WAR CRIMES AND CRIMES AGAINST HUMANITY: AN ALTERNATIVEORGANISING PRINCIPLE?1

STEPHEN KEIM

CONTENTS

I: INTRODUCTION..............................................1II: “TERRORISM” IN THE CRIMINAL LAW: AN EXAMPLE..............3III: THE ALTERNATIVE CONCEPTS IN THE CRIMINAL LAW............7IV: PROPAGANDA AND TERRORISM................................10V: USING INTERNATIONAL HUMANITARIAN LAW AS A BASIS TO PROSECUTE TERRORIST ACTS....................................12VI: USING CRIMES AGAINST HUMANITY AS A BASIS TO PROSECUTE TERRORIST ACTS..............................................16VII: LESSONS LEARNED........................................18

I: INTRODUCTION

I have never been keen on the concept of terrorism as aseminal organising concept for the criminal law.

The discussion of terrorism in the mouths of national leadershas always appeared to me as a more or less subtle way ofdenigrating their political opponents.2 At the same time,counter-terrorism has represented a useful means ofsanctifying political violence by the state.

1 An early draft of this paper was presented to the Queensland Chapter of the Australian Institute of International Affairs in Brisbane on Tuesday, 18 March 2014. I am particularly grateful to law and journalism student, Tom Serafin, for his research and drafting assistance in respect of this paper.2 President Rajapaksa of Sri Lanka is always a good example, see eg <http://zeenews.india.com/news/nation/sri-lanka-india-united-against-terrorism-mahinda-rajapaksa_935128.html>.

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This vague impression was brought home to me by a chance pieceof SBS news footage of some Central Asian dictator in anexpensive suit, as part of his own re-election efforts,lauding his own stern actions in opposing the terrorists inhis country in the lead up to the forthcoming election. “Theyall sound alike”, was the thought that went through my head.

The propaganda value of calling the actions of others“terrorism” has spiked since the attack on the Twin Towers inNew York on 11 September 2001.

Hans-Peter Gasser has identified that, in the wake of the 11September events, a number of States, in the name ofpreventing terrorism, have taken steps which include tighterpolice surveillance, especially, of foreign residents;adopting harsher interrogation procedures; cutting back on theright to a fair trial where terrorist acts are alleged; and byengaging in the refoulement of asylum seekers and refugees.Many of these actions are in breach of international humanrights and humanitarian law.3

Most activities correctly categorised as terrorism deserve tobe treated as criminal offences. The political motivationaccompanying such offences makes them no less worthy of moralcondemnation and punishment in accord with and by applicationof the criminal law.

The widespread misuse of the concept of terrorism as apolitical tool by governments, worldwide, makes it anunsatisfactory concept around which to organise concepts ofthe criminal law. It is particularly unsuited to a coordinatedand worldwide law enforcement campaign, which has extended toinvasion of sovereign countries; removal and execution ofheads of state; organised use of torture and widespreadkilling of civilians.4

By its nature, terrorism is a crime that can be committed byany political actor. It is as capable of being committed by

3 Hans-Peter Gasser, ‘Acts of terror, “terrorism” and international humanitarian law’, (2002) 84 (International Review of the Red Cross 547, 566 <http://www.icrc.org/eng/resources/documents/misc/5flccx.htm>. 4 I refer here, particularly, to the invasions of Iraq and Afghanistan.

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government leaders and state armed forces as by insurgencygroups and sole actors. It is as likely to be committed by theinsurgency groups that our governments arm and support, as inLibya and Syria, as it is both the insurgency groups which weruthlessly oppose, as in Iraq.

However, the long use of the concept as a propaganda tool bygovernments has meant that the chances of state terrorismbeing identified and prosecuted as criminal activity are lowand the prospect seems counter-intuitive. The concept is alsoill-suited to distinguishing between legitimate use of forceby government backed armed forces and that which isillegitimate and, possibly, illegal, by whomever it is carriedout.

Gasser cites Adam Roberts for the observation that militaryoperations putatively directed against terrorists frequentlyengage in operations including mistreatment and torture ofprisoners in breach of domestic law; human rights obligations;and international humanitarian law.5 The fact that theoperations are against terrorism seems to make it moredifficult to have the usual norms applicable to militaryoperations respected.

This paper urges using other well-known concepts as theorganising principle for prosecution of politically motivatedviolence. The concepts of war crimes, developed as a key partof international humanitarian law (“IHL”), and of crimesagainst humanity, developed in the aftermath of the two WorldWars, are better adapted to addressing the nature of theconduct in question whether committed by state or non-stateactors. They are better suited to achieving an objectiveanalysis of the conduct in question without being influencedby whether the conduct in question was committed by ourfriends or enemies.

5 Adam Roberts, ‘Counter-terrorism, armed force and the laws of war’, (2002) 44(1) Survival 13, cited in Hans-Peter Gasser, ‘Acts of terror, “terrorism” and international humanitarian law’, (2002) 84 International Review of the Red Cross 547, 566 <http://www.icrc.org/eng/resources/documents/misc/5flccx.htm>.

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They are less susceptible to the propaganda use that has beenthe plight of terrorism. They also have the advantage ofhaving been developed in the context of state directed action,such that their application to actions by the state as well asby persons opposed to the State is more obvious and less easyto avoid. The idea of reciprocal restraints seems to bereflected in their operation.

This article looks first at an example of the use of theconcept of terrorism in the criminal to prosecute terroristactivity. Then it looks briefly at examples of domesticcriminal law using the alternative concepts of war crimes andcrimes against humanity. Third, it looks at a specific exampleof the way that anti-terrorism has become institutionalised aspart of western military strategy and the way in which thisbears out the truism that truth is the first casualty of war.6

The next two sections look, respectively, at the prospects ofprosecuting conduct normally understood as amounting toterrorist acts as either war crimes or crimes againsthumanity. And the final section looks at lessons learned fromthis discussion.7

II: “TERRORISM” IN THE CRIMINAL LAW: AN EXAMPLE

The Provisions

Gasser seeks to set out a number of elements that capture thebroad sense of what is meant by the term “terrorism”. Helists:

6 The credit for the phrase seems to be shared by Senator Hiram Johnson of California in 1918 and Samuel Johnson (whose 1758 quote is more prolix): see The Guardian, Who coined the phrase, “The first casualty of War is Truth”? <http://www.theguardian.com/notesandqueries/query/0,5753,-21510,00.html >. 7 The phrase seems apt since its use in naming an inquiry whose principal purpose seems to have been to deflect any prospect of accountability for state war crimes (and state terrorism) in Sri Lanka, see: Crisis Group, ‘Statement on the Report of Sri Lanka’s Lessons Learnt and Reconciliation Commission’ (Media Release, 22 December 2011) <http://www.crisisgroup.org/en/publication-type/media-releases/2011/asia/statement-on-the-report-of-sri-lanka-s-lessons-learnt-and-reconciliation-commission.aspx >.

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Terrorism is violence or the threat of violence againstordinary citizens including physical violence againstpersons or property;

Terrorism is a means to attain a political goal notregarded as attainable under lawful constitutional means;

Terrorist acts are usually part of a strategy carried outby organised groups over a period of time;

Terrorist acts are often perpetrated against civilianswho have no means of influencing the changes which arebeing sought;

The purpose of such acts is to cause fear in thepopulation; and

Terrorism is intended to humiliate fellow human beings.8

An example of the manner in which the concept of terrorism isgiven practical legal effect in a domestic legal system can befound in the definition of “terrorist act” as it appears inthe Criminal Code Act 1995 (Cth) (“the Criminal Code”). Thedefinition is used as the basis of a series of offencesincluding that of actually engaging in a terrorist act.

Section 100(1) of the Criminal Code 1995 (Cth)9 (“the Code”)defines “terrorist act” in the following terms:10

“(1) terrorist act means an action or threat of actionwhere:

(a) the action falls within subsection (2) anddoes not fall within subsection (3); and

(b) the action is done or the threat is madewith the intention of advancing apolitical, religious or ideological cause;and

(c) the action is done or the threat is madewith the intention of:

8 Hans-Peter Gasser, ‘Acts of terror, “terrorism” and international humanitarian law’, (2002) 84 International Review of the Red Cross 547, 553 <http://www.icrc.org/eng/resources/documents/misc/5flccx.htm>.9 Schedule to Criminal Code Act 1995 (Cth).10 The Criminal Code Act 1995 (Cth) is available at Australasian Legal Information Institute, Criminal Code Act 1995 (Cth), AustLII <http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html>.

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(i) coercing, or influencing by intimidation,the government of the Commonwealth or aState, Territory or foreign country, orof part of a State, Territory or foreigncountry; or

(ii) intimidating the public or a sectionof the public.

(2) Action falls within this subsection if it:

(a) causes serious harm that is physical harmto a person; or

(b) causes serious damage to property; or(c) causes a person’s death; or(d) endangers a person’s life other than the

person taking the action; or(e) creates a serious risk to the health or

safety of the public or a section of thepublic; or

(f) seriously interferes with, seriouslydisrupts or destroys, an electronic systemincluding but not limited to:(i) an information system; or(ii) a telecommunications system; or(iii) a financial system; or(iv) a system used for the delivery of

essential government services; or(v) a system used for, or by, an

essential public utility; or(vi) a system used for, or by, a transport

system.

(3) Action falls within this section if it:

(a) is advocacy, protest, dissent or industrialaction; and

(b) is not intended:(i) to cause serious harm to a person; or(ii) to cause a person’s death; or(iii) to endanger the life of a person,

other than the person taking theaction; or

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(iv) to create a serious risk to thehealth or safety of the public or asection of the public.” (Emphasisadded.)

Examples abound of offences created using the definition of a“terrorist act”. Section 101(1) of the Code uses thedefinition to create the offence of engaging in a terroristact. Section 101(2) creates an offence of providing orreceiving training connected with terrorist acts. Section101(4) creates the offence of possessing a thing associatedwith a terrorist act. Section 102(2) creates the offence ofdirecting the affairs of a terrorist organisation. Section102(3) creates the offence of being a member of a terroristorganisation.

The political nature of the definition of terrorist act can beeasily observed. The intention of advancing a political,religious or ideological cause is an important element of thedefinition.11 In one sense, it can be argued that the elementis of advantage to a person accused of a terrorism offence inthat an additional mental element must be proved by theprosecution for an offence to be made out. However, theelement also ensures that many prejudicial aspects of aperson’s intellectual history may be placed before the courtwhich might not otherwise be admissible.

One may also observe that the alternative elements of violenceto people or destruction of property or even the somewhatremoved alternative of bringing down communication networksare each likely to be serious criminal offences carrying heavycriminal penalties in their own right in the criminal law ofmost legal systems of the world.

While this suggests that it is not strictly necessary tocreate terrorist offences, the political and forensicobjectives of doing so are not difficult to divine. “Terroristact” may be used to create a series of derivative offencesthat may not be politically possible for a non-politicaloffence such as murder.12 The offences associated with the

11 Criminal Code Act 1995 (Cth) s 100(1)(b).

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concept of “terrorist organisation”,13 because they involve nonecessary act of wrong doing on the part of the individualcharged, would be more difficult to create if the cachet ofcounter-terrorism could not be enlisted by the law maker. Inthe same way, increased powers for law enforcement bodies canbe justified as required to prevent terrorist offences in away that might not be accepted even for other offences ofserious violence.14

Most importantly for the purposes of this paper is thedenunciatory effect of a terrorism offence. Non-politicaloffences of violence may, in some respects, be more violentand gruesome than some terrorist associated crimes. A seriesof murders by a sociopath with no political intent mayterrorise a community much more than donating a small amountof money, recklessly, to a resistance organisation in OccupiedPalestine which, unbeknownst to the reckless donor, carriesout military attacks as well as nursing the injured.15

Nonetheless, the use of violence to achieve politicalobjectives by coercing governments or intimidating the publicserved by that government is considered to be a unique form ofwickedness and to be deserving of the special condemnationthat goes with the idea of being a terrorist.

The problem with political violence is that its use is notrestricted to insurgents and those who are without political12 For example, s 101(4) of the Code: Possession of a thing connected with terrorist acts or s. 101.5 of the Code: Collecting or making documents likely to facilitate terrorist acts13 They include s 101(3) of the Code: membership of a terrorist organisation; s 101(4) of the Code: training for or receiving training froma terrorist organisation; s 101(2)(7) of the Code: or providing support to a terrorist organisation.14 The miscarriage of such powers can be observed in the long term detentionwithout charge of wholly innocent terrorist suspect, Dr Mohamed Haneef as documented in the report of the Honourable John Clark, see John Clarke, Clarke Inquiry into the case of Dr Mohamed Haneef (16 May 2008) Law Council of Australia <http://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CCcQFjAB&url=http%3A%2F%2Fwww.lawcouncil.asn.au%2Flawcouncil%2Fimages%2FLCA-PDF%2Fa-z-docs%2FLawCouncilSubmissiontoHaneefInquiry-Final.pdf&ei=Nae0U_26IYrCkwWNhoE4&usg=AFQjCNF1NKxr9QTeffrHxKbp8J79XMvIgg&sig2=VASx1Dg6sDRRlZARis5WVQ&bvm=bv.70138588,d.dGI >. 15 Criminal Code Act 1995 (Cth) s 102(6)(2).

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power but would seek to seize it. Another problem is that itis used by those whose causes we generally think of as just aswell as by those whose causes we abhor.

All Political Violence is Captured

The provisions in the Criminal Code are intended to haveextra-territorial effect. Section 100(4) provides that part5(3) of the Code applies to all actions or threats of actionsno matter where the action occurs or where the threat is madeor the threatened action would occur if the threat werecarried out.

The definition captures politically motivated violenceanywhere in the world. There is no excusatory clause forofficially sanctioned acts of violence.

Almost any hostile military act is intended to cause death orserious property damage.16 Such actions are pursued to achievethe political or ideological objective, which underpins thewar or military campaign of which it forms part.17 Whether agovernment, including a foreign government, is intended to beintimidated may depend on whether the military action is thatof an insurgency or counter-insurgency group where the war isnot an international war in the sense of being between statesled by governments.18

Any military act, however, has, at some level, the intentionof intimidating some part of some public.19 This is as true ofcounter-insurgency actions as it is of insurgencies.

The definition of “terrorist act”, as a result, extends wellbeyond domestic terrorism and well beyond might be accepted,popularly, as terrorist activity. To avoid its wide sweeprunning into political and practical difficulty, theenforcement of the law is subject to unspoken ideologicallimits.

16 Criminal Code Act 1995 (Cth) ss 100(2)(a)-(c). 17 Criminal Code Act 1995 (Cth) s 100(1)(b).18 Criminal Code Act 1995 (Cth) s 100(1)(c)(i).19 Criminal Code Act 1995 (Cth) s 100(1)(c)(ii).

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State actors of whom we approve, such as members of the armedforces of the United States, a country with whom we areallied, with its destructive invasions of Iraq or Afghanistan,are not considered subject to the sweeping extra-territorialeffects of the law. Insurgency forces of whom we disapprove,such as the erstwhile LTTE in Sri Lanka, are consideredsubject to the law. Support in Australia for such militarygroups would be considered clearly a breach of one of thederivative offences in part 5.3 of the Code. Insurgency groupsin Libya20 and some insurgency groups in Syria21 highlight thefraughtness of the distinctions since our allies, if not us,provide material aid to such insurgency groups which may wellplace them in breach of the terrorism provisions of the Code.

Such ideological screening of the law comes easy for thosefamiliar with the dominant ideological framework. Applying themodern laws to notional situations from the past becomestrickier. Were Nelson Mandela,22 the founders of Israel23 andthe founders of the Republic of Ireland24 all just common

20 See Mark Hosenball, ‘Exclusive: Obama authorizes secret help for Libya rebels’, Reuters (online), 30 March 2011 <http://www.reuters.com/article/2011/03/30/us-libya-usa-order-idUSTRE72T6H220110330 >.21 See Christopher Brauchli, ‘Stung by Stingers’, Huffington Post (online), 20 August 2013 <http://www.huffingtonpost.com/christopher-brauchli/stung-by-stingers_b_3474568.html>; Matt Spetalnick, ‘U.S. Syrian Rebel Aid: Non-Lethal Military Assistance Could Be Part of New $100 Million Package’, Reuters (online), 19 April 2013 <http://www.huffingtonpost.com/2013/04/19/us-syrian-rebel-aid-non-lethal-military_n_3118261.html>; Albert Aji and Zeina Karam, ‘U.S. To Send Aid to Syria Regels: Syria, Iran Accuse Washington of ‘Double Standards’’, Huffington Post (online), 2 March 2013 <http://www.huffingtonpost.com/2013/03/02/us-to-send-aid-to-syria-rebels-iran_n_2796230.html>.22 For dissenting opinions, see Erin Conway-Smith, ‘Leader, savior, terrorist: How white South Africans remember Nelson Mandela’, NBC News (online), 10 December 2013 <http://www.nbcnews.com/news/other/leader-savior-terrorist-how-white-south-africans-remember-nelson-mandela-f2D11721099 >.23 For an academic consideration of this question, see Charles Laffiteau, Jewish Terrorism and the Creation of the State of Israel, Academia.edu <https://www.academia.edu/1449704/Jewish_Terrorism_and_the_Creation_of_the_State_of_Israel>.24 Discussed in Max Boot, ‘ ‘Kick the Bully’: Michael Collins Launches the 1921 Irish Rebellion’, The Quarterly Journal of Military History (online), 2 November 2012 <http://www.historynet.com/kick-the-bully-michael-collins-launches-

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criminals and were they all equally worthy of moralcondemnation?

Turning to the present, President Assad of Syria might becondemned by many as a terrorist notwithstanding his status asa head of state. His opponents were worthy insurgents for theearly part of the civil war and were armed by various westerncountries. The situation became more complex when many ofthese insurgents turned out to be the politically untouchableAl Qaeda25 who also seem to be in the act of bringing down thegovernment of Iraq.26

Are our own soldiers guilty of terrorism, every time we askthem to fire shots in anger?27

III: THE ALTERNATIVE CONCEPTS IN THE CRIMINAL LAW

Instead of terrorism, the criminal law should emphasise thethree crimes that form the basis of the jurisdiction of theInternational Criminal Court28 pursuant to the Rome Statute29:the crime of genocide; crimes against humanity; and warcrimes. The two most likely to be applicable to most actionsconsidered to amount to terrorism are war crimes and crimesagainst humanity. This paper will concentrate on those twoconcepts. As events in Europe in recent decades highlight,

the-1921-irish-rebellion.htm>.25 See Tim Arango, Anne Barnard and Hwaida Saad, ‘Syrian Rebels Tied to Al Qaeda Play Key Role in War’, The New York Times (online), 8 December 2012 <http://www.nytimes.com/2012/12/09/world/middleeast/syrian-rebels-tied-to-al-qaeda-play-key-role-in-war.html?pagewanted=all>. 26 A careful analysis of the group is at Zachary Laub and Jonathan Masters, Islamic State in Iraq and Syria (8 August 2014) Council on Foreign Relations <http://www.cfr.org/iraq/islamic-state-iraq-greater-syria/p14811>. 27 These problems get an airing in Independent National Security LegislationMonitor, Parliament of Australia, Independent National Security Legislation Monitor Annual Report (2012) 101-3.28 The ICC’s web site is located at <http://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx>.29 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002). The text is available at <www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf>.

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however, state backed terrorist activity often has a genocidalelement at its core.30

Each of these concepts is sufficiently serious and narrowlyfocussed that it would justify the creation of ancillarycrimes and additional powers without polluting the whole ofthe criminal law with infringements of traditional rights.

The concepts are known to our jurisprudence. The War Crimes Act1945 (Cth) 31 (“the War Crimes Act”) makes one form of war crimea crime against Australian law. The Act defines “seriousoffence” starting with murder, manslaughter and rape;32 defines“war”;33 and then defines “war crime”34 using the two earlierterms. However, the Act only constitutes “war crimes” to beindictable offences if they occurred 1 September 1939 and 8May 1945.35

In 2000, Canada passed the Crimes Against Humanity and War Crimes Act36passing into its domestic law the concepts enshrined in theRome Statute.

In 2002, the Commonwealth Parliament passed two pieces oflegislation to facilitate Australia’s obligations pursuant tothe Rome Statute,37 namely, the International Criminal Court Act 2002(Cth)38 and the International Criminal Court (Consequential Amendments) Act

30 This concept is developed at length by Amir Ali ‘Terrorism and Genocide: Making Sense of Senselessness’ (2004) 39(6) Economic and Political Weekly 521 <http://www.jstor.org/discover/10.2307/4414598?uid=3737536&uid=2129&uid=2&uid=70&uid=4&sid=21104410173543>.31 The text of which is available at the War Crimes Act 1945 (20 February 2010)ComLaw <http://www.comlaw.gov.au/Details/C2010C00110/Html/Text#_Toc254877154 >.32 War Crimes Act 1945 (Cth) s 6.33 War Crimes Act 1945 (Cth) s 5.34 War Crimes Act 1945 (Cth) s 7.35 War Crimes Act 1945 (Cth) s 9.36 Crimes Against Humanity and War Crimes Act, SC 2000. The Wikipedia entry for the legislation is at Wikipedia, Crimes Against Humanity and War Crimes Act <http://en.wikipedia.org/wiki/Crimes_Against_Humanity_and_War_Crimes_Act>.37 The phrase is taken from the International Criminal Court Act 2002 (Cth) s 3(1). 38 Available at Australasian Legal Information Institute, Interational Criminal Court Act 2002 AustLII <http://www.austlii.edu.au/au/legis/cth/consol_act/icca2002303/index.html#s3>.

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2002 (Cth).39 Schedule 1 of the latter Act40 amended the Code toinsert provisions created various offences of different formsof genocide, war crimes and crimes against humanity.

Chapter 8 of the Code is entitled “Crimes Against Humanity andOther Offences”.Division 268 of the Code is entitled “Genocide, crimes againsthumanity, war crimes, and crimes against the administration ofthe justice of the International Criminal Court”.

Section 268 (1) of the Code identifies the purpose of thedivision as the creation of certain offences of internationalconcern. It is expressly stated that Parliament’s intention isthat the jurisdiction of the International Criminal Court iscomplementary to Australia’s domestic jurisdiction concerningoffences created by the Division, which are also crimes withinthe jurisdiction of that Court.

The Code then goes on to create a series of offences ofgenocide. They include “genocide by killing”;41 genocide byserious bodily or mental harm, which is defined to includeacts amounting to torture, rape, sexual violence or inhuman ordegrading treatment;42 and genocide by forcibly transferringchildren.43

Subdivision C of Division 268 of the Code creates a series ofcrimes that are said to be crimes against humanity.

The first such offence is called “crime against humanity –murder”.44 The offence consists of the offence of causing thedeath of another person45 where that conduct is carried out

39 Available at Australasian Legal Information Institute, Interational Criminal Court Act 2002 AustLII <http://www.austlii.edu.au/au/legis/cth/consol_act/iccaa2002543/>.40 Available at Australasian Legal Information Institute, Interational Criminal Court Act 2002 AustLII <http://www.austlii.edu.au/au/legis/cth/consol_act/iccaa2002543/sch1.html>.41 Criminal Code Act 1995 (Cth) s 268(3).42 Ibid s 268(4).43 Ibid s 268(7).44 Ibid s 268(8).45 Ibid s 268(8)(a).

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intentionally or knowingly as part of a widespread orsystematic attack against a civilian population.46

The crime of against humanity extermination47 occurs where theoffender causes the death of one or more persons;48 the conductoccurs as part of a mass killing of members of a civilianpopulation;49 and, the element common to all the crimes againsthumanity offences, the conduct is carried out intentionally orknowingly as part of a widespread or systematic attack againsta civilian population.50

Other crimes against humanity under the Code includeenslavement;51 deportation or forcible transfer of population;52

torture;53 rape;54 sexual slavery;55 enforced pregnancy;56

enforced sterilisation;57 persecution;58 enforceddisappearance;59 and apartheid.60

Subdivision D of Division 268 of the Code creates a number ofwar crimes offences. The first war crime offence is War crime– wilful killing.61 This offence is committed if the offendercauses the death of one or more persons;62 the victims areprotected persons under one or more of the Geneva Conventionsor Protocol I to the Geneva Conventions;63 the offender knowsor is reckless concerning the facts that establish that the

46 Ibid s 268(8)(b).47 Ibid s 268(9).48 Ibid s 268(9)(a).49 Ibid s 268(9)(b). 50 Ibid s 268(9)(c).51 Ibid s 268(10).52 Ibid s 268(11).53 Ibid s 268(13).54 Ibid s 268(14).55 Ibid s 268(15).56 Ibid s 268(17).57 Ibid s 268(18).58 Ibid s 268(20).59 Ibid s 268(21).60 Ibid s 268(22).61 Ibid s 268(24).62 Ibid s 268(24)(a).63 Ibid s 268(24)(b).

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victims are protected;64 the conduct occurs in the context ofor is associated with an international armed conflict.65

Protected persons are persons outside the combat thatconstitutes the armed conflict. They include the wounded, sickand shipwrecked;66 prisoners of war;67 civilians;68 and anextended set of protected categories including civilianmedical units.69

The term “international armed conflict” limits the applicationof the existing law (as contained in the Code) to a largenumber of war crimes. A large number of war crimes (and alarge amount of terrorist activity that might fall within theconcept of war crimes) occur in the course of domestic armedconflict, that is, conflict that falls below the level ofinternational armed conflict.

This limitation is unnecessary because, as is discussed below,Common Article 3 to the Geneva Conventions 194970 provide forthe war crime prohibition to apply to armed conflicts whichare not of an international character.

IV: PROPAGANDA AND TERRORISM

64 Ibid s 268(24)(c).65 Ibid s 268(24)(d).66 Geneva Convention (I) 1949, article 13, at <http://www.icrc.org/applic/ihl/ihl.nsf/ART/365-570017?OpenDocument> (accessed 20 June 2014); and Geneva Convention (II) 1948, article 13, at <http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=6F743996A6E529C2C12563CD0051A5E6>.67 Geneva Convention (III) 1949,article 4, at <http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=2F681B08868538C2C12563CD0051AA8D>.68 Geneva Convention (IV) 1949, article 4, at <http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=78EB50EAD6EE7AA1C12563CD0051B9D4>.69 First Protocol to the Geneva Conventions (1977), articles 8-34, at <http://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=D9E6B6264D7723C3C12563CD002D6CE4&action=openDocument>.70 Article 3 to the First Geneva Convention is at <http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=BAA341028EBFF1E8C12563CD00519E66>.

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Most governments use terrorism and the need to preventterrorism as a means of obtaining political advantage both athome and abroad.71 The war against terrorism has involved theunprecedented action of countries repeatedly engaging theirarmed forces on the territory of foreign states to combat andkill those whom they describe as terrorists leading tointernational conflicts.72 The example used in this paper isthe conduct of the allies, the United States and the UnitedKingdom, since the attack on targets in New York andWashington on 11 September 2001.

David Miller73 and Rizwan Sabir74 identify in their analysis75 aconsiderable number of institutions directed to propagatingpropaganda. These include a series of Coalition InformationCentres used during the conflicts in Kosovo and Afghanistan,subsequently, consolidated into the Office of GlobalCommunications (“the OGC”) in July 2002.76 The OGC operatedunder the direction of the White House and was responsible forsupplying lies about the threat posed by the Saddam Regime inIraq.77 There were specific institutions for distributingpropaganda produced by the OGC including the Office of PublicDiplomacy in the US State Department and the Ministry ofDefence and the Foreign and Commonwealth Office in the UK.78

71 The military regime in Egypt are conspicuous for their use of the concept, see, eg: ‘Egypt: Sisi- I Pledge to You I Will Retaliate for Martyrs of Black Terrorism’, allAfrica (online), 1 July 2014 <http://allafrica.com/stories/201407011394.html>.72 Hans-Peter Gasser, ‘Acts of terror, “terrorism” and international humanitarian law’, (2002) 84 (International Review of the Red Cross 547, 549. <http://www.icrc.org/eng/resources/documents/misc/5flccx.htm>.73 See David Miller, David Miller, Academia.edu <https://bath.academia.edu/DavidMiller>.74 Some background as to Mr. Sabir’s recent experience can be gained from the article at Sam Jones, ‘Student in al-Qaeda raid paid £20,000 by police’, The Guardian (online), 15 September 2011 <http://www.theguardian.com/uk/2011/sep/14/police-pay-student-damages-al-qaida>.75 Des Freedman and Daya Kishan Thussu, ‘Propaganda and Terrorism’ in David Miller and Rizwaan Sabir, (eds), Media & Terrorism Global Perspectives (Sage Publications, 2012) ch 4.76 Ibid 80.77 Ibid. 78 Ibid 80-1.

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In the UK, a cross departmental committee known as the IraqCommunication Group was located in Downing Street and wasresponsible for running a campaign to mislead the media onIraq’s alleged possession of weapons of mass destructionincluding dossiers of mis-information.79

Another UK propaganda institution was the Civil ContingenciesSecretariat (“the CGS”) established in 2001. The CGS issuedinformation to media outlets about an alleged Ricin Plot.Subsequent research indicated that there was no Ricin involvedand, very probably, no plot.80

The authors identify the doctrinal approach tocounterinsurgency propaganda by quoting the theory articulatedby those responsible for the propaganda operations. This goeswell beyond explaining events to being an integrated aspect ofan interventionist strategy that includes the coercive effectsof physical force. Propaganda or strategic communication, asit is sometimes euphemistically called, includes the use ofhard power and is directed at internal audiences as well as anexternally identified enemy. This goes well beyond persuasivecommunication. It is, say the authors, “a highly coercivestrategy intended to manage the behaviour of the Britishpublic”.81

In addressing modern use of propaganda, the authors use theterm, weaponisation of information. By way of example, thescandalous photographs taken of prisoners in compromisingpositions at the Abu Ghraib prison in Baghdad82 were not trophypics but, rather, a method of coercing the humiliated subjectsof the photographs to spy on and betray their associates inorder to avoid dissemination of the photographs to theirfamily and friends.83

79 Ibid 81.80 Ibid. 81 Ibid 83-4.82 See The Guardian, Torture Scandal: The images that shamed America (2004) The Guardian <http://www.theguardian.com/gall/0,8542,1211872,00.html>. 83 Miller and Sabir, above n 75, 85-86, citing Seymour Hersh, ‘The Gray Zone: How a secret Pentagon program came to Abu Ghraib’, New Yorker (online), 24 May 2004 <http://www.newyorker.com/archive/2004/05/24/040524fa_fact >.

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The effect of anti-terrorist propaganda in the UK isillustrated by the difference between the focus of anti-terrorist policy and reality. Official sources proclaim asevere national security threat from Islamist or Jihadiviolence. The authors reveal, however, that data obtainedunder freedom of information legislation indicate that themajor threat of political violence in the United Kingdom isfrom armed groups in Northern Ireland. Over a four year periodto 2009, the Northern Island groups were responsible fornearly 2,000 failed, foiled or successful attacks whileIslamist groups produce only six such attacks.84

Government sources, at different times which are as little asa month apart give highly inconsistent accounts of the numberof Islamist plots. Government sources have given suchestimates that vary as much as from 20 to 70 or from 30 to80.85

The reliability of such statements can be assessed byreference to Operation Volga, an actual operation against aspecific alleged plot in which a house was raided and twobrothers of Muslim heritage were arrested, one of whom wasshot by police. High profile allegations of a dangerouschemical bomb were made with suggestions that large scale lossof life was potentially imminent.86

The police denied responsibility for the shooting and madeallegations that the shooting occurred when the victim triedto take the gun from an officer. Much later, the truth wasrevealed that the shot had been fired in error because of theofficer’s bulky clothes.87

84 Miller and Sabir, above n 83, 87-8.85 Ibid 88.86 Ibid 89. The Elite Forces web site carries a report of the incident at Elite UK Forces, CO19 (SO19)- Operations <http://www.eliteukforces.info/police/CO19/operations/>.87 Miller and Sabir, above n 83, page 89. A Guardian report of the Independent Police Complaints Commission findings is at ‘Forest Gate shooting ruled accidental’, The Guardian (online), 4 August 2006 <http://www.theguardian.com/world/2006/aug/03/terrorism.uk>.

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No bomb was found and the two brothers were released withoutcharge.88

Miller and Sabir conclude that government anti-terroristpropaganda has moved well beyond a matter of communication toa systematic propaganda management of society. There is nofixed barrier, say the authors, between propaganda andterrorism.89

V: USING INTERNATIONAL HUMANITARIAN LAW AS A BASIS TOPROSECUTE TERRORIST ACTS

For terrorist actions to be prosecuted as war crimes, it mustbe clear that the types of acts normally thought of as aterrorist act fall within the definition of a war crime. Warcrimes have been traditionally defined under the GenevaConventions.90 This form of definition has been used toestablish the war crime jurisdiction of the InternationalCriminal Court in the Rome Statute.91

Since war crimes are thought of arising in war, the conceptdoes have the advantage of being a measure that applies togovernments and the armed forces of states. It is less easilymanipulated for propaganda purposes as a concept that onlyapplies to opponents of the party in power whoever that mightbe. State terrorism is very likely to be a war crime and thelong established criteria of the Geneva Conventions providestandards by which one can tell the difference between thelegitimate violence of war and conduct, which goes beyondthose accepted norms and is and should be illegal.

88 Miller and Sabir, above n 83, 89.89 Miller and Sabir, above n 83, page 90.90 The text of the 1949 Conventions and the Protocols are accessible from the International Committee of the Red Cross, The Geneva Conventions of 1949 and their Additional Protocols <http://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/>.91 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002). The text is available at <www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf>.

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International humanitarian law is not so obviously directedagainst the actions of domestic terrorists who may not beengaged in an international conflict. However, article 3,which is common to each of the four Geneva Conventions of194992 is directed to actions taking place in a non-international conflict.93 Common Article 3 applies to any armedconflict not of an international character if it occurs in theterritory of any State party to the Convention.94 Civil warsare obviously covered as are any form of insurgency. Thepolitical element contained in the notion of terrorism almostcertainly constitutes a non-State perpetrator as a party to anarmed conflict as understood by the Convention.

The persons protected by Article 3 include persons taking noactive part in the hostilities including members of the armedforces who are no longer involved in the fighting whether byabandoning the conflict, or sickness, injury or because theyhave been captured.95 This included non-fighting soldiers but,of course, includes the civilians who have never been part ofthe conflict and who are the usual targets of terroristattacks.

Prohibited conduct against the protected persons includes“violence to life and person, in particular, murder of allkinds, mutilation, cruel treatment and torture”.96 It alsoincludes the taking of hostages and outrages upon personal

92 The four Geneva Conventions 1949 and the additional protocols I and II of1977 and the additional protocol of 2005 are available as links from the International Committee of the Red Cross, 1949 Conventions and Additional Protocols, and their Commentaries <http://www.icrc.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp>.93 Common Article 3 and Protocol II are discussed by Gasser in Hans-Peter Gasser, ‘Acts of terror, “terrorism” and international humanitarian law’, (2002) 84 (International Review of the Red Cross 547, 561 <http://www.icrc.org/eng/resources/documents/misc/5flccx.htm>.94 Article 3 of the First Convention may be found at the International Committee of the Red Cross, Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field <http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=BAA341028EBFF1E8C12563CD00519E66>.95 Common Article 3 (1).96 Common Article 3 (1) (a).

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dignity, including, humiliating and degrading treatment.97

Summary executions are also prohibited.98

The 1977 Second Protocol to the Conventions (“Protocol II”)99

supplements Common Article 3. Article 1 of Protocol II definesits application. It applies to all armed conflicts not coveredby the First Protocol provided they occur in the territory ofa State Party between the armed forces of the State andorganised dissident armed groups who hold control oversufficient territory to allow them to launch sustained andconcerted military attacks.100 The definition is restrictive insome respects. However, any terrorist group capable of morethan ad hoc, one off attacks are likely to bring themselveswithin its coverage.

Article 4 of Protocol II expands the prohibited acts inrespects of non-combatants including the prohibition ofcollective punishments and, expressly, terrorism.101

The coverage of Protocol I102 (by which Protocol II defines itscoverage) is described in Article 1 thereof by reference toCommon Article 2 to the 1949 Conventions. Essentially, thisrefers to any conflict between two or more of the Statesparties who are parties to the Convention.103

Paragraph 4 of Article 1 extends the protection andobligations of Protocol I to wars of national liberation104 97 Common Article 3 (1) (b) and (c).98 Common Article 3 (1) (d).99 See <http://www.icrc.org/applic/ihl/ihl.nsf/INTRO/475?OpenDocument >.100 Article 1 of Protocol II.101 Paragraphs (2) (b) and (d) of Article 4 of Protocol II available at <http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=F9CBD575D47CA6C8C12563CD0051E783>.102 See International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 <http://www.icrc.org/applic/ihl/ihl.nsf/INTRO/470>.103 Article 1 of Protocol I is available at <http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=6C86520D7EFAD527C12563CD0051D63C >.104 “… against colonial domination and alien occupation and against racist regimes in exercise of their right of self-determination …”: see <http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=6C86520D7EFAD527C12563CD0051D63C> .

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However, an important principle is stated in paragraph 2 ofArticle 1. The parties to the Protocol agree that, in casesnot covered by the Protocol or by other internationalagreements, civilians and combatants remain under theprotection and authority of customary international law, theprinciples of humanity and from the dictates of publicconscience. While the limits of this additional protection maybe difficult to define, it certainly provides a considerablefurther area in which domestic authorities are authorised byinternational law to prohibit the types of conduct with whichthe Protocol deals.105

Gasser concludes that terrorist acts causing death or seriousinjury to civilians are grave breaches of the Fourth GenevaConvention and are, thereby, war crimes.106 He relies, inparticular, on the prohibitions in Articles 51 and 52 ofProtocol I.107 As serious breaches of the Conventions, suchacts are war crimes and may be prosecuted as such pursuant toArticle 8 of the Rome Statute.108

Gasser is equally confident that terrorist acts committed innon-international armed conflict are covered by the GenevaConventions.109 He relies on Common Article 3 and AdditionalProtocol II, concluding that the norms in non-international

105 An important part of Protocol I is Article 48 which demands that the parties to any conflict only direct their operations against military targets and not against either civilians or civilian objects. See: <http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=8A9E7E14C63C7F30C12563CD0051DC5C>. 106 Hans-Peter Gasser, ‘Acts of terror, “terrorism” and international humanitarian law’, (2002) 84 (International Review of the Red Cross 547, 556 <http://www.icrc.org/eng/resources/documents/misc/5flccx.htm>.107 See eg: International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977<http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=4BEBD9920AE0AEAEC12563CD0051DC9E>.108 Hans-Peter Gasser, ‘Acts of terror, “terrorism” and international humanitarian law’, (2002) 84 (International Review of the Red Cross 547, 556 <http://www.icrc.org/eng/resources/documents/misc/5flccx.htm>. Rome Statute ofthe International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002). The text is available at <www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf>.

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conflict basically identical with those in international armedconflict.110

Gasser does identify that neither Common article 3 norProtocol II expressly provides for criminal responsibility.However, he points out that there is case law from theInternational Criminal Tribunal for the Former Yugoslavia(ICTY) to the effect that more egregious conduct in non-international armed conflict can amount to internationalcrimes and be prosecuted, for example, at the ICC.111

It seems clear that the reach of Common Article 3, applying asit does to any non-international conflict, will cover theactions of all terrorist groups if the conduct falls withinthe actions prohibited by the Article. The basic prohibition,“violence to life and person, in particular, murder of allkinds, mutilation, cruel treatment and torture” would coverand form a proper basis for prosecuting the most importantactions of terrorists. The political motive comprehended bythe definition of “terrorist act”112 is likely to be sufficientto make the actions part of an armed conflict, albeit, one ofa non-international character rather than a random act ofviolence uncomprehended by the Geneva Conventions.

The qualification in Article 1 of Protocol II that the non-international conflict must involve organised dissident armedgroups who hold control over sufficient territory to allowthem to launch sustained and concerted military attacks maymean that some terrorist activity by “lone wolves”113 andsmaller groups of terrorists will not come within the coverageof Protocol II. In those cases, Common Article 3 would nothave the support and extension of Protocol II. 109 Hans-Peter Gasser, ‘Acts of terror, “terrorism” and international humanitarian law’, (2002) 84 (International Review of the Red Cross 547, 560 <http://www.icrc.org/eng/resources/documents/misc/5flccx.htm>.110 Ibid.111 Ibid 562, citing Decision on the Defence Motion for Interlocutory Appeal on jurisdiction, The Prosecutor v Duska Tadic, Case No. IT-94-I-AR 72, ICTY Appeals Chamber, 2 October 1996. 112 Paragraph (b) of the definition of “terrorist act” in s 100(1) of the Criminal Code Act 1995 (Cth). 113 The concept is explained in Irina Sukhoparova, ‘Why ‘lone wolf’ attacks are becoming a major feature in modern terrorism’, RT (online), 17 January 2014 <http://rt.com/op-edge/terrorism-individual-jihad-strategy-763/>.

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This restriction can be seen to derive from the fact thatinternational humanitarian law, as codified in the GenevaConventions, is the law of war. Some terrorist activity thathas a political element but falls below the level of armedconflict may not be covered by international humanitarian lawand, therefore, not be a war crime. That form of terroristactivity and much that does also qualify as war crimes islikely to be covered by another basis for prosecution andcondemnation, the idea of crimes against humanity.

VI: USING CRIMES AGAINST HUMANITY AS A BASIS TO PROSECUTETERRORIST ACTS

The concept is generally traced back to the phrase “crimesagainst civilisation and humanity” used in 1915 to denounceTurkey’s Armenian genocide. The same phrase was used in a 1919proposal to conduct trials of those responsible for thegenocide.114

The term gained prominence, however, after the chief UnitedStates prosecutor at the Nuremberg Tribunal, Justice RobertJackson, caused the term to be part of the charges providedfor in the Nuremberg Charter and, thereby, part of thejurisdiction of the International Military Tribunal (IMT).115

Article 6(c) of the Charter provides for jurisdiction inrespect of “Crimes Against Humanity: namely, murder,extermination, enslavement, deportation, and other inhumaneacts committed against any civilian population, before orduring the war; or persecutions on political, racial orreligious grounds in execution of or in connection with anycrime within the jurisdiction of the Tribunal, whether or notin violation of the domestic law of the country whereperpetrated”.116

114 Cherif Bassouni, Crimes Against Humanity in International Criminal Law (2d ed, 1999) 17-18 cited in David Luban, ‘A Theory of Crimes Against Humanity’ (2004) 29Yale Journal of International Law 85, 86 <http://scholarship.law.georgetown.edu/facpub/146/>.115 Ibid 87. 116 The Charter of the International Military Tribunal- Annex to the Agreement for the prosection and punishment of the major war criminals of the European Axis (“the Nuremberg Charter”) text can be found at Yale Law

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Article II of a subsequent document, the Allied ControlCouncil Law No. 10,117 also provided for Crimes AgainstHumanity and added to the Charter list the crimes ofimprisonment, torture and rape.118 Galingging notes thathundreds of Nazi soldiers and officials were convicted byAmerican courts in the American zone for crimes againsthumanity committed before and after the war.119

The Nuremberg Charter required that crimes against humanitywithin its jurisdiction be linked to international armedconflict. However, that link was not required for theInternational Criminal Tribunal for Rwanda (ICTR) and,although included in the Charter for the ICTY, has beenregarded as both obsolescent and purely jurisdictional injudicial decisions by that Tribunal. Galingging concludes,drawing on Kittichaisaree, that it is a settled rule ofinternational law that crimes against humanity areinternational crimes and need, no longer, be linked tointernational armed conflict.120 This means that any lingeringquestions about the level of conflict necessary to maketerrorism available to be prosecuted as a war crime do notexist in respect of crimes against humanity.

School, Nuremberg Trial Proceedings Vol. 1 Charter of the International Military Tribunal (2008)The Avalon Project <http://avalon.law.yale.edu/imt/imtconst.asp>. 117 Nuremberg Trials Final Report Appendix D, Allied Control Council Law No.10. Text is available at Yale Law School Nuremberg Trials Final Report Appendix D: Control Council Law No. 10 (2008) The Avalon Project <http://avalon.law.yale.edu/imt/imt10.asp>.118 Ridarson Galingging, ‘Prosecuting Acts of terrorism as Crimes Against Humanity Under the ICC Treaty’ (2010) 7(4) Jurnal Hukum Internasional 746, 754 <http://id.rgplaws.com/index.php/publikasi/ridarson-galingging/43-qprosecuting-acts-of-terrorism-as-crimes-against-humanity-under-the-icc-treatyq-indonesian-journal-of-international-law-center-for-international-law-studies-faculty-of-law-university-of-indonesia-volume-7-number-4 >.119 Ibid, citing Ratner and Abrams, Accountability for Human Rights Atrocities in International Law, Oxford University press, New York, 2001, at 48120 Kriangsac Kittaichaisaree, International Criminal Law (Oxford University Press, New York, 2001) 88, cited in Ridarson Galingging, ‘Prosecuting Acts of terrorism as Crimes Against Humanity Under the ICC Treaty’ (2010) 7(4) Jurnal Hukum Internasional 746, 753 <http://id.rgplaws.com/index.php/publikasi/ridarson-galingging/43-qprosecuting-acts-of-terrorism-as-crimes-against-humanity-under-the-icc-treatyq-indonesian-journal-of-international-law-center-for-international-law-studies-faculty-of-law-university-of-indonesia-volume-7-number-4 >.

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The question remains whether acts falling within the conceptof terrorism also fall within crimes against humanity as thatconcept has been developed in international law. The mostauthoritative codification of the concept is in the RomeStatute in setting out the jurisdiction of the InternationalCriminal Court.

Article 7(1) of the Statute sets out a long list of criminalacts. The context in which one or more of those acts must becommitted to amount to a crime against humanity is set out inthe prefatory part of the Article 7(1) as follows: “For thepurpose of this Statute, ‘crime against humanity’ means any ofthe following acts when committed as part of a widespread orsystematic attack directed against any civilian population,with knowledge of the attack”.121

Most terrorist acts are directed against the civilianpopulation of the territory on which they occur. Systematicattack and widespread attack are alternatives. Many terroristactions are part of a long running campaign. Others are moreone off but must be systematic to get off the ground. Thethird element, knowledge of the attack, involves theindividual defendant having some knowledge of the broadercontext in which her actions take place. This mental elementwould be no more difficult to prove than the mental elementassociated with the definition of “terrorist act” in s.100.1(c) of the Code, namely, the intention of advancing apolitical, religious or ideological cause.

The list of specific acts which will amount to a crime againsthumanity if committed in the presence of those three elementsis very long and includes murder, extermination, enslavement,torture, rape, sexual slavery, enforced prostitution, andenforced disappearances. The list has a catch all: otherinhumane acts of a similar character intentionally causinggreat suffering, or serious injury to body or to mental orphysical health.

121 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002). The text is available at <www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf>.

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Article 7(2) provides a definition of some of the terms usedin Article 7(1). Of most importance is the definition of“attack” which provides: “‘Attack directed against anycivilian population’ means a course of conduct involving themultiple commission of acts referred to in paragraph 1 againstany civilian population, pursuant to or in furtherance of aState ororganisational policy to commit such attack”. The definitionis hardly limiting since very few terrorist actions aredirected against only a single person. Nor are they committedwithout being pursuant to some form of organisational policy.

Galingging takes as an example the terrorist attacks of 11September 2001 and concludes that they fall within thedefinition in the Rome Statute. The acts were systematic andwidespread. They were in pursuit of Al Qaeda’s terroristpolicy against the United States. Multiple deaths were caused.The victims were civilians and even the military officers inthe Pentagon could be regarded as carrying out administrativeduties so as to be civilians for the purpose of thedefinition.122

Because crimes against humanity were conceived in the contextof government directed activities and used to prosecutegovernment sourced terrorism in Germany, Rwanda, and theFormer Yugoslavia, the concept is much more difficult tomisuse as a propaganda device which glosses over Stateterrorism and focuses on even peaceful dissent of politicalopponents. Galingging lists among the advantages of using itto prosecute terrorist acts the following:

(a) the concept applies to both state and non-stateterrorism;

(b) there is no need for the existence of a conflict;(c) the notion of civilians is broader than in

International Humanitarian Law; and122 Ridarson Galingging, ‘Prosecuting Acts of terrorism as Crimes Against Humanity Under the ICC Treaty’ (2010) 7(4) Jurnal Hukum Internasional 746, 763 <http://id.rgplaws.com/index.php/publikasi/ridarson-galingging/43-qprosecuting-acts-of-terrorism-as-crimes-against-humanity-under-the-icc-treatyq-indonesian-journal-of-international-law-center-for-international-law-studies-faculty-of-law-university-of-indonesia-volume-7-number-4 >.

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(d) the crime of torture does not require a purposeelement as it does under the Torture Convention.123

VII: LESSONS LEARNED

The presence of offences of genocide, war crimes and crimesagainst humanity in the Code indicates that domesticprosecution of ICC offences is regarded as feasible. If theCommonwealth were serious about prosecuting war crimes andcrimes against humanity wherever they occur, the legislativeproceedings would benefit from the creation of some derivativeoffences (as is the case with the concept of a terrorist act)and some provisions assisting in investigation of suchoffences (again as has occurred with the concept ofterrorism).

One would also expect some degree of enthusiasm to beaddressed by government and police spokesperson. While a waron war crimes is hardly to be recommended when one addressesthe excesses and failures of the war on terrorism, adiscussion of the unacceptability of war crimes and crimesagainst humanity would be appreciated.

The concepts and the new offences can apply equally to stateand non-state players; to our friends and to our enemies; torebels with a just cause (such as the authors of the 1776Declaration of Independence)124; and to rebels who areattacking the rule of law for no good reason (the ones we call“terrorists”).

By relying on the concepts of war crimes and crimes againsthumanity, one obtains an answer to most terrorists’ putativemoral justification for their murderous actions. They murder,

123Ridarson Galingging, ‘Prosecuting Acts of terrorism as Crimes Against Humanity Under the ICC Treaty’ (2010) 7(4) Jurnal Hukum Internasional 746, 772 <http://id.rgplaws.com/index.php/publikasi/ridarson-galingging/43-qprosecuting-acts-of-terrorism-as-crimes-against-humanity-under-the-icc-treatyq-indonesian-journal-of-international-law-center-for-international-law-studies-faculty-of-law-university-of-indonesia-volume-7-number-4 >.124 The full text of the Declaration of Independence (U.S. 1776) can be found at The Charter of Freedom, Declaration of Independence <http://www.archives.gov/exhibits/charters/declaration_transcript.html>.

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they claim, because they are fighting some form of oppressiveopponent. The moral response is that, no matter how oppressiveyour opponent, what you cannot do is engage in war crimes andcrimes against humanity. Blowing up a train or plane full ofpeople is a crime against humanity.

We do not have to distinguish between “our” freedom fightersand “their” terrorists.

Because the offences apply without distinction, they do notneed an ideological filter to prevent them from applying toourselves and our allies. By applying to all, objectively, theoffences gain greater moral power. They also gain the moralpower from having been used to prosecute Nazis after World WarII and people from different backgrounds in the FormerYugoslavia.

And “crimes against humanity” and “war crimes” do not lendthemselves in quite the same way to the propaganda mill. Nodoubt, they can and will be used for propaganda purposes.Every time they are used, however, they invite a comparisonwith the conduct of the person who mouths the words. Theirobjectivity and their pedigree give them a validity of whicheven propagandists should be wary.

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