2007 Issue 1 - New York City Bar Association

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The Prevention and Prosecution of Terrorist Acts: A Survey of Multilateral Instruments The Committee on International Security Affairs The events of September 11, 2001 are etched in Americans’ minds. The large-scale attacks occurring on U.S. territory brought home the imperative of preventing terrorism here and abroad, especially in light of the risk that future attacks might be perpetrated with nuclear or other weapons of catastrophic effect. In the years since then, casualties from international terrorism have remained high, largely due to attacks in South Asia and the Middle East. 1 This report demonstrates that a framework of treaty-based regimes and other international initiatives and programs plays a valuable role in preventing terrorism, and should be strengthened and supported. It is an essential part of a broader campaign that includes intelligence coordination, border security, domestic law enforcement and emergency preparedness. First, the framework articulates and solidifies the norm that terrorism is a wholly impermissible form of political conduct. The importance 1. HUMAN SECURITY REPORT: WAR AND PEACE IN THE 21 ST CENTURY, Human Security Centre, University of British Columbia, Canada 43-44 (2005). T H E R E C O R D 20
P R E V E N T I O N A N D P R O S E C U T I O N O F T E R R O R I S T A C T S of entrenching this norm was well stated by Undersecretary of Defense Douglas Feith: Our ultimate goal is to change the international environment regarding terrorism—instead of tolerance, [to] an international norm of renunciation and repudiation of terrorism. As I said, we want the world to view terrorism as it views piracy, slave trading or genocide—activities universally repudiated by respectable people. This is not an abstract, philosophical, academic point, but a strategic purpose of great practical significance. 2 Second, the framework provides tools to prevent terrorists from acquiring weapons of mass destruction (WMD). Among the tools are treaties 3 banning WMD, programs to secure materials and weapons in Russia and elsewhere, and an initiative to prevent and interdict shipment of WMD-related items. The 9/11 Commission placed great emphasis on the need to succeed in this effort, stating that “al Qaeda has tried to acquire or make weapons of mass destruction for at least ten years. There is no doubt the United States would be a prime target. Preventing the proliferation of these weapons warrants a maximum effort ….” 4 Third, the framework provides mechanisms to bring terrorists to justice, including treaties requiring the prosecution or extradition of persons alleged to have committed terrorist acts, and international tribunals. There are of course problems in working through international institutions, laws, and initiatives. For example, treaties banning WMD may give rise to unwarranted complacency that certain states are in fact complying with the bans. The United Nations—or more accurately, the states 2. U.S. Department of State, Feith Says Terrorism Makes Palestinian State Less Likely, April 26, 2002, available at http://usinfo.state.gov/regional/nea/summit/text/0426fth.htm. 3. Treaties are agreements among states that are respected as binding agreements under international law. Such agreements may also take the form of “conventions” (a term generally used to describe agreements open to all states or a large number of states) or “protocols” (a term generally used to describe amendments or additional agreements to existing treaties). The three are generally of equal international legal significance and all are required to be ratified as set forth in Article II of the U.S. Constitution. For a discussion of the various terms used to designate an international agreement see United Nations Treaty Collection, Treaty Reference Guide, available at http://untreaty.un.org/English/guide.asp. To the extent that an arrangement between or among states is not intended to be binding under international law, this is indicated in the discussion of the arrangement. Examples include export control regimes and the Proliferation Security Initiative. 4. THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES 381 (U.S. Government Printing Office, 2004). 2 0 0 7 V O L. 6 2 , N O. 1 21
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2007 Issue 1 - New York City Bar Association

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