International law offers a range of practical measures that can be taken against states sponsoring terrorism, writes Karim A. Youssef Terrorism — aggression, violence and intimidation for political, ideological or religious ends — is inherently understood to be performed by rogue, non-state actors. The rogue and stateless nature of terrorism has defined how states and the international community have dealt with it for decades. This is why state-funded terrorism constitutes a breaking point and a major challenge for states. But what are the implications when non-state intimidation is funded and sponsored by states? And what does international law say about how target states respond to it? The concept of state-sponsored terrorism extends beyond financial donations. Sponsoring terrorism can be monetary or non-monetary and can also come in the form of providing safe havens. Often, a common way governments stealthily support these criminal organisations is by granting sanctuary to known terrorist collaborators or immunity from extradition. Some states offer safe havens for terrorist training camps, or even provide the training itself. They provide a fecund environment for the dissemination of extremist beliefs. State-sponsored terrorism is immediately problematic. The victims are, in essence, suffering from the activities of an intermediary puppet, while the true executor is an invisible hand pulling strings from above. In seeking to effect change by surreptitious means, these government puppeteers seek to nullify the legitimate retaliatory actions that may be taken when two nations are engaged in war. They evade the longstanding machinery of international law that has been set up for the regulation of acts of war. Victim states are left without any structured recourse. In this case, what remedy exists for victim states when actions taken against their citizens are perpetrated by a stateless body, but powered by state sponsorship? From a legal perspective, while terrorism is generally stateless, state-sponsored terrorism is an act of war. The growing body of international law that is directly connected to the fight against terrorism provides a framework for counter-terrorism measures. State cooperation in preventing and combating traditional terrorism mainly includes cooperation in areas of criminal law and international human rights law. The predominant practical approach to dealing with international terrorism involves law enforcement. It employs domestic law to deal with terrorist acts through investigation, the issuing of indictments, extradition, trials, and international codification initiatives such as the 1997 UN Terrorist Bombing Convention. It can be argued that state-funded terrorism calls for the application of two fundamental bodies of international law. First, the international law of war and the customary international law rules governing state aggression. The practical approach to dealing with state-sponsored terrorism involves the range of retaliatory responses allowable under international law by way of self-defence and in the face of state aggression. Military action understands international terrorist activities to be a matter of wounded national security and allows for self-defence and the employment of security system measures as a means by which to anticipate or retaliate against terrorist attacks. On the regulatory side, state-funded or state-sponsored terrorism and the international response to them demand the attention of the United Nations and other international governmental organisations in order to codify, update and broaden international law provisions dealing with terrorism so as to encompass and streamline the application of international law to state-funded terrorism. International law also includes the concept of state responsibility for wrongful acts. The concept of state responsibility protects the rights of states by imposing an overarching obligation not to cause harm and holding them accountable for violations of international law. An act of terrorism constitutes an international wrong. International law, particularly the UN Charter which prohibits the threat or use of force against the territorial integrity or political independence of a state, does recognise states as actors that have the potential to either sponsor, support, and execute international terrorism or help maintain respect for international law. Since the 1960s, the UN has adopted a number of international treaties to counter terrorism. These treaties define the offences that can be committed, including crimes against civil aviation, crimes against shipping or continental platforms, crimes against the person, crimes involving the use, possession or threatened use of bombs or nuclear materials, and crimes concerning the financing of terrorism. There is a tendency to consider these treaties as a sort of evolving code of terrorist offences. The most significant of these, in terms of state-sponsored terrorism, is the 1999 UN International Convention for the Suppression of Financing of Terrorism, which establishes the crime of donating or collecting funds “with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out an act which constitutes an offence within the scope of and as defined in one of the treaties and other offences stipulated in its articles”. Importantly, the 1999 Suppression of Financing of Terrorism Convention legitimises action taken by victim states to discourage and suppress terrorism sponsorship. Moreover, the convention makes the failure to implement certain measures (which are otherwise within the purview of domestic law), and broadly speaking the failure to act against the financing of terrorism, a breach of international law and hence an international wrong. It requires state parties to the convention to take steps to prevent and counteract the financing of terrorists, whether directly or indirectly, through groups claiming to have charitable, social or cultural goals or which also engage in illicit activities such as drug trafficking or gun running; commits states to hold those who finance terrorism criminally, civilly or administratively liable for such acts; and provides for the identification, freezing and seizure of funds allocated for terrorist activities, as well as for the sharing of the forfeited funds with other states on a case-by-case basis. Bank secrecy is not an adequate justification for refusing to cooperate. Being one of the most outrageous of international wrongs, sponsoring terrorism entitles the victim state to tap into the full array of remedies available under international law. The 2001 UN Articles of Responsibility of States for Internationally Wrongful Acts dictate that states committing international wrongs by sponsoring terrorism must perform full reparation for injuries caused by their conduct “whether in a form of restitution, compensation or/and satisfaction”. Compensation should cover any financially assessable damage, including loss of profits insofar as this is established, and the satisfaction for the injury caused by the wrongful act is an obligation when the state committing that act cannot make restitution or pay compensation. Satisfaction may consist in an acknowledgement of the breach, or another appropriate modality. To this end, unilateral sanctions taken against states sponsoring terrorism are not uncommon and are entirely legitimate. Moreover, they constitute specific international obligations on victim states and states that are, depending on the context, in a position to suppress or assist in suppressing state funding of terrorism. Unilateral action is a long-standing practice against states supporting or funding terrorism. The designation of state-sponsored terrorism also triggers unilateral sanctions by the US that include a ban on weapons exports and sales, the imposition of financial and other curbs, as well as a ban on economic assistance, and restrictions on the exports of items that can be used by the country to enhance its military capability or its ability to support terrorism. However, typically strong multilateral sanctions are needed to have a serious impact and to place workable bans on trading with the state sponsor concerned. In this way, it is an unquestionable fact of today's international scene that impunity is no longer an option. A state that thinks it may act in secret and without repercussions in sponsoring terrorism that fosters its own agenda is deeply misguided. International law clearly identifies the right of a nation to act in self-defence of itself and its citizens in the face of overt or covert threats to national security. The legitimacy, and in fact the obligatory nature, of this sort of action as a matter of international law precludes any legitimate response from the funding state. In a global world, people's safety is paramount. The rule of international law cannot and does not permit covert terrorist sponsorship to go unpunished. The author is an international law and arbitration practitioner.
