The Relationship between Transnational Organised Crime and Terrorism: An International Law Perspective

Terrorism entered the international agenda in the 1930s, when the League of Nations began discussing the adoption of a Convention for the Prevention and Punishment of Terrorism. This first international instrument (which never actually entered into force) and the numerous universal and regional conventions against terrorism that followed, adopt a typical international criminal law approach, treating terrorism as a form of transnational crime and enhancing international cooperation for the prevention and suppression of terrorist acts and collateral activities. During the negotiations of the Palermo Convention against Transnational Organized Crime, however, most delegations opposed the inclusion of terrorist acts within the scope of application of the Convention. The definition of “organized criminal group” eventually adopted under Article 2(b) makes express reference to networks seeking to obtain “financial or other material benefit”, thus excluding organizations driven exclusively by political or ideological motives. According to the Author, this choice is indicative of the idea which was prevailing at the time, that terrorism should not be treated simply as a form of transnational crime. While negotiations on the Palermo Convention were ongoing, the UN Security Council qualified international terrorism as a “threat to peace”, paving the way for the use of its Chapter VII’s coercive powers. A complex regime of “targeted sanctions” was thus established, compelling States to enforce a travel ban against suspected terrorists and to freeze their assets. This approach, however, did not rule out the traditional international criminal law strategy against terror, but rather complemented it, granting States an additional pre-emptive tool to counter the activities of terrorist groups. It was only in the aftermath of September 11 that the effectiveness of the international criminal law approach to the fight against terrorism was altogether called into question. Some States began to describe their counter-terrorism operations as legitimate acts of self-defence against enemies, rather than as police operations against criminals, thus shifting from the traditional law enforcement paradigm to an armed conflict paradigm. This chapter addresses the shortcomings of this approach, arguing that both the international and the non international armed conflict legal frameworks are unfit for the fight against terrorism, and suggesting that the traditional law-enforcement legal regime, on the contrary, is flexible enough to adapt to the peculiarities of international terrorism, allowing States to efficiently contrast this heinous crime without sacrificing the human rights of suspected terrorists. The established rules of international law allow States to resort to the use of extensive cross-border military force to counter terrorism only in exceptional circumstances, namely when they have been victims of a terrorist attack attributable to a foreign State — which may then be considered as the legitimate target of their defensive reaction — or when a terrorist group has acquired effective control over a given territory, and uses it as a base for launching attacks abroad. Even in these cases, however, the ‘ military mode of operation ’ should not entirely supersede the traditional ‘ criminal law strategy ’ .In this perspective, the time seems ripe to reconsider the potential impact of the Palermo Convention in the fight against terrorism. First of all, it should be reminded that a universally accepted comprehensive definition of terrorism is still lacking, and no consensus has so far been reached on whether religious, political, or ideological goals should constitute an essential element of such a definition. The adoption of a restrictive definition of terrorism, on the other hand, would not necessarily rule out the relevance of the Convention as a counter-terrorism tool. Groups that mainly pursue political or ideological goals, in fact, may still qualify as “organized criminal groups” under the Convention if their activity involves the perpetration of serious crimes to fund their cause. The Convention, moreover, constitutes a valid instrument to counter criminal networks which make profit abetting terrorist groups, for example laundering their money or smuggling their affiliates.