A Permanent Hybrid Court for Terrorism

Abstract

This article explores a recent proposal to add terrorism to the jurisdiction of the International Criminal Court. Providing a background on the definition and international criminal legal profile of terrorism, the article finds that there are several reasons not to include terrorism in the list of crimes of the Rome Statute. Importantly, terrorism is a crime whose features more closely resemble other "transnational crimes" such as trafficking and organized crime, rather than the other "international crimes" of the Rome Statute, such as aggression and genocide. Terrorism is a crime committed by private actors rather than states or analogous political organizations, and acts of terrorism can occur on a very small scale, while the crimes of the Rome Statute definitionally require larger scales.

There is an argument in favor of an international tribunal of some kind exercising jurisdiction over terrorists: to assist those states who are either unable or unwilling to bring terrorists within their jurisdictions to justice. However, states are ordinarily effective at combating terrorism through their legal systems, whereas with other crimes such as aggression or genocide there is either a breakdown or an unwillingness of the states to prevent and punish those international crimes. States also have an important role to play in achieving local justice in the name of their victims. Most crimes of terrorism are so small in scale that they are handled well by national prosecutions, whereas a large number of small-scale terrorism indictments could easily overwhelm the International Criminal Court. Nonetheless, there are clearly some cases in which weak states will require or request the assistance of the international community.

As a response to the international and national equities in effective prosecution of terrorism, this article proposes the creation of a permanent hybrid court that will mix international and national laws. Temporary hybrid courts have been used in the past in response to specific atrocities; a permanent hybrid court would be the first of its kind. A permanent hybrid court could either define the crime of terrorism once and for all, or incorporate numerous existing treaties on terrorism by reference. A permanent hybrid court need not even be utilized for terrorism alone, as suggested in this paper, it could be adapted to handle all kinds of "transnational crime." This article details several suggested parameters for a "Special Court for Counterterrorism," from the selection of judges to issues of jurisdiction, and includes a full draft statute.

Keywords: Terrorism, International Criminal Law, International Criminal Court, Hybrid Court