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[Senate Treaty Document 106-6]
[From the U.S. Government Publishing Office]





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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.