STATEMENT ON RECENT EVENTS IN THE UNITED STATES
(September the 21st, 2001)

Preamble

We, participants gathered at the 29^th session of the Institute of International Public Law and International Relations on The New International Criminal Law in Thessaloniki, Greece,

Express our profound sorrow for the victims of the tragic events that took place in the United States on September 11^th, 2001, events which shock the conscience of humanity;

Condemn the heinous acts that caused this tragedy;

Emphasize that these acts have not only impacted direct victims but stand as an attack upon the foundations of peace, tolerance and every cherished value of humanity;

Express our concern that the response to these events should not further undermine the unity of our common values and our desire for tolerance;

Deeply concerned that these events, and possible responses, have serious implications for the international legal order;

Urge the world community to ensure that vengeance will not thwart justice, and to strengthen the bonds of peace;

Mindful that the facts surrounding these events have not yet fully come to light;

Without prejudice to the jurisdiction of the United States of America to prosecute and punish the perpetrators of alleged criminal acts;

Offer the following international legal perspective to the world community, founded upon our collective interest in assuring a more secure world:

General Principles of International Law

Certain fundamental principles of international law are engaged by the events in question.  These principles must be respected regardless of circumstances, and any reaction to these events is necessarily constrained thereby.

The rule of law demands respect for national and international law, both in relations between States and relations between States and their nationals.  Every terrorist act constitutes an attack on democratic principles; however, any reaction that disregards individual civil rights – including rights of suspects – constitutes a further attack on the very same principles.

The general prohibition on the use of force, as expressed in international customary law and art. 2(4) of the UN Charter, subjects all States to norms of international law regulating the use of force.  Accordingly, the use of force is only permitted in situations of self-defence as defined in international law, or in the context of Security Council action to address threats to international peace and security under Chapter VII.  Every other form of military response is prohibited under international law, except in situations of armed conflict. 

The prohibition on intentionally targeting civilian populations applies regardless of the existence of armed conflict.  Even in times of war, intentionally targeting civilian populations or objects constitutes an international crime.

The principle of individual criminal responsibility applies to the various international crimes that may be relevant to the events in question, namely crimes against humanity, war crimes, aggression, terrorism & hijacking.  Accordingly, individuals can be brought to justice in any State having jurisdiction to prosecute the acts in question.

The principle of proportionality also places limits upon the reaction to the events in question.  In peacetime, use of force in self defence must be limited to such force as required to stop the attack.  Countermeasures – reprisals that do not involve the use of force – must also be proportionate to the damage caused by the initial violation.  In wartime, any “collateral damage” to civilian populations and objects must be proportionate to legitimate military objectives.  Therefore, serious, reasoned and careful consideration must be given to whether the acts in question constitute acts of war, as the consequences of this characterization have wide-ranging impact on the applicable rules of international law.

Specific International Crimes

Without prejudice to the application of domestic criminal law or the capability of domestic legal systems to prosecute the perpetrators of alleged crimes, the possibility of crimes against humanity, war crimes, aggression, genocide and terrorism and hijacking charges should be considered in the context of investigations.  The definitions of crimes below are limited to those acts which may be relevant to the events in question.

CRIMES AGAINST HUMANITY

Crimes against humanity are serious breaches of international law.  These crimes have recently been codified in the 1998 Rome Statute of the International Criminal Court (not yet in force).

Crimes against humanity are any of the following acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of that attack.  The relevant international crimes to be investigated include:

(a)    murder
(b)   extermination; that is the killing of one or more persons by inflicting conditions of life calculated to bring about the destruction of part of a population
(c)    other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or mental or physical health (especially with regards to treatment of passengers aboard hijacked aircraft)

To satisfy the general definition of crimes against humanity, certain specific elements must be present:

1. There must be a widespread or systematic attack against any civilian population; in this case, the extensive loss of life may evidence a widespread attack, while the alleged hijacking and downing of four planes and destruction of buildings may constitute a systematic attack;
2. There must be multiple commission of the abovementioned acts against any civilian population, pursuant to the furtherance of a State or organizational policy to commit an attack; in this case, the targeting of multiple cities and buildings may indicate the presence of a State or organizational policy;
3. Perpetrator(s) must commit acts in the context of a widespread or systematic attack ; in this case, the extensive loss of life may evidence a widespread attack, while the alleged hijacking and downing of four planes and destruction of buildings may constitute a systematic attack;
4. Perpetrator(s) must commit acts with knowledge of such a widespread or systematic attack, but not necessarily knowledge of a precise plan; in this case, the close synchronization of the various attacks may satisfy the knowledge requirement

WAR CRIMES

War Crimes are serious breaches of international law committed during international or internal armed conflict.  War Crimes are defined as grave breaches of the four Geneva Conventions of 12 August 1949, serious violations of art. 3 common to the four Geneva Conventions committed in internal armed conflict, or serious violations of the laws and customs applicable to either international or internal armed conflict.

International armed conflict exists whenever there is a use of armed force between States. Internal armed conflict exists whenever there is a prolonged armed conflict between government authorities and organized armed groups, or between such groups, within a State; the term does not refer to riots, isolated and sporadic acts of violence, or similar acts. 

If the events in question took place in the context of, and were associated with, international armed conflict, relevant international crimes to be investigated include:

(a)    Wilful killing
(b)   Torture or inhuman treatment (especially with regards to treatment of passengers aboard hijacked aircraft)
(c)    Wilfully causing great suffering, or serious injury to body or health
(d)   Extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly
(e)    Taking of hostages
(f)     Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities
(g)    Intentionally directing attacks against the civilian objects (i.e. non-military objectives)
(h)    Intentionally launching an attack in the knowledge that such attack will cause incidental loss to life or injury to civilians or damage to civilian objects or widespread, long-term and serve damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated
(i)      Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and are not military objectives
(j)     Destroying the enemy’s property unless such destruction be imperatively demanded by the necessities of war
(k)   Committing outrages upon personal dignity, in particular humiliating and degrading treatment (especially with regards to treatment of passengers aboard hijacked aircraft)

If the events in question took place in the context of, and were associated with, internal armed conflict, relevant international crimes to be investigated include:

(a)    Violence to life and person, in particular murder of all kinds
(b)   Committing outrages upon personal dignity, in particular humiliating and degrading treatment (especially with regards to treatment of passengers aboard hijacked aircraft)
(c)    Taking of hostages
(d)   Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities
(e)    Destroying the property of an adversary unless such destruction be imperatively demanded by the necessities of the conflict

Furthermore, in the context of a response to these events, and assuming the existence of an internal armed conflict, the world community must be particularly vigilant in preventing the war crime of passing of sentence and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

AGGRESSION

Aggression constitutes a serious breach of international law involving an armed attack on a State.  It is considered as one of the most serious crimes of concern to the international community as a whole.  Aggression is an international crime enumerated in principle in art 5(1)(d) of the Rome Statute of the International Criminal Court (not yet in force). 

In general terms, aggression is a recourse to the use of force against a State in violation of the rules of international law and the sovereignty of that State.  Therefore, the targeting of hijacked aircraft against American objects might be considered an act of aggression against the United States by those who orchestrated these hijackings.

However, there is no concrete legal definition of conduct constituting act of aggression under international law, whether committed by States or individuals.  This problem is highlighted both in art. 5(2) of the Rome Statute of the International Criminal Court and the Report of Preparatory Commission of the International Criminal Court on its Fifth Session (12-30 June 2000).

Given the lack of a precise legal definition of the crime of aggression, the perpetrators of such acts cannot be brought to justice at present.  To do so would violate the principle of legality and certainty in international law (nullum crimen sine lege).

Nevertheless, the Security Council has the power to determine the existence of an “act of aggression” under Chapter VII of the UN Charter, although this is a political rather than a legal determination.  Following such a determination, the Security Council may order measures not involving the use of armed force, and if these would be inadequate or have proved to be inadequate, may order armed action.

Finally, any State that is the target of an act of aggression may invoke the right of self-defence under international law, subject to the limitations imposed by the principles governing the use of force, intentional targeting of civilian populations and proportionality, described above.

TERRORISM & HIJACKING OF AIRCRAFT

Terrorism as such is not defined as a crime under international law.  However, specific acts of terrorism, such as aircraft hijacking and terrorist bombing are defined and criminalized in various international instruments, such as the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft, the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation.

The United Nations Security Council has described the events in question as “acts of terrorism” in Resolution 1368 of 12 September 2001.  However, this Resolution cannot ground a legal characterization of the acts in question, not being made in accordance with the standard of proof for criminal responsibility.

The relevant international crimes to be investigated include:

(a)      seizing or exercising control of an aircraft unlawfully, by force or threat thereof, or by any other form of intimidation, or being an accomplice thereto
(b)     unlawful and intentional acts of violence against a person on board an aircraft in flight,  if those acts are likely to endanger the safety of that aircraft or destroy an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight

Furthermore, in accordance with treaty law, a State in whose territory the alleged offenders are located has the obligation either to extradite the suspects or to prosecute them for these international crimes.

Conclusion

It is our hope that each of the participants at this session – like the Institute that has welcomed us – will become a “messenger of peace”, and that each entity of our human community, whether private or public, will cooperate in the investigation and prosecution of international crimes, and will strive to assure the interests of society and achieve peace, with a view to building a better world in which respect for persons and property is firmly enshrined.