Why The International Criminal Court Cannot Try Terrorists

Terrorism is one of the “international crimes” that have received so much attention from the international community. There exists a number of international conventions prohibiting terrorist activities and examples include the Tokyo Convention of 1963, the Hague Convention of 1970, the Convention for the Suppression of Terrorist Bombing of 1997, the Convention for the Suppression of the Financing of Terrorism of 1999, among others. In addition, many countries have national laws criminalising terrorism and examples are, the Patriot Act (US), the Anti-Terrorism Act (Canada), the Terrorism Act (UK), and the Prevention of Terrorism Act (Nigeria).

However, in spite of the volume of legislative attention given to the crime of terrorism both at the domestic and international levels, there is no international judicial organ to prosecute terrorists. The International Criminal Court (ICC) does not have jurisdiction to try any person alleged of committing terrorist act. So, the problem this poses is that, if a national government refuses to prosecute or extradite a terrorist, there is no international court that can assume jurisdiction.

The ICC, by its statute, is empowered to try only war crimes, crimes against humanity and crimes of genocide and it is to serve as a court of last resort, meaning that its jurisdiction is activated once a country is unwilling or unable to prosecute any person alleged of committing any of these international crimes within its territory.

Terrorism is not yet considered a core international crime. Persons accused of committing it cannot also be prosecuted by the ICC, even if their criminal acts are labelled as crimes against humanity. Terrorism is a crime that encompasses various acts and can only stand on its own as a separate category of crime. This was part of the arguments that culminated into its non-inclusion in the ICC Rome Statute prior to its adoption in 1998.

Also, no globally accepted definition of terrorism has been worked out to date. It is commonly said that “one man’s terrorist is another man’s freedom fighter”. Michael Lawless, in his article, “Terrorism - an International Crime?” writes, 

“A fundamental difference between these two distinct groups is their choice of target. For the terrorist, the indiscriminate targeting of the civilian population is preferred whereas, the revolutionary specifically targets the institutions and personnel of the state authority with whom they are in conflict and not the general civilian population.”

Benjamin Netanyahu, the Prime Minister of Israel, in his attempt to define terrorism said,

“What distinguishes terrorism is the wilful and calculated choice of innocents as target. When terrorists machine-gun a passenger waiting area or set off bombs in a crowded shopping centre, their victims are not accidents of war but the very objects of the terrorists’ assault.”

This is why it is practically impossible for the ICC to prosecute Nigerians alleged of sponsoring the Boko Haram terrorists. The leadership of APC, just few days ago, called on the Federal Government of Nigeria to refer Ali Modu Sheriff, the former Governor of Borno State and Gen. Iherijika, the former Chief of Army Staff to the ICC to be tried for sponsoring terrorists. Unless the Rome Statute of the ICC is amended or another international court created to try terrorism, no international court, as this piece is being written, can try terrorists or any persons connected with their activities. What is found worldwide now is that different countries prosecute terrorists through their local courts and under their national laws. Writing in like manner, David P. Stewart, in his article, “The Evolution of Criminal Law since 9/11” stated thus, 

“You may recall that I just said that the international criminal law system hasn’t really reacted (post 9/11) to the phenomenon of terrorism. It’s not a crime within the jurisdiction of the international tribunals, and no one is being prosecuted internationally for acts of terrorism...”

To this moment, the situation has not changed as no single case of terrorism has been entertained by
the ICC since it came into force on July 1st, 2002.

Kehinde Adegbite Esq wrote this piece some years ago and posted it on his defunct blog, www.gettipsforeveryday.blogspot.com