1. Terrorism: a threat to international peace and security
Since the adoption of the Convention for the Prevention and Punishment of terrorism by the League of Nations in 1937, the fight against terrorism has been continuously on the agenda of the international community. Thus, since 1963 the international community has armed itself with an arsenal of 16 universal legal instruments relating to the prevention and suppression of terrorist acts. Moreover, for more than a decade, the General Assembly of the United Nations, in particular on the initiative of its Sixth Committee, has adopted annual resolutions on measures intended to fight international terrorism.
As part of the plan of action of the United Nations Global Counter-Terrorism Strategy, Member States, resolved to cooperate fully in the fight against terrorism, in accordance with their obligations under international law, in order to find, deny safe haven and bring to justice, on the basis of the principle to extradite or prosecute, any person who supports, facilitates, participates or attempts to participate in the financing, planning, preparation or perpetration of terrorist acts or provides safe havens; and to ensure the apprehension and prosecution or extradition of perpetrators of terrorist acts, in accordance with the relevant provisions of national and international law, in particular human rights law, refugee law and international humanitarian law.
The Security Council has also adopted several resolutions regarding the fight against terrorism. Resolution 1373 (2001), of 28 September 2001, adopted following the attacks of 11 September 2001, is of particular importance because of its effective range of action. Importantly, the resolution was adopted by the Council under Chapter VII of the Charter of the United Nations, which means that terrorism must be regarded as a threat to international peace and security. In the resolution, the Council called on States to work together urgently to prevent and suppress terrorist acts, including through increased cooperation and full implementation of the relevant international conventions relating to terrorism, and recognized the need for States to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism.
Before the adoption of resolution 1373 (2001), the number and the complementarity of conventions, protocols and resolutions of the United Nations against terrorism already constituted a structure that offered an effective legal framework for international legal cooperation in criminal matters. However, in that resolution, the Security Council called upon all States to become parties as soon as possible to the relevant international conventions and protocols relating to terrorism (paragraph 3 (d)), giving the existing texts a much greater impact than they had had before.
In General Assembly resolution 60/288, Member States resolved to implement all General Assembly resolutions on measures to eliminate international terrorism.
It is in this context that international cooperation in criminal matters related to terrorism is of major importance in the realization of the goal of preventing and suppressing such offences. However, mechanisms for international cooperation are of no use without their effective use by Member States and their counter-terrorism practitioners.
2. Strengthening international cooperation in criminal matters
Against the backdrop of globalization and the development of international terrorism, therefore, it is necessary to strengthen the means to punish offences committed in that context on an international scale. It is often difficult to start investigations and prosecutions against those suspected of participating in terrorist activities. It is even more difficult to try to institute proceedings when the suspect, the victim, the principal evidence, the principal witnesses, the principal experts or the proceeds of the crime do not come under the authority of the country concerned. Whereas all forms of transnational criminality, including terrorism, have thrived with globalization, the national mechanisms for cooperation between States still lack cohesion and are often ineffective. Yet international cooperation is essential to criminal justice practitioners faced with new forms of transnational criminality and terrorism. It is indeed unrealistic today to confine all criminal investigations or prosecutions related to terrorism within national borders. This is even more so as criminals profit from the advantages obtained for the protection of citizens within the framework of state sovereignty.
The international community has developed a series of mechanisms for international cooperation in criminal matters concerned in particular with extradition, mutual legal assistance, the transfer of criminal proceedings, the transfer of convicted persons, recognition of decisions of foreign criminal jurisdictions, the freezing or seizure of assets, and cooperation between law enforcement agencies. Those mechanisms relate to all types of criminality – international, transnational or national – including terrorism.
On the other hand, other types of cooperation may be specific to the fight against terrorism, in particular concerning cooperation in the fight against the financing of terrorism.
