Atocha Workshop: The People: Irune Aguirrezabal:

The People

March 04, 2005

Irune Aguirrezabal:

One-question Interview

Born in Bilbao, Spain, Irune Aguirrezabal Quijera is the European Coordinator of the NGO Coalition for the International Criminal Court in Brussels. This organisation is a network of over 2,000 non-governmental organizations (NGOs) advocating for a fair, effective and independent International Criminal Court

Before joining the Coalition she worked as Representative to the European Union for a Spanish Humanitarian and Development NGO (1997-99) and was Secretary General of a European Association involved in multicultural understanding between West/East Europe (1991-93). She has also worked as an independent expert for the European Commission and the International Criminal Court. She is currently involved in the Madrid Conference on terrorism, democracy and security as a member of the experts working group on legal responses to terrorism.

Q: Irune, what the role of such a Court in matters of terrorism? The ICC is widely seen among the public as an oversight court that acts as a check for Countries' powers. Could it be the venue in which to judge matters of State Sponsored Terrorism? What would be the major impediments to doing that?

A: First of all, it is important to recall that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. The International Criminal Court, established under the Rome Statute, appears as a means of last resort in the determination of States Parties to put an end to impunity, thus, it shall be complementary to national criminal jurisdictions.

Secondly, Article 5 of the Rome Statute limits the jurisdiction of the ICC to the most serious crimes of concern to the international community as a whole: genocide, crimes against humanity, war crimes and aggression (although the Court can still not exercise its jurisdiction over this crime). Therefore, the International Criminal Court jurisdiction does not include, as of today, the crime of terrorism as such.

Nevertheless, during the course of the negotiations the issue of including the crime of terrorism became very contentious. Several states affected directly by the phenomenon of terrorism (e.g. Turkey, India, Sri Lanka and Algeria) made a proposal to include, within the scope of the Rome Statute, the crime of terrorism, as defined in the existing Conventions dealing with the suppression of terrorism. However, as shown by the NGO Coalition in its publications during the Rome Conference, it became clear that a consensus was emerging that there was not enough time to satisfactorily resolve the inclusion of the so-called ‘treaty crimes’ which included terrorism. The conference finally decided to limit the jurisdiction of the Court to the ‘core crimes’ avoiding legal, practical but also political problems, such as the potential politisation of the Court, namely due to the absence of a generally accepted definition of terrorism.

Yet, acknowledging the importance of this global phenomenon, Resolution E (A/CONF./10 17 July 19998) of the Final Act of the Rome Statute regrets that ‘no generally acceptable definition of the crimes of terrorism and drug crime could be agreed upon the inclusion, within the jurisdiction of the Court’. The same resolution notes that the Assembly of States Parties (ASP) may include this crime at a later stage once a definition has been settled. The first Review Conference (pursuant to Art. 123 of the Rome Statute) will take place in 2009.

Bearing in mind that there has never been such a strong international consensus on the need to combat terrorism and in the light of the evolving situation with regards to the broad elements of the definition now emerging, it would be appropriate for the Assembly of State Parties to explore ways of including acts of terrorism which constitute serious international crimes, under existing international conventions and protocols relating to terrorism or as defined in a future comprehensive convention on terrorism, as a crime within the scope of the ICC Statute, at the First Review Conference scheduled for 2009. So far, during the Preparatory Commission negotiations Turkey already proposed a ‘pragmatic approach’ in order to review the Rome Statute.

Thirdly, following the crimes committed on 11 September 2001, legal experts around the world have been seriously arguing that the ICC should consider the possibility of treating specific acts of terrorism as crimes against humanity and/or war crimes, as appropriate, and thus, under the jurisdiction of the International Criminal Court. Indeed, specific acts, containing all the necessary elements stemming from the Rome Statute and the Elements of Crimes, could satisfy all the requirements and, therefore, fall under the ICC jurisdiction. In this regard, it would be incorrect to say that the Rome Statute’s omission of the crime of terrorism excludes all acts of terrorism from the scope of the Rome Statute. In fact, the Rome Statute outlaws many acts that are war crimes or crimes against humanity that would be the result of ‘state sponsored terrorism.’ Obviously, national legislations already cover acts of terrorism and as they implement the Rome Statute they can broaden the definitions.

Finally, it is hoped that negotiations will continue until a comprehensive convention on terrorism is adopted. In this regard, as the High Level Panel on Threats, Challenges and Change indicates (par. 163) there is a particular value in achieving a consensus definition within the General Assembly, given its unique legitimacy in normative terms.

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