Terrorism as a new generation transnational crime: prosecuting terrorism at the International Criminal Court

Several remarkable similarities are distinguishable between acts of terrorism and the traditional International Criminal Court (ICC) core crimes such as war crimes and crimes against humanity. The actus reus in mainstream definitions of terrorism, for example, corresponds roughly with the actus reus of these core crimes. Therefore, one can very well make a case for the inclusion of the crime of terrorism in the jurisdiction of the ICC, even though the ICC would be structurally hampered to prosecute non-state actors if these operate outside the context of an armed conflict. Until now, however, terrorism is excluded from the Rome Statute, mainly because the states concerned with the drafting were not able to agree on a comprehensive, neat definition of this concept; most notably they dissented on whether a. state terrorism could possibly exist as well and whether some acts of terrorism could also be rephrased as being legitimate acts of resistance by so-called freedom fighters. Terrorism was and thus remains a diffuse concept, but it is nevertheless one of the more serious contemporary challenges currently facing the international community of states. Additionally, current law enforcement attempts to adequately fight this threat remain fragmented and lacking. However, in essence, to a certain extent terrorism can indeed be considered as an international rather than a mere transnational crime, subsequently blurring the distinction between those two categories. A burgeoning consensus is emerging that with regard to transnational crimes, one should just leave it to the state, except in the case of terrorism. A series of proposals towards international prosecution have been suggested, of which adding terrorism as such to the jurisdiction of the ICC is the most prominent. In this chapter, some of the more interesting contentious issues regarding the definition of terrorism are unfolded and shortly it is addressed whether this new approach, regarding terrorism as an international crime, should indeed entail a transfer of criminal law enforcement from national and regional to international jurisdictions. Correspondingly the author briefly examines whether the crime of terrorism would fit into the Rome Statute.