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Protecting Victims of Terrorism in the Light of Global Criminology: International Experiences and Developments in the Early Third Millennium

Published online by Cambridge University Press:  20 April 2021

Mehrdad Rayejian Asli*
Affiliation:
Institute for Research and Development in the Humanities (SAMT) Organization, Tehran, Iran
*Corresponding
*Corresponding Author: Mehrdad Rayejian Asli, Institute for Research and Development in the Humanities (SAMT) Organization, Tehran, Iran. E-mail: m.rayejian@samt.ac.ir

Abstract

The relationship between terrorism and criminology illustrates the global feature of crime. Terrorism is presently at the top of the fields of interest of global criminology. However, the issue of victims of terrorism has been neglected in its research agenda. This article seeks to redefine global criminology and victimology by incorporating that issue into their fields of interest. It attempts to answer key questions like: What is the typical model for protecting the victims of terrorism? How could a more operative and effective system be created for that purpose? The European and the United Nations systems are two models that provide international experiences, developments and efforts. Since they generally form a soft law-based system, the author concludes that a protection-oriented system for victims of terrorism will be more operative and effective when it is transformed into one based on hard law.

Abstracto

Abstracto

La relación entre terrorismo y criminología ilustra la característica global del crimen. El terrorismo se encuentra actualmente en la cima de los campos de interés de la criminología global. Sin embargo, el tema de las víctimas del terrorismo ha sido descuidado en la agenda de investigación de la criminología global. El presente artículo busca redefinir la criminología y la victimología globales incorporando ese tema en sus campos de interés. Intenta responder preguntas clave como: ¿Cuál es el modelo típico para proteger a las víctimas del terrorismo? ¿Cómo podría hacerse una herramienta más operativa y eficaz para tal fin? Los sistemas europeo y de Naciones Unidas son dos modelos que aportan experiencias, desarrollos y esfuerzos internacionales. Dado que por lo general forman un sistema basado en la ley recomendada, el autor concluye que un sistema orientado a la protección de las víctimas del terrorismo será más operativo y eficaz cuando se transforme en uno basado en la ley obligatoria.

Abstrait

Abstrait

La relation entre le terrorisme et la criminologie illustre la caractéristique globale de la criminalité. Le terrorisme est actuellement au sommet des domaines d’intérêt de la criminologie mondiale. Cependant, la question des victimes du terrorisme a été négligée dans le programme de recherche de la criminologie mondiale. Le présent article cherche à redéfinir la criminologie et la victimologie mondiales en incorporant cette question dans leurs domaines d’intérêt. Il tente de répondre à des questions clés telles que: Quel est le modèle typique de protection des victimes du terrorisme? Comment créer un outil plus opérationnel et plus efficace à cette fin? Les systèmes européen et des Nations Unies sont deux modèles qui fournissent des expériences, des développements et des efforts internationaux. Puisqu’ils forment généralement un système fondé sur le droit non contraignant, l’auteur conclut qu’un système axé sur la protection des victimes du terrorisme sera plus opérationnel et efficace lorsqu’il sera transformé en un système fondé sur le droit obligatoire.

抽象的

抽象的

恐怖主义与犯罪学之间的关系说明了犯罪的全球特征。当前,恐怖主义是全球犯罪学最关注的领域。但是,全球犯罪学的研究议程中忽略了恐怖主义受害者的问题。本文旨在通过将该问题纳入其感兴趣的领域来重新定义全球犯罪学和全球受害者学。它试图回答一些关键问题,例如:保护恐怖主义受害者的典型模式是什么?为此目的,如何制作出更有效和有效的工具?欧洲和联合国系统是提供国际经验,发展和努力的两种模式。由于它们通常构成基于软法律的体系,因此作者得出结论,面向恐怖主义的受害者的面向保护的体系,如果将其转变为基于强制性法律的体系,将会更加有效和有效。

الملخص

الملخص

تمثل العلاقة بين الإرهاب وعلم الإجرام السمة العالمية للجريمة. كان الإرهاب على قمّة مجالات العناية في إطار علم الإجرام العالمي في أوان الألفية الثالثة. ومع ذلك، فقد تمّ طرح قضية ضحايا الإرهاب من جدول أعمال البحث في علم الإجرام العالمي. تسعى هذه المقالة إلى إعادة تعريف علم الإجرام العالمي وكذلك قضايا علم الضحايا العالمي من خلال تقييم مجالات الإهتمام المشترك بين العِلمَين. البحث یحاول الإجابة على بعض الأسئلة الرئيسية: ما الطريقة والإسلوب النموذجي لحماية ضحايا الإرهاب؟ وكيف يمكن صنع أداة أكثر فاعلية وکفاءة لأجل تحقیق هذا الغرض؟ كيف يمكن تصميم طريقة ناشطة بأعلی جودة من الكفاءة لتحقيق هذا الهدف بشكل أفضل؟ فيما يتعلق بالتجارب والتطورات الدولية، فإن النظام الأوروبي ومنظومة الأمم المتحدة على مستويين لمناقشة هذه الجهود الدولية. نظرًا لأنها تشكل عمومًا نظامًا غير ملزم قانونًا ، يخلص المؤلف إلى أن النظام الموجه نحو الحماية لضحايا الإرهاب سيكون أكثر نشاطا عندما يتحول إلى نظام قائم على قانون صارم. للنظر إلى الإنجازات والتطورات الدولية، فإن النظام الأوروبي ومنظومة الأمم المتحدة هما مستويان من المناقشة والخبرة حول هذه الجهود الدولية. وبما أن الإثنين يستندان بشكل عام إلى نظام قانوني إرشادي وغیرملزم، يخلص الباحث إلى أن النظام المثالي المرجّح لحماية ضحايا الإرهاب یجب أن يكون نظامًا قانونيًا ملزِمًا لکي یؤدي إلی زیادة فاعليتها وكفائتها.

Type
Article
Copyright
© International Society of Criminology 2021

INTRODUCTION

Terrorism and global criminology are two major topics for research in the early third millennium. Global criminology is a new research area about crime and victimization focusing on issues outside traditional criminological study dimensions. Transnational criminal acts/activities and various forms of trafficking and smuggling (humans, drugs, weapons) are crimes crossing national borders within this arena. They demonstrate the global feature of this criminal phenomenon that has been studied by a growing number of criminologists (Friedrichs Reference Friedrichs2007).

Meanwhile, terrorism, as one of the most serious issues of concern to the international community, has been at the top of the topics listed in global criminology. Global criminologists deal with its questions and conundrums as an issue at the intersection of international law, international politics and relations, crime and victimization (Jaishankar and Ronel Reference Jaishankar and Ronel2013). The terrorist attacks of September 11, 2001 were a starting point that transformed terrorism into a global issue. The attacks entailed important consequences, particularly manifesting the cruel and daring face of perpetrators and the innocent and wronged image of victims of terrorism.

These two contradictory characteristics of terrorism could induce criminologists to focus on its victims. However, the issue seems to have faded away in the research agenda of global criminology. According to its literature which could be found in the works of scholars like Friedrichs (Reference Friedrichs2007), Larsen and Smandych (Reference Larsen and Smandych2008), Jaishankar and Ronel (Reference Jaishankar and Ronel2013), Warren and Palmer (Reference Warren and Palmer2015), there is a gap in addressing victims of terrorism in this field of study. The literature of the new area of contemporary criminology has been grouped into two main issues. The first is the typology of particular crimes called “transnational (organized) crime” or “global/globalized crime” (some examples are mentioned before). The second includes local and domestic phenomena, like social exclusion and inclusion, forced marriage and family violence, significant issues that have priority in the light of globalization. Here, criminologists do not necessarily face transnationally or globally criminalized phenomena but deal with social problems for countries and nations interconnected in the light of globalization. Of course, the issue of victims and victimization is a broad field of interest in global criminology. As Jaishankar and Ronel (Reference Jaishankar and Ronel2013) argue, global victimology could be found within the areas of interest in global criminology. However, this victimological enterprise is aimed at theoretical and practical criminal victimization models based upon the second group of global criminology issues, i.e. social problems at the local or domestic level that could be explored globally.

According to the views and the mentioned background, the author, based upon a descriptive–analytical method, seeks to redefine global criminology by incorporating victims of terrorism into its fields of interest. Three main questions arise. First, why should global criminology be rethought for incorporating the victims of terrorism into its agenda? Second, considering the agenda in question, what is the typical model for protecting this group of victims? Third, given the international experiences and developments in relating to victims, and as they seem to be not realizing the dream of victim protection, how could a more operative and effective tool be made for the purpose, particularly for the victims of terrorism?

To answer those questions, this article is composed of three main parts. The first part incorporates the issue of victims of terrorism into global criminology agendas. The second section focuses on introducing a typical model for the protection of victims of terrorism. Part three seeks to explain a more operative and effective instrument to protect the victims of terrorism.

The article attempts to achieve the following objectives:

  1. (1) To make a significant victimological orientation within the sphere of global criminology insofar as a global victimology arises parallel to global criminology to study victims of the most serious crimes of concern like terrorism.

  2. (2) To provide an operative and effective model for the protection of victims of terrorism, which would be subordinated to an internationally typical model for victims of crime and abuse of power.

RETHINKING GLOBAL CRIMINOLOGY WITH INCORPORATING THE TOPIC OF “VICTIMS OF TERRORISM” INTO ITS AGENDA

One of the characteristics of criminology in the early third millennium has been the internationalization of the discipline on account of issues, including globalization and criminalization of gross violations of human rights, specifically criminal abuses of power. This significant trend could be described as “international criminology” that demonstrates the evolution and development of criminology in studying transnational and international crimes. However, the term “international criminology” does not necessarily mean an international discipline, namely criminology, used by some authors like Rob Watts, Judith Bessant and Richard Hil (Watts, Bessant, and Hil Reference Watts, Bessant and Hil2008). The trend concerned, indeed, forms two parallel lines of thought, with one focused on studying international core crimes, including genocide, crimes against humanity and war crimes (Smeulers and Havema Reference Smeulers and Havema2008) and the other exploring crimes occurring across borders, e.g. drug smuggling or human trafficking, and terrorism (Jaishankar and Ronel Reference Jaishankar and Ronel2013). These two flows of thought are respectively called supranational criminology and global criminology.

Meanwhile, global criminology is a growing area of research in the early 21st century that studies crime as a transnational and global phenomenon. Terrorism is the top research issue in the literature of global criminology. Global criminologists consider terrorism one of the most serious threats of the contemporary era, emphasizing the two recent decades of the new millennium. However, the critical challenge is the lack of victims of terrorism as an issue. In other words, terrorism is often defined as a type of transnational crime irrespective of its victims.

Global Criminology: Defining Terrorism as a Transnational Crime

Transnational crime, also known as transnational organized crime (Heinrich-Böll-Stiftung and Schönenberg Reference Schönenberg2013), is the center of attraction in global criminology. It is simply defined as “illicit activity (that) crosses national borders” (McLaughlin and Muncie Reference McLaughlin and Muncie2019:822). The September 11 attacks drew the international community’s attention to transnational and global characteristics of terrorism as epitomized by organized terrorist groups like Al Qaeda. These terrorist organizations demonstrate the violent, cruel and dangerous profile of the perpetrators. The National Security Council of the US regards transnational organized crime as a growing threat to public safety, public health, democratic institutions, and economic stability across the globe and includes terrorist organizations and groups like the Taliban as major perpetrators of transnational organized crime. Footnote 1

Nevertheless, defining terrorism as a transnational crime may overshadow the importance of victims of terrorist attacks or activities. Such a definition perhaps overlooks victims’ issues in the list of questions at this level of field of interest in global criminology. For example, in their book, Jaishankar and Ronel (Reference Jaishankar and Ronel2013) raise a series of questions concerning terrorism as a global phenomenon. However, no indication about its victims is seen at this level of global criminology issues in their list. Some researchers might deal with victims and victimization as a specific concern in global criminology, but separating the issue from that of terrorism could render the topic of its victims inconsequential or, at least, less significant. A compromising approach is to rethink global criminology by incorporating the topic of victims of terrorism into its agenda. It could be reached by moving towards a global victimology in the context, and even in parallel with global criminology.

Global Victimology: Redefining Terrorism as a Collective Victimization

Besides the literature that defines global victimology based upon concepts and theories such as crime desistance (Jaishankar and Ronel Reference Jaishankar and Ronel2013; Turanovic Reference Turanovic2019), this article explains by redefining terrorism as a collective victimization. As maintained by the late M. Cherif Bassiouni (Reference Bassiouni1985), international standards illustrate the distinction among all categories or groups of victims and their victimization. A typical instance is the distinction between victims of national crime and those of international crime. Another standard, as stated by Bassiouni (Reference Bassiouni1985:240), is individual and collective victimization. While the former phrase refers to individual victims and common criminality victimization, the latter term denotes collective or group victims and national and international criminality victimization. Since collective victimization is recognized as a group of victims’ belonging or affiliation to a specific category or origin (Rayejian Asli Reference Rayejian Asli2013:65), including nationality, beliefs, race, ethnicity and more, the harm or injury suffered by victims of terrorism seems to be a significant example of collective victimization.

Thus, terrorism could be redefined as a transnational crime that results in collective victimization. Victimization may take an objective or a subjective form. The objective form comprises the numbers of victims (e.g. a bombing terrorist attack). The subjective one is recognized by the victims belonging or affiliation, even though a terrorist act or attack has not victimized several people. A major example of collective victimization this century occurred through the September 11, 2001 attacks killing a total of 2,977 people, excluding the 19 terrorist hijackers aboard the four airplanes. Footnote 2 In addition to the number of victims, belonging or affiliation, deemed infidel (kaffir in Arabic) by Al-Qaeda’s affiliates in their global jihad campaign, brought about a collective victimization at its objective and subjective level scales.

In this context, terrorism is an issue of interest in global criminology, not merely due to its nature as a crime or its perpetrators’ characteristics, but also in terms of its victims and their collective victimization as a global concern. Considering the recent definition of global victimology concerning the victims of terrorism, what should be explored now is to find a typical model for protecting this group of vulnerable persons. According to such a typical model, protecting victims of terrorism is necessary for global criminology and victimology.

THE TYPICAL MODEL OF PROTECTING VICTIMS OF TERRORISM IN THE LIGHT OF A GLOBAL VICTIMOLOGY

Victimology as a field of study of victims and their victimization has been developed alongside the world’s victims’ movement. The victimological trend is sometimes referred to as “assistance-oriented victimology” (van Dijk Reference van Dijk, van Dijk, van Kaam and Wemmers1999:11) and “protective victimology” (Rayejian Asli Reference Rayejian Asli2013:55). According to this victimological direction, victims’ protection is organized by a body of basic principles and a series of legal rights. The basic principles are categorized as non-discrimination against the victim, victim-oriented fair trial, and balance between victim’s and defendant’s rights (Rayejian Asli Reference Rayejian Asli2013:66). These principles play a strategic role in recognizing the victims’ rights and the victim protection model therein. Considering international and global recognition of victimology since the second half of the 20th century, a typical model of protecting victims of terrorism could be defined in the light of the proposed global victimology in this article.

The typical model pillars consist of two essential elements: fair treatment and access to justice, both significant for protecting this group of victims.

The Necessity of Fair Treatment for Victims of Terrorism

The first underlying element of the typical model for protecting victims of terrorism is fair treatment. All victims should be treated with compassion and respect for their dignity (United Nations Office for Drug Control and Crime Prevention (UNODCCP) 1999b). Accordingly, it requires two components as follows.

Recognition of and Respect for Victims of Terrorism

From an international perspective, fair treatment necessitates recognition of and respect for all victims. According to global victimology, recognizing and respecting the victims of terrorism, whether direct or indirect (United Nations Office on Drugs and Crime (UNODC) 2015), individual or collective ones, is a prerequisite for protecting this particular group of victims. One tangible way to provide fair treatment for victims of terrorism is to determine an anniversary or establish a memorial for the victims and their survivors. Such a measure is often adopted after most terrorist events like the 9/11 Anniversary and Memorial for commemorating the September 11 attacks. Footnote 3 Recognition of and respect for victims of terrorism may require compassion and respect for their dignity and those of their survivors, family or relatives by issuing a statement or international condemnation. Concerning ISIS, as the most recent example of a terrorist group, the United Nations (UN) has contributed by condemning their terrorist attacks in many countries around the globe. Footnote 4

Non-discrimination Against Victims of Terrorism

As a component of fair treatment, non-discrimination against victims of terrorism, stemming from its fundamental international counterpart Art. 7 of the Universal Declaration of Human Rights 1948Footnote 5 requires the applicability of recognized rights to all victims, without distinction of any kind such as race, color, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices. The September 11 attacks are a true case for compensation to the victims of terrorism in which citizens of 78 countries were killed. Footnote 6 Thus, the September 11 Victim Compensation Fund Footnote 7 seems to have been established to respond to a diversity-based victimization through which the individual differences of all people victimized by terrorism are recognized.

Making Justice More Accessible for Victims of Terrorism

In a broad sense, access to justice means “the ability within a society to use courts and other legal institutions effectively to protect one’s rights and pursue claims” (Garner Reference Garner2009:16). As a general rule in victimology (UNODCCP 1999b), all victims are entitled to access the mechanisms of justice for the prompt redress for the harm suffered and the rights violated or denied. In the context of terrorism, access to justice necessitates providing special legal rights to the victims. They are also entitled to be informed of their legal rights. The accessibility of justice for victims of terrorism requires protecting this group of people at two levels.

Protecting Victims of Terrorism Through Criminal Justice

One level of accessibility is to protect the victims of terrorism through criminal justice. Although the term “criminal justice” is often defined concerning the defendant or accused offenders (Garner Reference Garner2009:431), it could not disregard the victims, particularly those who suffered harm or injury due to terrorism. The substantial norms of the rule of law and human rights are the essential elements of criminal justice responses to the victims of terrorism (UNODC 2015). Accordingly, the criminal justice process must conform to the recognized norms applicable to both victims and defendants. The basic principles governing the protection model for victims (see the section “The Typical Model of Protecting Victims of Terrorism in the Light of a Global Victimology” above) guarantee the relevant norms. For instance, the balance between the victim’s and defendant’s rights arises from an international principle entitled “non-derogation.” The recognition of victims’ rights does not prejudice any defendants’ rights (REDRESS 2006). In this regard, the victim-oriented fair trial does not prejudice the special legal rights that an accused person is entitled to a fair trial.

The criminal justice agencies, including police, prosecution service, courts and other relevant authorities and units, are an important part of a broader action to protect victims of terrorism. Therefore, governments should address the criminal justice response to victims of acts of terrorism, considering that it strengthens their criminal justice systems (UNODC 2011).

Protecting Victims of Terrorism Through Social Justice

An effective protection of victims of terrorism is not restricted to the criminal justice process. Thus, a typical model of protecting victims of terrorism must encompass various aspects of support, aid and help, including material, financial, medical, psychological and social ones. A similar model based upon the effects of victimization was introduced somewhere else (Rayejian Asli Reference Rayejian Asli2018–2019). According to this model, forms of protection of victims of terrorism consist of penal, material, financial, medical, psychological and social support, aid or help. This article does not intend to repeat the typology contained in previous publications or literature but reaffirms it here in the light of the notion of “social justice.”

Social justice underlines that the concept of justice has several aspects beyond the boundaries of legal or economic systems and their traditional moral frameworks. Nowadays, social justice is defined as equal access to wealth, health, welfare, well-being, privileges, and opportunity for all people regardless of their political, economic, legal, or other status. Footnote 8 Thus, social justice theory links with the non-discrimination principle in terms of the concept “equality.” Since the latter principle provides the applicability of recognized rights to all victims, without distinction of any kind (see the “Non-discrimination Against Victims of Terrorism” section above), it could be concluded that all victims should have equal access to the components of social justice. Meanwhile, civil society and non-governmental organizations (NGOs) play a key role in protecting the victims of terrorism (UNODC 2015). The role of informal society is not in contradiction with society’s formal parts, especially the criminal justice system, because at a participatory level of criminal justice policy, civil society and NGOs can cooperate with formal authorities to protect and support victims. The establishment of associations, societies and other NGOs that work with civil society organizations contributes to facilitating coordination of policies and services among all actors working with victims. The National Federation of Victims of Terrorist Attacks and Mass-Casualty Accidents (FENVAC) in France, Footnote 9 the Association des Victimes du Terrorismes – Liban in Lebanon, Footnote 10 the Canadian Coalition Against Terror (C-CAT) in Canada, and the Association for Defending Victims of Terrorism (ADVT) in Iran Footnote 11 are some major instances of such organizations related to protecting victims of terrorism at the national level worldwide.

All these sectors and organizations seek to step towards highlighting and supporting the victims of terrorism in the light of a global strategy and from the perspective of global criminology and victimology. However, the purpose seems to be faced with an important challenge, considering the problematic point of operating the global system of victim protection to prevent victimization and re-victimization and provide full recovery, or at least, a proper reparation and redress for victims of terrorism. It is obvious that the global system has had an important influence, in a way. A question remains: how could the global system be enhanced for better protection of all victims, particularly the victims of terrorism?

HOW TO MAKE A MORE OPERATIVE AND EFFECTIVE TOOL FOR PROTECTING THE VICTIMS OF TERRORISM

The typical model for protecting the victims of terrorism in the light of global victimology has been influenced by international experiences and developments at regional and global levels. A significant example of regional level is in Europe. The Revised Guidelines of the Committee of Ministers of the Council of Europe on protecting victims of terrorist actsFootnote 12 is a key instrument in which the relevant typical model could be found. At the international level, UN activities and efforts are ongoing. Meanwhile, the measures of the United Nations Office of Counter-Terrorism Footnote 13 and the portal of the UN Action for the support of victims of terrorism are remarkable. Footnote 14 The problematic point of this part of the article is that the international experiences and developments form a series of guidance, directory instruments and measures that are not binding. In other words, these measures, actions and activities are mainly a body of directions or instructions of no obligatory force. However, the point could be explored from a normative perspective based upon the categorization of legal norms and provisions into soft law and hard law. It seems that the categorization could explain how to make a more operative and effective tool for protecting the victims of terrorism.

The Current Victim-oriented Soft Law System at the International Level

From a legal viewpoint, “soft law” is defined as agreements, principles, declarations and standards that are not legally binding (Shaffer and Pollack Reference Shaffer and Pollack2010). These provisions are predominantly found in the international sphere. The international victim-oriented system in the form of a binary scale (regional and global) has been dominated by soft law for half a century. Hence the typical model for protecting the victims of terrorism has been influenced by the current victim-oriented soft law system.

European System

Despite the European Convention on the Compensation of Victims of Violent Crimes,Footnote 15 as a binding instrument in the framework of hard law, the European victim-oriented system contains a series of resolutions, guidelines and standards which are considered soft law. They include: Recommendation No. R (85) 11 of the Position of Ministers of Member States on the Position of the Victims in the Framework of Criminal Law and Procedure,Footnote 16 the European Union Framework Decision on the standing of victims in criminal proceedings,Footnote 17 the Resolution of the Council on a roadmap for strengthening the rights and protection of victims, in particular in criminal proceedings,Footnote 18 and the Directive of the European Parliament and of the Council of the European Union establishing minimum standards on the rights, support and protection of victims of crime.Footnote 19 One of the latest instruments focusing upon the victims of terrorism is the Revised Guidelines 2017. According to the Revised Guidelines 2017 this group of victims’ protective system could be analyzed into basic principles and essential measures. The basic principles are the structuralization of the protection of victims of terrorism, non-arbitrariness and non-discrimination against the victim, and respect of victims’ human dignity, which are mainly called “fair treatment” in this article (see the section “The Necessity of Fair Treatment for Victims of Terrorism” above).

The structuralization principle requires that all states have an appropriate legal and administrative framework for protecting the victims of terrorism (Council of Europe 2018:6; item 1, section II). Other basic principles necessitate excluding all forms of arbitrariness and any discrimination against the victims of terrorism (Council of Europe 2018:6; item 2, section II). Recognizing the basic principles is tied up with respecting the dignity and the private and family life of victims (Council of Europe 2018:6; item 3, section II). The expression of these provisions is imperative in terms of the modal verbs “should” and “must.” However, they do not demonstrate the basic principles’ legally binding force. In other words, the state parties to the Revised Guidelines 2017 have no legal obligation to implement these guidelines.

In addition to these principles, essential measures recognize special rights for the victims of terrorism considered part of the victim-oriented soft law system. In the context of this article, they are referred to as “access to justice” (see the “Making Justice More Accessible for Victims of Terrorism” section above). Giving information to the victims of terrorism concerning their victimization (Council of Europe 2018:7; items 1 and 2, section IV), providing for appropriate medical, psychological, social and material assistance to the victims of terrorism (Council of Europe 2018:7; item 1, section V), having to pay fair, appropriate and timely compensation to the victims of terrorism (Council of Europe 2018:8; items 1–4, section VIII), providing specific training for the professionals (Council of Europe 2018:9; section XI) and raising public awareness of the society about these victims are listed in the guidelines on the protection of victims of terrorism (Council of Europe 2018:9; section XII).

These provisions’ grammatical structure follows the imperative style of the Revised Guidelines 2017, but not as the legally binding force of the essential measures. Indeed, the structure concerned is a substantial component of the soft law definition upon which the term is associated with international law, whether at the regional or the global scale (Garner Reference Garner2009:1519). Within European law, the resolutions, recommendations and guidelines of the Council of Europe and the European Union are soft. These provisions represent that the legislative and the parliamentary organs of European law intend to use their powers and perform their tasks within their competence area, even though they are not legally binding for the member states (Druzin Reference Druzin2017). In other words, the European victim-oriented soft law system, emphasizing the protection of victims of terrorism as contained in the Revised Guidelines 2017, indicates an international governance at a regional level through which the member states might be induced to voluntary adoption and even compliance by domestic legislation.

As might be expected, such an argument seems not to be sufficient for a proper typical model of victim protection. This is so even within the UN victim-oriented system, in particular concerning victims of terrorism.

UN System

The UN’s contribution in addressing the victims and protecting them can be traced back to UN norms and provisions that form an international literature called “blue criminology” and “blue victimology” by some authors (Dussich Reference Dussich, Kury, Redo and Shea2016; Redo Reference Redo2012). The Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966), as two pillars of the international charter of human rights (Bassiouni Reference Bassiouni2006), and the UN Congress on the Prevention of Crime and the Treatment of Offenders since 1955 (changed to Crime Prevention and Criminal Justice since 2005) Footnote 20 are among the UN’s efforts and activities in this regard. Meanwhile, the issue of victims of crime and abuse of power was developed in the agendas of the Sixth and the Seventh Congresses that further led to the passage of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (the 1985 Declaration).Footnote 21 The Resolution and the Declaration annexed to it have been supplemented by several measures and resolutions among which the efforts of the Economic and Social Council (ECOSOC) of the UN Footnote 22 have played a significant role (Rayejian Asli Reference Rayejian Asli2006). Furthermore, the General Assembly Resolution entitled “Basic Principles and Guidelines of the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law, and Serious Violations of International Humanitarian Law”Footnote 23 is a landmark that along with the 1985 Declaration are sometimes known as the International Bill of Rights of Victims (Bassiouni Reference Bassiouni2006).

In addition to these efforts and background that form the universal victim-oriented system, the UN has contributed to recognizing victims of terrorism and their rights, particularly over the past three decades. After the adoption of General Assembly Resolution 49/60,Footnote 24 which criminalized some armed activities, including acts intended or calculated to provoke a state of terror in the general public, the International Convention for the Suppression of the Financing of TerrorismFootnote 25 was another global tool in the 1990s that sought to provide an indirect protection for the victims of terrorism through criminalization and penalization measures. This is a kind of victimological model of victim protection which is sometimes referred to as “penal protection” (Rayejian Asli Reference Rayejian Asli2013:64).

The beginning of the 21st century was a turning point for the UN efforts to contrive a support system for victims of terrorism. The High-Level Security Council meeting on the anniversary of September 11, 2001 (of September 11, 2002) was a milestone when the Security Council called the member states’ attention to the memory of the victims of one of the most terrifying events since the Second World War. After that, the UN has carried out continuous efforts and activities to develop the protection-oriented system of victims of terrorism.

All of these measures address the importance of this group of individuals and their victimization across the globe. Therefore, it can be examined from the perspective of global criminology and a global victimology subordinated to it. As compared with the universal victim-oriented system within the UN, the protection-oriented system of victims of terrorism has been dominated by soft law. However, despite the non-binding or non-obligatory feature of the 1985 Declaration as a soft law instrument, the two publications of the UNODCCP entitled Guide for Policy Makers (UNODCCP 1999a) and Handbook on Justice for Victims (UNODCCP 1999b) regard the development and the support programs responding to the challenge of victimization as the responsibility of governments. Considering the concept of “responsibility” that is “the state or fact of being accountable … for something”; Footnote 26 alternatively, “answerability or accountability” (Garner Reference Garner2009:1427) and the concept of “accountable/accountability” that means “required or expected to justify actions or decisions" Footnote 27 (Garner Reference Garner2009:21), it could be said that the language of the current victim-oriented system at the international level demonstrates the soft law-based structure of norms and standards contained in this system, and at the same time, denotes a mechanism to induce and to stimulate a voluntary adoption of and compliance with the relevant norms and standards towards a legal harmonization of member states of the international community.

The same is true for the protection of victims of terrorism within the UN system. It could be illustrated by a brief chronological list as stated below:

  1. (1) The Secretary-General’s report on “Uniting against Terrorism: Recommendation for a Global Counter-Terrorism Strategy” in 2004. Footnote 28

  2. (2) The Security Council’s resolution 1566 (2004) containing the establishment of a working group to consider the possibility of establishing an international fund to compensate victims of terrorist acts and their families. Footnote 29

  3. (3) Launching the UN Global Counter-Terrorism Strategy following the General Assembly’s Resolution 60/288 of September 8, 2006. Footnote 30

  4. (4) The first Global Symposium Supporting Victims of Terrorism hosted by the Secretary-General in 2008 led to publishing a report summarizing the key themes discussed at the Symposium with a set of recommendations. Footnote 31

  5. (5) Report of the Security Council Working Group established according to Resolution 1566 (2004) in 2010 in which the need to support victims of terrorist attacks was emphasized. Footnote 32

  6. (6) High-level panel discussion on the rights of victims of terrorism hosted by the Counter-Terrorism Implementation Task Force (CTITF) and Spain in 2012 in order to promote international solidarity in support of victims by addressing the central role of the rights of victims in countering terrorism and by promoting new avenues of action under the General Assembly. Footnote 33

  7. (7) The General Assembly’s Resolution 66/282 (2012) recognized the member states’ efforts to work on victims of terrorism issues while emphasizing the fair treatment principle. Footnote 34

  8. (8) Organizing and publishing the “Good Practices for Supporting Victims of Terrorism within the Criminal Justice Framework” by the Terrorism Prevention Branch of the UNODC in the 13th UN Congress on Crime Prevention and Criminal Justice in 2015. Footnote 35

As the above list shows, these events indicate a continuum of efforts, measures, recommendations, instruments, and even publications that do not have any legally binding force. However, as a part of blue criminology and blue victimology within the UN system, they could promote and enhance the spirit of participation and synergy among the member states (Dussich Reference Dussich, Kury, Redo and Shea2016). Undoubtedly, the current victim protection system will be more advanced and progress if the international community makes every effort towards a globally victim-oriented hard law system.

Towards a Globally Victim-oriented Hard Law System

Given the definition of hard law as “legal obligations that are binding on the parties involved and which can be legally enforced before a court,” Footnote 36 the establishment of a victim-oriented hard law system for protecting the victims of terrorism is essential. Such a victim-oriented hard law system would be approachable through the passage of national legislation and by adopting an international binding instrument, particularly a UN convention.

Adopting National Legislation for Victims of Crime and Terrorism

Domestic legislation is the most feasible way to run a victim-oriented hard law system. The writers of the Handbook of Justice for Victims (UNODCCP 1999b) regard the legislation as a component of policy making in protecting victims of crime and abuse of power. Concerning victims of terrorism, the basic principle of the rule of law requires all member states of the international community to establish and to implement the rule of law-based measures in response to crimes of terrorist acts, and to protect the victims of such crimes, particularly within their domestic criminal justice systems (UNODC 2015). Meanwhile, some countries worldwide have provided legal measures, including support services for victims of terrorism. The US, UK and Northern Ireland, Ireland, Spain, and South Africa are among countries that have established such legal and institutional measures as part of their domestic legal systems. For example, each attorney’s office in the US has at least one victim and witness coordinator to help and assist the victims of terrorism in the criminal justice process (UNODC 2015). In Spain, according to the Recognition and Comprehensive Protection of Victims of Terrorism Act (No. 29/2011), the Directorate-General of Support for Victims of Terrorism was established (UNODC 2015) with a legal duty to liaise with and to protect direct and indirect victims of terrorist acts.

Notwithstanding the previous examples of legislation in favor of victims of terrorism, there are some cases in which national legislation has not carried out this purpose. The Anti-Terrorism Act of Pakistan is a sample. Although the Anti-Terrorism Act criminalizes terrorist offences and provides criminal sanctions to ensure the victims’ penal protection, a victim-oriented system of protection is not recognized in this Act. Moreover, even though reintroduced to respond to the tragic terrorist attacks resulting in deaths and victimization of numerous civilians and children, the reinstatement of the death penalty brings criticism to the Anti-Terrorism Act regarding human rights considerations (Justice Project Pakistan (JPP) 2014). The Prevention of Terrorism Act 2015 of MalaysiaFootnote 37 is another example that has not addressed a victim-oriented system.

Despite these cases, national legislation can play a significant role in strengthening the typical model of protecting victims of terrorism and the victim-oriented system as a whole. As the 1985 Declaration of the UN stipulates, fair treatment and access to justice, as two pillars of the system concerned, are provided by national legislation (Art. 4). According to the UN’s publication Guide for Policy Makers (UNODCCP 1999a), by the end of the 20th century, several countries were examining legal procedures to protect the victims of crime and introduce and develop the victim bills of rights and guidelines. It demonstrates that soft law alongside hard law has acted in a legislative system to protect crime victims. However, adopting an international binding instrument seems to be necessary for a globally victim-oriented hard law system, including for the victims of terrorism in the light of global criminology and a global victimology as well.

Adopting the Draft UN Convention on Justice and Support for Victims of Crime and Abuse of Power

About two decades from the adoption of the 1985 Declaration, the dream of an international binding instrument for protecting all victims is being materialized by drafting a UN convention on the protection of the victim. While the 1985 Declaration was an underpinning for a globally victim-oriented system, its characteristic as a soft law instrument could not enable the UN to establish a legally binding force and obligation for the international community’s member states. It is undeniable that considerable efforts have been made to implement and incorporate the 1985 Declaration into national jurisdictions. Nevertheless, as John Dussich (Reference Dussich and Robertson2017) says, many countries have not adequately attempted to adopt the significant changes based on the 1985 Declaration. Moreover, as a soft law instrument, the 1985 Declaration would not be sufficient to guarantee complete protection for the victim worldwide. It turns out that adopting the draft UN convention on the victims is inevitable. This is what some authors (Groenhuijsen Reference Groenhuijsen2008:122) describe as the best route to transform the victims’ rights into a living reality and as the best way to enhance the current victim-oriented soft law system to a globally victim-oriented hard law one.

Following the efforts of the World Society of Victimology and the International Victimology Institute Tilburg (INTERVICT) interacting with the UN in 2005, Footnote 38 a cogent first draft entitled the “Draft UN Convention on Justice and Support for Victims of Crime and Abuse of Power” (the draft UN convention) was prepared in 2006. The latest draft was updated in 2010. Footnote 39

One of the most significant distinctions between the draft UN convention and the 1985 Declaration is about the victims of terrorism. While in the 1985 Declaration, there is no indication of that issue, Article 2 (b) of the draft UN convention extends the instrument’s scope to “persons who are victimized by behaviors or activities that are acts of terrorism, as defined in international instruments relevant to terrorism …”. The Preamble of the draft UN convention earlier referred to the issue by mentioning the term “terrorism” and the phrases “crime and abuse of power.” This indicates that terrorism and its victims have materialized as a specific issue and one of the most serious concerns of the international community as a whole in the third millennium. Furthermore, regarding its precedent in the 1985 Declaration, the phrase “Recognizing that millions of people, including many women and children, throughout the world, still suffer harm as a result of crime, abuse of power and terrorism” denotes the collective victimization arisen from these criminal phenomena. Another paragraph of the Preamble, in the matter of the Declaration of the UN Crime Congress (of Bangkok, 2005), emphasizes the importance of protecting witnesses and victims of crime and terrorism. Despite giving expression to the victims of terrorism in its contents, it would seem that the term “terrorism” could be used in the title of the draft UN convention to underline the importance of its victims in this context.

Most importantly, a questionable point is still how to make a more operative and effective tool for protecting the victims of crime, abuse of power, and terrorism by adopting the draft UN convention as a hard law mechanism. A probable concern might be the time-consuming process of adopting such a convention. Another concern is the reception of the convention by member states of the UN. Undoubtedly, a consensus could not be expected in this regard. A majority of member states would be necessary for this purpose. Both issues have been addressed before by some victimologists (Groenhuijsen Reference Groenhuijsen2008). However, as other victimologists like Dussich (Reference Dussich and Robertson2017) point out, the main objective is to create a stronger instrument at the international level. Moreover, a UN convention can recognize the objective.

CONCLUSION

The article sought to analyze how the victims of terrorism as a group of vulnerable persons could access justice. This issue’s starting point was a redefinition of global criminology by incorporating the topic of victims of terrorism into its agenda. Indeed, the importance of the issue of victims of terrorism requires that it be incorporated at the top of the fields of interest of global criminology and victimology.

The next issue that this article sought to answer was introducing a typical model for protecting the victims of terrorism. Such a typical model results from victimology, and according to the objectives of this research, could be integrated with the global victimology that this article proposed. Regarding the typical model’s binary pillars, fair treatment and access to justice, are defined in the pursuit of justice by the victims of terrorism. From this perspective, the article concludes that the best justice model for victims of crime, abuse of power and terrorism must encompass criminal and social justice as the main dimensions of formal and informal justice.

However, the final problematic point was to deal with how to introduce a more operative and effective way for protecting the victims of terrorism. With emphasizing on the article’s sub-title, the international experiences and developments in the early third millennium show that not only the protection of victims of terrorism but also the protection of all victims of crime and abuse will be more operative and effective when both soft law and hard law systems act alongside on the path of justice for victims. Consequently, in the present situation, the route passes through enhancing the global victim-oriented system from its current soft law level to a hard law-based one.

Acknowledgements

The author acknowledges with appreciation the generous and supportive assistance of the Editor and staff in the preparation, editing and revisions of this article for publication in the International Annals of Criminology.

Mehrdad Rayejian Asli is an Iranian criminologist and victimologist. He has earned a PhD in criminal law and criminology and now is an Assistant Professor of Criminal Law and Criminology at the Institute for Research and Development in the Humanities (SAMT). Some of his published research topics are as follows: “Iranian Criminal Justice System in Light of International Standards Relating to Victims” (European Journal of Crime, Criminal Law and Criminal Justice 2006); Forced Marriage in Islamic Countries: The Role of Violence in Family Relationships (Springer 2016); and “Incorporating the United Nations Norms into Post-Revolution Criminal Policy: A Criminological–Victimological Approach” (Springer 2021).

Footnotes

4 See, e.g., SC Res. 2249 2015 at https://www.un.org/press/en/2015/sc12132.doc.htm

5 General Assembly Resolution 217 A. Annex. The Universal Declaration of Human Rights, December 10, 1948 (A/RES 217).

12 Committee of Ministers of Council of Europe: CM (2017). 44-final: The Revised Guidelines of the Committee of Ministers of the Council of Europe on the protection of victims of terrorist acts.

15 European Convention on the Compensation of Victims of Violent Crimes (ETS No. 116 1983).

16 Council of Europe. Recommendation No. R (85) 11 of the Position of Ministers of Member States on the Position of the Victims in the Framework of Criminal Law and Procedure (June 28, 1985).

17 European Union Framework Decision on the standing of victims in criminal proceedings (2001/220/JHA).

18 Council of Europe. A roadmap for strengthening the rights and protection of victims, in particular in criminal proceedings (Resolution of Council of the European Union, June 9–10, 2011).

19 European Commission. Directive of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime (May 18, 2011).

21 General Assembly Resolution 40/34. Annex: Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (A/RES/40/34 November 29, 1985).

22 See, e.g., Economic and Social Council (ECOSOC) Resolutions: E/CN.4/RES/1989/57 of May 24, 1989, E/AC.57/1988/3, E/AC.57/1990/3, E/CN.15/1996/16/Add.1, E/CN.15/1997/16/Add.3.

23 General Assembly Resolution 60/509. Annex: Basic Principles and Guidelines the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (A/60/509/Add.1).

24 General Assembly Resolution 49/60. Annex: The Declaration on Measures to Eliminate International Terrorism (A/RES/49/60, 1994).

25 The International Convention for the Suppression of the Financing of Terrorism (UNSC Resolution 1267, 1999).

37 Laws of Malaysia. Law 769: Prevention of Terrorism Act 2015, Percetakan Nasional Malaysia Berhad.

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