Should terrorists be tried before the ICC?

29 January 2015

The display of strength in Paris shows a will to stand up to attacks; the next step could be crimes tried by an international court.

The recent events in Paris shocked all right-minded people. It has been seen as an attack not just on France but the civilised world, coming as it did in the same week as 2,000 people were killed in Nigeria in an attack described as “one of the worst terrorist attacks in modern history”. Is there now a case that those engaged supporting acts of terrorism should be tried before an international tribunal?

An important landmark has just been reached in the quest for worldwide justice. It is just over a decade since the International Criminal Court started operating. It is hardly a panacea for all the troubles in the world and many roundly criticise its work.

However, it is the first time that an independent court has operated to try crimes categorised as against international law. Its attempts to bring to account those engaged in crimes against humanity has met with many difficulties, not least from governments with a vested interest in not offering support. But the mere fact that there are occasions where those engaged in such heinous acts can face justice on an international stage is a big step forward.

The concept of an international tribunal replacing a domestic one was born in modern times in Nuremberg at the end of the Second World War. There is perhaps an uneasy acceptance that there are occasions where an international tribunal can carry out a trial. Indeed an increasing number of countries now exercise extra-territorial jurisdiction, including the UK where under certain circumstances we can try those alleged to have committed offences many thousands of miles away.

When the concept of the ICC was set up there could be no agreement about the definition of terrorism and it was not included in the Rome Statute in the crimes it could pursue. Its main intention was to show there was no hiding place for those who engage in crimes against humanity.

Law and issues of morality do not stand still. They are always evolving. The fact that world leaders stood side-by-side in Paris to show their support for France and utter revulsion of what had taken place demonstrates that terrorism is regarded as an international crime.

The attacks, many will feel, were attacks not just on the Paris streets or in the Nigerian village of Baga, a continent away, but were against the whole world. On that basis there may well be a case that, with the agreement of the nation involved, when those involved are apprehended, they should be tried by an international tribunal.

Although the Hague court sits uneasily with many, and does not enjoy universal support, it would be the natural place for any trial. Of course there would be many difficulties, not least of which would be defining the parameters of terrorism and gathering the evidence, but the process has to start somewhere. If there was the political will then a way could no doubt be found through the legal complexities.

Perhaps the sadness is that when the concept of an international court gained momentum and support it was envisaged that it was to try those engaged in crimes against humanity and would at least slow down the atrocities we see and read about all too often; it has not. There is now in addition an ever-increasing threat from terrorism.

The show of strength and support in Paris confirms the determination to stand up to this threat. If it requires an international response, part of that may be that such crimes should be tried by an international court.

This article was first published in The Times online on 28 January 2015

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