Progress Publishers
Moscow
[1]Translated from the Russian by Lev Bobrov
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[2] CONTENTS INTRODUCTION Page 5 Chapter I. DEFINITION OF AN ACT OF INTERNATIONAL TERRORISM . . . .'.......18 1. Concept of an Act of Terrorism...... 18 2. Acts of Terrorism Punishable under International Law................49 Chapter II. INTERNATIONAL AGREEMENTS ON THE PREVENTION AND PUNISHMENT OF ACTS OF INTERNATIONAL TERRORISM........83 1. The 1937 Convention for the Prevention and Punishment of Terrorism..........83 2. Conventions for the Suppression of Unlawful Interference with the Operation of Air Services . . 95 3. The 1971 Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of International Significance.........114 4. The 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents . . 120 5. The 1977 European Convention on the Suppression erf Terrorism............145 [3] 6. The 1979 International Convention against the Taking of Hostages........... 156 7. Mercenarism---an International Crime . . . . 166 Chapter III. COOPERATION OF STATES IN THE FIGHT AGAINST INTERNATIONAL TERRORISM . 208 1. The Problem of Drafting Provisions against Acts of International Terrorism........ 208 2. Unification Method........... 232 3. International Machinery for the Prosecution and Punishment of Acts of International Terrorism . 239 4. International Criminal Jurisdiction...... 249 CONCLUSION................ 281 [4] __ALPHA_LVL1__ INTRODUCTIONSince the late sixties and the early seventies, the world press has been carrying more and more of startling news about airliners hijacked, embassies blown up or set on fire, diplomats kidnapped, acts of provocation and outright raids staged against government and non-governmental missions, plastic parcel-bombs going off. .. Here are some of the most sensational episodes.
On December 3, 1969, a group of 40 Zionists raided the Syrian Delegation headquarters at the UN. On March 3, 1971, a petrol bottle was thrown into the offices of the Iraqi Mission at the UN. On October 20, a member of the Zionist Jewish Defence League shot with a large-bore rifle at the headquarters of the Soviet Delegation at the UN from the roof of an adjacent house in New York. He fired at the window of a room with four children inside at the moment.
However, official government representatives were not the only targets of terrorism.
Late in 1972, the Scotland Yard had to introduce special control at the London Post Office for the first time since World War II because of a spate of plastic bombs, 5 posted as letters or parcels. The Indian Minister of Communications, Bahuguna made a special statement in Parliament after 50 explosive devices sent by air mail had been intercepted at the New Delhi Post Office. He pointed out in particular that there were some sophisticated electronic devices that experts had found in them, consisting of components that had not been manufactured either in India or in Arab countries.
There have been many reports about the terrorist action of the Ustashis^^1^^ against Yugoslav diplomatic missions. The whole world knows about the hijacking of a Swedish airliner with 90 people on board by Ustashis in 1972.
95 people from various countries would have died in Cyprus in 1974 if the time-bomb stowed away inside a Venezuelan airliner had not been discovered in good time.
A Czech pilot was killed in Czechoslovakia and the plane he was flying was hijacked and flown to West Germany.
In October 1972, members of the Zionist Mossad organisation blew up a Palestinian bookshop in Paris and the home of a representative of the Palestine Liberation Organisation in France, Mahmoud Hamshari.
On August 14, 1973, the Ministry of Foreign Affairs of Norway announced the expulsion of an Israeli diplomat, Yigal Eyal implicated in the murder of a Moroccan subject Ahmad Bouchiki in Lillehammer. Two Israeli terrorists were arrested in that diplomat's apartment.
A parcel bomb went off in the Chinese embassy in Lusaka in 1973.
In October 1977, the Japanese Government had to meet _-_-_
~^^1^^ Ustashis---a nationalist separatist organisation of Croatian fascists, founded in January 1929.
6 the demand of terrorists from the Japanese Sekigun organisation who had seized a JAL airliner with passengers on board, bound for Paris from Tokyo. The terrorists demanded a ransom of 6 million dollars and the release of their former nine associates from Japanese jails. They threatened to kill off the passengers and the crew if their demand was not met. When it was, the airliner landed in Algeria where the terrorists gave themselves up to the local authorities. Prime Minister Fukuda then declared that he would do his best to promote international cooperation in preventing such crimes.A blast in Sheridan Circle in Washington on September 21, 1976, killed Orlando Letelier, a former minister of foreign affairs in the Allende government of Chile. The murder had been organised by agents of the Chilean secret police, DINA.
A booby-trap car exploding in Buenos Aires on September 10, 1974, killed General Carlos Prats and his wife, who had emigrated from Chile, and on October 6, 1975, gunmen fired with automatic weapons at Bernardo Leighton, one of the founders of the Christian Democratic Party of Chile, and his wife who remained paralysed because of the wounds she had received.
Orlando Letelier's widow, Isabel Letelier, made an unequivocal statement in an interview for the New Times magazine: ``This is a case of state terror directed against a great many people in both Chile and other countries. .. This terrorism is practised not merely by gangs of killers, but by the state machinery of Chile and some other Latin American countries."^^1^^
_-_-_~^^1^^ See: New Times, No. 11, March 1979, p. 28.
7As the Daily Mail reported in May, 1980, British secret services had a hand in preparing a terrorist group for the physical removal of the leaders of the Zimbabwe Patriotic Front. The paper said that a group of subversive agents in the uniform of Zambian servicemen raided the building housing the mission of the Patriotic Front in Lusaka. The Front leader, Joshua Nkomo had a narrow escape. And late in February, there was an assassination attempt on Robert Mugabe (the present Prime Minister) during the elections in Rhodesia. A mine was set off on the road he was driving by on his way to attend an election meeting at Fort Victoria. The third man in the list was Josiah Tongogara, the military leader of ZANU. He died in a car crash after the London Conference on Rhodesia at the end of 1979.
We could cite more of such examples. . . Half of all the acts of terrorism committed in the 1970s occurred in Europe, 21 per cent in Latin America, 14 per cent in North America, and 11 per cent in the Middle East and North Africa. In 1970, there were twice as many terrorist acts in Latin America as in Europe. In 1978, they were in reverse proportion. Direct damage caused by terrorist action and overhead expenses they involved, as those for security and insurance, in 1970--1978, ran into billions of dollars. The declared ransom alone for individuals kidnapped by terrorists topped 145 million dollars.
In International Terrorism and World Security, an American author, Brian M. Jenkins wrote: ``Terrorism appears to have increased markedly in the past few years. Political and criminal extremists in various parts of the world have attacked passengers in airline terminals and railway stations; planted bombs in government buildings, 8 the offices of multinational corporations, pubs, and theatres; hijacked airliners and ships, even ferryboats in Singapore; held hundreds of passengers hostage; seized embassies; and kidnapped government officials, diplomats, and business executives. We read of new incidents almost daily.. . Terrorism has become a new element in international relations."^^1^^
There have been certain instances of international lawbreaking being mixed up with terrorism, which objectively hampers a concentrated effort to check this type of international crime. As a case in point, we can mention the work of Louis Rene Beres Terrorism and Global Security. The Nuclear Threat^^2^^ which considers the possession of nuclear arms and the eventuality of their being used for acts of terrorism. This must, evidently, involve other areas of international relations subject to a different qualification.
Back in 1972, the Twenty-Seventh Session of the UN General Assembly discussed the issue of ``international terrorism" which had been included in the General Assembly agenda as item 92, entitled ``Measures to prevent international terrorism which endangers or takes innocent human lives or jeopardizes fundamental freedoms, and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human _-_-_
~^^1^^ Brian M. Jenkins, ``International Terrorism. A New Mode of Conflict''. In International Terrorism and World Security. Ed. by David Carlton & Carlo Schaerf, Groom Helm, London, 1975, p. 13.
~^^2^^ Louis Rend Beres, Terrorism and Global Security. The Nuclear Threat, Boulder, Westview Press, New York, 1979.
9 lives, including their own, in an attempt to effect radical changes."^^1^^Because of the divergent positions of various states with regard to terrorism and the loose wording of item 92 of the agenda, neither the Twenty-Seventh, nor the subsequent Twenty-Eighth Session of the UN General Assembly could work out any specific measures to check acts of terrorism jeopardizing the normal course of international relations. Neither could the Special Committee, set up in accordance with the General Assembly Resolution 3034 (Twenty-Seventh Session) of December 18, 1972, submit any working document to the Twenty-Eighth Session for the same reasons.
Representatives of imperialist States attempted to exploit the discussion of ``international terrorism" in the UN in order to extend this concept to the national liberation struggle and to various forms of the class struggle of the working people for their rights. This circumstance predetermines the importance of resolving the problem by applying the principles of State-to-State relations which would make it possible to resist the attempts of imperialist States to stultify the generally recognised standards of international law and also to fill in the blank in this respect.
Speaking at the Twenty-Seventh Session of the UN General Assembly, Soviet Foreign Minister Andrei Gromyko said: ``On the basis of positions of principle, the Soviet Union opposes acts of terrorism which disrupt the diplomatic activities of States and their representatives, transport communications between them, the normal course of international contacts and meetings, and it opposes acts _-_-_
~^^1^^ UN General Assembly, A/C, 6/418, 2 November 1972, p. 1.
10 of violence which serve no positive end and cause loss of human life.''When, early in 1981, the Reagan Administration took up the cudgels against ``international terrorism'', the background to that campaign was clear right from the outset. The whole ``great idea" was to try and cover up the unending succession of offences of terrorist significance committed by the CIA and other US secret services on the territory of foreign nations with a view to destabilising international relations and putting the blame for it on the national liberation movements and the Soviet Union.
In a bid to sell its own idea of the ``fight against international terrorism'', the Reagan Administration has actually set its face against the rule of international law, having, to all intents and purposes, introduced so-called ``minor forms of violence" into international relations as a standard of behaviour, also with a view to destabilising these relations.
The TASS Statement of February 2, 1981, said in particular: ``No, it is not the Soviet Union and not the national liberation movements that bear responsibility for the emergence of seats of tension, for the cult of force that is being implanted by certain circles in the international arena, for the terrorist actions which States have to face. The nutritive medium for arbitrariness, violence and terrorism in the international arena is provided by the activities and policy of those who trample upon the legitimate rights and interests of sovereign States and peoples, who implant the ideology of racial and national hatred, who support reactionary dictatorial regimes that remain in power only with the help of terror, who are out to increase tension in the world and whip up the arms race, who 11 build up an atmosphere of war hysteria. The addresses of those we speak of are well known.''
The U.S. News and World Report found out that the CIA had carried through close on 900 major undercover operations against ``undesirable'' individuals and governments from 1951 to 1976. Among those operations---the assassination of Iran's Premier Mossadegh and the overthrow of his government in 1953, the toppling of the government of Guatemala in 1954 and of those of the Dominican Republic in 1965, Ghana in 1966, and Chile in 1973. One does not need to go far into the records of history to recall the names of politicians assassinated by CIA agents: Prime Minister Patrice Lumumba of the Congo, Ernesto Che Guevara, President Salvador Allende of Chile, Orlando Letelier, General Carlos Prats, Juan Torres, a former President of Bolivia, Amilcar Cabral, General Secretary of the African Party for Independence in Guinea and Cape Verde Islands, Eduardo Mondlane, leader of the struggle of the people of Mozambique, and Prime Minister Solomon Bandaranaike of Sri Lanka.
CIA agents have made over 20 assassination attempts on Fidel Castro, trying to kill him with firearms, hand-- grenades, shell mines, poisoned cigarettes, poison pills, a diving suit with tubercle bacilli.
As Admiral Stansfield Turner, who was the CIA Director under President Carter, declared once, there is only one way of effectively using terrorism in the American interest, and that is through physical penetration of the ranks of terrorists.
In July 1981, the Italian Panorama magazine published an excerpt from a secret document, FM 30/31, which had been compiled by General Westmoreland, a former Chief 12 of Staff of the US Army. It referred unequivocally to the use of terrorist movements to further the US interest in friendly countries''. One clear indication of that was the organisation of terrorism and its spread in Italy, notably, the so-called case of the masonic Lodge Propaganda 2 (abbreviated as Loggia P-2). As early as 1974, Lieut.-Col. Amos Spiazzi, who had served concurrently for the Italian Intelligence Service and for the neofascists of the Rosa dei venti (Rose of the Winds) organisation, testified during interrogation that it was the masons that had organised contacts between neofascists, the mafia, the secret services of Italy and the CIA.
It was, to judge by all accounts, in 1969 (as competent New York sources found, at least) that the leaders of the US National Security Council and representatives of the Italian right-wing forces decided to use masonic cover as disguise of a subversive organisation which, to all intents and purposes, was to bring about a drastic rightward shift in Italian politics. It was at that time that this mission was entrusted to the P-2 Lodge which was already active among employers and financiers.
The life of Italian politicians and public figures came to depend on whether they like or dislike US and NATO policies.
One particular case by which to illustrate the terroristic activity of the P-2 Lodge is the ``Occorsio case''. It is a matter of record that in the 70s Italy was more than once on the brink of fascist coups being prepared by a long succession of terrible acts of terrorism. The press revealed the anti-government ambitions of "Black Prince" Vaflerio Borghese in 1971. In 1974, a rightist coup was plotted by Licio Gelli. The neofascists attempted to destabilise the
13 political situation accordingly: in May 1974, they had a bomb exploded in Brescia and in August of the same year, another one going off on the Italicus Express. Vittorio Occorsio, Deputy Attorney General of Rome, conducted an inquiry. The bomb on the Italicus was found to have been planted by neofascists of the National Front organisation, Mario Tuti, Pietro Malentachi and Luciano Francia. Occorsio established that the masons had connections with bandits who kidnapped people and used the ransoms for them to keep up the funding of neofascist organisations. He found out that the kidnappers had as their treasurer a lawyer, Antonio Minghelili who had the title of Master of the Lyra and Sword Lodge and subsequently became P-2 Secretary. In a private conversation, Occorsio imprudently mentioned Minghelli. A few days later, on July 10, 1976, he was shot dead on his own doorstep. The assassin, Pierluigi Goncutelli, turned out to be a neofascist. On the premises where he was arrested, police found eleven million Italian lire which another bandit, Renato Vallanzasca had just received as ransom money for Emanuela Trapagni, kidnapped by the mafia. But further police investigation was impeded.An American, Ronald Stark, who was in contact with CIA, testified, when arrested for drug smuggling, that the Red Brigades had been plotting to kill the Attorney General of Genoa, Francesco Coco, and kidnap a big-calibre politician in Rome. Stark's testimony was not taken into account, and two months later, Francesco Coco was killed by ``Red Brigades" terrorists. In 1978, a few days after the US Ambassador to Italy, Richard Gardner, described the former Chairman of the National Council of the Italian Christian Democratic Party, Aldo Moro as ``the most 14 dangerous man in the Italian political arena" for favouring dialogue with Communists, Moro was kidnapped also by the ``Red Brigades" and subsequently murdered.
Stark, who was under police surveillance in Florence when Moro was kidnapped offered to the editor of a local newspaper to tell the whole truth about his connections with terrorists. Thereafter, Stark disappeared without a trace.
Here is a typical case to illustrate CIA operations. When an Italian, by the name of Salvatore Krisaffi refused to share in kidnapping, on CIA instructions, Giovanni Agnelli, the FIAT owner, and Angelo Rizzoli, the head of a big newspaper publishing corporation, he was simply thrown into an American jail after having been convicted by a New York court on a trumped-up rape charge.
L'Europeo, an influential Italian magazine, has drawn a significant conclusion that the underground Black Army (far more numerous and bellicose than it is assumed to be) has sprung from the NATO concept of ``the defence of Europe in the event of a conflict''. This is the concept that underlay the ``Black Colonels'~" coup in Greece. The Italian press has disclosed that the afore-mentioned Gelli had established liaison between Italian terrorists and the Greek colonels. The close contact of the P-2 Lodge with neofascists gives the clue to the ``Occorsio case" mystery.
There is enough documentary evidence at hand today to prove Gelli's connection with the CIA. The Grand Master of the Grand-Orient Lodge of France has stated that he considers the P-2 to have been a tool of the CIA.
That is to say that only total renunciation of interference in internal affairs and violation of generally 15 recognised principles and standards of international law can make it possible to work out wide-ranging measures for the suppression of terrorism.
Obviously, with good will in evidence, it is possible to reach agreement also on such a problem as a joint effort to suppress acts of international terrorism, all the more so since this is a matter of vital concern to everybody.
For example, the participating nations of the Conference on Security and Co-Operation in Europe succeeded in reaching agreement at their follow-up meeting in Madrid in 1981 on principles of the fight against acts of international terrorism.
They condemned terrorism, including terrorism in international relations which endangers or takes innocent human lives or otherwise jeopardises human rights and fundamental freedoms.
Participating nations voiced their determination to take effective measures to prevent or suppress acts of terrorism both at national level and through international cooperation, comprising appropriate bilateral and multilateral agreements, and to broaden and intensify mutual cooperation accordingly in action to oppose such acts under the United Nations Charter, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the United Nations Charter and the Final Act. A very important point of principle was the agreement to refrain from lending direct or indirect assistance for terroristic activity aimed at toppling by force the regime of another participating nation as well as the agreement to refrain from financing, encouraging or inciting any such activity or encouraging tolerance thereof.
16Considering present-day realities, the participating nations took what was certainly a progressive step by reaching a consensus on adopting all appropriate measures to prevent their territories from being used to prepare, organise, and conduct lerroiist activities, including some directed against other participating nations and their nationals. These comprise measures to ban the illegal activities, on their territories, of individuals, groups and organisations who incite, organise, or participate in acts of terrorism.
Another very important point of agreement was for the participating nations to do everything within their power to ensure the security of all official representatives or individuals who participate, on their territory, in all manner of activity within the framework of diplomatic, consular, or other official relations.
To sum up, international law offers the principles by which to govern the relations of States and accords between them so as to create a serious obstacle in the way of international terrorism and assure a concerted effort by all nations in the fight against it and in its eventual suppression.
[17] __NUMERIC_LVL1__ Chapter I __ALPHA_LVL1__ DEFINITION OF AN ACTLexically, the word ``terror'' has come from Latin and, having struck root in the languages of the Roman group, subsequently migrated into other European languages. The derivatives---``terrorism'' and ``act of terrorism" are now in wide use.
In this context, the meaning of these terms should be neatly defined.
The term ``terror'' has gone down in history with the Great French Bourgeois Revolution,^^1^^ in the opinion of bourgeois historians, although action by the State, classes or individuals aimed at intimidating sections, groups or classes of the population, was known in a distant past. One object of public execution of common and political criminals was terrorising those who watched it. It is for that reason that secular and ecclesiastical authorities _-_-_
~^^1^^ See: Encyclopaedic Dictionary, Vol. XXXIII, pp. 69--80, St. Petersburg, 1901 (in Russian); The Encyclopaedia Americana, Vol. 26, New York-Chicago, 1944, p. 449; Encyclopedie internationale, Focus, Vol. IV, p. 3516, Paris, 1958; ``Three Questions on Terrorism'', by Paul Wilkinson, in Government and Opposition, Vol. 8, No. 3, Summer 1973, London, p. 299.
18 required all local population to be present at the execution of political criminals or heretics on pain of death or persecution.It is common for the terror of the Fiench Revolution to be undeistood as the domestic policy of the Jacobin dictatorship which was installed upon the expulsion of the Girondists from the Convent on May 31-July 2, 1793, and defeated by the counter-revolutionary coup of 27th July (9thThermidor), 1794.
Bourgeois historians have been trying to prove that the terror of the Jacobin dictatorship was nothing short of bloodshed from start to finish, stating that 17,000 were guillotined under court sentences and a further 25,000 without any, but forgetting all about the wave of ``White terror"^^1^^ which followed the coup of the 9th Thermidor, and overlooking other activities of the Jacobin dictatorship and the conditions the Great French Bourgeois Revolution had to develop in.
The policy of terror was the reply of the French Revolution to arson and explosions, treachery within the Republic, assassination of the commissars of the Convent, the murder of the leaders of the French Revolution,^^2^^ sabotage, the 'hoarding of foodstuffs and prime necessities, blackrnarketeering, and spying of agents from the Coalition countries. One should add to this that it was only the United States of America and the Confederation of _-_-_
~^^1^^ White terror was the reprisals of royalists of 1795 and during the 1015 period of the Second Restoration. The name ``while'' was given to that terror because of (ho colour of the royalists' flag.
^^2^^ The murder of Marat on June 18, 1793, was one of the acts of terrorism against the leaders of the revolution.
__PRINTERS_P_18_COMMENT__ 2* 19 Switzerland that maintained neutrality in respect of the French state. The Republic was faced by an ever-present threat of foreign intervention, indeed, the Coalition powers had more than once tried to strangle the French Republic by loice of arms. 'J'lic domestic and external front, and economic difficulties expressed the gravity of the contradictions which the French Revolution was to resolve. Maximiilien Robespierre believed that terror was to be applied only when a failure to apply it would mean disrupting the ``public liberty'', that is, prejudicing the interests of the revolution.^^1^^Speaking of the terror of the French bourgeois revolution as a method of struggle, Karl Marx wrote: ``All French terrorism was nothing but a plebeian way of dealing with the enemies of the bourgeoisie, absolutism, feudalism and philistinism."^^2^^
By considering the experience of 19th-century revolutions, Marx predicted that revolutions of the new times would be less and less ``improvised'' and spontaneous; they will take the form of organised action of the masses and the parties. ``The time of surprise attacks, or revolutions carried through by small conscious minorities at the head of unconscious masses, is past,'' Engels wrote. ``Where it is a question of complete transformation of the social organisation, the masses themselves must also be in it, _-_-_
~^^1^^ M. Robespierre, ``Sur les principes du gouvernement r\'evolutionnaire, Textes Choisis, Tome troisieme, Editions sociales, Paris, 1958, pp. 98--109.
~^^2^^ Karl Marx, ``The Bourgeoisie and the Counter-Revolution'', Karl Marx, Frederick Engels, Collected Works, Vol. 8, Progress Publishers, Moscow, 1977, p. 161.
20 must themselves already have grasped what is at stake, what they are going in for, body and soul."^^1^^Lenin, characterising the Jacobin dictatorship, wrote: ``The Jacobins of 1793 have gone down in history for their great example of a truly revolutionary struggle against the class of the exploiters by the class of the working people and the oppressed who had taken all state power into their own hands."^^2^^
In the context of the political struggle of the proletariat, Lenin recognised the necessity of the ``plebeian manner" to dispose of the Russian autocracy,^^3^^ but he emphasised that ''. . .this, of course, does not mean that we necessarily propose to imitate the Jacobins of 1793, and borrow their views, programme, slogans, and methods of action. Nothing of the kind. Our programme is not an old one, but a new---the minimum programme of the Russian SocialDemocratic Labour Party."^^4^^
In this connection, one should note an essential feature of the policy of the Jacobin dictatorship which has assumed international legal importance: The French Jacobin government systematically turned down all proposals for methods of individual terrorism to be applied against hostile kings and military commanders (projects of tyrantkillers), while the royalists did not miss a chance to _-_-_
~^^1^^ Karl Marx, ``The Class Struggles in France, 1848 to 1850'', K. Marx and F. Engels, Selected Works in three volumes, Progress Publishers, Moscow, 1973, pp. 199--200.
~^^2^^ V. I. Lenin, ``The Enemies of the People'', Collected Works, Vol. 25, Progress Publishers, Moscow, 1977, p. 58.
^^3^^ V. I. Lenin, ``The Third Congress of llie K.S.D.L.P.'', Collected Works, Vol. 8, 1973, p. 393.
~^^4^^ V. I. Lenin, ``Two Tactics of Social-Democracy in the Democratic Revolution'', Collected Works, Vol. 9, 1977, p. 59.
21 commit an act of terrorism against leaders of the Jacobin dictatorship.By its place in history, the French Revolution was a bourgeois revolution, just like the bourgeois revolutions that had preceded it in the Netherlands and in England in the 17th century, but by its determination and methods of violence, it surpassed those revolutions because of the intensity of class contradictions in France. The French Revolution fought the forces of reaction by establishing a dictatorship which consisted of a Convent; a Committee of Public Salvation which acted as a revolutionary government vested with unlimited powers; a Committee of Public Security, the repressive organ of the Jacobin dictatorship; a Revolutionary Army created by decree of September 5, 1793, to deal with those responsible for the hoarding of goods and black-marketing of primary necessities. The units of the revolutionary army usually comprised a revolutionary tribunal which had a guillotine at its disposal; revolutionary committees operating as local bodies of the dictatorship; a system of revolutionary tribunals which had a simplified pattern of proceedings to follow so as not to last more than 24 hours. The procedure was based on the principle of revolutionary expediency, taking into account the defendant's social origin.
Consequently, the action of the revolution in France during that period differed from individual terrorism just as mass struggle differs from sporadic acts.
Bourgeois students have more than once attempted to define terror as well as to classify its individual types, bringing up the matter in order to suppress the political struggle of the subject people. That tendency showed itself most in the deliberations of the international 22 conferences for the unification of penal law. Terrorism was interpreted in the resolution adopted by the Third Conference^^1^^ as action capable of breeding social danger.
Official speaker on terrorism at the Fourth Conference,^^2^^ Professor Radulescu of Romania declared that terrorism showed itself primitively in the explosions of bombs and similar devices capable of causing a great loss of life and property. Professor Radulescu, explaining his view of the substance of terrorism, said that it implied encroachments undertaken with a view to violent destruction of all political and legal organisations of society.
Academician A. N. Trainin of the USSR, criticising that viewpoint, rightfully pointed out that, to follow it, it was the encroachments on the dominant social system and the capitalist order that were to be declared acts of terrorism in the sense of unification conferences and acts vindicating international intervention under the rules of criminal law.^^3^^ We share the view of L. N. Galenskaya of the USSR that ``international measures taken in capitalist society are not directed at eradicating the basic causes of crime and, for that reason alone, are of limited vallue and little productive".^^4^^
One article of interest has been that of Georg Schwar/enberger of Great Britain, ``Terrorists, Hijackers, _-_-_
~^^1^^ Third Conference met in Brussels in 1930.
~^^2^^ Fourth Conference met in Paris in 1931.
~^^3^^ A. N. Trainin, ``Defence of Peace and Criminal Law'', Selected Works, Nauka Publishers, Moscow, 1969, p. 56 (in Russian).
~^^4^^ N. Galenskaya, International Anti-Crime Action, Mezhdunarodniye Otnosheniya Publishing House, Moscow, 1972, p. 150 (in Russian).
23 Guerrilleros and Mercenaries".^^1^^ Reviewing a wealth of factual material, he analysed the substance of these notions. The article laid particular stress on the status of guerrillas in the event of an international or domestic armed conflict as well as the existing standards of international law in respect of unlawful interference in the operations of air services. The author of the article analysed the Resolution 2548 adopted by the Twenty-Fourth Session of the UN General Assembly on December 11, 1969, which qualified the use of mercenaries against national liberation movements as punishable criminal offences and declared the mercenaries themselves outlawed. In our opinion, it was unjustified for such a study to treat terrorists as a separate group since an act of terrorism can be committed by a combatant in the context of an international or internal conflict, by a mercenary or by any civilian for that matter, etc. Unlawful interference in the operation of air services may also contain some elements of an act of terrorism.It is quite obvious that the combatants or mercenaries are what they are in virtue of their status whereas terrorists are the doers of an act of terrorism.
During UN discussions of ``international terrorism" in 1972--1973, bourgeois jurists again attempted to exploit this problem in furtherance of their own class interests so as to declare the national liberation struggle to be unlawful and to extend the notion of an ``act of terrorism" to cover up action taken in the course of the national liberation struggle.
In present-day bourgeois studies, terrorism is defined as _-_-_
~^^1^^ Current Legal Problems, Vol. 24, London, 1971, pp. 257--82,
24 ``the product of fanatical violence perpetrated generally in order to realise some political end to which all humanitarian or ethical beliefs are sacrificed'',^^1^^ as ``a faulty weapon that often misfires'',^^2^^ and as ``an instrument for accomplishing different objectives'',^^3^^ etc.The definitions just quoted do not show up the substance of terrorism and its objective. The classification of terrorism by bourgeois writers makes their stand on the issue clearer.
The Fifth Conference^^4^^ for the Unification of Penal Law heard it argued that it was not political terrorism that must be the object for the conference to consider, but social terrorism since the latter was directed against the economic organisation of contemporary society.
A modern author, Paul Wilkinson of Great Britain has pioducecl the following classification:
1) war terror (various ways of terrorising the population by all kinds of weapons as bows, firearms, bombs, etc.;
2) repressive terror (action of the machinery of suppression) ;
3) revolutionary terror;
4) sub-revolutionary terror (acts committed, in Wilkinson's opinion, out of political and ideological _-_-_
~^^1^^ Paul Wilkinson, op. cit. p. 292.
~^^2^^ Robert Moss, Urban Guerrillas, Temple Smith, London, 1972, p. 64.
~^^3^^ Assassination and Political Violence. A Report to the National Commission on the Causes anil Prevention of Violence by James F. Kiikham, Sheldon G. Levy, William J. Grotty, U.S. Government Printing Office, Washington, 1969, p. 421.
~^^4^^ The Conference met in Madrid in 1933.
25 considerations, not part of a campaign to seize control of a state).^^1^^Felix Gross, USA, has found it necessary to make a clear distinction between:
1) struggle and violence against domestic autocracy;
2) violence against foreign conquerors who exterminate nations or enslave peoples, and
3) violence waged against democratic institutions, as was done by the fascists, Nazis, and their satellites.^^2^^
In his general characterisation of terror, Gross divides it into ``five major strategic types":
1) tactical (punishment, retribution, damage of government),
2) random,
3) random-focussed,
4) mass terror,
5) dynastic assassination.^^3^^
The classifications just given are so eclectic as to cover terrorist acts as well as guerrilla activity and political assassination, and the terrorism of the machinery of the state to suppress the opposition, and psychological aspects of the action of this or that kind of weapon. These classifications lack any system approach, although in some cases they objectively reflect the existing distinctions between acts of terrorism by the doer and by the object they are committed against, and exhibit their political substance. For instance, revolutionary terror, mass terror, repressive terror, etc. This circumstance is due to the absence of uniform methodology at the root of this investigation and _-_-_
~^^1^^ P. Wilkinson, op. cit., pp. 293--308.
~^^2^^ Assassination and Political Violence,. p. 422.
~^^3^^ Ibid., p. 432.
26 a theory of violence in history in general and that of terror in particular.Belgian author, Pierre Mertens writes, analysing a number of international legal documents, that although they refer to terrorism, this notion is, nevertheless, left undefined. Moreover, acts of terrorism have a different meaning in time of peace and of war. In the latter case ``they come within the framework of jus in hello and denote the practices which appear to be uselessly cruel or odious, and are eventually interpreted as war crimes, crimes against humanity, or infringements of humanitarian law''. In peacetime, however, there have been acts of terrorism directed against the terror of States (as in Spain under Franco, or under the military dictatorship in Greece) and therefore ``if one condemns terrorism, one should condemn all types of terrorism".^^1^^
A series of articles and books dealing with the problem of terrorism have appeared in capitalist countries in recent times, notably, Terrorism: Theory and Practice (edited by Jonah Alexander, David Garlton, and Paul Wilkinson, Westview Press, Boulder, Colorado, 1979). It has been prepared by the Institute for Studies in International Terrorism at New York State University. In the first part of the book, ``Overview'', Leon J. Banker Jr., Bownan H. Miller and Charles A. Russell define terrorism as ``the threatened or actual use of force or violence to attain a political goal through fear, coercion, or intimidation".^^2^^ The roots of modern terrorism, as they see it, reside in the _-_-_
~^^1^^ Pierre Mertens, ``L'`introuvable' acte de tenorisme''. In R\'eflexions sur la definition et la repression du terroriime. Editions de TUniversite de Bruxelles, 1974, pp. 36, 49.
~^^2^^ Terrorism: Theory and Practice, p. 4.
27 student and radical movement of the 60s, which was directed against the establishment. It is interesting to note that the authors list precisely those countries of heightened terrorist activity which had capitalist contradictions at their sharpest in the 60s and 70s: Italy, Spain, Iran, the countries of Latin America, Greece, Turkey, the countries of South Asia, and the US. The danger of terrorism in the future, the authors believe, can rise on account of the extreme complexity of the problem of defence against terrorists who use the advantage of surprise action and also because all modern technical facilities, including missiles, are coming within the terrorists' reach.This study offers :i classification of terrorist groups: nationalistical'ly separatist; ideological (the authors `` amalgamate" Marxist, leftist and fascist ideologies under one heading), and nihilistic, which include criminal elements and are prone to destruction.
In the chapter ``Terrorist Movements'', Paul Wilkinson defines terrorism as a poilicy or process consisting of three basic elements: ``1) the decision to use terrorism as a systematic weapon; 2) the threats or acts of extranormal violence themselves; 3) the effects of this violence upon the immediate victims ... and the wider national and international opinion..."^^1^^
The scientific estimates of the study are crowned by the chapter ``The Legalisation of Terrorism" which puts the blame for the impunity of terrorists on ... the UN, since ``there is no accepted definition of self-determination and national liberation, although a number of rebel organisations have described themselves as national liberation _-_-_
~^^1^^ Ibid., p. 99.
28 movements''. The author considers the official recognition of the Palestine Liboratioii Organisation (PLO) by the UN and 115 nations of the would (at that time) and the UN attitude to liberation organisations in action against racist icgitnes to be an example of the ``legalisation'' of terrorism, lie holds that ``international law has granted legal status to terrorists and legalised their terrorist activities".^^1^^Obviously, one cannot accept such an approach. First of all because it is contrary to fact and because such a classification and the assessment of UN activities are not objective but politically coloured condemning as they do the national liberation movement and whitewashing the terrorist actions of reaction against the left forces and against the national liberation movement itself. This was stated quite clearly by Fidel Castro, First Secretary of the Central Committee of the Communist Party of Cuba, when he addressed the 26th Congress of the CPSU: ``At present the Yankee imperialists are also trying to equate with terrorism the national liberation movement and the struggle of the peoples for social change. For them to be a revolutionary, to be simply a progressive or to struggle for democracy, is to be a terrorist. With these fallacies and lies they abandon totally the fig leaf of defending human rights and proclaim themselves once again, without any shame whatever, as the world's policeman."^^2^^
Speaking of the relation of terror and violence and of the Bolshevik Party's stand on the matter, Lenin wrote: _-_-_
~^^1^^ Ibid., pp. 187, 193.
~^^2^^ The Words of Friends, Progress Publishers, Moscow, 1982, p. 45.
29 ``... At all events, we are convinced that the experience of revolution and counter-revolution in Russia has proved the correctness of our Party's more than twenty-year struggle against terrorism as tactics. We must not forget, howevei, that this struggle was closely (ounce ted with a i nthless struggle against opportunism, which was inclined to repudiate the use of all violence by the oppressed classes against their oppressors. . . We have regarded the armed uprising not only as the best means by which the proletariat can retaliate to the government's policy, but also as the inevitable result of the development of the class struggle for socialism and democracy."^^1^^Here is one fact of common knowledge: in October 1916, an Austrian Social-Democrat Friedrich Adler killed the Prime Minister of Austria, Karl Stiirgkh. Commenting on this, Lenin pointed out in one of his letters to Vienna that ``we stand, naturally, by our old conviction, confirmed by experience over decades, that individual terrorist acts are inexpedient methods of political struggle. . . Only the mass movement can be considered genuine political struggle."^^2^^
The objective character of violence is due to the antagonism of the contending classes while the subjective character (the forms, timing and victims) is determined by the prevailing conditions of a particular country, above all, the resistance of the class against which the social struggle is conducted, r.e , violence destroys the structure _-_-_
~^^1^^ V. I. Lenin, ``Speech at the Congress of the Social-- Democratic Party of Switzerland, Nov. 4, 1916'', Collected Works, Vol. 23, 1964, p. 123.
~^^2^^ V. I. Lenin, ``To Franz Koritschoner, October 25, 1916'', Collected Works, Vol. 35), 1976, p. 238.
30 of outgoing societies in history and in that way undermines the foundations for the existence of the classes and groups clinging to the outgoing order.So, one should distinguish individual tenor; the tenor of the class struggling lor powei; the terror ot the class in power; revolutionary terror and counter-revolutionary terror.
The policy of individual terror is peculiar to the pettybourgeois groups and those sections of intellectuals who do not have the support of a particular class to rely on. The feeling of despair caused by the political doom of the petty-bourgeois sections of the community, either conscious or unconscious, always induced representatives of those groups to commit such acts.
These sections were petty-bourgeois not because of the origin of the exponents of these ideas, since they couild come from the bourgeoisie as well as the working class, but because of the aims of their movement and their subjective analysis of historical events.
Revolutionary thinkers, who stood by historical materialism, rejected terror as a motor of the social process. Georgi Plekhanov gave the following assessment of Herzen's position in his work A. I. Herzen and Serfdom:
``The young revolutionaries also did not like Herzen's disapproval of the tactics of assassination or terror, as it was called later. . It will be more appropriate to note that, in rebelling against Herzen, the young revolutionaries merely magnified an error that had crept into his own philosophy of Russian history".^^1^^
_-_-_~^^1^^ Georgi Plekhanov, ``A. I. Herzen and Serfdom'', Selected Philosophical Workf in five volumes, Vol. IV, Moscow, Progress Publishers, 1980, p. 631.
31Describing the social roots of terrorism, Plekhanov pointed out that ``so-called terrorism is not a proletarian method of struggle. The true terrorist is an individualist by nature or by 'circumstances beyond his control'."^^1^^
However, it was Lenin who produced the fullest ever assessment of individual! terror and its social roots as well as the character of ``circumstances beyond one's control" in his work ``Some Features of the Present Collapse":
``.. .And it is extremely important to grasp the truth, confirmed by the experience of all countries which have undergone the defeat of a revolution, that one and the same psychology, one and the same class peculiarity (that of the petty bourgeoisie, for example) is displayed both in the dejection of the opportunist and in the desperation of the terrorist."^^2^^
Consequently in assessing individual terror, one must emphasise two aspects of this phenomenon:
---first, that this method of political struggle is foredoomed because it is subjective;
---second, its partisans, because of this circumstance, are inclined to be maximalistic in their judgement and action.
It is precisely this idea that Lenin stressed when he said that "terrorism was the result---and also the symptom and concomitant---of lack of faith in insurrection, of the absence of conditions for insurrection."^^3^^
Consequently, terror tactics as the essential means _-_-_
~^^1^^ Georgi Plekhanov, op. cit., Vol. V, 1981, p. 467.
~^^2^^ V. I. Lenin, ``Some Features of the Present Collapse'', Collected Works, Vol. 15, 1963, p. 152.
~^^3^^ V. I. Lenin, ``The Present Situation in Russia and the Tactics of the Workers' Party'', Collected Works, Vol. 10, 1978, p. 117.
32 chosen by a particular movement attests, first and foremost, to its spontaneous character and its divorce from the masses.``The economists and present-day terrorists have one common root; namely subservience to spontaneity with which we dealt in the preceding chapter. . . the terrorists bow to the spontaneity of the passionate indignation of intellectuals, who lack the ability or opportunity to connect the revolutionary struggle and the working-class movement into an integral whole."^^1^^
Individual terror appears as intellectuals see the necessity of political struggle against the existing system. However, the absence of a Marxist understanding of this struggle makes it impossible for them to see the rising class of the proletariat or appeal to it, and, so have it as their historical base of support. Political terrorism, as Georgi Plekhanov put it, opened up an ``epoch of conscious political struggle against the government'',^^2^^ however, the positive character of this struggle quickly develops into negative since ``outside the workers there is no section that could at the decisive minute knock down and kill off the political monster already wounded by the terrorists."^^3^^
Subjectivism in theory, political assassination in practice, the role of the individual seen as an absolute value, these are the features that have always distinguished _-_-_
~^^1^^ V. I. Lenin, ``What Is To Be Done?'', Collected Works, Vol. 5, 1977, p. 418.
~^^2^^ Georgi Plekhanov, ``Socialism and Political Struggle'', Selected Philosophical Works in five volumes, Vol. I, 1977, p. 50.
~^^3^^ Georgi Plekhanov, ``Our Differences'', Selected Philosophical Works in five volumes, Vol. I, p. 353.
__PRINTERS_P_32_COMMENT__ 3---2351 33 individual terror as a method of struggle and, naturally, ideas of this kind have earned support in petty-bourgeois quarters and among intellectuals expressing their interests.The story of Narodnaya Volya and, subsequently, the activities of the Party of Socialist-Revolutionaries provide cogent evidence to bear that out. In the twilight of Narodnaya Volya, one of its theorists, Stepniak-Kravchinsky had to admit that a victory, immediate, splendid, and decisive, such as that obtained by an insurrection, was utterly impossible by means of Terrorism.^^1^^
Consequently, it is upon the realisation of their impotence in front of their class enemy and because they have no real mass base of support and set themselves reckless aims prompted by these two factors that both the revolutionary and counter-revolutionary movements began to count on individual terrorism.
It is necessary to stress that the Bolshevik Party always stood by positions of principle in its approach to individual terror. The Second Congress of the Party (1903) passed the following resolution:
``The Congress decisively rejects terrorism, i.e., the system of individual political assassinations, as being a method of political struggle which is most inexpedient at the present time, diverting the best forces from the urgent and imperatively necessary work of organisation and agitation, destroying contact between the revolutionaries and the masses of the revolutionary classes of the population, and spreading both among the revolutionaries themselves and _-_-_
~^^1^^ Stepniak, Underground Russia, London, Smith, Elder & Co., 1883, p. 278.
34 the population in general utterly distorted ideas of the aims and methods of struggle against the autocracy."^^1^^There can be situations in the context of the struggle of the masses led by the class that expresses their interests where class terror becomes one of the forms of organised violence but what distinguishes this terror, above all, is its enforced character as a reply to terrorist forms of violence by the resistant class.
It is because it had to suppress the class of exploiters and, above all, the terror unleashed by counter-revolution and to react to it that the working class resorted to the formidable deterrent of terror. For instance, Red terror was declared in reply to White terror during the Civil War, following the 1917 October Socialist Revolution.
These terms underlined the intensity of the class struggle for power. In this connection, Lenin wrote in his `` Letter to the British Workers": ``Our Red terror is a defence of the working class against the exploiters, the crushing of resistance from the exploiters."^^2^^
The proletariat used Red terror not only owing to the bitter political struggle, but because it had to suppress the economic resistance of the exploiter classes of town and country. For instance, selling bread at blackmarket prices at the time of War Communism was occasionally punished by death penalty while the White Army soldiers and officers, taken prisoner, were not subject to execution if they had not participated in executions and punitive operations.
_-_-_~^^1^^ V. I. Lenin, ``Second Congress of the R.S.D.L.P.'', Collected Works, Vol. 6, 1974, p. 472.
~^^2^^ V. I. Lenin, ``Letter to the British Workers'', Vol. 31, 1974, p. 142.
35Whenever terror is put forward as an independent type of action divorced from the class political struggle and an end in itself, Marxism categorically rejects such terror which degenerates into individual terror, a break-up of revolutionary forces and unjustified victims. Marxism rejects that terror because ``... only the mass movement can be considered genuine political struggle".^^1^^
Following the assassination of the Portuguese king in 1908, Lenin, expressing his sympathy for the brave men who had removed the ``king who mocked the Constitution'', wrote: ``We regret that in the happening to the king of Portugal there is still clearly visible the element of conspiratorial, i.e., impotent, terror, one that essentially fails to achieve its purpose..."^^2^^
Never in the history of the Marxist working-class movement in Russia, not even in the context of ruthless terror of the tsarist secret police (particularly after the defeat of the first Russian revolution of 1905) has any act of terrorism been planned or committed against any member of the tsarist government or the tsarist household, or against any official of the Russian Empire for that matter on the territory of a foreign state. The history of the SocialistRevolutionary Party, notably its left wing, has one act of terrorism on record which had far-reaching international consequences---the assassination of the German Ambassador, Wilhelm Mirbach, on the Embassy's territory, in July 1918 with the aim of provoking war between Germany and Soviet Russia.
_-_-_~^^1^^ V. I. Lenin, ``To Franz Koritschoner'', Collected Works, Vol. 35, p. 238.
~^^2^^ V. I. Lenin, ``The Happening to the King of Portugal'', Collected Works, Vol. 13, 1972, p. 472.
36The entire history of the world communist movement demonstrates its consistent and emphatic rejection of terror as a method of struggle, and all the more so the terror that has international implications, which is directly connected with the concept of condemning the export of revolution and the export of counter-revolution.
The terror of the extreme ``left'', an Argentine political journalist, Fernando Nadra, believes, is an expression of their petty-bourgeois ideology and adventurism. World and national experience goes to show that terror does damage to the cause it is claimed to defend, engenders the people's disaffection; splits the revolutionary ranks, divides the masses and separates itself from the masses, teams up with right-wing forces in spite of internal distinctions of trend and shade; leaves the reactionary elements free to justify intensified reprisals against the working class and the people, against all democratic and anti-imperialist forces.
Fernando Nadra rightfully notes that, for example, in Argentina it is the extreme right groups, pro-fascists or flunkeys of imperialism, militarised bands of mercenaries ransacking the republic that are principally responsible for the vast majority of crimes rocking the nation. And they direct their crimes and threats, above all, against left activists, peronistas, Communists, radicals, socialists and representatives of other trends, against the fighting workers, against the military, against the teachers, scientists, creative artists, young people and students who are engaged in some useful occupation, defend the nation or fight against imperialism and oligarchy.
The history of terrorism has been closely bound up with the history of violence. The institution of violence 37 appeared on the historical stage along with the appearance of contradictions which essentially meant that it was impossible to resolve any of them without some exponents of these contradictions being suppressed by others. Economic, political, and even ideological contradictions can be taken as so many excuses for the exercise of violence.
Violence can find expression in:
1) direct action aimed at the physical destruction or suppression of the object of violence (military operations, reprisals, penalties provided for by the legal system of the state, and individual acts of the use of force);
2) political or economic coercion which does not express itself in every single case in the particular standards and provisions of administrative, civil or criminal law, but may also be incorporated in the very system of the state, or social-economic formation (apartheid, fascism).
The necessity of violence in history is determined by the existence of contradictions which are impossible to resolve through a compromise arrangement between the exponents of these contradictions: states, classes, or individuals. Besides, the combinations of these contradictions by the subject principle can be entirely different: the state---individual; the state---class or ruling class-oppressed classes and sections of the community; individual---class; class---class, provided neither is the ruling one; and individual---- individual.
It is not the concern of this book to consider the question of violence in general and that of the role of violence in history and, notably, at the present juncture, since this subject requires a special investigation. We shall limit ourselves to stressing the point that the forms and methods 38 of using violence change depending on the intensity of contradictions.
Terror is used as a method of violence while terrorism is the application of this method through individual terrorist acts.
By its character, terror differs from the revolutionary movement of the mass of the people, which is aimed straight at fundamentally changing society. An act of terrorism, even if its long-term objective is to draw attention to a particular political cause or situation, has something relatively limited, if important, as its immediate target, as raising money to meet the needs of the political struggle, obtaining the release of political prisoners, spreading general terror, removing a "strong personality'', showing up the impotence of government authorities, or provoking reprisals which can have the effect of dividing public opinion.
Consequently, a terrorist usually cannot directly achieve the ultimate objective he has announced.
As shown earlier on, typical features of an act of terrorism are: violent action in any of its diverse forms capable of attracting the attention of the general public; a political motive underlying the commission of a terrorist act; the fact that the act itself is directed against a group of persons, classes or a state, as well as individuals representing their interests; as a rule, the absence of an opportunity to achieve the declared ultimate objective of a terrorist act.
So, a terrorist act should be seen as violent action against an individual!, a group of individuals, a class or representatives of the authorities of a state, designed to intimidate or compel the latter to fulfil the demands and objectives underlying the commission of a terrorist act.
39Professor I. I. Karpets writes: ``Terrorism is international or internationally intended national organising or other activity aimed at creating special organisations and groups to commit murder, use violence and take people hostage for a ransom or other demands; forcible deprivation of freedom, often involving torture, blackmail, etc.; terrorism can also mean the destruction of buildings, their ransacking and similar acts."^^1^^
The particular feature of the present time is direct and active use of terrorist action by imperialism and, notably, by its secret services, as the CIA of the US. The Italian Panorama magazine wrote back in 1978 that the US had quite openly warned the Christian Democratic Party against the inclusion of the Communist Party in the government majority. But the GDP did not heed the warning, and it was Moro who was responsible for its action in this sense. Moro is known to have been killed. The magazine wrote that the CIA was the only intelligence service whose outright intervention in Italian politics had been proved by the US Congress and its murderous and violent acts with a view to changing the domestic political situation had been widely demonstrated in other countries, from Greece to Chile. Disclosures of US intervention in the internal affairs of Chile have produced a lot of examples of terror politics organised and pursued by the CIA in that country.
Chilean anti-fascist General Carlos Prats, former President of Bolivia General Juan Jose Torres, an Uruguayan _-_-_
~^^1^^ I. Karpets, Crimes of International Significance, Moscow, Yuridicheskaya Literature, 1979, p. 98 (in Russian).
40 attach\'e in Paris, former Uruguayan MP Michelini, and a number of Paraguayan democrats have been killed by fascist bands.Emma Obleas de Torres, the widow of the ex-President of Bolivia assassinated in 1976, has pointed out that disclosures coming daily from the police of certain Latin American countries confirm the existence of a supranational organisation aiming to wipe out the democrats of the Western Hemisphere.
Recurrent assassination attempts on President Samora Machel of Mozambique and Fidel Castro are also quite typical. US secret services have been reported to be giving much of their attention to Afghanistan, Angola and Kampuchea where the CIA has been building up its support for the invading bands which are terrorising the civilian population.
Internationalisation of the terrorist activities of imperialism is based on the concept which has been set out quite clearly in the so-called Confidential Manual of the US Armed Forces and served as a guide to action for Chilean fascists in 1973. This manual says, in particular, that extreme violence against popular forces, mass round-ups, raids, any of the most cruel means to intimidate the people and give a shock to them in one way or another are an earnest of success of a coup or removal of an unwelcome government.^^1^^ A member of the military fascist junta, General Gustavo Leigh declared in public that it _-_-_
~^^1^^ See: Elisabeth Reimann Weigert, Fernando Rivas Sanchez, Las fuerzas armadas de Chile: Un caso de penetracion imperialista, Ediciones politicas, Editorial de ciencias sociales, La Habana, 1976, pp. 69--70.
41 would be necessary: ``To massacre one-third of the ten million Chileans to eliminate Marxism."^^1^^A secret document, FM 30--31, compiled by US General Westmoreland, as the Italian Panorama magazine revealed in July 1981, said, in particular, that to control the political situation in a country, above all, in the countries which had American military bases in them, it was necessary to maintain secret contact with terrorist organisations so as to create a situation of political instability in any of those countries whenever necessary. That implied the participation of armed stooges in demonstrations to stir up trouble and provoke clashes with police, actions aimed at discrediting the authorities and the police, penetrating government offices, organising explosions, and killing policemen. In July 1981, the Minister of Defence of the Philippines, Juan P. Enrile declared that there was a training centre in operation in California for terrorists to be smuggled into the Philippines to conduct subversive activity. Another centre of this kind is situated outside Phoenix, Arizona. The Philippine press has unequivocally indicated that the extreme right organisation, the Movement for the Free Philippines, responsible for terrorist actions, is financed by the CIA.
There were 31~bomb explosions in that country in August through October of 1980, with the victims of terrorism exceeding 60. An explosion was staged at a ceremony attended by President Ferdinand Marcos on October 19.
The Washington Quarterly published some confessions by former CIA chiefs, Richard Helms, George Bush, and _-_-_
~^^1^^ Le Monde, 10 October 1973.
42 William Colby in early 1981 where they admitted unequivocally that the CIA had carried out large-scale operations back in the 50s to wipe out the left forces in the Philippines.These are the facts and, whatever the representatives of bourgeois science and politics may write and say, they will never succeed in discrediting the profoundly humanistic position of the Communists consistently acting against terror and consistently pressing for a policy of cooperation of nations in action against international terrorism, guiding themselves by the universally recognised principles and standards of international law.
The wave of terrorism which has swept across the world in recent years has generated a multitude of opinions, assumptions and prescriptions for suppressing it as well as universal condemnation. One thing is obvious: the threat of destabilisation, the threat to the normal development of international relations and the acts of terrorism which mean destroying hundreds of innocent people and damaging property cannot but arouse serious concern and prompt the urgent need to work out the ways and means of effective action against this grave criminal offense of an international character.
It should be noted that an analysis of particular terrorist acts brings one to the conclusion about the close connection of terrorism with extreme reactionary forces striving to prevent the implementation of the policy of easing international tensions, exacerbate the armed conflict and strike at the democratic development of a number of countries.
In recent times, the issue of ``international terrorism" has come to be used by the US Administration as an 43 ideological excuse for anti-Sovietism and for action directed against the national liberation movement in Africa, Latin America and Asia, as well as for intervention in the internal affairs of independent states. For example, the then US Secretary of State Alexander Haig declared at a press conference on January 28, 1981, that the Soviet Union was preparing, financing and equipping international terrorism. A State Department spokesman described as `` international terrorism" what ``the Russians call wars of national liberation''. That was yet another act of provocation designed to dominate an anti-Soviet campaign with several objectives before it: first, to try and defame the peace policy of the Soviet Union and charge it with what it has never done, since the USSR has been always and consistently speaking up against terror in every shape or form; second, misrepresent the sum and substance of the national liberation movement, label it as ``international terrorism" and, consequently, qualify the offer of assistance to it by progressive states as support for ``international terrorism'', and third, to gain a free hand, on the grounds of having to combat ``international terrorism'', for intervention in the internal affairs of other nations, above all. those where reactionary and fascist regimes are crumbling under the pressure of the just struggle of the masses.
The US Administration has found allies in Europe as well. President Alessandro Pertini of Italy, speaking over French television, went as far as to claim that the Red Brigades in Italy were under control from the Soviet Union. And although this lie had been laid bare in Italian parliament, which discussed the possible connections of Italian terrorists ``with foreign elements'', although neither the Ministry of the Interior, nor the Ministry of Foreign 44 Affairs had produced any evidence of those ``connections'' and, moreover, when the discussion revolved around specific evidence of the connections of Italian terrorists with a right-wing French organisation, Action Directe, newspapers kept on repeating the lie. And that was not the first attempt of reactionary elements to accuse the Soviet Union of ``connections with international terrorism".
Regardless of all the attempts of anti-socialist forces to exploit the issue of ``international terrorism" for an offensive against the forces of democracy and progress, the problem of ``international terrorism" is, by itself, a real problem of international relations.
It is possible to specify, in relative terms, the following trends of terrorism---right-wing, fascist-like and leftist; terrorism organised by the State and its agencies, and terrorism practised by private individuals or organisations, nominally and in a wide range of instances actually unconnected with any State whatsoever. It must be noted that the attitude to these trends of terrorism, outwardly in any case, is unidentical, although they are all paying for imperialism and reactionary forces. Right-wing terrorism is using as its theoretical foundation the notorious racist and fascist theories and rabid anti-communism. Right-wing terrorism is, in all cases, directly aimed against democracy and social progress. It has always been used, and is being used today more than at any time before, by the reactionary forces of imperialist states, both inside and outside these countries, against democracy and progressive regimes of other countries, against the national liberation movement. Fighting against socialist countries, the international communist and working-class movement is one of the top priorities of right-wing terrorism.
45One may well state that right-wing terrorism is operating with virtual impunity and, as the facts quoted in the Western press indicate, it has the support of monopoly quarters and official authorities of a number of capitalist states. What strikes the eye is generous financial support for right-wing terrorist organisations and just as generous arms supplies for them.
In the United States, for example, there are terrorist organisations in action with impunity, such as the Omega-7 or the Jewish Defence League which are well known to have committed terrorist acts against Cuba, Chilean patriots, Arab and socialist countries. Since the tragic events in El Salvador in 1980, where bloody repression and terror as well as violations of human rights and freedoms have become widespread, it has come to light that a number of terrorist groups, like Union Guerrero Blanco (The Union of White Warriors), Escuadron de la Muerte (Death Squadron), Mano Blanco (White Arm) and the Salvadoran Anti-Communist Army have joined in an alliance subsidised by certain US quarters and transnational monopolies entrenched in that country and by local industrialists, latifundists and clericals connected with them.
One point to note at this juncture is the establishment of contact and creation of a kind of international alliance of right-wing factions. An international fascist conference in Barcelona in 1978 debated the issues of subversive action against the left forces in Western Europe. There are close on 200 old and new neo-Nazi organisations in operation in West Germany, for instance, which openly proclaim the resurgence of the fascist system to be their objective. The West German Minister of the Interior reaffirmed that the neo-Nazis maintained close relations with 46 kindred organisations in Italy, Belgium, France, Britain, the US and a number of Latin American countries, seeking to make their movement one of international importance. The Durand Affair^^1^^ exposed some facts shedding light on the character of the so-called World Union of National Socialists spreading out -through a number of countries of Western Europe. On the eve of the bomb-blast tragedy in Bologna, Paul Durand travelled free throughout Italy and had a series of meetings with local neofascists. The Italian Panorama magazine wrote that bloodthirsty Nazi and fascist murderers from Rome to Paris and from Madrid to Lisbon are linked together by an invisible rope, as it were. The neo-Nazis have been straining every nerve for years to put themselves in charge of the notorious World Anti-Communist League. A branch office of the League, established in Western Europe, brings together neo-Nazis from Austria, Belgium, the Netherlands, Norway, West Germany, Sweden, Britain and France which constitute a kind of subsidiary of the fascist World Union of National Socialists. At the present time, the neo-Nazis are trying to lay hold on the League's branch offices in southern Africa and Southeast Asia.
Links between European right-wingers and their American counterparts have increased in recent times. The members of the British National Front, West German neoNazis and French right-wing extremists have been training in Alabama. They have Army units billeted in Europe as their connecting link, the Neue Revue of Hamburg has reported.
_-_-_~^^1^^ Paul Durand----Paris police officer, was active in one of the fascist Action Directe groups as a liaison officer between Italian and French fascists.
47As to leftist terrorism, it is not a black-and-white entity by its political complexion. The theoretical base of leftist terrorism is an eclectic mixture of anarchism, Trotskyism and fascism. One of the theorists of leftist terrorism, Carlos Marighella, a Brazilian, has defined its object as one of democratising public life. Although leftist terrorists do talk of righting against the capitalist scheme of things, they are objectively, and often subjectively helping reactionary forces strike out against the revolutionary movement and democracy. One has to bear in mind, besides, that leftist terrorism is widespread in the world today and practised through inherently cruel and variously designed and devised acts of encroachment evoking strong public protest. The world had borne witness to many such acts, such as blowing up airliners, killing politicians of most diverse orientations, planting bombs in government and public buildings, attacking the embassies of capitalist, and socialist countries and kidnapping diplomats. On the one hand, there is the terrorism that is strongly opposed by capitalist countries and which the developing nations and socialist countries are up against as well. On the other hand, there is leftist terrorism which quite often turns out to be a specific manifestation of protest against racism, colonialism, foreign occupation, poverty and despair. The Western press has been exploiting this in an attempt to discredit revolutionary ideas, the revolutionary movement, the theory and practice of social progress and of left forces in general, Marxism, first and foremost. Since it is chance persons that often fall victim to terrorism, imperialism, while declaring these offences to be common crimes, qualifies in exactly the same way any action by the working people in defence of their rights and interests.
48 __ALPHA_LVL2__ 2. ACTS OF TERRORISMIt is quite obvious that acts of terrorism affecting relations between States in one way or another, engendering tension between them, and provoking conflicts, implying interference in internal affairs, are particularly dangerous.
A US State Department official said that the US regarded as terrorism financial support for and the training of revolutionary groups acting against lawfully established regimes,^^1^^ and also the sale or transfer of weapons to these groups. That is just what the US has been doing in relation to El Salvador, Afghanistan, Angola, Mozambique and Cuba. The material of the Frank Church Committee, which confirmed US political and military intervention in the affairs of many nations, is noteworthy in this respect. These documents cover thirteen years of the CIA's terrorist activities in Cuba, in the Congo, in Vietnam, the Dominican Republic, Chile, Guatemala, Peru, Laos, Iran, Indonesia, and other countries. The British Daily Telegraph maintained in August 1981, referring to US sources, that the outstanding Congolese political ileader Patrice Lumumba was murdered on direct instructions from Washington.
President Lyndon B. Johnson described this trend in US foreign policy most eloquently when he admitted on July 30, 1973, that in the Caribbean, the US was operating a ``murder syndicate".^^2^^ The Reagan Administration has _-_-_
~^^1^^ World Marxist Review, Vol. 24, No. 7, July 1981, pp. 10--11.
~^^2^^ Quoted from Rodney Arismendi, ``Global Madness Once More''. In World Marxist Review, Vol. 24, No. 7, July 1981, London, p. 11.
__PRINTERS_P_48_COMMENT__ 4---2351 49 kept it up with a vengeance by plotting more assassination attempts on Cuban leaders and encouraging terrorist activities against any regime the US does not like.Even the hardened American press is trying to avoid being totally involved in the campaign against `` international terrorism" and has had to acknowledge the inconsistency of America's foreign policy.
A Special UN Session met in New York in September 1980, in the wake of the perfidious assassination of a Cuban diplomat Felix Garcia Rodriguez. ``I strongly condemn this senseless terrorist act'', the then UN Secretary-General, Kurt Waldheim, declared. He appealed to the US Delegation at the UN to help take all the necessary measures to guarantee the safety of the staff of the Cuban Delegation to the UN. Cuba's Ambassador to the UN, Raul Roa Kouri emphasised that ``criminals are openly operating in the US, they have their headquarters here, hold their gatherings and make their bellicose statements. They have already planted explosive devices in the building of the Cuban Delegation to the UN in New York. Their latest crime has become possible just because those guilty of previous acts of banditry have not been punished.'' This crime has been committed by the Omega-7 terrorist organisation with the CIA in the knowledge.
A number of serious American researchers have attempted to analyse terrorism as a phenomenon. A book called Terrorism: Threat, Reality, Response by Robert H. Kupperman and Darrell M. Trent appeared in 1979.^^1^^ _-_-_
~^^1^^ In 1979, Robert H. Kupperman was senior researcher of the Arms Control and Disarmament Agency, and Darrell M. Trent was assistant director and senior researcher at the Hoover Institution, Stanford University.
50 The authors of the book point out that ``terrorism is viewed as a very serious world problem by 90% of the American people, and a very serious domestic problem by 60%''. The ``internationalisation of the problem of terrorism" has been associated with the extension of the terrorists' zone of action as well as with qualitative changes in the terrorists' means and methods of action. Terrorists in West Germany had already threatened to use chemical munitions, and there has already been a case of iodine radio-isotopes spreading on a train. In West Germany terrorists have attacked lines of communication, in Spain and Argentina, radio stations, in France, Argentina and Spain---nuclear power plants. The book purports to charge the Palestine resistance movement with spreading terrorism worldwide, and with training terrorists for all kinds of activity---from ultra left to neo-Nazi. Along with that, to explain why the United States ``has been relatively untouched by the storm of terrorist activities of the past decade'', the authors refer to the absence of either a broad-based left, or a broad-based right and also to some specific features of American history and the social and psychological climate. This conclusion does not conform to the facts of reality. The past and present of US political life is racist terror, the activities of the Jewish Defence League and violation of elementary norms of international law as regards diplomatic representatives, officials and property of foreign nations. ``Relatively untouched'', all right, but terrorism does exist and assumes ever more menacing proportions in the US. Why? This question has remained unanswered in so vast a study. Speaking of the ``key sources for modern terrorism'', the authors refer to 1) ``the failure of rural Cuban-style guerilla warfare in Latin America...'' and 51 2) ``the major defeat of Arab forces against Israel in 1967, which led the Palestinians to abandon their reliance on the conventional military power of the Arab states in favour of various forms of terrorism''. This statement means passing the effect off for the social cause and making an ``objective analysis" in disregard of social reality. Charging the UN with inability to resolve the problem of `` international terrorism" because it has supported national liberation, the authors call for wider use of appropriate regional agreements and faster progress towards setting up an international court. Yet there are no legal classification, nor any principles of international law to underlie this kind of cooperation of nations in action against terrorist acts jeopardising the normal course of international relations.The Italian Panorama magazine procured some `` explosive" documents in July 1981. The documents were confiscated by Italian police as they arrested Maria Grazia Gelli, the daughter of Licio Gelli, founder and leader of the masonic P-2 Lodge, which we referred to earlier on. The FM 30--31 document we have already quoted from, said, in particular, that if the government showed itself to be ``passive and indecisive" in the face of the ``Communist threat'', American secret service agents should conduct special operations so as ``to let the government and public opinion of a friendly nation see the danger of Communism".
The US accused the Soviet Union of aiding and abetting "international terrorism": it did so to create a favourable moral and psychological atmosphere for the pursuit of its aggressive line in foreign affairs, directed against any form of the national liberation struggle. It is not by chance that ``terrorism'' should have been selected as an 52 instrument qf anti-Sovietism. The wave of violence has swept across practically all the Western countries in recent years. Almost daily acts of terrorism arouse fear and general condemnation and revulsion which the men in Washington wanted to channel against the Soviet Union and the communist movement.
One thing that is rather typical in this context has been the appearance of yet another fake in the US---a book by one Claire Sterling The Terror Network which has been loudly advertised in France, West Germany, Britain, Italy, Holland, Austria, Mexico, and Spain. Claire Sterling has been presented as a prominent expert on terrorism. However, this ``expert on terrorism" has not produced any substantive evidence either to bear out, even to some extent, the charge of terrorism against the Soviet State.
The latest attempt to tag the label of ``international terrorism" to the national liberation movement has nothing new about it, nor does it convince anybody at all, but, as the Inquiry magazine wrote in a review, neither Mrs Sterling herself, nor Mr Haig and Co. mentioned any of the widely known facts of the dramatic resurgence of rightwing terrorism in recent years.
Nor does the book mention the bomb explosion at the Bologna Railway Station which killed 84 and wounded 200 people, nor the bomb exploded by neofascists in Munich, killing 12 and wounding 215, nor the one that went off in a Paris synagogue killing four and wounding 15. Of course, Mrs Sterling has nothing to say about the terrorism of Cuban emigrants, or about the institutionalised ten01 ism of the ruling circles of Israel.
One of the objectives of Mrs Sterling's book, as indeed of the entire American campaign about ``international 53 terrorism'', is to try and justify the lifting of any restrictions on CIA operations.
It would seem that the seeds of the American propaganda campaign should have germinated immediately. Yet they have not. The former Deputy Director for Intelligence CIA and one-time Director of Bureau of Intelligence and Research of the US Department of State, Ray Cline made yet another attempt to convince the world community of Soviet involvement in ``international terrorism" at a press conference held in March 1981, upon the initiative of the Institute for Studies in International Terrorism at New York State University (Director of the Institute Alexander Jonah is concurrently on the staff of the Centre for Strategic and International Studies at Georgetown University).
Describing terror as a form of mini-war on an international scale, Ray Cline accused the Soviet Union of being the centre of propaganda of this doctrine and source of assistance in terms of training, arming, supplying communication facilities, lending diplomatic support, and providing cover and secret documents, that is, what Cline described as the infrastructure of terrorism. Cline also declared that Cuba, the German Democratic Republic, Czechoslovakia, the Democratic People's Republic of Korea, Libya, the People's Democratic Republic of Yemen, Syria and the PLO were encouraging and supporting terrorism.
More serious US politicians did not follow in the wake of the propaganda campaign of the new Administration. A former Attorney General, Ramsey Clark, who had attended the Second Session of the International Commission of Inquiry into the Crimes of Racism and Apartheid in Southern Africa (Luanda, January-February 1981), declared that it was totally wrong to put the liberation 54 movement on the same level with the terrorists because their objectives were diametrically opposite. The terrorists are, as a rule, either individualists, or groups in pursuit of their purely self-seeking ambitions, while the liberation movements are fighting for the freedom and independence of their peoples. They were upholding the destinies and interests of an entire nation, rather than of individuals. Those who pass nationalist movements off as terrorist would do well to relate their pronouncements to the actual realities. That was a very apt remark since it is quite obvious that it is extremely difficult for the men of the US military-industrial complex to analyse the real facts of present-day international life and to draw logical conclusions therefrom. The New York Times said bluntly that the US practically had no evidence to bear out the charge that the Soviet Union was training, arming and financially supporting international terrorists.
The Report of the CPSU Central Committee to the 26th Congress of the CPSU said: ``Adventurism and a readiness to gamble with the vital interests of humanity for narrow and selfish ends---this is what has emerged in a particularly 'bare-faced form in the policy of the more aggressive imperialist circles. With utter contempt for the rights and aspirations of nations, they are trying to portray the liberation struggle of the masses as 'terrorism'. Indeed, they have set out to achieve the unachievable---to set up a barrier to progressive changes in the world, and to again become the ruilers of the peoples' destiny."^^1^^
_-_-_~^^1^^ Documents and Resolutions. The 26th Congress of the Communist Party of the Soviet Union, Novosti Press Agency Publishing House, Moscow, 1981, p. 27.
55The ``struggle'' against ``international terrorism'', which has replaced the ``human rights campaign" in the United States, is integral to the so-called doctrine of ``linking'' the Soviet Union's behaviour with the questions of SovietAmerican relations and, above all, with the problem of strategic arms limitation. But, for one thing, it is impossible to link lie with fact, and, for another, the very concept of ``linkage'' does not work because every issue in international relations has its own particular area of application and can be effectively dealt with only within the limits of that area.
From the standpoint of international law, an attempt at organising an act of terrorism, its actual organisation or involvement in it as well as its commission come under it, if:
a) the form and methods of the commission of an act of terrorism are prohibited under international law or punishable in virtue of a custom which has acquired the value of jus obtio in international relations or must be prohibited as being contrary to the fundamental standards and principles of international law;
b) the object of violent action is accorded protection under international law or in virtue of a custom of granting such protection within the framework of international relations or the necessity of protection following from the basic principles of international law;
c) violent action has been committed by a subject of international law and is, therefore, to be considered within the framework of this system, or by a natural or legal person but in a situation presupposing international consequences which can be resolved and settled within the, framework of international law,
56The complexity of proper qualification and classification arises not only from the absence of a common understanding and definition of the very category of such a type of violent action as an act of terrorism but also from the fact that in this particular case, the terrorist act affects the system of international and national law, creating thereby the difficulties of application of one system's categories and principles to another.
When the Chairman of the US Senate Legal Committee, Strom Thurmond, instituted a Senate Subcommittee on Security and Terrorism, its Chairman, Senator Jeremiah Denton, Rep., one of the most conservative congressmen, said that the new definition of terrorism was that terrorism was the threat or use of violence aimed at achieving a psychological impact on a target group wider than its limmediate victims. This definition is delil)crately confusing national and international character of a terrorist act. It considers as terrorist acts also the operations in pursuit of ``military or paramilitary objectives or those of a rebellion'', if they "include terrorist acts''. The New York Times pointed out in this connection that some national liberation wars could, evidently, be classed within this category, according to the new definition. That is exactly the whole point of this definition which also means that any terrorist act of national character might at any moment be declared international with the ``blame'' for it to be put on the state against which the policy of blackmail or pressure is exercised.
There have been some interesting attempts at defining a terrorist act from the standpoint of international law.
Belgian researcher Eric David has defined the terrorist act as "any act of armed violence which, being committed 57 for a political, social, philosophical, ideological or religious end, violates, among the prescriptions of humanitarian law, those interdicting the use of cruel and barbaric methods, attack of innocent objects or objects of no military interest".^^1^^
The definitions of international terrorism as ''. . . terrorism including kidnapping, hijacking of aircraft, maiming, torturing or killing" or as acts of violence committed in violation of accepted standards and rules of international diplomacy or warfare cannot, in our view, be held accurate and full as definitions of acts within the meaning of international law.
All this underlines the imperative necessity of circumstantial classification and definition of the substance of terrorist acts as they affect international relations.
First of all, it should be noted that a terrorist act or a policy of terror in general can be practised both in peace and in wartime.
As to wartime, international law already provides for a series of standards to govern the prohibition and punishment of terrorist acts with regard to prisoners of war, civilians, combatants and non-combatants who will have stopped participating in hostilities even in the event of a conflict of other than international character; guerrillas and militia squads whose status while in captivity is held to be equivalent to that of war prisoners coming from standing armies, as well as in respect of cultural property during an armed conflict. These standards comprise:
_-_-_~^^1^^ Eric David, ``Le terrorisme en droit international''. In Reflexions sur la definition et la repression du terrorisme, Editions de 1'Universite de Bruxelles, Brussels, 1974, p. 125.
581. Charter of the International Military Tribunal (Art. 6, b, c).
2. Geneva Conventions of August 12, 1949, for the Protection of War Victims, and respectively:
---Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Arts. 2, 12, 13);
---Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Arts. 3, 12, 13);
---Geneva Convention relative to the Treatment of Prisoners of War (Arts. 3, 4, 13, 27, 32, 33).
3. The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, concluded under UNESCO auspices in 1954.
4. The Convention on Non-Applicability of Statutes of Limitation to War Crimes and Crimes Against Humanity of 1968, which was considered to be an indispensable procedural addition to the standards of international law directed towards the suppression of war crimes and crimes against humanity.
Considering that the issue of preventing terrorism as it affects international relations has arisen in the context of peacetime^^1^^ and that large sections of the world community want to see the issue of ``international terrorism'' dealt with because of the wave of terrorist acts in recent times, it is advisable to have a closer look at this problem as it stands in the context of peaceful time. The need for such _-_-_
~^^1^^ For instance, terrorist acts occurring in the context of the unresolved crisis in the Middle East have been mostly committed outside the theatre of military operations and not against war prisoners of the belligerent countries.
59 primary classification has been acknowledged in most of the works which, in one way or another consider terrorist acts within the scope of international law.^^1^^In peacetime, a terrorist act can be committed by the authorities of a State in respect of some of its citizens with a view to intimidating them or suppressing the opposition (witness the policy of terror in Nazi Germany against the Communist Party and all other dissidents, or the terror in Chile following the military coup of September 11, 1973, etc.), or as part of the policy of racial discrimination, racial superiority, or as acts of genocide (like those practised by the apartheid regime in South Africa or by the former regime of Pol Pot in Kampuchea).
These acts fall within appropriate provisions:
1) of the Charter of the International Military Tribunal as its Art. 6, paragraph ``c'' contains the following statement:
a) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated;
2) 1948 Universal Declaration of Human Rights;~
3) 1948 Convention on the Prevention and Punishment of the Crime of Genocide;~
4) International Convention on the Elimination of All Forms of Racial Discrimination;~
_-_-_~^^1^^ See: A. N. Trainin, op. cit.
605) 1966 International Covenants on Civil and Political Rights;~
6) 1968 International Convention on Non-- Applicability of Statutes of Limitation to War Crimes and Crimes Against Humanity;~
7) 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid.
However, even if directed against the same object, terrorist acts may be committed by different subjects of various legal systems.
Terrorist acts committed by the authorities of one State on the territory of another, or permission or encouragement of any activity on the territory of the given State with the view of committing a terrorist act within the limits of another State must be qualified as acts of indirect aggression. For instance, in the Convention on the Definition of Aggression, concluded on July 3, 1933, between the USSR and Afghanistan, Estonia, Latvia, Iran, Poland, Romania and Turkey, the USSR proposed that, according to Art. 2 of the Convention, a State that would be the first to commit one of the following acts should be considered an aggressor in an international conflict:
``5) support given to armed bands which, having been formed on its territory, would invade the territory of another state, or the refusal, inspite of the demand of the invaded state, to take all measures within its power on its own territory to deprive the said bands of all aid or protections."^^1^^
_-_-_~^^1^^ Collected Treaties, Agreement'; and Conventions concluded with I'oreixn Nations. Published by NKID, 8th ed., 193r> (in Rus-
61At a later date, the Soviet Union qualified this kind of action as an act of indirect aggression. This qualification appears to be more correct since, on the one hand, it is aggression by a State because such acts are committed with its consent or connivance, but, on the other, these acts do not assume such a wide scope and are not always committed by nationals of that State as to be qualified as direct aggression.
This provision has been formalised in a number of international legal documents and drafts presented by various states in the Special Committee on the Question of Defining Aggression, as, for instance, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, approved by the General Assembly on October 24, 1970, 2625 (Twenty-Fifth Session).
This Declaration says, in part: ``... Every State has the duty to refrain from organising, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organised activities within its territory directed toward the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force. . .. Also, no State shall organise, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed toward the violent overthrow of the regime of another State, or interfere in civil strife in another State.''
The Declaration on the Strengthening of International Security, contained in the General Assembly Resolution 2734 (Twenty-Fifth Session) of December 16, 1970, says that every state has the duty to refrain from organising, 62 instigating, assisting or participating in acts of civil strife or terrorist acts in another State.
It is the definition of aggression that assumes the greatest significance in this context since the State that has fallen victim to aggression by another State has the right of individual or collective self-defence in accordance with Art. 51 of the UN Charter.
The Soviet Union proposed the following definition of aggression to be included in the draft:
``The use by a State of armed force by sending armed bands, mercenaries, terrorists or saboteurs to the territory of another State and engagement in other forms of subversive activity involving the use of armed force with the aim of promoting an internal upheaval in another State or a reversal of policy in favour of the aggressor shall be considered an act of indirect aggression."^^1^^
Australia, Italy, Canada, Great Britain, the US and Japan consider ``organising, supporting or directing violent civil strife or acts of terrorism in another State" as ``the uses of force which may constitute aggression".^^2^^
The following provision is to be found in paragraph 7 of the draft definition submitted by Colombia, Cyprus, Ecuador, Ghana, Guyana, Haiti, Iran, Madagascar, Mexico, Spain, Uganda, Uruguay and Yugoslavia:
``When a State is a victim in its own territory of subversive and/or terrorist acts by irregular, volunteer or armed bands organised or supported by another State, it may take all reasonable and adequate steps to safeguard its _-_-_
~^^1^^ Report of the Special Committee on the Question of Defining Aggression, 31 January-3 March 1972. Official Records, Twenty -Seventh Session, Suppl. No. 19, AJ8?19, p. 8.
~^^2^^ Ibid., p. 12.
63 existence and its institutions, without having recourse to the right of individual or collective self-defence against the other State under Art. 51 of the Charter."^^1^^In April 1974, the Special Committee on the Question ol Defining Aggression adopted the draft definition of aggression which qualified the acts of state terrorism as well as connivance with, or support for the activities directed towards the commission of such acts, as aggression.^^2^^
Therefore, when the territory of Pakistan was used for training groups of mercenaries and smuggling them across the border into Afghanistan for terrorist activities against its people and officials, those acts were rightfully qualified as aggression, from the standpoint of international law, which justified the exercise of the right of individual or collective self-defence in conformity with Art. 51 of the UN Charter and Art. 4 of the 1978 Soviet-Afghan Treaty.^^3^^
So the problem of State terrorism in international law, i.e. the commission of acts of terrorism against a State by groups formed of servicemen of another State, can be resolved by qualifying acts of this kind as acts of aggression. This is precisely how the Security Council qualified the actions of Israel when Israeli commandos carried out terrorist acts against the leaders of the Palestine resistance movement in Beirut on April 10, 1973. In a letter of September 25, 1973, to the UN Secretary-General, the _-_-_
~^^1^^ Ibid., p. 10.
~^^2^^ See: UN General Assembly Official Records, Twenty-Ninth Session, Suppl. No. 19 (A/0619), pp. 6--10
~^^3^^ See also' Norman Paech, 7,ur Entwicklutu; in Afghanistan Der Schwierige Weg aus dem Feodalismus. In Blatter filr deutsche und Internationale I'ohtik, Pahl-Rus?enstem Veilat;, Koln, Heft 2/1080, S. 161--76
64 Permanent Representatives of Egypt, Iraq and Syria rightfully appraised those as acts ol State terrorism.^^1^^To clarify the problem of qualifying State terrorism, we should mention paragraph 6 of Art. 2 of the Draft Code ol OIleiiLes against the Peace and Security of Mankind^^2^^ prepared by the International Law Commission at its Sixth Session in 1954.
Under this document ``the undertaking or encouragement by the authorities of a State of terrorist activities in another State, or the toleration by the authorities of a State of organised activities calculated to carry out terrorist acts in another State" are offences against the peace and security of mankind and, consequently, as defined in Art.~1, ``crimes under international law" (emphasis added).
This classification of state terrorism is perfectly justified because an act of aggression by one state against another is, undoubtedly, a crime under international law not only because of this crime being committed by a subject of international law but also because of the danger such acts create for international relations and for the maintenance of international peace and security. Consequently, state terrorism can, beyond doubt, be classed under the heading of international crimes, such as the offences against peace; war crimes, namely: violations of the laws and customs of war; crimes against humanity; genocide, apartheid. The Protocol Additional to the 1949 Geneva Conventions relating to the Protection of Victims of International Armed Conflicts, adopted on June 10, 1977, considers, in _-_-_
~^^1^^ See. UN Central Assonbly, A/01731, S/11003, 27 September 1973, pp. 1, 2.
~^^2^^ Yearbook of the United Nations, 1954, New York, 1955, p. 411.
__PRINTERS_P_64_COMMENT__ 5---2351 65 partitular, the following acts as state tcnorisrn: treatment of the civilian population as such as well as individual civilians as the object of attack; attack expected to cause incidental loss of civilian lite, inpny to civilians, damage to civilian objects when it is known that such an attack may cause excessive loss of life among civilians or be damaging to civilian objects; an attack on installations or structures containing dangerous forces, namely dams, dykes and nuclear electrical generating stations if such an attack may cause the release of dangerous forces and consequent severe losses among the civilian population; conversion of nondefended localities and demilitarised zones into an object of attack; an attack on a person who is recognised or who, in the circumstances, should be recognised to be hors dc combat. The major standard of reference to judge the above-mentioned offences as international crimes is their acute social danger since in a number of cases international crimes may be committed by physical persons who do not obey the will of the State, but act according to their lights. For instance, it may be the murder of a prisoner of war. The Protocol on International Armed Conflicts, adopted on June 10, 1977 as a supplement to the 1949 Geneva Conventions on the Protection of Victims of War, explicitly forbids the acts of terrorism in respect of all persons that are not directly involved or have ceased to take part in military operations at any time anywhere.Therefore, the action of the ruling circles of Israel against the Arab people of Palestine and neighbouring Arab countries cannot be seen as anything short of State terrorism. There are two facts, in particular, that have to be mentioned in this respect. One was the bombing of the atomic research centre in Iraq in the summer of 1981 and 66 the other, the saturation bombing of the residential distucts of Beirut and Palestine refugee camps. In neither case did that action spring from any military necessity, the only object being to terrorise Arab States and the Arab people ol Palestine. That meant a direct violation ol Ail. 51 and Art. 56 of the Protocol Additional to the 1949 Geneva Conventions Relating to the Protection of Victims of War, which, in particular, forbid acts of violence or threat of violence principally designed to terrorise the civilian population as well as attack dykes and nuclear electiical geneiating stations which may cause the release of dangerous forces and consequent severe losses among the civilian population.
These acts have been condemned accordingly by a special Security Council Meeting.
It is for this reason that the statement made by President Reagan at a news conference on June 17, 1981, when he sought to vindicate those acts of State terrorism, accusing the Arab countries of keeping up tensions in the Middle East, was like adding insult to injury.
Commission of acts of terrorism by a nation's secret services is a special form of State terrorism which has now assumed considerable proportions. This form of terrorist acts, blending with acts of aggression in most cases, does, nevertheless, require self-sustained measures and forms of struggle above all, at intergovernmental level. The thing to do is, quite obviously, to draft a special international agreement to suppress actions of this kind.
A special department was formed within the CIA framework in the mid-1950s. It was to organise the kidnapping and subsequent removal of statesmen of foreign nations. The foundations were laid for the CIA's close 67 association with the mafia in the 60s, and it was on the CIA's proposal that even a special conference was held to consider some plans for the political murder of Fidel Castro and other leaders ol the Cuban Revolution.
The first half of the 70s saw the use of Condor, a continental terrorist organisation as an intergovernmental body, with the main ``strike force" constituted by Cuban counter-revolutionary emigres, advertised by the US press as ``the world's best trained killers".
This is an organisation of the secret seivices of a number of states, held together by a system of mutual responsibility, which have joined forces in shadowing the members of the Latin American liberation movement and destroying the most active of them. The Western press mentioned Operation Condor and Plan Condor for the first time in October 1976 after an act of terrorism against a Cuban airliner off Barbados and also during the hearings of the murder in Washington of a former Chilean Minister of Foreign Affairs Orlando Letelier, a Socialist. Articles by the American journalist Jack Anderson in the autumn of 1979 provided some information about the structure and operations of that ``murder corporation''. Two of Condor's departments are in charge of intelligence gathering about the opposition, shadowing, intimidating and blackmailing them. Another of its departments has been planning and implementing ``punitive actions''. Third Department agents compile ``proscription'' lists and, thereupon, a second group of agents makes a detailed study of the way of life of those condemned to death, their habits, likes and dislikes, their preferences, etc., all that is essential to preparing for the assassination attempt. Next comes the turn of `` commandos'', hired assassins recruited mostly among the 68 Cuban scum in exile. Representatives of the appropriate secret services---members of Condor, enter all those three phases, depending on the circumstances.
As an Argentinian magazine Autentico wrote, it was the first conference of representatives of the political police of Argentina, Chile, Uruguay and Bolivia held in Buenos Aires that resolved to remove Chilean General Carlos Prats, Uruguayan MP Zelmar Michelini, former President Torres of Bolivia, and a further 50 Latin American leaders. A spokesman for Pinochet moved a proposal to have the embassies institute the office of coordinators on security problems, create a unified centre of information about ``Marxists'' and start constant cooperation of political police in their respective countries.
The organisation has its headquarters in Chile while its branch office is in Miami, according to the Western press. This organisation has been reported to have connections with the neofascist movement not only in Latin America, but, notably, also with the secret police of South Africa. For example, a Cuban counter-revolutionary Virgilio Paz, of Condor, shot dead the Smith couple in their home in South Africa,^^1^^ in 1977, at the request of that police. In 1975, the same Virgilio Paz was involved in the assassination attempt on Bernardo Leighton in Rome, leader of Chilean left-wing Christian Democrats, and in 1976, in the assassination of Orlnado Letelier in Washington.
At iho present time, Condor's activities extend to _-_-_
~^^1^^ Robert Smith, a prominent economist and noted government official, had uncovered an act of embezzlement of public resources by officials of the racist regime and was preparing to disclose it.
69 Central America as well. For example, the murder of Archbishop Romero of El Salvador was the work of Paz and Suarez. The Spanish Pueblo newspaper said in November 1981 that the inquiry into the death of President Jaime Roldos Aguilera of Ecuador, Panama's leader Omar Torrijos, the Chief of the General Staff of the Ground Forces of Peru Rafael Hoyos Rubio, and of Sandinista military leaders in Nicaragua warrant the conclusion that Condor had been involved in those crimes as well. The paper says, quoting information from Madrid branch offices of two international organisations, that there is a Condor representative mission in Madrid which is so far gathering information, but can at any moment switch on the so-called ``third phase'', that is assassination.The ruling circles of Israel have acted along these lines as well. As the Time magazine reported, the Israeli government set up a special terrorist group in 1972. It is that group that has since been organising, and in a number of cases carrying out scores of murders, explosions of embassies of Arab countries and the premises of UN missions, shootings and explosions aimed against diplomatic and commercial missions of the USSR and other socialist countries, hijacking of airliners, kidnapping of hostages and shootings of airliners in rnid-air. These crimes 'have been carried out in the territory of Italy, France, Norway, Uganda, Egypt, Holland, Britain and the US.
The action of Israeli authorities as regards the Arab people of Palestine in occupied territories, as well as in respect of that part of this people who have to reside for the time being in the territory of other countries, above all in Lebanon, is terroristic by nature. This form of State terrorism is exercised as outright physical destruction both 70 of individual Palestinian Arabs and whole groups of them during full-scale raids of Palestine refugee camps and attacks on civilians in Lebanon. That was demonstrated with extra relief during the Israeli-instigated aggression against Lebanon in June 1982 when, following an utterly unprovoked, brazen and violent attack in the course of which a hundred thousand strong aggressor army occupied almost half the territory of the neighbouring sovereign State, destroyed scores of towns and villages, including the Western sector of Beirut, killed and wounded tens of thousands of civilians, presented the Palestine resistance movement with what amounted to an outright ultimatum, calling on them to give up altogether their struggle for Palestinian self-determination.
It is necessary to point out that Israel's action with regard to the Arab people of Palestine constituted a crime of genocide, an act of terrorism and a blatant violation of the laws and customs of warfare. Such character of warfare has more than once been condemned by international opinion, and has been outlawed in special international agreements, notably by the 1948 International Convention on the Suppression and Punishment of the Crime of Genocide.
The action of Israel's ruling elements in the course of the 1982 aggression caused the loss of life or health of more than 50,000 Arabs, and over half a million of them had to leave their homes and property and flee to the north. Israel's leaders emphasised that the object of the aggression was to wine out the Palestinian Arab population. Israeli troops have been using tlu- internationally outlawed means and methods of warfare against the civilian population. Pellet, cluster and phosphorus bombs have 71 been dropped on women, children and old people, chemical weapons of Israeli and US manufacture have been used against Lebanese and Palestinian civilians. But the US authorities have not only been giving extensive political support to Israel's barbaric actions, not only have they supplied it with more and more consignments of arms without any let-up, but they have got themselves directly involved in this Zionist aggression. In particular, US warships off the shores of Lebanon guided the pilots of Israeli fighter bombers to targets in the territory of sovereign Lebanon.
While sowing the seeds of death and destruction, Israel in conjunction with the US has been terrorising the population of Lebanon and, above all, the Arabs of Palestine who have found refuge in that country.
State terrorism is explicitly forbidden by the Protocol Additional to the 1949 Geneva Conventions relating to the Protection of Victims of International Armed Conflicts, which had been drawn up with the participation of Israel and the US. It says, in particular, that the civilian population as such, as well as individual civilians shall not be the object of attack; acts of violence or threats of violence the primary purpose of which is to ``spread terror among the civilian population" are prohibited (Art. 51, § 2). In the same context, one should mention Art. 54 of the Protocol Additional which prohibits, in particular, the practice of causing hunger among the civilian population ns a method of warfare. The Article likewise forbids all aclion to attack or destroy, take out or impair objects essential to the survival of the civilian population (starting from food stocks and crops all the way to irrigation installations) expressly with the aim of preventing them from being 72 used by the civilian population or the opposite side as a means of subsistence, regardless of the motives, whether in order to provoke hunger among civilians, compel them to leave or achieve some other ends. Yet it is precisely this form of State terrorism that has been used by Israel even though it was roundly condemned by the UN and many nations as a gross violation of international law.
Physical destruction of people---nationals of another state ---by secret services is another form of state terrorism. Terrorism has been institutionalised and officially established, as we wrote, in Israel, whose Knesset approved a resolution back in March 1978 urging the physical removal of the PLO leaders. As the British Middle East magazine said in 1982, 26 prominent Palestinian political leaders have been killed by Israeli secret services in the last ten years. These acts of terrorism began since the establishment of the Palestine Liberation Organisation in the early 60s and assumed particular dimensions in the 70s when the PLO had earned worldwide support and recognition.
When an unidentified gunman fired seven bullets at an Al-Fatah leader, Abu-Daoud, in August 1981, but AbuDaoud escaped death by miracle, he had this to say about that assassination attempt: ``It is known for instance that there is close cooperation between Mossad and the Phalangists, so the Phalangists may be used to carry out certain operations on Mossad's behalf."^^1^^ The hearings of the act of terrorism against Bouchiki in Norway as well as the murder of Qubaisi in Paris in 1973 when police arrested _-_-_
~^^1^^ The Middle East, December 1981, p. 9.
73 six people, furnished full evidence of the existence of a special Israeli terrorist group.Rolf Jahrmann, the chief of Norway's criminal police, declared that this group was operating directly under Mossad's instructions. He found some of its members, as Albert Liberman and Abraham Gehmer, were serving for Israel's Defence Department.
An expert, Professor Vincent Monteil arrived at the conclusion that all of the assassinations considered have been a result of the planned action by the Israeli Mossad terrorist organisation. The testimony of six persons charged with involvement in the Bouchiki case in Oslo (Ethel Glandikoff, Sylvia Rafael, also known as Patricia Roxburg, Abraham Gehmer also known as Leslie Orbauin, Dan Aerbel, Zwi Steimberg and Michael Dorf) have confirmed that. Now, the Italian authorities, while investigating the murder of Zuaiter in Rome, established that the head of the Israeli secret service personally directed the operation to remove Zuaiter. Public Prosecutor Santacroce who was in charge of the case, arrived at the following conclusion: six representatives of Palestinian organisations were killed in Western Europe from October 1972 to July 1973. The murder was carried out by two methods: first, with firearms with identical ammunition (Zuaiter, Qubaisi), and second,---with explosive devices and identical ammunition (Hamshari, Abul-Khair, and Boudiya). It has been established with sufficient credibility that all of these crimes had a common foundation in terms of organisation, which was proved during the judicial investigation by n correlation of facts.
The verdict of the Norwegian court said, in particular: ``The Israeli secret service must have been behind these 74 operations. This was confirmed by ... the circumstance that some of them had extremely close links with that secret service."^^1^^
Such acts of international terrorism call for the international community to marshal their efforts with a view to working out an international convention on the suppression of, and liability for, their commission.
The US has also been conducting subversive terrorist activity practically throughout the last three decades, as, quite naturally, has South Africa whose racist legislation allows terror to be used as a method to suppress the risings not only of its own natives. In 1978--1981, South Africa's armed forces bombed cities and villages of Angola more than 300 times, and carried through over 50 landing operations, which combined to destroying a total of over 1,800 people. Eighty individuals were sentenced to a total of 450 years of imprisonment under the Suppression of Terrorism and Sabotage Acts in South Africa since June 1976. Altogether, more than 10,000 persons have been arrested in South Africa for political reasons since 1976.
A wave of what can well be described as institutionalised terrorism has been sweeping across Northern Ireland. Back in August 1969, Great Britain moved the first units of her Standing Army into Northern Ireland and brought their strength up to 20,000 in 1979. Under the 1973 ``emergency power" Act, in Northern Irish Courts, confession of the defendants is taken as evidence of their guilt in spite of the generally recognised legal provisions. Such a thing cannot be seen as anything short of arbitrary justice or legal terrorism. According to the information released by _-_-_
~^^1^^ Ibid., p. 10.
75 the Queen's University of Belfast Faculty of Law, from 70 to 90 per cent of the sentences have been passed on the grounds of the defendants' ``admission'' of guilt during the questioning in a police station. In 1977, the European Commission of Human Rights^^1^^ found the government of Great Britain guilty of using torture in Northern Ireland and the Prosecutor General of Great Britain could not deny that fact.The myth of a ``Soviet threat'', mercenary killings, counter-revolution, torture, wholesale annihilation of people and terrorism bear the brand of US imperialism. As Gus Hall, General Secretary of the Communist Party of the United States, emphasised, ``As the very fabric of capitalist society decays and crumbles, violence becomes more and more prevalent, more and more a part of the crisis of every-day life. More and more capitalism resorts to violence to defend itself because it has lost all semblance of a humane society."^^2^^
To sum up, in case of acts of terrorism committed by a State or its officials, these acts are qualified under international law as offences against international peace and the security of nations, as offences against humanity, and as war crimes.
_-_-_~^^1^^ The function of the European Commission of Human Rights, established in 1954, is to cooperate with the European Court of Human Rights in considerinc; statements by governments and individuals about any breach of the provisions of the European Convention on the Protection of Human Rights and Basic Freedoms. The Commission and the Court comprise Austria, Belgium. Denmark, Great Britain, Ireland, Ireland, Luxemburg, Norway. Sweden and West Germany.
^^2^^ Daily World, 16 April 1981, p. 14.
76A somewhat different situation arises when acts of terrorism are committed by a physical person who does not fulfil the will of the State, but who acts as prompted by his personal motives or by those of an organisation lie belongs to, technically unielated to any State. For example, there can be an assassination of a representative of a loreign nation on personal grounds as well. While the former group of offences is essentially covered by the international Acts, although these Acts do need to be further elaborated as documents of intei national law, the lattei group of offences---because they are sporadic---has not been the object of so close attention of the international community until now.
Liability for acts of terrorism by physical persons is regulated basically through the framework of national legislation or through a number of international agreements. However, the growing number and danger of such acts requires a standard approach to their qualification, and cooperation of nations in their prevention and punishment.
The very problem of classification of an act of terrorism committed by a physical person is a sophisticated one because these acts affect international relations because of: a) the object of an act committed, and b) the presence of an international element in the corpus delicti. Such an act of terrorism shall come under international law if the action committed by a physical person includes:
1) violent action: an attempted or committed attack, seizure, kidnapping, infliction of bodily harm, murder or action creating a threat in relation of official representatives or members of their families in the area of political, economic, technical, civilian, trade, and cultural relations between subjects ot international law;~
772) seizure, damaging or destruction of propeity essential for the conduct of political, economic, technical, trade, and cultural relations between States as well as means, equipment or structures used in air, water, rail and motor Iranspoit, il these actions comprised .111 inter national element. An international element should be takcrr to mean the commission of an act of terrorism:~
a) on the territory of one or several foreign nations or orr the territory that does not come under the jurisdiction of any state;~
b) by a foreign citizen or subject, or in complicity with a foreign citizen or subject;~
c) in respect of a foreign citizen or property of a foreign physical or legal person or State.
Furthermore, it is indispensable to have a special motive of the crime present---aggravation of international relations---for such acts to be considered as acts of international terrorism.
That is to say that the presence of an international element conditions the international character of an act of terrorism committed, its increased social danger, and requires special qualification.
It is obvious that acts of terrorism which have become an object of UN attention from the standpoint of their qualification are offences of international magnitude. However, it is a matter of common knowledge that there are divergent views regarding the definition of the concept of international crime.^^1^^
Bourgeois lawyers have tried to have the concept of international crime cover offences carrying an international _-_-_
~^^1^^ See: I. Karpets, op. cit., pp. 64--8 (in Russian).
78 element in them, by rising alogical definitions to this end. A Romanian lawyer, Vespasierr Pella has defined dthcta /Mm gentium as follows: an international delict is an action or inaction subject to punishment proclaimed arrd applied in the rrarrre ol an assoc lalum ol nations. Eclecticism ot this kind ol definition is quite obvious.The first Conference on the Unification of Penal Law, held in Warsaw in 1927, put down as international offences: 1) piracy, 2) forgery of metallic money, state securities and banknotes, 3) slave trade, 4) traffic in women and children, 5) drug trade, 6) tralhc in porno productions. The Fifth Conference on the Unification of Penal Legislation added souteneurship to them.^^1^^
Eclecticism in defining the list of international crimes dominated the deliberations of the conferences on international penal law^^2^^ which drafted the Conventions on International Crimes and the Statute of the International Penal Court. In particular, Art. 3 of the draft Convention on International Crimes classed among them:
---crimes against peace;~
---war crimes;~
---crimes against humanity;~
---acts subject to criminal persecution under the 1949 Geneva Conventions;~
---genocide, as defined in the 1948 Convention on the Suppression and Punishment of Genocide;~
---slavery, slave trade, and similar customs;~
_-_-_~^^1^^ See: A. N. Trainin, op. cit.
~^^2^^ The conferences were called at non-governmental level under the auspices of the International Foundation for the Establishment of an International Criminal Court and held in Racine, Wisconsin, USA, in 1971--72, and in Bellagio, Italy, in 1972.
79---piracy as defined in the 195ft Convention on the High Seas;~
---illegal action of intervention in the operations of civil aviation, as defined in the 1940 Hague Convention for the Suppression of Unlawful Sei/iirc of Aircraft, and the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation;~
---international drug trade;~
---illegal smuggling across the border of a person kidnapped for political, racial or religious motives, in government service or a public figure;~
---acts of violence in regard of persons enjoying protection under international law on account of their functions or position;~
---international acts of terrorism subject to punishment under criminal law designed to create a state of terror among individuals, groups or the public;~
---pollution of the environment creating a threat to human health and safety;~
---complicity or obstruction of the prevention of the above-mentioned crimes.
The absence of logic to justify the grouping of so different crimes in terms of substance and social danger, needs no additional evidence, and one may only point out that international crimes shall be characterised, first, by the fact that these crimes are integral to the domestic or foreign policy of States; second, by the fact that they represent an extreme danger to all mankind; third, by the fact that they contain an international element.
Consequently, State terrorism in the entire diversity of its forms may be classed as international crime whereas the acts of terrorism containing an international element and 80 representing a certain danger to the maintenance of international relations in virtue of the object they have been committed against or in virtue of the presence of an international element only should be regarded as international crimes as well as the above-mentioned long list of other breaches of the law (except the crimes against peace, war crimes, against humanity, and genocide). This qualification is very important for the proper selection of the machinery of persecution and punishment for the perpetration of the above-mentioned crimes in international relations. Proceeding from the foregoing, one may make the following conclusions:
1) the term ``international terrorism'' is too loose for raising the specific issue of international action to suppress the acts of terrorism;
2) acts of terrorism falling within the scope of international law can be committed both in peace and in wartime;
3) one should differentiate between acts of terrorism punishable under international law by the doer and by the object they are directed against. Acts of terrorism, involving international relations, shall be distinguished:
By the doer as:
a) acts of terrorism committed by persons in civil service and by those expressly trained for the purpose (State terrorism);^^1^^
_-_-_~^^1^^ A fuller definition would be: ``An act of terrorism committed by one subject of international law against another'', but that would cover an act of terrorism committed by: a) a State; b) a nation in battle for liberation; c) an international organisation. State terrorism should likewise be interpreted to imply a policy of terrorism pursued by the authorities in respect of individuals, _PRINTERS_P_80_COMMENT_ 6---2351 groups of individuals or population for political, racial and _NOTE_ Footnote cont. on page 82.
81b) acts of terrorism committed by individuals or organisations of individuals.
By the object, these acts are distinguished as follows:
a) acts of terrorism committed against the security of a State;~
b) acts of terrorism committed against officials;~
c) acts of terrorism committed in respect of the property of a State or a natural or legal person.
4) Finally, an act of terrorism involving international relations, falls within the scope of international law in virtue:
a) of it being committed by a subject of international law;~
b) of the danger it poses to international relations;~
c) of the presence of an international element in it;~
d) of the interest of a State, on account of the social danger of any particular terrorist act, in organising action at international level to fight against acts of this kind.
5) The determining factor in affording protection under international law to an individual or property is the functional status of such individuals or such property from the standpoint of the necessity of maintaining international relations between the objects of international law.^^1^^ FAKE.COULD not get program to run.
_-_-_^^1^^ _NOTE_ Footnote cont. from page 81. religious motives as well as terrorist activities of the secret services of one State on the territory of another.
[82] __NUMERIC_LVL1__ Chapter II __ALPHA_LVL1__ INTERNATIONAL AGREEMENTSThere are a number of international agreements in force today known to be designed for the prevention and punishment of terrorism.
One starting point in reviewing these international agreements is to consider them as stipulating the corpus delicti punishable under the text of the conventions; the character of this crime from the standpoint of international law; the specified range of subjects as well as measures and procedural actions which States Commit themselves to undertake in virtue of their status as Contracting Parties.
__ALPHA_LVL2__ 1. THE 1937 CONVENTION FOR THE PREVENTIONThis Convention as well as, incidentally, other documents of a similar character, had been worked out in view of _-_-_
~^^1^^ Not entered into force; ratified by India on 1 January, 1941; signed by: Albania, Argentina, Belgium, Bulgaria, Cuba, Czechoslovakia, Dominican Republic, Ecuador, Egypt, Estonia, France, Greece, Haiti, India, Monaco, Netherlands, Norway, Peru, Romania, Spain, Turkey, USSR, Venezuela and Yugoslavia.
83 the events which the international community could not pass over.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^^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.^^2^^
On December 10, 1934, the Council of the League of Nations unanimously passed a resolution to institute a _-_-_
~^^1^^ For example, on May 10, 1923 the Soviet Plenipotentiary Representative (Ambassador) V. V. Vorovsky was killed by a whiteguard Konradi in Switzerland; on February 5, 1926 Soviet diplomatic couriers I. Machmastal and T. Nette were attacked in bourgeois Latvia; on June 7, 1927 Soviet Plenipotentiary Representative (Ambassador) P. L. Voikov was killed by a whiteguard Kaverda in Warsaw.
~^^2^^ See: League of Nations, Official Journal, 1934, p. 1839.
84 Committee of Experts^^1^^ with a view to drafting a tentative International Convention to curb any scheming or offences in pursuit of ``political terrorism".^^2^^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".^^3^^
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:
(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);
(2) to ensure the effective prevention of such outrages and, in particular, to establish collaboration to facilitate early discovery of preparations for such outrages;
(3) to ensure punishment of outrages of a terrorist _-_-_
~^^1^^ The Committee comprised Britain, Belgium, Chile, Spain, France, Hungary, Italy, Poland, Romania, USSR, and Switzerland.
~^^2^^ See: League of Nations, Official Journal, 1934, p. 1759.
^^3^^ The Diplomatic Dictionary, Vol. 3, Moscow, 1964, p. 351 (in Russian).
85 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".^^1^^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.
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.
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.
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.
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 _-_-_
~^^1^^ League of Nations, Records of the Seventeenth Ordinary Session of the Assembly, Plenary Meetings, p. 135.
86 particular persons, a group of persons or the general public.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.
Constituting acts of terrorism of an international character are:~
(1) Any wilful act causing death or grievous bodily harm or loss of liberty to:~
(a) Heads of States, persons exercising the prerogatives of the heads of State, their hereditary or designated successors;~
(b) the wives or husbands of the above-mentioned persons;~
(c) persons charged with public functions or holding public positions when the act is directed against them in their public capacity.
(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.
(3) Any wilful act calculated to endanger the lives of members of the public.
(4) Any attempt to commit an offence falling within the foregoing provisions of the present Article.
(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.
87Let us note that the essential provisions of this Article are:~
1) qualification of the above-mentioned act of terrorism as a criminal offence;~
2) unification of the concept of an act of terrorism of an international character;~
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.
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).
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.
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 88 and directed against another High Contracting Party, whatever the country in which the act of terrorism is to be carried out:~
(1) conspiracy to commit any such act;~
(2) any incitement to any such act, if successful;~
(3) direct public incitement to any act mentioned under heads (1), (2) or (3) of Art. 2, whether the incitement be successful or not;~
(4) wilful participation in any such act;~
(5) assistance, knowingly given, towards the commission of any such act.
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.
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 89 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.
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.
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.
90It 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.
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:
(a) extradition has been demanded and could not be granted for a reason not connected with the offence itself;~
(b) the law of the country of refuge recognises the jurisdiction of its own courts in respect of offences committed abroad by foreigners;~
(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.
As regards the sentence, Art. 11 stipulates that it must 91 not exceed the maximum provided for by the law of the country where the offence was committed.
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.
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.
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.
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 92 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.
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.
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.
The closing articles deal with the procedure of 93 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).
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).
To conclude this review of the 1937 Convention, one may say that, although it does contain well-elaborated individual provisions such as:
---definition of an act of terrorism as one of an international character because of the specific object of attack;~
---emphasising the functional base for granting protection to persons named in Art. 2 from offences falling within Art. 2;~
---assuring the principle of inescapable punishment (Arts. 8, 9, 10, 11, 12, 13, 19);~
----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).
94 __ALPHA_LVL2__ 2. CONVENTIONS FOR THE SUPPRESSIONThere has been an alarming increase, in recent times, of acts against the safety of international air travel. The largest number of such acts was recorded between 1968 and 1970; a total of 121 aircraft (including 69 transport planes^^1^^) were hijacked in the world from January 1948 to September 1969, with air traffic thereby disrupted on the air lines of 47 nations, 97 persons killed and 23 wounded. The effect of aircraft hijacking in 1968 was to prevent some 1,500 passengers from reaching their destination on schedule, and 3,000 passengers from doing so in 1969.
Under these circumstances, international measures have been taken to prevent and suppress acts against international civil aviation. Three conventions have been concluded, one after the other, in the space of less than seven years which, complementing each other, counter the incessant growth of the danger jeopardising the normal operation of international civil aviation.
These are:
---The Convention on Offences and Certain Other Acts Committed on board Aircraft, signed at Tokyo on 14 September 1963^^2^^;~
---The Convention for the Suppression of Unlawful _-_-_
~^^1^^ See: Alona E. Evans, ``Aircraft Hijacking: Its Cause and Cure''. In American Journal of International Law, October 1969, Vol. 63, No. 4, p. 697.
~^^2^^ This Convention entered into force on December 4, 1969; it has been ratified or acceded to by 60 nations, including three socialist states: Hungary, Poland and Yugoslavia.
95 Seizure of Aircraft, signed at The Hague on December 16, 1970^^1^^;~---The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation signed at Montreal, September 23, 1971^^2^^.
Soviet and world legal literature has given much prominence to action for the suppression of unlawful interference with the operation of civil aviation, for which reason we are not giving, in this paragraph, a detailed analysis of the provisions of the above-mentioned conventions, but confine ourselves to reviewing some general theoretical problems relating to the qualification and elements of offences falling within the Tokyo, The Hague and the Montreal Conventions.
A review of the extent of elaboration of the Conventions will suggest that the least elaborated and the weakest of all is the Tokyo Convention, although acceded to by 60 nations. This is because the Tokyo Convention was the sole international document in 1968--69 to provide, if in small measure, for certain action to counter the rapidly rising incidence of aircraft hijacking and other acts jeopardising the operation ol air services.
This is exactly what accounts for the fact that the bulk of the participating nations of the Tokyo Convention acceded to it in 1968--1969 which made it possible tor the _-_-_
~^^1^^ This Convention entered into force on October 14, 1971; it had been ratified or acceded to by 39 nations as of January 1977, including 8 socialist states: Bulgaria, Czechoslovakia, German Democratic Republic, Hungary, Mongolia, Poland, Romania and USSR.
~^^2^^ This Convention entered into force on January 26, 1973. The USSR has been a Party to it since December 27, 1972.
96 Convention to come into effect on December 4, 1969, although the Convention itself had been drafted back in 1963^^1^^. The Convention, as stipulated in Art. 1, covers:a) offences against penal law;~
b) acts which, whether or not they are offences, may or do jcopardi.se the safety of the aircraft or of persons or property therein or which jeopardise good order and discipline on board.
The Convention applies in respect of offences committed or acts done by a person on board any aircraft registered in a Contracting State, while that aircraft is in flight or on the surface of the high seas or of any other areas outside the territory of any State (emphasis added). The very definition of the corpa delicti falling within the Convention as well as the above-mentioned area of application makes evident the deficient elaboration of the problem of suppressing unlawful interference with the operation of air services. The deficiences of the Convention comprise not only the absence of a definition of the corpa delicti^^2^^ and the exclusion from the Convention's scope of domestic airlines (except the airlines passing over the high seas but linking cities of the State of registration), but also the absence of a clearly formulated principle of inescapable punishment and qualification of offences falling within the Convention as criminal regardless of the motives of the offence. Other deficiences of the Convention are the granting of unjustifiably extensive rights to flight _-_-_
~^^1^^ Art. 21 provided for the Convention to enter into force upon ratification by 12 nations.
~^^2^^ Only 8 nations had a provision for liability for aircraft hijacking in their legislation in 1963.
__PRINTERS_P_97_COMMENT__ 7---2351 97 commanders, and separation of Art. 11, formulating the concept of ``unlawful seizure of aircraft" from Chapter I of the Convention entitled ``The Scope of the Convention''. This creates a possibility of divergent interpretation of the Convention, in the event of structural interpretation being used. The afore-said deficiencies are compounded by the wording of Art. 22 which says that ``this Convention shall, after it has come into force, be open for accession by any State member of the United Nations or of any of the Specialised Agencies''. This wording meant that the Convention, conceived as universal, could not become one, although by September 1963 there had already been the Moscow formula (with the document opened for signature in Moscow, London and Washington) which is known to have appeared in the process of drafting the Treaty to ban nuclear weapon tests in three environments. Naturally, the Tokyo Convention, because of the above-mentioned deficiences, could not have been effective in suppressing unlawful interference with the operation of civil aviation.Considering the rising incidence of acts of unlawful interference with the operation of air services as well as the deficient provisions of the Tokyo Convention, the General Assembly of the International Civil Aviation Organisation (ICAO) passed a resolution A 16--37 asking the ICAO Council to consider, within the bounds of possibility, other measures towards resolving the problem of unlawful seizure of aircraft. The Twenty-Fourth Session of the United Nations General Assembly in 1969 considered the problem of ``forcible diversion of civil aircraft in flight''. The Assembly approved the Resolution 2551 ( TwentyFourth Session) declaring itself ``deeply concerned over 98 acts of unlawful interference with international civil aviation" and recommended ``effective measures against hijacking in all its forms, or any other unlawful seizure or exercise of control of aircraft''. The Assembly urged full support for the ICAO's efforts directed towards the speedy preparation of a convention providing for appropriate measures against acts of unlawful interference with the operation of civil aviation. A diplomatic conference at The Hague on December 16, 1970, adopted a Convention for the Suppression of Unlawful Seizure of Aircraft. The Hague Convention defined the offences falling within it. Art. 1 says that ''. . .any person who on board an aircraft in flight:~
(a) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or~
(b) as an accomplice of a person who performs or attempts to perform any such act~
__NOTE__ Bizarre paragraph break here in original.commits an offence.''~
The Convention requires each Contracting State to make the offence punishable by severe penalties (Art. 2j.
The extension of the Convention to domestic line traffic (Art. 3) should be seen as a positive aspect of the Convention, apart from setting out the corpus delicti. Besides, Art. 3 also stipulates the scope of the Convention which is limited to instances involving an international element: ---if the place of take-off or the place of actual landing of the aircraft on board which the offence is committed is situated outside the territory of the State of registration of that aircraft;
---if the offender or the alleged offender is found in the 99 Emacs-File-stamp: "/home/ysverdlov/leninist.biz/en/1984/TIL286/20070209/199.tx" __EMAIL__ webmaster@leninist.biz __OCR__ ABBYY 6 Professional (2007.02.10) __WHERE_PAGE_NUMBERS__ bottom __FOOTNOTE_MARKER_STYLE__ [0-9]+ __ENDNOTE_MARKER_STYLE__ [0-9]+ territory of a State other than the State of registration of that aircraft.
The important provisions of the Convention comprise the aut dedere aut judicarc principle formulated in Art. 7 which makes it imperative lor the Contracting State in the tenitory of which the alleged offcndei is found, if it does not extradite him, to submit the case, "without any exception whatsoever" [emphasis added] to its competent authorities for the purpose of prosecution. As to the mode of extradition as stipulated by the Convention, Art. 8 provides for the offence set out in Art. 1 as an extraditable offence to be included in all extradition treaties concluded between States. The Contracting States, in virtue of Art. 10, commit themselves to afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offence falling within the Convention. Art. 13 codifies the Moscow foimula---the Convention is open foi signature in Moscow, London and Washington, which creates the objective conditions for it to become universal.
The major distinguishing feature of The Hague Convention is that it deals with nothing but the problem of hijacking of aircraft as such. The Convention is designed to protect only an aircraft in flight; moreover, it protects an aircraft in flight only in the event of it being an object of an act of seizure; besides, this act is qualified as an offence only when committed by a peison on board this particular aircraft. Consequently, the Convention excludes from its scope all the categories of other acts which could produce a no lesser threat to the operation of civil aviation.
This being the case, the ICAO General Assembly adopted a resolution A 17--20 in June 1970, that is, before the 100 conclusion of The Hague Convention, in which it stated the need to dr.ilt ptovisions to complement those of international agicements in force. Along with that, the UN Genelal Assembly adopted the resolution 2645 ( TwentyFifth Session) on November 25, 1970, which condemned ``without any exception whatsoever, all acts of aerial hijacking or other interference with civil air travel, whether originally national or international, through the threat or use of force, and all acts of violence which may be directed against passengers, crew and aircraft engaged in, and air navigation facilities and aeronautical communications used by civil air transport".^^1^^
A diplomatic conference in Montreal in September 1971 adopted a Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation.
Art. 1 of the Montreal Convention says:~
1. Any person commits an offence if he unlawfully and intentionally:~
(a) perfoims an act of violence against a person on board _-_-_
~^^1^^ I his Convention covers the case of Brazinskas, the terrorists who hijacked a Soviet airliner to Turkey, having killed a stewardess and wounded members of the crew, and have since been on the lun in the US. Ihe Soviet Foreign Ministry's note to the US Embassy m the USSR said in paitieular. ``The Soviet side, acting lioni ils position of principle in favour of the toughest action in the fight against terrorism and, notably, in the suppression of air piracy, is known to have more than once demanded the extradition ol the said criminals, present in US territory since 1976. However, the American authorities have been refusing this legitimate demand for over four years. In the meantime, the Brazinskas, the criminal assassins, are still at large.'' Nothing has changed since.
101 an aircraft in flight^^1^^ if that act is likely to endanger the safety of that aircraft; or~(b) destroys an aircraft in service^^2^^ or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight; or~
(c) places or causes to be placed on an aircraft in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft or to cause damage to it which is likely to endanger its safety in flight; or~
(d) destroys or damages air navigation facilities or interferes with their operation, if any such act is likely to endanger the safety of aircraft in flight; or~
(e) communicates information which he knows to be false thereby endangering the safety of an aircraft in flight.
2 Any person also commits an offence if he:~
(a) attempts to commit any of the offences mentioned in paragraph 1 of this Article; or~
(b) is an accomplice of a person who commits or attempts to commit any such offence.
It can be seen from the corpa delicti falling within the _-_-_
~^^1^^ An aircraft is considered to be m flight at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation; in the case of a forced landing, the flight shall be deemed to continue until the competent authorities take over the responsibility for the aircraft and for persons and property on board (Art. 2, paragraph ``a'')
~^^2^^ An aircraft is considered to bo in semic from the beginning of the prefhght preparation of the aircraft by ground peisonnel or by the crew for a specific flight until twenty-four hours after any landing, the period of service shall, in any event, extend for the entire period during which the aircraft is m flight, as defined in paragraph (a) of Art 2. (Art 2, paragraph ``b'').
102 Montreal Convention that it is directed not only against acts of seizure or exercise of control of an aircraft with a view to using it as a transport vehicle but also against acts oi terrorism committed in respect of aircraft in service whether on the ground or in the air as well as in respect of ground-based air navigation facilities.From this point of view, it is necessary to consider as a gross violation of the Montreal Convention the action of the American authorities in regard of the Aeroflot airliner (registration number 86502), its crew, passengers and their luggage, comprising diplomatic luggage, which took place on May 12, 1981. The Aeroflot airliner was in service within the meaning of paragraph (b) of Art. 1 of the Montreal Convention Within 20 minutes of the take-off of the Soviet airliner from the Dulles Airport in Washington, a group of armed FBI agents broke into the airliner, pushed the crew out and, without producing any official document, began to search it. They ripped open navigation aids, the floor all through the airliner as well as the panel covering the control rope The luggage, including that belonging to members of the staff of official Soviet missions in the US, was thrown out and opened without a scruple. All the cargo subject to examination had earlier been checked by the US customs officials in perfect compliance with international rules and cleared for transportation. Some of the luggage was stolen during the search Passengers, including a pregnant woman, a post-inlarction patient and children, were maltreated.
The Soviet government's protest note of May 13, 1981. said- "What has happened is ye( another example of tht American authorities' glaiing disregard for the time-- honoured standards of international law and of elementary 103 principles of decency in general and indicates that terrorism and banditry are made an official policy in the US."^^1^^ Without in any way denying the right of customs examination, one cannot accept it in such a form or action that imperilled the life of passengers and the crew, caused material damage to the Aeroflot company, material and moral damage to the passengers and the crew, which, incidentally, left them entitled to demand reparation. Besides, it was a blatant violation of the 1961 Vienna Convention on Diplomatic Relations demanding, in particular, the indispensable presence of the owner of diplomatic luggage whenever it might be opened. The form and character of what had happened warranted the conclusion that the Montreal Convention had been violated by the US authorities and that their actions were of a terrorist character.
What distinguishes the Montreal Convention from The Hague Convention is not only its scope, but also the presence of a special provision whereby the ``Contracting States shall, in accordance with international law, and national legislation, endeavour to take all practicable measures for the purpose of preventing the offences mentioned" (Art. 10.)
The Montreal Convention, in particular, means prosecution and punishment of such crimes as the blow-up of a Cuban airliner on October 6, 1976, on its way through Georgetown (Guyana), Port-of-Spain (Trinidad and Tobago), and Bridgetown (Barbados) killing 57 Cubans, including the crew, 11 Guyanan students who were going to Cuban educational centres, and five members of a cultural delegation of the Democratic, People's Republic of _-_-_
~^^1^^ Pravda, May 14, 1981.
104 Korea on a tour of Latin American countries. Ten minutes after the take-off, there was a flash report from the airliner's flight commander that an explosion set the plane on fire. The commander asked for permission for an emergency landing, but the plane failed to reach the shore and fell three miles west of the island.Two passengers, on coming with that plane to Barbados, put through a call from the Village Hotel to one Luis in Caracas whom they conventionally told about the destruction of the airliner. Thereupon, they left for Trinidad where they had yet another telephone link-up from the Holiday Inn Hotel with Caracas and received an order to fly on to Venezuela at once. The police who detained them found them to be Venezuelan citizens, Hernan Ricardo and Freddy Lugo. When questioned, they confessed to having blown up the airliner: Ricardo had personally planted a timebomb, hidden in a transister, under the 27-D seat in the airliner. The testimony they had given indicated that that act of terrorism in the air had been part of the anti-Cuban terror campaign carried on by the organisations of Cuban counter-revolutionaries in conjunction with the CIA and the Pinochet Intelligence Service. It was not by accident that they should have chosen the Caribbean area as the place for that action, considering that the states of that region maintain friendly relations with Cuba. It must be said that similar anti-Cuban acts of terrorism had been performed earlier on as well, for instance, there was an explosion on July 10, 1967, in Barbados in the offices of the British West Indian Airways Headquarters which represented the interests of the Cuban Airlines and similar actions took place in Jamaica, Panama and Guyana.
During the questioning in the Trinidad police 105 headquarters, Ricardo admitted to having been a CIA agent since 1971 and to having been trained by the CIA to engage in subversion, handle arms and take pictures. His accomplice, Lugo, had worked in a private detective office of Luis Posada, a Cuban, who had adopted Venezuelan nationality. That office served as cover for the CIA Station in Venezuela. It was in direct contact with CIA and FBI agenK working in the US Embassy. The arrested men said the order to destroy the airliner had been given by a Cuban counter-revolutionary immigrant chief connected with the CIA, Orlando Bosch, who had expressly come to Venezuela to organise that act of subversion.
In the notebooks of the criminals the police discovered the telephone numbers of Bosch, Posada and the US Embassy attache in Caracas Joseph Leo who was concurrently a FBI agent.
What about Bosch? A doctor by training, he, after the victory of the Cuban Revolution, took up the cudgels against people's government and was one of the bandit group leaders in the Escambroy Mountains; and later on escaped to the US. According to American press reports, in the US he was in charge of counter-revolutionary bands in exile who had committed 150 assassination attempts and some 50 murders in the space of only two years preceding the Bosch arrest. In the US, he had been arrested on six occasions for violating American legislation but was set free every time due to CIA intervention. Bosch had been tried and sentenced to ten years imprisonment for his part in blowing up the Japanese Osaka Maru ship, but was released ``on parole" as early as November 1972.
Following the fascist coup in Chile. Bosch established contact with the Chilean DINA secret service under whose 106 guidance he upgraded his skill in terrorist tactics in 1974. He went to Chile several times. In Buenos Aires he, together with the AAA, the fascist terrorist Anti-Communist Alliance of Argentina, worked out plans for the abduction of Cuban diplomats and other criminal actions. In 1976, he participated in an assembly of Cuban counter-- revolutionaries in exile, in Baghio (Dominican Republic). The assembly produced an agreement on uniting their terrorist activities within the Condor framework. In the same year, 1976, Bosch, together with a CIA agent, James Williamson, and fascist organisations of some countries of Central America plotted a coup in Costa Rica.
In early September, 1976, Bosch, under the assumed name of M. Paniagua, turned up in Posada's ``detective agency" in Caracas. Over there, he met Ricardo and Lugo. On October 4, Ricardo and Lugo came to the little Tia Pura restaurant in Andres Bello St. to meet a CIA man in Venezuela, the chief of the so-called International Committee for the Defence of Democracy, specialising in anticommunism and anti-Soviet slander. It was there that the crime was discussed in every detail, and an advance payment of 40,000 dollars was handed over to Ricardo and Lugo. On the following day, they left for Trinidad by PanAmerican.
Once arrested by the Trinidad police, Ricardo and Lugo were turned over to Venezuela where Bosch and Posada had already been arrested.
The Government of Venezuela came under instant massive pressure from the USA, and everything had been put to use---from American press invectives to explosions in Venezuelan offices in Miami and New York. In Miami, there even was an attempt to blow up a Venezuelan Air 107 Force plane that arrived there, and there was a threat ot sabotage against the Venezuelan VIASA air company.
Bosch himself, in an interview for American journalists in prison, made no bones about his activities, and threatened further terrorist acts. In a statement for The Daily Journal, he insulted the Head of State which led to his case being referred to a military tribunal. However, he went on belching out vulgar invectives against the President and against the judge who was considering his case.
In a trial at Caracas in 1978, all the defendants were convicted. That was a typical case of crime investigation and denunciation, and that pointed to the grave danger of acts of terrorism in respect of civil aviation and to the connection, as a rule, between these actions and a whole series of other acts of international terrorism subject to prosecution and calling for the cooperation of nations in preventing them.
While recognising the great importance of these Conventions, it would be wrong to presume them to have resolved all issues involved in action to suppress unlawful interference with the operation of air services.
For example, the Conventions had no reflection of instances of destruction of aircraft while parked out of service, as stipulated in paragraph c of Art. 2 of the Montreal Convention, and in the airport hangars, or the destruction of airfield installations outside those relating to air navigation facilities. One essential deficiency of the Conventions is the absence of provisions to make punishable the acts of violence in respect of airport ground personnel. The tragic events in the Fiumicino Airpoit of Rome on December 18, 1973, once more demonstrated how essential it 108 was for such provisions be included in the conventions to suppress unlawful interference with the operation of air services.
On December 18, 1973, a group of terrorists blew up a Pan-American airliner in Fiumicino Airport, killing 30 people. Thereupon, the terrorists seized a West German Lufthansa airliner and left for Athens, having taken several Italian policemen and airport officials hostage along with the passengers on board. Having failed to get their demands met in Athens, the terrorists flew on to Kuwait and landed there. In Kuwait, the terrorists were arrested and the crew and the hostages set free.
The points that mattered in that particular case were:~
---no provision for the protection of airport officials in The Hague and the Montreal Conventions;~
---the fact that the State of Kuwait is not a party to the above-mentioned Conventions and for that reason, technically, the authorities of Kuwait were under no obligation to institute criminal proceedings against the terrorists for the commission of that crime.
Neither did the Conventions reflect the problem of prosecution and punishment of individuals committing their offences outside any national territory. Besides, in virtue of the provisions of the Conventions, several States simuiltaneously have the right to try the offender whereas, considering the purpose of the offence, the right of preferential jurisdiction must belong to the State of registration of the aircraft and, in the event of an act committed in respect of ground equipment or installations, or an aircraft out of service or in hangars---to the state of nationality of ground equipment or registration of the aircraft if the offender is extradited. Yet another outstanding issue is the absence of a system of 109 guarantees to ensure the fulfilment of obligations by States arising from these Conventions.
Most of the acts of terrorism in their most brutal form are now being committed because of the unresolved crisis in the Middle East. However, far from all the Stales of fluMiddle East have signed or acceded to the Tokyo, The Hague and the Montreal Conventions. For example, the Middle East parties to the Tokyo Convention are Libya, Saudi Arabia and Israel; those of The Hague Convention: Iraq, Jordan and Israel; and the Montreal Convention Israel.
This creates additional difficulties in effective action against the unlawful acts of interference with the operation of air services.
One thing that is worth identifying in this context is to what extent the offences committed on board an aircraft or acts of unlawful interference with the operation of air services can be regarded as acts of international terrorism, how far these offences are compounded by an international element; and what is the attitude of the Conventions, concluded under the ICAO auspices, to the problem of suppression of international terrorist acts in general?
It is difficult to agree with the propositions of a research study of terrorism by the UN Secretariat carried out in compliance with the decision taken by the 6th Committee at its 1314 meeting, which said that ``.. .these Conventions do not deal directly with terrorism. They contain no express provisions on that subject".^^1^^
_-_-_~^^1^^ UN General Assembly, A/C. 6/418, 2 November 1972, p. 32.
110It is a matter of common knowledge that acts of violence which began with attempts at seizing control of an aircraft with a view to using it as a convenient transport vehicle so as to leave the confines of a State, have subsequently escalated into aircraft hijacking with a view to taking hostages or directly destroying aircraft because of their registration in a certain State.
All that involved the death of innocent people, with most diverse tactics of violence being used, thereby undermining confidence in air transport, and breeding a sense of fear and uncertainty on the part of the crew of aircraft, passengers, service personnel and the staff of other services and structures used in civil aviation.
No sooner had the unlawful acts of interference with the operation of air services begun to be committed than the question arose of how these offences were to be identified.
One term that has been used very often in this connection is ``air piracy''; this term has been borrowed from the national legislation of the United States, notably from the 1958 Federal Aviation Act.
An amendment approved in 1961 to the 1958 Federal Aviation Act stipulated punishment of the crime of ``air piracy''. ``Air piracy" was defined in that amendment as any seizure or exercise of control by means of force or violation or threat of force or violation pursuing hostile purposes in respect of aircraft in commercial flight. However, subsequently, the States, in working out appropriate conventions, stopped using that term in specifying the elements of the offence. That was done with perfect reason because piracy (or maritime brigandage), as defined in Art. 15 of the 1958 Geneva Convention on the High Seas, was any of the acts listed below:~
1111. Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed^^1^^ :~
a) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
b) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.
Paragraphs 2 and 3 treat as piracy voluntary participation or incitement to, or deliberate cooperation in the commission of acts within the meaning of paragraphs 1 and 2.
Although Art. 15 does contain the term ``aircraft'', the unlawful seizure of an aircraft or its complete destruction for political reasons is quite a far cry from the corpus delicti within the meaning of Art. 15 of the Geneva Convention on the High Seas. Unlawful interference with the operation of air services consists in the improper use of aircraft as a means of conveyance or as an object of attack. Various forms of violence, threat or blackmail, which the offenders apply in respect of the crew in such circumstances, do not aim at depredation or personal enrichment. The offenders, as a rule, demand a change of course by an aircraft. Neither the aircraft itself, nor its cargo, nor the passengers' _-_-_
~^^1^^ Considering that paragraph 1 of Art. 15 does not rover the acts of piracy committed by State-owned ships, the Soviet Union, Hungary, Czechoslovakia and Romania declared, as they signed the Convention, that ``the definition of piracy given in the Convention does not cover certain acts which under contemporary international law should be considered as acts of piracy and does not serve to ensure freedom of navigation on international sea routes".
112 property are appropriated in the process, as a rule. Moreover, piracy is in no way associated with attempts at destroying aircraft up in the air by time-bombs.Soviet legal literature has likewise used the term ``air banditry''. It should be remarked that while the use of this term is somewhat consistent with the acts. of seizure of an aircraft involving violence against members of the crew, it does not reveal the corpus delicti applied to cases of damage done to ground-based equipment or the blow-up of aircraft in the air or on the ground. Besides, the term ``air banditry" is associated, first and foremost, with acts of violence committed in respect of individuals or public and social institutions.^^1^^ Destruction, demolition or blowing up of property is normally qualified as an act of sabotage in national practice.^^2^^ At the same time, an act of terrorism, depending on the object of attack or mode of commission, may take on the form of:~
----political assassination (killing a person),~
---sabotage (destruction of property),~
---banditry (organisation of raids).
Concluding, we should note that the qualification of acts of violence constituting an offence under the Hague and Montreal Conventions, as acts of international terrorism committed in air transport, will respond in fuller measure to all the particulars of such an offence^^3^^ ancWirtually correspond to their character.
~w _-_-_~^^1^^ See, for instance, Art. 77 of the Penal Code of the RSFSR.
~^^2^^ See, for instance, Art. 68 of the Penal Code of the RSFSR.
~^^3^^ See, for instance: J. Dugard, ``International Terrorism: Problems of Definition'', International Affairs, January 1974, Vol. 50, No. 1, p. 71.
__PRINTERS_P_113_COMMENT__ 8---2351 113 __ALPHA_LVL2__ 3. THE 1971 CONVENTION TO PREVENTThe rising number of acts of terrorism committed on the American continent led to the Inter-American Commission on Human Rights adopting a resolution in April 1970 concerning terrorism for political or ideological purposes in which it condemned acts of political terrorism and urban or rural guerrillas as being grave violations of human rights and fundamental freedoms^^2^^ having ``forgotten'', however, to point to violations of the same freedoms in Latin American countries under dictatorial regimes.
The Permanent Council of the Organisation of American States (OAS), meeting on May 15, 1970, approved a resolution, based on a report submitted by its Legal-Political Committee, which, inter alia, condemned acts of terrorism and in particular the kidnapping of persons and extortion in connection therewith as crimes against humanity.^^3^^ On June 30, 1970, the General Assembly of the OAS adopted a resolution entitled "General Action and Policy of the Organisation with regard to Acts of Terrorism and, especially, the Kidnapping of Persons and _-_-_
~^^1^^ Signed at Washington on February 2, 1971, by Colombia, Costa Rica, Dominican Republic, Jamaica, Honduras, Mexico, Nicaragua, Panama, Salvador, Trinidad and Tobago, USA, Uruguay and Venezuela.
~^^2^^ See: OAS/Ser/L/V/IL23. Doc. 19, Rev. I, 23 April 1970.
~^^3^^ See: Resolution CP/Res. 5(7/70) OAS Official Records, Ser. G.
114 Extortion in connection with that Crime''. The General Assembly charged the Inter-American Juridical Committee with preparing, within 60 days, one or more draft interAmerican instruments on kidnapping, extortion, and assaults against persons in cases in which these acts may have repercussions on international relations.^^1^^ The Third Special Session of the OAS General Assembly, meeting in Washington from January 25 to February 2, 1971, adopted a ``Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion That Are of International Significance".Structurally, the Convention consists of a Preamble and 13 Articles. The Preamble emphasises that the General Assembly of the Organisation of American States, in Resolution 4, of 30 June 1970, strongly condemned acts of terrorism, especially the kidnapping of persons and extortion in connection with that crime, which it declared to be serious common crimes, pointing out that criminal acts against persons entitled to special protection (emphasis added) under international law are occurring frequently, and those acts are of international significance because of the consequences that may flow from them for relations among states. The object of the Convention, the Preamble said, is to adopt general standards that will progressively develop international law as regards cooperation in the prevention and punishment of such acts.
Art. 1 stipulates the undertaking of the Contracting States to cooperate among themselves by taking all the measures that they may consider effective, under their own laws, and _-_-_
~^^1^^ See: Resolution AG/Res. 4(1/70). Rev.l.OAS (Official Records) Ser. P.
115 especially those established in this Convention, to prevent and punish acts of terrorism, especially kidnapping, murder and other assaults against the life or physical integrity of those persons to whom the State has the duty according to international law to give special protection, as well as extortion in connexion with those crimes.^^1^^Art. 2 qualifies the above-mentioned crimes as common crimes of international significance, regardless of motive [emphasis added].
It would seem that the present list of offences punishable under this Convention, presupposes establishing special protection from them and the range of persons to be thus protected: however, there are no such provisions in the Convention.
Although Art. 3 does say that persons who have been charged or convicted for any of the crimes referred to in Art. 2 shall be subject to extradition under the extradition treaties in force between the parties or, in the case of States that do not make extradition dependent on the existence of a treaty, in accordance with their own laws, its subsequent provision virtually ignores the very fact of this Convention having been drafted: ''... in any case it is the exclusive responsibility of the State under whose jurisdiction or protection such persons are located to determine the nature of the acts and decide whether the standards of this Convention are applicable..." (emphasis added). This means, as a matter of fact, that the State will itself establish whether the given case shall be treated under the Convention or not.
_-_-_~^^1^^ Hereinafter, the quotations are from the text of the Convention as published in UN General Assembly A/C.6/418, Suppl. No. 5, pp. 1--4.
116Art. 4 reads that any person deprived of his freedom through the application of this Convention shall enjoy the legal guarantees of due process.
Art. 5 formalises the principle of aut dedere aut judicare since when extradition requested is refused, the requested State is obliged to submit the case to its competent authorities for prosecution as if the act had been committed in its territory. This provision is very important for the purposes of the Convention as it does not impair the right of the State to refuse to extradite a person guilty of having committed offences falling under the Convention because he is a national of the requested State or because of some other legal or constitutional impediment.
Since the legislation of the countries of Latin America is known to provide for political and diplomatic asylum, there is a special Art. 6 which says that none of the provisions of this Convention shall be interpreted so as to impair the right of asylum. In fact, this means that the nation that recognises, in full measure, the right of political and diplomatic asylum, may not grant extradition, if it does not want to.
To refuse extradition would, however, be contrary to the purposes and objectives of the Convention under consideration, therefore Art. 7 requires the Contracting States to recognise the offences referred to in Art. 2 as extradition crimes. Art. 7 has two more provisions which may be interpreted to produce quite opposite conclusions:
---extradition in virtue of the participation in the Convention or adoption of Art. 7;~
---refusal to grant extradition because of the legislation of the requested State containing some conditions implying refusal of extradition in this particular case as well as in virtue of the provisions of Art. 6 which, by its substance, 117 leaves intact the institution of asylum and does not relate to other provisions of the Convention.
The wording of Art. 5 is wider than the formula `` according to the conditions established by the laws of the requested State" contained in Art. 7. The conditions for the refusal of extradition shall be liable to identical legal interpretation, to preclude avoidance of the Convention.
There are two points, (c) and (d) of Art. 8 of procedural interest, as they contain the obligation of the States to cooperate in the prevention and punishment of the offences referred to in Art. 2 by:~
(a) taking all measures within their power, and in conformity with their own laws;~
(b) exchange of information and effective administrative measures for the purpose of protecting the persons to whom Art. 2 of this Convention refers;~
(c) assuring every person deprived of his freedom through the application of this Convention every right to defend himself;~
(d) having the criminal acts contemplated in this Convention included in their penal laws [emphasis added];~
(e) most expeditiously complying with the requests for extradition concerning the criminal acts contemplated in this Convention.
As we have already pointed out, the standards having identical substance from the standpoint of their inclusion in the Convention must not be scattered even through the paragraphs of one Article so as to avoid divergent interpretation and application of the Convention.
One positive aspect of this wording of the Article is the compulsory nature of the provision it has for national penal 118 laws to incorporate the corpa delicti falling within this Convention.
Although this Convention has been signed within the framework of the Organisation of American States, the text of its Art. 9 warrants the assumption that the Convention contemplates a wider range of Contracting States as it is open to for signature by:~
1) member States of the Organisation of American States;~
2) members of the United Nations or any of its specialised agencies or any State that is a party to the Statute of the International Court of Justice;~
3) any other State that may be invited by the General Assembly of the Organisation of American States to sign the Convention.
To sum up this review of the Convention, the following conclusions can be made:~
1) the Convention does not indicate the corpa delicti falling within it;~
2) while mentioning the term ``special protection" in Art. 2, the Convention does not specify the juridical substance of this notion;~
3) the Convention contains no list of persons (not even the principle of drawing up one), to be granted ``special protection'';~
4) it does not contain any clear distinction between the obligations of the State arising from its recognition of the right of asylum, its commitments under the Convention and the proper consideration for the constitutional and related provisions of domestic, legislation of the State (Arts. 5, 6, 7).
Other positive aspects of the Convention, in our view, are:
1191) the presence of the aut dedere aut judicare principle which must keynote any Convention whose purpose is to suppress acts of terrorism of international significance (Art. 5);~
2) formulation of the commitment of the States to include in their respective penal laws criminal acts falling within the Convention (Art. 8, paragraph d);~
3) an attempt to make the Convention universal through the wording of Art. 9.
However, even considering all these positive elements of the wording of the Articles of the Convention, one can hardly expect it to become universal on account of essential shortcomings in its provisions.
__ALPHA_LVL2__ 4. THE 1973 CONVENTION ON THE PREVENTIONThere have been quite a few violations of the personal inviolability of diplomatic agents in recent years. These have, for the most part, been direct criminal acts against the individual, the freedom and dignity of diplomatic agents.
By no means in all of these cases have the offenders been traced and punished. In a wide range of instances, the official authorities concerned have failed to take proper action to prevent criminal assaults on the person, freedom and dignity of diplomatic agents, or take measures 1o punish the guilty parties.
These acts of violence and arbitrary practices in respect of official representatives of States abroad have placed in 120 jeopardy the ``principle of inviolability" of the person of a diplomatic agent (Art. 29 of the 1961 Vienna Convention on Diplomatic Relations) as well as the principle of protection of consular officers ``to prevent any attack on their person, freedom or dignity" (Art. 40 of the 1963 Vienna Convention on Consular Relations).
The provision to ensure the inviolability of the person of diplomatic agents means recognition of the fact that certain immunities and privileges for such agents are indispensable for the relationship of sovereign and independent nations. Special protection in this sense means more reliable protection than that which these States are obliged to grant to private persons.
The principle of inviolability of the diplomat and diplomatic mission was formalised in Arts. 22 and 29 of the 1961 Vienna Convention on Diplomatic Relations. It should be noted that in its commentary on the final version of the draft Art. 27 on diplomatic relations and immunities, which was basic to Art. 29 of the Vienna Convention, the International Law Commission emphasised that this principle did not preclude measures of self-defence in respect of a diplomatic agent or, under emergency circumstances, measures to prevent him committing an offence or a misdeed.
The provisions concerning the protection of consular officers and premises are to be found in the 1963 Vienna Convention on Consular Relations (Arts. 31 and 40) and in upwards of 10 thousand bilateral consular conventions.
The inviolability of the representatives of the sending State and that of the memliers of the diplomatic staff of a special mission as well as the premises of that mission is envisaged by the provisions of the 1969 Convention on Special Missions (Arts. =5 and 29) and by the draft Articles 121 on the representation of States in their relations with international organisations worked out by the International Law Commission.
A whole series of other categories of persons involved, as official representatives of a certain State or international organisation, in the exercise of international contacts are also granted special protection in conformity with the customs of international relations or specific international agreements.
As a rule, most of the offences are committed with a view to deriving political benefit or settling political issues through seizure, isolation, acts of violence, acts of provocation or even assassination of official representatives of particular States.
In view of this, the International Law Commission, at its 22nd Session in 1970, considered a letter of May 14, 1970, from the Chairman of the Security Council, accompanying a copy of a document sent to the Chairman of the Security Council by the Dutch Ambassador to the UN. The document referred to the need to undertake certain action to ensure the protection and inviolability of diplomatic agents because of the increasingly frequent attacks on them. The Commission found this problem urgent but deferred decision on the subject because it was necessary to finalise the drafting of the Articles about the representation of States in their relations with international organisations.
The UN General Assembly, in its Resolution 2780 (Twenty-Sixth Session) of December 3, 1971, while approving the views expressed by the Commission in its report, notably, the Commission's opinion regarding the importance and urgency of consideration of the problem of protection and inviolability of diplomatic agents and other 122 persons entitled to special protection under international law, requested:~
1. The Secretary-General to invite comments from Member States before 1 April 1972 on the question of the protection of diplomats and to transmit them to the International Law Commission at its Twenty-Fourth Session;~
2. The International Law Commission to study as soon as possible, in the light of the comments of Member States, the question of the protection and inviolability of diplomatic agents and other persons entitled to special protection under international law with a view to preparing a set of draft articles dealing with offences committed against diplomats and other persons entitled to special protection under international law for submission to the General Assembly at the earliest date which the Commission considers appropriate.^^1^^
In accordance with Section 3 of the Resolution 2780 (XXVI) of the UN General Assembly, dated December 3, 1971, the Member States submitted their comments on the question of protection and inviolability of diplomatic agents and other persons entitled to special protection under international law. Comments were submitted by 26 States; an overwhelming majority of them---19 countries^^2^^ spoke up for a special convention to be adopted on that subject. However, the community of views about the necessity of adopting such a convention did not mean an identical approach to the said problem. Some countries had simply accepted _-_-_
~^^1^^ Yearbook of the United Nations, 1971, Vol. 25, UN, New York, 1974, pp. 594, 595.
~^^2^^ Belgium, Brazil, Canada, Czechoslovakia, Denmark, Ecuador, Great Britain, Iran, Israel, Jamaica, Japan, Kuwait, Madagascar, the Netherlands, Niger, USA, USSR, Ukraine, Yugoslavia.
123 the need to adopt the convention (Brazil, Iran, Kuwait, Niger, Czechoslovakia, Ecuador, Jamaica, Japan) while others saw the Convention as designed to link the definition of an international crime with certain offences affecting international relations (Belgium). The United States, for instance, considered that a major purpose of such a convention should be to eliminate to the greatest extent possible ``safe havens" for persons who committed crimes of this nature. Denmark, apart from the draft Convention (the Rome Draft), put forward the idea of establishing a system of international cooperation in the suppression of terrorism without, however, specifying the structure, purposes and objectives of such a system. The comments by the representatives of the Netherlands and Great Britain suggested the States should be offered certain possibilities of ``escape'' in respect of the obligation ``to prosecute or to extradite''. The Canadian Government stressed that the convention should contain as few innovations and obligations as possible, so that a large majority of States might quickly accede to it. It is the positions of France and Australia that were of particular interest among the States which reacted negatively to the idea of having an international convention drafted.^^1^^ On balance, this group of nations considered it inexpedient to create new standards in this area and pointed Out that it was necessary to have the existing conventions better complied with (Norway, Rouanda). Colombia and Argentina proceeded from the assumption that their domestic legislation was sufficiently effective. The comments _-_-_~^^1^^ Australia, Argentina, Colombia, France, Norway.
124 submitted by the Government of France were more detailed. They said, in particular:~---the French Government objects to the very principle of any new standards being devised in this area;~
---the problem is one of effectively applying the standards that already exist, and theic is no need to dilute the old standards by fixing new ones;~
---it is the agreement of the majority of States that should make the new convention effective;~
---it is necessary to specify the range of persons entitled to special protection under international law;~
---the States already know, from the standpoint of their national legislation, about all acts of violence on the human person subject to criminal proceedings, so all that remains to be done is to specify the form of the offence;~
---the French Government could not accept a text which did not reserve the principle of the expediency of the prosecution. The only obligation which could possibly be considered is that of referring the case to the authorities competent to institute criminal proceedings;~
---the convention should not exclude the possibility of refusing extradition in the event of a crime of political significance;~
---the convention may have the character of a treaty on legal aid only in matters relative to the punishment, not the prevention, of a crime.
Let us note, first of all, that these comments are not free from certain contradictions. For example, while denying the principle of drafting a new convention, the French Government found it necessary to introduce a certain measure of precision^ in the definition of the form of the offence. But, as is wc^\ known from the theory of criminal 125 law, a penalty under this law has to be selected, considering the degree of the social danger of the offence. Besides, the only way to specify the form of a crime of international significance is through direct consultations between states, which have to be formalised by a certain document ( agreement on legal aid or a convention codifying appropriate standards of law).
It is likewise necessary to add that an offence against an official representative of a state involves, as a rule, political complications.
In consequence, France's comments on this subject imply refusing extradition in general as a means of criminal proceedings on an international scale. One positive point in these comments is the emphasis laid on the need for faithful observance of the existing standards in this area and a clearer definition of the corpus delicti in drafting the Convention.
One interesting idea has been put forward by Australia which proposed producing a ``code of desirable practice".^^1^^
This proposal could be interpreted in two ways, either as practice that has already taken place in respect of the offences of this kind or practice of uniform application of the given standards in this matter. In either case, the unclear wording and reliance on actual experience alone could produce no solution without a detailed elaboration of the issue as a whole.
The Twenty-Fourth Session of the International Law Commission, meeting from May 2 to June 7, 1972, set up a working group to consider the problems arising from the _-_-_
~^^1^^ General Assembly Official Records, -fwenty-Seventh Session, Suppl. No. W/A/8710/Rev. I, p. 109.
126 comments made by various States and draft a series of articles to be submitted to the Commission.The working group held seven meetings before it could provide the Commission with the first report containing 12 Articles on the prevention and punishment of crimes against diplomatic agents and other internationally protected persons. The Commission examined the report of the working group and referred the draft articles for reconsideration in the light of the comments made during the discussion. Most of its members supported the general approach adopted in relation to the Articles. Some doubted again whether there was any point in specifying the principle of territorial asylum in the context of political crimes. It was pointed out that Art. 6 of the OAS Convention specifically provided that ``none of the provisions of this Convention shall be interpreted so as to impair the right of asylum" and it was also pointed out that the right of territorial asylum was traditional in Latin America. It is likewise necessary to stress that other members of the Commission doubted whether the Convention would be really effective in assuring protection since the relevant experience of the League of Nations had been unsuccessful: for example, the League of Nations Convention on the Prevention and Punishment of Terrorism, dated November 16, 1937, had been ratified only by one State. However, the positive value and also the area of application of the draft Articles on this subject had been indicated by Resolution 2780 of the Twenty-Sixth Session of the General Assembly.
The Commission examined the second and third reports of the working group and adopted the 12 draft Articles on the prevention and punishment of crimes against diplomatic agents and other intfei ^tionally protected persons. In 127 accordance with Arts. 16 and 21 of the Status of the Commission, it was decided to submit the present tentative draft Articles to the General Assembly and distribute it among the governments concerned for comments. Notably, draft Art. 1 says:~
1. ``Internationally protected person" means:~
a) a Head of State or a Head of Government, whenever he is in a foreign State, as well as members of his family who accompany him;~
b) any official of either a State or an international organisation who is entitled, pursuant to general international law or an international agreement, to special protection for or because of the performance of functions on behalf of his State or international organisation, as well as members of his family who are likewise entitled to special protection.
2. ``Alleged offender" means a person as to whom there are grounds to believe that he has committed one or more of the crimes set forth in Art. 2.
3. ``International Organisation" means an intergovernmental organisation.^^1^^
Therefore, the grounds for granting special protection to the above-mentioned persons are, first, their status of official representative of a State or an international organisation, subjects of international law, and, second, the fact that they perform the official functions imposed on them.
In formulating sub-paragraph (b), the Commission found inspiration both in Art. 2 of the OAS Convention which refers to those persons to whom the State has the duty to _-_-_
~^^1^^ Quoted here and hereinafter from General Assembly, Official Records, Twenty-Seventh Session, Sup?!. No. 10/A/8710/Rev. 1, p. 9.
128 give special protection according to international law and in Art. 1 of the Rome Draft (submitted by Denmark), which refers to:~a) members of permanent or special diplomatic missions and members of consular posts;~
b) civil agents of States on official mission;~
c) staff members of international organisations in their official functions;~
d) persons whose presence and activity abroad is justified by the accomplishment of a civil task defined by an international agreement for technical cooperation or assistance;~
e) members of the families of the above-mentioned persons.
In this case, special protection is provided in accordance with the official function of a representative of a State in any particular field.
Therefore, a diplomatic agent who is on leave in a State which is not an accrediting or receiving State will not, as a rule, be entitled to special protection. However, some members of the Commission said that if the object of the Convention was to reduce the incidence of attacks on internationally protected persons as such, the operation of the Convention must cover them irrespective of whether they are on an official visit in a foreign State or on holiday. The Commission, however, arrived at the conclusion that such an extension of the existing rules concerning the requirements of inviolability and special protection would not be justified.
This proposition does not appear to us to be altogether correct since immunities and privileges are accorded to a person abroad in virtue of the diplomatic passport he __PRINTERS_P_129_COMMENT__ 9---2351 129 carries, issueH by the accrediting State, and following the recognition by the host State of the diplomatic character of the given passport. By the very issue of a passport, the accrediting State is asking for the given person to be considered vested with no ordinary immunities and privileges during his sojourn abroad.
Art. 40 of the 1961 Vienna Convention on Diplomatic Relations, Art. 54 of the 1963 Vienna Convention on Consular Relations, Art. 42 of the 1969 Convention on Special Mission and Art. 78 of the draft Articles of the Commission on Representation of States in their Relations with International Organisations concerning the transit through the territory of a third State are known to stipulate that this third State shall accord the appropriate person proceeding to take up or to return to his post in the host State or the receiving State, or returning to his own country, inviolability and such other immunities as may be required to ensure his transit or return.
In view of the fact that the main object of the adoption of this draft is to render inescapable the punishment of the crimes committed against persons entitled to special protection, it has to be borne in view that special protection in this case must mean:~
1) qualifying offences as criminal regardless of motive;~
2) choosing maximum penalties under internal law for the crimes committed against persons entitled to special protection as distinct from penalties for similar offences against private foreign persons or nationals of the given State;~
3) ensuring the inescapability of punishment which may be meted out by the principle of aut dedere aut judicare. The Choice of the maximum penalties under the criminal 130 law of a State removes considerable differences from the standpoint of the extent of consequences for the crimes committed in different States.
Draft Art. 2 says, in particular, that~
1. The intentional commission, regardless of motive, of:~
a) a violent attack upon the person or liberty of an internationally protected person;~
b) a violent attack upon the official premises or the private accommodation of an internationally protected person likely to endanger his person or liberty;~
c) a threat to commit any such attack;~
d) an attempt to commit any such attack; and~
e) participation as an accomplice in any such attack, shall be made by each State Party a crime under its internal law, whether the'commission of the crime occurs within or outside of its territory.
2. Each State Party shall make these crimes punishable by severe penalties which take into account the aggravated nature of the offence.
3. Each State Party shall take such measures as may be necessary to establish its jurisdiction over these crimes.
The provisions of Art. 2 refer to two different but interrelated questions: a) that of delimiting the scope of the Convention through the definition of the crimes it is to be applied against and b) that of specifying the competence of the State Party in respect of criminal proceedings and punishment of these crimes.
During the discussion of this Article, the members of the Commission were divided along two lines. Some insisted on a more accurate formulation of the corpa delicti on the grounds that the Articles pertaining to the area of criminal justice must be as specific as possible because the __PRINTERS_P_131_COMMENT__ 9* 131 interpretation of certain offences would have to be done.by the restiictive principle. The Commission considered, however, that it would be preferable to use the general expression ''violent attack'', in order both to provide substantial coverage of such offences and at the same time to avoid the difficulties arising from a listing of specific crimes in a convention intended for adoption by a great many States.
The comnientaiy on this Article says that examples of a violent attack are the murder, wounding or kidnapping of an internationally protected person.
Important provisions of this Article, in our judgement, are:~
---Reaffirmation of the generally accepted legal principle whereby it is the intent to commit an offence, rather than the reasons behind its commission, that is the determining factor;~
---Paragraph (1) incorporates the principle of universality as fundamental to establishing jurisdiction in respect of the offences listed therein. It identifies the basis for jurisdiction comparable with that for jurisdiction in respect of piracy, and for purposes of jurisdiction, ranges the Convention among those providing for cooperation in the prevention and punishment of the crimes affecting the interests of the whole international community, such as slave trade, drug traffic, etc.
It should likewise be noted that, unlike The Hague and the Montreal Conventions and the Rome Draft which use the word ``offence'', the present article employs the term ``crime'' and, besides, it points out that the official status of the victim is readily recognised as a circumstance indicating the gravity of the crime.
The provisions of draft Art. 3 are intended to ensure the 132 adoption of more effective measures to prevent the crimes mentioned in Art. 2.
It says, in particular, that the States Paities shall cooperate in the prevention of the crimes set forth in Art 2 by:~
a) taking measures to pi event the preparation in their lespective territories for the commission of those crimes eithei in their own 01 in other territories;~
1)1 exchanging information and coordinating the taking of administrative measures to prevent the commission of those c rimes.
The provisions of Art. 5 concern the immediate action to be taken when the alleged oflender is discovered on the temloiy of a State Party following the commission of any ol the crimes set forth in Art. 2.
This action, in accordance with Art. 5, is diiected towards seeming ciiminal proceedings or the extradition of the oflendei. The Article also guarantees the right of the alleged offender to contact a representative of the State of which he is a national.
Art. 6, one of the important articles of the Convention, contains the proposition that the State Party in whose territory the alleged offender is present shall, if it does not extradite him, submit, without any exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State.
In consequence, Art. 6 embodies the principle of out dedere aut judicare. This Article accords the State Party in whose territory the alleged offender turns out to be present, an opportunity of choosing between extraditing him or referring the case to its competent authorities for criminal proceedings, i.e., the present Article ensures the principle of 133 inescapable punishment without making it incumbent upon the State to extradite the alleged offender.
Art. 7 calls for a provision which embraces the crimes set forth in Art. 2 to be included in any extradition treaty existing between States Party, if they are not listed as such therein. Besides, the Article says that Contracting States which do not make extradition conditional on the existence of a treaty shall recognise such crimes as extraditable offences between themselves subject to the conditions provided by the law of the requested state.
The present Article substantially reproduces the text of Art. 8 of The Hague and the Montreal Conventions and Art. 5 of the Rome Draft.
Yugoslavia, in its observations, notably on this particular question^^1^^, appears to favour a more radical and more effective approach to the suppression of such crimes.
The Government of Yugoslavia has suggested that a request for extradition may be refused, provided that the State in whose territory the crime was committed and the culprit was found institutes without delay legal proceedings against the said person. There is yet another point in Yugoslavia's observations that, in our view, should be considered to be perfectly justified and consistent with effective defence of protected persons, namely that when several States at the same time claim the right to extradition, the extradition should be granted to the State to which the victim of the crime belongs (especially in case of death). This remark, in our view, should be included as a footnote to the Convention, not as a separate point of an Article for that would _-_-_
~^^1^^ See: General Assembly Official Records, Twenty-Seventh Session, Suppl. A/8710,
134 lay emphasis on extradition thereby upsetting the legal equivalence of extradition and refusal to extradite the offender, as provided for by the given Convention.Art. 8 guarantees fair treatment of any person, against whom legal action has been taken, at all stages of the proceedings.
Art. 9 stipulates that the statutory limitation as to the time within which prosecution may be instituted for the crimes set forth in Art. 2 shall be that fixed for the most serious crimes under the internal law of each State Party.
Art. 11 makes it incumbent on the State Party to communicate the final outcome of the legal proceedings regarding the alleged offender to the Secretary-General of the United Nations.
Art. 12 stipulates that any dispute between the Parties arising out of the application or interpretation of. the present Articles may be brought by any State Party to the dispute before a conciliation commission (Alternative A), or submitted to arbitration on the understanding that if within six months from the date of the request for arbitration, the Parties are unable to agree on the organisation of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court. Furthermore, it formulates the right of any State Party to reserve its stand with regard to the provisions of the previous paragraph (Alternative B).
Summing up the factual material just considered, it is necessary to emphasise that the International Law Commission has correctly, on balance, taken as basic to the draft convention the principle of inescapable punishment of the crimes committed against internationally protected persons, though, however, that did not save the Convention from 135 substantial shortcomings. Tn this context, we would venture a few observations which, if taken into account, could make the Convention an effective international instrument against acts of terrorism falling within it:
1. For the convenience of reference to Articles and also for the logical construction of the entire Convention, it is necessary to have the provisions about legal aid and cooperation to prevent the commission of crimes and about a guarantee assuring the rights of the person against whom legal proceedings are carried out formulated separately and Article by Article.
2. There should be a provision for action against organised crime which could be formulated as a separate Article as follows:~
The Contracting States shall take, in accordance with their internal law, proper measures to disband the organisations existing in their territory if there is enough ground for believing the crimes set forth in Art. 2 of the present Convention to have been committed as a result of the activities of these organisations.
3. It is necessary to separate the elements of the crime set forth in Art. 2 into offences against the person of an internationally protected individual and those committed in respect of official private accommodation.
4. It is likewise important to identify special protection under international law since this protection is provided within the framework of international law and through the agency of appropriate provisions of the internal law of States. As this Convention has the object of according protection in actual practice, the insertion of the concept of special protection in the text of Art. 1 is perfectly justified.
To conclude such a Convention would certainly 136 correspond to the fundamental position of the Soviet Union which has always considered that ``the question of the protection and inviolability of diplomats and other persons entitled to special protection under international law is an urgent one, of great importance and deserves serious attention".^^1^^
The Twenty-Eighth Session of the UN General Assembly, having considered the draft Convention on the Prevention and Punishment of Crimes Against Diplomatic Agents, and Other Internationally Protected Persons, submitted by the International Law Commission, adopted a Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents. Structurally, the Convention was enlarged from 12 to 20 Articles with a Preamble added. The Convention was likewise amended to specify the range of persons and objects, the commission of an act of violence against whom, or threat of such an act or attempt at committing one, or acting as an accomplice in any such act shall involve the application of the Convention.
Art. 12 of the Convention expressly emphasises that the provisions of this Convention shall not affect the application of the Treaties on Asylum, in force at the date of the adoption of this Convention, as between the States which are parties to those Treaties; but a State Party to this Convention may not invoke those Treaties with respect to another State party to this Convention wihich is not a party to those Treaties. This provision enables the Convention to be applied in the context of Latin America where political and diplomatic asylum is a traditional institution. The Convention now contains re-edited and rearranged Articles _-_-_
~^^1^^ Ibid., p. 122.
137 concerning the legal proceedings of States in virtue of their participation in the Convention. The Convention should be regarded as deficient because it has no Article concerning the organisations whose activities lead to the commission of crimes punishable under the Convention.The Twenty-Eighth Session of the UN General Assembly succeeded in drawing up a Convention to meet the interests of the overwhelming majority of States, which means it may well be expected to play an important part in the suppression of acts of terrorism creating a grave threat to the maintenance of normal international relations.
The events of recent years have furnished ample evidence to demonstrate the necessity of effective enforcement of the standards of international law designed to protect the activities of official representatives of States, international organisations and peoples in battle for national liberation, against foreign occupation and racism. However, a whole series of States and their officials continue to commit more and more crimes against the heads of sovereign States, representatives of nations and of national liberation movements which are subjects of international law.
For years, the Soviet Mission at the UN in New York and many other permanent representative offices of socialist and developing countries, their staff and members of their families have been the target of the terrorist action of the so-called Jewish Defence League. In June 1981, the Soviet Mission said in a note to the US Ambassador to the UN that an incendiary device had been discovered within two metres of a school bus on a bus parking lot inside the Mission's residential area in New York on May 17, 1981. Earlier on, three incendiary devices had been found near the Mission's country retreat in a New York suburb. These acts, 138 the note went on to say, had been undertaken in the context of an unending campaign of threats and intimidation, daily telephone calls about bombs alleged to have been planted in the Mission's buildings, and threats from the terrorist organisations Omega-7 and the Jewish Defence League. In September 1981, the Jewish Defence League claimed responsibility for blowing up the car of a Nigerian diplomat which was parked near the Soviet Mission at the UN.
The Soviet Mission in its notes more than once called on the American authorities to take all the necessary measures to ensure the security and normal conditions for the activities of the Mission and its staff as well as the Soviet staff of the UN Secretariat and to put an end to provocative attacks by Zionist terrorists.
The UN Committee for Liaison with the host country repeatedly declared such attacks to be intolerable.
One of the Soviet Mission's notes said that these attacks were part of a terrorist campaign and that there was no room in civilised society for terrorism in any shape or form.
A PLO representative in Belgium, Nairn Haddar was killed with five pistol shots in a Brussels street on June 1, 1981. It was beyond doubt, the PLO Office in Brussels said, that the assassination of Haddar had been the work of Israeli secret services. The murder of Haddar was not the first crime of this kind to have been committed against prominent Palestinian and other Arab representatives in the countries of Western Europe. Five Palestinian representatives have been murdered in Paris alone during the last few years. In May 1981, the French police arrested three Israelis who confessed to having raided the offices of the Syrian Airlines in Paris.
139According to Western press reports, back in 1972 the Israeli Government set up a special group, designed to at t against the Palestinian resistance movement, with the task of oiganising the assassination of Palestinian leaders and acts of terrorism against members of the staff of PLO missions in the countries of Western Europe. The French Ambassador to Lebanon, Louis Delamare, was assassinated in Beirut right after the visit of the Fiench Foreign Minister, Claude Cheysson, to Lebanon in 1981, his meetings with Yassir Arafat, Chairman of the PLO Executive, and his statement in favour of a fair solution to the Palestinian problem, taking into account the legitimate rights of the Arab people of Palestine.
Following the shooting at the Embassy of the People's Democratic Republic of Yemen in Paris with jet weapons, causing a fire and extensive material damage, the Ministry of Foreign Affairs of the PDRY said in a statement on June 17, 1981, that this criminal act was part of a Zionist plan aimed at escalating terrorism worldwide.
The Minister of the Interior of India, Zail Singh made a statement in parliament on April 28, 1981, about an attempted act of sabotage on the aircraft by which Prime Minister Indira Gandhi was to have set off on a foreign tour early in May that year. A check-up revealed that somebody had deliberately damaged four cables so that the aircraft was to have got out of control and crashed sometime after the take-off. Local observers noted that news about that act of sabotage spread immediately after the Indian press had reported preparations made by Afghan counter-- revolutionaries for a succession of terrorist acts in Delhi. As the Hindustan Times wrote, quoting security sources, a special group had been smuggled into the Indian capital for that 140 purpose The group had been trained under the guidance ol CIA specialists. It was to have committed assassination attempts on several members of the Indian Government and also to have staged acts of sabotage against Air India and Indian Airlines, against a number of diplomatic missions in Delhi.
President Rajai of Iran and Prime Minister Bakhtiar v\eic killed in an explosion in Teheran in September 1981. An official announcement said that act of terrorism had been planned, organised and carried out by agents of American imperialism and Zionism and the new Iranian Prime Minister, Ayatollah Mahdawi Kani declared that there was a ``fifth column" in action in that country intent on destroying the existing system.
The world was shocked by the attempted assassination of Pope John Paul II on May 13, 1981. The inquiry revealed that the man who made that attempt, Mehmet Ali Agca, a Turkish subject who had close connections with the neoiascist party ``Grey Wolves" of the nationalist movement in Turkey, whose leaders have since been brought before a military tribunal on a trial for subversive actions in that country, had killed the editor of the liberal bourgeois Milliyet newspaper, Abdi Ipecci, back in 1979. He had been arrested and sentenced to death, but escaped from the Istanbul jail a few days before the sentence was to have been carried out. After illegally leaving Turkey, he settled in West Germany where branch offices of that Turkish neofascist party are acting in full freedom, backed up by West German secret services. Ankara has more than once called on the West German authorities to extradite the criminal, but received no answer. An accomplice of the terrorist, Mehmet Sener, who, as the inquiry revealed, had contacted Italian 141 neofascists and received a pistol from them for Mehmet Ali Agca, was arrested in Italy late in May 1981. Now, that the Italian neofascists have the CIA behind them is a matter of common knowledge. However, the USA has been trying all the time to blame any act of terrorism on progressive forces to misguide public opinion.
The death of the former President of Panama, Omar Torrijos in an air crash in 1980 led many to conclude that it had been a CIA-plotted act.
A Panamanian journal, Didlogo Social published an interview of the General's brother, Monchi Torrijos. He said, in particular, that wherever he had travelled he heard everybody claim that it had been an act of terrorism. The only difference of opinion was about who had committed it---Somozistas, the Panamanian oligarchy or the ones and the others. Monchi Torrijos declared, in particular, that Omar Torrijos had been an obstacle to imperialist scheming in Central America; US imperialists could not forgive Omar for having played an active part in the liberation of Nicaragua and for his friendly disposition towards Cuba and Fidel Castro, for having spoken up against the blockade of Cuba and supporting the fighters against the ruling oligarchy in El Salvador and strongly resisting US intervention in Central America. Monchi Torrijos had, in fact, blamed Reagan for that crime. He declared that in 1976, Congressman Philip M. Crane published a book Surrender in Panama with Reagan's preface full of invectives against the General. In an article that appeared while the election campaign was still going on, Reagan put forward an argument which he has since repeated more than once w'thout any evidence to support it: if the USA turned the Canal over to Panama, it would turn out to be in Fidel Castro's hands.
142The first assassination attempt on General Torrijos was made in 1971 when he called the people together in a Panama city square on May 5, and made a spirited anti-US speech. The second one was undertaken in 1973 just before the UN Security Council met in Panama. The third one succeeded. Monchi Torrijos said that American reconnaissance satellites were monitoring all the movements of aircraft and ships in the neighbourhood of the Panama Canal; the armed forces under the US Southern Command kept under their surveillance all the planes used by Omar Torrijos and all the places he visited; the Americans knew perfectly well that he was flying to Coclecito twice a week and remembered his itinerary. To bring down the small aircraft Omar Torrijos travelled by was a trifling operation for people versed in supersophisticated technology, Monchi Torrijos wrote.
Monchi Torrijos said outright that a President that was dreaming of the neutron killer-bomb and sanctioned its production and eventual employment would not torment himself with doubts about ``removing'' a man he found to be in the way of his expansionist drive in the region. Besides, the mathematical probability of accidental death in air crashes of the Ecuadoran President Roldos, the Peruvian General Hoyos, and General Torrijos in the space of one year was zero. Now, what distinguished all those men was a determination to oppose the Yankee penetration of their countries. The last word about the background to the death of Torrijos has yet to be said.
Monchi Torrijos declared that US imperialism wanted to have an easy-to-rule government in Panama so as to make that country a Yankee stronghold for any intervention in Central America.
143The anti-Libyan campaign in the USA with Col. Muammar Gaddafi having been declared something like the supreme terrorist, is yet another case in point. In December 1981, the US authorities went as far as to announce officially that a Libyan ``Hit Squad" had entered the United States with instructions to kill President Reagan and members of his family, and also, perhaps the Vice-President, White House officials, Pentagon and State Department chiefs.
And even though that ``official announcement" was actually exposed right away as a bluff by the US press itself (Newsweek of December 14, 1981, said: ``The government's information has come principally from an informant---a former Lebanese terrorist . . . now in CIA custody . . .'') and the Libyan leader, Muammar Gaddafi dismissed it in an ABC interview as sheer lie, the National Security Council went into two-day session to devise ``retribution'' plans: from an economic blockade right up to a full-scale armed intervention. There were allegations that the terrorists had been trained in one of the East European countries.
Gaddafi unequivocally declared that the only reason why Washington had wanted all that was in order to lash out against Libya. In reality, it was the US authorities that had more than once prepared to assassinate him, in various ways, as by poisoning his food. .. One of the leaders of the Libyan Revolution, Abdul SaLam Ahmed Jalud declared during his visit to Ethiopia that Libya was opposed to terrorism in any shape or form, and called on the international community to denounce the hypocrisy of the US Administration .. .
The Washington Post columnist, Haynes B. Johnson frankly said all that reminded one of the anti-Cuban campaign at the time when the invasion of the Bay of Pigs and the 144 assassination attempt on Fidel Castro had been prepared.
That was a conspiracy against an independent and sovereign Arab State acting from anti-imperialist positions and just one more attempt at galvanising the false stories about ``international terrorism'' being supported by the Soviet Union and other socialist countries.
As the facts indicate, the authorities of a number of States have deliberately stalled the launching of an effective conventional mechanism assuring inescapable punishment for the commission of crimes, connived at the latter and disregarded the elementary standards of international law, which could not but hamper the cooperation of nations in the suppression of terrorism.
__ALPHA_LVL2__ 5. THE 1977 EUROPEAN CONVENTIONHalf of all the acts of terrorism committed in the 70s, occurred in Western Europe, as we have already said. It is in the capitalist countries of Europe that the major terrorist organisations are operating. Let us have a look at some of them.
The Coordinating Centre of Aginter Press was set up in Lisbon in 1953. In 1956, two lines became distinct in its activity: propaganda and outright terrorism (``armed struggle against international Communism'').
At the present time, Aginter Press has its headquarters in Spain and maintains contact with Ordine nuovo (New _-_-_
~^^1^^ The Convention has been signed by Austria, Belgium, Cyprus, Denmark, Greece, France, Iceland, Italy, Luxemburg, Netherlands, Norway, Portugal, Sweden, Swit/erland, Turkey, West Germany. It came into force on August 4, 1978.
__PRINTERS_P_145_COMMENT__ 10---2351 145 Order), Avanguardia nazionale, the neofasrist Italian Social Movement and other groups of this kind in Italy; tin: neo-Nazis in West Germany; the National Front of Andrew Fountaine, a fascist, and the Monday Club (right-wing Conservatives) in Britain; the extreme right-wing Occident organisation and the National Front in France; the fascist organisations of Luis Garcia Rodriguez and right-wing Catholics in Spain, along with neo-fascist centres in Barcelona and Madrid; and Jeune Europe (Young Europe) and Nouvel Ordre Europeen (New European Order) in Belgium and Switzerland.The Lausanne-ba,sed Nouvel Ordre Europeen (NOE) Centre was founded in 1951 and comprises the French Action europeenne organisation, extremists of the Italian Social Movement, the Spanish Circle of the Friends of Europe, and the Greek 4th of August Movement, to mention just a few.
The Munich Centre includes neo-Nazi groups of West Germany and some renegades from socialist countries and is closely connected with Radio Free Europe.
The World Union of National Socialists is a neoNazi organisation operating in France, West Germany, Great Britain and in countries of Latin America.
The World Anti-Communist League, founded in 1961, is headed by Raimondo Guerrero, a Mexican fascist. The League has extensive connections with a number of kindred organisations of Latin America, and is in close contact with the Munich Centre, Ukrainian nationalists, National Labour Union, and the secret services of the United States, West Germany and Switzerland.
With the fascist regime brought down in Portugal and Spain taking up the road to political democracy, Aginter 146 Press has run into certain difficulties, and the leading role in coordinating the activities of pro-fascist organisations has passed to the Paladin organisation with headquarters at Alicante. According to Western press reports, this organisation has its blanch offices in Paris, Rome, Zurich, Lisbon, and Munich and keeps large amounts of money on its current accounts. Most of these assets have been in banks since the days of the Hitler Reich and are part of the Bormann Foundation. The Paladin is directed by former Nazis, Gerhard Hartmut von Schubert and Johann von Leers.
There are, besides, a number of Jeftist groups commiitted to terrorism in Western Europe. For the most part, their members are young people under 30, coming from the petty bourgeoisie and middle classes (only an insignificant proportion are workers' children). Some of them have worked at industrial enterprises for a short time. Their programmes are a rather limited set of high-flowing ``revolutionary phrases'', while their actions are of a piece with those of profascist groups.
These are, above all, the Red Brigades of Italy, Worker Autonomy, Proletarian Armed Cells, Armed Workers for Communism, Red Army Faction (RAF) in West Germany. Their common practice to procure their means of subsistence is by looting jewelry shops or banks or kidnapping relatives of rich people to get a ransom for them. For instance, in Italy they kidnapped 250 people from 1970 to 1976, having obtained an aggregate ransom of something like 50 billion lire for them.
However, for all the high-sounding phraseology, the aim of such leftist groups is to destabilise the situation which the rightists seek to exploit to lash out against left forces and democracy. Here is a case in point. The actions of the 147 terrorist RAF organisation in West Germany did much to bring about emergency legislation and decrees on extremist control which stimulated the fight against left forces, the hounding of Communists and the instigation of anti-- communist feeling.
The Italian Ilindscita, weekly said that ``terrorism is the armed hand of the crisis against the organised working-class movement, which means that this movement has to defend itsi-lf against such an enemy".^^1^^
The Espresso magazine reported that NATO had long since worked out plans for armed intervention codenamed Atlantida to be carried out in the event of ``emergency circumstances" arising in Italy.
Attempts to destabilise the domestic situation in various countries through terror are undertaken by secret services just when there is a steep rise of the influence of the Communist and working-class movement. However, Washington is all the time trying to blame terrorism on the socialist countries, going as far as to claim that West European terrorists are ``trained'' in Eastern Europe.
In the spring of 1978, for instance, the Italian La Domenica del Corriere newspaper asserted that the West German terrorist, Hans Joachim Klein had been trained for sabotage operations in a special camp in Karlovy Vary, Czechoslovakia, together with other Italian, Spanish and German terrorists.^^2^^ Now, the // Borghese magazine even claimed that the world centre of the Red Brigades was located in Prague.^^3^^ Of course there was no evidence at all offered _-_-_
~^^1^^ Rindscita, May 12, 1978.
~^^2^^ La Domenica del Corriere, April 23, 1978.
~^^3^^ Il Borghese, April 15, 1978.
148 to support that claim. The Czechoslovak RudePravo, rejecting that piece of slander, rightfully noted that the authors of such absurd insinuations ``want to line their coat at somebody's expense, divert attention .. . and slander socialist countries as if they, rather than anybody else, were responsible for Italian terrorism."^^1^^It was not by chance that after the assassination of Moro Italian Communists should have been accused by reactionaries of having connections with the ``Red Brigades".
In an effort to stem the wave of terrorism through improvements in legal machinery and in the performance of the police force, the governments of Great Britain, West Germany, France, Switzerland, Belgium, Denmark, Italy, the Netherlands, Norway and Austria set up special commandotype anti-terrorist groups. The West German unit, consisting of carefully selected and trained volunteers, is believed to be the best anti-terrorist squad. It is using most up-- todate equipment and is a highly mobile group. The abduction and murder of Schleyer and Moro induced West European states to step up cooperation in the fight against terrorists. In April 1978, the nine Common Market countries as well as Austria and Switzerland reached an agreement on pooling their resources to this end. France acceded to the agreement in September 1978.
One thing produced through the legal cooperation of West European states was the European Convention on the Suppression of Terrorism signed at Strasbourg on January 27, 1977. The Convention consisted of a preamble and 16 Articles.^^2^^ As stated in the preamble, the purpose of the _-_-_
~^^1^^ Rude Prnvo, March 22, 1978.
~^^2^^ This analysis of the Convention is based on documents in the European Treaty Series, No. 90, p. 2.
149 Convention was to take effective measures to ensure that the perpetrators of acts of terrorism did not escape prosecution and punishment. It was stressed, furthermore, that extradition was a particularly effective measure for achieving this result. This Convention, as can be seen from Art. 1, does not regard the following offences as a political offence or as an offence connected with a political offence or as an offence inspired by political motives:~---an offence within the scope of the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970;~
---an offence within the scope of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971;~
---a serious offence involving an attack against the life, physical integrity or liberty of internationally protected persons, including diplomatic agents;^^1^^
---an offence involving kidnapping, the taking of a hostage or serious unlawful detention;~
---an offence involving the use of a bomb, grenade, rocket, automatic firearm or letter- or parcel-bomb if this use endangers persons;~
---an attempt to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts to commit such an offence.
_-_-_~^^1^^ This is, evidently, a reference to offences within the scope of the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents.
150Analysing the afore-mentioned corpa delicti falling within this Convention, one should make the following observation: the Convention offers but a loose definition of the offences, which leaves it open to arbitrary application, notably, against democratic forces. This drawback is materially compounded by Art. 2 whereby for the purposes of extradition, a Contracting State may decide not to regard as a political offence or as an offence connected with a political offence or as an offence inspired by political motives, a serious offence involving an act of violence, against the life, physical integrity or liberty of a person, an act against property, if this act created a collective danger for persons, and also an attempt to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts to commit such an offence. All these are over and above the acts covered in Art. 1.
Art. 3 demands a modification of all extradition treaties and arrangements applicable between Contracting States, including the European Convention on Extradition, to the extent that they are incompatible with this Convention.
This provision of the Convention is, as a matter of fact, contrary to the principles of participation by European states in a whole series of international Conventions concluded with a view to suppressing all kinds of terrorist acts of international significance. It is not by chance that the extradition provision of the present Convention operates only between the five signatory States (West Germany, Great Britain, Austria, Spain, Liechtenstein), while a further five States have ratified the Convention with reservations ( Denmark, Sweden, Norway, Iceland and Cyprus). Ireland's position is a clearer reflection of the drawbacks of the Convention. Ireland refused to sign it at all on the ground that to 151 do so would infringe the "generally recognised principles of international law".^^1^^
It should be added that the wave of terrorism that has swept across the nations of Europe has been connected with the activities of national and international neofascist and the so-called ``left" extremist terrorist organisations. However, the Convention does not envisage any cooperation of the signatory States in the suppression of the terrorist activities of the above-mentioned organisations which is, beyond doubt, a serious drawback from the standpoint of its effectiveness. Art. 5 comes into conflict with the provisions of Art. 1 and 2, by stipulating that none of the provisions of the Convention shall be interpreted as imposing an obligation to extradite if the requested State has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person's position may be prejudiced for any of these reasons. That is to say that the issue of application of the given Convention in the particular situation is left, in virtue of Art. 5 as it is worded, practically at the discretion of the State concerned. It is just as indisputable that fascism and neofascism are political movements which are now taking on the form of terrorist action against democratic movements and statesmen of the capitalist countries of Western Europe.
In these circumstances, it is difficult to view the _-_-_
~^^1^^ Problems of Establishing a European Judicial Area, Report by John Kelly, Conference on ``Defence of Democracy against Terrorism in Europe: Tasks and Problems'', Strasbourg, 1980, p. 3.
152 conclusion of the European Convention as a positive step in the legal cooperation of States in action to suppress terrorist acts of international significance as it is not an adequately elaborated document with a view to standardising the principles of national law to prevent and punish terrorist acts of an international character.Art. 7 formulates the principle of ``extradite or prosecute'', which further complicates the consistent effective application of the Convention since the previous Articles lay emphasis on extradition. Art. 8 stipulates the obligation of the States in connection with mutual assistance in criminal matters and proceedings with regard to the offences falling within the Convention.
Arts. 9, 10, 11, 12, 13, 14, and 16 regulate the questions of mutual information and settlement of disputes arising from interpretation or application of the Convention, the procedure of signing, ratifying and putting it into effect, the procedure and application of reservations made by States with regard to the various provisions of the Convention as well as the process of denunciation. Under Art. 15, the Convention shall cease to have effect in respect of any State which withdraws from or ceases to be a Member of the Council of Europe.
One major point to note in giving a general assessment of the European Convention on the Suppression of Terrorism is that this Convention is not a treaty on the extradition of criminals or a treaty on mutual assistance in criminal matteis It is general international extradition or mutual assistance agreements that remain the basic documents for extradition or mutual assistance in criminal matters, or the principle of reciprocity in their absence. However, Arts. 3 and 8 of the Convention on the Suppression of Terrorism 153 contain a provision whereby extradition or assistance in criminal matters may not be denied on the grounds that the crime is of a political character.
Speaking at the 1980 Strasbourg Conference on "Defence of Democracy against Terrorism in Europe: Tasks and Problems,'' the Principal Legal Officer in the Austrian Ministry of Justice, Robert Linke said, criticising the Convention, that the solution it offered was an oversimplification of the problem as it denied the political character of the offence under all circumstances.^^1^^ A similar view was expressed by Paul Wilkinson, Professor of Intel national Relations, Britain.^^2^^
A former Italian Minister of Justice, Senator Francesco Paolo Bonifacio, in a paper ``Limitation of Individual Rights in the Fight against Terrorism" held that no anti-- democratic legislation should be passed even in the face of terrorist acts committed. Italian experience has proved that, he stressed. Furthermore, Bonifacio, with reliance on the guarantees of political asylum, found it necessary to produce such an interpretation of the defensive function of the extradition ban as would contain clear restrictions.^^3^^
It should be noted that the Convention does contain some provisions permitting a State to refuse to extradite a terrorist by referring to the political character of the offence which would, of course, weaken the effort of nations in the _-_-_
~^^1^^ See: Robert Linke, International Co-operation in the Fight n^aiiut Terroti\m, Strasbourg, 1980, pp. 4--5.
~^^2^^ See: Paul Wilkinson, Problems of Establishini; a Itmojiean Judicial Area, Stiasbourc;, 1980, pp. 4--5.
~^^3^^ See: Francesco Paolo Bonifacio, Limitation of Individual Rights in the Fight against Terrorism, Strasbourg, 1980, pp. 14, 13.
154 suppression of terrorism. However, the main thing is that the Convention does not draw any line of distinction between a terrorist act of international significance and a terrorist act of a domestic character, and that makes cooperation extremely difficult, involving different national systems in the fight against criminal offences in general, which hampers identical solutions and may bring all kinds of abuse in its train.There have been rather critical reactions to the European Convention from public opinion in European countries, notably, from some lawyers. In particular, a Convention to protect the right of asylum has been produced in France as an act of protest. Well-known Belgian lawyer Jean Salmon considers that Art. 1 of the Convention can be applied to anybody: a spy, a hangman, or an entirely innocent civilian, and that the text of the Convention does not correspond at all to the objectives proclaimed therein. The Convention, in Salmon's opinion, is aimed essentially not so much at fighting international terrorism as at opposing internal political violence. The Convention resuscitates the spirit of the Holy Alliance, that of intervention in the internal affairs of nations, and contradicts the principles of non-intervention and self-determination. Nationals of the signatory countries can face a trial or lose the right of political asylum for an indefinitely interpreted complicity. Any political opponent of an existing regime, who has committed no act of violence whatsoever, can be declared an accessory and prosecuted for terrorist activity.^^1^^ In a wider sense, the Convention has become _-_-_
~^^1^^ See: Jean J. A. Salmon, ``La Convention europeenne pour la repression clu terrorisme. Un vrai pas en arriere'', Journal des tribunaux, Septembre 24, 1977.
155 an expression of the "order and freedom" conception which is gaining currency and being institutionalised in the West as the so-called "security doctrine''. The Convention has become the foundation for the West European criminal law although, technically, it has an international legal aspect. __ALPHA_LVL2__ 6. THE 1979 INTERNATIONAL CONVENTIONA review of the substance of terrorist acts falling within the scope of international law indicates that in a number of instances the commission of such offences involves the taking of hostages. For example, hostage taking has been, as a matter of fact, integral to unlawful interference with the operation of air services. The whole world knows about the tragedy aboard a West German Lufthansa airliner in the autumn of 1977, which fortunately ended up in the release of hostages at Mogadishu airport. Extreme leftist groups of West European countries have more than once flown their victims out to foreign lands, creating troubles in international relations.
International law already has some proscriptions in force to ban hostage taking in specified circumstances. Art. 3 of the Third 1949 Geneva Convention for the Protection of War Victims, forbids hostage taking during armed conflicts, and a similar ban is to be found in international conventions drawn up with a view to combatting unlawful interference with the operation of air services (The Hague Convention of 1970 and the Montreal Convention of 1971), in the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including 156 Diplomatic Agents, as well as in the UN General Assembly Resolution 2645 (Twenty-Fifth Session).
At the Thirty-First Session of the UN General Assembly, West Germany called for the drafting of a uniform international convention against tin; taking of hostages to be included in the agenda as a special item. On December 15, 1976, the General Assembly, acting upon the 6th Committee's recommendation, passed the Resolution 31/103, pointing up the imperative need for this matter to be studied and provided for an Ad Hoc Committee to be established to draft an international convention against the taking of hostages, to be composed of representatives of 34 Member States.^^1^^
The Ad Hoc Committee met at the UN headquarters from August 1 to 19, 1977.
Analysing the discussion in the Committee, one can note the similarity of the positions of the States on the Ad Hoc Committee with regard to international terrorism. The representative of the USSR, speaking in the general debate, stressed that it was necessary, in this connection, to take steps towards enlarging the membership of the Conventions already in force. The taking of hostages should be considered as manifestation of terrorism. Effective measures at national level could be instrumental in dealing with it. But there must be no loose interpretation of type of offence to _-_-_
~^^1^^ General Assembly Official Records, Thirty-First Session, 1976, Suppl. No. 39 (A/31/39), p. 186. The Committee included: Algeria, Barbados, Byelorussia, Canada, Chile, Denmark, Egypt, France, Great Britain, Guinea, Iran, Italy, Japan, Jordan, Kenya, Libya, Lesotho, Mexico, Nigeria, Netherlands, Nicaragua, People's Democratic Republic of Yemen, Philippines, Poland, Syria, Somalia, Sweden, Surinam, Tanzania, United States, USSR, Venezuela, West Germany, Yugoslavia.
157 prevent the measures taken within the UN framework against the taking of hostages from being extended to the national liberation struggles against colonial and racist regimes. The Soviet lepresentative welcomed West Germany's initiative in this respect.West Germany brought before the Committee a draft International Convention against the Taking of Hostages. Art. 1 of the draft defined the offences within the scope of the Convention. Under paragraph (1) of this Article, any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the ``hostage'') in order to compel a thud party, namely, a State, an international intergovernmental organisation, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages within the meaning of this Convention.
Let us note right away that the offence thus set out does not cover hostage-taking as an act being directed against the victim itself so as to compel him or her to do or abstain from doing any act or derive any material or political benefit from the fact of detention of the given person, thereby exacerbating international relations.
Nor does the corpus delicti contain an international element to make this category of offence subject to an international convention. Paragraph (2) stipulates that any person who:
a) attempts to commit an act of taking hostages,
b) or is an accomplice of any person who commits or attempts to commit an act of hostage-taking also commits an offence within the meaning of this Convention.
158Art. 2 regulates the questions of cooperation between the States Parties to the Convention, notably, by taking measures within the framework of national law to prevent the commission of such offences in or outside their territories, by an exchange of information and coordination in taking administrative and other appropriate measures to forestall the commission of an offence.
Art. 3 contains the obligations of the Contracting States lo ease the conditions of hostages who have found themselves in theit territory, and take measures towards securing the release of hostages. Among other things, the States are bound to facilitate the departure of liberated hostages and return the objects unlawfully seized by the offender.
Art. 4 provides for severe penalties against persons having committed any of the offences defined in the Convention. The qualification of such offences as the worst common crimes makes it possible to reduce to the minimum the distinction the world's legal systems have in the field of criminal law.
Art. 5 says that the fixing of jurisdiction over the offences defined in the Convention does not exclude any criminal jurisdiction exercised in accordance with national legislation. One would say in this context that it would IDC more correct to speak of fixing jurisdiction over the offender.
Arts. 7 and 8 formulate the principle of aut dedere aut judicare. Incidentally, the main accent is on extradition to the State whose nationals will have fallen victim to an act of hostage-taking. This provision is a rather essential complement to assure inescapable punishment of this category of crime.
159Art. 9 regulates the questions of granting legal aid in connection with ciiminal piocedure executed against the offenders pursuant to this Convention.
Art. 10 emphasises that tiie present Convention does not affect the above-mentioned Conventions of 1949, 1970, 1971, and 1973.
Arts. 11, 12 and 13 are of a procedural character and regulate the questions of accession, entiy into forre, and the machinery of settling disputes that may aiise from the application of the Convention.
The International Convention against the Taking of Hostages, consisting of 20 Articles, was adopted by the UN General Assembly on December 17, 1979 and opened for signature by governments on the following day.
The Convention makes it imperative for the signatory States to prosecute under criminal law or extradite any person committing an act of hostage-taking and also take appropriate measures of punishment, considering the grave character of such an offence. So some progress towards resolving the question of hostage-taking has been made through international law.
The Convention will enter into force after 22 States have deposited their instruments of ratification or accession with the UN Secretary General.
The preamble to the Convention records that the States Parties consider that "the taking of hostages is an offence of grave concern to the international community" and that "it is urgently necessary to develop international cooperation between States in devising and adopting effective measures for the prevention, prosecution and punishment of all acts of taking of hostages as manifestation of international terrorism" [emphasis added].
160The Convention stipulates that the State Party in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged to submit the case to its competent authorities for the purpose of piosecution, through proceedings in accordance with the laws of that State (Art. 8). This is, therefore, in line with one of the major principles of the Convention machinery assuring inescapable punishment of the crime committed---`` extradite or prosecute''. This provision of the Convention is mandatory ``without any exception whatsoever" and whether or not the offence was committed in the territory of the State Party concerned. Under the terms of the Convention, a request for the extradition of an alleged offender shall not be granted if the requested State Party has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality, ethnic origin or political opinion, or that the person's position may be prejudiced. Of course, the reference to ``political opinion" or the argument that ``the person's position may be prejudiced" provide an excuse for any of the Contracting States to apply the Convention at will. Now, since under Art. 13, the Convention shall apply to offences of an international character, it is difficuJt to cite an example or presume an instance of such offences being done for purely criminal motives.
One must consider as extremely important the wording of Art. 12 whereby in so far as the Geneva Conventions of 1949 for the protection of war victims or the Additional Protocols to those Conventions are applicable to a particular act of hostage-taking, and insofar as States Parties to this Convention are bound under those Conventions to __PRINTERS_P_161_COMMENT__ 11---2351 161 prosecute or hand over the hostage-taker, the present Convention shall not apply to an act of hostage-taking committed in the course of aimed conflicts as defined in the Geneva Conventions of 1949 and the Protocols thereto, including armed conflicts mentioned in Art. 1, paiagiaph 4 of Additional Protocol 1 of 1977, in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.
Arts. 5, 6, 7, 10, 11, detail the obligations of States in the process of cooperation relative to the application of this Convention.
The Convention is an important document of international law for the fight against the crime of hostage-taking of international character. However, the problem is how to make the convention politically and geographically universal, which would make its application much more effective.
One drawback of the Convention is the absence of a special Article for the suppression of terrorist organisations committing acts of hostage-taking.
It must be pointed out that hostage-taking occurs in a whole series of cases in the course of liberation struggles. While acknowledging the justice and heroism of those in battle, one should note that reactionaries exploit such facts to discredit this movement, intensify repression and even destroy persons taken hostage.
The capture of the Spanish diplomatic staff in 162 Guatemala by a gioup of peasants may be quoted as a case in point. A group of peasants entered the Embassy of Spain in that country in January 1980 and declared that they had decided to occupy the Embassy in token of protest against the incessant reprisals by government troops, police and paiarnilitaiy terrorist organisations, like the Death Squadron, in the pay of landowners and foreign monopolies. Present at the Embassy at the moment were Spain's Ambassador Maximo Cajal, several prominent Guatemalan lawyers representing the National Bar of Guatemala (Eduardo Caceres Lenhof, a former Vice-President of that country, Adolfo Molina Orantes, a former Foreign Minister, university professor Mario Aguirre Godoy) who were about to leave for Madrid to attend a conference of lawyers.
Later on, the Spanish Ambassador told the journalists: the peasants had told him that they had come from the El Quiche Department and that they could no longer tolerate terror and violence, and asked him to enter an international commission that would inquire into the human rights situation in that province inhabited primarily by Indian tribes. The intruders, led by a woman, escorted the Embassy staff and the visitors to the Ambassador's office on the first floor and barricaded themselves off together with them. Although the occupation was peaceful, the Ambassador tried to put a call through to competent authorities to advise them of the substance of the request of the hostage-takers, but failed to get any ranking Foreign or Interior Ministry official on the line. He called up the Foreign Minister of Spain to inform him that the peasants were in a peaceful disposition and unarmed, as far as he could see.
163As the Spanish EFE news agency correspondent reported from Guatemala, by 1~p. m. when the journalists, assembled in front of the Embassy, waiting for the matter just about to be peacefully settled and for a chance to meet and talk to the peasants and the hostages, numerous policemen and plain clothes men surrounded the mission's building. The Ambassador tried in vain to persuade the police by phone not to take any armed action since there was ample opportunity to resolve the problem peacefully.
The peasants let Professor Godoy leave the building to offer his services as mediator.
The Ambassador shouted to the policemen from the window of his office: ``Don't enter the Embassy compound! We'll fix everything up ourselves! And don't you try to shoot!''
Ignoring his plea, the policemen and plain clothes men broke into the building, smashing railings and doors, although there was no need for that at all. Nobody knows who ordered the police to fire, but once they did open fire, there was a powerful blast in front of the Ambassador's office. It killed 39 people. Only two managed to escape----the Ambassador himself, who had jumped out of a first floor window, and a peasant. The Ambassador ran out into the garden in front of the Embassy entrance, imploring firemen to help put out the fire that threatened the life of those inside who still survived. But the firemen ignored his plea.
The peasant who had escaped was, just as the Ambassador, taken to hospital, but someone kidnapped him from there and savagely murdered him.
When a funeral procession carrying tens of coffins moved through the streets of Ciudad-Guatemala on the 164 following day, it was attacked by bands of terrorists who killed three persons more.
So the unlawful seizure of the Embassy and hostages led to a most glaring violation of other standards of international law by the authorities of Guatemala and, above all, of the 1928 Havana Convention on Diplomatic Officials and the 1961 Vienna Convention on Diplomatic Relations. In protest, the Government of Spain decided to sever diplomatic relations with Guatemala.
Yet another case of unlawful action of this kind was the capture of hostages and premises of the US Embassy in Teheran, although the policy of the US ruling establishment with regard to Iran had always been one of intervening in its internal affairs, exploiting its national resources and organising systematic terrorist acts against Iran's statesmen, public figures and property.
This has always been a consistent and unequivocal Soviet attitude. So the representation by the State Department to the Embassy of the USSR in Washington about alleged Soviet attempts to hamper, through coverage by the Soviet media, a positive solution of the problem of release of the US Embassy staff had no foundation in fact and was nothing short of slander.
The statement made by the Soviet Foreign Ministry to the US Charge d'Affaires in Moscow on January 29, 1981, said, in part: "The USSR has all along favoured the unfailing observance of the generally accepted standards of international law relative to the immunity of diplomatic staff, as provided for by the Vienna Convention on Diplomatic Relations. This approach of principle has been stated and re-stated in public in connection with the said incident and is well known to the whole world, including 165 both the Government of the USA and the Government of Iran. The Soviet Union is known, besides, to have voted back in December 1979, along with other nations, for a resolution which called on the government of Iran to release the US Embassy staff immediately, and appealed to both governments, those of the USA and Iran---to take steps towards resolving the matter peacefully by settling the issues in dispute between them to mutual satisfaction".^^1^^
In spite of the subsequent settlement of the conflict, the capture of American hostages was exploited by US ruling quarters as an excuse for launching a series of unlawful actions of an economic and political character against Iran and other States of the region.
For example, using the capture of the American personnel as a pretext, the US massed a large naval force in the Persian Gulf region. Moreover, after the issue of the American staff had been positively settled, the US did not make a single statement to show an intention to take the American naval force back home. Evidently, the very reason why the US had kicked up so much fuss over the issue of former American hostages was just because it wanted to try and cover up the plans for continued American military presence in that area as a way of bringing pressure to bear on the countries within it. That was not the only lime the USA has acted like that.
__ALPHA_LVL2__ 7. MERCENARISM---AN INTERNATIONAL CRIMEAs stated earlier on, the major international legal problem in preventing acts of terrorism at the present time is that of uniting the efforts of States against those acts _-_-_
~^^1^^ Izvestia, January 30, 1981.
166 which are committed in peace time. But there is yet another aspect of this problem arising from the fact that a large number of terrorist acts are committed in the course of subversive activity against national liberation movements and civil war. The men who commit such terrorist acts are ``soldiers of fortune'', paid murderers and "whores of war"---mercenaries. Their story is as old as that of palace revolutions and intestine wars. One particular aspect of the present moment is that reactionary forces form organised groups of mercenaries of persons from different countries extensively used both against national liberation and strike movements and against progressive democratic leaders of certain countries. Therefore, mercenarism today is peculiar as such not only to the periods of armed conflict but to peace time as well, while the methods mercenaries use are terrorist ones, which requires the matter in question to be considered as part of the fight against international terrorism.Mercenarism was a widespread practice even in ancient Rome and, subsequently, quite common to the feudal States of the Middle Ages. The period of capitalism, and more particularly, that of its highest stage---imperialism, has produced traffic in "cannon fodder" institutionalised as national policy. For example, the uprising of the Taipings in China in the 19th century was quelled by mercenaries together with local Chinese reactionaries and armed forces of Britain and France.
The fundamental change in the world's power balance in favour of socialism, peace and progress has made impossible outright and direct intervention by imperialist Powers against new-born independent States or embattled peoples. In the situation thus created, imperialist States 167 and racist regimes have resumed a large-scale practice of using mercenaries, if more covertly.
In 1977, for instance, the army of the racist regime of Ian Smith in Southern Rhodesia had two thousand mercenaries in it. After a rather short spell of training and adaptation to the local climatic conditions, the mercenaries started to kill off African civilians, burn their cabins and destroy their crops, in short, do everything to scare the natives and prevent any strengthening of the patriotic forces in battle for liberation. In an interview to the French Nouvel Observateur magazine on July 3, 1978, a mercenary who had been to Rhodesia blurted out that he and his companions were the killers of civilians. He gave an account of punitive expeditions against whole villages, the torture of captured peasants, and the use by mercenaries of the ways and means of warfare forbidden by international law. It is indicative that this was taking place at a time when Great Britain and the USA were trying hard to convince the Africans that the disbandment of Smith's army must not be demanded as a condition for granting independence to Zimbabwe, and thus attempted to preserve intact that strike force of racism even after the granting of independence to that country.
It is quite obvious that the most effective way to end the recruitment of mercenaries would be by drawing up strict and effective national legal standards to ban mercenary service, recruitment, dispatch and transportation of mercenaries to different parts of the world and also by drafting international agreements for the prosecution and punishment of mercenarism under criminal law.
The record of the last few years has shown that most of the mercenaries have been supplied by the USA, Great 168 Britain, France, West Germany, Belgium and Sweden--- and that in spite of the fact that all of these countries have appropriate legislation directed, in one way or another, against the institution of mercenarism.
The USA, back in the days of George Washington, promulgated its first laws to control the recruitment of citizens of one State for service in the army of another State. Subsequent regulations have provided a more articulate definition of the ban on mercenarism. The well-known trial of mercenaries in Luanda, some of whom were US nationals, drew the attention of American public opinion to the mercenary recruitment practice in US territory. The official authorities recognised the fact of such recruitment stations being in operation. Robert L. Keuch, Acting Deputy Assistant Attorney General, Criminal Division, giving evidence before the Subcommittee on International Relations of the House of Representatives in March 1976 declared that the Criminal Division ``has been aware of numerous allegations regarding recruitment efforts and is conducting appropriate investigations".^^1^^ However, no measures were ever taken, in spite of the unequivocal Section 959 of Title 18 of the US Penal Code headed ``Enlistment in Foreign Service": ``Whoever, within the United States, enlists or enters himself, or hires or retains another to enlist or enter himself, or to go 'beyond the jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince, state, colony, district or people as a soldier or as a marine or seaman on board any vessel of war, letter of marque, or privateer, shall be _-_-_
~^^1^^ Wilfred Burchett and Derek Roebuck, The Whores of War. Mercenaries Today, Penguin Books, Harmondsworth, 1977, p. 214.
169 fined not more than $ 1,000 or imprisoned not more than three years, or both.''The Code contains other articles designed to assure the United States' neutrality or good relations with foreign nations. Section 956 provides that persons who would conspire to injure or destroy specific property situated in a foreign country and belonging to a foreign government, as any railroad, canal, bridge, etc. shall be fined not more than $ 5,000 or imprisoned not more than three years, or both. Section 960 envisages punishment for involvement in expeditions against a foreign friendly nation.
Appropriate provisions are to be found in the Immigration and Nationality Act. Section 349 provides for United States nationality to be taken away from a person who is found guilty of taking up foreign armed service. US authorities applied that provision to Hermann F. Marks who had left for Cuba in 1958 to join Fidel Castro's detachment and returned to the USA after his victory in 1960. However, the US Government did not stick to ``principle'' as much in respect of Bufkin, Lobo del Sol and other mercenaries who had committed offences against the legitimate government of the People's Republic of Angola and later joined the Rhodesian Army.
The US Government appears to have ``forgotten'' about the existence of that Act when it came to the recruitment of US nationals to the Armed Forces of Israel to go to war against Arab states and against the national liberation movement of (he Arab people of Palestine. On October 14, 1969, a spokesman for the US Embassy in Tel Aviv interpreted the American Nationality Act as not only allowing persons of Jewish origin to retain American nationality while in the Armed Forces in Israel but, as a 170 matter of fact, encouraging their recruitment for war in the interest of the top leadership of the Zionist state. The Jordanian Al-Dustour newspaper was perfectly right in qualifying that American explanation as a ``new phase" in the development of hostilities in the Middle East when the USA passed on from ``supporting Israel to direct involvement in the war against Arab countries by permitting American citizens to serve in the Israeli Army while retaining their own political nationality".
In 1870, Britain adopted a Foreign Enlistment Act to forbid British subjects from going to serve in a foreign State in order to participate in hostilities against another State if Great Britain was not at war with it. It is significant enough that the Act is still the only law on mercenaries for many of the Commonwealth nations. British Parliament confirmed the validity of the Act during the Spanish Civil War. In May 1968, Great Britain promulgated an Act forbidding her subjects to enter any service in Rhodesia. However, the Scotland Yard totally ignored press reports about mercenary recruitment within the territory of Britain to fight the legitimate government of the People's Republic of Angola and to serve in the racist army of Smith. Moreover, British police authorities facilitated the dispatch of mercenaries to Angola through the airline terminals of Britain into Belgium, having rescinded the essential customs and border formalities in a number of cases.^^1^^
_-_-_~^^1^^ See: Wilfred Burchett and Derek Roebuck, op. cit., p. 227; M. J. Hoover, The Laws of War and the Angolan Trial of Mercenaries: Death to the Doi^s of War, Case W. Res. J. of International Law, Vol. 9, Cleveland, 1977, pp. 323--406.
171Other European countries, principal suppliers of the ``soldiers of fortune'', also have legal provisions to forbid nationals of these States to take up foreign armed service in any capacity, including that of mercenaries. In Belgium, for instance, the Penal Code bans the recruitment of any person for a foreign army without royal permission and provides for those guilty of such action to be punished by imprisonment of from eight days to six months (Art. 135). Art. 123 of the Penal Code envisages imprisonment of from five to ten years for hostile actions exposing the State to hostilities on the part of a foreign power, and if hostilities result, by imprisonment of from ten to fifteen years. In June 1937, the Parliament of Belgium outlawed not only recruitment for profit but also the dispatch and transit of persons for service in Spain, having established imprisonment of up to six months for a breach of that ban. It is common knowledge that during the events in Congo in the early 1960s, there were many Belgian mercenaries over there, but none of these laws were ever applied against them.
The Government of Belgium took a series of measures (for instance, it withdrew foreign passports from former mercenaries) and got a commitment from the individuals bound for Katanga never to serve in foreign forces. But those measures failed to produce a due effect. It was only after the Security Council Resolution S/161 of February 21, 1961, which called on the UN Member States to take vigorous action to prevent the dispatch of mercenaries and their transit, the Belgian Minister of Justice issued the necessary instructions with regard to Belgian subjects and foreign nationals. But many were already in Katanga by that time.
172Neither were any effective measures taken when mercenaries were shipped from Britain via Brussels to Angola in January 1976.
French legislation has but one provision concerning mercenaries. Art. 85 of the Penal Code provides for imprisonment of from one to five years and a fine of from 3,000 to 30,000 francs for the recruitment of soldiers on behalf of a foreign power in time of peace. But, as everybody knows, many French mercenaries have been fighting with the extremist forces in Lebanon. Most of them have been recruited in France.
In Sweden, it was considered criminal as early as the 19th century to recruit subjects for foreign armed service without royal sanction. In 1918, the Prime Minister of Sweden banned the formation of units in that country's territory for participation in the civil war in Finland. During the civil war in Spain, in 1937--1939, there was a special Act in force in Sweden to forbid recruitment for military armed service in Spain. In 1948, it adopted a special law (it is now set out in the Swedish Criminal Code)^^1^^ envisaging a fine or imprisonment of up to six months for recruitment for foreign armed service without the Government's permission or for unlawful illegal exit from the country to that end, and up to two years of imprisonment for the same kind of action in time of war.
It is on record, however, that Swedish pilots joined the separatists during the civil war in Nigeria. There was information to the effect that Swedish airmen piloted transport aircraft of the forces fighting against the legitimate government of Angola. However, the Swedish Public _-_-_
~^^1^^ See: Wilfred Burchett and Derek Roebuck, op. cit., p. 226.
173 Prosecutor General declared that there had boon no need since 1948 to apply legislation in force relative to the matter.Mercenaries were used by racist South Africa during the aggression against Angola in September 1981. The 32nd Special Buffalo Battalion, comprising over 1,200 mercenaries iccruited in the USA, West Germany, Britain, Israel and some other countries, was the strike force of terror against the local civilians in Angola. Its core was made up of former ``veterans'' of the dirty war of the USA against Vietnam, former SS-men, former Rhodesian punitive squads, agents of the Portuguese secret police and common criminals out of the French Foreign Legion. The battalion has been used principally against the South West African People's Organisation (SWAPO) and against the civilian population of Angola and Mozambique.
Mercenaries were also used in November 1981 against the new-born African state of the Republic of Seychelles where a government that has carried through a number of progressive reforms in the interest of the people has been in power since 1977. Besides, oil has been struck off its shores, and the archipelago itself is seen by the Pentagon as strategically important. This was enough for about a hundred armed mercenaries to land on the Mahe Island on November 25, 1981, to attempt a coup. The Armed Forces of the Republic crushed the mercenaries, but 44 of them, having hijacked an Indian airliner, flew to South Africa and landed at Durban. Significantly enough, the authorities of South Africa never extradited them, as the Government of the Republic of Seychelles demanded.
Passengers of the hijacked airliner subsequently related that among the mercenaries, there had been some citizens of South Africa, officers of the former Rhodesian army, 174 West Germans, Frenchmen, Italians, nationals of the USA, Britain, Portugal and New Zealand. A veteran mercenary Mike Hoare boasted that he had not only plotted the abortive coup in Seychelles, but was actively involved in it himself. South Africa's Minister of Defence M. Malan admitted the involvement of South African .servicemen in the abortive coup attempt.
One Martin Dolinchek, a career officer of South Africa's Intelligence Service, captured on Seychelles, testified later on to the subversive activity against the Republic which is conducted from the territory of African countries hosting American military bases in them.
It must be said that the first attempt of this kind was made in Africa against the legitimate government of Benin in 1977 as if plotted by the same man, which has been noted by President Mathieu Kerekou of Benin, as the President of Benin has pointed out in his message of congratulations to the Republic of Seychelles upon the defeat of the mercenaries. The Times of Zambia said in this connection that the Botha regime of South Africa had special forces hired and trained to topple the governments of such countries as Angola, Mozambique, Botswana, Zimbabwe and Zambia.
The Johannesburg newspaper Star admitted that money to recruit the mercenaries came from American sources. The Seychelles Government asked the UN to set up a United Nations-sponsored international commission of inquiry into the circumstances and sources of financing that attack. The UN Security Council condemned the aggression committed by mercenaries against the Republic of Seychelles. It decided to form a commission of three members of the Council to investigate into all the circumstances 175 of that aggressive action and assess the economic damage caused to that State.
New African of London in mid-1982 reported a whole series of new facts about the activities of mercenaries and their close association with the monopoly quarters of a number of imperialist States. For example, the magazine, referring to the American Covert Action publication, told the story of Pretoria mercenaries engaged against the tiny Republic of Domenica in the Caribbean in 1981. The leader of the mercenaries, Michael Perdue counted on getting 150 thousand dollars for the overthrow of the legitimate Domenican Government as well as a profitable concession for his Texas company Nortic Enterprises, Inc. The leader of Domenica, Eugenia Charles unequivocally accused South Africa of involvement in the attempted coup.
Literaturnaya Gazeta, No. 27, 1982, published a curious document---an authentic letter from a representative of the American Aviation Personnel International Company to one of the top-ranking members of South African Air Force Lieutenant-General A. M. Muller. Here it is:
``Dear Sir,~
``Based on our agreement dated 12 December 1981 .. . we now forward the personal data of pilots who---- according to our evaluation---meet standards stipulated by you. Said pilots are qualified to operate Type YAH-64 combat helicopters and are well-trained in jungle warfare.
``We repeatedly wish to direct your attention to the fact that we only recruit and recommend the pilots and the engagement procedures are the responsibility of your representatives. On instructions received from the competent bodies of the U.S. Government and because of political factors, this go-between activity of our organization calls 176 for top secrecy from your side in full accordance with earlier guarantees. This especially justified by circumstances that emerged as a result of the Seychelles action. We do not desire to undertake another similar risk that stems from the lack of careful judgement of given circumstances.
``We believe you will understand our motives and can be mutually satisfied with how our business relations are shaping up. . .''
This document speaks for itself---the practice of mercenarisin rampant in the USA has been organised by the US authorities and is under their wing.
That is to say, almost all the countries supplying mercenaries have legal provisions against those ``soldiers of fortune" and those who recruit them, but these provisions have been practically unused, since the imperialist powers need mercenaries to fight the national liberation movements.
So what has been the record of international legal action against the mercenaries?
Mercenarism has always been connected with aggression, seizure of foreign lands and gross violation of the rights of nations to self-determination. Its practice today is contrary to the fundamental principles and standards of international law. And whenever we analyse any specific situation, the conclusions we have to draw from it are quite obvious. For example, in Angola, the mercenaries were used as a strike group of the aggression of imperialism against that independent country of Africa. The government of the fledgeling republic had to face a foreign armed intervention using as cover some of the misguided Angolans who had fallen under the influence of the breakaway FNLA and UNITA groups. The ultimate purpose __PRINTERS_P_177_COMMENT__ 12---2351 177 of that intervention was to overthrow the legitimate government of the People's Republic of Angola.
Regular forces of South Africa and Zaire with US instructors and arms were thrown into action against the people of Angola in 1976. That action was in direct violation of such provisions of the UN Charter as paiagraph 4 of Art. 2 providing that all UN Members ``shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations".
In December 1965, upon the initiative of the Soviet Union, the UN General Assembly, building on the appropriate provisions of the Charter, adopted a special Declaration on Inadmissibility of Intervention in Domestic Affairs of States and Protection of their Independence and Sovereignty, which said in part: ``No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference . .. are condemned''. Further on, the Declaration calls upon States to refrain from organising, financing or otherwise encouraging ``subversive, terrorist or armed activities directed toward the violent overthrow of the regime of another State".^^1^^
Prohibition of armed intervention and all other forms of interference in the affairs of States was written as an independent section into the Declaration on Principles of International Law concerning Friendly Relations and _-_-_
~^^1^^ Yearbook of the United Nations, 1965, UN, New York, 1967, p. 95.
178 Cooperation among States in accordance with the Charter of the United Nations, adopted by the UN General Assembly in October 1970 with active participation of African countries. In the Declaration on the Strengthening of International Security, of December 16, 1970, the UN General Assembly called upon all States ``to desist from any forcible or other action which deprives peoples ... of their inalienable right to self-determination, freedom and independence'', and reaffirmed that ``States must fully respect the sovereignty of other States and the right of peoples to determine their own destinies, free of external intervention".^^1^^The action of South African racists cannot be qualified as anything short of undisguised armed aggression against the independence and territorial integrity of Angola committed in violation of the UN Charter. In December 1974, the UN General Assembly unanimously adopted a Definition of Aggression, calling upon all States ``to refrain from all acts of aggression''. Art. 3 qualified as an act of aggression ``the invasion or attack by the armed forces of a State of the territory of another State" and also ``the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State ... or its substantial involvement therein".^^2^^ These points of the definition fully apply to the direct armed attack on Angola by South Africa.
There is no excuse whatsoever for the Western press efforts to absolve the South African racists by references to _-_-_
~^^1^^ Yearbook of the United Nations, 1970, UN, New York, 1972, pp. 789, 90, 106, 105.
~^^2^^ Yearbook of the United Nations, 1974, UN, New York, 1977, p. 847
179 a ``Communist menace" for Africa and to the ``threat to the civilised world" alleged to have arisen with the coining of revolutionary democratic forces to power in Angola. It is exactly as aggression that the bestialities of racist troops in Angola were qualified in a special statement by the OAU Secretariat in 1976. In fact, within the meaning of the above-mentioned definition of aggression, there can be no considerations to justify aggression, and a war of aggression is a crime against international peace.The involvement of rightist elements of the USA and, above all, of the notorious CIA in the conspiracy of internal and external reaction against the independence of Angola is a gross violation of international law and the legislation of the USA itself. The Christian Science Monitor said that some 300 mercenaries from the USA were involved in the invasion of Angola and as many were about to complete their training under CIA control.^^1^^ There were openly operating centres in quite a few states to recruit American military specialists to be sent to Angola. The paper reported that the US had smuggled 32 million dollars' worth of arms into Angola by January 1, 1976.^^2^^
Faced by the armed aggression against its independent and sovereign country, the Government of Angola exercised its right of individual or collective self-defence in accordance with Art. 51 of the UN Charter and turned to the Government of Cuba for aid in 1976. The Government of Cuba, in fulfilment of its duty to help the victim of aggression, sent its troops to Angola which, together with the forces of the legitimate government of Angola, repulsed _-_-_
~^^1^^ See: Wilfred Burchett and Derek Roebuck, op. cit., p. 140.
~^^2^^ The Christian Science Monitor, January 2, 1976.
180 the aggression and restored peace. The action of Angola and Cuba was consistent with the above-mentioned legal provisions and within the limits of international law.A joint communique by the Foreign Ministers of Angola and Cuba, in February 1982, said, notably: ``The presence and withdrawal of the Cuban troops present in Angola is the prerogative of the two sovereign nations--- the People's Republic of Angola and Cuba in perfect agreement with Art. 51 of the UN Charter. Within a single month after the expulsion of the South African troops from Angola, on April 22, 1976, the Governments of Angola and Cuba decided on a step-by-step reduction of the invited Cuban troops, which were cut by more than a third in less than a year. However, further reduction was suspended because of renewed threats to Angola. South Africa's subsequent aggression in May 1978, and the threatened landing of NATO airborne forces in North-East Angola were a serious danger to the Republic and required the continued presence of Cuban forces to help safeguard its security and territorial integrity. In mid-1979, the Governments of Angola and Cuba once more agreed to start a further programme of step-by-step withdrawal of Cuban troops. However, in September 1979, the South African army launched yet another large-scale aggression in the Cunene and Unga provinces.
``In August 1981, there was a fresh round of South African aggression when large contingents of regulars of the racist regime of Pretoria, supported by artillery, tanks and aircraft, invaded the territory of Angola and occupied some of its areas for several weeks. In spite of the condemnation of that criminal action by the UN, which found expression in a Security Council resolution which the US 181 blocked with its veto powers, the South African army continued to occupy some areas of the Cunene and CuandoCubango provinces. These facts indicate that the implementation of the programme for the gradual withdrawal of Cuban troops from Angola has been stopped by recurrent criminal acts of aggression against the country".
The Cuban-Angolan Communique went on to say: "The withdrawal of the Cuban forces present in the territory of Angola will be effected by decision of the sovereign Government of the People's Republic of Angola if the threat of any aggression against, or any armed invasion of the PRA, has been removed. In this connection, the Government of Cuba reaffirms that it will not fail to fulfil the decision of the Government of sovereign Angola about the withdrawal of Cuban troops.''
One should qualify in the same way the action of the bands of mercenaries against the Government of Afghanistan which has fallen victim to acts of aggression from the territory of Pakistan and Iran with active support from the USA.
In these circumstances, the Soviet Union, replying to a request from the legitimate government of the Democratic Republic of Afghanistan, and in accordance with Art. 51 of the UN Charter regarding the right of individual or collective self-defence and Art. 4 of the 1978 Soviet-Afghan Treaty, has lent armed assistance to the people of Afghanistan to resist attacks fiom without.
In 1978, American Journal of International Law published an article by H. C. Burmester, Principal Legal Officer in the Australian Attorney-General's Department, in which the author dwelt quite at length on unlawful recruitment and use of mercenaries from the standpoint of 182 contemporary international law. In his opinion, the use of mercenaries in armed conflicts should be regarded, in the context of the new legal order established by the UN Charter, as foreign intervention, although no third State may be directly involved or approve of the use of its nationals in a mercenary force.^^1^^ The Article pointed out that the development of international law since 1945 had led to some States committing themselves to control mercenarisin to forestall any action detrimental to them.
Going by the precepts of international law now in force, one should say that the recruitment and use of mercenaries are a gross violation of the commitment of nations to the maintenance of peace and security. And if any nationals of a given State jeopardise international peace and security by their action, the State concerned must take effective measures, from the standpoint of international law, to check their action.
This point of view is shared by a number of bourgeois authorities on international law.
The UN has more than once voted to condemn mercenarism and qualified it as an international offence.
The problem of mercenaries became acute during the events in the Congo. In 1961, Tshombe had 500 white mercenaries from Europe and South Africa. In those circumstances, the UN Security Council on February 21, 1961 passed a resolution^^2^^ urging that measures be taken for the immediate withdrawal and evacuation from the _-_-_
~^^1^^ H. C. Burmester, ``The Recruitment and Use of Mercenaries in Armed Conflicts'', American Journal of International Law, vol. 72, No. 1, January 1978, pp. 43--44.
~^^2^^ United Nations Security Council, Resolution 5/4741, 21 February, 1961,
183 Congo of all Belgian and other foreign military and paramilitary personnel and political advisers not under the United Nations Command, and all mercenaries. A further resolution authorising the use of whatever force was necessary to carry out that decision was adopted by the Security Council on November 24, 1961^^1^^. The United Nations force managed to expel 273 mercenaries from the Congo in August 1961, but there were still 237 ``soldiers of fortune" there in November 1961. The Western Powers actually took no effective steps.Within the framework of international law, generally, the first attempt at getting mercenaries outlawed was made by The Hague Convention of 1907 which, in Art. 4, forbade the recruitment of combatants and the opening of recruiting agencies on the territory of a neutral Power to assist the belligerents. On the other hand, Art. 6 of The Hague Convention absolved neutral nations of responsibility in the event of private persons leaving the country to take up foreign armed service. The Hague Convention was applied in respect of belligerent parties and the status of neutral nations. Consequently, The Hague Convention, on the one hand, imposed a ban on mercenarism and, on the other, acknowledged the institution of volunteers which should, beyond question, be distinguished from mercenarism.
There has been some controversy in Western publications in recent times about the definition of mercenarism. Some have suggested that it is difficult to define and, therefore, it is impossible to prohibit or qualify it in any _-_-_
~^^1^^ United Nations Security Council, Resolution 5/5002, 24 November, 1961.
184 way. For example, the above-mentioned H. C. Burmester presumes it impossible to distinguish between mercenaries and volunteers, holding both to endanger international peace and security in equal measure.Under Art. 6 of The 1907 Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, ``the responsibility of a neutral Power is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents".^^1^^
This means, in practical terms, that participation of individual citizens by the voluntary principle, without any material interest, is, far from being forbidden, permitted. It is likewise obvious that in the context of international law now in force, the participation of volunteers in an armed conflict of an international or not international character shall not create a danger to international peace and security. The participation of volunteers in an international armed conflict is permissible only if it is to favour the victim of the aggression and those in battle for the national liberation, the right of self-determination, against foreign occupation, colonialism and racist regimes. This is a new important element which has been introduced by contemporary international law into the institution of voluntary service. In this case, the State, although it is not responsible for the action of its volunteer citizens, is responsible for the observance of the general principles of international law.
From this point of view, for example, the participation _-_-_
~^^1^^ The Hague Conventions and Declarations of 1899 and 1907. Ed. by James Brown Scott, Oxford University Press, New York, 1918, p. 134.
185 of volunteers at the side of the Republicans in the civil war in Spain should be regarded as legitimate, while the participation of ``volunteers'' with the regular forces of Italy and Germany in action to aid Franco and, consequently, having committed aggression against Spain, should be considered illegitimate.International law does already contain a definition of mercenarism, which can be used as the ground for Slates to act on in checking it and in drafting national legislation.
The 1949 Geneva Conventions for the Protection of War Victims extended the status of prisoner of war to the members of such formations as militia and other volunteer contingents, and mercenaries have not been considered as legitimate combatants by many nations. There was a certain restriction on the application of the Geneva conventions to them.
Subsequently the UN General Assembly passed a series of resolutions condemning mercenarism and calling for mercenaries to be outlawed. On Desember 20, 1968, the General Assembly in a resolution on the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples declared that the practice of using mercenaries against movements for national liberation and independence was punishable as a criminal act and that the mercenaries themselves were outlaws, and called upon the Governments of all countries to enact effective legislation declaring the recruitment, financing and training of mercenaries in their territory to be a punishable offence and prohibiting their nationals from serving as mercenaries.^^1^^
_-_-_~^^1^^ UN General Assembly Official Records, Twenty-Third Session, 1968, Suppl. No. 18 (A/7218),
186It is noteworthy that this proposition was moved by the Soviet Union and other socialist states. Although a number of Western States did make a reservation on that point, it was restated and approved in other General Assembly resolutions, as 2548 (Twenty-Fourth Session) of December 11, 1969, and 2708 (Twenty-Fifth Session) of December 14, 1970.
The General Assembly Resolution 3103 (Twenty-Eighth Session) of December 12, 1973, on Basic Principles of the Legal Status of the Combatants Struggling against Colonial and Alien Domination and Racist Regimes, proclaimed that the use of mercenaries by colonial and racist regimes against the national liberation movements struggling for their freedom and independence from the yoke of colonialism and alien domination was considered to be a criminal act and the mercenaries should accordingly be punished as criminals.^^1^^
That was an important achievement of the international community in the fight against mercenarism.
At the diplomatic conference on international humanitarian law in Geneva in 1975, during the discussion of Article 42 of the Draft Protocol Additional to the 1949 Geneva Conventions for the Protection of War Victims, socialist and developing nations insisted on the wording of the Resolution of December 12, 1973 being adopted as an Article of the Protocol. Resistance from the Western Powers did not permit that text to be adopted but there was a common consent at the conference to the effect that the mercenaries were not entitled to the status of combatants. _-_-_
~^^1^^ Yearbook of the United Nations, 1973, UN, New York, 1976, p. 553.
187 That was a major gain for the peace forces and a general democratic base for working out a definition of the mercenary. In 1977, the diplomatic conference adopted Art. 47 of the Protocol on international armed conflict additional to the 1949 Geneva Conventions for the Protection of War Victims which contains a generally recognised definition of the mercenary. This Article considers mercenarism as an international crime and a mercenary as a person not entitled to the status of combatant or prisoner of war. The definition runs as follows: ``A mercenary is any person who: = a) is specially recruited locally or abroad in order to fight in an armed conflict; = b) does, in fact, take a direct part in the hostilities; = c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party; = d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict; = e) is not a member of the armed forces of a Party to the conflict; and = f) has not been sent by a State which is not a Party to the conflict on official duty as member of its armed forces."^^1^^This definition enables a fairly clear line of distinction to be drawn between a mercenary and a volunteer, i.e., on the one hand, a person committing a criminal offence and thereby subject to prosecution and punishment, and, on the other, a person able to participate in an armed conflict in accordance with international law.
_-_-_~^^1^^ Protocols Additional to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross, Geneva, 1977, p. 32.
188Within the meaning of this definition, the mercenary, far from enjoying the status of prisoner of war, is, by this very fact, punishable under criminal law because the definition contains the attributes that make this person an outlaw. It is difficult in this connection to agree with Burmester who claims that this Article does not consider the very fact of merceriarism to be punishable under criminal law.^^1^^ Also it would be wrong to apply to a mercenary Art. 45 of the Protocol Additional on international armed conflict which makes it possible for any particular person in a particular situation to claim the status of prisoner of war since Art. 47 leaves no room for doubt in that respect. This does not mean, however, that volunteers, i.e. nationals of a third State participating in an armed conflict for reasons and considerations other than those set forth in Art. 47, do not enjoy the protection of international humanitarian law and, in particular, under Art. 45 of the Protocol Additional.
The book Fire Power by two former mercenaries, Chris Dempster and Dave Tomkins, which appeared in 1978, offers a rather circumstantial and outspoken account, based on documentary evidence, of mercenarism in action.^^2^^ The authors relate some specific undertakings they have shared in and, although the book does aim to justify their action, the reader is left in no doubt as to the criminal character of mercenaries and mercenarism.
At a meeting of the Ad Hoc Committee on International Terrorism in 1973, a number of nations moved to include _-_-_
~^^1^^ H. C. Burmester, Op. cit., p. 55. See also: Eric David, `` Mercenaires et volontaires internationaux en droit des gens''. Editions de PUniversite de Bruxelles, 1978.
~^^2^^ Chris Dempster and Dave Tomkins, Fire Power, Corgi Books, London, 1978.
189 mercenarism in the list of acts coming within the definition of terrorism.For example, the draft of Algeria, Congo, Guinea, India, Mauritania, Nigeria, the People's Democratic Republic of Yemen, the Syrian Arab Republic, Tunisia, the United Republic of Tanzania, the Yemen Arab Republic, Yugoslavia, Zaire, and Zambia, contained paragraph 2 which treated terrorism as a manifestation of tolerance or provision of assistance by any State to the remnants of fascism or to groups of mercenaries whose terrorist activities are directed against other sovereign nations.
The Organisation of African Unity has been very active in this respect. At its Fourth Session in Kinshasa, in September 1967, the OAU Assembly of Heads of State and Governments once more denounced the mercenaries, calling upon its Member States and the UN to lend support in this matter, and urging all the nations of the world to enact legislation declaring the recruitment and training of mercenaries in their territory to be a punishable offence and prohibiting their nationals from serving as mercenaries.
When the Portuguese Armed Forces and mercenaries posed a threat to the Republic of Guinea in 1970, the OAU Council of Ministers passed a resolution to condemn the mercenaries. It asked the General Administration Secretary to draft a convention to outlaw the activities of mercenaries in Africa. An appropriate resolution on the subject was adopted at the OAU Summit in Addis-Ababa in June 1971.
The OAU's most important contribution to the fight against mercenaries was the Report of its Committee of Experts presented to the Nineteenth Ordinary Session of the Council of Ministers at Rabat in June 1972. This 190 Report has influenced all subsequent thinking on the international control of mercenaries.
The final effect of that effort was to draft a Convention^^1^^ which, once adopted along with the Protocol Additional on Internationail Armed Conflict, was to create an extensive international legal base for the fight against mercenarism.
The Preamble of the Draft refers to the grave threat which the activities of mercenaries represent to the independence, sovereignty, territorial integrity and harmonious development of Member States of OAU.
Article One gives a definition of the term ``mercenary'':
``Under the present Convention a 'mercenary' is classified as anyone who, not a national of the State against which his actions are directed, is employed, enrols or links himself willingly to a person, group or organisation whose aim is:~
(a) to overthrow by force of arms or by any other means the government of that Member State of the Organisation of African Unity;~
(b) to undermine the independence, territorial integrity and normal working of the institutions of the said State;~
(c) to block by any means the activities of any liberation movement recognized by the Organisation of African Unity.''
So the definition of ``mercenary'' reflects a functional approach, i.e., predicated mainly not only on the fact of employment, recruitment or ``voluntary'' association with persons, groups or organisations whose activities are directed against the OAU Member States, but, above all, on the criminal nature of these actions in the light of international _-_-_
~^^1^^ OAU Doc. CN14331 Rev. L., Annex. 1.
191 law. Paragraph 1 of Article Two considers the actions of a mercenary, in the meaning of the above-quoted definition, as crimes against the peace and security of Africa and punishable as such. The Article likewise classifies actions which involve the recruitment or the act of taking part in the recruitment of mercenaries, or in training, or in financing their activities, or giving them protection, as crimes in the meaning of paragraph 1 of Article Two.Article Three enumerates the measures which the Member States of the Organisation of African Unity, signatories to the present Convention, undertake to take, namely:
(a) to prevent their nationals or foreigners living in their territory from committing any of the offences defined in Article Two of the present Convention;~
(b) to prevent the entry to, or the passage through their territory of any mercenary or equipment intended for their use;~
(c) to forbid in their territory any activity by organisations or individuals who employ mercenaries against the African States, Members of the Organisation of African Unity;~
(d) to communicate to other Member States of the Organisation of African Unity any information, as soon as it comes to their knowledge, relating to the activities of mercenaries in Africa;~
(e) to forbid on their territory the recruitment, training or equipping of mercenaries or the financing of their activities;~
(f) to take as soon as possible all necessary legislative measures for the implementation of the present Convention.
With a view to reducing the difference between the sanctions within the limits of the penal legislation of the 192 countries concerned, Article Four provides for every Contracting State to undertake to impose severe penalties for offences defined in the Convention.
Articles Five, Six and Seven reaffirm the principle of inescapable punishment---aut dedere aut judicare (``extradite or prosecute''). Furthermore, it is emphasised that in case of extradition the offender shall be handed over to the authorities of the State against which the offence has been committed or would have been committed.
That is to say that the above-quoted documents reaffirmed the following propositions:~
---the use of mercenaries in an armed conflict is a criminal act;~
---mercenaries are common criminals---their actions are of terrorist significance;~
---the States must take coercive and effective measures to prevent the organisation, recruitment and movement of mercenaries through their territory;~
---the States must bring to justice the authors of this crime and their accomplices.
In 1976, mercenaries found themselves in the dock before the bar of the People's Revolutionary Court in Angola. In 1975--1976, following the declaration of the independence of Angola on November 11, 1975, the breakaway groups of UNITA (which operated from the territory of, and with support from South Africa) and the FNLA (which operated from the territory of Zaire and with support from the racist regimes of southern Africa) attempted to seize power in the country, having started military operations against the MPLA (People's Movement for the Liberation of Angola) and the civilian population supporting the MPLA. Having no support from the large sections of the population, __PRINTERS_P_193_COMMENT__ 13---2351 193 UNITA and FNLA launched a campaign of terror, relying on assistance from South Africa, racist Rhodesia, Zaire, as well as from some West European countries and the United States. There was a .large group of mercenaries from Britain and the USA operating with the breakaway contingents.
The trial of mercenaries went on from May to June 1976 in Luanda, the capital of the People's Republic of Angola. It was a trial of 13 British and American mercenaries (ten Britons and three Americans). A People's Revolutionary Court had been set up and its underlying principles of proceedings adopted under Act 7/76 of May 1, 1976. The principle that ``the law has no retroactive force'', whereby no action may be considered as a crime and punished accordingly if there was no appropriate law when that act was committed, was not violated, since Act 7/76 took into account the standards of Angolan law that already existed, which qualified the enlistment of mercenaries and their service as mercenaries as a crime.
The trial was important for many reasons. First, it served as a lesson for the existing and potential mercenaries to learn. Second, it brought out and showed up the criminal nature of mercenarism for the whole world to see. Third, the trial shattered for ever the myth ol the ``soldiers of fortune'', having demonstrated their sadism, cruelty, avidity, military incompetence, racism and inhumanity. Fourth, it exposed the causes that breed mercenaries in Western societies.
It is noteworthy that the essential argument of the defence presented by British and American lawyers during the trial was that their clients were "unfortunate products" of the corrupt exploitative capitalist system. They had more than once pointed out the defects of their own countries: 194 unemployment, no opportunities for education, alienation producing wretched creatures with drugs, alcohol and violence as their sole pleasures. The enthusiasm with which the lawyers spoke about the decay of the West was amazing. It was difficult to suspect the advocates of the mercenaries of having any democratic views: they had been hired in the USA and Britain by those who had sent mercenaries to Angola.
The trial furnished more evidence of the subversive activities by the governments of South Africa, the USA and Great Britain in Africa.
The example of Angola was not only instructive, it was useful from the legal point of view. A broadly-based International Commission of Inquiry on Mercenaries was set up on the initiative of the Government of the People's Republic of Angola. It comprised representatives of sixteen African countries, nine countries of Western Europe, the German Democratic Republic, the USSR, the USA, Canada, six countries of Latin America, three countries of the Arab world, the Socialist Republic of Vietnam and Australia. The Commission looked into the record of international control of mercenaries, reviewed the UN and OAU resolutions on the matter, investigated the crimes of mercenaries in Angola, and drafted a Convention on the Prevention and Suppression of Mercenarism.
The draft was based on the definition of ``mercenary'', which comprised the following four elements:~
(a) a mercenary fights in a foreign country;~
(b) he does not fight as a soldier of his own country;~
(c) he fights for personal profit, whether or not he also has some ideological motivation;~
(d) the purpose for which he fights is to interfere with __PRINTERS_P_196_COMMENT__ 13* 195 a people's right to self-determination, to oppose the freedoms and security of citizens.^^1^^
Article One of the draft contains the key definition of the crime: ``The crime of mercenarism is committed by the individual, group or association, representatives of a State and the State itself which, with the aim of opposing by armed violence a process of self-determination, practises any of the following acts:~
(a) organises, finances, supplies, equips, trains, promotes, supports or employs in any way military forces consisting of or including persons who are not nationals of the country where they are going to act, for personal gain, through the payment of a salary or any other kind of material recompense;~
(b) enlists, enrols or tries to enrol in the said forces;~
(c) allows the activities mentioned in paragraph (a) to be carried out in any territory under its jurisdiction or in any place under its control or affords facilities for transit, transport or other operations of the abovementioned forces.''
Article Two considers the fact of assuming command over mercenaries as an aggravating circumstance. Article Three stipulates responsibility of the representatives of a State for the commission of crimes defined by the Convention. The responsibility of States for the commission of these crimes may be invoked by any State in its relations with the State that is responsible or before competent international organisations (Article Three).
The Draft Convention makes mercenaries outlaws, denying them prisoner of war status if captured (Article Four).
_-_-_~^^1^^ Quoted from Wilfred Burchett & Derek Roebuck, op. cit., pp. 236--37.
196Article Six binds the contracting States to enact all legislative and other measures necessary to implement fully the provisions of this Convention in their territory.
The draft reaffirmed the aut dedere aut judicare principle. A review of Articles Seven and Eight prompts the conclusion that the drafters have found it necessary to reinforce the aspect of extradition, which appears to be absolutely correct and justified. An offender must be extradited to the State against which his offence has been aimed.
The text of the Draft Convention contains generally recognized judicial guarantees of the rights of the defendants brought to trial for the offences set out in the Convention (Article Nine).
A special provision predetermines the cooperation of the Contracting States in matters of criminal proceedings brought against the crimes defined in Article One, with the States undertaking to ensure effective and adequate punishment of persons guilty of committing the crime of mercenarism (Articles Ten and Eleven).
Finally, Article Twelve envisages a machinery for settling disputes relating to the interpretation or application of the Convention.
While positively evaluating the functional approach of the drafters to the definition of the corpa delicti falling within the Convention, its more profound legal elaboration compared with the OAU draft, one should note that mercenarism ought to be qualified as a grave criminal offence of international significance and, in the event of its being committed by states, as an act of aggression.
It might be advisable to extend the definition of the object of the offence, since mercenarism is directed not only against the right of self-determination and national 197 liberation movements, hut movements against foreign occupation, racist regimes and legitimate governments, non-- governmental organisations or public figures.
The main asset of the draft is its stimulating influence upon the legal formulation of the issue of mercenarism. Mercenaries must not only be declared outlaws, but actually outlawed.
The Luanda trial, with a wealth of evidence on hand, held up the issue of mercenarism as a grave danger to the cause of peace and international security, as an instrument of the ruling imperialist quarters in the struggle against progressive movements not only in Africa but in other countries as well.
Reactionary forces have created various organisations of mercenaries, making wide use of all kinds of adventurers, castaways and traitors who had defected from their own countries at their own will or have been expelled for connections with foreign capital, criminal offences, embezzlement, bribery or work for foreign secret services. In Western Europe these organisations have been amalgamated by the ruling circles into the so-called Organisation of Free Africa (OFA). The Ajrique-Asie magazine has said that the main creditors of the OFA are French, South African and American secret services.
One of the objectives of this organisation is to recruit and maintain the mercenaries who, apart from being directly involved in armed intervention in the internal affairs of African countries have the mission of creating a nerveracking situation in the continent, provoking conflicts, subverting or even toppling regimes that are unsuitable to the West (as the one in the Comoro Islands in 1978).
It was believed until recently that the mercenaries were 198 recruited in each particular case. However, as the establishment of the OFA has shown, mercenaries are a standing army of international reaction, which is most extensively used not only in Africa.
One can refer, for instance, to the international gathering of fascists in Barcelona in 1978 which considered subversive action against the Left forces in Western Europe and support for the apartheid regime of South Africa, and raised the problem of extending the scale and geography of mercenary action.
The International Conference on the Suppression of Mercenarism, held in Benin early in 1978,^^1^^ did not only stress prevention of mercenarism as an urgent problem, but called attention to the peculiar ``mobile connection" of mercenarism in the struggle against the national liberation movements in Africa and against the Left forces and working people in the countries of Western Europe. A representative of Italian Communists, Guido Bimbi, pointed out that the forces financing the recruitment of mercenaries for Africa were at the same time organising acts of provocation against the working class and progressive forces in Western Europe and getting the means for their action from one source. The story of the Globik Venus tanker spread around the world. As that vessel lay at anchor in the French port of Le Havre with her crew on strike, a group of mercenaries recruited in Britain were brought in to ``pacify'' the strikers.
There is a wide-ranging front in the making to fight mercenarism, which is yet another indication of the criminal character of this institution and of the necessity of criminal prosecution of those responsible for it. Fighting _-_-_
~^^1^^ Al-Moudjahid, January 19, 1978
199 Emacs-File-stamp: "/home/ysverdlov/leninist.biz/en/1984/TIL286/20070209/286.tx" __EMAIL__ webmaster@leninist.biz __OCR__ ABBYY 6 Professional (2007.02.10) __WHERE_PAGE_NUMBERS__ bottom __FOOTNOTE_MARKER_STYLE__ [0-9]+ __ENDNOTE_MARKER_STYLE__ [0-9]+ imperialism and promoting the cooperation of the peace-loving nations throughout the world is the way towards resolving every aspect of the problem of the suppression of international terrorism in every shape or form.The Thirty-Fourth, Thirty-Fifth and Thirty-Sixth Sessions of the UN General Assembly debated the drafting of universal international convention to control mercenaries and mercenarism and set up an Ad Hoc Committee to do the drafting.
The object, in accordance with the Resolution of the Thirty-Fourth Session, is to draft an international convention to outlaw mercenarism in every shape or form and consider effective steps to ban the recruitment, training, gathering, transit and employment of mercenaries in the territory of any country. The UN has invited all nations to communicate their views to the Secretary General about the necessity of the immediate drafting of an international convention to ban the recruitment, use, financing and training of mercenaries. By the time of the Thirty-Fifth Session of the UN General Assembly, many nations had submitted their considerations. In those documents, they did not only support the very idea of concluding an international convention but proposed its basic provisions. For instance, the Government of Venezuela held that a mercenary was a soldier involved in military operations favouring the country he is not a national of, and taking up foreign armed service for a certain recompense or a promise of some other benefit. A mercenary is distinguished, in particular, by the absence of moral motives. There is nothing but his personal interest that makes him act. The Government of Venezuela likewise emphasised that the activities of mercenaries in Africa were characterised by negative consequences for 200 the independence and territorial integrity of nations and exacerbated the situation on this continent, which set international peace and security at stake.
The Government of Mexico called attention to the fact that an international basis for the Convention already existed in the form of Protocol Additional to the 1977 Geneva Conventions for the Protection of War Victims, although it suffered from some serious flaws. Mexico considered that the problem of mercenaries remained a dramatic one, witness the events in Zaire, Angola, Rhodesia and Namibia, and that it was necessary to get down as soon as possible to the job of working out an international convention on the subject.
The Government of Nigeria held that since most of the mercenaries arrived in Africa from other continents, it was only through carefully elaborated international cooperation that Africa and the rest of the Third World could get rid of the threat of mercenarism.
In the notes of the Government of the USSR it was stressed, in particular, that mercenanism must be qualified as a grave criminal offence of international significance and that in the event of mercenaries being used by a State on a large scale, be qualified as an act of aggression. The mercenaries themselves should be considered as individuals having committed a crime, and be brought to justice. The agreement was to provide for the responsibility of the States which did not prevent their nationals from being employed as mercenaries and tolerated the recruitment, training and transportation of mercenaries in their own territory.
The Ad Hoc Committee drafting an international convention to suppress the recruitment, employment, financing and training of mercenaries, in February 1981 considered 201 the draft submitted by Nigeria, which contained the following basic provisions.
It is necessary to note, above all, that the draft takes into account the experience gained in working out other international legal instruments on the subject. The definitions of mercenary and inercenarism given in it are of some interest. For example, the draft defines as a mercenary a person who: = (a) has been expressly recruited within national frontiers or abroad to fight in an armed conflict; = (b) is directly involved in hostilities; = (c) plays his part in military operations guided mostly by a desire for personal gain and to whom, the Party concerned or on instructions thereof, material reward was promised, which is substantially in excess of the remuneration promised or paid out to combatants who have a similar rank and functions within the armed forces of the State concerned; = (d) is not a citizen of the Party to the conflict or a person residing in the territory controlled by the Party to the conflict; = (e) does not form part of the armed forces of the State Party to a conflict; = (f) is not directed by a State which is not a Party to the conflict to discharge official duties as a person who forms part of its armed forces.
The crime of mercenarism is defined in the following way: it takes place when an individual, group or asociation of people or the legal person registered in the given State or a representative of the State or the State itself, by wilful threat or armed violence directed against the territorial integrity of another State or the legitimate aspirations of national liberation movements, endangers the process of selfdetermination or commits the following through over action: = (a) organises, finances, equips, arms, trains, encourages, supports or employs in any way individuals, bands 202 or armed forces consisting of (or comprising) individuals that are not the nationals of either Party to the conflict and which operate in seeking personal gain through the salary or other material recompense; = (b) enrols or is recruited for military service as an individual, group or association of people or a legal person; = (c) promotes, prints or has somebody else propagate any information about the foregoing; = (d) allows or tolerates the exercise of the aforementioned activities on any territory or anywhere under its jurisdiction or control, or offers modes of conveyance for passage, transit and other operations of the above-- mentioned forces; = (e) virtually participates in any of the activities referred to in the above-mentioned paragraphs, which lead to the death of people or the destruction of their property.
Any person, group or association of individuals, any representative of a State or the State itself which is trying to carry out any act of meroenarism, becomes an accomplice of any person who commits or tries to commit an offence, also commits an offence defined in the present Convention.
The draft qualifies this as a crime against peace and security of the State.
Every Contracting State provides punishment in its legislation with due regard for the grave character of these offences.
The State finds itself under obligation to take action against this offence when the offence has been committed on its territory, when the offence has been committed by one of its nationals or by a legal person registered in that State, when the offence is committed by a representative of the State, when the offence is committed against that State.
203Great attention is given in the draft to mutual aid, and it is underlined that the provisions of the Convention serve as the ground for the extradition. The crime of mercenarism is not considered by the participating nations as a political offence or an offence committed for political reasons. If a State does not extradite an offender, it is under obligation to refer the case to its competent authorities for criminal proceedings in accordance with its own law.
An important provision of the draft deals with actions connected with the repayment of damage through reparations. It lays it down that the State, citizen or legal person which or who have sustained damage or human casualties may sue for a repayment of damage or reparations against the State harbouring the alleged offender.
An important provision is for the Contracting State which has sustained damage as a result of the commission of an offence, to be entitled to demand a repayment of damage or reparations from any Contracting States guilty jointly or collectively for any misdeed or omission which constitutes a crime.
This draft, after being discussed in the 6th Committee of the UN General Assembly and in the Ad Hoc Committee, continues on the agenda of the international community. It is the resistance of the imperialist States that is keeping the work on this important document from being quickly finished.
During the discussion of the action of mercenaries against the Republic of Seychelles in December 1981, the representative of the USSR, Oleg Troyanovsky, declared that the American delegation whose spokesman tried to sidetrack the debate from the main issue---that of the causes behind mercenarism and the ways of ending it, had struck up a 204 self-righteous posture at the meeting. Everybody knows quite well that it is the USA that is opposing an early drafting of an international convention against mercenarism.
__*_*_*__To sum up, what has been said in this chapter, one may say that the practice of the League of Nations and of the United Nations Organisation has been to draft conventions considering the terrorist activities of natural persons separately from the policy of terrorism pursued by the States and providing protection against international terrorist activities because of the certain functions of the person or the special position of the property the outrage has been committed against. This does not, however, obviate the need for working out additional provisions to prohibit, suppress and punish any terrorist activities against officials of the States involved in international intercourse.
The best elaborated conventions under study have codified the following important principles:~
1) definition of the corpus delicti falling within the relevant convention, if it has been unknown to national legislations or there has been a difference of approach to its content and interpretation;~
2) qualification of the offences falling within the relevant convention as criminal, which made punishment for the offence committed inescapable;~
3) inescapable punishment for the commission of the offences defined in the relevant conventions by the principle of out dedere aut judicare;~
2054) obligation of the States parties to the relevant conventions to take appropriate measures within the framework of their national legislations to ensure the fulfilment of the commitments following from their participation;~
5) obligation of the Contracting States to cooperate on procedural matters arising from the operation of the relevant conventions and to exchange information and appropriate documentation relative to the cases falling within the conventions.
In spite of some shortcomings, the conventions studied earlier on have provided a substantial theoretical and practical basis for the suppression of terrorist acts of an international character, with the result that protection of international law against terrorist acts of an international character is presently provided for:~
---the crews of aircraft, air navigation facilities and air lines, both domestic and international, under The Hague and Montreal Conventions concerning various aspects of suppression of international terrorist acts committed against air services;~
---persons and their living and official quarters in respect of which the host States shall ensure special protection in view of the function these persons discharge under instructions from their State or the international ( intergovernmental) organisation they are employed by. This protection is provided under the 1946 Convention on Privileges and Immunities of the United Nations, the 1947 Convention on the Privileges and Immunities of Specialised United Nations Agencies, the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Relations, the 1969 Convention on Special Missions, and also the 1973 Convention on the Prevention and Punishment of Crimes 206 against Internationally Protected Persons, including Diplomatic Agents.
The Convention on the Suppression of Hostage Taking, signed on December 17, 1979, was an important step forward in promoting international cooperation in the elaboration and adoption of effective measures to prevent, suppress, and punish all acts of hostage taking. It is a matter of extraordinary relevance, as we have shown, to draft and adopt a Convention on the suppression of mercenarism which will make it possible to intensify action against this international crime and contribute towards asserting stability, strengthening the validity of the principle of non-- intervention in internal affairs, and saving many innocent lives.
[207] __NUMERIC_LVL1__ Chapter III __ALPHA_LVL1__ COOPERATION OF STATES IN THE FIGHTRepresentatives of 93 nations referred to international terrorism in the general debate at the Twenty-Seventh Session of the UN General Assembly.^^1^^
The debate was certainly affected by the tragic events at the Munich Olympic Games in September 1972. Not a single State went on record in support of terrorist activities, but the stand taken on the prohibition of terrorism as a method of violence did reflect the essential differences between national policies. Representatives of Israel, the Portugal of the day, and South Africa devoted their speeches entirely to the need to fight terrorism in general, actually taking up the cudgels against the legitimacy of the national liberation struggle.
It was typical of the capitalist countries in general to lay emphasis on the fight against all violence in whatever sense or form.^^2^^ The US representative stressed, in _-_-_
~^^1^^ UN General Assembly, A/C. 6/418, 2 November 1972.
~^^2^^ See the speeches of the representatives of Great Britain, France, Brazil, Venezuela and other capitalist countries, more particularly those of Western Europe. In UN General Assembly, A/C. 6/867.
208 particular, that it was a matter of urgent necessity to punish offenders for international crimes committed not only in the air but everywhere.The reason why the American initiative won nothing like extensive support at the General Assembly was because, above all, acts of terrorism against diplomats and officials of foreign missions continued and still continue to be committed in the US itself with official connivance. It was pointed out with perfect reason in the course of the general debate that everybody was rather surprised to see the US Government so much in a hurry to head a campaign which it called fighting terrorism while the UN itself and permanent missions in New York were being threatened or attacked by American terrorist organisations with the US authorities taking no effective action against terrorists thus neglecting their own commitments towards the United Nations. It should be noted that this initiative of the US was directed towards debating and adopting a Convention on the suppression of terrorism, taking advantage of the favourable situation for that problem to be discussed in the UN, especially after the tragic events in Munich, so as to have it subsequently applied against the national liberation struggles. The representative of Israel struck a peculiar posture when, devoting all of his speech to the "problem of Arab terrorism'', he concluded by linking Middle-East settlement up with fighting it, declaring that national, regional and international action against Arab terrorism was an indispensable prerequisite for the fruitful exploration of the avenues for peace in the Middle East.
The representative of Egypt, exposing Israel's policy of terrorism in occupied territories, stressed that Israel was a State of terrorists and for terrorists, a State aiding and __PRINTERS_P_209_COMMENT__ 14---2351 209 abetting the policy of terrorising the nations around it.
The representatives of Algeria, Iraq, Syria and Lebanon joined in calling for stamping out the underlying causes of the disease terrorism was a symptom of.
The representatives of socialist countries emphasised, on the one hand, the need to stem the mounting wave of international terrorism which jeopardised the life of innocent people and imperilled the development of normal international relations and cooperation; and, on the other, pointed out that steps to suppress terrorism must not be allowed to be used to suppress the national liberation struggle. That was the position of the representatives of Yugoslavia, Czechoslovakia, Bulgaria, Poland and the Soviet Union. Soviet Foreign Minister Andrei Gromyko, speaking at the Twenty-Seventh Session of the UN General Assembly, declared, in particular:
``We likewise support the righteous struggle of the Arab people of Palestine for the restoration of their inalienable rights recognised by the UN. On the other hand, one cannot, of course, approve of the terrorist actions of some elements within the Palestinian movement, which led, notably, to the recent tragic events in Munich. Their criminal acts strike at the national interests and aspirations of Palestinians as well. These acts are being exploited by the Israeli criminals to cover up their predatory policies against the Arab peoples. The Soviet Union stands by a position of principle against the acts of terrorism disrupting the diplomatic activity of States and their representatives, lines of communication between them, normal course of international contacts and meetings, and against the acts of violence which do not serve any useful purpose and entail loss of life.''
210So one can single out three major lines of approach to the problem as became clear in the general debate:~
(1) Combating violence and terrorism in general (this was the position of colonial regimes and imperialist States);~
(2) Condemning terrorist acts, such as the tragic events in Munich, and pressing for the very causes of terrorism to be eliminated (this was the position of representatives of Arab States and of other countries of Africa and Asia);~
(3) Distinguishing between violence used in pressing for the exercise of the rights of peoples to national liberation, and criminal terrorist acts which disrupt the diplomatic activity of States and their representatives, or lines of communication between them, and which serve no useful purpose and entail loss of life (this was the position of the representatives of socialist countries).
At its 2037th Plenary Meeting, held on September 23, 1972, the General Assembly recommended the following item to be included in the agenda and brought before the 6th Committee: ``Measures to prevent international terrorism which endangers or takes innocent human lives or jeopardizes fundamental freedoms, and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes."^^1^^
Divergent stands on terrorism found themselves reflected also in the deliberations of the 6th Committee. For example, the United States tabled a draft resolution marked off by a provision about the responsibility of Governments for _-_-_
~^^1^^ UN General Assembly, AjC. 6/418, p. 5.
211 taking appropriate measures to guarantee to all foreign diplomats in the performance of their regular functions and to all foreign citizens travelling, visiting or residing abroad, full legal protection from physical damage or threat thereof.This section of the American draft resolution has two legal errors in it. First, within the meaning of the 1961 Vienna Convention on Diplomatic Relations, immunities and privileges are granted to a diplomatic agent regardless of whether he is in the performance of his official duties or not, and, second, the treatment of the status of a diplomatic agent as that of an ordinary foreign citizen on a private journey abroad removes all reason for granting immunities and privileges to a diplomatic agent, even from the standpoint of legal protection frorn physical damage. Naturally, disregard for the right of nations to self-- determination and also the legal inaccuracy of a number of provisions of the American draft made it unpopular among national representatives in the 6th Committee.
Australia, Belgium, Canada, Costa Rica, Italy, Japan and New Zealand, which have subsequently been joined by Austria, Great Britain, Guatemala, Honduras, Iran, Luxemburg and Nicaragua, submitted another draft resolution. One point to note about that draft, was that, unlike the American one, it reaffirmed the principle of equal rights and self-determination enshrined in the UN Charter as well as the proposal that nothing in that resolution could be interpreted as extending or narrowing in any way the scope of operation of the Charter's provisions relating to cases in which the use of force is legitimate with certain means pointed out as illegitimate and contrary to the Charter under all circumstances.
212In spite of certain positive elements, the draft failed to win the support of a number of African and Asian countries because it said nothing to denounce the colonial, racist and foreign regimes which pursue a policy of terrorism and violence.
A group of non-aligned nations^^1^^ submitted a draft resolution which, upon a 6th Committee recommendation, the Twenty-Seventh Session of the UN General Assembly adoptted on December 18, 1972 as its Resolution 3034, by 76 votes^^2^^ against 34,^^3^^ with 16 abstentions.^^4^^ This resolution acknowledges the importance of international cooperation in working out measures towards an effective prevention of acts of terrorism and an investigation of their underlying causes with a view to finding quick, fair and peaceful solutions. The resolution reaffirms the inalienable right of all peoples oppressed by colonial and racist regimes and other forms of foreign domination, to self-determination and independence, and underlines the legitimacy of their _-_-_
~^^1^^ Afghanistan, Algeria, Cameroon, Chad, Congo, Equatorial Guinea, Guinea, Guyana, India, Kenya, Madagascar, Mali, Mauritania, Sudan, Yugoslavia, and Zambia.
~^^2^^ Albania, Bulgaria, Byelorussia, China, Czechoslovakia, Hungary, Poland, Romania, Ukraine, USSR, and Yugoslavia; all Arab states as well as a large group of countries of Asia, Africa and Latin America.
~^^3^^ Australia, Austria, Belgium, Bolivia, Brazil, Canada, Colombia, Costa Rica, Cuba, Denmark, Dominican Republic, Great Britain, Fiji, Guatemala, Haiti, Honduras, Iceland, Iran, Israel, Italy, Japan, Laos, Lesotho, Luxemburg, Netherlands, New Zealand, Nicaragua, Paraguay, Philippines, Portugal, South Africa, Turkey, USA, and Uruguay.
~^^4^^ Argentina, Barbados, El Salvador, Finland, France, Greece, Ireland, Ivory Coast, Malawi, Nepal, Norway, Singapore, Spain, Sweden, Thailand, and Zaire.
213 struggle and, in particular, the struggle waged by the national liberation movements in conformity with the purposes and principles of the Charter and appropriate resolutions of UN agencies; at the same time the resolution condemns the repressive and terrorist acts of colonial, racist and foreign regimes depriving the peoples of their legitimate right to self-determination and independence and of other human rights and fundamental freedoms. Of the specific measures contained in that resolution, one can point out the proposal for the nations to take appropriate measures at national level with a view to an early and final solution of this problem, and also to consider the matter as an urgent one, and make their observations and specific suggestions available to the Secretary General by April 10, 1973, for an effective solution of this problem.The resolution provided for an Ad Hoc Committee on International Terrorism to be formed of 35 members who were to be appointed by the President of the General Assembly, guided by principle of fair geographical representation.^^1^^
Of the socialist countries, observations were sent in by Byelorussia, Czechoslovakia, the Ukraine, the USSR, and Yugoslavia; of the capitalist countries of Europe, by _-_-_
~^^1^^ In accordance with the provisions of paragraph (9) of the Resolution 3034 (Twenty-Seventh Session), the President of the General Assembly, following appropriate consultations, appointed the following 35 member states to sit on the Ad Hoc Committee: Algeria, Austria, Barbados, Canada, Congo, C/echoslovakia, France, Great Britain, Greece, Guinea, Haiti, Hungary, India, Iran, Italy, Japan, Mauritania, Nicaragua, Nigeria, Panama, People's Democratic Republic of Yemen, Sweden, Syria, Tanzania, Tunisia, Turkey, Ukraine, Uruguay, USA, USSR, Venezuela, Yemen Arab Republic, Yugoslavia, Zaire, and Zambia.
214 Austria, Belgium, Cyprus, Denmark, Great Britain, Finland, France, Italy, Luxemburg, the Netherlands, Norway, Portugal, Spain, Switzerland, and Vatican; of the countries of Asia and Africa, by Iran, Israel, Japan, Lebanon, Nigeria, Syria, Turkey, and the Yemen Arab Republic. Observations were also sent by Australia and New Zealand. It is noteworthy that it was only Canada, Guatemala and the United States that sent in their observations from the American continent; that is to say that many of the States which had voted for the Resolution 3034 at the Twenty-Seventh Session did not take part in the opening stages of the deliberations of the Ad Hoc Committee---the presentation of the observations the Committee had subsequently to build on in making essential studies and bringing in its own recommendations, while other nations which had voted against the resolution sent in their observations which could well create conditions for the discussions in the Ad Hoc Committee to develop in a way different from the spirit of the resolution.The US observations emphasised that a faster procedure of taking action against international terrorism would be preferable. Yet the US agreed to cooperate with the new committee and help it achieve some tangible results. Fearful of isolation, the US pointed out that it was opposed to the use of force to deny the right of self-determination and would not be party to any action adversely affecting that right.^^1^^ There had previously been no statement to that effect either in the draft Convention or in the resolution submitted by the United States. While admitting the draft Convention to be insufficiently elaborated, the US _-_-_
~^^1^^ UN General Assembly, A/AC. 160/1, 16 May 1973, p. 44.
215 pointed out in its observations that this draft was a way of approach to the problem. Along with that, the US found it necessary for determined action to be taken without any delay whatsoever towards resolving that serious and urgent problem^^1^^. The US accepted the important principle that while defending the right to self-determination, one had to rule out the possibility of violent action that would endanger international order, infringe basic human rights and impair the very cause of setlf-determination.The observations presented by France, along with the proposal for a study of the causes of international terrorism to be found in the observations of most States, said that "it would no doubt be pointless to seek the causes of acts or remedies for those acts without defining precisely the notions involved".^^2^^ This proposal is extremely important because any international convention has to be based on a clearly specified range of issues it is supposed to deal with.
The Israeli Government submitted what actually amounted to a full-scale report on the questions of `` international terrorism''. As noted earlier on, Israel had voted against the Resolution 3034 and its observations contained the arguments that had prompted Israel to do so. In the opinion of the Israeli Government:~
(1) the Resolution is utterly oblivious of the imperative urgency of taking effective steps against international terrorism;~
(2) the resolution took no account of the events that led to the General Assembly being seized of the matter.^^3^^
_-_-_~^^1^^ Ibid.
~^^2^^ UN General Assembly, A/AC. 160/1 j Add. I, 12 June 1973, p. 10.
~^^3^^ Ibid., p. 14.
216That is to say that in this case, too, Israel tried to reduce the issue of international terrorism to that of ``Arab terrorism''. Israel proposed the following definition of the corpus delicti of an act of terrorism: ``terrorism consists of an unlawful (criminal) act directed against a State, its organs, its nationals, interests, or property, including its means of transportation whenever such act is meant or calculated to engender a state of terror or panic in the minds of the public as a whole, or of an individual, or of groups".^^1^^
Israel's position should be viewed in close association with the policy of terrorism conducted by Israel's governing quarters in respect of the Arab people of Palestine as well as with the practice of individual terrorism against the national liberation movement and its leaders.
In its observations, the Government of Israel did not mention the right of nations to self-determination, trying to bypass this issue by separating the commission of an act of terrorism in peace time from one at the time of hostilities, with the reservation that the hostilities are understood as actions carried on in conformity with international conventions. That is to say that the Government of Israel reserved the right to decide whether any particular military operations fall within the Geneva Conventions on the Protection of War Victims with all consequences following therefrom. Proceeding from the foregoing, the Government of Israel underlined on several occasions that ``the members of the Arab terrorist groups do not belong to any of the categories of persons enumerated or described in the Third Geneva Convention Relative to the Treatment of Prisoners _-_-_
~^^1^^ UN General Assembly, A/AC. 160/1, Add. I, 12 June 1973, p. 17.
217 of War of 12 August 1949; consequently, Israeli courts and tribunals have consistently dismissed the contention that members of the groups arrested are entitled to the status of prisoners of war".^^1^^ These groups, in the opinion of the Government of Israel, are not belligerent parties and have no title to any right of belligerent parties. In actual fact, the members of Palestine resistance movement perfectly conform to the definition of guerrillas in accordance with paragraphs A/2 and A/6 of Art. 4 of the Geneva Convention Relative to the Treatment of Prisoners of War. Under international law, the organised Arab resistance movement operating in Israeli-occupied Arab territory has the status of a belligerent party, while any members of the movement have that of prisoners of war in case of captivity. Reference is made to the effectives of organised resistance movements operating in or outside their own territory even if that territory is occupied, and to the population of occupied territory who, with an enemy approaching, take up arms spontaneously upon their own initiative to fight the invading forces without having had the time to form a standing army, provided they openly carry arms and observe the laws and customs of war.The substance of the proposals of the Government of Israel does not correspond to its actual performance. For instance, while proposing that diplomatic or consular immunity should not be taken into account in the prosecution of an offence falling within the Convention, the Government of Israel did not renounce the diplomatic immunity of the Israeli diplomat and security officer Yigal Eyal.^^2^^ It _-_-_
~^^1^^ Ibid, p. 20.
~^^2^^ Yigal Eyal has been expelled from Norway.
218 was in his apartment that two out of the six men charged with the murder of a Moroccan, Ahmad Bouchiki, in Lillehammer, Norway, on July 23, 1973, were arrested. Moreover, Meir Rosen, Chief of the Legal Department of the Israeli Foreign Office, demanded the release of an Israeli, Zwi Steimberg, arrested in Yigal Eyal's home. The Norwegian authorities are known to have rejected that demand.Some points in the Israeli Government's observations have been borrowed mainly from the Convention for the Prevention and Punishment of Terrorism drawn up under the auspices of the League of Nations in 1937.
By juggling with legal terminology, the Government of Israel tried to justify its principal objective---vindicate the possibility of attacking a State through the commission of an act of terrorism by natural persons---nationals or permanent residents of that State. For example, the Israeli Government's observations said: ``The Convention envisaged would be ineffectual if it did not give categorical expression to the principle that organized society is in duty bound to protect the innocent, to prosecute terrorists, and to fetter the hands of any who succour them. Where this obligation has been neglected, a right of self-defence arises, effective against any Government which supports, finances, or otherwise abets terrorism."^^1^^
That was tantamount to a legal justification of any further aggression that Israel might launch against Arab countries, invoking an alleged or true act of terrorism, whether committed by persons in the service of a State or by individuals for any reason. The most dangerous aspect of _-_-_
~^^1^^ UN General Assembly, A/AC. 16011, Add. I, 12 June 1973, p. 21.
219 this approach by the Government of Israel is the exercise of the right of self-defence---an attack on a State in reply to terrorist acts committed by individuals.Of the Arab countries, it was Lebanon, the Yemen Arab Republic and Syria that had sent in their observations. The most detailed of these were presented by the Government of Syria, which pointed out, in particular:~
1) the Syrian Arab Republic has always stood against terrorism whether practised by individuals or groups or else by the State;~
2) the Syrian Arab Republic has supported General Assembly Resolution 3034 (Twenty-Seventh Session) as it established the clear distinction between criminal international terrorism, unrelated to the struggle of the peoples and the concept of resistance, on the one hand, and the struggle against all forms of colonialist and imperialist practices, on the other hand. Along with that, Syria was originally opposed to the inscription of that item in the agenda of the Session because of the imperialist and zionist attempt to put criminal terrorism and the struggle of oppressed peoples on an equal footing and to subject them to equal condemnation;~
3) the UN has more than once mentioned the legitimacy of the struggle of the peoples of Guinea (Bissau), Zimbabwe, Namibia, as well as the legitimacy of the struggle of the people of Palestine;~
4) in the opinion of the Government of Syria, an objective consideration by the United Nations of the problem of international terrorism must begin by considering ``State terrorism" as this is the most dangerous brand of violence;~
5) the main cause of violence is the colonialist and 220 imperialist policies and practices, as well as the crimes of racist regimes against peoples;
6) the duty of the United Nations is to find radical solutions and create a favourable atmosphere conducive to the realisation of the aspirations of peoples and particularly of their right to self-determination;
7) apart from ``State terrorism'', there is a brand of terrorism practised in order to achieve criminal purposes for personal benefit to its perpetrators. It has no relation whatsoever with the struggle of peoples;
8) in the problem of terrorism, the fundamental difference among States does not arise over criminal terrorism caused by personal caprice or passions and making innocent victims, but on account of attempts by the imperialist and aggressive forces to legitimise colonial and imperialist terrorism and outlaw the legitimate struggle of peoples for emancipation from the claws of tyranny and despotism.^^1^^
It should be noted that the issue of ``State terrorism" or that of aggressive action by States was examined in the Special Committee on the Question of Defining Aggression from 1952 to April 1974. The Special Committee drafted and adopted a definition of aggression, having submitted it to the Twenty-Ninth Session .of the UN General Assembly.
The observations by Lebanon and the Yemen Arab Republic added no new elements compared with the position of the Syrian Government.
Observations from the socialist countries came from the USSR, Byelorussia, the Ukraine, Czechoslovakia and Yugoslavia.
_-_-_~^^1^^ UN General Assembly, A/AC. 160/1, 16 May 1973, pp. 34--37.
221The Yugoslav Government set forth the following principles which, in its opinion, should constitute the basis for the future Convention:~
1) The Yugoslav Government pledges its full support to the struggle of peoples against colonialist and racist forces, foreign occupation, interference and domination, and emphasises once again that no action or measure undertaken within the framework of curbing ``international terrorism'' can in any way be directed against, or construed as a restriction of the legitimate struggle of anti-colonial and liberation movements.
2) Yugoslavia called upon the nations which had not yet acceded to the Conventions concerned with various aspects of the struggle against international terrorism to accede to them.
3) The future convention should be based on the principle of aut dedere aut punire (extradite or punish)^^1^^.
The Government of Czechoslovakia submitted a document which said that:~
1) International terrorism has to be condemned as a phenomenon which is in strong contradiction with the efforts to promote peaceful cooperation among States as well as peaceful coexistence.
2) The occurrence of the phenomena of international terrorism is rooted in deep social causes which have to be analysed and identified.
3) The study of the causes which give rise to international terorism should not, however, impede the preparation of effective measures to be taken both on the national _-_-_
~^^1^^ UN General Assembly, A/AC. 160/Ij Add. 2, 9 July 1973, pp. 6--7.
222 level, if the causes involved relate to the internal affairs of individual States, and on the international level.4) The measures to be taken in respect of these acts may not be misused to the detriment of the national liberation struggle of the oppressed peoples on the territories of these peoples, nor relate to any act of resistance against the aggressor on the territory occupied by him.^^1^^
Therefore, the position of the Czechoslovak Government contained the most general principles to build on in formulating an actual approach to the fight against acts of terrorism falling within the scope of international law.
In the opinion of the Government of Byelorussia, one essential point in the fight against acts of international terrorism is that of defining those acts in the sense of acts of violence (murder, serious bodily injury, kidnapping) directed against any foreign nationals, irrespective of the reasons for their presence in the country concerned, if the acts are committed fundamentally for political ends or involve the interruption of transport services---for example, the hijacking of aircraft.^^2^^ The position of the Ukraine, apart from the view just cited, contains a reference to Art. 59 of the Criminal Code of the Ukraine, which provides severe penalties for acts of terrorism committed against representatives of foreign states.^^3^^
The USSR laid emphasis on its support for Resolution 3034 (Twenty-Seventh Session) and pointed out that the Soviet Union did not object to the drafting and adoption _-_-_
~^^1^^ UN General Assembly, A/AC. 160/1 / Add. 2, 9 July 1973, p. 3.
~^^2^^ Ibid., p. 2.
~^^3^^ Ibid., p. 4.
223 of an international convention imposing certain obligations on States to check international terrorism, and declared it to be inadmissible to extend the interpretation of the concept ``international terrorism'' to cover the national liberation struggle, resistance to the aggressor in the territories occupied by him, and action by working people in defence of their rights and against the oppression by exploiters. Further on, there is, just as in the positions of Byelorussia and the Ukraine, a reference to the need to consider as international terrorism the acts of violence committed in respect of all foreign nationals regardless of their mission in the host country;^^1^^ the observations also contain a reference, in particular, to Soviet legislation dealing with the prosecution for the commission of an act of terrorism against representatives of foreign states.The Ad Hoc Committee on International Terrorism held a session in the UN central agencies from July 16 to August 11, 1973, without achieving any positive results. None of its three subcommittees---the Subcommittee of the Whole on the Definition of International Terrorism, the Subcommittee of the Whole on the Underlying Causes of International Terrorism, and the Subcommittee of the Whole on Measures for the Prevention of International Terrorism--- succeeded in working out a generally acceptable point of view on the merits of the subject at issue. The draft proposals submitted by different nations contained nothing basically new compared with the discussion at the TwentySeventh Session of the UN General Assembly and the observations sent in by various States. Moreover, the _-_-_
~^^1^^ UN General Assembly, A/AC. 160/I/ Add. I, 12 June 1973, p. 28.
224 Government of Algeria submitted a suggestion to the Subcommittee of the Whole on the Underlying Causes of International Terrorism, saying that ``the motivation of `individual terrorism' is a subject for study in sociology, psychology, genetics and other contemporary human sciences. Its study is not within the terms ot reference of the Ad Hoc Committee".^^1^^Special emphasis in the deliberations of the Ad Hoc Committee was on the need for an inquiry into State terrorism and the forms it takes. This line was most distinct in the position of a group of non-aligned nations.^^2^^
The Thirty-First Session of the UN General Assembly considered a report of the Ad Hoc Committee on International Terrorism.^^3^^ At its 99th Plenary Meeting on December 15, 1976, the General Assembly, on a recommendation of the 6th Committee^^4^^ adopted Resolution 31/102 entitled ``Measures to prevent international terrorism which endangers or takes innocent lives, or jeopardises fundamental freedoms, and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes''. The Ad Hoc _-_-_
~^^1^^ UN General Assembly Official Records, Twenty-Eighth Session, Suppl. No. 28 (A 19028), New York, 1973, pp. 23--24.
~^^2^^ Algeria, Congo, Guinea, India, Mauritania, Nigeria, People's Democratic Republic of Yemen, Syria, Tanzania, Tunisia, Yemen Arab Republic, Yugoslavia, Zaire, and Zambia.
~^^3^^ UN General Assembly Official Records, Thirty-Second Session, .Suppl. No. 37 (A/32137), New York, 1977, pp. 1-5.
~^^4^^ UN General Assembly Official Records, Thirty-First Session, A/31/429, para 10, New York, 14 December 1976.
__PRINTERS_P_225_COMMENT__ 15---2351 225 Committee on International Terrorism met again at the UN from March 14 to 25, 1977.The following nations took part in the general debate: Algeria, Australia, Canada, Czechoslovakia, France, Great Britain, Greece, Haiti, Hungary, Italy, Japan, Sweden, Syria, Tunisia, Turkey, the Ukraine, Uruguay, the USA, the USSR, Venezuela, and Yugoslavia.
The Ad Hoc Committee concurred in reaffirming the inalienable right to self-determination and independence of all the peoples who were under the domination of colonial and racist regimes and suffered from other forms of foreign rule, and the legitimacy of their struggle, notably, the national liberation movements, in conformity with the purposes and principles of the UN Charter. The discussion brought out the following viewpoints (apart from disagreement on which acts should be included in the concept "international terrorism''. For example, some States held there must be no qualification whatsoever in the condemnation and suppression of international terrorism
(1) there must be no exception in the condemnation and suppression of international terrorist activities;
(2) terrorist methods applied by individual Governments and individual States constitute one of the categories of acts of terrorism and fall within the common category of terrorism to be condemned;
(3) the issue of terrorism had, for a long time, been linked up with the problems of fundamental human rights and freedoms;
(4) the issues of human rights are outside the Committee's mandate;
(5) it is necessary to concentrate on specific categories 226 of acts of terrorism and, to that end, work out international and joint national measures. Some States believed that only a precise definition of such acts and a thorough study of the causes thereof would produce effective measures. Piecemeal measures would do nothing but sharpen the differences;
(6) a number of States proposed looking for effective measures at a national level, particularly in the area of protection of diplomatic missions, for instance, by banning the activities of organisations or groups which commit acts of terrorism against diplomatic missions.
Certain emphasis was laid, besides on the importance of acceding to the Conventions which had already been drawn up, on the fact that the General Assembly must continue its elforts to oppose international terrorism, for international cooperation was indispensable, first and foremost, in that regard.
The representative of the USSR stressed, in particular, that:~
a) The documents to be adopted must repose on a consensus among nations.
b) There must be no wider interpretation of international terrorism to cover the national liberation movement, the resistance to the aggressor in occupied territories or the activities of the working people, for instance, against the exploiters.
c) Top priority should be given to combating acts of violence directed against foreign nationals, including the acts committed for political reasons.
d) It is necessary to forestall a deterioration of relations between States consequent upon the commission of these acts of terrorism.
__PRINTERS_P_227_COMMENT__ 15* 227e) The documents to be adopted must be directed against the acts committed for criminal motives, with this category covering the activities of Zionist extremists, national emigrant centres and fascist-type organisations.
f) Special responsibility in this context lies with the States hosting international organisations.
g) The conclusion of bilateral and multilateral extradition agreements can contribute towards the suppression of aircraft hijacking and other terrorist activities.
As we see, since the Ad Hoc Committee was set up little has changed in the distinctions between the positions of various States as regards international terrorism, although all nations are conscious of the need for a breakthrough in this field. This has re-emphasised the importance of taking into account the world's record on the fight against certain types of terrorist acts of an international character.
The 1979 Session of the Ad Hoc Committee on International Terrorism worked out general recommendations relating to practical measures of cooperation for the speedy elimination of the problem of international terrorism. These recommendations reflected a common view of fundamental importance. For instance, as an important condition for effective action against terrorism, the UN General Assembly ought to call upon all nations to contribute, both independently and in cooperation with other nations and with appropriate UN agencies, to the progressive elimination of the underlying causes of international terrorism.
Second, the UN General Assembly ought to call upon all nations to honour their obligations under international law to refrain from organising, instigating, assisting or participating in terrorist acts and civil disorders in another State 228 or acquiescing in organised activities within their territory directed towards the commission of such acts.
One point of particular importance in this context is the recommendation for all nations to take appropriate measures at a national level with a view to an early and definite elimination of the problem of international terrorism, such as bringing national legislation into line with international conventions, meeting the international obligations assumed, frustrating the preparation and organisation of acts against other States in their own territory.
One should regard as very important the special attention that the General Assembly and the Security Council should give to all situations that may breed international terrorism, such as colonialism and racism, as well as the situations arising from foreign occupation or capable of jeopardising international peace and security.
Finally, the Committee recommended contemplating an additional international convention or conventions founded, in particular, on the principle of extradition or punishment of offenders, with a view to suppressing the acts of international terrorism still not covered by other international conventions.
In summing up the discussion of the issue of international terrorism, one should note that not only did the distinctions between social systems have something to do with the subject in question, but the objective international realities have kept this problem from being settled: the UN aims relating to a peaceful and equitable resolution of many sensitive international problems, including those of stamping out the last bulwarks of colonialism and racism, have not been achieved; by and large, the problems of the developing nations have had a certain impact on the overall 229 situation in this respect; the UN has found itself incapable of assuring compliance with appropriate resolutions and effective application of the conventions concluded under its auspices; the policy of terrorism and violence conducted by imperialist and racist States, above all, by Israel and South Africa, creates an alternative in the employment of the means of struggle against those regimes; internal contradictions of imperialist States often spill over their confines to assume international dimensions.
The discussion of the issue of international terrorism in the UN agencies has shown that there is no common understanding of the object or the subject of a terrorist act falling within the scope of international law; there is a considerable difference in the definition of the corpus delicti of an act of terrorism, no indication of the range of persons entitled under international law to protection from an act of terrorism, or of the grounds for such protection, or of its ways and means. The discussion has shown that the nations concerned failed to take proper account in their respective stands of the practice of international relations in the fight against terrorist acts. At certain points, the discussion escalated into a debate on violence in general.
In the observations submitted in accordance with the General Assembly Resolution 3034 (Twenty-Seventh Session), practically all the States (38) proposed concluding a universal convention or a series of conventions to combat acts of international terrorism or, in any case, did not object to such documents being worked out.^^1^^ The need for more standards of international law arises, besides, from the fact _-_-_
~^^1^^ UN General Assembly, A/AC. 160/1; A/AC. 160/1/Add. 1; A/AC. 160/1.
230 that the existing conventions in this field do not cover all cases of the commission of international terrorist acts. Besides, they are not free from certain shortcomings.Of course, international law by itself cannot remove the social roots of any particular phenomenon. In respect of acts of international terrorism, the adoption of international legal documents designed to check or suppress them will optimally make inescapable the punishment of such acts as obstruct the normal course of international relations and complicate the situation. The effect of such documents will depend on how well they have been elaborated and how universally applicable they are. But that does not mean that they alone would help resolve, for instance, the Middle East crisis or other crises prompting the commission of most acts of international terrorism at the present time.
What are, then, the possible methods of legal cooperation of States at an international level in the prosecution and punishment of acts of international terrorism?
Depending on the corpus delicti and its social danger, cooperation of States for the purpose of preventing and controlling crime at an international level may proceed along the following lines:
(1) unification of the standards of national legislation in respect of certain offences;
(2) convention machinery of legal cooperation in the presence of an international element within the corpus delicti as well as its social danger for international relations;
(3) creation of a system of international criminal justice implying the functioning of an International Criminal Court.
231 __ALPHA_LVL2__ 2. UNIFICATION METHODAn 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.^^1^^
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.
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.^^2^^
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 _-_-_
~^^1^^ These conferences were attended by delegations of States as well as by governmental and non-governmental international organisations.
~^^2^^ Actes de la Conference, 1938, Paris. Editions A. Pedone, p. 179.
232 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:~---any wilful act causing a disaster by impeding railway, maritime, river or air communications or by interrupting public services or services of public utility;~
---the use of explosives, incendiary, asphyxiating or harmful substances;~
---propagating or provoking contagious or epidemic diseases;~
---destruction of, or damage to, public buildings or public food stocks, ways and means of transportation and communication, signals, lanterns;~
---destruction of, or damage to, hydraulic installations;~
---'incitement to the commission of offences or complicity in their commission, or attempts to commit the abovementioned offences;~
---participation in an organisation or setting up an association with the view to the commission of any of the above-mentioned offences;~
---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.^^1^^
In virtue of Art. 1 of the document of the Sixth International Conference, any person who, by wilful acts, has _-_-_
~^^1^^ Ibid., p. 420.
233 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.^^1^^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.^^2^^
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.
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.
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 _-_-_
~^^1^^ Ibid.
~^^2^^ Ibid., p. 421.
234 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.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, 235 consideration of new legislation, and increased contingency planning".^^1^^
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.^^2^^
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.
In virtue of head (b) of paragraph 1116, a foreign official or official guest of the United States is:
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
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 _-_-_
~^^1^^ UN General Assembly, A/AC.160H, 16 May 1973, p. 44.
~^^2^^ American Journal of International Law, vol. 67, No. 3, July 1973, pp. 622--26.
236 of his family whose presence in the United States is in connection with the presence of such officer or employee.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).
``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).
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.
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.
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.
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, 237 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).
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.
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.
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 238 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.^^1^^
__ALPHA_LVL2__ 3. INTERNATIONAL MACHINERYIt 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).
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 _-_-_
~^^1^^ Bart De Schutter, ``Prospective Study of the Mechanisms to Repress Terrorism''. In Reflexions sur la definition et la repression du terrorisme. Editions de 1'Universite de Bruxelles, 1974, pp. 265, 266.
239 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.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.
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.
Irrespective of the purpose of a convention (general or specialised), it must contain certain legal principles to make it effective.
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 240 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."^^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.
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.
Art. 1 of the Draft specifies the corpus delicti of an offence falling within the Convention. It qualifies as an international offence:~
1) homicide;~
2) causing grievous bodily harm;~
3) kidnapping;~
4) an attempt to commit any such act;~
5) participating as an accomplice of a person who commits any such act, if the act:~
a) is committed or takes effect outside the territory of a State of which the alleged offender is a national;~
b) is committed or takes effect outside the territory of _-_-_
~^^1^^ UN General Assembly Official Records. Twenty-- Eighth Session, Suppl. No. 28 (AI9028), p. 28.
__PRINTERS_P_241_COMMENT__ 16---2351 241 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;~c) is committed neither by nor against a member of the armed forces of a State in the course of military hostilities;~
d) is intended to damage the interests of, or obtain concessions from, a State or an international organisation.
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.
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.
Art. 2 contains an undertaking of the States parties to envisage severe penalties for offences set forth in Art. 1.
Art. 3 fixes the principle of aut dedere out judicare.
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 242 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.
Art. 16 formulates a long and involved procedure for the settlement of disputes arising from the application of the Convention.
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.
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.
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.
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.
One point to stress in this context is that the US stand __PRINTERS_P_243_COMMENT__ 16* 243 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.
Following a discussion on international terrorism at its Thirty-Fourth Session, the General Assembly adopted an important resolution^^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 _-_-_
~^^1^^ UN General Assembly Official Records, A/34 786, 8 December 1979.
244 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.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.
John Dugard, a British lawyer, believes it necessary to adopt a single general Convention and that Convention should, ideally:
1) reaffirm that every State has a duty to refrain in all circumstances from encouraging terrorist activities in another State;~
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;~
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 245 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;~
4) the motive is irrelevant in determining whether an act of terrorism has been committed;~
5) the Convention should accept the principle of out dedere out punirc as a guide in the enforcement procedures;~
6) the Convention should reaffirm the international community's abhorrence of State-controlled terrorism as expressed in the Nuremberg principles.^^1^^
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.
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.
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.
_-_-_~^^1^^ John Dugard, ``International Terrorism: Problems of Definition'', International Ajjairs, January 1974, Vol. 50, No, 1. pp. 74--75.
246The 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:~
1) Propositions for the preamble of a possible convention:~
a) proposal for States to join the existing international conventions concerning various aspects of the problem of international terrorist acts;~
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;~
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;~
d) emphasis on the importance of international cooperation in devising measures towards effective prevention of international terrorist acts;~
e) proposal for States to take all appropriate measures at a national level with the aim of resolving this problem at the earliest opportunity.
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.
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 247 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).
4) The principle of aut dcdcre aut juduarc which is likewise extremely important for assuring inescapable punishment of the offences falling within the Convention.
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.
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.
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).
2488) Commitment of the States parties to the Convention to maintain legal cooperation as regards the application of the Convention.
9) The Convention should be of unlimited duration and open for signature by all nations.
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.
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.
__ALPHA_LVL2__ 4. INTERNATIONAL CRIMINAL JURISDICTIONAlong with the generally recognised methods of prosecution for the commission of international terrorist acts--- within the framework of rrational jurisdiction and governed by domestic legislation as well as the conventions concluded to this effect at an international level, there have been many suggestions as to prosecution and punishment 249 for the commission of such terrorist acts in an Intel national Ciiminal Court.
In appears important to review the various drafts for the establishment of an International Criminal Court drawn up with a view to prosecution and punishment for the commission of acts of terrorism within the meaning of international law.
As stated earlier, along with the Convention for the Ptevention and Punishment of Terrorism, the League of Nations drafted, in 1937, a Convention for the Establishment of an International Criminal Court.^^1^^ Noteworthy in that Convention are matters of procedure, universality and correlation with the basic provisions of the Convention for the Prevention and Punishment of Terrorism.
Structurally, the Convention consists of a preamble and 56 Articles. All Articles can be classified as constitutional, and procedural.
Art. 1 establishes an International Criminal Court for the trial of persons accused of offences dealt with in the Convention for the Prevention and Punishment of Terrorism~^^2^^
Art. 2 says that in the cases referred to in Arts. 2, 3, 9 and 10 of the Convention for the Prevention and Punishment of Terrorism, each High Contracting Party shall be entitled instead of prosecuting before his own courts, to commit the accused for trial to the International Criminal Court.
Consequently, this section of Art. 2 of the Convention establishes the optional procedure for a case to be heard _-_-_
~^^1^^ The Convention never came into force, but was signed by Belgium (ad referendum), Bulgaria, Spain, France (with the `` colonial reservation''), Greece, the Netherlands, Romania, Chechoslovakia, Turkey, Yugoslavia, there have been no ratifications
~^^2^^ The corpa delicti are bet out m its Arts 2, 3, 9 and 10.
250 in the Court (hereinafter, the Court will stand for the International Criminal Court in this paragraph for the sake 01 brevity); the second important point of Art. 2 is that a High Contracting Party shall be entitled, in cases where he is able to grant extradition in accordance with Art. 8 of the Convention for the Prevention and Punishment of Terrorism, to commit the accused for trial to the Couit if the State demanding extradition is also a party to the present Convention. In practical terms, this means that the Slate having established its jurisdiction over the offendei, may choose one of the three possible situations:~1) hearing the case in accordance witli its own legislation;~
2) granting extradition;~
3) committing the offender to the Court for trial. In such a case, it is of interest to note the principle whereby the Convention elects the law of the Court.
Art. 21 emphasises that substantive criminal law to be applied by the Court shall be that which is the least severe. In determining what that law is, the Court shall take into consideration the law of the territory on which the offence was committed and the law of the country which committed the accused to it for trial (emphasis added).
One can see from Art. 21 that there can be conflict between the provisions of the law of the territory in which the offence was committed and the provisions of the law of the country which committed the accused to the Court for trial, and therefore, although the principle of the least severe penalty being applied is established, there is no definite solution to the question of which law will be applied by the Court, since it has none of its own, which is one of the serious shortcomings of the Convention designed 251 either to unify the appropriate provisions or formulate one to specify the legal provision.
Under Art. 24, the President of the Court shall notify the State against which the offence was directed, the State on whose territory the offence was committed and the State of which the accused is a national about the decision of a High Contracting Party to commit an accused person for trial to the Court after the President has been informed by that Party about such a decision.
Art. 25 formulates the rules to govern the document committing an accused person to the Court for trial. This document shall, first of all, contain a statement of the principal charges brought against that person and, second, the allegations on which they are based, and shall name the agent by whom the committing State will be represented.
Art. 25 lays it down that the State which committed the accused person to the Court for trial shall conduct the prosecution unless the State against which the offence was directed or, failing that State, the State on whose territory the offence was committed, expresses a wish to prosecute. Consequently, this Article establishes an advantage, from the standpoint of pressing the accusation, for the State against which the offence was committed. This principle has enough reason to be applied but it is not followed in other provisions of the Convention, as shown earlier.
In case the right of accusation has not been used and the States having this right have shown no wish to exercise it, the Court shall not proceed further with the case and shall order the accused to be discharged (Art. 28)
Under Art. 31, the State on the territory of which the Court is sitting shall place at the Court's disposal a 252 suitable place of internment and the necessary staff of warders for the custody of the accused.
Arts. 39, 40, 41 deal with the execution of the sentences of the Court, notably, paragraph 3 of Art. 39 provides for the States par ties to the Convention to be bound to take all the measures provided for by their own laws so as to enforce the Court rulings with regard to objects or property belonging to convicted persons situated in the territory of these States, and, besides, these provisions shall also apply, in virtue of paragraph 4 of Art. 39 in cases of pecuniary penalties or costs of proceedings imposed.
Art. 40, the most important one, lays it down that sentences involving loss of liberty shall be executed by a High Contracting Party chosen with his consent by the Court. Such consent may not be refused by the State which committed the convicted person to the Court for trial, and if it has expressed the wish to do so, the sentence shall always be executed by this State.
If sentence of death has been pronounced, the State designated by the Court to execute the sentence shall be entitled to substitute the most severe penalty for it, as provided by its national law which involves loss of liberty (Art. 41).
The wording of this Article allows the presumption that a case may be heard in line with one law, while the sentence will be executed under the provisions of another law, which means stultifying, in large measure, the provisions of the Convention for the Prevention and Punishment of Terrorism designed to assure inescapable punishment for the offences set forth in the appropriate Articles of this Convention.
In our view, the matter should in this case be settled 253 by electing the ilaw of the country against which the offence was directed; and executing the sentence in line with the standards of the same system of law which, on the one hand, would ensure the consistency of prosecution, and, on the other, would prompt the nations which have no provisions for the control of offences of this kind in their legislation so far as to take more radical action.
The last Article, noteworthy from the standpoint of general theory, is Art. 42 granting the right of pardon in the country which has to execute the sentence on the understanding, however, that that country shall first consult the President of the Court.
This provision also reduces the possibility of attaining the aims set by the Convention for the Prevention and Punishment of Terrorism, since:
1) the President of the Court may not influence the will of the State introducing an amnesty because of his status;
2) the very granting of an amnesty for cases of this category does much to stultify the principle of inescapable punishment, considering, in particular, that the Convention does not specify the State that is to carry out the sentence. This idea by no means disproves the validity of the provisions of the Convention on legal guarantees offered to the accused: defence, the right of rehearing, study of the material of the proceeding, etc.
So the international community has undertaken an attempt, if unsuccessful, at creating a legal machinery of prosecution and punishment for the commission of international terrorist acts. This has been an interesting experience because the problem of creating such a machinery is still on the agenda and, although there are various points of view prevalent among scholars and various positions of 254 various nations, this experience should be used in devising the modes of approach to the present solution of the issue. It should likewise be noted that this issue is part of a larger problem, that of the evolution and development of international criminal law.
The issue of creating international criminal jurisdiction was debated at the UN in connection with the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which stated that there must be ``such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction".^^1^^
The Fifth Session of the General Assembly adopted Resolution 489 which set out the decision to create a Committee on International Criminal Jurisdiction (the Geneva Committee). The Seventh Session of the General Assembly had a report and draft statute of an International Criminal Court brought before it by the Committee,^^2^^ however, the Seventh Session did not take any decision on the substance of the matter, but created a new committee which had the same task before it (Seventeen-member Committee). It submitted its report with a revised draft statute of an International Criminal Court to the Ninth Session of the General Assembly.
Both committees have done a large amount of work towards drafting the statute of the Court and their reports and drafts are of certain interest, although the draft statute has been neither recommended to, nor accepted by any State.
_-_-_~^^1^^ Yearbook of the United Nations, 1048--1949, UN, New York, 1938, p. 9.r)9.
~^^2^^ UN General Assembly Official Records, Seventh Session, Suppl. No. 11, (A/2136), 1952, p. 21.
255A series of problems arise in connection with the creation of international criminal jurisdiction. The competence of the Court is one of the most important of these. In the drafts, the matter is dealt with in the opening Articles headlined ``Purpose of the Court'', while in the third chapters, the issues of competence are regulated in detail. Art. 1 of the Geneva Draft Statute reads: ``There is established an International Criminal Court to try persons accused of crimes under international law as may be provided in conventions or special agreements among States parties to the present Statute."^^1^^ Art. 1 of the Draft Statute presented by the Seventeen-member Committee says that ``There is established an International Criminal Court to try natural persons accused of crimes generally recognised under international law."^^2^^ The Geneva Committee's Report has specified that ``the determination of these broad categories would not establish any jurisdiction".
The Seventeen-member Committee has emphasised that Art. 1 does not confer any jurisdiction on the Court but specifies its principal objective and imposes, thereby, general restrictions beyond which the Court may not operate, nor the States may confer any jurisdiction on it.
The Articles of Chapter III, ``Competence of the Court'', are very important because they are, first and foremost, basic to the very possibility of the Court violating national sovereignty or ruling out such a possibility.
Paragraph 1 of Art. 26---``Attribution of Jurisdiction" says that jurisdiction of the Court is not to be presumed. _-_-_
~^^1^^ Ibid.
~^^2^^ UN General Assembly. Official Records, Ninth Session, Suppl. NT/. (A/2645), 1954, p. 23.
256 The Court by convention will not have any jurisdiction at all unless the State confers jurisdiction on it through an appropriate expression of will. This is further evidence of the need to draw up substantive international criminal law and that precisely because and in the light of the creation of international criminal jurisdiction.The Geneva draft indicated that general jurisdiction is conferred only by convention, while the attribution of jurisdiction by special agreement or by unilateral declaration was allowed only post jactum. This difference was removed from the draft of the Seventeen-member Committee. Paragraph 2 of Art. 26 lays it down that ``a State may confer jurisdiction upon the Court by convention, by special agreement or by unilateral declaration".
This implied that this particular point referred only to future conventions, special agreements and declarations, i.e., such documents as would be adopted for the express purpose of creating international criminal jurisdiction. That means indicating the ground the Court was to act upon and precluding the possibility of arbitrary legal action because of the unclarity and conflicting nature of the sources of law.
The jurisdiction of the Court was optional. In attributing jurisdiction to the Court, the State did not commit itself to referring any particular cases to the Court. It is entitled to do so but may prefer to take action either in its own national courts under its own laws, or in special international courts. Unless a different procedure is envisaged in an appropriate act, the only obligation arising from the attribution of jurisdiction to the Court is the passive obligation to allow proceedings to be instituted in that Court against appropriate persons.
__PRINTERS_P_257_COMMENT__ 17---2351 257No person shall be tried by the Court unless jurisdiction has been conferred upon it by the State or States in which the crime is alleged to have been committed (Art. 27). A State may withdraw its conferment of jurisdiction. Such withdrawal shall take effect one year after the delivery of notice to that effect to the Secretary-General of the United Nations (Art. 28).
Yet another important issue is about who may have access to the Court. The Geneva draft statute stipulated that proceedings might be instituted by the UN General Assembly, by any organisation of States so authorised by the General Assembly and by the States parties to the Statute. The Seventeen-member Draft contained two alternatives. Alternative A: proceedings may be instituted by any State which has conferred jurisdiction upon the Court over such offences.
Alternative B stipulated, apart from the above-mentioned provision, that in the interest of the maintenance of peace, a United Nations organ to be designated by the United Nations may stop the presentation or prosecution of a particular case before the Court (Art. 29).
The second alternative appears to have a greater advantage. Yet one cannot agree to a special organ being set up. It is the Security Council that can alone be such an organ as could stop the presentation or prosecution of a particular case before the Court.
The conclusion one can draw from a review of Chapters I and III of the draft statute of the International Criminal Court is that the most important problems connected with the creation of the Court---the competence of the Court, attribution of jurisdiction, recognition of cognizance, the law of the Court, access to the Court---have been 258 essentially resolved in the right way, in our view, as they are based on the generally recognised principles and standards of international law such, for instance, as the respect of national sovereignty. Along with that, a number of provisions arc subject to further elaboration to be worked up ( assistance of States to the Court, designation of punishment, execution of sentences, etc.).
The drafts contained a fairly circumstantial account of the matter of legal procedure: the rights of the accused, the rights of the court, etc. (Arts. 35--52).
One of the important issues arising from the establishment of an International Criminal Court are about the way the Court is to be set up. The Seventeen-member Committee discussed four methods by which an International Criminal Court might be established: A. Establishment of the Court by amendment of the UN Charter; B. Establishment of the Court by multilateral convention; C. Establishment of the Court by a General Assembly resolution, and D. Establishment of the Court by a General Assembly resolution to be followed by conventions.
Establishment of the Court by an amendment of the UN Charter can be brought about through setting up a criminal chamber under the auspices of the International Court of Justice or by setting up an International Criminal Court as a new major organ.
Most of the Committee members reacted sceptically to the possibility of the Court being established by any of these methods in the foreseeable future, considering, however, that the establishment of the Court by a multilateral convention would be the best and most practicable procedure for some time yet.
The Committee suggested the following procedure: with 259 the preliminary draft statute of the International Criminal Court drawn up, it would be expedient to recognise, by a General Assembly resolution, the desirability of instituting such a court, and call a conference of plenipotentiary representatives of States to finalise the drafting of the statute of the Court and the formulation of other acts imposing obligations upon States connected with the competence of the Court and its proper functioning.
Those who were in favour of an International Criminal Court being established by a General Assembly resolution maintained that such a court could be brought into being at once and without any amendment of the UN Charter. They invoked Art. 22 of the Charter authorising the General Assembly to establish any such subsidiary organs as it found necessary to assist it in performing its functions. Obviously, that although the General Assembly can, indeed, establish such subsidiary organs, there is no reason for its competence to be interpreted to mean that the General Assembly has the right to establish an International Criminal Court. The General Assembly may adopt resolutions with recommendations for it to be created. These recommendations can be adopted as a draft convention containing the obligations of States regarding the creation, organisation and functioning of the Court. However, only the ratification of such a document by States would permit such a Court to be established.
The United States called for the Court to be established by a General Assembly resolution to be followed by conventions. To use this method would mean that the General Assembly would have to adopt a resolution proposing the Statute of the International Criminal Court. That resolution would, however, have to provide that the 260 Court would not be considered established until a specified number of States had conferred jurisdiction upon it by convention, special agreement or unilateral declaration.
The method that, in our view, must be recognised as the most acceptable one out of the four methods mentioned is that of establishing the Court by an international multilateral convention, and that is the one the Seventeen-- member Committee has finally decided on. Preliminary discussion of the issue of creating international criminal jurisdiction by the General Assembly is indispensable in all cases because that would bring out the position of States with regard to such a Court and attribution of jurisdiction upon it and would, besides, make clear the number of States agreeable to attend the conference called to this end. The nations which voted for the relevant General Assembly resolution may be expected to attend subsequently the conference to be held to draft the Convention. The accession of a sufficiently large number of nations to the Statute is an indispensable condition for international criminal jurisdiction to be established.
One of the most important issues arising from the problem of international criminal jurisdiction is that of the substantive law to be applied by the Court. A report by the Seven teen-member Committee pointed out: ``Some members felt that at the present time it was still clear that the substantive law to be applied by the Court was not sufficiently mature to make the creation of an international criminal jurisdiction practicable. Others were of the opinion that since ad hoc tribunals had tried and sentenced thousands of criminals on the basis of that law, an international criminal court could well be established to apply it, 261 and that the lack of precision of that law was a further argument for entrusting its application, not to ad hoc courts established for each occasion, but rather to a permanent court set up in advance which would guarantee a more universal application."^^1^^
However, the lack of precision of substantive law might provide an excuse for intervention in the internal affairs of States. Therefore, to work out the provisions of that law is a matter of principle.
It should be noted that General Assembly, in a Resolution of November 21, 1947, entrusted the formulation of the principles of international law recognised in the Charter of the Nuremberg Tribunal and in the judgement of the Tribunal to the International Law Commission, and directed it to ``formulate the principles of international law recognised in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal, and prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in sub-paragraph (a) above".^^2^^
The representative of the USSR said at the time that the Soviet delegation considered important the drafting of a code of offences against the peace and security of mankind.
The Report of the International Law Commission to the Fifth Session of the UN General Assembly in 1950 contained a formulation of the Nuremberg principles. In its Resolution of December 12, 1950, the General Assembly _-_-_
~^^1^^ UN General Assembly Official Records, Seventh Session, Suppl. No. 12 (A!2645), p. 22.
~^^2^^ Yearbook of the United Nations, 1947--1948, UN, New York, 1949, p. 215.
262 asked the governments of the UN member states to submit their observations regarding this formulation and requested the International Law Commission ``in preparing the draft code of offences against the peace and security of mankind, to take account of the observations made on this formulation by delegations during the Fifth Session of the General Assembly and of any observations which may be made by governments".^^1^^Taking into account all the observations made by delegations as well as those contained in written comments by the governments of 14 nations submitted to, and considered at its meetings, the Commission drafted a code of offences against the peace and security of mankind, which was submitted to the UN General Assembly for consideration. The issue of the draft code was included in the preliminary agenda of the Sixth Session of the General Assembly but, by Assembly decision, its consideration was postponed, and the Commission was asked to go ahead with drafting the code, taking into account the proposals received from various nations.
The draft code that was submitted laid emphasis on criminal acts connected, in one way or another, with terrorism, notably, with preparing aggression. It is worth mentioning in this context paragraph 4 of Art. 2 which was enlarged by the Commission in its final draft code of 1954 compared with that of 1951. Instead of the brief formulation: ``The incursion into the territory of a State from the territory of another State by armed bands acting for a _-_-_
~^^1^^ Yearbook of the United Nations, 1950, UN, New York, 1951, p. 857.
263 political purpose'', the Commission enlarged the proposition listing a wide range of offences involving ``armed bands''. These included provisions regarding the organisation, encouragement, toleration and support of the organisation of armed bands and their operations, as well as several provisions specifying possible cases of armed bands using the territory of States on which they are set up and from which they operate.This extended interpretation, undoubtedly, does not only provide a clearer definition of one of the gravest international offences, but allows the responsibility of States for them to be established with greater guarantee.
Paragraph 5 of Art. 2 of the draft code refers to ``the undertaking or encouragement by the authorities of a State of activities calculated to foment civil strife in another State, or the toleration by the authorities of a State of organized activities" for the same purpose. This provision coincides with that contained in Resolution 380 (V) of November 17, 1950, which said that ``fomenting civil strife in the interest of a foreign Power" constitutes aggression. The draft also contains a special reference to the 1937 International Convention on the Suppression of Terrorism which, undoubtedly, offered an enlarged interpretation of paragraph 6 of Art. 2 of the draft code of offences against the peace and security of mankind, which has no list of acts treated as terrorist.
The importance of including a provision on terrorism in the draft code was stressed by the representative of the USSR who, speaking in the Political Committee of the Sixth Session of the General Assembly with reference to the American Mutual Security Act of October 10, 1951, noted the 264 significance of the thorough drafting of the code and, in particular, of paragraph 6 of Art. 2.^^1^^
Suffice it to read to US Act to see the obvious purpose it had been produced for. It provided, notably, for the special appropriations to the amount of 100 million dollars for financing ``any selected persons who are residing in or escapees from the Soviet Union, Poland, Czechoslovakia, Hungary, Romania, Bulgaria, Albania .. . either to form such persons into elements of the military forces supporting the North Atlantic Treaty Organization (NATO) or for other purposes".^^2^^
That Act did not only clearly contradict, but flagrantly violated fundamental standards of international law, including the 1937 Convention which unequivocally declared similar action to be an international crime. It was for that particular reason that the US delegation launched so active a campaign to forestall the discussion and adoption of the draft code which contained an imperative ban on terrorist activities.
The draft of the Seventeen-member Committee was examined at the Ninth Session of the General Assembly which, however, failed to take any decision on the merits of the issue. Under Resolutions 897 and 898, consideration of the question of international criminal jurisdiction was deferred until a definition of aggression has been formulated.
The Twelfth Session of the General Assembly once more put off the question of international criminal jurisdiction for the same reasons (Resolution 1181).
In 1974, as the draft definition of aggression was brought _-_-_
~^^1^^ Izvcstia, December 22, 1951.
~^^2^^ Yearbook of the United Nations, 1951, UN, New York, 1952, p. 354.
265 before the UN General Assembly, the UN Secretary-- General proposed resuming consideration of the draft code of offences against the peace and security of mankind, as well as the issue of international criminal jurisdiction.In 1977, the report of the International Law Commission suggested that the draft code of 1954 be reconsidered. In 1980, seven nations called for that item to be included in the General Assembly agenda under the title of ``Draft Code of Offences Against the Peace and Security of Mankind''. Erik Suy, UN legal adviser, justly pointed out that out of the legal documents to be regarded as connected with the Draft Code, one should mention the International Convention on the Elimination of All Forms of Racial Discrimination of 7 March 1966; the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of November 26, 1968; the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, of December 14, 1973; Definition of Aggression; Declaration on the Granting of Independence to Colonial Countries and Peoples; Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations, and, let us add, the International Convention against the Taking of Hostages.
Obviously, these documents have to be taken into account in drafting the code and in bringing its provisions up to the present-day level of cooperation of States in the control of international crimes. It is just as obvious that the records of the discussion of that question in the Sixth Committee of the Thirty-Third Session of the General Assembly in 1978 and of the discussion of the same question in the Sixth 266 Committee in 1980 provided important supporting evidence.
Another piece of supporting evidence when drawing up an international legal document essential to all States would be the replies received from governments and international organisations to the inquiry from the UN Secretary-General.
As the debate in the Sixth Committee has brought out, most of the replies underlined the need for the code to include such offences as unlawful action against the safety of civil aviation, offences against internationally protected persons, terrorism; non-applicability of statutory limitations to such crimes; suppression of the activities of individuals as well as groups and organisations presenting a danger to peace and contradicting international law.
As the representative of Zaire said, the Nuremberg Trial had produced a new legal conception, the conception of criminal responsibility of individuals having committed, on behalf or as an agent of a State, acts which are offences against humanity. Besides, a principle of indirect criminal responsibility has arisen from the decision on indirect prosecution for the misdeeds of the States on behalf of which such individuals acted. The fact that a State may, if indirectly, be brought to book within the framework of international criminal jurisdiction is an unprecedented one and it has considerably extended the area of application of international public law.
This approach is of fundamental importance for the suppression of terrorist acts committed by state officials.
The wave of terrorist acts, aircraft hijacking and acts of violence against persons enjoying a special status under international law have once more attracted legal attention to the issue of setting up an International Criminal Court. In particular, these questions were discussed at two 267 conferences on international criminal law held at Racine, Wisconsin, USA, in 1971--72, and in Bellagio, Italy, in 1972 under the auspices of the International Foundation for the Establishment of an International Criminal Court. They have produced the following documents: the Convention on International Crimes and Statute for an International Criminal Court.
While positively evaluating the attempt at producing the fullest possible list of offences which the authors hold to fall within the Convention as international offences as well as loyalty to the principles of the Nuremberg Tribunal ---no absolution from responsibility for the commission of international crimes while performing official duties (Art. 4), refusal, from the standpoint of defence, to take into account the fact that, while committing an international crime, the accused was executing an order or acted in compliance with national legislation (Art. 5), one should, nevertheless, point out the following shortcomings of these documents:
1) mixing up the crimes of an international character (piracy and slavery and customs akin to them; hijacking; international acts of terrorism; unlawful actions against the safety of civil aviation; smuggling of kidnapped persons abroad; international drug traffic; environmental pollution, and acts of violence against internationally protected persons), with international crimes (offences against peace; war crimes; crimes against humanity; genocide and apartheid) ;
2) incomplete definition of the cor pa delicti of the offences subject to control at an international level, as the following actions do not fall within the Convention: counterfeiting; damage to underwater cables; fabrication of false 268 documents, ammunition and arms to supply persons who have committed the above-mentioned acts; membership in an organisation concerned with committing offences falling within the Convention;
3) repetition of the procedural shortcoming of the 1937 League of Nations Convention on the Establishment of an International Criminal Court, since Art. 6 (paragraph 4) says that a party to the Convention shall either prosecute the alleged offender, or extradite him, or commit him for trial to an International Criminal Court. This amounts to confusing the formula of aut dedere out judicare---the formula of conventionary cooperation---with the necessity of prosecution for the commission of international crimes by the International Criminal Court.
The draft Statute for an International Criminal Court consists of 50 articles. While giving a general appraisal of this document, one should point out its positive and negative aspects.
The draft Statute for an International Criminal Court is certainly of great interest for the study of the problem of international criminal jurisdiction, as it:
a) has taken into account the previous efforts to establish an International Criminal Court;~
b) has elaborated the technical issues of the selection, functioning, dismissal and replacement of judges;~
c) recognises the necessity of selecting judges so as to represent major forms of civilisation and fundamental legal systems of the world (Art. 6);~
d) Art. 16 provides for the fallowing additional bodies of the Court: procurator's office, defence, prosecution, investigation commission, pardon and parole collegium;~
e) has preserved the right of the States to establish special 269 courts by two or more States to prosecute for the commission of offences over which each of the States has the right to exercise its jurisdiction in accordance with the general standards of international law (Art. 49);~
f) has worked out propositions concerning the rights and duties of all the parties to the trial as well as of the bodies involved in it (Arts. 28, 29, 30, 31, 34, 46, 47).
The list of international offences which fall within the jurisdiction of the International Court does not create a clear picture of the scope of the Court's activities.
The Third International Conference on International Penal Law was held under the auspices of the Foundation at Dacca (Bangladesh) late in December 1974.
Besides, representatives of the Foundation have sponsored seminars in Abidjan (Ivory Coast), Baku (USSR), Ludwigsburg (West Germany), Brussels (Belgium) and Beverly Hills (USA). The drafts of the documents elaborated there are an attempt at reflecting the basic world legal systems.
The Fourth Conference of the Foundation for the Establishment of an International Criminal Court met at San Juan (Puerto Rico) in January 1976. The draft worked out at that conference contained some new provisions compared with the previous ones. In particular, Art. 1 establishes responsibility for the commission of offences enumerated in Art. 2 not only of natural persons but also of corporations, associations, and other commercial, industrial and financial organisations. It should be considered positive that the conference included into the list of offences falling within the Convention not only the international legal offences codified by the conventions in force but also the offences formulated in a number of UN General Assembly 270 resolutions. In particular, paragraph 3 of Art. 2 contains the following formulation:~
Acts falling within the scope of criminal sanctions have been identified in the following UN General Assembly resolutions:~
a) Resolution on the Formulation of the Nuremberg Principles of 1950.
b) Resolution on Respect for Human Rights in Armed Conflicts.
c) Resolution on the Legal Status of Combatants against Colonial and Racist Regimes, 1973.
d) Resolution on the Definition of Aggression, 1974.
An important point is the application of the functional principle in granting protection to persons kidnapped and smuggled across the national border (government or public activity).
A basically new thing is the inclusion in the draft convention of the cor pa delicti of the offences against the economy of a State, establishment of responsibility for external intervention in the affairs of a State with a view to establishing control or undermining its economy, for affecting or heavily damaging the economy of a State through a boycott, a blockade or embargo, as well as for bribery or other forms of corruption eroding the probity of national leadership.
Besides, there is a provision for responsibility for abuse of human and natural resources of a State. These conventions are obviously antimonopolistic. The insertion of such points indicates further progress on the way towards a more democratic approach to the problem of the establishment of an International Criminal Court. Under the draft convention, the nations are obliged to take necessary steps, in 271 accordance with their national legal systems, to fulfil theii obligations arising from their membership in the conventions. Compared with the previous drafts, this one provides for responsibility for action directed, by and large, against the sovereignty of a State, its political and economic system, and its culture.
The draft establishes responsibility for a breach of economic sanctions adopted by the Security Council and--- which is particularly important---establishes responsibility for actions obstructing the exercise of the right to self-- determination of nations under colonial or apartheid rule.
In May 26--31, 1977, an international conference of experts on international criminal law and jurisdiction and major violations of international law was held in Boston (USA). It was attended by representatives of 30 countries. The object of the conference was to work out provisional mechanism of investigation and possible prosecution for the commission of such dangerous offences as blowing up civil airliners, assassinations and other inhuman acts falling within the scope of international law.
The conference discussed the draft code and statute of the Court proposed by the International Law Commission and the Commission of International Criminal Law of the International Foundation for the Establishment of an International Criminal Court. The most important task was that of working out the mechanism that could easily be used, given the wish of the parties concerned, and which could, besides, assure an impartial settlement of disputes arising in the course of adjudication of cases.
As compared with the draft documents drawn up by the preceding conferences of the Foundation, the draft of this conference contained several new elements, notably, 272 the offences falling within the draft Convention, included the use of mercenaries against national liberation movements in battle for freedom and independence from the yoke of colonialism and foreign domination, as well as service as mercenaries against national liberation movements.
It should be noted that this draft Convention has been better elaborated and structurally more perfect than the previous Foundation documents of this kind. The draft also reflects the recent shift towards a more democratic development of international law.
One document of interest for this study is the draft International Criminal Code^^1^^ prepared by a well-known lawyer, Cherif Bassiouni, Secretary-General of the International Association of Penal Law; Dean, International Institute of Higher Studies in Criminal Sciences. The draft was discussed at the International Institute of Higher Studies in Criminal Sciences at Siracusa from December 1977 till May 1979. In July 1979, the draft was committed to the UN. The structure of the code provides for its alternative application: its first version may be used by the International Criminal Court, and the second one, as a code of international offences set forth in appropriate conventions imposing obligations on the Contracting States and put into force through national systems of criminal law.
The first version presupposes the existence of an International Criminal Court and an appropriate setup for the administration of justice indispensable to any system of criminal law. For this purpose, the draft code _-_-_
~^^1^^ International Criminal Law. A Draft International Criminal Code. By M. Cherif Bassiouni, Sijthoff & Noordhoff. Alphen aan den Rijn, the Netherlands, 1980, p. 37.
__PRINTERS_P_273_COMMENT__ 18---2351 273 incorporates a ``General Part''. The second version drops the `` General Part'', having a ``Special Part" as its central piece which specifies the range and corpa delicti of international offences. Both the first and second version necessitate a ``Special Part" and procedural mechanism for the enforcement of international criminal law which, in the first case, is included in the ``General Part" and, in the second, in the ''Enforcement Part''. The Draft Code contains a fourth section called ``General Treaty Provisions'', proceeding from the assumption that both versions under consideration will take on the form of a multilateral convention under any circumstances. In drawing up the ``General Part'', the author of the code based his work on a unitary integrated structure, striving to link the conceptions of common and civil law and also take into account the conceptions and the approach of socialist law to the problem of international criminal law to the extent they have found reflection in contractual practice and customs of international law. Such an approach to drafting the ``General Part" of the code was prompted by a desire to set up a universal International Criminal Court.The draft code divides international offences into four main groups:
Category (I) covers acts regarded as international offences under the existing international conventions: aggression; war crimes; unlawful use of weapons; genocide; crimes against humanity; apartheid; slavery and related crimes; torture (as a war crime); unlawful medical experimentation (as a war crime); piracy; crimes relating to international air communication; threat and use of force against internationally protected persons; taking of civilian hostages; unlawful use of the mails; drug offences; falsification and 274 counterfeiting; theft of national and archaeological treasures (in time of war); interference with underwater cables; international traffic in obsene publications.
Category (II) includes international offences which in the opinion of the author of the draft rode require the conclusion of international conventions within the UN framework. These comprise the use of torture.
Category (III) comprises the delicts the prohibition of which is the object of certain international conventions; however, these offences are not regarded as international: the use of torture (as a human rights violation); unlawful medical experimentation (as a human rights violation); theft of national and archaeological treasures (in time of peace).
And, finally, category (IV) includes the offences which are an object of attention in present-day international law concerning which international conventions are expected to be concluded.
The chapter ``Enforcement Part" considers, article by article, various questions of international cooperation, the application of the principle of aut dedere aut judicare, measures by States parties to the application of the code, problems of jurisdiction in connection with the enforcement of the code, regulation of extradition, juridical assistance and recognition of foreign penal judgements. This chapter defines the procedure for committing a defendant to a foreign State for the execution of a sentence, as well as the rights of the person involved in the trial in connection with the enforcement of the code and establishes legal costs and the procedure of its payment. The chapter entitled ``General Treaty Provisions" formulates, article by article, the procedure for setting disputes, making reservations, signing of, __PRINTERS_P_275_COMMENT__ 18* 275 or acceding to the Convention, ratification, entry into force, review of the provisions of the Convention, and notification of the States parties, indicates the official languages of the Convention, and defines the procedure for the transmittal of the copies of instruments of ratification of the Convention to the States parties.
Extensive exploratory work done by the drafter of the code deserves the highest appraisal. He has taken into account both the history and the present-day state of international criminal law, and the contractual practice of States in this area, and generalised the conventionary mechanism of over 100 treaties and agreements. Yet the establishment of an International Criminal Court and a system of international criminal jurisdiction is still an object of scientific investigation and discussion.
__*_*_*__The foregoing drafts putting terrorist acts under the jurisdiction of the International Criminal Court have objectively qualified the offences under consideration as crimes of an international character, since the States parties to the Conventions were either to prosecute the defendant in the manner prescribed by national law or commit him for trial to the International Criminal Court, which meant mixing up the principle of aut dedere aut judicare---the principle of conventionary cooperation---with the necessity of prosecution for the commission of offences by the International Criminal Court.
The mixed character of the jurisdiction of the International Criminal Courts the drafts of which have been reviewed above will become all the more obvious if compared 276 with the activities of the International Military Tribunal established to try and punish the major war criminals of the Axis Powers:~
1) Jurisdiction embracing the offences against peace, war crimes, and offences against humanity (Art. 6).
2) The Tribunal formed of representatives of the victor Powers which had defeated the fascist Axis Powers in World War II.
3) The Tribunal became an organ of international justice as a result of:~
(a) Having put to trial individuals who had committed grave international crimes comprising the following international elements: the crimes had been perpetrated as part and parcel of the policies of the Axis Powers; they were extremely dangerous for all humanity; the crimes were committed on the territory of one or several States; perpetration of crimes by foreign natural persons or persons having foreign accomplices; crimes were committed against the property of a foreign natural or juridical person or State.
(Beyond doubt, the key factor that prompted an international inquiry into the offences of the major Nazi war criminals was their extreme danger for all humanity and their inhuman essence);
(b) having carried out all the stages of the trial: from the full investigation to the execution of sentences;~
(c) the Statute of the Court having been subsequently acceded to by 19 States.
The Nuremberg principles were sanctified in the UN General Assembly Resolution 95(1) adopted by 54 nations on December 11, 1946.
From the standpoint of international law, it is clearly 277 possible to apply the mechanism of an International Criminal Court for the prosecution and punishment of international crimes^^1^^ (offences against peace, war crimes, offences against humanity, genocide and apartheid) by awarding the right to institute proceedings before the Court not only to States, but also to the Security Council as a major body responsible for the maintenance of international peace and security, by setting up, under its auspices, a Commission of Inquiry charged with the function of instituting proceedings before the Court on the basis of its Statute, following a Security Council decision founded upon a Commission report. As a result the body of prosecution of the Court provided for in the draft for the establishment of an International Criminal Court, whose statute had been drawn up at the conferences on international criminal law in 1971--72, will lose the right to institute proceedings before it; this right will pass on, wholly and entirely, to the States and a special body under the Security Council.
Terrorist acts which due to their corpa delicti fall within the category of international crimes may be tried by such an International Criminal Court as well. For example, the assassination of a representative of a racial group to produce a state of terror among the members of that group is bound to be qualified as an international crime under Art. II of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid and, consequently, may be tried by an International Criminal Court. It is necessary to note, however, that at present selective jurisdiction is applied to persons guilty of _-_-_
~^^1^^ I. Karpets, International Offences, Moscow, 1977, p. 67 (in Russian).
278 international crimes, as there is no International Criminal Court in existence, and the nations are anxious to secure inescapable punishment for international crimes. For instance, Art. V of the 1973 International Convention says that persons charged with having committed actions mentioned in Art. II of the given Convention may be brought before a competent court of any State party to the Convention, which may acquire jurisdiction over the defendants, or before the International Criminal Tribunal which may have jurisdiction over the contracting States which will have accepted its jurisdiction.In our view, the jurisdiction of the International Criminal Court over offences of an international character, including terrorist acts, may be resorted to whenever the mechanism of the relevant conventions has failed to work within a specified time-limit. In such a case, the International Criminal Court might act also as a conciliatory commission or a Court of Conciliation between nations with regard to the principle of inescapable punishment.
To sum up, the extent of cooperation taking place between the nations in the prevention and punishment of terrorist acts falling within the scope of international law has been ascending from the method of unification through the conventionary mechanism to the establishment of an International Criminal Court. From the standpoint of inescapable punishment, this cooperation takes place in the event of:~
a) unification---through the acceptance by national legislations of terrorist acts subject to unifications;~
b) the conventionary mechanism---through the unification of the corpus delicti of a terrorist act in national legislations, and qualification of such acts as criminal offences for the purposes of extradition, with prosecution to be 279 based on the principle of aut dedere aut judicare, which in this case means ``try or extradite to the other State'';
c) the establishment of an International Criminal Court ---through the application of the conventionary mechanism, where this principle means ``try the accused yourself, or extradite him for prosecution to the International Criminal Court''. The latter circumstance only provides an alternative procedure of prosecution within the framework of international criminal jurisdiction which, in this case, will be of an optional character.
The conventionary mechanism of cooperation is the optimal method of legal cooperation of States for purposes of prevention and punishment of international terrorist acts. This is due to the effect produced by the application of the basic principles of the conventionary mechanism to the prosecution and punishment for the offences which have this particular corpus delicti and are socially dangerous in this particular way.
[280] __ALPHA_LVL1__ CONCLUSIONIn 1977, the world witnessed yet another series of terrorist acts in West Germany when terrorists killed the Attorney General of the Federal Republic of Germany Siegfried Bubak, the President of the Board of the Bank of Dresden Jiirgen Ponto, and the West German industrialist Hanns-Martin Schleyer. Closely linked with those acts was the hijacking of a Lufthansa airliner with 91 passengers on board.
The flight commander radioed back to say that the air pirates, all Arabs, presented the same demands as had the Hausner Commando which had kidnapped Schleyer---- release of 11 convicted members of the underground anarchist group of terrorists, including Andreas Baader, their leader, and a ransom of 15 million dollars. The air pirates called themselves the Organisation of Struggle Against World Imperialism.
That incident re-emphasised the urgent need for action to suppress terrorism and, at the same time, showed the effect which international cooperation of States might have in such action.
The air pirates' leader, who called himself Walter Mohamed, demanded that the imprisoned terrorists be taken out of West Germany into one of three countries---Somalia, South Yemen, or the Socialist Republic of Vietnam, but the governments of those countries categorically refused 281 to accept them. The Soviet Union and the German Democratic Republic said they were willing, if need be, to represent the interest of West Germany before the Government of South Yemen.
At Larnaka Airport in Cyprus, where the plane landed, n spokesman for the Palestine Liberation Organisation (PLO) suggested that the terrorists let the hostages go. But Walter Mohamed replied with a spate of hysterical abuse through a microphone, which proved again that the PLO had nothing to do with terrorism, contrary to what West German reactionaries had been asserting in an attempt to discredit the PLO. Thereafter, the plane was allowed to take off, this time for Mogadiscio, Somalia, where it was stormed by a special anti-terrorist unit that had arrived from West Germany, with permission from the Somalian Government, and the terrorists were rendered harmless and the hostages set free.
It was against this backdrop that the Thirty-Second Session of the UN General Assembly once more directed its attention to the imperative necessity of action to suppress terrorism.
The resolution it adopted did not only condemn the acts of hijacking and other interference with the operation of civil aviation by threat or use of force or by any other acts of violence directed against passengers, crews, and aircraft, whether committed by individuals or States, but also urged all nations lo take both collective and individual measures in accordance with the purposes and principles of the UN Charter and the relevant declarations, conventions and resolutions of the UN and the ICAO and without prejudice to the sovereignty or territorial integrity of any State, to ensure that the passengers, crews, and aircraft 282 engaged in civil air transportation, are not used to obtain advantage of any kind.
A salient feature of the resolution is that in it, the UN member States ittached special importance to cooperation in the suppressk n of terrorist acts of an international character. It made a point of underscoring that measures directed against such terrorist acts should be carried out in accordance with the purposes and principles of the UN Charter and without prejudice to the sovereignty or territorial integrity of any State. In other words, it means cooperation of equal and sovereign nations equally interested in the suppression and prevention of acts of terrorism.
Setting out the Soviet line, the Soviet representative Yuri Fokin said the delegation of the USSR believed that control of air piracy could be tightened through bilateral international agreements on cooperation in preventing aircraft hijacking, which would stipulate that the Contracting Parties bind themselves to the extradition of the offenders.
He declared that terror as a method was alien to the ideology of the Soviet people, and that the Soviet Union wanted effective measures to be taken to prevent the acts of terrorism.
It is quite obvious that it takes consistent action by all nations to suppress terrorism. So the line the United States follows by co-sponsoring a resolution condemning air piracy, and, on the other hand, taking under its wing the criminals Brazinskas, who killed the stewardess Nadezhda Kurchenko, severely wounded two other members of the crew, and hijacked a Soviet airliner into Turkey, is a serious obstacle in the way of working out and implementing effective measures to control terrorism.
283There is enough evidence on hand to show that it is the United States and its officials that have been the organisers, accessories or executors of terrorist acts of an international character. As to the UN itself, this organisation has done and can yet do much towards working out a system of international acts promoting and ensuring the cooperation of States in the suppression of international terrorism.
There were more flare-ups of terrorism in various capitalist countries in 1980 and 1981, and everywhere right and ``left'' terrorism could be seen overlapping and, as a matter of fact, uniting against democracy and social progress. In Italy and Turkey, for instance, terrorism has become commonplace in their domestic political life.
With the wave of terrorist acts sweeping across the world, reactionary elements in Western countries are seeking to put the blame for it on the Communists, going as far as to accuse the communist movement of organising terrorism. The masterminds of this campaign are not deterred by the perfectly clear attitude of Marxism-Leninism to terrorism, nor by the consistent struggle of Communists for democracy and human rights and freedoms; they are trying to slander Communists so as to detach the working people in the capitalist countries from the Communists, and bar them from socialist ideas.
In an NBC interview on January 13, 1978, Henry Kissinger, the former US Secretary of State, blamed Communists for terrorist acts in West Germany, Italy, and other countries.
``Discoveries'' of this kind have also been made in Turkey by certain individuals whose irresponsible pronouncements have been echoed by official propaganda which is 284 trying to scare the public with a ``communist threat from the North''. Giving a picture of three carabinieri killed in 1980 by terrorists from the Red Brigades the Italian Panorama weekly commented that the blame for that lay with the Russians who, they claimed, did not want Italian communists in the government, and egged on the terrorists to help establish a military dictatorship in the Apennines. As one can see, the arguments may vary, but not the object ---to defame and slander the international communist movement.
The reactionary press of different countries is conducting a campaign of intimidation by telling its readership all kinds of stories about the wars and guerrilla actions which Marxist-Leninists are supposedly carrying on everywhere throughout the world, the implication being that there is a certain global conspiracy under way to ``impose'' Marxist-Leninist ideology ``by means of terror".
In an attempt to trade on the feeling of the people, and on the fact that acts of terrorism and violence are committed not only by rightist and pro-fascist groups, but also by leftists, reactionary elements are trying to channel the working people's indignation against the left forces in general and against the Communists, first and foremost. Lies, however, have never served as proof. Communists have all along proceeded from the assumption that violence occurs only where reaction and imperialism shore up a regime of oppression, exploitation and repression, for, as Engels wrote in his day, ``when there is no reactionary violence to fight against, there can be no question of any revolutionary violence either".^^1^^
_-_-_~^^1^^ ``F. Engels's letter to August Bebel, October 7, 1892'', Karl Marx, Friedrich Engels, Werke, Bd. 38, S. 489--90.
285Communist authors have a perfect reason to refer to the immortal writings of Lenin to vindicate this approach. Lenin wrote, in particular: ''. . .violence is, of course, alien to our ideals".^^1^^ Whenever there are ``volcanoes of revolutionary indignation amongst the working people, all speculation about artificial stimulation, agitation and disorganisation through shooting is infinitely ridiculous and absurdly ambitious".^^2^^ Lenin traced acts of terrorism to the absence of mass support, despair and lack of confidence.
O. Gioldi, one of the Communist leaders and a prominent public figure of Argentina, also wrote that ``ultraleftist terrorism is not a method of revolutionary struggle and, as the facts indicate, it does nothing but brings grist to the mill of right terrorism".
It is the neofascists who are to blame for the current spread of violence and terrorism. They are employed by monopoly capital to stem by terror the mounting class struggles, demoralise the working people and check the process of the abolition of colonialism. Another political force using terrorism is anarchist and anarchist-minded leftist groups which play into the hands of reaction and have, of course, nothing in common either with Communists or with the working-class movement in general. Even the capitalist press has admitted that the outrages of Italian and Portuguese terrorists posing as ``ultralefts'' have, in fact, been masterminded and financed by extreme right groups.
John Marks, a former associate of the US Center for _-_-_
~^^1^^ V. I. Lenin, ``A Caricature erf Marxism and Imperialist Economism'', Collected Works, Vol. 23, p. 69.
~^^2^^ V. I. Lenin, Complete Works, Vol. 7, p. 361 (in Russian).
286 National Security Studies, whote: ``For the last 35 years, the U.S. government has made regular use of terrorism as an instrument of foreign policy".^^1^^Such are the facts, and so whatever some capitalist ideologists or politicians may write or say, they will never succocd in discrediting the thoroughly humane position of the Communists who consistently oppose terrorism and just as consistently promote a policy of cooperation of nations in the fight against international terrorism in keeping with the generally recognised principles and standards of international law.
While fully realising that any sensible anti-terrorist policy has to go together with appropriate measures to resolve the acute economic and political problems that make people suffer, the USSR attaches great importance to the cooperation of nations in the struggle for the prevention of international terrorist acts, and suppression, prosecution, and punishment of persons guilty of having committed such acts, regarding this as cooperation in the interest of all peoples, which would serve to expose and isolate the aggressive and reactionary forces. Evidently, possible legal measures against terrorism must cover, above all, the areas still outside the framework of control through international law, and, under all circumstances, preclude the possibility of such interpretation of international terrorism as could be applied to the national liberation movements or resistance to the aggressor in occupied territories, or the activities of the working people against their exploiters.
_-_-_~^^1^^ The International Herald Tribune, June 30, 1977.
[287] __ALPHA_LVL0__ The End. [END]REQUEST TO READERS
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