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International Response: Negotiations Stall on Anti-Terrorism Treaties By Jim Wurst An ad hoc committee of the General Assembly's Legal Committee picked up where it left off in October with a draft comprehensive convention on terrorism. The 12 existing so-called “sectoral” treaties that outlaw specific acts (hijacking airplanes, laundering money) have been able to avoid defining terrorism since in these treaties terrorism is defined by the act, but since this text is meant to cover all aspects of the problem, the burden of a definition has fallen on these negotiators. The current draft article on definitions consists of a list of offenses that if committed by “any person” or “a group of persons acting with a common purpose” would constitute a terrorist act. Such offenses include “death or serious bodily injury,” “serious damage to public or private property,” and actions taken “with the aim of furthering criminal activity.” The Organization of the Islamic Conference (OIC), which has 58 member states, wants to include the provision that “peoples’ struggle including armed struggle against foreign occupation … shall not be considered a terrorist crime.” This apparent reference to the Palestinians’ struggle against Israel is opposed by the Western states. No headway was made on this contentious point. The other controversy left unsolved is how far the use of force by the armed forces of states can be excluded from the definition of terrorism. This question of scope is also closely tied to the conflict in the Middle East, but the OIC insists its proposals are relevant outside of that region. The current wording says “the activities of armed forces during an armed conflict ... are not governed by this convention” and that “activities undertaken by the military forces of a state in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this convention.” The OIC wants to change the first phrase to read, “the activities of the parties during an armed conflict, including in situations of foreign occupation … are not governed by this convention.” The Islamic states would replace the phrase “governed by” international law with “in conformity with international law” and drop the phrase “other rules.” A delegate from an OIC state said replacing “armed forces” with “parties” and “governed by” with “in conformity with” would be “a strong statement of law.” In an interview, the delegate also said the phrase “governed by other rules” needed to be dropped because it could be used by states to claim national law supercedes international law. While these two points make sense on a practical level, a Western delegate said, the political issues involved made any agreement difficult. Committee Chairman Rohan Perera of Sri Lanka, said this issue of scope “is indeed the crux” of the problem and called on delegates “to be creative” in finding a way out of the impasse. Richard Rowe, an Australian diplomat who was coordinator of the talks, wrote in his report that the understanding of governments’ positions had been “enhanced” and that “the issues for which we need to find broadly acceptable solutions have been more sharply clarified.” The issue of scope is also being scrutinized on human rights grounds. Two leading human rights groups, Amnesty International and Human Rights Watch, issued a joint letter on Monday saying, “the draft convention could undercut the laws of war by criminalizing acts committed in an internal armed conflict that are not prohibited by humanitarian law. The draft text also has a loophole that could allow military forces during peacetime to commit acts of ‘terrorism’ that would neither be covered by the convention nor by humanitarian law.” Some states, including European Union members, have attempted to address this issue by proposing new language to the preamble specifically on the “protection of human rights.” Scope is also the stumbling block to the second draft terrorism treaty before the committee. A draft on the suppression of nuclear terrorism, originally proposed by Russia, would make it illegal for any “person” to use a “nuclear explosive device” or release radioactive material in any other manner, such as damaging a nuclear power plant. Definition is not an issue in this case since, unlike the comprehensive treaty, the act defines the terrorist. The rule governing the armed forces of states is the problem. The current draft says, “the activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law are not governed by this Convention.” This wording leaves open the question of whether the use of nuclear weapons by a state would be legal since such use is not explicitly banned by international humanitarian law. States that want to prohibit the use of nuclear weapons do not like this ambiguity. Mexico has proposed adding this sentence: “The Convention does not address, nor can it be interpreted as addressing, in any way the issue of the legality of the use or threat of use of nuclear weapons by states.” A Mexican delegate said this addition would “expressly clarify” that the nuclear weapon states could not use the text as permitting nuclear weapon use. Mexico, one of the most vocal proponents of nuclear disarmament, believes the legality issue should be addressed in disarmament forums, the delegate said. The OIC delegate called the proposal “good but irrelevant” since it would leave in place the “exceptional” status of the nuclear weapon states. The committee is not scheduled to reconvene until October.
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