Including the Crime of Terrorism Within the Rome Statute: Likelihood and Prospects

One of the lessons from September 11, and the more recent wave of terror in Europe, is how latent international terrorism is today, in a world that is increasingly interconnected. This paper analyzes the way that international terrorism is handled from a legal perspective and the reach that the International Criminal Court (ICC) has in terms of jurisdiction on acts of terrorism. The Rome Statute, which gave life to the ICC, excluded the crime of terrorism from its jurisdiction. Two reasons for this exclusion were the opposition from the United States by claiming that this could jeopardize its country’s security when it comes to sharing intelligence with an international court, and the fear of highly politicizing the new permanent international court. However, the official position given to the world as to why the ICC did not exercise jurisdiction over international terrorism was the lack of a definition of the concept of terrorism. This paper argues that since the end of the Cold War, a Post-Westphalian order that gives power not only to States but also to International Governmental Organizations and Non-Governmental Organizations, has created a space and precedent to consider the crime of terrorism as jus cogens. I argue that with the current pressing situation in Europe and the Middle East on terrorist attacks, having the crime of terrorism within the jurisdiction of the court would cover some existing loopholes, not necessarily because the ICC will prosecute every terrorist, but instead because the crime itself will have universal jurisdiction.