Chapter 6 describes how terrorism is punishable under international criminal law. This body of international law holds natural persons – individuals – criminally responsible for the perpetration of international crimes. Although views differ among scholars, as the chapter describes, the better view is that individual acts of terrorism that do not fall within the definitions of war crimes, crimes against humanity, or genocide are not directly criminalized by international law. Particular attention is paid to the relevant caselaw of the Special Court for Sierra Leone (SCSL) and the International Criminal Tribunal for the former Yugoslavia (ICTY).

The introduction offers a historical overview of terrorism through the ages and describes the development of international counterterrorism law. It discusses the interplay between terrorism and international crimes such as genocide and crimes against humanity. It also introduces some of the controversy surrounding terrorism as a term.

The architecture of international counterterrorism law is the subject of Chapter 2. It is a branch of public international law that has emerged from an evolving special legal regime to regulate action to prevent and punish terrorism and to tackle terrorists. International counterterrorism law is a matrix of global terrorism treaties and dedicated United Nations Security Council resolutions that require the incorporation of offences into domestic law combined with the salient rules of international humanitarian law and the law of law enforcement. These rules, which regulate when and against whom force may be used in counterterrorism, are supplemented by (though are sometimes inconsistent with) the content of regional treaties and domestic legislation. The standards and laws are subject to the constraints and oversight of international human rights law. The chapter also describes the content and adherence of regional counterterrorism treaties.

Chapter 7 sets out the key components of State responsibility under international law and then uses a series of case studies to demonstrate that responsibility in practice. Responsibility for a State’s negligent failure to prevent a terrorist attack looks at the acts and omissions of the Russian authorities with respect to the school siege at Beslan in 2003. Three cases have been chosen to exemplify the direct perpetration of terrorism by a State. The first case is the bombing by French agents of the Greenpeace boat, Rainbow Warrior, by French agents in New Zealand in 1985. The second involves certain acts of Syrian authorities following the protests related to the Arab Spring, in particular the widespread and systematic torture and summary execution of opponents of the regime. The third case is the conduct of Russian forces in Ukraine following its invasion on 24 February 2022. Examples of State responsibility as accomplices to acts of terrorism are the responsibility of Liberia for the actions of the Revolutionary United Front (RUF) in neighbouring Sierra Leone during the civil war and the potential responsibility of Syria for the murder of former Lebanese Prime Minister, Rafik Hariri, in Beirut on 14 February 2005.

No unitary definition of terrorism exists in international law and it is unlikely that States will agree upon one in the future. Chapter 1 describes how and why definitions differ in peacetime and in armed conflict and between international terrorism and domestic terrorism. Each of these scenarios evinces particularities in the contours of terrorism under international law. The chapter also explains why the United Nations Comprehensive Convention against International Terrorism has not been successfully concluded.

Chapter 5 considers the surveillance of potential terrorists and their arrest, including the force that may be employed to do so. Once in custody, criminal suspects should be interviewed without the threat or use of physical coercion in order to gather evidence to decide whether or not it is right to engage a prosecution for terrorism (or other criminal offences). In certain circumstances, control orders or similar judicial decisions may limit the actions at large of an individual suspect with a view to protecting the public. Most controversial of all, preventive detention by the State may sometimes be made where an individual has been convicted of no crime and is not being held on remand with a view to future prosecution. The chapter addresses these issues in turn considering the treatment of terrorist suspects in accordance with fundamental human rights.

Chapter 3 covers national criminal law on terrorism worldwide. A total of 188 States (of the total of 197 recognized by the Secretary-General of the United Nations in his capacity as treaty depositary) have domestic legislation in place specifically criminalizing acts of terrorism. Despite certain commonalities, the definitions of these crimes are unique to each individual State. At the time of writing, only one State, Micronesia, had no dedicated legislative provisions on terrorism of any form in its domestic law. A further seven States – the Republic of Congo, Dominica, Eritrea, Kuwait, Sierra Leone, Suriname, and Yemen – repress the financing of terrorism with criminal sanction but do not also establish the perpetration of an act of terrorism as a distinct criminal offence.

This chapter summarizes the maximum sentences available to domestic courts around the world for the perpetration of acts of terrorism. In more than one-quarter of all States this includes the death penalty. The chapter then describes the prosecution of terrorism suspects in selected domestic courts across the Americas, Africa, Asia and the Pacific, and Europe. It considers the reasonableness of the charges laid, the fairness of the trials, and the legitimacy of the sentences imposed upon conviction. Some of those prosecuted for terrorism offences are children or women. The overwhelming majority, though, are men between the ages of eighteen and twenty-five years.

The Outlook chapter presents the achievements and challenges of what we can now call international counterterrorism law. Outside the context of armed conflict, sectoral treaties govern international terrorism involving a range of tactics and targets, notably hostage-taking, bombings, hijackings, and nuclear terrorism as well as attacks on foreign diplomats and, under a treaty approaching universality, the financing of international terrorism. But the distinction with terrorism in a situation of armed conflict in these treaties should have been drawn far more sharply. Under international humanitarian law, the definitions of terrorism in armed conflict are clear.

ABSTRACT

Over more than two years, the territory of Hong Kong has faced a major political crisis with an unprecedented wave of public protests. In response to initially peaceful gatherings, the police deployed water cannon and fired lesslethal projectiles and huge quantities of tear gas, often indiscriminately, leaving hundreds of demonstrators and bystanders injured. Without doubt, the European Union (EU) cannot stand by idly, but has to act as a credible and potent human rights advocate beyond its own borders. In resolutions adopted in 2020 and 2021, the European Parliament called upon EU members to initiate proceedings against China before the International Court of Justice for its violations of fundamental human rights. This contribution explores the circumstances, limits and constraints under which such proceedings could be brought against China, in particular for breaches of the International Covenant on Civil and Political Rights. Most importantly, China itself has never ratified the Covenant, but its applicability on the territory of Hong Kong is guaranteed indirectly by the Joint Declaration of 1984 and the Hong Kong Basic Law. It is of utmost importance for the European Parliament to base its arguments on solid legal grounds in order to guarantee its credibility when exerting pressure on the Chinese government. Since the legal hurdles, as will be shown, are almost unsurmountable, the contribution also considers alternative avenues to accountability before the Court, such as imposing sanctions against Hong Kong and Chinese state officials under the EU Global Human Rights Sanctions Regime.

INTRODUCTION

Over the course of several years, Hong Kong faced a major political crisis with an unprecedented wave of public protests and mass demonstrations. In response to initially peaceful gatherings, police forces reacted violently, using water cannon and firing kinetic projectiles and huge quantities of tear gas, often indiscriminately, leaving hundreds if not thousands injured. The actions of the authorities have been well documented by the media, non-governmental organisations (NGOs) and states, as well as by United Nations (UN) special procedures. The nature and extent of the repression transformed peaceful protests into violent upheaval, adding to the Special Administrative Region’s political turmoil.

The Introduction discusses key terms and concepts in the protection of civilians – ‘civilian’ and ‘protection’ in particular – while illustrating their unsettled and complex character. Key moments in history in international law, policy, and practice over the last century and a half are also considered. Key actors in the protection of civilians are identified setting the scene for the more detailed assessment of their roles of responsibilities in the remainder of the book.

With respect to the protection of civilians, the African Union has largely focused on elaborating guidelines for its own peacekeeping operations. ‘Draft’ Guidelines were concluded in 2010 and published in 2012. Protection is organised into four ‘tiers’: protection through political process; physical protection; rights-based protection; and establishing a secure environment. These ‘tiers’ are broadly similar to the structure of the UN’s Operational Concept of the time. Practice in protecting civilians has been mixed.

The European Union (EU) does not have a single or comprehensive policy document on the protection of civilians. Rather, its interest and involvement in PoC are reflected across a number of standards and policy documents. Its Concept on Protection of Civilians in EU-led Military Operations was elaborated in 2015. When IHL does not apply to EU action, the Union primarily looks towards human rights law as the appropriate standard for the conduct of EU military operations.