Terrorism As A Crime Against Humanity

AUTHOR Haydar KARAMAN

November 2012

TERRORISM AS A CRIME AGAINST HUMANITY

“No man is an island entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as a manor of thy friends or of thine own were; any man's death diminishes me, because I am involved in mankind. And therefore never send to know for whom the bell tolls; it tolls for thee.” John Donne

1.) INTRODUCTION 11 September 2001 is the most brutal day in the history of suicide terrorism. The image of the World Trade Center (WTC) collapsing on 11 September has left an indelible mark on the century (Dimitrijevic 2005, cited in Bergsmo 2005, p.603). There was helpless amazement at the whole scale of the attack. However, there was also recognition of the profound vulnerability of states and humanity to the reckless result of terrorism, which is a consequence of the deplorable humanity of the world. The Al-Qaeda form of terrorism focuses on visions of an apocalypse and mass casualties. People are convinced that Islam is supporting to “hijack” terrorism. However, the Al-Qaeda attacks are the actions of religious usurpers who are bent on misrepresenting Islam. Thus the Western World equates Muslims with terrorists. This delusive characterization has had a huge repercussion in the Muslim world and created anger. The 11 September attacks have changed everything throughout the world. These catastrophic attacks have confirmed the weakness of international law jurisdiction on terrorist attacks. The climate of intellectual discussions has spun around on the axis of terrorism in the context of crimes against humanity. This polemical discussion focuses on the following: Were the 11 September 2001 attacks on the US crimes against humanity or not? 2

I have examined the characteristic features of the 11 September 2001 attacks under the normative framework of international jurisdiction. This paper sets out to analyse whether the 11 September 2001 attacks are the subject matter of crimes against humanity based upon subjective elements. In order to properly analyse these matters, this article begins by looking at the theoretical bases of the criminalization of terrorism under international law.

The characteristic features of the 11 September attacks will be handled first. The article will then go on to examine the objective and subjective elements of crimes against humanity in the case of the 11 September attack. The elements will be divided into objective and subjective elements. These subsets of elements of crime will be organized in the following way: in the first place the objective element will be examined; then the subjective elements will be analysed according to their interrelated parts. The first part will deal with mens rea and knowledge, the second part will lay out the nexus between armed conflict and that directed against any civilian population, the third part will review a state or group policy and the last one will investigate the systematic or widespread character of the 11 September attacks. Finally, in the concluding chapter the 11 September attacks will be assessed in terms of crimes against humanity.

2.) THEORETICAL BASES OF CRIMES AGAINST HUMANITY The idea of a crime against humanity is peculiar to the twentieth century. After WW2, the notion of a crime against humanity was introduced as a concept by the Nuremberg Tribunals and Tokyo Military Tribunals (Ratner and Abrams 1997, p.187). For an act to be identified as a crime against humanity, the act should be very barbarous and should be directed against any social group, in a sense the whole of humanity. In the 1990s, these crimes were perpetrated on innocent 3

people through the ethnic cleaning campaign in former Yugoslavia (Kittichaisaree 2002, p.120). Those who carried out the murders have been charged with committing crimes against humanity.

The four distinct attacks were perpetrated against the citizens of the United States by the AlQaeda network in 11 September 2001. In the following days, the content of the international law was opened to discussion as to whether the terrorists should be charged with crimes against humanity. Unfortunately, the international community was not able to prosecute the terrorists by charging them with crimes against humanity. As can be seen in the international statutes, international law does not have any definition by which to hold a trial in the terrorism is charged with a crime against humanity. Ironically, with regard to one jus cogens norm, nullum crimen sine lege, a person should not be prosecuted for something that either was not a crime or could not be known to be a crime at the time the defendant acted (Hart 1997, pp.214-231). For this reason, the content of the crime against humanity has become a matter of dispute.

According to Cassese (2001, pp.993-995), the terrorist attack of 11 September had catastrophic effects and not only on psychological and political levels. It is also demolished the fabric of international law. It overthrew some essential legal categories and has forced us to reconsider this concept. Although terrorism is not recognized as a crime by criminal statutes, some authors have defend the inclusion of terrorism and argued it should be investigated under ICC jurisdiction. Since the core values of humanity are so tenuous, they should be protected by the whole world (Akvahan 2003, cited in Bergsmo, p.3).

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Di Filippo (2008, p.13) claimed that international terrorist acts are among the crimina iuris gentium and, prima facie, various crimes which are terrorist acts, for instance murder and hijacking, fall under the heading of crimes against humanity. Thus the only way to make sense of the jus cogens norms is for international law to investigate terrorism under the heading of crimes against humanity. Concerning this point, Bassiouni (1996, p.69) emphasized the fact that the jus cogens norms recognize that terrorism is definitely an international crime, since international terrorism falls under crimina iuris gentium due to terrorism causing moral outrage which shocks the conscience of humanity as a whole (May 2005, p.83).

For this reason, acts of terrorism are, beyond doubt, crimes against humanity. In particular, some of the evidence will be useful for supporting and conducting an analysis to determine that the 11 September attacks are crimes against humanity

3.) CHARACTERISTIC FEATURES OF THE 11 SEPTEMBER ATTACKS AS ACTS OF TERRORISM On 11 September, four coordinated attacks were committed on the same day against citizens of the United States by the Al-Qaeda network. Two hijacked airplanes full of civilians crashed into the Twin Towers of the WTC in New York. Another hijacked airplane full of civilians crashed into the Pentagon in Washington, D.C. The last attack was aborted before it reached its destination in Washington, D.C. The results were devastating: there were over 3,000 confirmed deaths associated with the WTC explosions and the confirmed deaths of all the crew and passengers on board the four hijacked planes (Proulx 2004, p.136).

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Terrorism was defined by Schmid (1992, p.8) as anxiety-inspiring methods applied for political, criminal or idiosyncratic reasons. Moreover, Dimitrijevic (2003, cited in Bergsmo 2003, p.603) mentioned that these reasons involve targeting a population’s symbolic pattern. The attacks convey messages to the societies involved; they are the target of terror. In addition, terrorism is based on the expectation of media attention, which often promotes greater public visibility for such groups and contributes to a collective social fear (Bassiouni 2002, p.86). The attacks of 11 September 2001 were an example of the above-mentioned. The deeply rooted attacks were orchestrated by Al Qaeda and hinged upon ideological and philosophical motivation. Therefore, a deep collective feeling of paranoia and anxiety marked the following months (Proulx 2004, p.1039).

Other important criterion in terrorism which must be examined is the modus operandi. Terrorist groups utilize tactics aimed to create terror among civilians and public authorities, while ordinary criminal groups normally only use violent methods against those who directly restrict their activities. Therefore, terrorists often seek to strike at single targets with a symbolic value at publicly frequented places, and this possibly involves innocent victims. Thus 11 September ipso facto amounts to terrorism (Proulx 2004, p.1035).

4.) ELEMENTS OF THE 11 SEPTEMBER ATTACKS AS CRIMES AGAINST HUMANITY The Statute of the ICC does not contain any separate provision for the specific crime of terrorism. Prior to the terrorist attacks in the United States of America on 11 September 2001, the international community as such had no common definition for a crime of terrorism (Greve 6

2003, cited in Bergsmo 2003, p.104). The acts of 11 September may amount to crimes against humanity when they meet the special requirements of crime (Badar 2004, p.122). Having examined and evaluated the general requirements for the 11 September attacks to be considered crimes against humanity, the following chapters will examine the case of 11 September according to the objective and subjective elements of terrorism as a crime against humanity.

5.) OBJECTIVE ELEMENT OR THE ACTUS REUS OF TERRORISM Under the Rome Statute, the actus reus requirement of any crime against humanity is fairly straightforward. The actus reus ingredients make up the general principles required for ICC jurisdiction. Kittichaisaree (2002, pp.90-91) summarized what consitutes actus reus: “...an attack that is inhumane in nature and character, causing great suffering, or serious injury to body or mental or physical health. Furthermore, the inhumane act must be committed as part of a widespread or systematic attack against members of a civilian population...”

A preliminary question about the actus reus of the crime of terrorism is not provided by any statute. However, the crime of terrorism should be criminalized only in connection with another crime within the jurisdiction of ICC statutes. Held (2002, p.77) pointed out that murder is an element of Article 7 of the Rome Statute. Thus the perpetrators of terrorist acts could be prosecuted for committing the crime of murder in the case of the 11 September attacks. As mentioned above, 3000 people died in these attacks, which create a nexus with the crime of murder and terrorism.

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6.) SUBJECTIVE ELEMENTS OF TERRORISM AS A CRIME AGAINST HUMANITY A-) FIRST ELEMENT: MENS REA AND KNOWLEDGE In order to transform a crime into a crime against humanity, the perpetrator could know all of the elements of the crime and he or she should have acted with mens rea. From this point forth, due to the nature of terrorist acts, these acts could be assumed to be crimes against humanity. Akvahan (2003, cited in Bergsmo 2003, p.13) stated that the concept of mens rea was pointed out in the ICTY and ICTR statutes. Furthermore, Article 7 of the ICC Statute requires that the accused has to have “knowledge of attack”. He or she should have been ordered to carry out the act with the knowledge that it was a crime against humanity (May 2005, p.128). As indicated by the Kupreskic case (IT-95-16, para. 56-57), such knowledge constitutes a crime against humanity: “...The requires mens rea for crimes against humanity appears to be comprised by the intent to commit the underlying ordinary crime of murder, rape, etc. combined with knowledge of the broader context in which that offence occurs...” (Kupreskic, para 56-57) In addition, in the Tadic case (IT-94-1-T, para. 648) and Akeyesu case (ICTR-96-4-T, para. 579), the analysis showed that it must be proved that the crimes were related to an attack on a civilian population, and that the accused had to know that his crimes were so related. Moreover, the fact that the alleged attack was perpetrated on such a basis and pursuant to such a policy or plan is sufficient to knowingly taking the risk of participating in the causing of damage or harm (Proulx

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2004, p.1061). If we consider the 11 September attacks, the Al Qaeda knew what the results of their terrorist acts would be.

For instance, before the Al Qaeda network took responsibility for hijacking four planes and crashing three of them into the WTC and the Pentagon, the "attack" element of Article 7 is easily met. We can consider that after the United States’ invasion in Somalia, the United States Embassy was bombed. This was not part of an isolated account or episode (Proulx 2004, p.1067). In his video, Bin Laden answered the question of “What can the US expect from you now?”: “...The American forces might expect anything from me. Muslims are angry. The Americans should expect reactions from the Muslim world that are proportionate to the injustice they inflict...” (The Times 1999)

Furthermore, the Al Qaeda's leader, Osama bin Laden, orchestrated these attacks. Moreover, he demonstrated mens rea for myriad terrorist activities which were intended to provoke terror. Bin Laden calculated in advance the casualties as a result of the destruction related to the 11 September attack. In his video tape, he declared: “...We calculated in advance the number of casualties from the enemy, who would be killed based on the position of the tower. We calculated that the floors that would be hit would be three or four floors...” (CNN 2001, Arnett)

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7.) SECOND ELEMENT: NEXUS BETWEEN ARMED CONFLICT AND THAT DIRECTED AGAINST A CIVILIAN POPULATION The Nuremberg Tribunal defined crimes against humanity as effectively a sub-set of war crimes. The ICTY’s definition of crimes against humanity differed from all those of its predecessors, in spite of the fact that the ICTY Statute defined a crime against humanity as follows: “...The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population...” (Barker 2006, p.224)

If we uphold that a crime against humanity could only be committed in armed conflict and could only be directed by military personnel, we should consider that it have emphasized that only terrorist acts such as crashing a civilian aircraft into the Pentagon could amount to a crime against humanity, when this act was part of widespread and systematic attacks. Some other authors have considered that the acts should be carried out in armed conflict to be defined as crimes against humanity (Cassese 2003, p.128).

However, the ICTY trial chamber said that the requirement of a connection to war has now been replaced by the requirement that the act be “directed against any civilian population”. In the Tadic case (IT-94-1-T) the trial chamber was guiding the population element and they stated that crimes against humanity do not require a connection to international armed conflict and may not require a connection to any conflict at all (Mettraux 2002, pp.245-249). Neither the ICTY Statute nor the ICC Statute contains any requirement for establishing a connection between the crime 10

against humanity and armed conflict. Von Schorlemer (2003, p.273) pointed out that the fact crimes against humanity can be committed outside of armed conflict is relevant the prosecution of this sort of attack.

A crime against humanity is defined by under the Rome Statute; Article 7 of the Rome Statute requires that a physical attack be perpetrated. In addition, Article 7(2)(a) defines the term "attack directed against any civilian population", pursuant to or in furtherance of state or organizational policy to commit such an attack (Drumbl 2002, p.337).

At this junction, Al Qaeda did not consider who were civilians or who were not civilians when they attacked the WTC. Bin Laden acknowledged in his interview in May 1998 with John Miller that: “...We do not differentiate between those dressed in military uniforms and civilians; they are all targets in this fatwa...” (ABC News, Weiner 1998)

Herein, these attacks were against a civilian population. The WTC was the heart of economic activity for the United States and the entire world, and it did not house any active military personnel. Even so, the attack on the Pentagon, the military headquarters for the United States, does not mean this element is satisfied, because a civilian population includes any member of the armed forces who lays down his or her weapons (Fry 2002, p.191). In Bin Laden's fatwa dated 23 February 1998, he ordered all Muslims to: “...kill the Americans and their allies wherever and whenever they find...” (Federation of American Scientists 1998)

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8.) THIRD ELEMENT: STATE OR GROUP POLICY The ICTY, as well as the Rome Statute, declared that a state or other group policy is another main element of a crime against humanity. This element is said to be implied by the ICTY Statute’s stipulation that crimes against humanity must be “directed at” a civilian population. For the attack to be directed at such a population there must be some group policy or plan to this effect. The ICTY’s trial chamber illustrated this point by declaring that the act must not be merely a random one; “that here must be some form of policy to commit these acts”.

Turning now to the other point with respect to the policy element, the ICTY contended that the policy necessary to raise an individual crime to the level of a crime against humanity “need not be the policy of a state”. Organized criminal groups and people de facto may also perpetrate the kind of systematic or mass violation of human rights covered by the article (May 2005, p.122).

Al-Qaeda advocated a policy based on the notion of jihad. Cook (2005, p.10) stated that the jihad meaning could be defined as conquering and dominating non-Muslims. This is identified in the Holy Quran as follows: “Fight those among the People of the Book [Jews and Christians] who do not believe in God and the Last day, do not forbid what God and His Apostle have forbidden, and do not profess the true religion [Islam] until they pay the polltax out of hand and submissively.” (Noble Quran-Sura, 9:29, p.248)

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Many other factors would tend to corroborate the fact these actions fit the description of crimes against humanity. For instance, the Blaskic case ( IT-95-14-T, para 204) indicated that the courts should consider media propaganda as evidence of the "systematic" character of an attack. In this sense, Osama bin Laden and Al Qaeda released several videotapes to the media in which Osama bin Laden claimed responsibility for the attacks and acknowledged the acts.

In fact, I would like to emphasize the other element of the policy, namely that the "discriminatory intent element" is essential in that it was integrally transposed into the Rome Statute, along with the policy or plan element. In fact, under Article 7(1)(h) of the Rome Statute it says that a crime against humanity should be directed at "any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender” (Barker 2004, p.246).

Therefore, Al-Qaeda perpetrated their acts of terrorism with the intent of discrimination. It is also widely known that Al-Qaeda waged war, or jihad, against the “infidels” of the Western World, especially against "infidel Americans” (Proulx 2004, p.1039). These facts demonstrate that the events of 11 September did not form part of an isolated account or episode. These acts are largely part of extended systematic attacks (Proulx 2004, pp.1037-1067). Al Qaeda performed their acts as a form of jihad to the non-Muslim community in the case of the USA: “...We declared jihad against the US government, because the US government is unjust, criminal and tyrannical. It has committed acts that are extremely unjust, hideous and criminal whether directly or through its support of the Israeli occupation on Holy land-Palestine...” (Arnett 1997)

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Bin Laden not only admitted that he knew about the attacks. He also admitted that they opted for terrorism as a group policy: “...[the] terrorism we practice is of the commendable kind for it is directed at the tyrants and the aggressors and the enemies of Allah who commit acts of treason against their own countries and their own faith and their own prophet and their own nation. Terrorizing those and punishing them are necessary measures to straighten things...” (ABC News, Weiner 1998)

These declarations are evidence which supports the fact that the aforementioned acts are a group policy, since these acts require a high level of hierarchical structure and high level of organization. The terrorist attacks committed by Al Qaeda would seem to fulfil the policy or plan element almost effortlessly.

9.) FOURTH ELEMENT: SYSTEMATIC OR WIDESPREAD A fourth uncontroversial element of crimes against humanity is that they be carried out in a systematic way or by means of mass or widespread action. The requirement of a “widespread or systematic” attack is solely an objective element of crimes against humanity. Rather, this factor of scale and gravity is an essential aspect of its subjective element (Akvahan 2003, cited in Bergsmo 2003, p.12).

The expression “widespread or systematic” may be understood as excluding “random or isolated acts”. There must be a background of other acts that this act fits into for the idea of it being

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systematic or widespread to make sense. An individual act cannot be systematic or widespread, at least not in the way that crimes against humanity are characterized (May 2005, p.123).

The term “widespread” has been interpreted as referring to a multiplicity of victims whereas systematic has been interpreted as referring to a methodical plan or policy. The multicity of victims may include both “the cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude”. The ICC Statute has also stipulated the related requirement that crimes against humanity consist of “a course of conduct involving the multiple commission” of the enumerated acts “pursuant to or in furtherance of a state or organizational policy to commit such attack”. Actually, it is evocative of the sine qua non of crimes against humanity (Akvahan 2003, cited in Bergsmo 2003, p.12).

In fact, the 11 September events are not only part of a unique attack, they are part of the same battle that Bin Laden is waging against the United States. Bin Laden was clear in his intentions to attack the United States on all fronts. In a May 1998 interview, Bin Laden answered a question from some of his followers by commanding them and all Muslims to focus their hatred and attacks on Americans, and he went so far as to say:

“...We, nonetheless, fight against their governments and all those who approve of the injustice they practice against us...” (ABC News, Miller 1998)

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As indicated, the 11 September acts are a part of broader activities. In previous years, Bin Laden and his AI-Qaeda network of terrorists have allegedly been involved in numerous attacks against the United States, ranging from a civilian target at the first WTC bombings in 1993, to diplomatic targets, the two US embassies in Tanzania and Kenya, bombings in 1998, to military targets with the attack on the USS Cole in Yemen. The latest one is the 11 September attacks (Fry 2002, p.190). Thereby, these will be sufficient examples to establish a correlation between the 9/11 attacks and previous acts as part of the element of being systematic or widespread. Therefore, it is now plausible and acceptable that a terrorist organization like Al Qaeda, through targeting the killing of civilians, can be held responsible for crimes against humanity. In addition, in the 11 September attacks, there were "multiple commissions" of inhumane acts, pursuant to Article 7, in that the four hijackings and approximately 3000 individual acts of murder were all part of the same single, systematic attack (Proulx 2004, p.1079).

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CONCLUSION The attacks of 11 September struck at the human rights of every person. The individual victims were deprived of the most fundamental of all human rights — the right to life. In addition, the right to liberty and the right to security were among the other human rights directly affected by the attacks of 11 September. Terrorism on such a scale creates a climate of fear, by using violence and fear as a tool.

When the United Nation Security Council required that terrorism be criminalized, it did not provide a definition of terrorism because no such definition exists in international law. In the following days, the speed with which international bodies moved was extraordinary. Following the days after the attacks, resolutions condemning terrorism were passed by the UN General Assembly. The US pressed for a strong response from the United Nations. The Security Council obliged by passing a series of radical resolutions, beginning with one condemning the attacks on September 12. In its preamble, Resolution 1368 set the terms of the Security Council's engagement with terrorism and these were seized. It took only slightly more than two weeks for the Security Council to enact; perhaps the boldest resolution it had ever passed is Resolution 1373.

At the outset, it would realize the degree of proximity to and compatibility between the notions of the terrorist attacks of 11 September and crimes against humanity. The events of 11 September cannot be considered in isolation. Taken together with other events such as embassy attacks and the attack on USS Cole, for which Al-Qaeda took responsibility, they posed a clear threat that following acts are coming as part of the systematic attack. The hijacking and the 17

subsequent killings are matters of international criminal law, which has jurisdiction to prosecute criminals. The WTC and the Pentagon included civilian populations. Even though the Pentagon is claimed to be a military base, it should not be overlooked that it also included civil personnel. The terrorist attacks of 11 September satisfy all of the elements enumerated for a crime against humanity. Furthermore, an Afghanistan-based terrorist cell claimed responsibility for the attacks of 11 September. These attacks were not random or isolated attacks, but were part of a coordinated assault against the United States that has continued for almost a decade (Fry 2002, p.190). Thus the 11 September atrocities could have been tried by the ICC under the heading of crimes against humanity.

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