¹ For a long period of time, only acts of terrorism targeting States were discussed at the international level. Acts of terrorism imputable to States were not part of the debate. See Draft Article 11(4)(b) of the Draft Code of Offences against the Peace and Security of Mankind (1986 version), which addresses solely terrorist acts targeting States or international organisations: “The following constitute terrorist acts: (i) any act causing death or grievous bodily harm or loss of freedom to a head of State, persons exercising the prerogatives of the head of State, the hereditary or designated successors to a head of State, the spouses of such persons, or persons charged with public functions or holding public positions when the act is directed against them in their public capacity; (ii) acts calculated to destroy or damage public property or property devoted to a public purpose; (iii) any act calculated to endanger the lives of members of the public through fear of a common danger, in particular the seizure of aircraft, the taking of hostages and any other form of violence directed against persons who enjoy international protection or diplomatic immunity; (iv) the manufacture, obtaining, possession or supplying of arms, ammunition, explosives or harmful substances with a view to the commission of terrorist acts” ([1986] 1 Y.B. Int'l L. Comm'n 84).Google Scholar

² On the 25 September 1972, during the twenty-seventh session of the United Nations’ General Assembly, the United States of America brought in a draft convention on terrorism (U.N. Doc. A/CN.6/L.850). The failure of this project is due in particular to the fact that some delegations from Third World countries insisted on the need of studying the causes of terrorism before drafting a convention on this issue.Google Scholar

³ Convention on Offences and Certain Other Acts Committed on Board Aircraft (signed at Tokyo on 14 September 1963), Convention for the Suppression of Unlawful Seizure of Aircraft (signed at the Hague on 16 December 1970), Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (signed at Montreal on 23 September 1971), Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (adopted by the General Assembly of the United Nations on 14 December 1973), International Convention against the Taking of Hostages (adopted by the General Assembly of the United Nations on 17 December 1979), Convention on the Physical Protection of Nuclear Material (signed at Vienna on 3 March 1980), Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (signed at Montreal on 24 February 1988), Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (done at Rome on 10 March 1988), Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (done at Rome on 10 March 1988), Convention on the Marking of Plastic Explosives for the Purpose of Detection (signed at Montreal on 1 March 1991), International Convention for the Suppression of Terrorist Bombings (adopted by the General Assembly of the United Nations on 15 December 1997), International Convention for the Suppression of the Financing of Terrorism (adopted by the General Assembly of the United Nations on 9 December 1999), available at http://untreaty.un.org/English/Terrorism.asp.Google Scholar

⁴ The General Assembly and the Security Council of the United Nations were very active in this field. The General Assembly and the Security Council have to date adopted respectively 24 and 21 resolutions on terrorism.Google Scholar

⁵ European Convention on the Suppression of Terrorism, signed at Strasbourg on 27 January 1977, available at http://conventions.coe.int/ Google Scholar

⁶ According to Article 1 of the European Convention on the Suppression of Terrorism: “For the purposes of extradition between Contracting States, none of the following offences shall be regarded as a political offence or as an offence connected with a political offence or as an offence inspired by political motives: (a) an offence within the scope of the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970; (b) an offence within the scope of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971; (c) a serious offence involving an attack against the life, physical integrity or liberty of internationally protected persons, including diplomatic agents; (d) an offence involving kidnapping, the taking of a hostage or serious unlawful detention; (e) an offence involving the use of a bomb, grenade, rocket, automatic firearm or letter or parcel bomb if this use endangers persons; (f) an attempt to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts to commit such an offence.”. The definition of the offences listed at Article 1 (c) to (e) emphasizes the danger represented by the use of certain means for committing a crime and it does not take into account the specific intention required for a terrorist offence. Hence, it does not represent a proper definition of terrorist acts.Google Scholar

⁷ It is only in the late 90's that similar provisions appear in international conventions on terrorism. The International Convention for the Suppression of the Financing of Terrorism, which provides in its Article 2 a list of terrorist acts whose funding is prohibited, requires Contracting Parties “to ensure that criminal acts within the scope of this Convention are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature” (Article 6 of the Convention). A similar provision can be found in Article 5 of the International Convention for the Suppression of Terrorist Bombings.Google Scholar

⁸ A Convention relating to Extradition between Member States of the European Union was also adopted in 1996 (1996 O.J. (C 313) 12). This convention does not deal specifically with terrorism, its objective being to improve the judicial cooperation between Member Stats in criminal matters in general. It is worth stressing that, by simplifying the extradition procedures between Member States, this Convention facilitates the application of the Council of Europe Convention on the Suppression of Terrorism.Google Scholar

⁹ According to Article K.1 of the Maastricht Treaty, “For the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community, Member States shall regard the following areas as matters of common interest: […] (9) police cooperation for the purposes of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime, including if necessary certain aspects of customs cooperation, in connection with the organization of a Union-wide system for exchanging information within a European Police Office (Europol).” (emphasis added).Google Scholar

¹⁰ European Parliament Recommendation on the Role of the European Union in Combating Terrorism, U.N. Doc. A5-0273/2001 of 5 September 2001, 2002 O. J. (C 72) 135, 135–141. The definition proposed in this Recommendation was vague. The Recommendation's only added value was its call to the Council of the European Union to adopt a framework decision establishing a definition of terrorist offences.Google Scholar

¹¹ See Article 29 TEU: “Without prejudice to the powers of the European Community, the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia.Google Scholar

That objective shall be achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud, through:Google Scholar

- closer cooperation between police forces, customs authorities and other competent authorities in the Member States, both directly and through the European Police Office (Europol), in accordance with the provisions of Articles 30 and 32,Google Scholar

- closer cooperation between judicial and other competent authorities of the Member States including cooperation through the European Judicial Cooperation Unit ('Eurojust'), in accordance with the provisions of Articles 31 and 32,Google Scholar

- approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article 31(e).”Google Scholar

¹² See Article 34(2) TEU: “The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may:Google Scholar

(a) adopt common positions defining the approach of the Union to a particular matter;Google Scholar

(b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect;Google Scholar

(c) adopt decisions for any other purpose consistent with the objectives of this title, excluding any approximation of the laws and regulations of the Member States. These decisions shall be binding and shall not entail direct effect; the Council, acting by a qualified majority, shall adopt measures necessary to implement those decisions at the level of the Union;Google Scholar

(d) establish conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements. Member States shall begin the procedures applicable within a time limit to be set by the Council.”Google Scholar

¹³ Article 31(1) TEU: “Common action on judicial cooperation in criminal matters shall include: […] (e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.”Google Scholar

¹⁴ 1999 O. J. (C 19) 1Google Scholar

¹⁵ According to Juliet LODGE, these instructions constituted “an unprecedented move, (since) the extraordinary European Council of Heads of Government that met on 21 September 2001 ‘directed’ the Justice and Home Affairs Council to act as instructed. The choice of words for its ‘conclusions’ is significant. Instead of the usual ‘urges’ or ‘recommends', the Heads of Government ‘direct’ and ‘instruct’ the relevant Council to act. Thus, not only has it assumed a legislative right of initiative, in effect, but also a right to side-step the usual legislative process.” (Juliet Lodge, “EC Securitisation and Terrorism: 2001-2002”, in Miller and Zumbansen (eds.), Annual of German & European Law, Berghahn Books, Oxford and New York 2004, p. 246–286))Google Scholar

¹⁶ Conclusions and Plan of Action of the Extraordinary European Council Meeting of 21 September 2001, p. 2, available at http://ue.eu.int/Terrorisme/index.asp?LANG=1 Google Scholar

¹⁷ Council Framework Decision of 13 June 2002 on Combating Terrorism U.N. Doc. 2002/475/JHA, 2002 O. J. (L 164) 3-7, hereinafter, “the Framework Decision”.Google Scholar

¹⁸ By the end of March 2004, only 8 Member States (Belgium, Italy, Austria, Portugal, Denmark, Finland, Sweden and the United Kingdom) had amended their national legislation to implement the Framework Decision (Agence Europe, n°8675, 27 of March 2004, p. 6 and 7).Google Scholar

¹⁹ See Article 34(2)(b) TEU, supra note 12Google Scholar

²⁰ Article 249(3) TEC: “A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of forms and methods.”Google Scholar

²¹ Article 2(2) TEU: “The objectives of the Union shall be achieved as provided in this Treaty and in accordance with the conditions and the timetable set out therein while respecting the principle of subsidiarity as defined in Article 5 of the Treaty establishing the European Community”. Article 5(2) TEC defines the principle of subsidiarity in these terms: “In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.”Google Scholar

²² France, Germany, Italy, Portugal, Spain, United KingdomGoogle Scholar

²³ See on this point the proposal for a Council framework decision on combating terrorism presented by the Commission, COM (2001) 521 final, 19 September 2001, p. 7, available at http://wwwdb.europarl.eu.int/oeil/oeil_ViewDNL.ProcedureView?lang=2&procid=5566 Google Scholar

²⁴ The state of ratification of the international conventions on terrorism by the EU's Member States is reflected in their reports to the Committee created by the Security Council resolution 1373 (2001). These reports are available at http://www.un.org/Docs/sc/committees/1373/submitted_reports.html Google Scholar

The fact that all Member States have not ratified all international conventions on terrorism, with the exception of the European Convention on the Suppression of Terrorism, which does not offer a comprehensive definition of terrorism, represents a proof of the respect of the subsidiarity principle.Google Scholar

²⁵ The Framework Decision implements point 1 letters a), b) and d) of this resolution, in which the Security Council “1. (d)ecides that all States shall: (a) Prevent and suppress the financing of terrorist acts; (b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; […] (d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons.” (resolution 1373 (2001) adopted by the Security Council on 28 September 2001).Google Scholar

²⁶ For rules on jurisdiction see Article 9 of the Framework Decision.Google Scholar

²⁷ The Commission underlined in its explanatory memorandum to the proposal for a Council Framework Decision (supra note 23, at 2) that: “This proposal does not relate only to acts of terrorism directed at Member States. It also applies to conduct on the territory of the European Union which can contribute to acts of terrorism in third countries. This reflects the Commission's commitment to tackle terrorism at a global as well as European Union level.”Google Scholar

²⁸ “Seriously damage a country or an international organisation”Google Scholar

²⁹ See European Court of Human Rights’ judgement in the Sunday Times case, 26 April 1979, A n^o 30 at 49 “…the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case.”Google Scholar

³⁰ Article 1(1): “Each Member State shall take the necessary measures to ensure that the international acts referred to below in points (a) to (i), as defined as offences under national law, which, given their nature or context, may seriously damage a country or an international organisation where committed with the aim of:Google Scholar

- seriously intimidating a population, orGoogle Scholar

- unduly compelling a Government or international organisation to perform or abstain from performing any act, orGoogle Scholar

- seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation,Google Scholar

shall be deemed to be terrorist offences:Google Scholar

(a) attacks upon a person's life which may cause death;Google Scholar

(b) attacks upon the physical integrity of a person;Google Scholar

(c) kidnapping or hostage taking;Google Scholar

(d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss;Google Scholar

(e) seizure of aircraft, ships or other means of public or goods transport;Google Scholar

(f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of biological and chemical weapons;Google Scholar

(g) release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life;Google Scholar

(h) interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger human life;Google Scholar

(i) threatening to commit any of the acts listed in (a) to (h).”Google Scholar

³¹ Article 1(1)(a) and (b) correspond to offences mentioned in the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation and its Protocol, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its Protocol, the International Convention for the Suppression of Terrorist Bombings. The definition of the offence incriminated in Article 1(1)(c) is similar to the definitions established by the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents and the International Convention against the Taking of Hostages and the definition of the Article (1)(g) offence corresponds to offences included in Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, the Convention on the Physical Protection of Nuclear Material or the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its Protocol, the International Convention for the Suppression of Terrorist Bombings.Google Scholar

³² The Article 1(1)(d) offence is drafted in wider terms than similar offences dealt with under the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation or in its Protocol, in the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation or in its Protocol, in the International Convention for the Suppression of Terrorist Bombings or in the Convention on the Marking of Plastic Explosives for the Purpose of Detection. The same can be said about Article 1(1)(e) (corresponding to certain offences incriminated in the Convention for the Suppression of Unlawful Seizure of Aircraft and in the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation), (f) (in comparison with offences present in the Convention on the Physical Protection of Nuclear Material, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, the Convention on the Marking of Plastic Explosives for the Purpose of Detection). The Article 1(1)(h) offence does not match any offence existing in the international conventions on terrorism.Google Scholar

³³ Theft or robbery of nuclear material, incriminated in Article 7 of the Convention on the Physical Protection of Nuclear Material; capture of fixed platforms, incriminated in Article 2(1)(a) of the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental ShelfGoogle Scholar

³⁴ EU's Member States have always been determined not to qualify minor acts as terrorist acts and have tried to promote the same criminal policy at the international level. During the preparatory work of the International Convention for the Suppression of Terrorist Bombings, Germany militated in favour of the introduction, in the text of Article 2 of the convention, of the words “of significant value” after the words “public of private property”. The final version of this text refers to “major economic loss”, which is a compromise between the initial version and the German proposal.Google Scholar

³⁵ The explanatory memorandum is not legally binding and is a mere introductory note of the Commission's proposal.Google Scholar

³⁶ Supra note 23, at 9Google Scholar

³⁷ The Commission's proposal (supra note 23, at 17) was drafted in these terms: “Each Member States shall take the necessary measures to ensure that the following offences, defined according to its national law, which are intentionally committed by an individual or a group against one or more countries, their institutions or people with the aim of intimidating them and seriously altering or destroying the political, economic, or social structures of a country, shall be punishable as terrorist offences” (emphasis added). The “subjectivisation” of the consequences criterion is more evident in the French version of the text: “Chaque Etat member prend les measures necessaries pour faire en sorte que les infractions suivantes, définies par son droit national, commises intentionnellement par un individu ou un groupe contre un ou plusieurs pays, leurs institutions ou leur population, et visant à les menacer et à porter gravement atteinte ou à détruire les structures politiques, économiques ou socials d'un pays, soient sanctionnées comme des infractions terroristes” (emphasis added).Google Scholar

³⁸ See the press release following the discussions in the Council on the Framework Decision, U.N. Doc. PRES/01/444 of 6 December 2001: “When defining terrorist aims, the Council opted for a wording that strikes a balance between the need to punish terrorist offences effectively and the need to guarantee fundamental rights and freedoms, ensuring that the scope could not in any circumstances be extended to legitimate activities, for example trade union activities or anti-globalisation movements.”Google Scholar

³⁹ See the Report of the European Parliament on the Commission proposal for a Council framework decision on combating terrorism (U.N. Doc. A5-0397/2001 final of 14 November 2001). Under Article 39 TEU, the Parliament has a mere consultative role in Title VI procedures (Provisions on Police and Judicial Cooperation in Criminal Matters), which implies that the Council is not bound by its opinion.Google Scholar

⁴⁰ “Seriously intimidating a population, or unduly compelling a Government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.”Google Scholar

⁴¹ The typology of motives is not relevant for the definition of terrorist offences. The UN Special Rapporteur on terrorism and human rights, Mrs. Kalliopi K. Koufa, underlines it in her additional report of 8 August 2003: “In any event, while broad or general categorizations can hardly reach precision and do full justice to the variety and complexity of the terrorist phenomena, attempts to devise analytical and more sophisticated subdivisions and distinctions providing more precise delimitations of, or information on, subgroups of terrorism – such as their organizational structure, size, potential relationships with States and degrees of such relationship, their identity, characteristics, social, political, cultural and psychological motivations, and so forth – are too complicated and diverse and, above all, they only serve the needs of a particular user. As useful as they are for illuminating particular aspects of the phenomena of terrorism and of terrorists, and for contributing to our understanding of the wide-ranging nature of the problématique surrounding them, they are of little utility in identifying exactly what constitutes terrorism and who the terrorists are.” (Additional Progress Report Prepared by Ms. Kalliopi K. Koufa, Special Rapporteur on Terrorism and Human Rights, Sub-Commission on the Promotion and the Protection of Human Rights, U.N. Doc. n^o E/CN.4/Sub.2/2003/WP.1 13 (2003)).Google Scholar

⁴² “For the purposes of this Framework Decision, ‘terrorist group’ shall mean: a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist offences. ‘Structured group’ shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure” This definition is arguably clearer and more precise than the one proposed by the US State Department in its introduction to Patterns of Global Terrorism, 1999: “The term ‘terrorist group’ means any group practicing, or that has significant subgroups that practice, international terrorism,” available at http://www.state.gov/www/global/terrorism/1999report/1999index.html Google Scholar

⁴³ This incrimination of the participation in a terrorist group is very similar to the infractions defined in Article 2(1) of the International Convention for the Suppression of the Financing of Terrorism.Google Scholar

⁴⁴ Article 1 thereof provides that a criminal organisation is: “[a] structured association, established over a period of time, of more than two persons, acting in concert with a view to committing offences which are punishable” (1998 O.J. (L 351) 1). It is worth noting that the Joint action specifically refers in its preamble to terrorism as one of the forms of organised crimes whose seriousness and development requires a strengthening of cooperation between the EU Member States.Google Scholar

⁴⁵ Article 3: “Each Member State shall take the necessary measures to ensure that terrorist-linked offence include the following acts: (a) aggravated theft with a view to committing one of the acts listed in Article 1(1); (b) extortion with a view to the perpetration of one of the acts listed in Article 1(1); (c) drawing up false administrative documents with a view to committing one of the acts listed in Article 1(1) (a) to (h) and Article 2(2) (b).”Google Scholar

⁴⁶ An exception can be found in Article 7(1) of the Convention on the Physical Protection of Nuclear Material which incriminates the theft or robbery of nuclear materials as such. This provision thus does not concern only terrorism.Google Scholar

⁴⁷ Article 4: “1. Each Member State shall take the necessary measures to ensure that inciting or aiding or abetting an offence referred to in Article 1(1), Articles 2 or 3 is made punishable.Google Scholar

2 Each Member State shall take the necessary measures to ensure that attempting to commit an offence referred to in Article 1(1) and Article 3, with the exception of possession as provided for in Article 1(1)(f) and the offence referred to in Article 1(1)(i), is made punishable.”Google Scholar

⁴⁸ With regard to the victims covered by the Framework Decision, Article 1(1) thereof specifies that the main victim shall be a State or an international organisation. Provided that this condition is fulfilled, the Framework Decision also applies where damages are caused to private interests, to the extent that they “endanger human life or result in major economic loss” (Article 1(1)(d)) and under the condition that they “seriously damage a country or an international organisation”. This narrower scope of application stems from the fact that the Framework Decision is not concerned with the protection of victims, but rather with the repression of authors of terrorist acts.Google Scholar

⁴⁹ Terrorist groups cannot be directly sanctioned, since they do not exist, from a legal perspective. States can prosecute and sanction the members of the groups, members who are legal persons or individuals.Google Scholar

⁵⁰ According to Article 7(1) of the Framework Decision, Member States “shall take necessary measures to ensure that legal persons can be held liable for any of the offences referred to in Articles 1 to 4 committed for their benefit by any person, acting either individually or as a part of an organ of the legal person, who has a leading position within the legal person, based on one of the following: (a) a power of representation of the legal person; (b) an authority to take decisions on behalf of the legal person; (c) an authority to exercise control within the legal person.” Member States have to insure also that legal persons are held liable where “the lack of supervision or control by a person referred to in paragraph 1 has made possible the commission of any offences referred to in Articles 1 to 4 for the benefit of that legal person by a person under its authority” (Article 7(2) of the Framework Decision).Google Scholar

⁵¹ Denmark and Netherlands are two of the rare continental countries establishing criminal liability for legal persons (see John C. Cofee, Corporate Criminal Liability: An Introduction and Comparative Survey in Albin Eser, et al., Criminal Responsibility of Legal and Collective Entities. International Colloquium Berlin 1998 21-24 (Freiburg 1999)).Google Scholar

⁵² See Steve Peers, EU Responses to Terrorism, 52 Int'l & Comp. L. Q. 234 (2003) “the definition of the legal persons [by the Framework Decision] does not exclude states or international organisations.”Google Scholar

⁵³ Paragraph 11 of the Framework Decision's Preamble: “Actions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law, and, inasmuch as they are governed by other rules of international law, actions by the armed forces of a State in the exercise of their official duties are not governed by this Framework Decision.”Google Scholar

⁵⁴ Supra note 52, at 234: “The scope of exclusion is expressly limited to actions of any armed forces governed by ‘international humanitarian law’ or State armed forces governed by ‘other rules of international law', with the obvious underlying assumption that there should be no legal vacuum enabling acts of political violence to escape from legal control. Other acts by states, for example financing ‘terrorist groups’ as defined by the Framework Decision, fall outside of the scope of the exclusion and so it could be argued that such acts by a state should be considered ‘terrorist’ acts and punished accordingly, subject to any state immunity which might arguably exist in such circumstances.”Google Scholar

⁵⁵ Article 7(1): “any person […] who has a leading position within the legal person, based on one of the following: (a) a power of representation of the legal person; (b) an authority to take decisions on behalf of the legal person; (c) an authority to exercise control within the legal person”. These criteria are commonly used to determine whether a person can represent a legal entity in commercial or civil transactions. To compare with Article 4 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its fifty-third session (2001): “(1) The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State. (2) An organ includes any person or entity which has that status in accordance with the internal law of the State.”Google Scholar

⁵⁶ See also Nicaragua case, where, in spite of numerous links between the contras and the United States, the International Court of Justice refused to admit United States’ responsibility: “The Court has taken the view […] that United States participation, even if preponderant and decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua.” (Military and Paramilitary Activities in and against Nicaragua, judgement on the merits, 1986 I.C.J. Y.B. 65, 115). This solution is easily transposable to terrorism cases where the acts are not committed by State agents. One has also to underline that, until now, no international judicial decision established Libya's international responsibility for having sponsored the Lockerbie terrorist acts. Libya admitted its own responsibility only in 2003 (see Security Council resolution 1506 (2003) of 12 September 2003). Nevertheless, the Security Council has also held liable Libya for these acts (see, e.g., point 2 of its resolution 748 (1992) of 31 March 1992: “the Libyan Government must commit itself definitively to cease all forms of terrorist action and all assistance to terrorist groups and that it must promptly, by concrete actions, demonstrate its renunciation of terrorism.”).Google Scholar

⁵⁷ According to Article 8 of the Framework Decision, penalties applicable to legal persons are “(a) exclusion from entitlement to public benefit or aid; (b) temporary or permanent disqualification from the practice of commercial activities; (c) placing under judicial supervision; (d) a judicial winding-up order; (e) temporary or permanent closure of establishments which have been used for committing the offence.”Google Scholar

⁵⁸ See for an analysis of sanctions applicable to legal persons, Günther Heine, Sanctions in the Field of Corporate Criminal Liability, in Eser, supra note 51, at 237-254.Google Scholar

⁵⁹ See Article 34 of the Vienna Convention on the Law of Treaties (1969): “A treaty does not create either obligations or rights for a third State without its consent.”Google Scholar

⁶⁰ According to the European Court of Human Rights case-law, laws have to be accessible, clear and precise, for individuals to be able to predict when they will violate them. In the Sunday Times judgement supra note 29, the Court held that “a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.” (paragraph 49 of the judgment).Google Scholar

⁶¹ The European Court of Human Rights considered that the condition of predictability of the law does not require a presentation in detail of all facts engaging the criminal liability. See the Müller judgment, 24 May 1988, A n^o 133, paragraph 29: “The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague”.Google Scholar