At 7 pm on December 15, 2009 (Tuesday), Judge Liu Daqun of the United Nations Tribunal for the Former Yugoslavia brought a wonderful academic report entitled "War Crimes and Terrorism Crimes" to the teachers and students of the Institute of International Law of Wuhan University. The report was hosted by Professor Yu Minyou, Deputy Director of the Institute of International Law at Wuhan University and President of the WTO studies school of Wuhan University.
Judge Liu’s report is mainly divided into the following sections: After the end of the Cold War, various social contradictions such as religion and ethnicity are highlighted, and the globalization of terrorism is internationalized, which has created the need for countries to work together to resolve terrorism. However, to date, legislation on terrorism still lags behind, mainly because countries do not have a unified will to fight terrorism crimes. In this lecture, Judge Liu elaborated on the nature and definition of terrorism crimes from three aspects.
In the first place, whether national counter-terrorism acts can constitute an armed conflict. The standards of the armed conflict are set out in the Geneva Convention System and the Rome Statute. There are three types of armed conflict: armed conflicts between countries, armed conflicts between a government and local anti-government forces, and armed conflicts between transnational armed groups. Armed conflicts should be distinguished from domestic tensions and differentiated according to the degree of intensity and whether the parties to the conflict are organized and strict groups. Armed conflicts are regulated by the Geneva Conventions and their Protocols, and tensions are regulated by domestic law. Countries are reluctant to include counter-terrorism in the context of armed conflicts. They consider this to be merely a manifestation of domestic tensions, mainly based on the desire not to be regulated by international conventions and by international organizations such as the Red Cross. However, in some countries, when the conflict escalates fiercely and the situation cannot be controlled, we will have to admit that it constitutes an armed conflict which should accept the regulation of the war law.
In the second aspect, whether terrorist acts constitute war crimes. Judge Liu pointed out that in the practice of the former Yugoslavia, when deciding whether an act is a violation, our decision must be based on humanitarian law that already constitutes customary international law. In characterizing terrorist acts, some judges believe that although the prohibition clause itself constitutes customary international law, the investigation of individual criminal responsibility does not form customary international law. In other words, the illegal attack on civilians and dissemination the terror atmosphere are itself prohibited, but during the perpetrator’s crimes (1993-1995) there is no international customary law that criminalizes the individual’s criminal responsibility. The formation of international habits depends on state practice and legal conviction, not on the severity of the behavior. The prosecution of terrorist acts in war as war crimes almost doesn’t any applicable international law.
The third aspect is the element of terrorist acts.
Judge Liu pointed out that the former Yugoslavia has attributed the elements of the crime of terrorism to three points:
- Injury to the civilian population
- Psychological factors: Deliberately make the civilian population a target of violent attacks and create a climate of terror among civilians.
- The result of the crime of terrorist acts is not required.
Judge Liu Daqun questioned the third point above. He believes that terrorist acts are more psychologically elemental than the general criminal offenses, and that the victims include not only those who are physically injured but also those who are intimidated. The long-standing failure to form a unified definition of terrorism crimes is mainly due to the inability of some countries to distinguish between crimes of terrorism and terrorism, and some countries have arbitrarily expanded terrorism. Terrorism crimes have their own particularities. Offenders and victims usually have no connection, and there is no connection between the target of the attack and the ultimate criminal goal. The psychology of terrorism is not guilty. The deterrent effect of criminal law is ineffective for terrorists.
