Discursul ministrului Bogdan Aurescu la conferința „2015 Policy Dialogue Madrid+10: Prevenirea şi combaterea extremismului violent” (prezentarea inițiativei creării Curții Internaționale împotriva Terorismului)

Bogdan Aurescu, ministrul afacerilor externe
Clubul de la Madrid

Your Excellencies,
Ladies and Gentlemen,

It is a great honor for me to participate to this important and prestigeous event. It is also a great pleasure to be in the same panel with my colleague and friend José Manuel García-Margallo y Marfil, and with Jean-Paul Laborde, UN Assistant Secretary-General and Executive Director, Counter-Terrorism Committee Executive Directorate.

We are here today 10 years after the International Summit on Democracy, Terrorism and Security and the adoption of the Madrid Agenda, which was then an essential call for action and democratic response to the global threat of terrorism, right after the shock of the 2004 Madrid bombings. 191 innocent people lost their lives then, among which 16 Romanian citizens. The recommendations of the Madrid Agenda are as valid today as they were then, as they underlined that, I quote, “political and philosophical differences about the nature of terrorism must not be used as an excuse for inaction”. The heads of state and government called then for an immediate action for the adoption of an internationally recognized definition of terrorism and the ratification and implementation of all anti-terrorism-related conventions by those states which have not yet done so. We think that the Romanian-Spanish initiative of creating an International Court against Terrorism could essentially contribute to achieving these goals.

I will underline two important advantages of our initiative: the values which lie behind it and the process that will lead to achieving its objective. The core value on which the initiative is based is the rule of law on international level. Therefore, our objective is fighting terrorism through international law, in particular international criminal law. In order to achieve this objective, we are aware that a comprehensive process is needed: a process of debate and of generating ideas. It is my firm belief that this process has its own merit. It triggers thorough discussions on an important number of questions and options that have to be made: Why an international jurisdiction on Terrorism? Or, in other words, what added value would bring an International Court against Terrorism? What would be the benefits of creating such a court? And what would be the difficulties stemming out from such an endeavour and how to overcome them?

Let me share with you some thoughts on some of these questions and on a number of proposals that Romania and Spain have put forward with respect to possible ways of achieving the objective of creating an International Court against Terrorism.

Historical Background

One of the most important questions is related to the necessity to have an international jurisdiction competent to prosecute the crime of terrorism. The answer to this question comprises a wide spectrum of political and even historical elements.

Throughout the last decades, terrorism has been a growing concern and persistent topic on the international agenda, as one of the most serious threats to international peace and security. Recent tragic events have showed an expansion of the terrorist phenomenon, as well as a significant growth in frequency and atrocity of the terrorist acts, which require increased involvement and action of the international community as a whole. Every week, even every day, news about terrorist attacks bring emotions to the entire international community. There is not a day that goes by without a tragic story about innocent people being slaughtered at the hand of violent extremism.

It is by no means excessive to assert that terrorism represents today a serious threat to the international peace and security. Therefore, fighting against terrorism is not only an obligation for each country, but the responsibility of the entire international community.

What we need is not only determination, unity and the acknowledgement that terrorism is a global threat to international peace and security: we also need a response based on law. International law represents one of the strongest tools that the international community has at its disposal.

The idea of an international jurisdiction on terrorism is not new and I would like to briefly recall an early effort in this direction. Indeed, in 1934, following the assassination of King Alexander I of Yugoslavia and French Foreign Minister Louis Barthou, the League of Nations set up a group of experts whose work led to the adoption of the Convention on the Punishment and Prevention of Terrorism (which defined “acts of terrorism”) and the Convention for the Creation of an International Criminal Court Court (which was competent to punish acts of terrorism) – the first international judicial mechanism to repress terrorism. The text of the latter was adopted - with little change to the original draft submitted by the Romanian legal expert and diplomat Vespasian Pella - by an Intergovernmental Conference in Geneva in 1937. The Conventions were signed by 24 States and ratified by one. Due to events leading up to the outbreak of WWII, the Conventions never came into force.

Efforts in the 1950s – the Draft Code of Crimes against Peace and Security of Mankind, elaborated by the International Law Commission – and of the 1970s – the Draft Convention for the Prevention and Punishment of Certain Acts of Terrorism – as well as more recent negotiations within the Ad-Hoc Committee for Drafting a Comprehensive Convention on International Terrorism revealed important disagreements amongst States on this delicate subject. The main point of divergence was defining terrorism.

On the 9th of February 2015, at the Foreign Affairs Council, I have suggested to start a reflection process on the creation of an International Court against Terrorism. Minister Margallo immediately embraced this idea, and now, Romania and Spain are working together to promote this initiative – acknowledging the expansion of the terrorist phenomenon, the significant growth in atrocity of the terrorist acts, as well as the need for combating a global threat with all tools of international law.

The efforts to refine the details of the initiative have started in April 2015. Informal consultations were held with States and other international actors and meetings of the Romanian and Spanish experts were held, in order to elaborate a concept-paper describing the future design of the Court – and I also wish to thank the Netherlands for the involvement of a legal expert within this process.

The added value of an international court against terrorism

Among the many questions which have arisen during this process, I would like to approach the issue of the added value of such an international court against terrorism, as the title of the event and the reference to “preventive tool” anticipates some of the arguments laid down by the initiators of this idea.

Of course, we believe that the creation of such international court might have a preventive and deterrent effect, for perpetrators, and more importantly, for States that might be “safe havens” for such persons or organized terrorist groups.

However, it is not the only argument which guided us in launching this idea.

We are also acknowledging that the creation of an instrument based on international criminal law that would help fighting against terrorism through legal means would reinforce the idea that response to a global threat, as terrorism is, requires global action, based on law.

At the same time, it would represent an open judicial forum for States to refer cases to. This may be a pragmatic solution, especially when the circumstances of a terrorist act trigger the concurrent jurisdiction of more than one State. Moreover, States may be willing to bring a case before an international court for quite various reasons, form political ones to purely institutional ones.

Moreover, the new International Court would be based on the principle of subsidiarity/complementarity – it would be focused on situations where the domestic systems would be unwilling or unable to genuinely prosecute terrorist acts. We also have in mind that the Security Council would have the possibility to refer cases to the Court.

The initiative is equally important from the point of view of filling a conceptual and legal gap. From the conceptual point of view, the element which may be identified as a lacuna in the international fight against terrorism is an instrument combining the “international” and the “rule of law” elements. From the practical point of view, there is no legal mechanism that would address the situation when a State does not respond to a request for judicial cooperation in criminal matters or the situation when a terrorist act occurred on the territory of a State whose criminal law and law enforcement systems are simply not adequate for dealing with such cases.

Why is the ICT necessary when, in practice, most States which have been the target of terrorist attacks preferred to submit the authors to their own courts?

As I said, the ICT would be based on the principle of subsidiarity/complementarity with national jurisdictions and would trigger and stimulate the reinforcement of domestic law systems.

In most cases, it might be envisaged that States would be willing to prosecute crimes. On one side, the mere “existence” of an International Court would strengthen action at national level. On the other side, the most likely hypothesis envisaged is the one when States may be willing to defer themselves cases to the Court, in order to increase international awareness about certain cases (it was envisaged that if the territorial State refers a case to the Court, the jurisdiction of the ICT will not be complementary in relation to national jurisdictions). Moreover, most cases where the “terrorist organization” comprises a transnational element requiring international judicial cooperation, deferring a case to the ICT might be helpful for gathering evidence or surrendering perpetrators from the territory of other States (other States that the one on whose territory an act had occurred may be more willing to share evidence with a Court created by the Security Council (if this would be the choice for creating it), than with another State).

At the same time, as I already said, deferring a case to the ICT might be a solution in cases when a terrorist attack triggers concurrent jurisdiction of more States (State of territory, State of nationality of the perpetrator, several States of nationality of the victims).

Complex nature of the initiative

As mentioned earlier, during the process of shaping this idea, a significant number of questions were anticipated. They concerned some “delicate” points of the initiative on which an option had to be chosen and I would like to name just a few: Why a different Court than the International Criminal Court? How to overcome the lack of a globally agreed definition of terrorism (actually the most difficult question of all)? How the new Court will look like? How to convince states to cooperate with the court? How to create such the Court?

As they were developed in our concept paper, I would like to shortly approach just three matters.

How the Court would be set up

Legally speaking, the ideal mechanism for creating the ICT would be an international treaty, negotiated at an international conference of plenipotentiaries held under the auspices of the United Nations General Assembly. It would, however, take years to put this into practice, bringing the risk of deadlock on matters such as the definition of terrorism and, more importantly, of failing to respond to the immediate need for decisive action.

The option of establishing the court through a Security Council Resolution, establishing the Tribunal as an ad hoc international criminal tribunal, subsidiary to the Security Council, in the mould of the tribunals set up for the former Yugoslavia and Rwanda, appears thus to better respond to the needs of timeliness and universality. The Resolution would be based on Chapter VII of the Charter, based on the fact that the acts submitted to the court’s jurisdiction represent, no doubt, a threat to international peace and security.

Relation to the ICC

A natural question would be: why a different court than the ICC? Wouldn’t it undermine the competence of the existing Court? I am optimistic about the perspective that a new idea would help States overcome the difficulties that prevented twice, in 1998 and 2009, the inclusion of the crime of terrorism in the ICC Statute. We think that a new instrument, focused on terrorism, may benefit from the support of certain States which are not yet parties to the ICC Statute.

Moreover, a Court against Terrorism might serve to avoid overloading the International Criminal Court, which has just begun to consolidate its profile. The ICC should concentrate on investigating and punishing the gravest crimes within its competence, war crimes, crimes against humanity and genocide, and, after the “activation” of the Kampala Amendment, the crime of aggression. Thus, the initiative should not be seen as undermining the ICC. We have proposed a special mechanism or provision meant to ensure that, in case of concurring jurisdiction between the future International Court against Terrorism and the ICC, the jurisdiction of the ICC would have priority.

Definition of the jurisdiction

We are aware of the difficulties related to the absence of an agreed definition of terrorism in international law, linked to the limited progress of the works concerning the Comprehensive Convention. What I want to emphasize is that it is important that the crime upon which the Court will have jurisdiction should be defined in terms of international law. Our experts proposed a solution that we hope to be accepted, relying on two elements: first, a reference to customary elements (a source of inspiration might be the case-law of the Special Court for Lebanon – the Interlocutory Decision of the Special Tribunal for Lebanon of 16 February 2011) and, second, the incorporation, in a non-exhaustive list, of the definitions that may be regarded as “agreed language”, provided by the 19 sectorial UN Conventions in force.

However, the question that may arise would be: what are the alternatives? I am aware that a definition of “the crime of terrorism” is a very sensitive issue for States, and for this reason I find a lot of merit in the idea expressed by Jean Paul Laborde during a meeting we held in New York, on 29 September this year: a closed list of definitions of crimes already covered by the UN sectorial conventions in force, although an “imperfect” solution, would be sufficient for judges to condemn perpetrators on the basis of international law.

A second alternative would be a “Hybrid Court”, the definition of the crime relying on domestic law, for example of the State of territory or of the State of citizenship.  We think that this option would not be preferred, because of the risk of “fragmentation” of the applicable law and of the jurisprudence of Court.


Ladies and gentlemen,

I would like to conclude my intervention by recalling the Madrid Declaration adopted on 28 July 2015, during the Ministerial Summit hosted by Spain, following a special meeting of the Security Council Counter-Terrorism Committee held in Madrid on stemming the flow of foreign terrorist fighters: “We call upon States to propose creative ideas and new approaches for developing legal tools to further counter terrorism, including the phenomenon of Foreign Terrorist Fighters, in line with obligations under international law”.

The proposal for the International Court against Terrorism represents, in our opinion, such an idea and the process that might pave the way towards its creation might generate ideas and debates. Moreover, it can trigger developments in international law, even beyond the concrete objective of the initiative.

The fundamental objective that lies behind our initiative is “fighting terrorism with international law”. Romania and Spain have launched this project upon the assumption that international justice and the Rule of Law are values per se. However, we need concrete mechanisms, legal tools to implement Rule of Law. And we need your ideas to refine these tools and to achieve concrete results. I invite all of you to join the reflection and debate, aimed at achieving the goal of having a world where international peace and security are ensured, a world where justice prevails.

Thank you!