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p It has been a practice of the international community to work out conventions for the suppression of international terrorist acts in general (League of Nations) or individual types of such acts (UN).

p Unlike the unification method, a convention not only identifies the corpus delicti falling within its scope, but also the principles underlying the application of national legislation of the States parties to the Convention for legal action against those who have committed the offences, as well as the obligation of the States concerned to cooperate in this field; that means assuring inescapable punishment of the persons whose acts constitute corpus delicti, if these persons come under the jurisdiction of any of the States Parties; consequently, this offers an opportunity to prosecute anyone for the offence committed on the territory of one State at an international level because of its danger 240 to international relations, no matter on the territory of which particular Contracting State the jurisdiction over the offender may have been established. When we speak of the conventionary mechanism of cooperation in the suppression of terrorism, we mean different forms of action by States governed by an international agreement. This comprises, above all, the extradition of alleged offenders, mutual assistance in criminal matters, exchange of material of criminal investigation, mutual enforcement of the rulings of criminal courts, mutual supervision over persons convicted or released under suspended sentences, and, finally, the cooperation of the criminal police.

p All these forms of cooperation may be an object of individual special conventions or may find reflection in a convention dealing with the suppression of any specific offence.

p As stated earlier on, the UN has been for some time considering the conclusion of a universal convention to combat international terrorism or specialised conventions to deal with its isolated types only. There is, however, a wide divergence of interpretation of the meaning of international terrorism by different States. This would hardly enable any convention to become universal at the present stage of development of international relations. On the other hand, virtually all nations acknowledge the necessity of cooperation in the suppression of terrorist acts endangering international relations.

p Irrespective of the purpose of a convention (general or specialised), it must contain certain legal principles to make it effective.

p At the present time, there is one draft convention available and divergent views on the basic provisions of a convention to combat the acts of international terrorism. In 241 the course of the general debate at the UN General Assembly, which considered the problem of international terrorism, among other items, the United States submitted a “Draft Convention for the Prevention and Punishment of Certain Ads of International Terrorism."  [241•1  Structurally, the Draft Convention consists of 16 articles and a preamble. The preamble recalls General Assembly Resolution 2625 (Twenty-Fifth Session) of October 24, 1970, lays accent on the statement in that resolution that every State has the duty to refrain from organising, instigating, assisting or participating in terrorist acts on the territory of another State or acquiescing in organised activities within its territory directed towards the commission of such acts.

p However, the preamble has no reference to the right of nations to self-determination or the right of the peoples to take up arms to liberate themselves from colonial oppression.

p Art. 1 of the Draft specifies the corpus delicti of an offence falling within the Convention. It qualifies as an international offence: 

p 1) homicide; 

p 2) causing grievous bodily harm; 

p 3) kidnapping; 

p 4) an attempt to commit any such act; 

p 5) participating as an accomplice of a person who commits any such act, if the act: 

p a) is committed or takes effect outside the territory of a State of which the alleged offender is a national; 

p b) is committed or takes effect outside the territory of 242 the State against which the act is directed, or within the territory of the State against which the act is directed, and the alleged offender knows or has reason to know that a person against whom the act is directed is not a national of that State; 

p c) is committed neither by nor against a member of the armed forces of a State in the course of military hostilities; 

p d) is intended to damage the interests of, or obtain concessions from, a State or an international organisation.

p An international organisation means an intergovernmental organisation; the territory of a State includes all territory under the jurisdiction or administration of that State, that is to say, it includes colonial possessions and occupied territories.

p Art. 1 of the draft, although its provisions do outwardly seem to be well elaborated, suffers from serious shortcomings, as it lacks a full definition of the elements of criminal acts, since the Convention covers only the offences committed against natural persons, and a list or criteria by which to identify the persons an attack against whom falls within the Convention.

p Art. 2 contains an undertaking of the States parties to envisage severe penalties for offences set forth in Art. 1.

p Art. 3 fixes the principle of aut dedere out judicare.

p Arts. 13 and 14 of the draft provide for the precedence of the Geneva Conventions of August 12, 1949 as well as of any other Convention which has been or may be concluded concerning ’the protection of civil aviation, diplomatic agents and other internationally protected persons if in conflict with any provision of this Convention. This is 243 strange wording, to say the least, for it makes it totally unnecessary to conclude a Convention based on this draft if any subsequent convention should take precedence once in conflict with any provision of this Convention.

p Art. 16 formulates a long and involved procedure for the settlement of disputes arising from the application of the Convention.

p Finally, it would be wrong to see terrorist acts confined to those mentioned in the draft only. In particular, it would be advisable to mention blackmail as one of terrorist acts.

p The draft is based on the either-extradite-or-prosecute principle. However, the most effective way of prosecution would be through the extradition of the offender to the State on the territory of which the offence has been committed, if the given person is not a national of the State on the territory of which he has found himself. One cannot put up with the fact that the Draft Convention includes, in principle, statute of limitation in dealing with the commission of such offences. It would be wiser to exclude the application of statute of limitation to <the punishment of such crimes.

p Because the right of nations to self-determination has been ignored and the provisions of the Convention underelaborated, the draft was not taken into account during the deliberations of the Ad Hoc Committee on International Terrorism.

p The Washington Post said in December 1978 that when the General Assembly had adopted its resolution on terrorism which, in particular, rejected the approach of the United States seeking to charge the national liberation movements with terrorist activities, George Bush, the then US Ambassador to the UN, admitted his defeat.

p One point to stress in this context is that the US stand 244 on the subject is completely at variance with international law because in accordance with the UN Charter and contractual practice (Protocol Additional to the 1949 Geneva Conventions for the Protection of War Victims in International Armed Conflict, of 10 June 1977), an international conflict should, notably, mean one an which peoples fight colonial domination or foreign occupation or racist regimes in the exercise of their right to self-determination. This implies recognising not only the legitimacy of national liberation movements but also the duty to lend them all manner of assistance, including arms supplies, with a view to ensuring the exercise of their right to self-determination.

p Following a discussion on international terrorism at its Thirty-Fourth Session, the General Assembly adopted an important resolution  [244•1  which contains a general condemnation of all acts of international terrorism endangering human lives or jeopardising fundamental human rights and freedoms. The UN General Assembly denounced the continued repressive and terrorist acts committed by colonial, racist and foreign regimes denying the legitimate right of the peoples to self-determination and independence and other human rights and freedoms. The resolution called upon all nations to cooperate in eradicating the causes of international terrorism. It urged all nations to fulfil their obligations under international law: to refrain from organising, instigating, assisting or participating in acts of civil strife or terrorism in another State and, in particular, to coordinate their legislation with international conventions to this end. The 245 General Assembly called upon all nations to cooperate more closely through an exchange of information for the purpose of preventing and suppressing international terrorism, concluding special treaties or adding reservations to other bilateral treaties as regards the extradition and prosecution of international terrorists. The General Assembly called upon all nations to present their considerations and specific proposals, notably, as regards the necessity of an additional convention or conventions for the suppression of international terrorism.

p The resolution stressed, in particular, that if the General Assembly and the Security Council were to make their own contribution towards the elimination of the causes and problems of international terrorism, they must give special attention to all situations arising from foreign occupation which might give rise to international terrorism or produce a threat to international peace and security, by applying the appropriate provisions of the UN Charter, including its Chapter VII, to that end, if need be.

p John Dugard, a British lawyer, believes it necessary to adopt a single general Convention and that Convention should, ideally:

p 1) reaffirm that every State has a duty to refrain in all circumstances from encouraging terrorist activities in another State; 

p 2) the Convention should prohibit acts of terrorism which strike at the stability of the international order, but not those acts which undermine the political order in any particular country. The Convention should likewise contain a full definition of international terrorism; 

p 3) the Convention should confine itself to death and bodily injury only, and should not cover any attempted acts of terrorism. To make his case, Dugard argues that national 246 legislation has so wide definitions of terrorism as to cover any form of unconstitutional behaviour and, therefore, to treat a political opponent as a terrorist; 

p 4) the motive is irrelevant in determining whether an act of terrorism has been committed; 

p 5) the Convention should accept the principle of out dedere out punirc as a guide in the enforcement procedures; 

p 6) the Convention should reaffirm the international community’s abhorrence of State-controlled terrorism as expressed in the Nuremberg principles.  [246•1 

p While acknowledging John Dugard’s desire to work out an effective international legal instrument, one cannot, however, accept that his proposals, although they do stress the need to extend the scope of the Convention to acts of terrorism, disrupting the stability of international order, that is, representing a threat to international relations, do not set forth the elements of an international offence, i.e. terrorist acts which must fall within the Convention.

p In the absence of corpus delicti, Dugard proposes confining the operation of the Convention to instances of death or bodily harm, alluding to a possibility of arbitrary practices in the enforcement of domestic laws in other instances.

p Neither can the principle of aut dedere aut punlre underlie such a convention, since initiating proceedings against a person suspected of having committed an offence falling within the convention do not yet mean that this person will be punished.

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p The record of the League of Nations and the UN in this matter warrants the conclusion that a universal convention, should it be drawn up, could include the following major provisions: 

p 1) Propositions for the preamble of a possible convention: 

p a) proposal for States to join the existing international conventions concerning various aspects of the problem of international terrorist acts; 

p b) reaffirmation of the inalienable right of all nations under colonialist or racist oppression and other forms of foreign domination, to self-determination and independence; 

p c) reference to the Declaration on the Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations; 

p d) emphasis on the importance of international cooperation in devising measures towards effective prevention of international terrorist acts; 

p e) proposal for States to take all appropriate measures at a national level with the aim of resolving this problem at the earliest opportunity.

p 2) Definition of the corpus delicti falling within the Convention to try and avoid any difference in the content and interpretation of it in the practice of individual States.

p 3) Qualification of the offences falling within the Convention as criminal regardless of motive, which is an important condition to assure inescapable punishment of such crimes. (However, the qualification of an international terrorist act as a criminal offence, considered as such for the purpose of extradition, does not by itself assure inescapable 248 punishment, because extradition may not ensue on account of the refusal of the State concerned to extradite its nationals so as to reserve a solution. Therefore, the proposition regarding extradition as an indispensable condition may not win the support of a majority of States and, consequently, the Convention may not become universal, even though such a proposition by itself can go far towards checking the acts of international terrorism).

p 4) The principle of aut dcdcre aut juduarc which is likewise extremely important for assuring inescapable punishment of the offences falling within the Convention.

p 5) Definition of an international element of the commission of an offence, i e., the conditions for the present Convention to be applied, since, unlike the unification method which makes the commission of an offence within the scope of national jurisdiction punishable under an appropriate law, the conventionaly mechanism requires, besides, the presence of an international element.

p 6) Obligation of the States parties to the Convention to qualify the offences within its scope as the gravest crimes under national legislation, which would enable the differences between the penalties provided for by national legislation to be reduced to the minimum.

p 7) Adoption by the States parties to the Convention of appropriate measures to control the activities of organisations if the offences within the scope of the Convention have been committed as a result of these activities. (Such a proposition has not figured in any of the previous conventions for the suppression of international terrorist acts, although the record of recent years has shown that most of the offences of this category have been committed by members of organisations).

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p 8) Commitment of the States parties to the Convention to maintain legal cooperation as regards the application of the Convention.

p 9) The Convention should be of unlimited duration and open for signature by all nations.

p The effectiveness of the Convention will depend, first and foremost, on its universality as well as on the measures to be undertaken at a national level because the juridical formulation of the provisions of the Convention is an indispensable but insufficient condition for the prevention and punishment of offences within its scope.

p To facilitate the drafting and adoption of a universal Convention, the UN General Assembly could produce an appropriate declaration or resolution based on the abovestated propositions for the preamble.

One point to note in summing up the consideration of the conventionary mechanism for combating international terrorist acts is that this method will not only assure the unification of the definition of the corpus delicti, but also special protection of persons or property who or which should be so protected in virtue of their status under international law.