to their own legislation.

p Arts. 18 and 19 of the Convention could be structurally grouped along with Articles codifying the aut dedere out judicare principle since, for instance, Art. 19 underlines that the characterisation of the various offences dealt with in the Convention, the imposition of sentences, the methods of prosecution and trial, and the rules as to mitigating circumstances, pardon and amnesty are determined in each country by the provisions of domestic law, provided the offender is not allowed to escape punishment owing to an omission in the criminal law.

p Arts. 20 through 29 lay down the procedure to follow in settling a dispute, should it arise between the High Contracting Parties, relating to the interpretation or application of the Convention (Art. 20); the necessity of its ratification (Art. 21); the right of accession (Arts. 22 and 23), and the reservation that the High Contracting Party, while accepting the present Convention, is not assuming any obligation in respect of all or any of his colonies, protectorates, overseas territories, territories under its suzerainty or his mandated territories; the present Convention shall, in that case, not be applicable to the territories named in such declaration (Art. 25). Of course, the presence of the so-called "colonial reservation" does not allow the Convention to pretend to be universal which is a considerable deficiency and makes its elaborated provisions ineffective in preventing terrorist acts of an international character.

p The closing articles deal with the procedure of 94 notification in connection with accession to, or unilateral denunciation of, the Convention (Arts. 25, 29), and with their entry into force on the ninetieth day after the receipt by the Secretary-General of the League of Nations of the third instrument of ratification or accession (Art. 26).

p Noteworthy is Art. 24 which stipulates that ratification of, or accession to, the present Convention by any High Contracting Party implies an assurance by him that his legislation and his administrative organisation enable him to give effect to the provisions of the present Convention (emphasis added).

p To conclude this review of the 1937 Convention, one may say that, although it does contain well-elaborated individual provisions such as:

p —definition of an act of terrorism as one of an international character because of the specific object of attack; 

p —emphasising the functional base for granting protection to persons named in Art. 2 from offences falling within Art. 2; 

p —assuring the principle of inescapable punishment (Arts. 8, 9, 10, 11, 12, 13, 19); 

p —-the necessity of cooperation, exchange of information and execution of letters of request relating to the application of the Convention (Arts. 15, 16, 17); 

—-guarantee of the enforcement of the provisions of the Convention through appropriate legislation, either available or newly enacted, as well as appropriate administrative organisation (Art. 24), this Convention, even if it could have become universal due to the extent to which its provisions had been elaborated, could not have provided universal protection because it contains the right to “colonial reservation" (Art. 25).