International Convention for the Suppression of Terrorist BombingsSenate Consideration of Treaty Document 106-6
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[Senate Treaty Document 106-6] [From the U.S. Government Publishing Office] ----------------------------------------------------------------------- 106th Congress Treaty Doc. 1st Session SENATE 106-6 _______________________________________________________________________ INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF TERRORIST BOMBINGS __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF TERRORIST BOMBINGS, ADOPTED BY THE UNITED NATIONS GENERAL ASSEMBLY ON DECEMBER 15, 1997, AND SIGNED ON BEHALF OF THE UNITED STATES OF AMERICA ON JANUARY 12, 1998 September 8, 1999.--Convention was read the first time, and together with the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate. ------- U.S. GOVERNMENT PRINTING OFFICE 69-118 WASHINGTON : 1999 LETTER OF TRANSMITTAL ---------- The White House, September 8, 1999. To the Senate of the United States: With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the International Convention for the Suppression of Terrorist Bombings, adopted by the United Nations General Assembly on December 15, 1997, and signed on behalf of the United States of America on January 12, 1998. The report of the Department of State with respect to the Convention is also transmitted for the information of the Senate. In recent years, we have witnessed an unprecedented and intolerable increase in acts of terrorism involving bombings in public places in various parts of the world. The United states initiated the negotiation of this convention in the aftermath of the June 1996 bombing attack on U.S. military personnel in Dhahran, Saudi Arabia, in which 17 U.S. Air Force personnel were killed as the result of a truck bombing. That attack followed other terrorist attacks including poison gas attacks in Tokyo's subways; bombing attacks by HAMAS in Tel Aviv and Jerusalem; and a bombing attack by the IRA in Manchester, England. Last year's terrorist attacks upon United States embassies in Nairobi and Dar es Salaam are recent examples of such bombings, and no country or region is exempt from the human tragedy and immense costs that result from such criminal acts. Although the penal codes of most states contain provisions proscribing these kinds of attacks, this Convention provides, for the first time, an international framework for cooperation among states directed toward prevention of such incidents and ensuing punishment of offenders, wherever found. In essence, the Convention imposes binding legal obligations upon States Parties either to submit for prosecution or to extradite any person within their jurisdiction who commits an offense as defined in Article 2, attempts to commit such an act, participates as an accomplice, organizes or directs others to commit such an offense, or in any other way contributes to the commission of an offense by a group of persons acting with a common purpose. A State Party is subject to these obligations without regard to the place where the alleged act covered by Article 2 took place. Article 2 of the Convention declares that any person commits any offense within the meaning of the Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a state or government facility, a public transportation system, or an infrastructure facility, with the intent (a) to cause death or serious bodily injury or (b) cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss. States Parties to the Convention will also be obligated to provide one another legal assistance in investigations or criminal or extradition proceedings brought in respect of the offenses set forth in Article 2. The recommended legislation necessary to implement the Convention will be submitted to the Congress separately. This Convention is a vitally important new element in the campaign against the scourge of international terrorism. I hope that all states will become Parties to this Convention, and that it will be applied universally. I recommend, therefore, that the Senate give early and favorable consideration to this Convention, subject to the understandings and reservation that are described in the accompanying State Department report. William J. Clinton. LETTER OF SUBMITTAL ---------- Department of State, Washington, September 24, 1998. The President, The White House. The President: I have the honor to submit to you, with a view to its transmission to the Senate for advice and consent to ratification, subject to the understandings and reservation set forth below, the International Convention for the Suppression of Terrorist Bombings, adopted by the United Nations General Assembly on December 15, 1997, and signed on behalf of the United States of America on January 12, 1998 (the ``Convention''). Pursuant to a proposal by the United States, the United Nations General Assembly established an ad hoc committee to draft an international convention for the suppression of terrorist bombings in Resolution 51/210 in December 1996. During drafting sessions in New York in February-March and September-October 1997, the ad hoc committee based its work on a draft prepared by the United States and several other countries and was largely able to complete a draft convention, which was then forwarded to the 52nd Session of the U.N. General Assembly for consideration in the Sixth (Legal) Committee. A Working Group of the Sixth Committee resolved the remaining issues in a manner which permitted consensus adoption of the Convention by the full Sixth Committee on November 21, 1997, and by the General Assembly itself on December 15, 1997. The United States initiated the negotiation of this convention in the aftermath of the June 1996 attack on U.S. military personnel in Dhahran, Saudi Arabia, in which nineteen persons, including seventeen U.S. servicemen, were killed as the result of a truck bombing. That attack followed other terrorist attacks in 1995-96 including poison gas attacks in Tokyo's subways; a bombing attack in Colombo, Sri Lanka; bombing attacks in Tel Aviv and Jerusalem; and a bombing attack in Manchester, England. The Convention fills an important gap in international law by expanding the legal framework for international cooperation in the investigation, prosecution and extradition of persons who engage in such bombings. The Convention will provide a new legal basis for international cooperation in the investigation and prosecution of crimes such as the attacks on August 7, 1998, upon United States embassies in Nairobi and Dar es Salaam. The Convention will create a regime of universal jurisdiction over the unlawful and intentional use of explosives and other lethal devices in, into or against various defined public places with intent to kill or cause serious bodily injury, or with intent to cause extensive destruction of the defined public place. States Parties must either submit for prosecution or extradite any person within their jurisdiction who commits an offense defined in the Convention, attempts to commit such an offense, or commits other specific ancillary offenses relating to the commission of such an offense. In creating such a legal regime, the Convention follows the precedents set by numerous terrorism conventions to which the United States is already a party, including the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, the 1979 Convention Against the Taking of Hostages, and the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, with Related Protocol. Articles 1 and 2 together serve to define the offenses covered by the Convention, with Article 1 incorporating several definitions of phrases used in Article 2. Paragraph 1 of Article 2 states that any person commits an offense within the meaning of the Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system, or an infrastructure facility, with the intent to cause (a) death or serious bodily injury or (b) extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss. Paragraph 2 of Article 2 provides that any person also commits an offense if that person attempts to commit an offense as set forth in paragraph 1, and Paragraph 3 provides further that any person commits an offense if that person participates as an accomplice in an offense under paragraphs 1 or 2, organizes or directs others to commit such an offense, or in any other way contributes to the commission of one or more such offenses by a group of persons acting with a common purpose. These ancillary offenses in Paragraph 3 are more comprehensive than those included in the earlier counterterrorism conventions, and it is anticipated that they will strengthen the ability of the international community to investigate, prosecute and extradite those who conspire or otherwise contribute to the commission of offenses defined in the Convention. Article 1 defines the four categories of locations mentioned in Article 2 where an attack gives rise to offenses under the Convention, i.e., a ``place of public use,'' a ``State or government facility,'' a ``public transportation system,'' and an ``infrastructure facility.'' These categories of locations were chosen during the negotiations and defined with a view toward criminalizing attacks in locations where attacks would be of greatest concern to the general public. In addition, Paragraph 3 of Article 1 defines ``explosive or other lethal device'' as including not only conventional explosive or other incendiary devices, but also toxic chemicals, biological agents or toxins or similar substances, and radiation or radioactive material. Thus, the Convention addresses not only bombings using conventional explosives such as those used in the 1996 bombing attack on U.S. servicemen in Dhahran, Saudi Arabia, and the 1998 bombings on United States embassies in East Africa, but also attacks using materials such as those employed in the 1995 attacks on the Tokyo subway system. Article 3 makes most of the Convention's provisions inapplicable to bombing incidents that lack an international aspect. In generally limiting its scope of application to those cases involving elements from more than one State, the Convention follows the precedent set by the prior counterterrorism conventions such as the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation and the 1979 Convention Against the Taking of Hostages. Article 4 requires States Parties to make the offenses enumerated in Article 2 criminal offenses punishable by appropriate penalties that take into account their grave nature. Article 5 requires States Parties to adopt any measures that may be necessary to ensure that criminal acts within the scope of the Convention, in particular where they are intended or calculated to create a state of terror, are not justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, and are punished by penalties consistent with their grave nature. Under Article 6, each State Party must establish its jurisdiction over the offenses set forth in Article 2 when the offenses are committed in its territory; on board a vessel flying its flag or an aircraft registered under its laws at the time the offense is committed; or where the offense was committed by a national of that State. Each State Party has discretion to establish jurisdiction over offenses set forth in Article 2 where the offense is committed against a national of that State; against a State or government facility of that State abroad, including an embassy or other diplomatic or consular premises of that State; by a stateless person who has his or her habitual residence in the territory of that State; in an attempt to compel that State to do or abstain from doing any act; or on board an aircraft which is operated by the Government of that State. Upon becoming a party to the Convention, a State must notify the United Nations Secretary General of the jurisdiction it has established under its domestic law. Thus, under the terms of Article 6, States Parties may enact a broad array of jurisdictional bases over the offenses enumerated in Article 2. Of significant interest and value to the United States, which has many government facilities outside of U.S. territory, is the Convention's recognition of jurisdiction over attacks using explosive or other lethal devices against a State or government facility of that State abroad, including an embassy or other diplomatic or consular premises of that State. This would give the United States universally recognized jurisdiction based on this Convention, for example, to prosecute in U.S. courts the perpetrators of attacks on all U.S. Government facilities abroad, including diplomatic and consular premises, as well as to U.S. military installations such as those attacked in the 1996 Al-Khobar Towers bombing in Dhahran, Saudi Arabia. Also of significant interest and value to the United States is the provision in Article 6 providing that States Parties may criminalize conduct where the offense is committed in an attempt to compel that State to do or abstain from doing any act. This provides jurisdiction for offenses under this Convention where terrorists seek to coerce State action, even where a national or facility of that State is not the target of the attack. In addition to the bases for jurisdiction set forth in Paragraphs 1 and 2 of Article 6, Paragraph 4 of Article 6 requires jurisdiction to be established by a State Party where the alleged offender is in its territory and is not extradited to any of the States with jurisdiction under the convention. Paragraph 5 of Article 6 makes clear that the Convention does not preclude criminal jurisdiction exercised in accordance with domestic law. Article 7 includes certain provisions relating to offenders or alleged offenders detained for the purpose of extradition or prosecution. In a provision of crucial importance for the Convention, Paragraph 1 of Article 8 declares that a State Party which does not extradite an alleged offender found in its territory shall ``without exception whatsoever and whether or not the offense was committed on its territory'' submit the case to its competent authorities for purposes of prosecution, through proceedings in accordance with the laws of that State. Those authorities are obligated to take their decision in the same manner as in the case of any other offense of a grave nature under the law of that State. In an innovation over the prior counterterrorism conventions, the Convention includes a provision proposed by the United States in Paragraph 2 of Article 8, to the effect that the obligation in Paragraph 1 to extradite or submit for prosecution can be discharged by the temporary transfer of nationals for trial by those States Parties that could not otherwise extradite their nationals, provided both the Requesting and Requested States agree. While the United States would have preferred that the Convention include a broad universal obligation for the extradition of nationals, a number of delegations were unable to agree to such a broad provision. This provision on temporary transfer of nationals for trial is nonetheless a useful and unprecedented recognition of this practice by the international community in a binding multilateral legal instrument. Paragraph 1 of Article 9 amends existing extradition treaties to include the offenses defined in Article 2 as extraditable offenses and provides that they shall be extraditable offenses between States which do not make extradition conditional on an extradition treaty. Article 10 establishes general mutual legal assistance obligations between States Parties in connection with investigations or criminal or extradition proceedings brought in respect of the offenses in Article 2. Article 11 provides that none of the offenses set forth in article 2 shall be regarded, for the purposes of extradition or mutual legal assistance, as a political offense or an offense connected with a political offense, or as an offense inspired by political motives. Accordingly, a request for extradition or mutual legal assistance may not be refused solely on such grounds. This article applies to extradition and mutual legal assistance requests involving the offenses in Article 2, and provides a useful narrowing of the political offense exception in such cases. In many modern U.S. bilateral extradition treaties there are already provisions which bar application of the political offense exception to extradition with respect to offenses under multilateral conventions to which ``prosecute or extradite'' obligations apply. This provision builds on this trend by making the restriction on the invocation of the political offense exception for requests based on offenses under Article 2 a matter of general application rather than dependent on the terms of individual bilateral law enforcement treaties between the Parties. Article 12 provides that nothing in the Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance if the requested State Party has substantial grounds for believing that the request for extradition for offenses set forth in Article 2 or for mutual legal assistance with respect to such offenses has been made for the purpose of prosecuting or punishing a person on account of that person's race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person's position for any of these reasons. This article is similar to provisions already included in a number of U.S. bilateral extradition and mutual legal assistance treaties, as well as the 1979 International Convention Against the Taking of Hostages. Article 13 provides and establishes various conditions for the temporary transfer to one State Party, for purposes of assistance under the Convention, of a person in custody in another State Party, provided that the person in custody in another State Party, provided that the person in question consents and the competent authorities of both States agree. This provision was proposed by the United States and is similar to provisions found in virtually all of the bilateral mutual legal assistance treaties to which the United States is a party. Article 14 discusses the rights of persons taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention. Article 15 states that States Parties shall cooperate in several ways in the prevention of offenses set forth in Article 2. Article 16 contains a requirement to notify the U.N. Secretary General of the final outcome of criminal proceedings relating to offenders under the Convention. Article 17 states that States Parties shall carry out their obligations under the Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States. Article 18 provides that nothing in the Convention entitles a State Party to undertake in the territory of another State Party the exercise of jurisdiction and performance of functions which are exclusively reserved for the authorities of that other State Party by its domestic law. Article 19, Paragraph 1, provides that nothing in the Convention affects other rights, obligations and responsibilities of States and individuals under international law. Paragraph 2 of Article 19 contains two important exceptions from the scope of the Convention relating to activities of armed forces and military forces of a State. Under the first exception, the Convention does not apply to the activities of ``armed forces during an armed conflict,'' where such activities are governed by international humanitarian law. This exception is meant to exclude from the Convention's scope the activities of armed forces (which would include both armed forces of States and subnational armed forces), so long as those activities are in the course of an ``armed conflict'' and are governed by the law of war. Given that suspected offenders may claim the benefit of this ``armed conflict'' exception to avoid extradition or prosecution under the Convention, it would be useful for the United States to articulate an Understanding regarding the scope of this exception. In this respect, an appropriate source of authority would be the widely accepted provision in Paragraph 2 of Article 1 of Protocol II Additional to the Geneva Conventions of August 12, 1949, concluded at Geneva on June 10, 1977, which President Reagan transmitted to the Senate on January 29, 1987, for advice and consent to ratification. Specifically, Protocol II states that ``armed conflict'' does not include ``internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.'' Through an understanding, the United States would make clear that isolated acts of violence that include the elements of the offenses of Article 2 would be encompassed in the scope of the Convention. As a separate matter, the term ``international humanitarian law'' is not used by United States armed forces and could be subject to varied interpretations. It would therefore be useful for the United States to articulate in the same understanding that for purposes of this Convention this phrase has the same substantive meaning as the law of war. I therefore recommend that the following understanding to Article 19 be included in the United States instrument of ratification: The United States of America understands that the term ``armed conflict'' in Article 19 does not include internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature and that the term ``international humanitarian law'' has the same substantive meaning as the law of war. The second exception in Article 19(2) exempts from the Convention's scope of application activities undertaken by military forces of a State in the exercise of their official duties. The official activities of State military forces are already comprehensively governed by other bodies of international law, such as the international instruments relating to the law of war and the international law of state responsibility. This comprehensive exclusion of official activities of State military forces from the Convention's scope was an important U.S. objective in the drafting of this Convention. While such an exclusion might be thought to be implicit in the context of the Convention, the Convention's negotiators thought it best to articulate the exclusion in light of the relatively broad nature of the conduct described in Article 2 and the fact that this conduct overlaps with common and accepted activities of State military forces. Because of the importance of this provision, I recommend that the following understanding to Article 19 be included in the United States instrument of ratification: The United States of America understands that, pursuant to Article 19, the Convention does not apply in any respect to the activities undertaken by military forces of States in the exercise of their official duties. The conduct of certain civilians who act in support of official activities of State military forces are also exempted from the Convention's scope of application. The phrase ``military forces of a State'' is defined broadly in Paragraph 4 of Article 1 as meaning ``the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defense or security, and persons acting in support of those armed forces who are under their formal command, control and responsibility.'' In addition, because the Convention does not reach the official activities of State military forces, it similarly does not reach persons, including non-military policy-making officials of States, who might direct or organize the activities of State military forces or who might otherwise have been subject to the ancillary offenses in Article 2 if State military forces had not been excluded from the Convention's scope of application. The Convention also provides in Article 20(1) that disputes between two or more States Parties concerning the interpretation or application of this Convention may be submitted to ad hoc arbitration, or, failing agreement on the organization of such arbitration, to the International Court of Justice. Article 20(2) provides that a State may make a declaration excluding this dispute-resolution obligation at the time of signature, ratification, acceptance, approval or accession. In October 1985, the United States withdrew its declaration under Article 36 of the Statute of the International Court of Justice accepting the compulsory jurisdiction of the Court. Consistent with that decision, I recommend that the following reservation to Article 20(1) be included in the United States instrument of ratification: Pursuant to Article 20(2) of the Convention, the United States of America declares that it does not consider itself bound by Article 20(1), but reserves the right specifically to agree to follow this or any other procedure for arbitration in a particular case. This reservation would allow the United States to agree to an adjudication by a chamber of the Court in a particular case, if that were deemed desirable. The Convention will enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification, acceptance, approval or accession. A State Party to the Convention may withdraw from the Convention on one year's notice pursuant to Article 23. Recommended legislation necessary to implement the Convention will be submitted to the Congress. The Department of Justice joins in recommending that this Convention be transmitted to the Senate at an early date for its advice and consent to ratification, subject to the understandings to Article 19 and reservation to Article 20(1) previously described. Respectfully submitted, Strobe Talbot.