232

p An attempt at unifying criminal legislation in the control of terrorism has been undertaken by the International Association of Penal Law. A number of international conferences for the unification of penal law have been held under the auspices of the International Association of Penal Law in compliance with the recommendation adopted by the First International Congress of Penal Law which met in Brussels from July 26 to 29, 1926.  [232•1 

p The issue of terrorism was considered by the Third through Sixth International Conferences for the Unification of Penal Law. The term “terrorism” was first used at the Third (Brussels, 1929) International Conference. The documents and resolutions of the Fifth (Madrid, 1934) and the Sixth (Copenhagen, 1935) international conferences were also of interest.

p The Fifth Conference stated that the unification of standards relating to the suppression of terrorism was insufficient for the prosecution of a crime on an international scale and that, for this reason, it was necessary to combine the application of the rules of territorial and universal jurisdiction.  [232•2 

p The Sixth International Conference, basing itself on the papers submitted by special speakers, adopted a document on terrorism, which defined “outrages endangering the community or creating a state of terror" as well as the range of persons violence against whom must entail the 233 application of the Penal Code or special legislation, since these actions create a dangerous situation and a state of terror and can produce tension in international relations and create a particular danger to peace. The acts which, if committed, should entail the application of severe penalties in virtue of the wording of Arts. 2 and 3 of the document adopted by the Sixth International Conference, comprise: 

p —any wilful act causing a disaster by impeding railway, maritime, river or air communications or by interrupting public services or services of public utility; 

p —the use of explosives, incendiary, asphyxiating or harmful substances; 

p —propagating or provoking contagious or epidemic diseases; 

p —destruction of, or damage to, public buildings or public food stocks, ways and means of transportation and communication, signals, lanterns; 

p —destruction of, or damage to, hydraulic installations; 

p —’incitement to the commission of offences or complicity in their commission, or attempts to commit the abovementioned offences; 

p —participation in an organisation or setting up an association with the view to the commission of any of the above-mentioned offences; 

p —manufacture, possession or transportation of arms and ammunition as well as substances and objects that can be used for the commission of the above-mentioned offences.  [233•1 

p In virtue of Art. 1 of the document of the Sixth International Conference, any person who, by wilful acts, has 234 endangered the community or created a state of terror calculated to cause a change in, or impediment to, the operation of the public authorities or to disturb international relations, and directed against the life, physical integrity, health or freedom of a Head of State or a person exercising the prerogatives of a Head of State; Grown Princes, members of a Government, persons possessing diplomatic immunity, or members of constitutional, legislative or judiciary bodies, shall be liable to an increased penalty.  [234•1 

p Besides, the Sixth International Conference for the Unification of Penal Law has recommended that, in the absence of an agreement about the extradition of the offender, the latter should be referred to an international criminal court (emphasis added), unless the State concerned prefers to have him tried by its own courts.  [234•2 

p The above-quoted provisions of the document of the Sixth Conference made its purpose quite obvious—the creation of a universal international machinery to control subversive activity other than of an international character, except the instances of the commission of terrorist acts against persons possessing diplomatic immunity.

p It is possible to apply yet another principle for the unification of national legislation, that of including in it appropriate standards assuring criminal proceedings against, and punishment of, those who have committed terrorist acts with an international element.

p It should be noted that a number of States have appropriate articles in their criminal law codes which identify the subject and object of the commission of an international 235 terrorist act as well as the sanctions applicable in respect of the person found guilty, by a court of law, of having committed offences falling within the above-quoted Articles. For example, such is Art. 4 of the USSR Law of December 25, 1958, on Criminal Responsibility for Offences against the State, incorporated subsequently in the criminal codes of all the Union Republics, Art. 109 of the Criminal Code and the Criminal Procedure Code of the German Democratic Republic; Arts. 106 and 107 of the Criminal Code and the Criminal Procedure Code of the People’s Republic of Bulgaria; Arts. 219, 220, 221, 222, 224 of the Criminal Code of the Socialist Republic of Romania; Art. 64 of the Criminal Code of the Mongolian People’s Republic; Arts. 283, 284, 285 of the Criminal Code and the Criminal Procedure Code of the Polish People’s Republic; Art. 221 of the Penal Code of Argentina; the 1956 Decree 3135 of Colombia; Art. 38 of the Act No. 59-29 of February 27, 1959 of Madagascar establish varying degrees of responsibility for the commission of international terrorist acts.

p It should be noted that, as a rule, these articles cover the commission of terrorist acts against diplomatic agents or unlawful interference with the operation of air services by virtue of the participation of States in appropriate conventions. Some States have been compelled to take special legislative and administrative measures in view of the growing number of terrorist acts of an international character committed in their territory. For example, the US Government has set up a Cabinet Committee to Combat Terrorism, chaired by the Secretary of State, to coordinate such activities as “intelligence relating to international terrorism, improved precautionary measures by policy agencies, increased screening at airports to prevent hijackings, 236 consideration of new legislation, and increased contingency planning".  [236•1 

p On October 24, 1972, the then US President Richard Nixon signed an Act for the Protection of Foreign Officials and Official Guests of the United States, approved by Congress.  [236•2 

p It made the wilful assassination of any person enjoying the protection of this Act, as well as any conspiracy with the view to murder, unlawful seizure, remanding in custody, kidnapping for ransom or reward, or the commission of other offences in respect of such persons, punishable by severe penalties (paragraphs 1116, 1117, 1201), ranging from various terms of imprisonment to death penalty, with due regard for the Bill adopted by the US Senate in March 1974.

p In virtue of head (b) of paragraph 1116, a foreign official or official guest of the United States is:

p 1) a head of State or the political equivalent, President, Vice-President, Prime Minister, Ambassador, Foreign Minister, or other officer of cabinet rank or above in a foreign government or the chief executive officer of an international organisation, or any person who has previously served in such capacity, and any member of his family, while in the United States; and

p 2) any person of foreign nationality who is duly notified to the United States as an officer or employee of a foreign government or international organisation, and who is in the United States on official business, and any member 237 of his family whose presence in the United States is in connection with the presence of such officer or employee.

p It is particularly important, furthermore, that head (c) of paragraph 1116 includes the provision that “foreign government" means the government of a foreign country irrespective of recognition by the United States (it may be recalled that not so long ago the US Government used to invoke its non-recognition of the governments of some States, as Cuba, in a bid to justify impunity in the event of acts of violence being committed against their representatives).

p “International organisation" means an intergovernmental international organisation designated as such pursuant to section 1 of the International Organisations Immunities Act (subhead /2/ of head /c/ of paragraph 1116).

p The Act specifies that “official guest" means a national or subject of a foreign country present in the United States as an official guest of the Government of the United States pursuant to designation as such by the Secretary of State.

p Yet this Act in its practical application leaves officials of foreign missions and even visiting statesmen virtually defenceless while in US territory and allows individuals guilty of terrorist acts to go unpunished.

p For instance, a member of the staff of the Embassy of the USSR, S. V. Stepanov, was heavily wounded in the head by a gunman in Washington in October 1976, and died soon afterwards.

p At the end of 1977, the US Congress passed a Diplomatic Relations Act making it imperative for all persons entitled to immunity to vindicate their immunity before a US court or administrative authorities in the event of any action against them by the authorities or private individuals, 238 which would, in point of fact, reduce to nought any effective measures against all acts of violence in respect of persons entitled to immunity (above all, the staff of diplomatic missions).

p The Act, naturally, operates only within the territory under US jurisdiction, and does not solve the problem arising from the commission of a terrorist act of an international character even in respect of US nationals anywhere outside US jurisdiction.

p The Act does not cover, by the meaning of its articles, the representations of national liberation movements before they have been recognised by the US Government.

p Obviously, as actual experience indicates, it must be the concern of special conventions to identify the range of persons and objects a terrorist act against whom or which involves international relations, since the inclusion of such norms in national legislation does not yet resolve all the problems connected with the cooperation of States in the suppression of international terrorist acts, such as the problem of inescapable punishment, that of taking account of an international element in the corpus delicti, various aspects of legal cooperation at an international level, etc. In a whole series of instances, as one can see, for example, from the US record, the State virtually forswears the prosecution and punishment of persons having committed these acts.

The Belgian lawyer Bart De Schutter, an authority on international penal law, holds that theoretically, there are international and national provisions for terrorism to be suppressed; international conventions in force can well serve the purpose. Nevertheless, opinions differ as to the ways of suppression: they range from an idealistic conception of 239 an international criminal court to claims about the exclusive competence of national courts. Bart De Schutter has proposed establishing a hybrid system by creating special chambers of national courts, permitting foreign observers to attend the hearings of national courts, and setting up mixed courts of national and foreign judges.  [239•1