Guest Post from Xavier Rauscher: The Crime of Terrorism as Customary International Law?

The Special Tribunal for Lebanon’s Appeal Chamber delivered a very important decision (PDF) on Wednesday 16 February 2011 following a request by the Pre-Trial Judge to clarify certain points of law, not least of which the definition of terrorism to be applied.

The decision is 152 pages long, and is incredibly rich and dense over many points of law. We will focus here however on the definition of terrorism, which is subject to much debate, and now a rather daring decision by the Special Tribunal for Lebanon.

Indeed, the Appeals Chamber of the STL, presided by renowned international jurist Antonio Cassese, has declared that the crime of terrorism in peacetime is now part of customary international law, making it – in principle at least – binding on all States.

What is Customary International Law?

For those unfamiliar with the sources of international law, customary international law is considered to be the second most important normative source after international treaties and conventions, and reflects the general practice of States. Just like customs in human society, customary international law is binding to all the members of the international community (States). It is composed of two elements: an objective aspect, that is an identified consistent international practice on the part of States, and a “psychological” element known as opinio juris: the belief that “the practice is rendered obligatory by the existence of a rule of law requiring it” (North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3, para 77).

The STL and the Crime of Terrorism

The Special Tribunal for Lebanon is a special hybrid tribunal set up by the UN Security Council and the Lebanese authorities to judge those responsible for the assassination of former Lebanese Prime Minister Rafik Hariri, considered widely as an act of terrorism. Therefore at the center of its judicial mandate lies the Crime of Terrorism, its raison d’être to quote Wednesday’s decision (§42).

As a hybrid tribunal, the STL is bound by Article 2 of its Statute to apply Lebanese law, including on the definition of terrorism. However, the Tribunal decided that it could, in applying Lebanese law, interpret it in the light of existing international law, whether conventional or customary.

The limits of the Lebanese definition of the Crime of Terrorism

It is Article 314 of the Lebanese Criminal Code that defines the Crime of Terrorism. Article 314 provides:

Terrorist acts are all acts intended to cause a state of terror and committed by means liable to create a public danger such as explosive devices, inflammable materials, toxic or corrosive products and infectious or microbial agents.

From this definition, the Appeals Chamber has identified two elements: i) a specific intent to spread terror, which is commonly found in most definitions of terrorism around the world, and ii) objective elements of using means that are liable to cause a public danger.

It is the second element that poses a problem for the STL and makes the Lebanese law so restrictive: the law and the interpretation that was made of it by Lebanese jurisprudence mean that an act can only be qualified as terrorism if the means used in the act may cause a “public danger” – interpreted as a means which may harm innocent victims who are not specifically targeted. For example, a 1995 decision by a Lebanese court has judged that the assassination of a religious leader was not terrorism because guns, not bombs, were used.

As the Appeals Chamber notes at §54, such an interpretation of article 314 could mean that the assassination of public officials and their families would not qualify as “terrorist” acts if such attacks were carried out with means which are not likely per se to cause a danger to the general population. And, although it is not clearly stated, this could mean that the assassination of Rafik Hariri, even though a bomb was used, would not be qualified as an act of terrorism under Lebanese law should it be considered that the bomb did not pose a danger to the general population. That is, understandably, something of a problem for the STL.

A Way Out: Crimes of Terrorism as Customary International Law

Faced with this unfortunate obstacle, the Tribunal turned to international law for the solution: “[w]e conclude […] that although the Tribunal may not apply those international source of law directly because of clear instruction of Article 2 of the Tribunal’s Statute, it may refer to them to assist in interpreting and apply Lebanese law.” (§62)

After looking at international conventions ratified by Lebanon with directly applicable definitions of terrorism – in particular the 1998 Arab Convention for the Suppression of Terrorism – and finding none, the Tribunal turned to international customary law. It found that, despite the notorious lack of consensus in the international community regarding the Crime of Terrorism, “we are unanimously satisfied that a customary rule of international law has evolved on terrorism in time of peace” (STL President Antonio Casseses speech, p. 7).

Sparing you the legal details of the reasoning (which will be discussed in a longer upcoming post over at The International Jurist), the Appeals Chamber found that this customary crime of terrorism in times of peace is constituted by:

  1. the perpetration of a criminal act or the threat of such act;
  2. the intent to spread fear among the population or to coerce a national or international authority to take some action or to refrain from taking it;
  3. a transnational element – that is, an international character.

Invoking the fact that the list of means in the Lebanese Criminal Code is illustrative and not exhaustive, and that the unique gravity and transnational dimension of the facts the Tribunal is considering (Cassese speech, 11), the STL has decided it would interpret and apply Lebanese law with these customary elements in mind.

Legacy and Controversy

This is very interesting on many aspects, but most importantly  because it is the first time that an international (albeit hybrid) court has made such a clear-cut decision on the issue of terrorism. What is more, they suggest evidence of international customary law, specifying the customary elements of the crime, which would be binding to all States.

It remains to be seen what legacy this decision will have. Simply put: will it stick? Only time will tell just how much an impact this interlocutory decision will have, and controversy among lawyers and jurists over the reasoning and procedures behind the decision has already erupted (see Marko Milanovic’s great post over at EJIL: Talk! and the discussion in the comments section, as well as Dov Jacobs’ post at his blog Spreading the Jam if you’re interested in deeper legal discussion).

As for me, I intend to publish my own more legalistic take on this recent development over at The International Jurist in the next few days.

Xavier Rauscher is a recent LLM graduate who specializes in international law with a focus on international counter-terrorism. He regularly blogs at The International Jurist, and you can follow him on Twitter @xrauscher_

Towards a revolution in Algeria?

Over at Foreign Policy’s Middle East Channel, I have a new piece up looking at the prospects for mass protests and possibly revolt in Algeria. You can read it for yourself here, or check it out below:

While press coverage of the Middle East and North Africa has spent the past month focused on Tunisia and Egypt, Algerian opposition groups calling for mass protests on February 12 have stirred speculation that their country, now set to be the largest in Africa (given South Sudan’s recent vote for seccession), may be the next domino to fall. Yet while Algeria is beset by many of the same problems of unemployment, corruption and governance facing its North African neighbors, a true mass revolt in the country remains unlikely – but far from impossible.

Algeria witnessed a massive wave of protests in early January that spread to 20 out of the country’s 48 wilayas (provinces), and continues to see successful or attempted self-immolation from disaffected men in the capital Algiers and elsewhere. While the ostensible cause for the protests was a hike in the price of basic staples, such as sugar and cooking oil, the anger unleashed by the protests, albeit briefly, and the subsequent movements of both Algeria’s government and its opposition groups indicate a much deeper anger over the country’s political and social condition.

In response to the earlier violence and demands of civil society groups, Algerian President Abdelaziz Bouteflika, who has been in power since 1999 and amended the constitution in 2009 to be able to run for a third term, announced last week that he would lift “in the very near future” the state of emergency that has governed Algeria since 1992, when the military canceled free elections and a brutal civil war broke out. Bouteflika also promised moves to lower the prices of staple goods and provide government help in housing and job creation.

These half-measures changed little; opposition groups calling for major protests on February 12 were unmoved, demanding the actual end to the state of emergency and greater press freedoms, if not the outright removal of Bouteflika from office. Even with the state of emergency lifted, a 2001 law that sprang from the deadly “Black Spring” riots prevents marches of any sort in Algiers, and Bouteflika indicated that a new anti-terrorism law would replace the state of emergency, signifying that little will change in terms of police powers or Algerian human rights even if this relic of a darker time disappears. The government on February 7 dutifully announced the continued ban on marches in the city, but the group planning the rally, the National Coordination for Change and Democracy (CNCD in French), refused to cancel, setting the stage for a possible conflict between massed protesters and armed riot police.

There are numerous factors counting against such a conflict. Some observers are discounting the possibility that Algeria could become the “next Tunisia” or “next Egypt,” and not without reason. For one, while Algeria has fairly high literacy, press readership, and a proliferation of civil organizations (though these latter organizations exert little actual influence), its political parties are weak, worn down by civil war just after Algeria’s brief flirtation with opening the party system in 1989 and the legacy and inertia of one party-rule before that, under the Front de Libération Nationale (FLN).

Moreover, not only are Algeria’s opposition parties mostly impotent, but they are unpopular and divided as well. While the CNCD is an amalgam of several parties and associations, it’s most significant component party, the Rassemblement pour la Culture et la Démocratie (RCD), headed by Said Sadi, controls a mere 19 seats out of 389 in Algeria’s lower house of parliament, and that from an election that garnered just under 37% turnout – the lowest ever in Algeria. Despite his attempts to take the reigns of a new protest movement, Sadi’s proposed rally on January 22 failed to draw large crowds, and was broken up easily, if harshly, though without the death tolls seen in Egypt or Tunisia. Sadi’s legitimacy as a mass political leader is also undermined by his well-known closeness to the head of Algeria’s military intelligence service, Gen. Mohamed “Tewfik” Mediene, Bouteflika’s main rival and head of one of the “clans” constantly competing for power and economic influence in Algeria.

Nor do Algeria’s opposition parties play well together; the rival Front des Forces Socialistes (FFS) party (both the FFS and RCD draw support from Algeria’s Kabylia region), while calling for reform and democracy in Algeria, has chosen not to participate in the CNCD, and will instead hold its own rally on February 12.

And even if the February 12 march goes ahead as planned, the Algerian internal security forces will be ready, with a reported 20,000 men and quite a bit of experience disrupting riots.

Still, one cannot discount the possibility of something more serious occurring if marchers pour into Algeria’s streets. For all of the divisions among Algeria’s opposition, its ruling classes fare little better. Various “clans” headed by Bouteflika, Mediene and others compete for influence, and the current unrest may lead to a re-shuffling of Algeria’s cabinet, and with it a possible shakeup in the search for a successor to the aging and unhealthy Bouteflika. Amidst all of this turmoil and closed-doors jockeying for position, it is difficult to say how the army and DRS, shaken in the past year by scandal and a murder that raised public attention to corruption and the army’s role in the country’s economy, will react to any mass public protests.

But more broadly, analysts cannot ignore the slow but ineluctable degradation of the way of life for average Algerians. Algeria expert Hugh Roberts recently noted how the failure of Algerian political institutions to provide solutions for its people, let alone services, has created a worsening culture of rioting in the country, often the only way to bring government attention to bear on pressing problems. He writes: “The greater part of Algerian society has been in a permanent state of moral revolt against the regime for the last four or five years…Since 2005, scarcely a fortnight has gone by without a riot somewhere in the country.”

In the past and last month, the Algerian government has attempted to paper over problems, deploying some of its nearly $150 billion in foreign currency reserves and applying political pressure to ease prices on basic goods. But in the absence of genuine solutions to Algeria’s problems, be they housing shortages, price hikes, corruption, or dependence on oil revenue, the protests will continue in one form or another. And as groups continue slowly to join the protest movement, strikes and riots continue to break out across the country, young men desperately flee across the Mediterranean, and Algerians continue to try to burn themselves in the streets, no one can predict what may happen.

A cartoon that recently appeared in the Algerian daily El-Watan summed up the situation nicely. It depicts a can of gas spilling out into the shape of Algeria, with several unlit matches lying next to a matchbook near the flammable liquid. The caption reads “Algeria today” – placid, but with the possibility of an explosion always lurking nearby.

Review of Manuel R. Torres Soriano’s “The Road to Media Jihad- The Propaganda Actions of al-Qaeda in the Islamic Maghreb”

The most recent issue of Terrorism and Political Violence was released in January. As usual, it had an excellent collection of articles. In particular interest to me was the one written by Manuel R. Torres Soriano “The Road to Media Jihad- The Propaganda Actions of al-Qaeda in the Islamic Maghreb.” I thought it would be worthwhile to discuss it briefly since it somewhat dovetails with the spirit of this website.

Soriano provides a descriptive analysis of Groupe Salafiste pour la Prédication et le Combat (GSPC) and al-Qaeda in the Islamic Maghreb’s (AQIM) media strategy from 1998-2009. This article fills an important lacuna in the literature since many in the Anglosphere have not focused much on GSPC and AQIM. As such, it provides a solid foundation for future researchers to build off of it. One can divide GSPC/AQIM’s media output into three phases: (1) under the leadership of Hassan Hattab and Nabil Sahraoui following the break from Groupe Islamique Armé (GIA), 1998-2004; (2) under the leadership of Abdelmalek Droukdal prior to the merger with al-Qaeda, 2004-2007; and (3) post-merger with al-Qaeda 2007-2009.

Soriano adroitly points out that following the GSPC split from the Groupe Islamique Armé (GIA), unlike the GIA who were producing a lot of materials through its networks in Europe, the GSPC did not sustain these efforts. This was because Hattab was more interested in consolidating leadership and acknowledging the break with the GIA due to its very toxic actions in the latter half of the Algerian civil war. Therefore, the media component of the organization was not important to him. The GSPC’s first media output was in 1999 when they released a poor quality VHS tape that showed an ambush of Algerian soldiers. In 2003, Hattab was removed as the leader and the reigns were given over to Sahraoui who was only in charge of the group for a short period (September 2003-June 2004). Sahraoui was more concerned with stemming fitnah (discord) within GSPC than building up a media arm.

The second phase of GSPC/AQIM’s media endeavors began with the ascension of Abdelmalek Droukdal as the amir (leader) of GSPC. According to Soriano, “[he] accorded to the Propaganda Actions of Al Qaeda in the Islamic Maghreb group’s propaganda actions. The organisation’s new head had a much more ambitious vision of the role of communication within the overall group strategy.” At first, Soriano points out that the media operation did not change much due to lack of skilled individuals. That said, in October 2004, GSPC created its first website jihad-algeria.net. There was a huge gap between these efforts and the explosion of Abu Mus’ab al-Zarqawi’s, amir of al-Qaeda in Iraq (AQI) at the time, online presence during the same time period. Soriano points out a plea online from Abu Yasser Sayyaf, GSPC’s web-master, for any type of help, such as, uploading content and using different programs, which shows how far behind GSPC was technologically. Further proof of this amateurism was GSPC’s second video release “Apostate Hell,” released in September 2004. The video was only three minutes long and due to its lack of know-how, the watermark of the software they used, Honestech, was glossed over the video. Sayyaf’s excuse for this dismal media output as well as others in video and audio form was due to their remote locations in the mountains of Algeria.

Soriano notes that 84% of GSPC/AQIM’s releases have been written communiqués and 85% of those have been less than two pages. Unlike other groups that wrote long doctrinal texts of their aqidah (creed) GSPC did not have much religious legitimacy or heavyweights in their group especially since traditional Muslim clerics like Yusuf al-Qardawi, Salmon al-Awdah and Safir al-Hawali produced fatawa (legal rulings) delegitimizing the jihad in Algeria. Furthermore, as a result of the wars in Afghanistan and Iraq where there were actual “crusader” militaries those conflicts took the limelight away from the Algerian theater. One example Soriano provides is the lack of excitement over GSPC’s creation of an online magazine al-Jama’a (the group) attempting to follow the model of the successful Sawt al-Jihad (voice of jihad) magazine produced by al-Qaeda in the Arabian Peninsula (AQAP) that at the time was strictly in Saudi Arabia and had yet to merge with al-Qaeda in Yemen, which occurred in January 2009. al-Jama’a was not highlighted by the key online jihadist websites. Soriano also points out that its biggest deterring factor was because the magazine mainly focused on Algerian issues versus the international problems of the ummah (Islamic nation) and other theaters of jihad.

Another issue was with the credibility of the messaging from GSPC. Sometimes the forums published content that purported to be GSPC propaganda that actually was not directly from GSPC’s media wing. Soriano expanded upon this by stating: “A lack of coordination and the problems of communication between the different cells, the lack of authority exercised over certain elements that had split from the group or ‘‘orbited’’ around it, and the repercussions of the ‘black propaganda’ waged by the Algerian intelligence services forced the group to issue public denials of the authenticity of content broadcast in its name on several occasions.” As such, although GSPC’s efforts during the second phase to broaden its media apparatus allowed it to release more content than in the first phase, they still ran into a lot of difficulties along the way.

GSPC’s media fortunes began to turn around when al-Qaeda central (AQC) officially announced a merger with GSPC and they became AQIM. Immediately, AQIM’s media apparatus produced more content with better quality. Soriano attributes this change to AQIM following AQC’s model of “untiring” media output. Another key factor was the influence of AQI. Soriano also surmises that more media production could have been compulsory for GSPC if it were to merge with AQC as an official branch. That said, the steep upward tick in production value might have also to do with AQIM outsourcing its media production to Europe similar to GIA in the 1990s since the above examples I am unsure completely explain the huge change in a relatively short period of time. Lastly Soriano says that it was also a way for leadership to assert its power over some dissention that was going through the ranks that were not consulted and were also against the merger with AQC.

Furthermore, AQIM started to cultivate relations with top online jihadist fora to release their content as well as the jihadist distribution company al-Fajr (dawn) Media. Nevertheless, AQIM was still plagued with issues of unauthorized messages being released under its name. As a remedy, in October 2009, AQIM created al-Andalus Institute for Media Production to better authenticate their content so individuals couldn’t post information that wasn’t directly from AQIM. Soriano concludes the article by drawing a comparison between AQIM and AQC when they created their own media production apparatus As-Sahab (clouds) Institute for Media Production, also as a way to breathe new life in their media efforts and communications strategy.

This article provided important descriptive insight into the nature of GSPC/AQIM’s media strategy between 1998-2009. There are some areas, though, where further research could build off of this by either Soriano or another researcher. To go a step further, it would be worthwhile for one to look deeper into the content produced by AQIM and provide a textual analysis of their variety of communications over the years. Another interesting project might also try and compare descriptive analyses of the media histories of AQC, AQAP and AQI and determine whether there are any tipping points for each groups emergence as a larger player in the jihad field as well as other metrics that could help researchers and governmental officials measure the importance or impact of a rising or fading jihadist organization. That said, overall, Soriano’s article “The Road to Media Jihad- The Propaganda Actions of al-Qaeda in the Islamic Maghreb” is an excellent first step in developing more empirical research as it relates to the media jihad and further detail of AQIM in the English speaking world.

Quick notes on a kidnapping

My apologies for the long blog absence, work and a clear inability to write after 8 pm have been intervening. However, this will change, oh ye faithful al-Wasat readers who for some reason keep checking the site.

On Thursday Wednesday news broke that a 56 year-old Italian woman, a tourist traveling in the Southern Algerian Sahara about 130 km south of Djanet, had been kidnapped by 14 or 15 (reports differ) armed men along with her guide and cook (who were later released). The kidnappers let their victim use their Thuraya satellite phone to dial her tourist company, which then alerted the relevant authorities. They then proceeded to hustle away from the scene of the kidnapping, sources indicate towards the border with Niger, according to AFP.

A few important points about this kidnapping, which has, unsurprisingly, gotten more extensive coverage in the francophone press than the anglophone:

1) This is the first kidnapping in the Algerian desert since 2003, when the GSPC conducted a series of kidnappings that ultimately netted them 32 hostages and $5 million (oh, how times have changed). This is an important change, given the relative success Algerian security forces have had pushing kidnappers and militant groups (including AQIM) south and over the border into Mali, Mauritania and Niger to a lesser extent. However, despite the recent improvements in coordination and especially the establishment of the joint-Sahelian military command at Tamanrasset, this part of the world is sparsely-populated and nearly impossible to police. Moreover, this kidnapping doesn’t necessarily signal a recrudescence of kidnapping and militant activity in Southern Algeria, because…

2) Early reports indicate the kidnappers were cigarette or drug smugglers, not AQIM. This is not entirely surprising, given that the kidnapping industry in the Sahara and Sahel have never been a solely AQIM or GSPC-driven phenomenon, and the security improvements in the region have not and will not likely ever be able to stamp out the centuries-old and well-entrenched smuggling networks that criss-cross the region. Several past kidnappings have involved the use of subcontractors or unaffiliated groups who conduct kidnappings and then sell their victims to AQIM for a cut of the fee.If the victim ends up in the hands of AQIM (and I sincerely hope she doesn’t), we will have once again witnessed this process at work.

[UPDATE: The Algerian daily El-Watan has two new pieces on the kidnapping (here and here) indicating that, according to locals and the tourist’s guide, the kidnappers were AQIM (see Priffe’s comment below). According to these reports, one kidnapper, his face uncovered, spoke to the tour guide in Mauritanian Arabic, and when asked who they were, said, “We are from Al Qaeda in the Islamic Maghreb). The reports also raise the question of an inside job, since according to El-Watan this part of Algeria is very secure. I had separately heard reports that the tourist was outside the “safe zone” so if the readers have any illuminating comments, please share.

However, regardless of who conducted the kidnapping, the tour operators in the region are rightly worried that the expansion of kidnappings will cut off even the trickle of tourists coming to southern Algeria, and at least one thinks ransom payments are to blame (also the Algerian government’s official position). To quote: “As long as countries continue to pay ransoms to terrorists and all kinds of bandits, there will always be hostage takings…It has become the most prized commerce in Northern Mali and Niger, whose populations, we should remember, live between the northern part of Algeria and the south, where governments do not have the means (or do not want) to attack the plague of insecurity.”

3) The Italian government reacted swiftly to the kidnapping, but not in a way France, the United States or Algeria will like. In a public announcement, the Italian Minister of Foreign Affairs said (my translation), “We have asked the Algerian interlocutors to not take any action that could endanger the security of the Italian citizen.”This is a pretty clear “no rescue” statement, and unless Nigerien security forces manage to track down these kidnappers, it means we are likely to move towards a long process of hostage negotiations and potentially an eventual ransom payment. Italian authorities claim the release of the last Italian hostages kidnapped in the region in 2009 came about due to “complex political and diplomatic negotiations,” but no one knows whether or not a ransom of some variety (money or prisoners) was worked out in secret.

This most recent incident raises once more the difficult question of how to react to and prevent kidnappings in the region, one goes beyond the simple dichotomy of ransoms vs. rescues that Alex Thurston has now dealt with quite admirably here and here, posts that deserve both a careful read and a lengthier response than I can give here.  Suffice it to say for the moment that this kidnapping shows once again that such crimes are an industry in the region, one that co-exists alongside cigarette smuggling, drug smuggling, human smuggling and other forms of nefarious money-making. And as long as such activities can draw in money and regional forces cannot secure these vast areas (a truly Herculean task) such kidnappings will continue, albeit at a reduced rate as tourism in the region drops and Western organizations pull their citizens out of the region.

I will keep an eye on the news as this story develops, and post news and corrections as more information emerges.

Follow

Get every new post delivered to your Inbox.

Join 408 other followers