Newton & Scharf: Terrorism and Crimes Against Humanity

Michael A. Newton (Vanderbilt Univ. - Law) & Michael P. Scharf (Case Western Reserve Univ. - Law) have posted Terrorism and Crimes Against Humanity (in Forging a Convention for Crimes Against Humanity, Leila Nadya Sadat ed., 2011). Here's the abstract:

The Crimes Against Humanity convention project was conceived to provide a gap-filling convention in the pantheon of international agreements regulating atrocity crimes, and this commissioned chapter addresses the debate whether terrorist crimes should be characterized within the overall rubric of crimes against humanity. The authors can imagine some theoretical advantages to characterizing some incidents of terrorism as a new discrete crime against humanity. For example, this would create universal jurisdiction (and trigger a duty to prosecute or extradite) at the national level with respect to terrorist acts that are not presently covered by the laws of war or one of the dozen multilateral antiterrorism conventions in peacetime. It would also create uniformity of jurisdiction and prosecutorial obligation with regard to any States that have ratified the Proposed Crimes Against Humanity Convention to supplement the likelihood of prosecution when domestic prosecution under existing statute or extradition to another State are legally or politically unfeasible. There are, nevertheless, no compelling values served by deeming terrorism as a crime against humanity through the vehicle of a new Convention. Indeed, in the opinion of the authors, the creation of a wholly new specified offense under the rubric of crimes against humanity is inadvisable for several reasons. First, most widespread terrorist acts are already covered by the laws of war or would constitute the existing crime against humanity of murder, without having to address the thorny definitional question of what is terrorism. There are no lacunae that can be constructively addressed. As a matter of qualitative jurisprudence, terrorist offenses are on substantive par with the grave breaches provisions of the 1949 Geneva Conventions, the 1948 Genocide Convention, and the provisions of the Torture Convention; the same aut dedere aut punire obligation that applies to grave breaches, genocide, and torture also applies to terrorism covered by the international conventions. Second, the determination of whether an alleged act short of mass murder (such as systematic kidnappings by a terrorist group) qualifies as a particular crime within the established array of crimes against humanity is best handled as a judicial determination made on a case-by-case basis, taking into account the nature of the alleged act, the context in which it took place, the personal circumstances of the victims, and the physical, mental, and moral effects of the perpetrator’s conduct upon the victims. Finally, the effort to achieve international consensus on the inclusion of a specific crime against humanity of “terrorism” would introduce a whole new level of uncertainty and politicization into the existing legal structures and definitions.