Fausto Pocar

Brevi note sul terrorismo e diritto internazionale

216

Settembre-Dicembre 2007

Anno LXXII    n. 3

Summary - The legal response to terrorism in international law had been represented for decades only by the adoption of both regional and global conventions to improve co-operation between States to react to and prevent single and specific acts of terrorism, without giving a global answer to the phenomenon, as the facts occurred on September 11^th 2001 would have more appropriately required. Despite the ratification of such international instruments, there is still no common legal definition of terrorism even if such a definition is essential to assess the commission of an international crime and thus to satisfy the principle of legality (‘nullum crimen sine lege’). Nevertheless, after the attack on the Twin Towers , different principles of international law have been questioned, such as legitimate self-defence and the prohibition of the use of force, to which the two basic concepts of ‘armed attack’ and ‘indirect aggression’ are strictly linked in the UN Charter system. In the recent practice of the Security Council an evolution toward an ‘acceptance’ of the use of force as a response against terrorism can be detected, even when the aggression is not actual but only potential and a State feels to be exposed to a possible terrorist attack to be committed not by another State but also by an organised group of persons. Thus terrorism has become relevant to define the modern ‘jus ad bellum’, which traditionally comprises the rules governing the starting phase of armed conflicts as well as the legitimacy of war operations and conduct. At the same time, some important consequences as to the rules applicable during military operations (the so called ‘jus in bello ’) could arise. The fundamental questions to be addressed are, firstly, whether the captured terrorist is to be considered ‘war prisoner’ (under the Geneva Conventions) or ‘illegitimate combatant’ (following the US approach), and secondly, whether the definition of terrorism elaborated in a different context by the International Criminal Tribunal for the Former Yugoslavia (followed by the Special Court for Sierra Leone ) can be applied to determine the responsibilities of States and individuals committing this kind of acts. Finally, the question of the identification of the more appropriate authority for the punishment of these crimes remains still open to the opposite solutions of affirming the jurisdiction of international courts or of national judges.