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УДК 343.07
M.A. Sarsembayev,
Professor, Doctor of Law; Sarsembayev K.M.,
Candidate of Law; Sarsembayev D.M.,
Master of International Law (CG «Bolashak», Astana)
UNIVERSAL INTERNATIONAL CONVENTIONS
AGAINST INTERNATIONAL TERRORISM
Abstract
In this paper the authors reveal the necessity of the theme of combating international terrorism, which in one
way or another affects many countries, including the Republic of Kazakhstan. The authors offer suggestions
to improve the texts of working international agreements against terrorism in the field of air and sea transport,
to rescue the hostages, against financing of terrorism, against all types of bombing, nuclear terrorism. The
authors of this article propose and open up conceptually the new international conventions against the taking
of trains and buses for terrorism, on the fight against terrorist groups, against state terrorism, on extradition
of perpetrators of terrorist crimes, on mutual legal assistance of states in the fight with international terrorism.
Keywords terror, terrorism, bombings, hostages, nuclear material, extradition, suppression of terrorism,
perpetrator.
Аңдатпа
Бұл мақалада авторлар қалай болғанда да зардабы көптеген елдерге, соның ішінде Қазақстан
Республикасына да тиіп жатқан халықаралық терроризммен (лаңкестікпен) күрес тақырыбының
өзектілігін ашады. Авторлар әуе және су көлігі саласындағы терроризмге қарсы, аманаттарды құтқару
жөніндегі, лаңкестікті қаржыландыруға қарсы, бомбалық, ядролық терроризмнің барлық түрлеріне
қарсы қолданыстағы халықаралық келісімдердің мәтіндерін жетілдіру бойынша өз ұсыныстарын
енгізеді. Мақала авторлары теміржол составтарды, автобустарды террористік мақсатта басып
алумен күрес туралы, террористік топтармен күрес туралы, мемлекеттік терроризмге қарсы,
лаңкестік қылмыс жасаған адамдарды экстрадициялау (ұстап беру) туралы, терроризммен күресте
мемлекеттердің өзара құқықтық көмек көрсетуі туралы жаңа халықаралық конвенциялар ұсынған
және олардың мазмұнын тұжырымдамалық тұрғыдан ашқан.
Тірек сөздер: террор, терроршылдық, бомбалау, кепіл тұтқындар, ядролық материалдар,
экстрадиция, терроризмен күрес, құқық бұзушы.
Аннотация
В данной статье авторы раскрывают актуальность темы борьбы с международным терроризмом,
которая так или иначе затрагивает многие страны, в том числе Республику Казахстан.. Авторы
вносят свои предложения по совершенствованию текстов действующих международных соглашений
против терроризма в сфере воздушного и морского транспорта, по спасанию заложников, против
финансирования терроризма, против всех видов бомбового, ядерного терроризма. Авторы статьи
предлагают и концептуально раскрывают новые международные конвенции о борьбе с захватом
железнодорожных составов, автобусов в террористических целях, о борьбе с террористическими
группами, против государственного терроризма, об экстрадиции (выдаче) лиц, совершивших
террористические преступления, об оказании взаимной правовой помощи государств в борьбе с
терроризмом.
Ключевые слова: террор, терроризм, экстрадиция, заложник, ядерный материал, экстрадиция,
борьбас терроризмом, преступник.
The concept of terrorism may be classified as either domestic or international according to the
territory and membership of the terrorist groups. Some researchers believe that domestic terrorism
took place in antiquity, the Middle Ages and in modern history. It is undeniable that some cases
of domestic terrorism occurred in antiquity and the Middle Ages. It may be considered equally
certain that domestic terrorism started to take on systematic character in the second half of the
nineteenth century. International terrorism began to manifest itself early in the twentieth century.
Therefore the League of Nations expressed at that time its concern, which was reflected in the
30-s of the last century in the development and discussion of the following drafts of international
conventions: the Convention on the Prevention and Punishment of Terrorism and the Convention
on the Establishment of the International Criminal Court. Although these drafts were not destined
to become actual international legal instruments against international terrorism, their merit was that
they served as prototypes for a number of current international conventions on combating terrorism.
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The second half of the twentieth century and the current twenty-first century were a period of
frequent terrorist attacks against governments, states and nations. Acts of international terrorism
were committed by terrorist groups, consisting of individuals – citizens of different states, the activity
of which may be sponsored by a foreign state with regard to the territory of the other country or
by individuals, organizations, and residents outside the territory of the State in which the criminal
activities of the group are committed. High-profile terrorist attacks – the attack on the World Trade
Center skyscrapers in the U.S. in September 2001, the bombings in Spain in March 2004 and the
UK in 2005, numerous terrorist attacks in Russia and in a number of other countries – unfortunately,
become common. In some regions of Kazakhstan in 2011–2012 terrorist acts were committed by
people with Islamist ideology: the Kazakh State has exercised strict actions to disarm, to neutralize
them and the community of the country, mostly professing the canons of traditional Islam, supports
these actions.
Who can be considered as engaging in international terrorism? At the present stage in this
area there are about 500 assorted terrorist organizations, different in size, power and influence.
A considerable part of them are Islamist organizations based in the Near and Middle East. It must
be emphasized that these terrorist groups and organizations generated extremist Islamist ideology
not having anything to do with traditional Islam as one of the world’s religions, and moreover, these
extreme Islamist trends are in opposition to traditional Islam. Although these organizations are not
connected to each other, and do not constitute a single force, nevertheless they constitute phenomena
of international terrorism, which has now become a challenge and a threat to the security of the
entire world community.
Important prerequisites for the eradication of terrorism in general, and international terrorism in
particular, include the stabilization of the economic and political situation in the countries, growth in
the material well-being of citizens, and strengthening of democratic principles and practices in public
and political life. Everything must be done to form a civil society in which the social base of terrorism
will come to naught. Another important prerequisite would be the establishment and strengthening
of democratic traditions, the emergence and establishment of pluralism, of the principle of mutual
tolerance, and a shift from the confrontational approach to the search for a consensus between the
different social and political forces in the society. It is also important that each state has to form a
democratic political system, which would be built on mechanisms of civilized political dialogue and
the removability of governments. It is necessary to adopt such rules, which could not help to appear
the irreconcilable opposition, and help to ensure the legitimate rights and interests of the minority.
Development of high – level political and legal culture in the society, justified penalties for terrorist
activities and their continuous application could contribute to exclusion of terrorism from public life
in each state and from international relations. In this article, we do not address the identification of
the root causes of international terrorism, or the study of all the means to combat it, but we consider
only one aspect of the fight against international terrorism – the improvement of an international
legal framework for combating international terrorism. For that purpose, as lawyers engaged in
international standard-setting and regulatory areas, we have set the task to study the available 16
universal conventions and protocols against terrorism, to identify gaps in the Conventions and to
offer our approaches to improve the articles of these conventions, which would be one of the real
means to strengthen the fight against international terrorism.
These 16 international legal instruments against various manifestations of international terrorism
(13 conventions and 3 protocols) are universal, multilateral instruments adopted under the auspices
and with the assistance of the United Nations. Let us cite as an example the names of some of the
documents: the International Convention for the Suppression of Acts of Nuclear Terrorism of 13 April
2005, the International Convention for the Suppression of the Financing of Terrorism of 9 December
1999, the International Convention for the Suppression of Terrorist Bombings of 15 December 1997,
the Protocol regarding the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed
Platforms Located on the Continental Shelf of 14 October 2005. The rest of the conventions will be
given in the body of this article during the analysis. Another task is to propose conceptually new
international conventions to combat other forms and aspects of international terrorism, to represent
our vision of sections and articles of the respective conventions. In this regard, we would like not
only to name new international anti-terrorist conventions, but also to state the main idea of each
convention, bring the structure of the convention into the form that we see as the most efficient, as
well as enumerate rules that could find their place in the relevant articles. In principle it would be
desirable to stipulate in a summary form in the texts of international universal conventions against
terrorism the most successful legislative experience of participating states on various aspects of
M. A. Sarsembayev
Universal international conventions
Against international terrorism
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counter-terrorism in order to enrich the content of these conventions, as well as in order to allow
other State parties on this basis to improve their anti-terrorism legislation, which in turn could be a
useful means of implementation of the Convention in the territory of the State party. Let us do it on the
example of the Criminal (Penal) code of the Republic of Kazakhstan of 16 July 1997 and some U.S.
laws to combat terrorism (title 18, section 2331
–
2339D), analyzing, comparing and complementing
them. The first step is to say that the legislature of Kazakhstan pursuant to international conventions
on combating terrorism has formulated and put in its Criminal code 11 articles; in the U.S. also
with the aim to implement the same conventions the legislature enacted a number of provisions as
criminal offenses, stipulated in 19 sections totalling 39 pages (http://uscode.house.gov/download/
pls/18C113B.txt).
Usually we would want to pre-suppose that already adopted and existing universal international
conventions, including conventions on the fight against terrorism, have been worked in a professional
manner by experts and specialists of the highest skills. A careful analysis of the texts of international
conventions on counter-terrorism shows that these conventions are really the result of deep thought,
the result of addressing rational opinions and gaining professional experience in the struggle against
terrorism. And further, we would want these texts to be close to perfection. In this regard, we have
to admit that they have some weaknesses, shortcomings that should be eliminated. This approach
could further contribute to the fight against terrorism in the world-wide, in the regional areas and
within the individual country.
It would be desirable to define the concept of international terrorism in one of the universal
international conventions. With a common understanding of this concept it would be easier to
understand the nature of varieties of international terrorism that are fought in a number of other
universal international conventions in the same direction. The criminal legislation of the Republic of
Kazakhstan has no such notion. Working through a new version of the Criminal code of the Republic
of Kazakhstan, scientists and experts offer the following arguable definition of this term: «International
terrorism is the preparation or commission of terrorist acts in the territory of a foreign country in order
to provoke a war or complication of international relations,» which may occur repeatedly, may be
«connected with the use or threat of use of weapons of mass destruction, radioactive materials
(followed by the enumeration of types of terrorist crimes of the international concern), which can
cause «the death of a person committed negligently or other serious consequences”. It is possible
to look at the definition of that concept, which is given in the United States Code (Title 18, Part 1,
Chapter 113B «Terrorism»): «International terrorism” is “activities that involve violent acts or acts
dangerous to human life that are a violation of criminal laws of the United States or of any State,
or that would be criminal violation if committed within the jurisdiction of the United States or of
any State that appear to be intended to intimidate or coerce a civilian population, to influence the
policy of a government by intimidation or coercion, to affect the conduct of a government by mass
destruction, assassination or kidnapping”. Considering the laws of other states, probably we would
find other definitions of «international terrorism» and try to adapt them to the relevant international
conventions on combating terrorism. Although there are more than 130 different definitions of the
term «international terrorism» in the science of international law and legal practice of states, yet it is
advisable to focus on one of the most convincing definitions.
For example, in general, the clearly defined International Convention against the Taking of
Hostages of 17 December 1979 includes a provision on the category of persons who take hostages,
but also involves persons who «attempt to commit an act of hostage-taking.» A similar provision is
contained in paragraph 2 of Article 1 of the Convention for the Suppression of Unlawful Acts against
the Safety of Civil Aviation of 23 September 1971, and paragraph 2 of Article 2 of the International
Convention for the Suppression of Terrorist Bombings of 16 December 1997. While agreeing with
this provision laid down in sub – paragraph «a» of paragraph 2 of Article 1 of the Convention of 18
December 1979, in paragraph 2 of Article 1 of the Convention of 23 September 1971, paragraph
2 of Article 1 of the Convention of 16 December 1997, we would like to supplement it with the
following provisions: «And do not bring their hostage-taking action to its logical conclusion, for
reasons beyond their control (a person who voluntarily refused from further action on hostage –
taking, and takes action to prevent such actions may be exempted from criminal liability)”. Such an
addition to the Convention, in our opinion, is very important. If the United Nations (the Convention
has been developed and adopted under the auspices of the UN) accepts this offer, these regulations
would be almost automatically entered in the criminal and criminal procedural legislation of almost
all countries, which are the official parties of the Convention. In every criminal group, intending to
make hostage-taking, as a rule, there is a «weak link», a member of the group, which at one time or
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another, would «come out of the game.» During the commission of this international crime, such a
person can be easily convinced that the refusal to further participate in the case of hostage-taking
would not release him from criminal liability and therefore he has to go further and can read this in
article 1 of the Convention on the Taking of Hostages.
If the proposed provisions were included in the paragraph of article 1 of the Convention, which
could thereby make a split in the ranks of the hostage-takers, the negotiators from the State will have
an opportunity with the developing situation to cite this paragraph of article 1 of the Convention, and
thus to attract certain members of the criminal group.
By exempting from criminal liability in case of failure to participate in the taking of hostages and
creating possible cooperation with the competent authorities of the State, on the one hand, the
Convention could more clearly define its position on the question of what would happen to those
who seized the hostages, who created for them intolerable conditions dangerous to life and health,
sometimes shooting any innocent people they captured as hostages. In this regard, we would like
to attract to the center of our attention article 2 of the Convention, which states: «Each State Party
shall make the appropriate punishment for the crimes referred to in Article 1, with the grave nature
of these offenses.» We would suggest to add the phrase «up to life imprisonment». The article with
the addition would serve as a convincing deterrent to prevent this kind of dangerous international
crime of terrorism.
In 9 out of 16 universal international conventions and protocols, there is no definition section in
general, and in 7 – there is a definition section, but almost all of them need to be supplemented
by additional corresponding terms. The International Convention against the Taking of Hostages,
for example, has no definition section. Such a section is necessary, first of all, in order to ensure
a common understanding by all participants of the convention of all the major and necessary
concepts and words that are obscure in the text, and most importantly, on this basis, to ensure the
application of the Convention in the real world. Therefore, we propose to introduce a glossary as
a separate article of the Convention under the number 1-a (between articles 1 and 2), which could
include in the text of this Convention the following terms «hostage», «hostage-taking», «person,
hostage», «giving», «legal aid», «criminal jurisdiction «, the content of which would be disclosed
by the relevant definitions. To the existing 6 terms in Article 1 of the International Convention for
the Suppression of Terrorist Bombings, for example, one can add to the text of this Convention the
following terms: «jurisdiction», «criminal jurisdiction», «legal aid», «politics», «giving», «competent
authorities», «international humanitarian law» with their definitions. The International Convention for
the Suppression of the Financing of Terrorism in its composition has also a definition section in article
No. 1, which includes only three of the terms. And in order to quantitatively and qualitatively enrich
this article, we would suggest to add further three terms: «financial institutions» (from Article 18),
the «financing of terrorism», «international humanitarian law» (from Article 21). Here we have twice
indicated the term «international humanitarian law» and we did it with this reason: because some
people understand the term as the law governing the rights of people involved in a military conflict,
others – as human rights in general, and others – as relationships between people in connection
with the delivery of humanitarian goods during a natural or technogenic disaster, and a fourth –
as sending troops for implementation of a humanitarian mission – forcing the enemy to peace.
Therefore, during the development of the text of the Convention it should be worthwhile to define
the term «international humanitarian law» in the definition section as they understand it before it is
used later in the text of the document. Often, the original developers of the draft Convention, citing
a variety of terms in the definition section, forget to define the concept of term inherent in the name
of the document.
So it happened with the Convention on fighting against financing of terrorism, which does not
provide a definition of «terrorism financing». We would like to offer an understanding of the term:
«Financing of terrorism is illegal provision or collection of funds and other property, the right to
property, gift, donations, sponsorship and charity, providing financial services to a particular
individual, a criminal group (terrorist organization) to carry out terrorist activities in order to achieve
the nefarious, criminal purposes». This definition can be supplemented by enumeration of types of
financial means (from the text of section 2339C title 18 of the US Code), which can contribute to
terrorism, «the tangible and intangible assets, currency, bank credits, travelers checks, bank checks,
securities, bonds, notes, letters of credit». In addition, we would like to draw attention of the UN and
the States that the Convention itself, naming means to counter the financing of terrorism primarily
through financial institutions of each state, the term «financial institutions» in the entire text of the
Convention is present only once in Article 18. This raises the question of how the International
Convention for the Suppression of the Financing of Terrorism is going to block the illegal financing of
terrorism with little or no assistance of financial institutions of the States parties.
Universal international conventions
Against international terrorism
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