Author: Dipen Shah

International Law Enforcement: Bottlenecks in prosecution of Terrorism

  1. Introduction

The 2015 global terrorism index (GTI) highlights that there is 80 per cent rise in terrorism-related deaths in 2015 from 2014. The significant majority of these deaths and over 78 per cent occurred only in five countries; Iraq, Nigeria, Afghanistan, Pakistan and Syria. There is a 120 per cent increase in the number of countries that recorded over 500 terrorism related deaths. There is a continuous trend of an increase in terror attacks with more and more countries experiencing terrorist attacks and death each year.[1] Absence of a general definition of terrorism has added further obstacles to the identification of offenders and pursuit of this terrible crime. A weak state, weak judicial system and insufficient laws and a corrupt enforcement agency significantly inhibit the pursuit of offenders of terrorism.

In this paper, we shall attempt to define terrorism through its structural element and analyse if terrorism is already a crime under the Rome Statute though not explicitly included. After that, we analyse the problems and difficulties in the legal enforcement of the crime of terrorism and problems of investigation and evidence gathering. Lastly, this paper discusses the role of ICC in prosecuting and preventing terrorism and the jurisdiction to prosecute heads of the state even when they enjoy sovereign immunity.

 2. “TERRORISM”- a pROBLEM of definition

Terrorism was first defined in the Convention for the Prevention and Punishment of Terrorism (1937) which only included acts creating terror in minds as having definitional element. Today terrorism has earned many faces and dimensions. Given the practicalities of our lives in the 21st Century, the definition of 1937 is certainly not the right fit, because terrorism today has manifested in chimerical ways. However, there have been many treaties and conventions which defined act of terrorism considering the situational element. Indeed, the definition based on the situational element is not universal and does not give any general definition of crime. Article 4 of Addition Protocol II to Geneva Conventions of 1949 prohibits an act of terrorism against civilians. U.N. Security Council Resolution 1566 (2004) defines terrorism from the perspective of an offence which has already been committed, but excludes preparatory acts and intention to commit such acts as a crime. Article 2 of The Draft Comprehensive Convention against International Terrorism provides the most comprehensive definition which is inclusive of many different facets of the crime of terrorism but has still not come to fruition.

However, the definition of terrorism does have a specific structural element which makes it an international crime within an existing framework of laws. We will attempt to understand terrorism based on these elements, which constitute the crime as it intersects with international humanitarian law (IHL) and the prohibitions against war crimes.

3.definition: analysis, content and character

What legitimises violence? Is it the difference between an act of crime and self-defence and a question of its legitimacy? Instances are galore where states secretly harness, support and empower terrorist groups for national agenda, like Syrian support for the Kurdish PKK, Iran’s support to Palestinian Hamas, Pakistan’s support to terrorist groups in Kashmir. For many States, terror is war by other means.[2] Therefore, if terrorism has to have one universal definition as an international crime, any attempt to define it cannot distinguish between the State or non-state actor in perpetrating the crime of terrorism. On the other hand, if terrorism is an individual outrage to repressive state policy, should the retaliation be categorised as a terrorist act or self-defence? All violent revolutions of past which were against state security were classified as terrorist acts. If we resort to unlawful violence as terrorism, then today the foundation of democracy and freedom stands on the legs of such individual and collective perpetration of violent acts which are now perceived as freedom struggles to overthrow oppressive regimes of past. The nature of oppression can be physical, economic, psychological, induced by discrimination or inequality or sometimes non-action of the world community and can be very subtle in the 21st Century. Thus, a crime against a government or its security agency cannot distinguish terrorism from legitimate freedom struggle against an oppressive regime; in other words, it does not cease to be the legitimate effect of a cause. The definition of terrorism provided by the European Union and the United States legal code rest on the identity of the perpetrator and not the victim. Exclusion of State from the definition, which is the fundamental reason for its universal non-acceptability, remains a regional phenomenon applicable to states given its unique circumstances and suffer from a deficiency of elemental perspectives in defining it.[3] The Supreme Court of the United Kingdom in the case of R v Gul[4] answered the following question of law in affirmative:

“Does the definition of terrorism in section 1 of the Terrorism Act 2000 operate so as to include within its scope any or all military attacks by a non-state armed group against any or all state or intergovernmental organisation armed forces in the context of a non-international armed conflict?”

It indicates that courts have not excluded terrorism from the definition of crime based on the fact that act committed was not during armed conflict. Terrorism is a crime even in a non-armed conflict since there is nothing in international law which prevents the court from including the conduct of non-state actors within the definition of terrorism.[5]

The second characteristic of the definition is the declared intent or motive and its connection with a political objective and psychological harm it causes, in addition to loss or damage to property and body. Criminological theories like frustration-aggression theory conclude that thwarting an individual expected goal attainment, leads to a heightened emotion which can direct an individual to take aggressive action in the form of violence. Robert Angew’s (2010) General Strain Theory (GST) argues that both “strain” and “grievances” are the primary basis of terrorism. Strain theories of terrorism attribute terrorists act to various grievances associated with relative economic deprivation, religious and socio-cultural issues relating to modernisation, neo-imperialism and neocolonialism; hatred over national, financial and military supremacy of western world and inter-religious and racial disputes etcetera. Most studies agreed that strain plays a significant part in the creation of terrorist organisations. Strain could be caused by historical inequality in the distribution of power and resources in society or a conflict of interest between the two groups. [6] Thus terrorism has been the method of attaining specific objectives by violent means without direct use of states armed forces and can be nihilist, aimless and lacking in identifiable political objective as also inspired by vengeance, anger and vindictive behaviour, born of the feeling of injustice and inequality caused by states policies. It must be defined by examination of factors which cause such intent and feeling. International terrorism is, therefore, the result of a failure of national and foreign law enforcement agencies to bring justice and equality in the sphere of equal opportunity, economic development, foreign policy, interference with the nationality of other states, insufficient civil rights within a state and a failure to provide a conducive habitable environment to practice the pursuit of peace and happiness. Thus, any attempt to define terrorism cannot be concerning the effects, but the outcome of the action adopted in addition to effect must bear a distinct correlation with the cause and origin of action. Terrorism can only be defined in terms of the nature, aim and causation of the act, rather than with reference to the agent or consequences ensuing.

Is terrorism a war by other means? It is essential to know this answer since if terrorism is a war than international rules concerning the behaviour of belligerents towards means and methods of warfare, protection of civilians, breach of treaties, humanitarian laws will come into effect. The question answers how can we bring international law enforcement to non-state actors?

War can no longer be defined as only a conflict between States, as War on Terror is an actual war, perhaps a war sui generis, where there is lawful combatant under the authority of State on the one hand and illegal combatants like Al-Qaeda on the other. There is no international obligation to declare a war for war to exist. However, some organisations issue fatwa declaring jihad; even without such declaration, a war can exist like the legitimate act of the U.S. action on Al-Qaeda in Afghanistan under the U.N. Sanctions.[7] Geneva Conventions does not require any party to a war to be a State, and hence Geneva Conventions apply to terrorist organisations and States equally. How then can we ensure that civilians are not targeted, or illegal combatants do not use nuclear weapons or how terrorist organisations be made to follow laws of war; these are the problems of international law enforcement. There is an urgent need to divert the attention from redressing merely effects, to address the cause by negotiation, prevention strategies and deradicalisation. Therefore looking at the definition of terrorism only from the view of the effect it causes will undermine removal of the fundamental basis of its cause, and avert the attention of international community from terrorism practised by political organisations, nationalistic and religious groups, armies, intelligence services and police. Despite this character of terrorism, for several years, U.N. documents have emphasised that terrorism cannot and should not be associated with any religion, nationality or civilisation. Thus, the definition of terrorism can only reflect the elemental properties of its cause and not only the effect in the form of terror, so as to qualify the definition as acceptable to States.

4. Is terrorism an international crime?

Terrorism is an act of violence, is axiomatic. The definition of terrorism as derived from the practice of States in their domestic legislation includes planning, assisting, funding, training, intending and committing an act of violence to result in terror, torture, endangering human life, causing bodily or mental harm, bringing about the physical destruction of the life or a government or civilian population by whatever means and whether intended or not. When compared with Article 6, Article 7 and Article 8 of Rome Statute, many of the categorisations of violence committed under the umbrella of terrorism overlaps with these provisions, which are grave crimes in international law. Article 8 (2) c of Rome Statute includes offences committed during armed conflict of a non-international character like violence, murder, torture, taking hostages etc. as a war crime. The first difference between war crime and terrorism primarily lies in the absence of non-state armed conflict. Thus, terrorism may or may not be practised during armed conflict, and even in the absence of armed conflict, an act of terrorism can be committed, unlike war crime which presupposes the existence of an armed conflict of an international or non-international character.[8] The second difference is that it can involve an act of a single person with or without an organisation. The third aspect is the presence of transnational crime element either in the form of funding or logistic supply of arms and explosives. The fourth element of the crime of terrorism is planning and intent with or without attaining any definite objective. Thus, apart from specific acts of violence committed on the property or person in air, water or land, these four elements always remain the inseparable part of the act of terrorism. If an attempt is made to understand terrorism in the contemporary times following the domestic legislations of different States, the consequences or the result of causing an act of terrorism brings out the elements of a crime as defined under the Rome Statute. Thus, if multiple facets of terrorism are deconstructed and if a crime is measured through consequences of acts simpliciter, then terrorism along with a combination of various characteristics enumerated above is crime against humanity. Article 25 of the Rome Statute mandates trial against an individual, and Article 27 makes official capacity irrelevant to individual acts of crime. Interestingly Article 28 of the Rome Statute does not distinguish between a crime committed by an individual and military commander and other superior officers of legitimate armed forces of the State.

Thus, ICC has sufficient subject matter jurisdiction to try terrorism as a crime under Rome Statue, however with the exception of preparing to commit crime or intending to join a terrorist organisation for training, planning, intending or assisting to commit crime which is not even indirectly covered by the Statute. Thus, Rome Statute only contemplates trying of an individual for a completed crime and the act of planning, assisting or intending are left to the national jurisdictions of the States under domestic laws by invoking the principle of universal jurisdiction.

5. Problems of law enforcement

The first problem for law enforcement is threat assessment and identification of the terrorist groups. In cases where terrorist individually carries out violent crimes, identification of assailants is considerably difficult. Identification of an assailant is a technique associated with crime prevention. Therefore, policies must be adopted to bring about some kind of coordination and command structure within the terrorist groups to prevent individuals from carrying out terrorist attacks outside the organisational structure. The second issue is of international monitoring and policing to ensure that States do not fund, train, promote or employ individual terrorists or terrorist organisations to carry out national agendas. The third problem of law enforcement is the solution to finding by experts that terrorism is a political phenomenon and springs from countries which lack civil rights[9] and hence strengthening the civil rights of citizens in emerging or economic weaker states becomes a collective responsibility of world community. The fourth problem of law enforcement is strategy and treatment of individuals for deradicalisation, and for preventing radicalisation.

The first strategy of counter-terrorism employed is to develop a body of binding international conventions aimed at coordinating and strengthening domestic criminal law response to specific terrorist acts. That nineteen universal anti-terrorism Conventions related to different spheres of activity like aviation security, maritime security, nuclear terrorism, protected persons and hostages, explosives and bombings, and financing, constitutes a legal framework for countering terrorism. These treaties and conventions distinctly define various crimes and require states to assimilate these crimes within their domestic law. These international conventions distinctly and clearly define the crime of terrorism and facilitate extradition by declaring that the crimes will not be considered political offences. The treaties also bring about an obligation to cooperate in matters of preventing terrorism, intelligence sharing and facilitating investigation and prosecution of terrorism offences. They also create a framework for due process, and fair trial. States have under universal jurisdiction tried this offence in domestic courts. Thus any state can apprehend and prosecute the offender for crimes committed in other states despite absence of territorial or nationality link to the crime with the trying State. These treaties concerning limited applicability to combat international terrorism in only some specific sphere of their applicability and are deficient in framework to avert commission of a crime. These conventions are not comprehensive to include under the jurisdiction of the domestic law of the States such activities which though not a crime may culminate as being a step in the act of preparing for one. These conventions do not make acts which may converge into terrorism as an offence. The comprehensive draft Convention on Terrorism is attempting to establish two legal regimes, the first involving states obligation under Convention against terrorist bombings, the Convention against the financing of terrorism and nuclear terrorism. It establishes a penal regime having an international dimension. The second regime is more limited and applies to acts which are domestic and within the territories of states; they include acts that lack an international dimension. The latter includes the duty of the state parties to prevent the use of their territory for acts aimed at the commission of offences in other states; the duty to cooperate with other states in obtaining evidence; the duty not to consider acts of terrorism as political offences for purposes of extradition; certain obligations concerning the human rights of persons suspected of direct or indirect links with terrorism.[10] The newer treaties against terrorism also provide members of armed forces with a degree of immunity for certain acts.[11]

That various U.N. Security Council resolution has also created a framework of cooperation, information sharing and bringing troops contributing countries under the central command of the Security Council for better compliance of International Law. The Resolution 1373 (2001) achieves a significant milestone in this direction by establishing Counter-Terrorism Committee Executive Directorate (CTED). The Security Council Resolution 1566 (2004) achieves another milestone by defining individual criminal acts as terrorism, obligates states to deny haven or support to facilitate such acts and obligating states to cooperate fully in measures to be imposed upon individuals and groups involved in terrorist activities. The most import development in resolution is delinking of terrorism with any religion, nationality or civilisation, and imposing obligation on the States to prevent individuals from participating in terrorist acts. The Security Council Resolution 2178 (2014) recognised and obligated states to observe international human rights law, international refugee law and international humanitarian law while dealing with terrorism. It further enumerates that human rights, fundamental freedoms and the rule of law are effective counter-terrorism measures and failure to observe them has contributed to increased radicalisation and fosters a sense of impunity. Recognition, prevention and deradicalisation of Foreign Terrorist Fighters (FTF) by the exchange of operational information, preventing movements, adequate border controls and controls on issuance of identity papers and travel documents is a state responsibility and effective counter-terrorism measure. It has given rise to soft-law and international obligation of states to make domestic legislation and employ effective local law enforcement to cooperate with Interpol and other transnational police networks.

There is increasing evidence that regular criminal law provisions may be sufficient to secure a conviction in terrorism cases which may criminalise participating and cooperating in the training of terrorism or acts involving preparatory acts for murder. Netherland encountered its first case where a person tried for attempting to travel to Syria for Jihad was found not guilty for preparatory acts of terrorism but was convicted for preparatory acts of murder.[12] After UNSC Resolution 2178(2014) in many cases, preliminary or preparatory offences like providing material support, willingness to be trained for terrorism as well as membership charges, dissemination of material inciting to commit a crime, participation in a terrorist organisation, recruitment for ordinary crimes with terrorist intent is being used in place of principal offences for convicting the suspects of terrorism.[13]

6. challenges of investigation and evidence gathering

Collecting evidence for prosecuting terrorists is difficult and poses a grave security risk. Battlefield evidence referred to as military evidence is one of the options but rarely used. Besides evidence coming from combat zones, internet-based evidence like Facebook or photographs, evidence gathered by inter-state cooperation, telecommunications intercepts, undercover agents, evidence obtained from seized computers are widely used.[14] In 2018, the GCTF which is a multilateral counter-terrorism network of states adopted Abuja Recommendations “The Collection, Use and Sharing of Evidence for purposes of Criminal Prosecution of Terrorist Suspects and The Hague Good Practices”, on the nexus between transnational organised crime and terrorism. It provides policy and operational guidance to the states and prosecutors on criminal justice responses to linkages between terrorism, transnational organised crime and international crime.[15] It provides guidance to the admissibility of evidence before the court. FBI has used online forums and social media to lure jihadists and far-rightists into sophisticated plots before arresting them.

Additionally, utilisation of human intelligence and a mixture of reactive and proactive strategies have remained relatively the same in investigating terrorism plots. The modal investigatory response to terrorism in the U.S. involves federally-led investigations that stem from public tips, information and intelligence findings. Thus public awareness campaigns like “if you see something, say something” and fostering healthy relationships with members of the Muslim American community is crucial, as past research findings indicate that Muslim Americans are vital contributors to reporting suspected terrorist activity.[16] The public and communities are stakeholders and partners in countering terrorism; they include partnership over a wide range of actors and are locally driven. Community policing and police-public partnership can make a tangible and durable contribution to the broader strategic effort to counter-terrorism.[17] Hence local law enforcement can play a vital role in uncovering terrorist plots and developing the system of rewarding confidential informants to effectively investigate and collect evidence to counter-terrorism and bring offenders to justice.

7. role of international criminal court and challenges of cooperative norm

Article 1 of the U.N. Charter enunciates a legal norm of collective measure for the prevention and removal of the threats to the peace and international cooperation in solving the problem of an international humanitarian character. These principles, along with the norm of protection from slavery, racial discrimination, the prohibition of torture, preventing genocide, the prohibition of the use of force and humanitarian law, have acquired the status of Jus Cogen norms. ‘Soft law’ norms like Responsibility to Protect (R2P) create State obligations. The role of International Criminal Court (ICC) in contributing to prevention or deterrence lies in its core function of investigating, prosecuting and punishing the international crimes as defined in the Rome Statute. Additionally, its goal is also to prevent crime by introducing a system of international accountability and deterrence that crime will not go unpunished.

The first function of ICC is to bring about international cooperation in the investigation of crimes by encouraging the exchange of information and intelligence between States. It explores the presence of indicators of crime which is likely to manifest later in the form of international crime. For example, lack of respect for human rights norms is a significant indicator for possible future international crimes. According to broken windows theory, broken windows in a neighbourhood show neglect of law enforcement authorities. Human rights are broken windows. Research has broken down these indicators into various categories to give warning signals to the international community.[18]

The threat to act coercively is another effective preventative strategy. International criminal tribunals are an agent of deterrence. The effect of deterrence through these tribunals is indirect because it is mediated and enforced through transnational networks of governmental and non-governmental actors engaged in promoting and enforcing respect for international criminal justice.[19] According to a research report, the first case of International Criminal Court (ICC) in the ‘Democratic Republic of Congo’ involving the prosecution of Thomas Lubanga Dyilo with the war crime of enlisting children to participate in hostilities as child soldiers, indicates that ICC has potential deterrent effect in preventing the commission of severe violations of recruiting children, though mitigated by numerous factors. [20]

The jurisdiction of ICC is not universal. ICC is the court of last resort and jurisdiction is invoked on failure to prosecute crime by national courts. This phenomenon of allowing the national courts to prosecute crime first with ICC assuming jurisdiction only upon failure to prosecute nationally is known as complementarity principle. Rome Statute recognises the primacy of national prosecutions. Article 15 confers jurisdiction on Prosecutor to investigate proprio motu and request authorisation from Pre-Trial chambers for its formal investigation. International Criminal Court considers admissibility of the case before it in the circumstances when states do not genuinely carry out the investigation, State is unwilling to prosecute or there is an unjustified delay in the proceedings or if the State is shielding the person or proceedings were not conducted independently or impartially. In all such cases, ICC may hold the case, to be admissible for investigation and trial before it. Article 18 confers considerable power to the Prosecutor to pursue investigative steps undertaken nationally. It may call for a report from the States on the progress of investigations and subsequent prosecutions as well as cause preservation of evidence. Thus, Prosecutor oversees the State investigation to assess if conditions for invoking the jurisdiction of ICC are met. Thus, the Rome Statute acts as a supranational framework for prosecution of criminals guilty of serious crimes with the power of overseeing the investigation and national prosecutions.

Under Article 58 of the Rome Statute, the court may issue a warrant of arrest or in the alternative summons to appear. The arrest warrant is executed by making a request to the custodial state for provisional arrest.[21] The accused can apply to the competent authority in custodial state for interim release. The dependence of ICC on the States for the execution of an arrest warrant issued by it has severe limitations on the exercise of its jurisdiction as criminals cannot be prosecuted in their absence. Part 9 of the Rome Statute and Article 86 to Article 99 pertain to international cooperation by states with the court in investigation and prosecution of crimes. The court can request assistance to any state party to Rome Statute and a non-party State based on an ad hoc arrangement or an agreement with such State. Article 88 gives a mandate for changes in the national law as may be required for practical assistance to ICC. Upon request of the court to arrest or surrender, the state party shall consult with the court, and convey difficulty in the arrest of the person. The court is entitled to make a request for provisional arrest when request under Article 91 is pending. Article 93 empowers ICC to request for various forms of cooperation like identification and whereabouts of a person, questioning of any person, protection of victims and preservation of evidence etc. Upon failure of a state to cooperate, ICC can refer the matter to the assembly of States or Security Council to carry out appropriate action to execute the process of the court and allowing it to exercise its jurisdiction.

In the case of arrest of Ahmad Al-Bashir who visited the Hashemite Kingdom of Jordan on March 28, 2017, to attend Summit of Arab League in Amman, Pre-Trial Chamber issued a warrant for the arrest of Omar Hassan Ahmad Al-Bashir the President of Sudan on July 12, 2010, and all states were notified including Jordan with requests for the arrest. Upon Jordan’s failure to execute the warrant, Pre-Trial Chamber ordered a referral to Assembly of State Parties and the U.N. Security Council. The Appeals Chamber held that Pre-Trial Chamber erred in giving the finding that Jordan had not sought consultations with the court and hence exercise of discretion was not judicious, and it set aside referral to Assembly of States.[22] Thus Rome Statute also safeguards states from judicial imperialism.

Though offence of terrorism was excluded from the purview of Rome Statute before its adoption, nevertheless ICC will continue to hold mandate to prosecute terrorists when the crime is of the nature of the crime against humanity and other international crimes defined in Rome Statute. Besides ICC creates an international legal framework for prosecution (without characterisations), and preventing crime by deterrence. It also injects the norm of state to state cooperation, which creates a certain synergy in exchange of information and intelligence sharing between States.

8. Conclusion

The crime of terrorism, when broken into its elemental characteristics, various components of offence (though prosecution of some components having evidential dependence on the former may be problematic) may constitutes an international crime under Rome Statute, and ICC can prosecute offence of terrorism even in the absence of specific inclusion of the crime under the Statute. Want of universal general definition of terrorism and various attempt of United Nations and other states to define it, has not considered its elemental characteristics mainly when even states or international organisations, non-governmental organisations are capable of executing their policy through armed militia or terrorist training of individuals or creating terrorism in numerous other ways either by corruption, hunger as a tool etc. This deficiency, in definition, has also contributed to the failed foreign policies in Governments as a preventive strategy. As jurisprudence of international criminal court is taking shapes like in immunity case, ICC will have an enlarged role in bringing about state cooperation and the building foundation of the norms of state responsibility in matters of criminal justice. The complementarity principle in Rome Statute accords respect to national tribunals but not at the cost of allowing offenders to get away from crime with impunity. It thus legitimises justice delivery internationally. More and more international and domestic legislation on terrorism is likely to generate state practice, and such practices will attain the status of customary international law. “Soft law” obligations in the form of General Assembly resolutions and ILC report do also contribute towards expanding jurisprudence of the international criminal justice system. Thus more and more states must legislate anti-terrorism laws domestically, and centralised international body must be constituted (Like UNCITRAL in international arbitration) which must draft model laws for states to assimilate by way of national legislation with suitable modification to suit its contextual and historical problems. This ultimately will boost customary international law norm gradually and finally will result in evolution of universally accepted definition of terrorism as a distinct norm drawn from common concepts in definition of States universally.

Bibliography

Bishara, Azmi. “What Defines Terrorism?: The Identity of the Victim or That of the Victimizer?” Report. Arab Center for Research & Policy Studies, 2017. doi:10.2307/resrep19951.5. Accessed September 8, 2020.

Detter, Ingrid. Law of War. 3rd ed. New York: Routledge, 2016.

Global Counterterrorism Forum, “Abuja Recommendations on the Collection, Use and Sharing of Evidence for Purposes of Criminal Prosecution of Terrorist Suspects,” January 1, 2018. https://www.thegctf.org/Portals/1/Documents/Framework%20Documents/2018/GCTF-Abuja-Recommendations_ENG.pdf?ver=2018-09-21-122246-523&timestamp=1580219129062. Accessed on September 10, 2020.

Institute for Economics and Peace. “Global Terrorism Index: Measuring and Understanding the Impact of Terrorism,” 2017. http://visionofhumanity.org/app/uploads/2017/11/Global-Terrorism-Index-2017.pdf. Accessed on September 23, 2020.

Journal of Qualitative Criminal Justice & Criminology, Special Issue: Terrorism 7, no. 2 Dallas, 2019.

Kapitan, Tomis, “Terrorism as a Method of Terrorism.” 2013. https://www.degruyter.com/downloadpdf/book/9783110327496/10.1515/9783110327496.21.pdf. Accessed on September 15, 2020.

Krueger, Alan B., and Jitka Maleckova. “Education, Poverty and Terrorism: Is There a Causal Connection?” The Journal of Economic Perspectives 17, no. 4 (2003): 142. Accessed September 9, 2020. http://www.jstor.org/stable/3216934.

O’Donnell, Daniel. “International Treaties against Terrorism and the Use of Terrorism during Armed Conflict and by Armed Forces.” Int. Rev. Red Cross 88, no. 864 (January 1, 2006): 860–862. https://doi.org/10.1017/s1816383107000847.

Okoye, Ifeoma E. “The Theoretical and Conceptual Understanding of Terrorism: A Content Analysis Approach.” JLCJ, January 2017. https://doi.org/10.15640/jlcj.v5n1a5. Accessed on September 7, 2020.

OSCE Office for Democratic Institutions and Human Rights, Preventing Terrorism and Countering Violent Extremism and Radicalisation That Lead to Terrorism: A Community-Policing Approach. Vienna: OSCE, 2014. https://tandis.odihr.pl/bitstream/20.500.12389/21860/1/07990.pdf. Accessed on September 7, 2020.

Paulussen, Christophe, and Kate Pitcher. “Prosecuting (Potential) Foreign Fighters: Legislative and Practical Challenges.” ICCT Research Papers 9 (2018) 23-25. https://doi.org/10.19165/2018.1.01. Accessed on September 12, 2020.

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Schense, Jennifer, and Linda Carter. Two Steps Forward One Step Back: The Deterrent Effect of International Criminal Tribuna. Brussels: Torkel Opsahl Academic EPublisher, 2017. https://www.toaep.org/nas-pdf/1-carter-schense. Accessed on September 9, 2020.

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[1] Institute for Economics and Peace. “Global Terrorism Index: Measuring and Understanding the Impact of Terrorism,” 2017. http://visionofhumanity.org/app/uploads/2017/11/Global-Terrorism-Index-2017.pdf. Accessed on September 23, 2020.

[2] Kapitan, Tomis. 2013. “Terrorism as a Method of Terrorism.”. https://www.degruyter.com/downloadpdf/book/9783110327496/10.1515/9783110327496.21.pdf.

[3] Bishara, Azmi. What Defines Terrorism?: The Identity of the Victim or That of the Victimizer? Report. Arab Center for Research & Policy Studies, 2017. 8-17. Accessed September 8, 2020. doi:10.2307/resrep19951.5.

[4] R v Gul, [2013] UKSC 64, [2013] 3 WLR 1207

[5] Ibid., 50.

[6] Okoye, Ifeoma E. 2017. “The Theoretical and Conceptual Understanding of Terrorism: A Content Analysis Approach.” JLCJ, January. https://doi.org/10.15640/jlcj.v5n1a5. PP. 41-42.

[7] Detter, Ingrid, Law of War. 3rd ed. (New York: Routledge, 2016), 12-13.

[8] Article 6 of Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, states that application of Convention closes after close of military operations.

[9] Krueger, Alan B., and Jitka Maleckova. “Education, Poverty and Terrorism: Is There a Causal Connection?” The Journal of Economic Perspectives 17, no. 4 (2003): 142. Accessed September 9, 2020. http://www.jstor.org/stable/3216934.

[10] O’Donnell, Daniel. “International Treaties against Terrorism and the Use of Terrorism during Armed Conflict and by Armed Forces.” Int. Rev. Red Cross 88, no. 864 (January 1, 2006): 860–862. https://doi.org/10.1017/s1816383107000847

[11] Ibid., 879.

[12] Prosecutor V. Mohammed G. – Asser Institute. District Court of Rotterdam, 2013, case no 10/960233-12. http://www.internationalcrimesdatabase.org/Case/3294.

[13] Paulussen, Christophe, and Kate Pitcher. “Prosecuting (Potential) Foreign Fighters: Legislative and Practical Challenges.” ICCT Research Papers 9 (2018) 23-25. https://doi.org/10.19165/2018.1.01.

[14] Ibid., 27-29.

[15] Global Counterterrorism Forum, “Abuja Recommendations on the Collection, Use and Sharing of Evidence for Purposes of Criminal Prosecution of Terrorist Suspects,” (January 1, 2018), https://www.thegctf.org/Portals/1/Documents/Framework%20Documents/2018/GCTF-Abuja-Recommendations_ENG.pdf?ver=2018-09-21-122246-523&timestamp=1580219129062.

[16] Journal of Qualitative Criminal Justice & Criminology. “Special Issue: Terrorism” 7, no. 2 (Dallas, 2019) 53-54.

[17] OSCE Office for Democratic Institutions and Human Rights, Preventing Terrorism and Countering Violent Extremism and Radicalisation That Lead to Terrorism: A Community-Policing Approach. (Vienna: OSCE, 2014). 25-27, https://tandis.odihr.pl/bitstream/20.500.12389/21860/1/07990.pdf

[18] Schense, Jennifer, and Linda Carter, Two Steps Forward One Step Back: The Deterrent Effect of International Criminal Tribunals.(Brussels: Torkel Opsahl Academic E-Publisher, 2017): 45, https://www.toaep.org/nas-pdf/1-carter-schense.

[19] Ibid., 90-91, 137.

[20] Ibid., 255-256.

[21] Stahn, Carsten, The Emerging Practice of the International Criminal Court. (Leiden: BRILL, 2009): 31-38, https://www.legal-tools.org/doc/695c68/pdf.

[22] The Prosecutor v Omar Hassan Ahmad Al-Bashir, Case No.ICC-02/05-01/09 OA2, in the Jordan referral re Al-Bashir Appeal, (May 6, 2019). https://www.icc-cpi.int/CourtRecords/CR2019_02856.PDF

Paris Agreement – A Perspective

1) History


The first global response to climate change began in the year November 1988 when World Meteorological Organisation (WMO) and UNEP established Intergovernmental Panel on Climate Change (IPCC); tasked with the object of scientifically identifying the causes of greenhouse emissions and to suggest technological innovation to mitigate the change on account of anthropogenic causes. In November of the following year (1990) IPCC presented its first report attributing emission of greenhouse gases from human activity as the primary cause for climate change, calling for a global treaty to arrest such emission. In May 1992 UN General Assembly established Intergovernmental Negotiating Committee (INC) for drafting Framework Convention on Climate change leading to the adoption of United Nations Framework Convention on Climate Change (UNFCCC) in May 1992 and it came into force on 21st March 1994 upon ratification by 196 countries. Following Conference of Parties (COP) which is the highest decision-making body under UNFCCC, in COP 3 the parties achieved a historic milestone in the adoption of the Kyoto Protocol which came into force on 16th February 2005, which binds developed countries to reduction targets. The first commitment period of protocol started in 2008 and ended in 2012. After that United Nations Climate Change Conference (UNCCC) COP 16 met in Copenhagen in December 2009 to explore emission reduction targets, post first commitment period under the Kyoto Protocol which was to end in 2012. The Copenhagen Conference resulted in the Copenhagen accord. The key elements of accord included long-term climate change of no more than 2 degree Celsius, systems of pledge and review for mitigation commitments and actions both by developed and developing countries. States abandoned Kyoto Protocol architecture in favour of a more flexible approach in Copenhagen. The series of negotiations which began in 2005 established Durban Platform establishing Adhoc working group by decision `q 1/ CP.17 in December 2011, which met fifteen times over next fours years, and articulated the hybrid structure of the new agreement and called on states to submit their intended nationally determined contributions (INDC) well in advance to Paris conference and 2014 Lima Call for Action, which elaborated informational norms for parties INDCs. The ADP produced a draft negotiating text in February 2015. Throughout the year, countries began submitting their INDC and before Paris conference, 180 states had done so. This draft text of agreement after a series of negotiations culminated into Paris Agreement in COP 21 in 2015.

2) Comparison with Kyoto Protocol


The Paris Agreement represents the third phase of the United Nations climate change regime. The first phase ran from 1990-1995 and included the adoption of UNFCCC in 1990-1995. The Second phase concerned the adoption of the Kyoto Protocol and occupied the period between 1995-2005. Kyoto Protocol created a binding obligation of containing emission targets qua only developed nations while altogether excluding developing nations like India which were also major contributors to greenhouse emissions. Article 3 which was novel feature of Kyoto Protocol required countries in Annex I to ensure that greenhouse gases do not exceed the limits defined in Annex A and that countries strictly adhered to reduction commitment in Annex B. It further provided for reducing overall emission of such gases by at least 5 per cent below 1990 levels in the commitment period 2008-2012. Article 7 of the Kyoto Protocol prescribed the target of relative reduction of greenhouse gases with reference to the base year of 1990 or another year as provided in article 5. Therefore Kyoto Protocol sought restoration of position to pre-1990 period and had a definite context and target to achieve which distinctly related to reduction to restore the position ante. The Kyoto Protocol also create a subsidiary body for Scientific and Technological Advice, to which parties shall submit data to establish a level of carbon stocks in 1990, thus the scientific determination of threshold to the year 1990 was created and that was set as a Reference point for reversing greenhouse emission. It provided for comprehensive technical assessment of implementation by parties (article 8) and thus provided a detailed framework towards identification of causes of climate change (article 5), defined reduction targets based on common principle (Article 3 and 4), defined common but differentiated responsibilities of parties, provided financial mechanism for developing countries to control emissions and contained provisions for certification of emission reductions by operational entities (article 12). Thus Kyoto Protocol was very aggressive in its approach and created ambitious targets concerning carbon stocks with pre- 1990 as the reference point.
The Third phase of Climate Change Regime ran from 2009 – 2015. The third phase of climate change started with whether after the first commitment period of Kyoto protocol ending in 2012, whether protocol should be extended with second commitment period or a new agreement be adopted which replaced Kyoto Protocol. The United Nations Climate Change conference that met in between 7 to 9 December 2009 which was attended by 100 countries and about 40,000 people was the largest environmental meeting in history. This led to a Political Agreement in the name of Copenhagen Accord which was negotiated by 28 countries. Copenhagen Accord started the next phase of climate change regime by introducing the system of “pledge and review” by developed and developing countries both and included long term limiting climate change to no more than 2 degree celsius. The seed sown in Copanhagen Conference culminated in the fruit of Paris Agreement after series of conferences between 2009 and 2015. The Paris Agreement aims at holding an increase in global average temperature to below 2 degree Celsius of pre-industrial levels and pursues efforts to limit the temperature increase to 1.5 degree Celsius above pre-industrial levels. It enables countries to declare Nationally Determined Contributions (NDC) of emission reduction and mandatorily requires countries to achieve progression beyond existing NDC while submitting successive nationally determined contributions. It requires countries to communicate NDC every five years following the decision in 1/CP.21; Article 13 and Article 17 imposes a responsibility to account for anthropogenic emissions beyond NDC. The Paris agreement provides a framework for non-market approaches to implement NDC’s through mitigation, adaptation, finance, technology transfer and capacity-building. It builds on the mechanism of global stocktake to enhance NDC’s. Conference of Parties (COP) is the highest decision-making body of Paris agreement charged with implementation and advancing the method of mitigating emission. The Paris agreement was to enter into force on the thirtieth day after at least 55 per cent of total global greenhouse gas emitting countries have deposited their instruments of ratification with the depository.
Firstly, Paris Agreement is a legally binding instrument in contrast to Copenhagen accord which was a political deal, however many of its provision does not have legal force or cannot give rise to a legal obligation and are in essence aspirational. For example, the agreement assumes that NDC’s declared by countries even if implemented will achieve change as envisaged; Secondly, it applies to developing as well as developed countries and in that sense is truly a global treaty as of March 15, 2016, 195 countries had put forward intended nationally determined contributions representing 95 per cent of global emissions; thirdly, it is equal in application of its principles and flexible in approach as it permits countries to determine their own NDC’s; fourthly, it establishes a framework which is not limited by time like Kyoto protocol; fifthly, there is a mechanism provided to review progress and furnish suggestions to achieve the desired reduction in emissions. Besides every five years, COP shall meet and take stock of collective progress with increased targets.

3) Obligation and Binding Force


The supporters of the Paris Agreement opine that it is the only true Convention on the subject which has brought all the countries together on one platform under one framework to achieve the objective of climate change. Others say: The Paris Agreement has moved us backwards from binding burden-sharing agreements to a world where climate policy is reduced to pledge and review. Paris Agreement is flexible, some of the provisions are binding but mostly provisions are non-binding. The efficacy of the whole deal depends on countries “naming and shaming” each other to do better. Article 4 if read along with Article 3 makes it mandatory for the country to declare NDC’s to keep the temperature well below 2 degree Celsius above pre-industrial levels and with an obligation that successive NDC’s after 5 years will show progression. Developed countries will have to give financial support to developing countries and though common but differentiated responsibilities principle is incorporated, developed countries share a greater burden by financing developing countries to incorporate technologies for the reduction of emission. Communication of NDC’s is mandatory and parties shall account for their NDC’s, which means the agreement injects responsibility not to understate NDC’s than that which they can achieve one hand and on the other to hand to prevent countries from declaring NDC’s in a manner to defeat the change which agreement desires to bring about. Though Communication of NDC’s is mandatory the content of NDC’s is not mandatory. States have to submit NDC’s but they are not legally bound by them. Nevertheless, the Paris Agreement appears to be a treaty under the Vienna Convention on Law of Treaty having ratified by 195 countries and understood as requiring compliance of certain mandatory provisions of the agreement. While certain other provisions are non-obligatory and not binding since it does not provide for any consequence of non-compliance and particularly use of the word “may” throughout the Paris Agreement indicates political aspiration without being legally binding. There are no consequences for not meeting the targets declared in NDC’s and hence though it is mandatory to declare, and while technical expert review under article 13 may gauge consideration of the party’s support to achieve target, there doesn’t appear to be any enforcement mechanism and hence NDC’s are not legally binding commitment though party is expected to achieve and make best endeavours to meet targets, Paris agreement is aspirational. The Byrd-Hagel Resolution technically does not apply to Paris, because the emissions targets are not legally binding . Thus, the Paris Agreement at best has a hybrid structure of binding and non-binding provisions. It keeps open certain important issues to mature and evolve through negotiations in future, and though it does not provide a final solution to the problem, it at least holds all nations together in the quest to find a solution while defining the direction in which advancements requires efforts. To this end, it is Aspirational, and to the former, it creates a minimum binding obligation.

4) Shortcomings and Effectiveness



The Paris Agreement replaces with the common principle for determining carbon emission of state party having meaningful correlation to a quantified reduction in greenhouse emission with reference to a base year as in Kyoto protocol, to an unspecified aim of abstract declaration by state party of reducing emission without any mechanism of determining if such declaration of reduction in emission on voluntary basis by a state party brings about any semblance of change in greenhouse gas reduction, or as having any potential to bring about any positive impact on climate. The Paris agreement does not bind its parties to do anything other than report on their progress towards the reduction of global warming and does not introduce a system of enforcement. COP 21 did not result in any legally binding emission reduction commitment by the largest per capita CO2 emitters. The Paris Accord, for now, has moved away from using historic equity consideration as a base for binding country commitments. In a report, Organisation for Economic Cooperation and Development (OECD) finds $62 billion as a contribution to climate finance from private and public sources; however this report is criticized as deeply flawed and overestimating. The Paris Agreement does not provide for a system of accountability and commitment to reduction targets by introducing a system of compensation for loss and damages, it does not make compliance to NDC targets obligatory but aspirational, and does not provide for a system of taxation and technology to reward reduction in emission or a shift from use of fossil fuel towards use of more energy-efficient sources. Even if all currently pledged voluntary INDC’s are fully implemented, global emissions in 2030 would be 12 GtCO2e above its allowance for avoiding a warming of more than 2-degree celsius putting the world on track to a temperature rise of around 3 degrees Celsius by 2100. Besides continuation of carbon emission trading runs a real risk of encouraging dependence on fossil-fuel and delaying the progress required towards containing global warming. Thus Paris Agreement does not contain a recipe to counter global warming and climate change in any meaningful way but has succeeded in bringing on board 195 countries to identify, that reduction of emission is an international obligation though without penal consequences. Paris Agreement thus provides a framework which is expected to mature over coming years as calamities draw people and continents near to each other, for more serious and aggressive commitment to reversing the change on account of Anthropogenic reasons.
Under current pledges, the world will warm by 2.8-degree Celsius by the end of century close to twice the limit they agreed in Paris agreement. The governments are even further from the Paris temperature limit in terms of their real-world action, which would see the temperature rise by 3-degree celsius. It is worrying that governments are not stepping up, and it is irresponsible for countries to announce that they will not update their NDC by 2020. GHG emissions of the top ten emitters equal 60 per cent of net global emissions, and yet the highest emitting states also tend to be among the “least vulnerable to the impacts of climate change, [with] this inequality [holding] is true for both 2010 and 2020, Paris agreement has not been able to address this inequality as the beneficiaries of this climate inequity have few incentives to reduce or halt their GHG emissions meaningfully. The agreement requires reporting of anthropogenic emissions by the creation of national inventory and review of the implementation of NDC’s for action and support; it also comprises a technical expert review for improvement of actions to achieve the object of a convention. It also provides for global stocktake every five years from 2023 to assess progress towards achieving the progress by updating and enhancing NDC’s. The concept of Climate finance introduced by the Paris Agreement is a major enabler and is likely to enhance capacity building in developing countries. It provides for the transparency framework, for implementation of object of this agreement in a non-intrusive, non-punitive, collaborative and facilitative manner with respect to national sovereignty. Ultimately Paris Agreement assimilates non-state actors in the form of the international grouping of cities, regions and businesses. The novel feature of the agreement is the participation of sub-national and local authorities, private sector and civil society organisations in the UNFCCC process

5) U.S. Withdrawal and Effects


The United States have an outsized role in global warming since it is the largest per capita emitter in the world. Between 2005 and 2015 US emissions reduced to 11.5 Percent, largely on account of less carbon-intensive fuels like natural gas . However, as per 2016 recorded emissions, US emitted 4833.1 MT (Metric Megatons) of Co2 accounting for 16 percent of Carbon-di-oxide emission of the world and China topping the number to 9056.8 MT (Metric Megatons) accounting for 29% of total world emissions. The per capita emission of US is 15.1 T (Metric ton) and ranks third highest per capita emitter in the world. India and China though largest emitters at 9056.8 MT and 2076.8 respectively, they being highly populous countries the per capita emission is comparably lower than the US. Thus the opportunity to reduce emission from the US will be significantly higher with the adoption of energy efficiency means. President Donald Trump declared withdrawal of US from obligations under Paris Agreement on June 1, 2016, and on November 4, 2019, they officially submitted papers to do so and withdrawal will come into effect from November 5, 2020. The worlds largest emitter the US, withdrawing from Paris Agreement means that worlds largest emitter will neither be accountable nor will contribute towards reducing its greenhouse emission.

Conclusion


The Paris Agreement as it now stands is flexible and provides a Hybrid Structure to reduce emission. It is hybrid in the sense that state parties can voluntary declare NDC’s however there is no mandatory compliance mandate in the form of enforcement mechanism, but provides for reporting, reviewing and accountability towards declared NDC’s. Much remains to be achieved for climate change as the present standard of lowering of temperature by 2 degree Celsius above the pre-industrial level doesn’t do any good for the climate as temperatures are likely to soar by 2-3 degree Celsius in a short run. The agreement lacks much of the incentives in the form of taxation for technology; it does not contain incentives for advancing and innovating in the development of energy efficiency technology and sharing.
Unless there is alternative to Carbon Fuel and efficient technological advancement in which world invests, mere asking for an obligation to reduce emission at the cost of human and societal welfare will result into a roadblock which cannot be cleared on a pillar of morality or threat, and even with climate change affecting our homes. A robust technological advancement in the energy sector which is equally safe appears to be the answer in addition to efforts to preserve the pristine glory of mother earth by compulsory addition of more carbon sinks, in addition to arresting population growth in highly populated countries like India. Since damage to environment is largely anthropogenic, even technological advancement will not be enough in future and the only solution is to create an obligation to limit population growth. Countries like India have no legislation in containing population explosion which it is experiencing. This has resulted in poverty, exploitation, environment damage, law and justice problems, human rights violation going unpunished etc. Large scale illiteracy and government not having enough resources to serve all its citizen equally has ultimately resulted into maze of overlapping complex problems which are not only economic but result of demography also. There is really no international effort in the direction to formulate convention creating an obligation to contain population growth, with the effect that consumers are outrunning resources on this planet. Humanity’s foot­ print is 21.9 ha/person, while the Earth’s biological capacity is, on average, only 15.7 ha/person, with the ultimate result that there is net environmental degradation and loss. After all earths resources are finite, creating an obligation on states to contain an infinity of new additions to the human race.

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Whether JCPOA is a Treaty?


Whether Iran Nuclear Deal is A Treaty and What are international ramifications of U.S. withdrawal ?

1) INTRODUCTION: NEED FOR NUCLEAR REGIME
Post-Hiroshima-Nagasaki bombings, after World War II, number of States like the United States of America, Russia, UK, France and China acquired nuclear weapons capabilities. That was a time when nuclear armaments overshadowed peace and endangered existence of humans on the planet. The need to regulate acquisition, transfer, development and trade of nuclear technology and control over fissionable material was imperative; along with the requirement of a framework to put the control in the hands of those who will know how to strip its military casing and adapt it to the arts of peace. There was a need not only of a Safeguard System as prescribed by IAEA to cover Individual Nuclear Plants or supplies of fuel but also an urgent International requirement to stop further spread of nuclear weapons and eventually towards its elimination; which led to the approval of Treaty on the Non-Proliferation of Nuclear Weapons (Referred to as ‘NPT’ Hereinafter) in 1970. NPT mandated member states to restrict their Nuclear Program to peaceful uses while preventing nuclear enrichment beyond a threshold and subjecting their facilities to inspection by independent third party agency (IAEA). After NPT various Treaties came to signed by states to prevent testing of Nuclear Weapons to atmospheric pollution through radiation and saving Aquatic life, for example, The Comprehensive Test Ban Treaty in 1996.
The Chernobyl Accident and the Three Mile Island nuclear accident in Pennsylvania in 1979 required the world to adopt a safeguard system for operating power plant consequently causing expansion of Nuclear Safety Standard Program (NUSS) and Global Reporting System of accidents and sharing of technological breakthroughs by the states. Technology sharing between nations include design, operation and control mechanism of reactors to mitigate the risks associated with nuclear fuel cycle, radiation safety and Waste management. Prevention of nuclear proliferation and promotion of safe and beneficial use of Nuclear technology required a comprehensive International nuclear regime to be in place.
This paper discusses the legal status of Joint comprehensive Plan of Action (JCPOA) in International law. JCPOA was entered by P5 (Five Permanent Members of UN Security Council being China, US, UK, France, Russia), Germany and European Union (EU) with Iran, with the object to arrest the convergence of Iran towards its stockpile of low- enriched Uranium by 98% which is a step to acquiring Nuclear Weapons and diverging it into enriched uranium up to 3.67% for the use of nuclear technology for peaceful means beneficial for its citizen and mankind in general by adherence to IAEA Safeguard System. Given the instability of political regime in the Middle East and particularly Iran, it was necessary to devise a strategy under International law to denuclearize the Middle East not only to prevent an arms race but also to avert the possibility of nuclear arms falling in the hands of Terrorist Organizations. It successfully puts the Nuclear Genie Back in The Bottle.
2) HISTORY OF NUCLEAR REGIME AND SHORTCOMINGS OF NPT
The Cradle of Nuclear Regime is, The President Mr Dwight D. Eisenhower’s a speech famously known as ‘Atoms of Peace’ to the United Nations General Assembly on Tuesday, 8 December 1953; where he invented the idea of International Atomic Energy Agency in the following words:
The governments principally involved to the extent permitted by elementary prudence, should being now and continue to make joint contributions from their stockpiles of normal uranium and fissionable materials to an international atomic energy agency. We would expect that such an agency would be set up under the aegis of the United Nations. The ratios of contributions, the procedures and other details would properly be within the scope of the “private conversations” I referred earlier.
The Statute of International Atomic Energy Agency (IAEA) which opened for signature on 26 October 1956 came into force after nine months thereafter, on 29 July 1957, when 26 states had deposited their instruments of ratification. The Statute of IAEA is a framework Convention, to impose International Control on acquisition, trade and owning of Nuclear Fissionable Material and Technology by conferring on IAEA, the power of impounding and siphoning off the stock of fissionable material and regulating its stock and supply. The IAEA introduced the regime of Inspection, Investigation and Control to ensure that Nuclear Technology is used only for peaceful means beneficial to mankind and not for military purposes of acquiring nuclear weapons. IAEA also created Nuclear Safety Standard Programme (NUSS) and carried out numerous research and safeguards system (INFCIRC/26) for safe use of Nuclear Technology. Statute of IAEA was not sufficient to prevent the proliferation of nuclear weapons, with this aim Non-proliferation of Nuclear Weapons treaty (NPT) was opened for Signature in 1969 and entered into force in 1970. NPT was attractive for developing nations or those nations who did not achieve advancements for the use of Nuclear Technology (Non-nuclear Weapons State) but were wanting to make Beneficial use of it. Today 191 countries have signed NPT, which is a multilateral treaty with the only sole obstacle to universal adherence to NPT being India, Pakistan and Israel. Whereas India and Pakistan have demonstrated Nuclear capabilities, Israel is also likely to be nuclear-capable. India and Pakistan cannot join NPT as NWS list is closed (Article IX) unless they agree to disarm themselves of all nuclear capability. No non-NPT state has any obligation under NPT except sole exception of the obligation of safeguards of some installations. NPT is a multilateral treaty between Nuclear Weapons State (NWS) and Non-nuclear Weapons State (NNWS), and Article IX defines NWS as that State which has manufactured and exploded a nuclear weapon or nuclear explosion device prior to 1 January 1967. Since India carried out Pokhran test 1st on 18, May 1974 and Second test on 11 and 13 May 1998 it is neither treated as NWS nor NNWS and NPT will not apply to it unless amended or until additional protocol to NPT is adopted.
Iran signed the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) in 1968 as non-nuclear weapons state and ratified the NPT in 1970. In April 2006 President of Iran Ahmadinejad announced that Iran had nuclear technology. This highlights a serious shortcoming in the working of NPT where Iran though an NPT member state does not honour the IAEA safeguard regime fully and shows no regard to Non-proliferation principles in NPT and goes ahead with enriching Uranium. Another instance is where Pakistan admits that its scientists (Dr.A.Q.Khan) have supplied to other non-NPT states, sensitive nuclear technologies; thus Pakistan was involved in International Nuclear Trafficking which led to growing support for a new regime and amending article I of NPT by deleting words ‘Nuclear Weapons State’ and ‘Non-Nuclear Weapons State’ to include India, Pakistan and Israel to prevent the illicit sale of nuclear technology and supply of fissionable material. U.N. Security Council Passed resolution 1696 demanding Iran to stop uranium enrichment in 2006. After a change of regime in 2013 numerous meetings between parties led to authenticating the text and Consent to be bound by all P5 + 1 countries and Iran of Joint Comprehensive Plan of action which is now an International Multilateral Agreement defining a distinct regime to extend and enforce the obligations under NPT by a Non-Nuclear Weapon State.
3) OUTLINE OF JCPOA
The Treaty on Non-Proliferation of Nuclear Weapons (NPT) does not create enforcement mechanism in the circumstances if a Non-Nuclear State begins with a Nuclear Weapons Program. Since Iran substantially progressed in enriching Uranium and importing Nuclear Technology which could have led it to make Weapons of Mass Destruction; an International Instrument with an enforcement mechanism to resolve the issue of Proliferation was the need of the world, given the fact that entire region is unstable. The Joint Comprehensive Plan of Action just achieves and covers this shortcoming of NPT.
The Object and Purpose of the agreement is to ensure that Iran is effectively prevented from developing nuclear weapons program and to pave the way for Iran to use Nuclear Technology for scientific and economic purposes in a peaceful manner. In return, JCPOA ensures comprehensive lifting of all U.N. Security Council sanctions in addition to multilateral and national sanctions allowing Iran to reap the benefits of International Trade, Banking Services etc. The Joint Comprehensive Plan of Action comprises of Preamble and General Provisions, Substantial Specific Provisions are contained in (Part A), and Five annexures provide Technical working details of substantial Provisions. Annexure 1 is relating to Nuclear Measures to be taken by Iran, Annexure-II relates to commitments of EU and United States for lifting Sanctions, Annexure-II is concerning Civil Nuclear Cooperations, Annexure IV concerns Constitution, Functioning and procedure of Joint Commission for resolution of the dispute as well as the constitution of Working group for the lifting of sanctions and Annexure V is the Implementation Plan.
4) NATURE OF INSTRUMENT: WHETHER BINDING OR NON-BINDING
Whether JCPOA is a Treaty, Executive Agreement, or Political Agreement is a complex question and is much debated? It is argued that JCPOA is not a treaty but a political agreement on account of limits of competences of domestic institutions and manner in which legal system of Iran was complied with, while on the other hand it is claimed that there is not much difference between International Treaty and Executive Agreement at least as regards its legal authority, but not complying with domestic ratification process undermines democratic legitimacy of International law. However Calling an agreement an executive or political agreement is a fragile attempt to enter into binding international obligation, particularly when upon change of presidents and political guard, the agreement will be called-back as easily as it was entered into, as was done by Trump in Iran Nuclear Deal. Obama administration in no uncertain terms indicated that JCPOA is a non-binding political agreement.
From a legal perspective Binding Registrable Instruments (BRI) are distinguished from Non-Binding Instruments (NBI) by analysing the intention of signatories to the instruments and primary evidence of intention is the language used in the instrument . The General Provision of JCPOA refers to the terms of the plan of action as reciprocal commitments and not as binding legal obligations or agreement. Clause VIII in General Provision and Clause 28 explicitly states that parties are to perform the terms of JCPOA in good faith and not out of legal obligation created in International law and the most important indicator which violates the definition of Treaty under Section 2 of VCLT is in clause xi which states that provisions are not be treated as part of international law. The use of word co-operation as distinguished from obligation or legally binding right or duty in clause xiii is also a strong indicator to demonstrate that participants to the instrument did not intend it to be a treaty.
Clause 26 in JCPOA clearly states that “United States will make best efforts in good faith to sustain this JCPOA”, which is indicative of the non-obligatory character of commitments in the JCPOA. Clause 34 refers to the provisions of JCPOA as Iran’s commitment as against words having legally mandatory taxonomy like legally obliged or reference to provisions as Article or use of words like duty, right and consideration.
Mark Scully and others in Binding and Non-Binding Instruments in International Relations has stated that:
It is furthermore significant that governments have devised alternative expressions such as “take effect” or “enter into operation “as a mean to avoid an expression that has an obvious connotation of a legal obligation
The use of the term “force” to describe an instrument taking effect can also be taken as another significant indicator that an an instrument intends to create rights and obligations governed by international law
Clause 34 of JCPOA uses the phrase “come into effect” in the context of commitments under JCPOA, which conclusively indicates that JCPOA is not a treaty in International law. Throughout the body of JCPOA instead of obligations the word used is “commitment” referring to political understanding or friendly cooperation but not legally binding obligation, which strongly indicates the intention of parties not to accord it the status of Treaty. Section 5.6 of U.N.Treaty Handbook states that a treaty can be registered only after it has entered into force . JCPOA does not indicate when instruments enter into force, but in contrast, it states when it comes into effect. A depository is almost always appointed in the case of multilateral BRI’s, as is implied by Part VII of the VCLT. By contrast, NBI’s do not name a depository, for example, OSCE Charter and Paris MoU. Article 80 of VCLT uses a mandatory language requiring registration of treaties, and hence the designation of depository acquires an assuming character of instrument that it will be registered . JCPOA does not appoint a depository and parties in the body of its text has not expressed the intention that it shall be registered; the further subsequent conduct of parties also indicates that no attempt was made by any side to register it as a treaty.
JCPOA does not provide for a mechanism for enforcement of rights or obligation under JCPOA like Provision for Binding arbitration of disputes. On the contrary clause 36 providing for dispute resolution mechanism seeks reference to the joint commission, ministers of foreign affairs and the advisory board appointed by parties themselves. Thus an attempt is to prescribe a method of an amicable solution to differences and not settlement of disputes by invoking legal machinery under international law. A provision which stipulates that signatories will engage in amicable consultation and negotiations as the only means of settling disputes raises the inference that instrument is not a treaty .
The Specific Instructions issued by the Foreign and Commonwealth Office of the United Kingdom (UKFCO) on the matter of distinction between BRI’s and mere commitments (NBI’s) states that use of word ‘paragraph’ instead of the word ‘article’ to refer the provisions of the instrument ; use of words accept, approve, decide in place of the word ‘agree’; use of words arrangement or understanding instead of agreement or undertaking; use of word benefits instead of rights; use of the word ‘continues to have the effect’ instead of ‘continue in force’ are all strong indicators that Instrument is not a treaty but a political agreement or MOU indicting mutual understanding . The Department of States (U.S) guidance on drafting non-binding instruments states that certain stylistic and linguistic features tend to be associated with agreement binding under international law and suggests to avoid using the word “treaty” or “agreement”; avoid using the word ‘parties’, ‘shall’, ‘undertake’, ‘entry into force’. When these words are not used, it is indicative of an instrument being not a treaty .
The travaux around the formation of JCPOA also does not express the intent that it was to be an International treaty.The language and text of JCPOA is evincing an intent that the clauses of the agreement are crafted towards the performance of the obligation in good faith and not as an absolute requirement of law. The above analysis of provisions of JCPOA unequivocally leads to a singular inference of it being not a Treaty.
On the other hand, some critics have argued that JCPOA does create a binding legal effect for two reasons, firstly UN Security Council passed resolution 2231 in endorsing the JCPOA and secondly, the terms of the JCPOA and the circumstances surrounding its conclusion lead to one single inference that parties treated it as creating International rights and obligations which were binding in International Law. The intention to create binding obligations under International Law distinguishes a treaty from an agreement between states governed by domestic law. As one cannot judge a book by its cover, the designation of an instrument has no bearing on its nature and status. Thus name JCPOA is, therefore, neither illustrative of it being a treaty nor that it is not a Treaty. JCPOA provisions contain a rule-based system of Non-proliferation regime under the Non-Proliferation Treaty and Inspection, Investigation and Safeguard System of IAEA. Thus it seeks to comply with NPT which is the International law on Non-proliferation of Nuclear Weapons. Interim Agreement called Joint Plan of Action was agreed between Iran and P5+1 on 24 November 2013 where Iran agreed to withdraw a certain nuclear program in exchange of relief from some sanctions. JCPOA contains mutual obligation of limiting uranium enrichment by Iran along with detailed monitoring and inspection regime by IAEA while on other hand P5+1 undertaking a duty to remove sanctions. However, merely because an instrument seeks to adhere to and commits compliance of an International Treaty like NPT will not confer it the status of a treaty.
The United Nations Security Council adopted resolution 2231 on 20 July 2015 endorsing JCPOA. It lifted the sanctions imposed in terms of JCPOA which were imposed in 2006 while requesting IAEA to undertake verification and monitoring of Iran’s Compliance . Iran passed a bill called as Iranian Governments Reciprocal and Proportional Action in Implementing the JCPOA Act on 15 October 2015 which was approved by Guardian Council, which is the supreme body comprising of theologians and legal experts, as consistent with Constitution and Islamic law. This can be seen as a procedure under the internal law of the Iran to seek consent to the terms of JCPOA. The European Council endorsed the JCPOA and resolved to remain committed and abide by its terms and to follow agreed implementation plan . There is no precedent that a procedure under internal law complied for the purpose of the approval of its text, confers on the instrument anything more than legitimacy by signatories. Compliance of Internal law per se is not the standard adopted to conclude an instrument as a treaty as it is not indicative of an intention to create an obligation in international law.
On 9 March 2015, Senator Tom Cotton wrote an open letter to Iranian Leadership signed by 47 of 54 senators stating that agreement signed by President of United States is at best executive agreement since not approved by congress and with a change in president in January 2017 the incoming President could revoke it. The Iranian Leadership raised the letter with US counterparts in negotiation. The State Department responded by saying that “Congress does not have the power to alter the terms of an international agreement negotiated by the executive”. Under Article II of Section 2 of the United States constitution, two-third senate majority is required for an agreement to become treaty. However, in practise since many decades the United States has travelled away from senate approval on account of the impossibility of the process and has executed a number of agreements signed by the President. On 22 May 2015, President Obama signed Iran Nuclear Agreement Review Act, 2015 amending Atomic Energy Act 1954 with the addition of Section 135, which is significant of United States agreeing to lifting sanctions under JCPOA. Under the aforesaid act, President Obama transmitted to Congress, the copy of JCPOA for verification and assessment on 19 July 2015. Under Section 135(c) of Atomic Energy Act, 1954 if no joint resolution is adopted by congress either favouring or dis-favouring the agreement during the review period as provided than action can be taken as regards statutory sanctions within the framework of existing statutory requirements. Since during review period no resolution favouring or disfavouring agreement could be passed, the JCPOA went into effect with the result that lifting of sanctions agreed by Obama Administration became possible by the compliance of internal mechanism under domestic law. At best, this can be seen as the government’s obligation under its domestic law to perform commitment under JCPOA as distinguished from intention to be bound by international legal obligation.
Clause xiv in the preamble of the JCPOA requiring European Union to Adopt JCPOA in Council and forward the resolution to the U.N. Security Council is at best at conferring legitimacy of political understanding. Under Clause 23 U.S. undertakes to bring legislation to end sanction in Annexure-II and the 2015 amendment by Obama administration and forwarding of JCPOA to Congress for approval can be seen a U.S. complying with requirements of JCPOA to lift certain sanctions. President Obama also signed a Presidential Memorandum on 18 October 2015 in compliance of Section 11 of Annexure V to JCPOA to remove U.S. Sanctions on and from Implementation day partially and further directed Secretary of State to carry out all such functions in compliance with U.S. law for fulfilling U.S commitments to JCPOA; the memorandum was directed to be registered with Federal Register. Thus JCPOA is a political Agreement and not a Treaty under International Law.
5) EFFECT OF WITHDRAWAL BY UNITED STATES
On 8 May 2018, President Donald Trump announced withdrawal from JCPOA and on 5 November 2011 United States fully reimposed sanctions which were waived or lifted. U.S. withdrawal from JCPOA will have two immediate effects, and firstly the U.S. commitment was born after compliance with domestic law; hence United States is bound to honor the commitments in JCPOA as regards lifting of sanctions, and second Iran could withdraw from the deal considering its breach of commitments by the U.S., thereby de-railing non-proliferation process as it would make it hard for President Rouhani to protect all aspects of the Compliance in Nuclear deal with hardliners getting encouraged by the fact that Russia, China and EU are not likely to slap the sanctions and are likely to blame Trump Administration for disrupting increasingly flourishing trade with Tehran. United Nations Security Council endorsing JCPOA by way of Resolution 2231 and subsequent U.S. Withdrawal from JCPOA will not affect the legal status or binding obligation under the Resolution 2231. European Union has however passed blocking legislation in 2018 to U.S. Sanctions which means that EU companies will not be affected by US sanctions and that any loss sustained on account of US Sanctions will be recoverable. Iran has continued honoring its commitments pursuant to EU, China and Russia Commitment to adhere and honor the commitments under the deal. The United States in withdrawing from the deal has undone years of diplomatic efforts in reaching the deal, only to get isolated with other members of the European Union and Security Council and without any substantial gain. The U.S. President could not have withdrawn from the JCPOA without resorting to dispute resolution process under JCPOA. Therefore withdrawal by the U.S. without resorting to the procedure under JCPOA renders withdrawal illegitimate though without any international legal liability.
6) CONCLUSION
JCPOA being not a treaty and most of the provisions are limited to a certain time, the future of non-proliferation appears uncertain by employing of this temporary measure. This temporary solution may not be answer to a permanent malady. The JCPOA ensures non-proliferation of Nuclear Weapons program by Iran but falls short of addressing the strategic interest of the world in the region and particularly support to certain terrorist groups in the region by Iran as alleged. That most terms of JCPOA being limited to 15 years also poses the question of future of Nuclear-proliferation after that period when Iran is economically empowered after lifting of sanctions. Thus Serious limitation of JCPOA is that it does not permanently create an obligation on Iran to discontinue its enrichment program and does not provide for the safeguarding of foreign investments in the event of a breach of JCPOA making economic and financial investments by EU and other countries subject to the dictates of the Iranian regime and at the peril of countries. Whether the deal empowers Iran to gain superior bargaining ground after 15 years to dominate the terms of proliferation after 15 years remains to be seen.
That it would be impossible to win the war on proliferation of nuclear weapons without bringing nuclear weapons state like India, Pakistan and Israel under the regime and control of NPT, to design measurable standard of political accountability of states in the world, legitimacy of regime and stability of political order without sacrificing the right of self-determination of people.


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Jus Cogens

The preamble of Vienna Convention on law of Treaties 1969 refers to the right of Sovereign equality, Right of Self-Determination, non-interference in domestic affairs of state, human rights and fundamental freedoms as principles of International law. Article 4 recognises certain norms of International law as applicable to all and does not affect its applicability to any treaty before or after coming into force of VCLT. Article 53 attempts to give definition of Jus Cogens as Peremptory norm of International law accepted and recognised by International Community of State and further renders any treaty in conflict with peremptory norms of international law as void. The preamble of VCLT also refers to customary rule of international law as governing the treaties in the sphere not regulated by present Convention. Article 64 renders an existing treaty void if in conflict with new peremptory norm of international law which came into creation after execution of treaty. Thus a treaty will be void for being in conflict with existing peremptory norm, and an existing treaty which otherwise was valid when created might become void upon coming into existence of new peremptory law. Thus VCLT recognises a higher norm distinctly recognised by general practise of states as creating a binding obligation on states. In the provisions discussed above, the convention has accepted existence of a norm which is inviolable, and has placed limitation on the autonomy of the will of states to execute treaties or laws inconsistent with it. Thus there exists an overriding principle of International Law which is sacrosanct, inviolable and constituting of International public policy, which International community seeks to protect and preserve. These are the fundamental values in which every member of human community has a vested Right, and from which no derogation is permissible either through state act or treaty. It is also characterised as International Public order accepted by all states as constituting fundamental basis of all law and is called Jus Cogens. These characteristics distinguish Jus Cogens from Jus dispositivism which means International norms which can be altered by will of the state.
The special Rapporteur to International Law commission in his First report titled “Jus Cogens” said that description of ICJ of the values underlying the convention on the prevention and punishment of the crime of Genocide provides apt description of Jus Cogens. The Court in the case Concerning Armed Activities on the Territory of the Congo identifies prohibition of genocide as having character of jus cogens. The important element of Jus Cogens is its Universal applicability, superiority to other norms of international law, norm which serves to protect fundamental values of international community of the kind which is international public order (First Report on Jus Cogens by ILC 2016, 26, 38, 44). The Special Rapporteure in his Third report said that there was universal agreement that customary International law was the most common basis for jus cogens norms however in Draft Conclusion 15, it is stated that a Customary International law rule does not arise if it conflicts with a peremptory norm of General International law (Jus Cogens). It is further concluded that customary international rule not of jus cogens character ceases to exist if a new peremptory norm of general international law arises (Third Report on Peremptory norms of general International Law by ILC 2018 , 225-227). Thus Jus Cogens is hierarchically superior than other norms of International law (First Report on Jus Cogens by ILC 2016, 45). For customary international law to acquire that character two conditions which must be fulfilled is, settled general practise having wide prevalence between states and acceptance of such practise as law (opinio juris). Noted author Anthony Aust in his classic work Modern Law of Treaties states that the only universally accepted example of Jus Cogens is the prohibition on the use of force as laid down in the UN Charter. The prohibitions on genocide, slavery and torture may also be said to be jus cogens. Vast majority of the rules of International law do not have the character of jus cogens, hence a treaty in conflict with general international law is therefore not necessarily void ( Aust 2007, 319-320). The Special Rapporteur of ILC in his fourth Report distinctly identifies Prohibition of agression or force, Prohibition of genocide, slavery, apartheid and racial discrimination, crimes against humanity, prohibition of torture, right to self-determination and basic rules of International Humanitarian rule as having acquired status of Jus Cogens ( Fourth Report on Peremptory Norms of International law by ILC 2019, 55).
Article 71 of Vienna Convention provides for consequences of a treaty being void for in conflict with peremptory norm of general international law. The parties are required in law to eliminate consequences of act performed in reliance of provision which is in conflict with Jus Cogens in addition to taking such measures that their mutual relations are brought in conformity with peremptory norm. For a treaty in violation of Article 64, it releases parties from any obligation to perform treaty. However such a release from future obligation does not affect any right or obligation prior to its termination.


Thus Jus Cogen norms are the most sacrosanct norms from which no derogation is permitted either by consent or by any other method. They are hierarchically superior than either Customary international law or General principle of international law or treaty provisions between parties.