United Nations Headquarters, New York, 6 June 2024
“The Importance of Clear Terrorism Offences to International Cooperation”
Remarks of the Special Rapporteur on the Promotion and Protection of Human Rights
and Fundamental Freedoms while Countering Terrorism, Ben Saul
Excellencies, Distinguished Participants
I would like to thank the Committee for the invitation to present on this important aspect of
implementing Security Council resolutions, namely how to ensure that terrorism offences are
drafted in a sufficiently clear manner to maximize human rights-compliant, effective
international legal cooperation to counter terrorism.
The absence of an agreed international definition of terrorism has led to many divergent
definitions in national law. Over two decades the Special Rapporteur has been persistently
disturbed by the prevalence of national definitions which do not satisfy the requirement of
legality under article 15 of the International Covenant on Civil and Political Rights. Legality
requires that criminal laws are sufficiently precise, unambiguous and accessible so that it is
clear in advance what types of behaviour constitute an offence (A/HRC/16/51).
These differences in national definitions, particularly where definitions are vague or over-
broad, can impede international cooperation for a number of key reasons.
First, the “double criminality rule” common in national laws and criminal cooperation treaties
may prohibit extradition or mutual legal assistance where terrorist offences are defined too
broadly or ambiguously under the requesting state’s law, such that the same conduct is not a
substantive offence in the requested state. International cooperation stands a greater chance of
success if states avoid criminalizing conduct that is not genuinely terrorist in nature and remain
within the mainstream of what is regarded as terrorism.
In this respect, the Special Rapporteur has long recommended that terrorist offences be defined
in accordance with the elements in Security Council resolution 1566 (2004), which in turn
incorporate the offences in the international counter-terrorism instruments. The underlying
convention offences were the product of careful negotiation by criminal law experts working
across legal traditions and generally avoid the over-breadth that is characteristic of certain more
general definitions of terrorism under national law and some definitions of regional
organizations. As such, they generally conform to the principle of legality and provide a more
secure basis for international criminal cooperation on the basis of a common set of offences.
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The more recent international conventions since 1997 also typically exclude the activities of
armed forces in armed conflict from the scope of their offences. Such exclusion helpfully
narrows the scope of core terrorism offences by avoiding criminalizing conduct that is already
effectively regulated by international humanitarian law. In doing so, it reduces anIn doing so,
it reduces potential disagreement between national laws over the scope of offences which could
otherwise thwart extradition or mutual assistance.
Secondly, international cooperation can be stymied where overbroad national offences trigger
the prohibition on refoulement under international human rights and refugee law. International
cooperation in extradition must be refused under where the requested person would face a real
risk of persecution or other serious human rights violations, including a flagrant denial of
justice in a foreign criminal trial. Relatedly, many extradition and mutual assistance laws and
treaties contain a specific non-discrimination clauses to prevent the abuse of international
cooperation procedures. Over-broad terrorism offences may be susceptible to misuse against
individuals on protected grounds, including political opinion, race, religion, nationality, ethnic
origin and so on. The Special Rapporteur and other international human rights mechanisms and
procedures have documented the common misuse of terrorism offences to discriminate.
Thirdly, there is a more general international obligation on states not to cooperate with another
state where its excessive terrorism offences would violate international law. Under the general
law of state responsibility, a state must not knowingly aid or assist another state to violate
international law. Some national terrorist offences criminalize, for example, humanitarian
assistance and medical care that are protected under international humanitarian law. Other
offences intrude on protected freedoms of expression, association, assembly or religion. In such
circumstances, extradition or mutual assistance would be prohibited if would assist the other
state to prosecute such offences in violation of the international obligation separately owed by
each state. Cooperating in the prosecution of offences that criminalize humanitarian ore
medical activities in armed conflict would also violate the cooperating state’s obligation to
“ensure respect” for international humanitarian law by parties to armed conflict.
As the Special Rapporteur reported to the Human Rights Council earlier this year, the misuse
of excessive terrorism offences is rampant worldwide. More recently, the Special Rapporteur
has been concerned about the increasing use counter-terrorism laws as part of the growing
phenomenon of “transnational repression”, where extraterritorial laws and international
cooperation procedures are used in an attempt to harass, intimidate, punish and silence
individuals who are exercising internationally protected rights and freedoms. It is essential that
terrorism offences are defined restrictively and with full respect for the principle of legality, so
as to limit the potential to misuse counter-terrorism laws to destroy fundamental rights.
Thank you.