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Promoting Peace Journalism During Conflict Situations: Challenges and Prospects

dialogue. In other words, peace journalism must be free of some of the constraints that
constrain mainstream journalism practise. It must break free from the confines of mainstream
journalism in order to focus on effecting change, preventing crises from escalating, and doing
everything possible to promote intra- and international dialogue among people with opposing
ideas and values on any given issue. It should not be overly concerned with traditional
journalism’s showmanship and excitement. Its goal, which is to prevent violence, should not
be hidden. Its mission statement should be the promotion of peace.

Sixth, it is also important to note that the prospect of peace journalism is dependent on
an interventionist approach. It aims, for example, to do at an earlier stage what the fighting
parties and mainstream media struggle to do after the conflict has manifested and destruction
has been perpetrated against groups. It works to change the hearts and minds of conflict
participants. If no serious harm had been done, hearts and minds would be more receptive to
such overtures. Peace journalism’s intervention at the latent level would make this much
easier.

IV. CONCLUSION
Conflict resolution has emerged as a critical issue in modern journalism. Peace journalism
has piqued the interest of communication scholars in recent years, particularly those
concerned about journalists' over-reliance on conflict as a source of news. Although it is the
responsibility of journalists to be ethically correct in their work and to look for facts and
report the news objectively and reasonably, it should not be denied that the same story can be
told in multiple ways. Journalists need to learn more about the concept of peace journalism,
and holding seminars on the basics of peace journalism can help. Journalists should work
together to develop reporting guidelines. The paper submits that peace journalism is more
realistic in the sense of fidelity to an already existing reality, regardless of our knowledge or
representation of it. Reporting violence without context or background is misleading because
any conflict is, at its core, a relationship—of parties setting and pursuing incompatible goals.
It is a distortion to exclude any discussion of them.

It goes without saying that the time has come for “peace journalists” to write not only
about war, but also about its causes, prevention, and methods for restoring peace. They do not
need to invent solutions to conflicts, just as health journalists do not need to invent cures for
diseases; they consult specialists. In order to create a favourable environment for peace
journalism to thrive, the paper recommends the following:

First, because peace journalism is proactive, journalists should investigate the causes of
conflict, which could lead to a healthy debate about finding solutions. Journalists must
identify the views and interests of all parties, rather than reducing the conflict to two parties,
i.e., the winner and the loser approach. It is important to note that peace journalism strives to
unite rather than divide parties and avoids oversimplified “us vs. them” and “good guy vs.
bad guy” reporting.

Second, journalists must reject official propaganda in favour of seeking facts from a
variety of sources. In other words, when it comes to news reporting, journalists must take a
balanced approach by covering issues, suffering, and peace proposals from all sides of a
conflict while avoiding taking sides. As a result, instead of reporting for and about elites and
those in power, journalists must give voice to the voiceless.

Third, journalists must choose and analyse their words carefully. In other words,
journalists should be mindful of their word choice when reporting on conflict and violence. In
short, journalists should be aware of the language they use in their reporting and how it can
help with conflict prevention, containment, and de-escalation. When covering conflicts and
crises, journalists must be aware of both the negative consequences of their reporting and the
potential for their coverage to promote peace in their communities.

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International Peace and Security: The Achievement of the United Nations and the Way Forward

Fourth, rather than providing superficial and sensational “blow by blow” accounts of
violence and conflict, journalists must provide depth and context. Journalists should not
withhold certain facts, but they should also not sensationalise them. These facts should be
presented alongside nonviolent solution. In other words, journalists must provide counter-
narratives to debunk media-created or perpetuated stereotypes, myths, and misperceptions.

Fifth, editorial independence is required for the practise of peace journalism to thrive.
Although editors play an active role in the selection process, they frequently adhere to the
newspaper's owner's policies. As a result, it is critical for editors to be independent of the so-
called owners of the newspapers.

Finally, peace journalism being a framework for improving conflict coverage by
questioning traditional news values, it is vital that peace journalism should not be viewed as a
one-size-fits-all approach, i.e., one that must be embraced and transformed by journalists and
academics before it can become a reality in mainstream newsrooms. It is critical for
journalists to understand that peace reporting should not be limited to times of conflict.
Instead, they should incorporate its principles into their daily reporting on a regular basis.

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International Peace and Security: The Achievement of the United Nations and the Way Forward

22 October 2022
E-ISBN 978-967-491-267-3

p. 77-86

8. THE ROLE OF UNITED NATIONS IN
ESTABLISHING PEACE THROUGH

EDUCATION: ACHIEVEMENTS AND THE
WAY FORWARD

Muhammad Faheem Channa
University of Sindh, Pakistan
Email: [email protected]

ABSTRACT
Education plays a key role in establishing peace, eradicating poverty, and
bringing about sustainable development. Education is one of the fundamental
human rights and the United Nations since its inception has performed an
important role in assuring this right. In 1945, United Nations Educational,
Scientific and Cultural Organisation (UNESCO) came into being for making
education free and accessible to every child so that peace can be established all
over the world. Since then, United Nations adopted several measures to counter
illiteracy and promote a peaceful environment through education. Sustainable
Development Goals (SDGs) are said to be vibrant initiatives taken by the United
Nations in this connection. Quality Education ranks 4th in SDGs, which is aimed
at providing free and quality education to children and adults, closing the gender
gap, and making peace inevitable through education by 2030. However, peace is
still a distant dream in today’s world because of the low standard of education and
a huge gap in literacy rates between developed and underdeveloped countries. It
has often been observed that where the rate of education is low, the rate of
development is low and where the rate of education is high, there is an
atmosphere of peace. T his is the reason, most nations of West Asia, South Asia,
and Africa regions are facing a long list of challenges to survive. There is a dire
need for the United Nations to come up with the best strategy to increase
education rates in the world in general and poor countries in particular. A vibrant
strategy that would enable poor countries to move towards sustainable
development and prosperity and bring peace to the world. Because peace is
possible only through education. This article will cover all aspects of the topic
and will also be comprised of suggestions for ensuring peace through education.

Keywords: Education, Peace, United Nations, Education for Peace.

I. INTRODUCTION
United Nations was established with the goal of saving future generations from the ravages of
war. And it could be made possible by introducing an international organisation for the

Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward

purpose of promoting peace through education. Therefore, in November 1946, 37 nations
ratified the constitution of the United Nations Educational, Scientific and Cultural
Organisation termed as UNESCO. It was aimed at building peace through education, science,
and culture under the umbrella of the United Nations Organisation275. Rebuilding the
educational institutions that had been decimated in Europe during World War II was
UNESCO's initial focus. Since then, UNESCO's activities have been primarily facilitative,
aimed at assisting, supporting, and complementing the national efforts of member states to
eradicate illiteracy and extend free education276. The United Nations Organisation however
has been successful in escaping the world from World War III, yet establishing peace is still a
distant dream. Powerful countries have been the authorities of exploitation of underdeveloped
countries by looting their resources at their own wish. Millions of innocent people and
children are killed because of vested interests. In such turmoil and a terrible environment, life
is at a mercy of miracles to survive. To assuring a peaceful atmosphere, UNO has initiated
several programs of education. Because, education is mental, physical, and moral training and
aims to produce highly cultured men and women who are capable of performing their duties
as good human beings and as responsible citizens of a peaceful state.

II. PEACE
From ancient times till today, human beings have made the most efforts to establish peace in
the world. Because the word "Peace" is a happy word and also brings attention to a peaceful
society and a beautiful world. It is said that peace is the greatest and highest goal that almost
everyone strives for. In the past, people tried their best to achieve this goal. That is why we
can say that the history of human beings is actually the history of efforts made for peace.
People have defined “PEACE” according to their own approach. Some people say that peace
is a situation or a time in which there is no conflict of any kind, while the others think that
peace means absence of war. As far as the word “PEACE” is concerned, it is derived from
the Latin word "PAX" which means an agreement between two parties or countries to stop a
conflict or war. The meaning of peace is elaborated by world famous Merriam Webster
Dictionary in following words: “(1) a state of tranquillity or quiet: as a: freedom from civil
disturbance, and (2) a state of security or order within a community provided for by law or
custom”.277

Different scholars have produced different definitions of peace. Johan Galtung, a
Norwegian great peace scholar, describes peace as a coin. According to him, there are two
sides of peace related to negative and positive peace. Negative peace is the absence of
personal violence; positive peace is an absence of structural violence or social justice278.
According to Albert Einstein, the mere absence of war is not peace, but the real peace is the
observance of justice and law, observance of human rights and personal freedom in this
society or state279. According to Martin Luther Junior, “True peace is not merely the absence
of tension: It is the presence of justice”280. Baruch Spinoza (1632-1677), one of the famous
philosophers of his time was of the view that peace does not only mean the absence of war

275 “UNESCO”, accessed August 20, 2022, https://www.unesco.org/en/brief
276 “UNESCO”, accessed August 20, 2022, https://www.britannica.com/topic/UNESCO
277 “Peace”, accessed August 20, 2022, http://www.merriam-webster.com/dictionary/peace
278 Johan Gultung, ―Violence, Peace, and Peace Research‖, Essays on Peace: Paradigms for Global
Order, ed. Michael Salla, Walter Tonetto &Enrique and Martinez, (Central Queensland University
press,1995), p. 15.
279 P. Aarne Vesilind, Peace engineering: when personal values and engineering careers converge,
(USA: Lakeshore Press, 2005), 43.
280 Coretta Scott Kin , The Words of Martin Luther King, Jr., (New York, Newmarket Press, 2008), 83.

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but a virtue, a state of mind281. Besides, Jawaharlal Nehru, Dalai Lama, and others are of also
thought that the mere absence of war is an understatement regarding peace.

Numerous factors, such as poverty, illiteracy, deteriorating environmental conditions,
and social inequality, corruption, terrorism, energy insecurity, and economic crisis have
become the biggest obstacles in the way of peace and development. These issues have a range
of foundations, including economic, political, social, cultural, and environmental ones. It is
challenging to advance peace when these components lack certainty and security. We will not
discuss all factors in detail that poses threat to peace but will mention some important of them
in brief.

Although there are several reasons for committing the crime, poverty is the foremost
among them. We kn ow that some things are included in the basic human needs. Those who
have all basic needs commit very little crime and those who are deprived of these needs are
indulged in committing crimes. New World Bank estimates show that on the current
trajectory by 2030, up to two-thirds of the extreme poor worldwide will be living in these
situations, though they account for just 10 percent of the global population. Fragility, conflict,
and violence (FCV) would reverse the development gains in many developing countries282.
Similarly, until the darkness of ignorance is removed, the dream of progress for a nation is
just an illusion. If we look at the history of the world, ignorance is the source of all the riots.
Ignorance is not only that one does not know how to read and write, but many educated
people go through the motions that are not expected of an educated person. Therefore,
ignorance refers to actions that are not appropriate, actions that we do not like for ourselves
and undergo for the sake of others, that is called ignorance. Now whether we are
conventionally literate or not is the same thing. Ig norance divides people into many sects
because due to lack of knowledge, myths, prejudices, and hostility arise at unprecedented
speed among the people belonging to different languages, nations, sects, or groups.

Corruption is the biggest threat to peace in the world today. The establishment of peace
and stability in the world is a distant dream in the presence of these evils. Corruption is a fatal
disease that fragile society from the inside. It is clear that corruption plays an important role
in the destruction of nations, in any form. The more corruption there is in the nation, the more
the nation or country falls into the pit of destruction. More than two-thirds of countries are
suffering from the dangerous disease of corruption. In these countries, government
institutions are established for anti-corruption but all their efforts prove to be a wild goose
chase due to political interference and other malpractices. The scores of several democracies
that used to top the index and champion anticorruption efforts around the world are
deteriorating. Many of these high-scoring countries remain safe havens for corrupt
individuals from abroad283. The governments of the most corrupt countries also lack the
commitment and determination that is required to control corruption. This is why institutions
of the countries fail to perform their role in development.

The threat of terrorism and extremism is a daily challenge that has shaken our political,
economic, and social systems and has put a big question mark before the security and
stability of our region. It is a global phenomenon that transcends borders, cultures, and
religions and requires the joint efforts of the international community to combat it. Our fight
against terrorism is not just a military one because terrorism is a complex and multifaceted
problem that requires a specialised approach to tackle its spread. Efforts to undermine
extremism and terrorism must therefore take a multi-pronged approach, from tackling the

281 Dictionary of Quotable Definitions, ed. Eugene E. Brussell, (New Jersey: Prentice-Hall, INC., 1970), 426.
282 Corral, Paul; Irwin, Alexander; Krishnan, Nandini; Mahler, Daniel Gerszon; and Vishwanath, Tara, Fragility
and Conflict: On the Front Lines of the Fight against Poverty (Washington DC: World Bank, 2020), 18.
283 Corruption Perception Index 2021, (Berlin: Transparency International, 2021), 6.

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roots of radicalisation to tackling terrorist recruitment and encouraging active participation of
individuals in society.

III. EDUCATION
The meaning of education is to tell someone something, to teach, to teach, to advise, or to
guide, i.e. to teach students to write, read or calculate, etc. or to teach a subject or a book.
Education is a process through which an individual and a nation acquire self-awareness. It is
the process that enhances the consciousness of the people and makes them a sense of goal-
oriented life. Through education, a nation transmits its cultural and intellectual heritage to
future generations and inculcates its attachment to the vision and mission of life. Education is
mental, physical, and moral training and its aim is to produce highly cultured men and
women who are capable of performing their duties as good human beings and as responsible
citizens of a peaceful state.

Education is an indispensable process for the survival and development of any society.
Its usefulness has been felt in every period of evolution of human civilisation, because no
matter what philosophy of life a person belongs to, he has to resort to education to achieve
the goals of his life. It is obvious that when education is a tool to achieve the goals of life, it
should also have some goals because education without a purpose becomes a futile and
meaningless process. Setting goals is what makes it a motivating and effective process.
Objectives not only determine the direction of the education system but also give it internal
motivation. Among the objectives that have been set by the educationists according to the
circumstances and needs of their surroundings, the following are the most important ones:

(1) Vocational purpose
(2) Making good citizens
(3) Preparing the new generation for the future
(4) Development of individuality etc.
Goals have some value in our society, they motivate an individual to invest his energy
in achieving them. Without determining the objectives, it is difficult to determine the
curriculum and teaching methods. Apart from these, the objectives also determine the
principles and criteria on the basis of which the educational process should be evaluated.

3.1 Literacy at A Glance
8th September is celebrated as ‘Literacy Day’ every year in the world. It was declared by
UNESCO on 26 October 1966 and the first time it was celebrated in 1967. The purpose
behind this celebration was to propagate the importance of literacy among the people. Several
definitions of literacy were adopted for the years, but now it is defined as the ability of a
person to read and write. It is assumed that a high literacy rate assures a high rate of
development because literate people are conscious to their rights, responsibilities, and
manners of life. Moreover, countries having a high rate of literacy are highly developed as
compared to those which have a poor rate of literacy. The reason is that literacy boosts the
mental approach of people and makes them adept in professions and skills. The developed
nations are so called because with the high rate of literacy, they have made developments in
every field by leaps and bounds. The rate of literacy of developed nations has been estimated
96 percent or more than that. On the other hand, least developed countries have literacy rate
not exceeding to 65 percent284. It has been observed that countries with the highest literacy
rate have least poverty rate and nations with the lowest literacy rate are entangled in the

284 “Literacy Rate by Country 2022”, accessed August 20, 2022, https://worldpopulationreview.com/country-
rankings/literacy-rate-by-country

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vicious circle of poverty. It is obviously clear to say that literacy is directly proportional to
development of a country.

3.2 Current Educational Scenario
Although education is considered the backbone of the nation, but even today, most of the
countries in the world seem to be lagging far behind in the field of education. W here
education is the guarantee of development, prosperity, peace, and security, its absence causes
many problems. T his is the reason why countries lacking education continue to suffer unrest,
terrorism, conflict, poverty, inflation, unemployment, inequality and many other problems.
These elements have a negative effect on education. These are the factors that prevent people
from getting education.

Poverty produces great obstacles in the way of education. It deprives people's minds of
educational consciousness and compels them to think only of earning bread. Undoubtedly,
many youngsters from underprivileged families are compelled to drop out of school owing to
health issues brought on by malnutrition or in order to work and support their families.
Poverty and illiteracy are also closely related and are inversely proportional to each other.
South Asia, West Asia, and sub-Saharan Africa are the regions containing the majority of the
world's poorest nations, and these regions also have the majority of the nations with the
lowest levels of literacy285. It is quite clear to say that poverty prevails over education.

The world is suffering a lot due to widow school children. Children out of school are
among the most marginalised and susceptible members of society. They are cut off from the
safety net that schools provide, which puts them at an increased risk of being exploited and
living in poverty for the rest of their lives. They also have the lowest probability of being able
to read, write, or do basic math. The UN global fund for education in emergencies and
protracted crises, Education Cannot Wait (ECW), outlines that of those 222 million girls and
boys, as many as 78.2 million are out of school, and close to 120 million who are in
attendance are not achieving minimum proficiency in math or reading286. It further states that
these children are deprived of their dreams because of several impediments including
conflicts, pandemics, disasters and displacement.

It has been observed that underdeveloped countries have been facing the issue of
gender gap with respect to literacy rate due to many factors. In less developed countries, it is
generally believed that women are born to work at home for men and children and men have
the responsibility to work for their bread and other basic necessities. Therefore the literacy
gap between men and women is very high in these countries whereas in developed countries,
this disparity is not found to such an extent. Gender parity is not recovering, according to
the Global Gender Gap Report 2022. It will take another 132 years to close the global gender
gap. As crises are compounding, women's workforce outcomes are suffering and the risk of
global gender parity backsliding further intensifies287. Therefore, to overcome this issue is a
big challenge.

3.3 Can Education Lead to Peaceful World?
The answer is big YES. Education promotes mutual respect, tolerance, and critical thinking
needed for reconciliation. Countries with higher levels of education are less likely to engage
in war and conflict. Where there are links to equitable access to education, safe school
cultures, and employment opportunities, higher education levels are associated with positive

285 “Literacy Rate by Country 2022”, accessed August 20, 2022, https://worldpopulationreview.com/country-
rankings/literacy-rate-by-country
286 “222 million crisis-hit children currently require educational support”, accessed August 20, 2022
https://news.un.org/en/story/2022/06/1120922
287 Global Gender Gap Report 2022, (Geneva: World Economic Forum, 2022), 5.

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engagement in society, there is a lower risk of extremism. Education makes peace building
efforts more likely to last. Higher levels of education have historically been associated with a
lower likelihood of violent conflict. An analysis of 30 countries spanning more than 120
years found that countries with higher levels of education were less likely to experience
violent conflict.

IV. ACHIEVEMENTS OF THE UN FOR EDUCATION

4.1 Successful Declaration of International Days of Education and Peace
The resolution of declaring 24th January as International Education Day was passed by United
Nations General Assembly on 3rd December, 2018. Subsequently, the first World Education
Day was observed on 24 January 2019 to highlight the importance of education for peace and
development. Education is a fundamental human right under Section 26 of the United Nations
International Charter of Human Rights. According to the International Charter, it is the duty
of the state to provide free and compulsory basic education to the people.

In order to make the world free of weapons and highlight the importance of peace,
“Peace Day” was celebrated for the first time in 1981 under the auspices of the United
Nations. In 2001, the United Nations General Assembly decided to observe the day under
Resolution 52, and in 2002, 21st September it was first observed globally.

The main purpose behind celebrating the Education and Peace Day globally was to
make the world aware of the importance, usefulness and necessity of education and to save
the world from the shadow of third world war through education, in which UNO has
succeeded. Now all nations have become aware of the importance and power of education
and are trying to promote education. In today's world, education and peace have the first
priority because the world has now realised that without these two things, it is impossible to
achieve development and prosperity.

4.2 Establishing Peace
One of the fundamental aims of the United Nations is to build peace. The United Nations,
under the leadership of its second Secretary-General, Swedish statesman Dag Hammarskjöld,
conceived the idea of establishing a peacekeeping mission during efforts to resolve the Suez
Crisis of 1956. UN peacekeeping missions involve the use of neutral and UN armed forces,
which are composed of the forces of member states. According to UN figures, over the past
six decades, the UN has been able to establish peace by sending 69 peacekeeping missions
and observers to conflict zones around the world. Due to these measures, many countries in
conflict zones have been able to settle their disputes.

4.3 Indispensable Education
The United Nations program "Education for All" is the largest education program in the
world. Fourteen years ago, an independent committee was tasked with reviewing the progress
of the program. Its task was to review the set goals for education provision in all countries. In
this regard, the latest report of the United Nations has presented a positive balance. "There
has been progress in terms of access to education. More children now have access to
preschool education than in 2000. The number was one-third, but now it is half."

In addition, many countries have seen progress in the provision of primary school
education. According to Barbara Malina, compared to the year 2000, the number of children
who do not go to primary school has also halved.

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4.4 Educational Programs to Promote Peace
In Saudi Arabia, the King Salman Center for Aid and Humanitarian Services, together with
UNESCO, has launched a program of educational resources for teachers to promote peace
building in Arab states. The UNESCO Regional Bureau for Education in Beirut announced
the publication of resource packs in Arabic for teachers. Grouped under the project titled
'Education for Peace', these resources will benefit out-of-school Arab children, particularly
children from crisis-affected countries, as well as marginalised communities. SDG Four is
one of the 17 Sustainable Development Goals established by the United Nations in 2015. It
aims to 'ensure inclusive and equitable quality education and promote lifelong learning
opportunities for all'. The United Nations Educational, Scientific and Cultural Organisation
has organised training sessions for 30,000 teachers and education experts to make the most of
the resources.

4.5 United Nations Decade of Education for Sustainable
The UN General Assembly named the years 2005 to 2014 the UN Decade of Education for
Sustainable Development (DESD) in December 2002. Member States committed to stepping
up efforts to incorporate sustainable development’s principles, values, and practices into
teaching and learning. This educational initiative promoted behaviour changes that led to a
future that was more sustainable in terms of the environment's integrity, the economy, and a
just society for both the present and the future generations.288

4.6 Non-Proliferation of Nuclear Weapons
For five decades, the International Atomic Energy Agency (IAEA), a subsidiary of the United
Nations, has served as the world's nuclear inspector. IAEA experts work to ensure that safe
nuclear material is used only for peaceful purposes. The agency has safeguards agreements
with more than 180 countries. Though the United Nations appears unable to enforce the law
to prevent the proliferation of nuclear weapons on an equal footing, these are the strict
policies of UNO that have controlled the proliferation of nuclear weapons to a greater extent.

4.7 Conventional Arms Reduction Efforts
The United Nations considers global disarmament and arms reduction to be an essential
component of peace and security. It works to reduce and ultimately eliminate nuclear
weapons, destroy chemical weapons, enforce prohibitions against biological weapons, and
prevent the proliferation of landmines, small arms, and light weapons. However, the
disarmament agreement between the United States and Russia was decided by both world
powers themselves. Now that its term is coming to an end, the UN seems powerless to extend
it. However, various UN treaties are the backbone of disarmament efforts.

4.8 Alleviation of Rural Poverty
According to the United Nations document, the International Fund for Agricultural
Development (IFAD) provides low-interest loans and grants to extremely poor rural people.
Since 1978, IFAD has invested more than $15 billion, helping more than 430 million women
and men maximise food production and sales, increase their incomes and provide for their
families. Currently, IFAD supports more than 240 programs and projects in 147 countries.

288 “Un Decade of ESD”, accessed August. 20, 2022, https://en.unesco.org/themes/education-sustainable-
development/what-is-esd/un-decade-of-esd

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4.9 Freedom from Hunger
The organisation manages the conservation and adequate supply of nutritious food and also
prevents social erosion by planting trees. It helps the government to develop its land and
basic resources. When India faced food shortages during 1965-67, many countries sent food
supplies to India on the appeal of the organisation. In 1972, he provided all possible
assistance to Bangladesh to deal with the food crisis. It has launched 550 projects in different
countries to increase food and agriculture production.

V. WAY FORWARD
The United Nations has helped countries around the world to improve literacy rates, promote
peace, limit the spread of nuclear weapons, lifting more than a billion people out of poverty.
However, assuring peace through education is still a challenging goal to achieve in a true
spirit. There are some measures to be taken to assure peace through education.

5.1 Reforming of VETO
The world was different when five countries were given veto power. Today's realities are
completely different. Therefore, it also needs to be changed. When we look at the role of the
Security Council in maintaining peace in the world, there is disappointment. The Security
Council is the most powerful body of the United Nations, but after its establishment in 1945,
no changes were made in its composition and structure, except that in 1965, the number of
countries that became its rotating president was increased from six to ten. Even this small
expansion did nothing to weaken the grip of its five permanent members on the Security
Council. This concentration of power has deteriorated the peace of the world and has pushed
the nations towards the dungeons of ignorance, vicious poverty circles, terrorism, hunger, and
other evils. Now the demand on behalf of the member countries is getting stronger to make it
compatible with the current realities while bringing reforms. In this way, poor nations will
meet chances to grow educationally and economically in peaceful environment.

5.2 Promoting Education and Justice
Education and Justice have aligned countries and nations with the requirements of the
situation in this era of technology. In the countries where the education i.e. literacy rate is
100% and the requirements of immediate justice are fulfilled 100% in every sector,
corruption does not take root, nor is adulteration and forgery promoted. Neither the
population grows exponentially, nor does nepotism flourish. H um an rights are not violated,
nor can anyone be discriminated against on the basis of colour, race, gender and religion.
There is neither martial law nor the leadership of political parties can be handed over to the
next generation of the same family. The societies and countries which are deprived of social
justice, the people there start sinking into such a quagmire of troubles, difficulties and
problems from which it becomes very difficult to get out.

5.3 Promoting Primary Education in Mother Tongue
Mother tongue should be made the medium of primary education in the country. All the
educationists of the world agree that the young mind of children can understand any
knowledge more easily in their mother tongue than in any other language. It has been found
that on the one hand the children of the primary level are becoming incapable of their mother
tongue and on the other hand their backwardness is also showing in the case of other
languages. Therefore, it is necessary that if the primary education in the country is to be
strengthened, the new education policy has advocated teaching through the mother tongue to
make it mandatory so that the power of understanding and comprehension can be developed
in our children. They can develop their skills in any subject.

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It has become clear that children up to secondary level are weaker in mathematics and
science than fifth grade level. In such a case, there is a need for a big revolution in the
education system of the country, and for this there is a need to rise above all self-interest and
take a step. Merely increasing the enrolment rate in schools will not change the education
sector, the quality education indeed has the power to change the attitudes of people.

5.4 Ensuring Gender Equality
UNICEF has said that it is not possible to fully protect children's rights without awakening
the passion of people to end gender discrimination. Gender equality has become an important
topic in today's era and in underdeveloped countries, efforts are being made to mislead people
by spreading its wrong meaning among people. That's why women are confined only to
homes and working side by side with men is considered a defect. Although there are many
laws of women's rights, they have become an adornment of the books. Therefore, there is a
need to establish a model society in practice to ensure gender equality. In underdeveloped
countries, the social status of women and men should be dealt equally. UNO can play a very
important role in this. Some programs should be made to establish gender equality, including
poor countries on a priority basis. In this way, gender equality will be promoted, women will
get an opportunity to play their role in other fields besides education and the educational rate
will increase more than expected.

5.5 Assurance of Digital Education during Pandemic
The spread of the Covid-19 pandemic has affected school education across the world.
Schools in states and Union Territories were closed as a precautionary measure to protect
students from the Covid-19 coronavirus. 5.53 crore children between the ages of five and 16
have been affected in Pakistan due to the closure of schools during the Corona epidemic.
According to a UNICEF report, from March 2020 to September 2021, 13.1 million children
in 11 countries around the world have missed three-quarters of their education in schools289.
According to a recent study by the Pakistan Institute of Development Economics (PID), 5.53
million children between the ages of five and 16 have been affected by the closure of schools
during the Corona epidemic, while according to an October 2020 study by the World Bank, 1
million in Pakistan alone.

UNO needs to take long term measures. While it can bring dropouts back to school
through wazifa for a limited period, more investment is needed in government schools to
improve the quality of education. Most schools have shied away from incorporating digital
learning tools into their learning process due to the huge investment of time and money and
effort involved, but today they are all clamoring to get on board the technology boat. UNO
should make the underdeveloped countries able to adopt digital education system so that they
can lead educational atmosphere.

5.6 Enhancing Role of Educational Institutions
In the modern developed era, when man has prepared many weapons and tools of his
destruction with his own hands and while benefiting from the benefits of modern technology,
he has also become well aware of its disadvantages and implications. Where modern
technology and scientific progress have not played any role in making human life easy and
convenient, the peace has been lost because of the new ways that humans have thought and
invented weapons to destroy other humans with the help of this technology. The world has
faced few threats compared to the ancient era. This is the reason why today the United

289 “Schools still closed for nearly 77 million students 18 months into pandemic”, accessed September 12, 2022,
https://www.unicef.org/pakistan/press-releases/schools-still-closed-nearly-77-million-students-18-months-
pandemic-unicef.

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Nations is busy thinking more diligently to establish peace in the world. UNO can play its
due role in fostering educational institutions to promote peace through education.
Underdeveloped countries should be encouraged to join their hands for collaboration at
institutions level. Universities can play a significant role through scholarly and educational
endeavors to reduce the problems facing humanity. All these organisations can do a great
national service by using their sincere efforts. In order to realise the dream of world peace,
the biggest responsibility of the universities is to try to enlighten their students with the true
meaning and concept of human freedom.
VI. CONCLUSION
At the time of the establishment of the United Nations, the main objective of the United
Nations was to prevent a third world war, from this point of view, the purpose of the
establishment of the United Nations has certainly been fulfilled and it has been successful in
its purpose. But, when we look at the wars in different regions in the world today, the
economic depression and inequality in the world, it can be concluded that the United Nations
has not achieved the success it should have achieved. And the main reason for this is that
countries do not support and cooperate with the organisation as they should, and the result is
that the international organisation is becoming weak and ineffective. Education is the single
best investment a country can make to meet the most pressing challenges of present day
world. In an interconnected world, an educated population – especially girls – is an insurance
policy for every aspect of future development of nations, with benefits ranging from health,
economic growth, to peace and stability. Peace is directly related to the human mind. In the
preamble to UNESCO's constitution, it is stated that "since wars begin in the minds of men, it
is in the minds of men that the defences of peace must be constructed"290. Therefore, it is
necessary to establish peace in the minds of human beings, which is possible only through
education.

290 Preamble of UNESCO Charter, 1946 quoted from ―Peace education‖ By Ian M. Harris, Mary Lee
Morrison, (London: Mcfarland & Company, Inc, 2003), 9

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22 October 2022
E-ISBN 978-967-491-267-3

p. 87-106

9. CONVENTION ON THE PREVENTION AND
PUNISHMENT OF CRIMES AGAINST
HUMANITY: AN EVALUATION OF THE

DRAFT ARTICLES OF THE INTERNATIONAL
LAW COMMISSION

Nabila Akter
Organising Coordinator, HomeNet South Asia Trust, India

Email: [email protected]

ABSTRACT
Crimes against Humanity has existed in customary international law since
International Military Tribunal at Nuremberg recognised in 1946 that these are
crimes under international law for which the perpetrators should be prosecuted
and punished. Unlike Genocide and War crimes, no specific regime governs the
prevention and punishment of Crimes against Humanity, which is in no way less
severe than the former two. The absence of a Specialised Convention widens the
impunity gap for the state actors who perpetrate these, resulting in a significant
legal gap causing deprivation of access to justice for the victims who have been
suffering. In order to end impunity, a combined approach of the jurisdiction of
International Criminal Court with the broadest jurisdiction of national courts over
these Crimes has been required. For this purpose, the United Nations International
Law Commission approved the topic “crimes against humanity” for inclusion in
its programme of work in 2013. Over the next six years, the ILC proceeded to
study the topic and prepared draft articles for inclusion in a possible new
convention on Crimes against Humaity to be negotiated and adopted by States. In
August 2019, ILC presented the final text of Draft Articles and commentary for
this new convention. Subsequently, the Sixth Committee debates in 2020 on the
ILC draft articles were positive, but it is now time for concrete action. This paper
will reflect on the role of the United Nations towards International Peace and
Security by making this draft Convention a reality in International law. The aim
of this paper is primarily to identify the necessity of the Convention which if
concluded; it is argued that would fill the legal gap and complement other
Conventions on the prosecution of the most serious crimes under international
law, thereby would help to strengthen the international criminal justice system. To
evaluate the fundamental purpose of the Convention, this paper will address
whether this Convention would be a significant step forward in the codification
and progressive development of obligations concerning the prevention and
punishment of Crimes against Humanity in compliance with the existing legal
framework under international law.

Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward

Keywords: Crimes against Humanity, International Law Commission,
International Crime.

I. INTRODUCTION
The pursuit of justice under criminal prosecutions is one aspect of a multifaceted approach
deriving from a human-centred order that places groups or individuals at the core of
international society.291 An essential part of any multifaceted approach is co-operation among
the international community and recovering societies to determine how to adapt these
approaches to fit each country’s particular needs.292 War crimes, genocide and crimes against
humanity (hereinafter CAH), the three core crimes are generally subject to the jurisdiction of
the International Criminal Tribunals. The law of CAH was initially created to fill specific
gaps in the law of war crimes, but many parameters were left undefined. It generally has two
broad features. Firstly, the crime is so heinous that it is viewed as an attack on the very
quality of being human and secondly, it is an attack not just upon the immediate victims, but
also against all humanity.293 Therefore, the entire human community has an interest in its
punishment.294 The concept emerged to criminalise large-scale atrocities not falling within
the confines of war crimes but which, before the emergence of human rights law, had to
derive from the humanitarian principles inherent in the laws and customs of war (Martens
Clause).295 It was included as positive law in the Nuremberg Charter and subsequently in the
Charter of the Tokyo Tribunal.296 CAH was later incorporated in the Statutes of the
International Criminal Tribunal for the Former Yugoslavia (hereinafter ICTY) and
International Criminal Tribunal for Rwanda (hereinafter ICTR) during the 1990s, and
subsequently the Special Court for Sierra Leone (hereinafter SCSL), the Extraordinary
Chambers in the Courts of Cambodia (hereinafter ECCC). However, the international courts
and tribunals have limited capacity and in some instances, exercise limited jurisdiction over
CAH.

Unlike CAH, war crimes and genocide are subjects of different global treaties that
compel States to prevent such acts, punish the perpetrators and cooperate among themselves.
Although CAH has existed in customary international law, the practice of states reveals
weaknesses to consolidate laws on CAH. Scholars arguing CAH is a jus cogens crime and
that there is an erga omnes obligation for states to prevent, prosecute, or extradite found
themselves facing a gap in the practice of states.297 In order to fill this gap, the only way is to
have international obligations founded on a multilateral treaty that essentially requires a
specialised convention.298 The brutal ‘clearance’ of the Rohingya in Myanmar, the levelling
of cities and campaign of torture in Syria, the creation and operation of political prison camps
in North Korea, the sexual violence endemic in the Democratic Republic of the Congo and

291 David M. Crane, ‘The Bright Red Thread: The Politics of International Criminal Law – Do We Want Peace
or Justice? The West African Experience’ in Forging A Convention For Crimes Against Humanity, ed. Leila
Nadya Sadat (CUP, 2011)
292 David Tolbert, International criminal law: past and future Anniversary Contributions - International Criminal
Law, U. PA.J.INTL L (2009) 30
293 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, (Viking Press, 1965) 268
294 Sean D. Murphy, First report on Crimes Against Humanity, (2015) UN Doc. A/CN.4/680, para 27
295 Payam Akhavan, ‘Reconciling Crimes Against Humanity with the Laws of War Human Rights, Armed
Conflict, and the Limits of Progressive Jurisprudence’, J. Int'l Crim. Just (2008) 6 21
296 M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution And Contemporary Application (CUP
2011) 86-111
297 M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, (1996) 59 no. 4 L. &
Contemp. Probs 63-74
298 Crimes Against Humanity Initiative of the Whitney R. Harris World Law Institute, Washington University
School Of Law, accessed September 28, 2022, http://law.wustl.edu/crimesagainsthumanity

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the Central African Republic indicate that work remains to be done.299 Rome Statute of the
International Criminal Court (hereinafter ICC) advanced the normative work of defining
CAH as international crimes inclusively under its jurisdiction.300 However, it has
demonstrated it lacks the institutional capability and the resources needed to prosecute the
perpetrators of CAH in the different conflicts and regime victimisation occurring in the world
also likely to continue to occur. In such a situation of limitation over cases, it is unable to
operate at the national level, and establishment of criminal responsibility is not possible under
national law for persons who have committed CAH. Although some states have laws
penalising CAH, the greater obligation for prevention and punishment of these crimes has
been missing. Hence, it is argued that the ICC could not obviate the need to fulfil the lacuna
in the international legal framework as regards the commission of these crimes. The absence
of a Specialised Convention widens the impunity gap for the state actors who perpetrate
CAH, resulting in a significant legal gap that causes deprivation of access to justice for the
victims who have been suffering. In order to end impunity, a combine approach of the
jurisdiction of ICC with the broadest jurisdiction of national courts over CAH has been
required.

In the current regime, it is difficult for States to cooperate in criminal matters without
signing a treaty that imposes certain obligations in their territories and vis-à-vis other States.
It is thus impossible to prosecute CAH cases without a clear treaty definition, national
legislation, and methods for interstate co-operation. In order to address this issue, specific
initiatives were immensely needed. The first real effort to analyse the elements for a global
treaty on CAH and drafting was launched in 2008. The Whitney R. Harris World Law
Institute at Washington University School of Law started the CAH Initiative and took
concrete action to write an instrument which presented the model text of a Proposed
Convention in 2010 after consulting with over 300 experts. In 2012, the International Law
Commission (hereinafter ILC) took up the topic, and after extensive discussions, the
Commission added the topic to its long-term work programme in 2013.301 The Commission
guided the topic in 2014 onto the current programme of work by appointing Professor Sean
D. Murphy as special rapporteur.302 In 2015, the first report was submitted to the Commission
that adopted four draft articles with commentary. In 2016, the second report was submitted
that adopted an additional six draft articles with commentary. In 2017, the third report was
submitted which adopted final five draft articles with a draft preamble and a draft annexe.
The reports emphasised on the new treaty’s complementarity to the Rome Statute. The
Commission completed a full first draft of the Convention, transmitted through the UN
Secretary-General to governments, international organisations and others for comments and
observations and received a record number of comments in 2018. The Draft Articles were
revised in 2019 after vigorous discussion. In the seventy-first session 2019, ILC presented the
final text of the Draft Articles and commentaries. The Draft Articles have elaborated a
comprehensive legal framework with the obligation towards inter-State co-operation on
prevention, investigation, prosecution and extradition for the crimes. The ILC has navigated
between producing a flexible and general framework and adapting the system more
specifically to the specificities of CAH.303 It is aspired to amount towards a significant

299 Leila Nadya Sadat, A Contextual and Historical Analysis of the International Law Commission’s 2017 Draft
Articles for a New Global Treaty on Crimes Against Humanity, J. Int'l Crim. Just (2018) vol16 issue 4
300 Art 5 provides jurisdiction and art 7 defines CAH
301 Report of the International Law Commission ( 2013) UN Doc. A/68/10, 169–170, 115–116
302 Report of the International Law Commission, (2014), UN Doc. A/69/10, 277, 265
303 Harmen van derWilt, ‘Extradition and Mutual Legal Assistance in the Draft Convention on Crimes Against
Humanity’ J Int'l Crim. Just (2018) vol l16 issue 4

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intensification of the criminal-justice approach to CAH that would seriously reduce societies'
freedom to forego criminal proceedings.304

II. NEED FOR A CONVENTION ON CRIMES AGAINST HUMANITY
The need to have a specialised convention on CAH are manifold. It is indeed a need
supported by various facts at present whose time has come to be fulfilled. Since the rise of
international criminal law, CAH constituted the origin of real international crimes providing
for proper individual criminal responsibility and corresponding international enforcement.305
It may be more prevalent than other international crimes as these may occur in peacetime
without requiring the specific intent necessary for proving genocide.306 The Genocide
Convention imposes several obligations upon the States parties, especially punishment and
prevention for the commission of the crime. No such obligation exists to prevent and punish
the commission of CAH in the current international law framework, although it acquired
enormous resonance in the legal and moral imaginations of the post-WWII world.307
Therefore, a global convention on CAH has been a missing piece since long, particularly in
international humanitarian law, international criminal law and international human rights
law.308 CAH need to be embodied in a specialised convention in order to clarify certain
ambiguities relative to its earlier formulation. This chapter will trace the origins of the early
normative framework for CAH and identify the valid reasons towards the need to develop a
specialised convention.

2.1 Historical Emergence of the Prohibition of Crimes Against Humanity
M. Bassiouni analysed the historical evolution of CAH as slow and tortured with its unsettled
nature, scope, application and legal elements.309 Martens Clause of the 1899310 and 1907
Hague Conventions311 was the pioneer of the concept of CAH, the latter of which referred to
the "laws of humanity and the …dictates of public conscience" for protecting persons in time
of war.312 It indicated that, until there exists a comprehensive codification of the laws of war,
principles of humanity offer residual protection.313 Almost 20 million people were killed
during WWI (1914-1918). During that conflict, the estimated 200,000–800,000 civilian
Armenians were killed by the Turkish Government in 1915. In 1919, a report to the post-
WWI Paris Peace Conference identified various crimes for which conduct of war might be
prosecuted.314 The War Crimes Commission advocated for prosecutions of the Turkish

304 Sarah M H Nouwen, ‘Is there Something Missing in the Proposed Convention on Crimes Against Humanity?
A Political Question for States and a Doctrinal One for the International Law Commission’ J Int'l Crim. Just
(2018) vol 16 issue 4
305 Andreas Zimmermann, Felix Boos, ‘Bringing States to Justice for Crimes against Humanity: The
Compromissory Clause in the International Law Commission Draft Convention on Crimes against Humanity’ J
Int'l Crim. Just (2018) vol 16 issue 4
306 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Croatia v.
Serbia) Judgment, I.C.J. Reports 2015 para. 139, (n 36) Judgment, I.C.J. Reports 2007 paras.187-188
307 David Luban, ‘ATheory of Crimes Against Humanity’ Yale J. Int’l L. (2004) 29 85-167
308 (n 4) para 12
309 M. Cherif Bassiouni, ‘Revisiting the architecture of crimes against humanity: almost a century in the making
with gaps and ambiguities remaining – the need for a specialized convention’ in Forging A Convention For
Crimes Against Humanity, ed. Leila Nadya Sadat (CUP 2010)
310 The Convention with Respect to the Laws and Customs of War on Land, 1899
311 The Convention respecting the Laws and Customs of War on Land, 1907
312 Ibid, preamble
313 T. Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience’ Am. J. of Int’l
L., (2000) vol. 974 78
314 Report Presented to the Preliminary Peace Conference by the Commission on the Responsibilities of the
Authors of War and on Enforcement of Penalties (Carnegie Endowment for International Peace, Division of
International Law) Pamphlet No. 32, 1919

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officials before international and national tribunals addressing atrocities crimes by
Government against its own people under the Treaty of Versailles315 (included a provision on
prosecution for CAH but that treaty never entered into force) violating both 'the laws and
customs of war' and 'the laws of humanity'.316 Therefore it called for the establishment of an
International Commission to prosecute senior leaders, with the applicable law being "the
principles of the law of nations as they result from the usages established among civilised
peoples, from the laws of humanity and the dictates of public conscience".317 However, no
prosecutions ensued as CAH were not included in the Treaty of Versailles.318 Instead, Turkey
managed immunity by political consideration in a secret annexe of the Treaty of Lausanne.319
Crimes against the laws of humanity were not prosecuted; however, it paved the way of such
prosecutions in the aftermath of WWII.320

2.1.1 Nuremberg and Tokyo Tribunal
WWII brought about almost sixty million of mostly civilians casualties.321 The unprecedented
record of crimes committed not only against Allied combatants but also against the civilian
populations of the occupied and the Axis countries themselves by the Nazi regime and the
other Axis Powers, made it necessary that these crimes should not go unpunished.322 Unlike
the aftermath of WWI, the victorious allies of WWII established the International Military
Tribunal (hereinafter IMT) at Nuremberg and the International Military Tribunal for the Far
East (hereinafter IMTFE) to prosecute the perpetrators. The IMT recognised the importance
of punishing individuals for, inter alia, CAH by stating that "crimes against international law
are committed by men, not by abstract entities, and only by punishing individuals who
commit such crimes can the provisions of international law be enforced".323 Therefore, the
Charter of the Nuremberg Tribunal324 amended by the Berlin Protocol325 enumerated the
crimes under the Tribunal's jurisdiction. The traditional category of War Crimes326 was
supplemented by two new categories: Crimes against Peace 327 and CAH.328 The results
became the Nuremberg Principles of International Law recognised in the Charter by the ILC,
which helped shape modern jurisprudence for the atrocity.329 The Judgment of the Tribunal
stated in Principle 1 that "any person who commits an act which constitutes a crime under
international law is responsible therefore and liable to punishment". Here Eighteen
defendants out of twenty-two were indicted for CAH, only two of whom were charged only
with CAH.330 CAH were also within the jurisdiction of the Tokyo Tribunal.331 However, no

315 The Treaty of Peace between the Allies and Turkey American J. of Int’l L., (1921) 179 235
316 Ibid, 115
317 ibid, 122; M.C. Bassiouni, ‘World War I: The War to End All Wars’and the Birth of a Handicapped
International Criminal Justice System’ Denver J. of Int’l L. & Policy, (2002) vol. 30
318 Treaty of Peace between the Allied and Associated Powers of Germany 1919, Arts. 228-29,
319 Treaty of Peace Between the Allied Powers and Turkey (Treaty of Lausanne) 1923, 28 L.N.T.S. 11
320 R. Clark, ‘History of Efforts to Codify Crimes Against Humanity’ in Forging a Convention for Crimes
against Humanity, ed. L. Sadat (CUP 2010)
321 Gerhard L. Weinberg, A World At Arms: A Global History Of World War II (2d Ed. CUP 2005) 894
322 E. Schwelb,'Crimes Against Humanity’ British Year Book of International Law (1946) 23 85
323 Judicial decisions: International Military Tribunal (Nuremberg), 221.
324 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Annex
325 Protocol Rectifying Discrepancy in Text of Charter, October 6, 1945
326 Charter Of The International Military Tribunal, art. 6(b)
327 Ibid, art. 6(a),
328Ibid art. 6(c),
329 Principles of lnternntionnl Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment
of the Tribunal, 1950 2 Y.B. ILC 30
330 Eugene Davidson, The Trial Of The Germans: An Account Of The Twenty-Two Defendants Before The
International Military Tribunal At Nuremberg (MacMillan 1st ed. 1966) 24–27
331 Charter of the International Military Tribunal for the Far East 1946, art. 5(c)

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persons out of twenty-eight indicted were convicted of this crime by that Tribunal.332 Further
individuals were convicted of CAH after the first trial of senior German leaders during the
trials conducted by the occupation authorities according to Control Council Law No. 10 1946
(hereinafter CCL 10).333 Total 114 defendants were charged with CAH of the twelve cases
prosecuted in the American zone at Nuremberg, of which eighty were convicted. The
prosecutions of Category B offenders in the Yokohama trials in Japan were mostly for war
crimes.334 However, no allied victorious powers were prosecuted for either war crimes or
CAH in either the European or Far East theatres. After WWII, national prosecutions took
place in Argentina, Canada, Estonia, France, Germany, Hungary, Israel, Indonesia, Iraq,
Italy, Latvia, and Peru for CAH.335 Besides, there have been several national prosecutions in
Eastern and Central European countries that were occupied by the USSR and in Western
European countries for collaboration with the Nazi German occupiers.336 While some of these
European countries' prosecutions may have involved CAH as defined in CCL 10,337 they
were mostly against Nazi collaborators and political opponents.

2.1.2 Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes Against Humanity
The non-applicability of statutes of limitations has been outlined in a 1968 UN Convention338
and a subsequent European Convention.339 Several states have taken similar actions to
remove the Statute of limitations barrier. The multilateral Convention asserted in its preamble
that "the effective punishment of … CAH is an important element in the prevention of such
crimes, the protection of human rights and fundamental freedoms, the encouragement of
confidence, the furtherance of co-operation among peoples and the promotion of
international peace and security". It called for national criminalisation to develop national
laws and with a narrow focus to set aside statutory limitations on prosecuting the crimes. It
also calls upon States parties to take steps on possible extradition for the crimes, but there
was no express obligation to exercise jurisdiction over CAH.

2.1.3 ICTY and ICTR
By its resolution 827 (1993), the UN Security Council (hereinafter UNSC) established the
ICTY340 and adopted the Statute of the Tribunal, which included CAH as part of the
jurisdiction of the Tribunal. Through its jurisprudence, it developed necessary guidance as to
what elements must be proven when prosecuting an individual for CAH.341 After that, the

332 John Appleman, Military Tribunals And International Crimes (Westport, Connecticut: Greenwood Press 2d
Ed. 1971)
333 Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity in Official
Gazette Control Council for Germany, vol. 3, p. 50
334 Arnold C. Brackman, The Other Nuremberg: The Untold Story Of The Tokyo War Crimes Trials
(HarperCollins Publishers Ltd; First Ed 1987), R. John Pritchard, ‘The Gift of Clemency Following British War
Crimes Trials in the Far East, 1946–1948’ CRIM. L.F. (1996) 7 15, 18
335 ( n 6) Chapter 9
336 Deák, István, The Politics of Retribution in Europe: World War II and Its Aftermath Ed (Princeton University
Press, 2000)
337 Control Council Law 10, art. II(c).
338 United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes
Against Humanity, 1968
339 European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and
War Crimes, 1974
340 International Criminal Tribunal for Former Yugoslavia 1991
341 The Prosecutor v. Dusko Tadić, ICTY IT-94-1-AR72, paras. 227-29.

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Tribunal convicted a large number of defendants on CAH.342 By its resolution 955 (1994), the
UNSC established ICTR343 and adopted the Statute with jurisdiction on CAH. The
jurisprudence of the Tribunal further developed the key elements when prosecuting an
individual for CAH.344 Like ICTY, defendants before the ICTR were regularly convicted of
CAH.345

2.1.4 Rome Statute
Article 5(1)(b) of the Rome Statute includes CAH within the jurisdiction of the ICC. Article 7
of the ICC Statute definitively divorced CAH from armed conflict, enshrining its autonomy
as a concept rooted in fundamental human rights. The definition included murder,
extermination, enslavement, deportation, forcible transfer of population, imprisonment,
torture, rape, apartheid, and more without necessarily targeting a specific group, committed
against any civilian population without any overall specific intent, in war or peacetime. After
that, States parties developed the document entitled 'Elements of Crimes' which sets forth
essential guidance to prove when prosecuting an individual for CAH.346 Since then, several
defendants were indicted and some convicted by the ICC for CAH.347

2.1.5 ILC's Prior Work
The ILC studied and distilled the Nuremberg Charter principles in 1950 that included the
definition of CAH. It worked on a Draft Code of Offenses Against the Peace and Security of
Mankind since 1947.348 Its earlier efforts culminated in 1954 in a draft code where it
identified some offences to be international crimes.349 In 1981, the UN General Assembly
(hereinafter UNGA) invited the Commission to resume its work on the draft code of offences.
In 1987, the ILC renamed the project the Draft Code of Crimes Against the Peace and
Security of Mankind. It completed on first reading a Draft Code in 1991.350 However, the text
left a great deal to be desired as it fails to define CAH with the legal precision required by the
principles of legality. The range of crimes listed in the Draft Code covered less than did
Article 6(c) of the Nuremberg Charter. Also, it failed adequately to cover analogous conduct
and harmful results adding several new crimes that were not included in the Charter's Article
6(c) which cannot reasonably be analogised to the core conduct hitherto sought to be
prohibited.351 Insufficient definition of CAH in the Code failed to codify and describe the
necessary legal elements by which to determine individual criminal responsibility as well as
to cure the weaknesses of Article 6(c). These reasons indicated the need for a specialised
convention on CAH. After that, the UNGA invited the Commission to consider further the
question of establishing an international criminal jurisdiction to address such crimes and

342 M.C. Roberge, ‘Jurisdiction of the Ad Hoc Tribunals for the former Yugoslavia and Rwanda over Crimes
Against Humanity and Genocide’ International Review of the Red Cross (1997) vol. 321 651; G. Mettraux,
‘Crimes against Humanity in the Jurisprudence of the International Criminal Tribunals for the former
Yugoslavia and for Rwanda’ Harvard Int’l L. J. (2002) vol. 43 237
343 International Criminal Tribunal Rwanda 1994
344 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment paras. 578-98
345 G.Mettraux & J. Cerone, ‘The Jurisprudential Contributions of the ICTR to the Legal Definition of Crimes
against Humanity—The Evolution of the Nexus Requirement’ New England J. of Int’l and Comp. L. (2008) vol.
14, 191
346 International Criminal Court, Elements of Crimes, 2000 U.N. Doc. PCNICC/2000/1/Add.2(2000)
347 Prosecutor v. Dyilo, Trial Chamber I, Judgment, Case No. ICC-01/04-01/06-2842 (2012); Prosecutor v.
Katanga, Trial Chamber II, Judgment, ICC-01/04-01/07 (2014)
348 M. Cherif Bassiouni, Commentaries on the International Law Commission's 1991 Draft Code of Crimes
Against the Peace and Security of Mankind, (1993)
349 Code of Offences against the Peace and Security of Mankind with Commentaries, 1954
350 Report of the International Law Commission, U.N. Doc. A/46/10 265
351 (n 19)

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proposals for a permanent international criminal court.352 Then the Commission provided in
article 3 of its Draft Code of Crimes against the Peace and Security of Mankind in 1996 that
an individual who is responsible for a crime against the peace and security of humankind
shall be liable to the punishment that shall be proportionate with the character and gravity of
the crime. It has listed a series of acts in article 18 that constituted CAH, accordingly the
Commission on occasion has addressed CAH. In 2001 the Commission indicated the
prohibition of CAH as clearly accepted and recognised peremptory norm of international
law.353

2.1.6 Other Hybrid Tribunals
Several Hybrid tribunals have also featured CAH in their jurisdiction.354 The SCSL
established in 2002 includes CAH as a part of the Court's jurisdiction.355 Several defendants
were indicted and convicted by the Court for CAH including the former President of Liberia,
Charles Taylor.356 Some national legal systems set up Special Courts with international
judges participation and some exercised jurisdiction over CAH. The Special Panels for
Serious Crimes had jurisdiction over CAH committed in East Timor having the same
language as in article 7 of the Rome Statute and convicted several defendants. Similarly, the
ECCC, established by Cambodia in 2001, included the power to bring to trial all suspects
who committed CAH, accordingly done by the Court.357 The Supreme Iraqi Criminal
Tribunal established by the Iraqi Governing Council also had jurisdiction over CAH.358 The
Extraordinary African Chambers within the Senegalese judicial system provided jurisdiction
over CAH.359 It has also emerged at times in the jurisprudence of regional human rights
courts and tribunals,360 e.g. the Inter-American Court of Human Rights and the European
Court of Human Rights. The Grand Chamber of the European Court analysed the meaning of
CAH in 2008.361

The piecemeal, uncoordinated developments outlined above have resulted in various
legal instruments with contrary legal effects pertinent to different and sometimes overlapping
contexts and parties. Some of the provisions of these instruments are drafted without
sufficient specificity, thus offending the principles of legality. Further, they have left gaps in
the protective scheme, particularly concerning certain types of mass killings not accompanied
by the specific intent required in the Genocide Convention. All of this leads to the
inescapable conclusion that a comprehensive codification of CAH is needed.

352 G.A. Res. 46/54 1991
353 Draft Articles on State Responsibility 2001, Commentary on Article 26(5); Jurisdictional Immunities of the
State (Germany v. Italy; Greece intervening), I.C.J. Reports 2012, para. 95 (indicating that the crimes against
humanity at issue in the Arrest Warrant case “undoubtedly possess the character of jus cogens”);
354(n 4), para 46
355 Agreement on the Establishment of a Special Court for Sierra Leone 2002, art. 2
356 Prosecutor v. Taylor, Trial Chamber II, Judgment, SCSL-03-01-T; Prosecutor v. Taylor, Appeals Chamber,
Judgment, SCSL-03-01-PT; Prosecutor v. Fofana and Kondewa, Appeals Chamber, Judgment, SCSL-04-14-A;
Proseutor v. Brimaet al., Appeals Chamber, Judgment, SCSL-04-16-A ;
357 Prosecutor v. Kaing Guek Eav alias Duch, Trial Chamber, Judgment, No. 001/18-07-2007/ECCC/TC.
358 Statute of the Iraqi Special Tribunal 2003, art. 10(b)
359 Agreement on the Establishment of the Extraordinary African Chambers within the Senegalese Judicial
System, Senegal-African Union 2012; Agreement on the Statute of the Chambers, Senegal-African Union 2013
360 A. Huneeus, ‘International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human
Rights Bodies’ Am. J. Int’lL. (2013) vol. 107 1
361 Korbely v. Hungary, (2008) E.Ct.H.R. Grand Chamber Judgment, No. 9174/02 para. 82

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2.2 Limitation of the Genocide Convention
There was no distinct crime of genocide until an international convention prohibiting it
entered into force in 1951.362 The concept of CAH with which genocide bears a close but
complex and challenging relationship was specified by the Genocide Convention against
willful destruction of specific groups.363 The Convention distinguished genocide, with a
considerably narrower definition from a somewhat broader and more flexible label of CAH.
Since certain groups are not included in the protection scheme and the requirement of a
specific intent required by the Convention is a high threshold, it is difficult to prove. Disputes
between states about genocide are automatically subject to the jurisdiction of the ICJ,364 so it
featured several decisions relevant to the interpretation of the Convention.365 In Bosnia
Genocide case, the respondent admitted that crimes were committed during the siege of
Sarajevo could indeed be characterised as war crimes and even as CAH.366 The Court was not
convinced based on the evidence that conclusively established the specific intent (dolus
specialis) required of the perpetrators to destroy, in whole or in part, the group as such;
instead, the Court found that killings outlined may amount to war crimes and CAH, but the
Court lacks jurisdiction to determine those.367 Many Bosnians were shattered that their
sufferings during the 1992-1995 war were not labelled genocide due to gaps in the coverage
of the Convention, which reflected in many negative comments from international lawyers
about the judgement of the ICJ.368 The importance of the Genocide Convention can probably
be found not so much in its contemporary potential to address atrocities, something that is
largely superseded with more modern texts as in its historic contribution to the struggle for
accountability and the protection of human rights.369 This narrow definition of genocide as a
crime under international law leads to frequent disappointment370 and the ensuing fact that
CAH occurs far more often than genocide. Therefore, the necessity of adopting the Proposed
Convention on CAH lies significantly upon the establishment of ICJ's jurisdiction over CAH
to ensure global justice and fill the lacuna existing in international law. The Proposed
Convention is needed to supplement the Genocide Convention and strengthen the
international criminal justice system.

2.3 Strengthening the Complementarity System of ICC
The Rome Statute emphasised in the Preamble that the most serious crimes to the
international community must not go unpunished and need a measure to prosecute effectively
at the national level with every State exercising its criminal jurisdiction over those
responsible persons. ICC is essentially built upon the principle of complementarity, whereby
the relevant crimes should be prosecuted in national courts in the first instance if national
authorities are able and willing to investigate and prosecute the crime.371 Additionally, the
Court may wish to transfer a suspect in its custody for prosecution in a national jurisdiction

362 The Convention on the Prevention and Punishment of the Crime of Genocide 1948; it did not enter in force
until it was ratified by the requisite number of states which occurred in 1951.
363 H.G. van der Wilt, J. Vervliet, G.K. Sluiter and J.Th .M. Houwink ten Cate, The Genocide Convention: The
Legacy of 60 Years, (Leiden ; Boston : Martinus Nijhoff Publishers, 2012) Preliminary Material
364 ( n 72) Article IX
365 Reservations to the Convention on Genocide, Advisory Opinion, I.C.J. Reports 1951, 15
366 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and
Herzegovina v. Serbia and Montenegro, Preliminary Objections, Judgment, ICJ. Reports 1996, para 249
367 Ibid, para 277
368 Antonio Cassese, “A Judicial Massacre”’, The Guardian, February 27, 2007; Ruth Wedgwood, “Bad Day for
International Justice,” International Herald Tribune, March 8, 2007
369 ( n 73), William Schabas, “Genocide and Crimes against Humanity; Clarifying the Relationship”
370 C. Kreb, ‘The ICC’s First Encounter with the Crime of Genocide: The Case Against Al-Bashir’ in The Law
and Practice of the International Criminal Court, ed. C. Stahn (OUP, 2015)
371 Rome Statute, Art 1, 17

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but may not be able to do so if the national jurisdiction is not capable of charging the suspect
with CAH.372 Although it is the key international institution to prosecute the perpetrators
since 2002, it was not designed nor given the resources for prosecuting all persons
responsible for CAH. For the complementarity system envisoned by the Rome Statute to
work, states parties need to enact all necessary legislation to ensure that it takes full effect.373
However, national jurisdictions need tools to become active enforcers of international
criminal law, particularly regarding CAH. Moreover, complementarity as between state
parties does not work as the Statute does not provide for an obligation to prosecute or
extradite between state parties. Most importantly, the complementarity mechanism does not
exist between the ICC and non-state parties. Recently, many states have adopted or amended
national laws criminalising CAH, as well as other crimes defined by the Rome Statute,374
however, many are remaining. The limited number of states that adopted specific national
implementing legislation including CAH within their respective criminal codes shows that at
this time, complementarity cannot be relied upon for the national prosecution of CAH
perpetrators, but enhanced national enforcement is the best approach for the future. The
UNSC being unwilling or unable to refer the situations in Syria or Myanmar to the ICC and
questionably in the failure of states to execute the ICC arrest warrant for Omar Al-Bashir,
indicates the limitation of the ICC to address CAH.375 Clearly, the future of international
criminal justice does not depend entirely on the ICC; rather; it depends on states to carry out
the task of investigating and prosecuting CAH domestically.376 The Proposed Convention on
CAH is thereby needed to reinforce the domestic Courts by developing a greater capacity for
prevention and punishment of such crimes by promoting the investigation and prosecution of
such crimes at the national level.

2.4 From Vertical to Horizontal Relationship
The Rome Statute regulates relations between the ICC and its States parties, i.e. essentially a
"vertical" relationship where state parties have an obligation to the ICC when the ICC
undertakes to investigate or prosecute over CAH. Here, the obligation to prosecute other
crimes including CAH even concerning state parties that have not adopted national
implementing legislation is absent. This vertical relationship does not extend to a horizontal
relationship between the state parties. As there is no treaty regime specific to this category,
prosecution and punishment of persons for CAH may be possible before international
criminal courts and tribunals only. Therefore, a horizontal mechanism is needed that would
operate at the national level to be entirely compelling; the reason being the establishment of
criminal responsibility under national law for persons who have committed CAH will be
possible. It would necessarily complement the statutory schemes of ICC and strengthen the
international co-operation towards ending impunity as well as to ensure justice for the
victims. Besides, the Convention is necessary to establish a horizontal relationship between
its state parties and to include states that are non-state parties to the ICC. It would establish a
connecting link between non-state parties and the ICC through the comprehensive
mechanisms of international co-operation in the prevention, investigation, prosecution,
punishment of alleged and convicted perpetrators of CAH. Such a Convention is needed to

372 Prosecutor v. Bagaragaza, Appeals Chamber, 2006 Decision on Rule 11bis Appeal, Case No. ICTR--0505--
8686--AR11bis, para. 18
373 Parliamentarians for Global Action, Implementing Legislation on the Rome Statute, accesed September 28
2022 http://www.pgaction.org/ campaigns/icc/implementing-legislation.html.
374 ( n 4) para 56
375 T. Meron, ‘Closing the Accountability Gap: Concrete Steps Toward Ending Impunity for Atrocity
Crimes’ American Journal of International Law, (2018) 112(3)
376 M. Cherif Bassiouni, ‘Perspectives on International Criminal Justice’ VA. J. INT‘L L. (2010) 50 269

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complete the missing links of a universal scheme designed to enhance accountability for
CAH violations and reduce the existing gap of impunity.

2.5 Addressing the Absence of State Responsibility Framework
The ILC Articles on State Responsibility distinguish between primary rules consisting of the
substantive rules of international law, and the secondary rules of state responsibility, i.e. rules
of general application which identify a breach of the primary rules and the consequences of
any such breach.377 A breach of general obligation implicates the responsibility of the State if
the conduct at issue is attributable to the State according to the rules on State
responsibility.378 Unlike genocide, the State Responsibility framework does not exist under
current international law for the commission of CAH. The ICJ imposes the obligation to
prevent genocides, not as a criminal violation by the State; instead, a breach of international
law that engages traditional State responsibility.379 A Convention on CAH is needed that
would include obligations to clarify the State's obligation to prevent CAH and establish a
framework for holding States responsible in that regard. In that case, ICJ would be the forum
to make a state responsible for their breach of an obligation existing under the international
law on CAH. States would be accountable to the world court for their wrongful act which has
been a cruel reality since long. The ICJ can establish Myanmar’s state responsibility under
international law while the ICC can only establish the individual criminal responsibility of
those convicted of atrocities. ICJ is the Rohingya’s as well as the international communities’
only refuge for an international judicial qualification of these situations. ICJ, as the guardian
of the Genocide Convention similarly needs to possess inherent authoritative value and
potential to strengthen the long-overdue quest for accountability, justice, and redress for the
victims of CAH. Therefore, the adoption of the Convention is needed to address the state
responsibility framework, unlike the Rome Statute, which establishes the individual criminal
responsibility for committing such crimes.

2.6 Need for Prevention and Punishment
The inadequacies of post-IMT Charter legal developments left several unresolved questions
and made all the more evident by the numerous tragic events which have occurred since
WWII. They include the Stalin purges of the 1950s in which millions of persons were
killed;380 the 1960s civil war in Nigeria resulting in an estimated one million deaths;381 the
1971s war of secession between East and West Pakistan resulting in one million Bangladeshi
deaths before the creation of the independent state of Bangladesh;382 the estimated two
million killings in Cambodia by the Khmer Rouge during the 1980s;383 the induced famine in

377 Robert Ago, Report on State Responsibility, (1963) UN Doc/ACN.4/152 annex I ; James Crawford, THE
International Law Commission’s Articles On State Responsibility:Introduction, Text And Commentaries (CUP,
2002) 16
378 Articles on state responsibility for Internationally Wrongful Act, 2001
379 (n 76), [167] (finding that international responsibility is “quite different in nature from criminal
responsibility”).
380 Robert Conquest, The Great Terror: Stalin's Purge Of The Thirties (New York Macmillan Company1968)
529
381 John J. Stremlau, The International Politics Of The Nigerian Civil War 1967-1970 (Princeton University
Press 1977)
382 Leo Kuper, ‘Genocide: Its Political Use In The Twentieth Century’ 79 (1982); Niall Macdermot, ‘Crime
Against Humanity In Bangladesh’ Int'l Law (1973) 7 476
383 Michael J. Bazyler, ‘Reexamining The Doctrine Of Humanitarian Intervention In Light Of The Atrocities In
Kampuchea And Ethiopia’ Stan. J. Int'l L. (1987) 23 547, 550; Nancy Blodgett, ‘Cambodia Case-Lawyer Wants
Genocide Trial’ A.B.A. J. (1985) 71 31; Hurst Hannum, ‘International Law And Cambodian Genocide: The
Sounds Of Silence’ Hum. Rts. Q. (1989) 11 82, 94; Kzimo Kmiunen, Kampuchea: Decade Of The Genocide

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the Ukraine;384 and the practices of apartheid in South Africa.385 Other atrocities include
Paraguay's killings and deportation of native Indian tribes in the 1970s, and the brutally
repressive tribal and political killings in Burundi and Uganda during the 1960s and 1970s. As
already discussed, ICC only has the feature of punishing certain individuals by establishing
individual criminal responsibility. No provision on prevention of CAH is available under this
permanent court mechanism. Moreover, constituent instruments of international criminal
courts or tribunals address the prosecution of persons for the crimes within their jurisdiction
but States are not directed to prevent such crimes before they are committed or while they are
being committed. Therefore, the lack of obligation to prevent CAH is there which need to be
fulfilled. A convention would draw attention to the need for prevention and punishment by
helping States to adopt and harmonise national laws relating to such conduct. As a result, the
door to more effective inter-State co-operation on the prevention, investigation and
prosecution of such crimes would be opened. In building a network of co-operation, as has
been done concerning other offences, the sanctuary would be denied to offenders, thereby it
is hoped to help both to prevent such conduct ab initio and to safeguard accountability ex
post. Other procedures of international law including customary international law would
continue to govern the matters not regulated by such a convention.

2.7 Summing Up
In light of the above discussion, it can be argued that the absence of a global treaty on CAH
leads to several categories of difficulties. In the current regime, it is difficult for States to
cooperate in criminal matters without signing a global treaty that would impose specific
obligations in their territories and vis-à-vis other States. Notably, it is difficult to prosecute
CAH cases without a clear treaty definition, national legislation, and methods for inter-state
co-operation. By revisiting international legal instruments, it can be argued that the
inadequacies on accountability over CAH are evident, that indicates the immediate necessity
of adopting the Proposed Convention on CAH by the ILC. Moreover, States responsible for
CAH are outside the scope of State Responsibility framework that is conferred upon the ICJ
for the alleged commission of genocide. ICJ would be able to exercise its jurisdiction over
CAH if the Proposed Convention comes into the broader framework of international law. If
the world community are not to lose the momentum toward greater accountability developed
over the last twenty-five years, the time to act is now.

III. PURPOSE OF THE PROPOSED CONVENTION ON CRIMES AGAINST
HUMANITY
Over the past seven years, the UN ILC has worked steadily and carefully to produce a draft
for a new treaty focusing upon the essential points that would be most acceptable by states.
The central objective was to provide adequate provisions based on treaties addressing
CAH. At its seventy-first session in 2019, the ILC adopted fifteen Draft Articles on
Prevention and Punishment of CAH, a draft Preamble, and a draft Annex on Mutual Legal
Assistance. The most significant explanation of the Commission’s approach to this project is
rather than trying to codify existing custom, it has focused on progressively developing the
law which has allowed the Commission to avoid the laborious process of ascertaining the
status of customary law.386 It has recognised multiple bases and purposes under international

(Zed Books 1984); Gregory H. Stanton, ‘Kampuchean Genocide And The World Court’ Conn. J. Int'l L. (1987)
2 341
384 Miron Dolot, Execution By Hunger: The Hidden Holocaust (W. W. Norton Company 1985)
385 Ozdemr A. Ozgr, Apartheid: The United Nations And Peaceful Change In South Africa (Transnational
Publishers Inc.U.S. 1982); J. Lelyveld, Move Your Shadow: South Africa, Black And White (Penguin 1985)
386 Sean D. Murphy, Third report on crimes against humanity, UN Doc. A/CN.4/704, 2017 139.

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law. The articles have followed the pattern of existing criminal law enforcement instruments
affecting the horizontal relationship between States. The Draft Articles seek to fill the gap in
international law by creating certain obligations to end impunity. It incorporated many
elements of the Rome Statute, including the definition of CAH by solidifying States’
obligations to prevent and punish CAH and construct a robust model for interstate co-
operation with other progressive and positive elements. The purpose of the Proposed
Convention broadly is to establish a comprehensive legal framework that would deal with
CAH. To that end, primary features are elaborated in the Preamble of the Convention, which
is accordingly explained in the Draft Articles. It has reflected existing State practice and
jurisprudence complementary to the system of the Rome Statute, the adoption and
harmonisation of national laws, aut dedere aut judicare, offences by both States and non-
State actors and the promotion of inter-State co-operation, including extradition and mutual
legal assistance. This chapter delves into the purpose of the Proposed Convention by
evaluating the core features of the Draft Articles in their substance. The potential of this
Convention to establish a comprehensive framework on CAH under international law will be
analysed.

3.1 Establishing A Comprehensive Legal Framework on Crimes Against Humanity
International instruments with a broader comprehensive legal framework generally encourage
States to establish a relatively wide range of jurisdictional bases under their national law.
These address the most serious crimes of international concern by denying haven for the
perpetrators. Generally, three crimes have featured in the jurisdiction of international criminal
tribunals, of which the crime of genocide and war crimes are dealt with by the global
conventions dedicated to preventing, punishing and promoting inter-State co-operation in that
regard. However, there has been no international convention making CAH a conventional
international crime. Unlike war crimes, CAH may occur in situations not involving armed
conflict and do not require the special intent necessary for establishing genocide. Neither the
Genocide Convention nor the Geneva Conventions and related Protocols which have been
widely ratified by states, including many states not yet party to the ICC Statute, established
detailed inter-State mechanisms for co-operation to the need of prevention and punishment of
CAH. The view was expressed that CAH remains only partially and imperfectly codified in
international law, which is now elaborated with inter-State mechanisms for co-operation to
the need for prevention and punishment in the Proposed Convention. Unlike the Geneva
Conventions and the Genocide Convention, the Proposed Convention contains substantive
features on CAH capable of meeting those purposes. It includes many elements of the Rome
Statute, such as the definition of CAH and solidifies States obligations to prevent and punish
CAH.387 It purports to more effective inter-State co-operation on the prevention, investigation
and prosecution of such crimes by building a network of co-operation. The mechanism would
deny sanctuary to the offenders and help to deter such conduct ab initio by ensuring
accountability. The Commission’s work would reinforce the jus cogens nature of the crime
and develop the preventive regime the draft pursues to bring into existence.388

Generally, bringing criminal cases under customary international law as opposed to
legislation is problematic because of legitimate concerns about fairness to the accused, which
makes concrete legal action difficult. The ICC, as a Court of last resort with limited financial
and material resources, also takes up very few cases. The Rome Statute regulates relations
between the ICC and its States parties, which is a “vertical” relationship. Part IX of the Rome
Statute (International Cooperation and Judicial Assistance) assumes that without directing

387 ibid
388 ibid

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itself to the regulation of that co-operation, inter-State co-operation on crimes within the
jurisdiction of the ICC will continuously exist without prejudice to the 1998 Rome Statute.
This suggests that the investigation and prosecution of these crimes must primarily be
assumed by national jurisdictions for the time being.389 The focus of the ILC Draft Articles,
hence, is on the adoption of national laws and inter-State co-operation, i.e. a “horizontal”
relationship. The Draft Articles have their objectives consistent with the Rome Statute as
those address inter-State co-operation on the prevention of CAH. Therefore, the Proposed
Convention would contribute to the implementation of the principle of Complementarity
under the Rome Statute. Besides, it would envisage obligations that may be undertaken by
States whether or not they are parties to the Rome Statute. Unlike the Proposed Convention,
the fundamental mechanisms of international or hybrid criminal courts or tribunals report the
prosecution of individuals for the crimes within their jurisdiction which do not necessarily
obligate States to prevent those crimes before they are committed or while they are being
committed. The proposed coherent model convention would also likely to establish the
principle of state responsibility as well as individual criminal responsibility for the
commission of CAH.

The Proposed Convention incorporates a robust procedural regime for extradition and
mutual legal assistance based on modern UN conventions on corruption and transnational
organised crime. Based on the Second Report, the Commission provisionally adopted draft
Articles 5 through 10 with commentary.390 These articles require states to criminalise the
offence, provide for command responsibility, eliminate the defence of superior orders,
abolish any statute of limitations, impose appropriate penalties and establish the liability of
legal persons over the crime. The Third Report proposed seven new articles and a draft
preamble in 2017. New draft articles on Victims, witnesses and others, Extradition, Mutual
Legal Assistance with a detailed provision on mutual legal assistance in a new Annex, and
the draft preamble were adopted in the fourth report. It has robust jurisdictional and aut
dedere aut judicare provisions with a dispute resolution clause which could be invoked
before the ICJ (or elsewhere) to resolve disputes regarding the treaty’s interpretation and
application like the Genocide Convention. All of these features indicate towards a
comprehensive mechanism to stop CAH at the global level.

3.2 The Preamble
The Preamble is an essential element of any treaty as it is the part of the document to guide
courts, tribunals, academics and even government officials for the understanding of the
instrument’s ‘object and purpose’, which is the basis of interpreting any ambiguous
language.391 The Preamble also ties into the expressive function of international criminal law,
allowing the reader to understand the critical social values the treaty enshrines and
protects.392 The Proposed Convention begins with a Preamble highlighting several core
elements that have motivated and justified the Draft Articles in their substance. The Draft
Preamble provides a conceptual framework for the Draft Articles by setting out the general
context in which they were elaborated along with their primary purposes.393 It draws
inspiration in part from the language used in the preambles of international treaties on the

389 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights,
<https://au.int/en/treaties/protocol-amendments-protocol-statute-african-court-justice-and-human-rights>
390 Report of the International Law Commission, Sixty-eighth session 2016
391 Vienna Convention on the Law of Treaties 1969, Art. 31(1), (2)
392 D.M. Amann, ‘Group Mentality, Expressivism, and Genocide’, International Criminal Law Review (2002) 2
393 Draft articles on Prevention and Punishment of Crimes Against Humanity with commentaries 2019, p 24
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most severe crimes concerning the international community as a whole, including the
Genocide Convention and the Rome Statute.

The first preambular paragraph starts with reminding the history of crimes that deeply
shock the conscience of humanity that made millions of children, women and men victims of
atrocities. When such acts constitute egregious attacks on humankind itself because of their
gravity, they are referred to as CAH.394 The second preambular paragraph recognises CAH
that endanger important contemporary values as to threat to peace, security and well being of
the world. This paragraph echoes the purposes of Article 1 of the UN Charter by stressing the
link between the maintenance of peace and security and the pursuit of criminal justice.395 The
third preambular paragraph recalled the principles of international law embodied in the UN
Charter. This phrase is modelled on the Preamble of the UN Convention on Jurisdictional
Immunities of States and Their Property and the Preamble of the Rome Statute.396 The fourth
paragraph recalls the prohibition of CAH as a peremptory norm of general international law
(jus cogens) that is accepted and recognised by the international community of States as a
whole. This is a norm from which no derogation is permissible unless a subsequent norm of
general international law modifies it with the same character. The Proposed Convention has
two overall objectives of the prevention and the punishment of CAH which are at the core of
the Draft Articles and in the Preamble itself. The fifth preambular paragraph accordingly
affirms that CAH must be prevented in conformity with international law because these are
among the most severe crimes of concern to the international community as a whole. The
sixth paragraph affirms the link between the first overall objective (prevention) and the
second overall objective (punishment) of the draft articles by indicating the determination of
putting an end to impunity for the perpetrators to prevent such crimes. The seventh paragraph
mentions considering the definition of CAH according to article 7 of the Rome Statute of the
ICC, which would remove the extant inconsistency of customary international law definition
of CAH. The eighth to tenth preambular paragraphs focus on the second of the two overall
objectives (punishment). The eighth paragraph recalls the duty of every State to exercise its
criminal jurisdiction concerning CAH. The ninth paragraph considers the rights of victims,
witnesses and others as well as the right of alleged offenders to fair treatment. Finally, the
tenth preambular paragraph emphasises on the effective prosecution of such crimes to be
ensured by taking measures at the national level as well as by enhancing international co-
operation. The measures of such co-operation would include extradition and mutual legal
assistance because CAH must not go unpunished.

It is essential that the Preamble set forth the reasons for the Convention’s adoption as
well as situate it as part of a system of international criminal justice. The Preamble signals the
intended complementarity of the ILC’s draft articles with the ICC Statute, which has been a
significant preoccupation of states and civil society as the new contemplated treaty has taken
shape.397 It also emphasises the peremptory and non-derogable character of the prohibition
and offers at least a nod to the idea that they cannot be lawfully amnestied. The Draft Articles
are elaborated further in light with the substantial features of the Preamble signifying the
purpose of the Proposed Convention.

3.3 Fighting Against Impunity
Impunity for international crimes containing organised and extensive violations of
fundamental human rights is a betrayal of the human solidarity with the victims of conflicts

394 Ibid , para 2
395 Ibid, para 3
396 United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004; Rome Statute,
preamble.
397 (n 9)

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to whom the international community owe a duty of justice, remembrance, and
compensation.398 As a duty we also owe to our own humanity to remember and to bring
perpetrators to justice and to the prevention of future victimisation.399 Since WWII various
types of conflicts took place worldwide where the number of casualties has been
innumerable, most of who were non-combatants. Less than 1% of the perpetrators of the
international crimes have been brought to justice.400 In contrast, amnesty laws were enacted
through which perpetrators have benefited from impunity.401 In the broader framework of
international law, there can be no impunity for the CAH, and therefore, the prosecution are
essential both at the national and international level. International prosecution is the only way
to reach the leaders, senior executors, and policymakers, who may otherwise be de facto
beyond the reach of local law. There is difference in obligation from the Rome Statute, and
the Proposed Convention imposing upon the state parties while addressing CAH. The ICC
has a vertical relationship with the states parties while the states parties to this Convention
would have a horizontal relationship that would lead them towards a robust mutual co-
operation. In would ultimately assist the states to fight against impunity and ensure justice
towards the victims.

3.4 Establishment of National Jurisdiction
Historically, international criminal law conventions have focused on the use of the indirect
enforcement system, which depends on national criminal justice systems as well as the
effectiveness of inter-state criminal justice capabilities. A key objective of treaties addressing
criminal acts is to obligate States to establish national jurisdiction in a manner that an alleged
offender being unable to seek refuge anywhere else in the world. The Proposed Convention
also purports to fight against impunity in the same manner. It focuses on the establishment of
national jurisdiction in a broader context like that of the Genocide Convention. Recently,
many states have adopted or amended national laws that criminalise CAH, as well as other
crimes under the influence of the Rome Statute.402 All jurisdictions that have criminalised
CAH impose criminal responsibility upon a person who commits the offence. The proposed
Convention addresses the obligation of a State to establish national laws to identify offences
relating to CAH.

3.5 Obligation to Prevent and Punish Crimes Against Humanity
The Proposed Convention innovates in many respects by bringing prevention into the
instrument in a much more explicit way than predecessor instruments, by including the
possibility of responsibility for the criminal acts of legal persons, by excluding defences of
immunities and statutory limitations, by establishing the irrelevance of official position,
prohibiting reservations and by establishing a unique institutional mechanism for supervision
of the Convention.403 Building on the third paragraph of the ICC Statute’s Preamble,
paragraph 2 of the Draft Preamble declares that CAH threatens the peace, security and well-
being of the world. The commentaries elaborate that CAH by their gravity constitutes

398 M. Cherif Bassiouni, ‘Searching for Peace and Achieving Justice: The Need for Accountability’ Law
and Contemporary Problems (1996) 59
399 Stanley Cohen, ‘State Crimes of Previous Regimes: Knowledge, Accountability and the Policing of the Past’
L. & SOC. INQUIRY (1995) 20 7
400 M. Cherif Bassiouni, Assessing Conflict Outcomes: Accountability And Impunity, in The pursuit of
international criminal justice : a world study on conflicts, victimization, and post-conflict justice, ed. M Cherif
Bassiouni (Oxford: Intersentia, 2010)
401 Ibid, 3 6–7 (M. Cherif Bassiouni Ed., 2010)
402 J. Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive Criminal Law’ J.
of Int’l Crim. Just (2003) vol. 1 91
403 (n 9)

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egregious attacks on humankind itself for which punishment alone would not be enough.
Therefore, the Proposed Convention imposes a general obligation to prevent and punish as
describing its scope in Draft Article 1. A core pillar of the ILC’s work on CAH concerned the
potential preventive dimension of a new treaty. The Proposed Convention includes the
specific obligation of prevention in Draft Article 4, as well as in Draft Article 3 on the
obligation of states to prevent and throughout other provisions of the Proposed Convention.

3.6 Summing Up
Despite the efforts of nations after World War II to put an end to atrocity crimes through
international cooperation, some 300 wars have occurred along with countless CAH. During
the Cold War between the US and its allies and the USSR and its affiliates, which spanned
nearly fifty years, averting nuclear war and mutual destruction dominated the international
stage. This often limited intervention in conflicts and situations out of fears of fueling a
nuclear holocaust. However, the demise of the Soviet Union, the atrocities of the Balkan War,
the Rwandan genocide, and the establishment of the ICC helped to refocus the world’s
attention on CAH. ILC took the vision and determination of a group of international legal
experts to band together under the CAH Initiative to move the needed treaty forward.

The Proposed Convention predominantly seeks to bring an end to impunity by bringing
to justice those accused of CAH. The Convention would constitute a long-awaited
achievement by empowering states and makes them responsible for the prevention and
punishment of CAH. The explicit recognition of duties to establish jurisdiction over CAH and
to investigate them would assist in fighting against impunity and would be a most welcome
consolidation of 70 years of normative evolution since Nuremberg. The purpose of the
Proposed Convention is reflected in the Draft Articles, which would clarify that such duties
exist in international law and would establish a helpful bridge between international criminal
law and international human rights law. Additionally, the Convention would be
supplementing the current framework concerning the prevention and punishment of
international crimes, which is of vital importance. In order to address the accountability gap,
the Convention would play a vital role in building the capacity to label particular atrocities as
CAH in the national jurisdiction of the respective States.

IV. CONCLUSION
‘Now I know what a ghost is. Unfinished business, that is what’ (Salman Rushdie, The
SatanicVerses). The international community being unaware or unwilling of their unfinished
business to adopt a Specialised Convention on CAH has been responsible for the increasing
commission of atrocities around us. Instances of atrocities alleged to be CAH have been
found in every hemisphere and region of the world. In the past 100 years, individuals have
been killed in various conflicts than at any other time in history, and most of the victims are
likely to fall within the meaning of CAH defined under international law. Before the
Proposed Convention comes into the picture, it has been the failure of the international
community to adopt a comprehensive international instrument exclusively aimed at
preventing and punishing CAH. Since Nuremberg, the absence of such an instrument has
been challenging to apply CAH charges in both national and international courts. Even after
that, the international community has failed to adopt a specialised convention on CAH.

The aim of this research has been to demonstrate the necessity and purpose of a
Specialised Convention on CAH in the international law framework. In order to do that,
this research has followed a specific method of focusing on the reason behind the initiative
taken by the UN ILC to draft the Convention. It remains clear from the study that, the
creation of international tribunals and Court have had reflected an effort to bring an end to the
horrible violence as well as to answer a groundswell of demands that would end impunity for

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violations of international human rights law more generally. Although CAH have existed in
customary international law since the Nuremberg and Tokyo trials, the ICC, despite being
progressive towards establishing accountability, has limitation over cases and situations
involving CAH. The demarcation line between CAH and genocide is that prohibition on
CAH protects all the civilian groups, whereas prohibition on genocide only protects civilians
of four specific groups. However, the absence of a specific Convention indicates a
downgrading of CAH and overuse of the Genocide Convention as a legal tool. Therefore,
there is a need to remedy gaps in the coverage of the Genocide Convention as shown by the
judgment of the ICJ in the case of Bosnia-Herzegovina v. Serbia & Montenegro. The absence
of a global treaty on CAH leads to several categories of difficulties such as an impunity gap,
in which individuals are unable to be prosecuted or are prosecuted only with difficulty at both
the national and international levels. There also remains a State Responsibility gap, because
the definition of CAH is uncertain and no compromissory clause exists to permit litigation
before the ICJ or elsewhere regarding their commission. The adoption of the Convention is
needed to establish the state responsibility framework, unlike the Rome Statute, which
establishes the individual criminal responsibility for committing such crimes. There has been
a situation of definitional uncertainty leading to challenging questions regarding whether a
particular atrocity was or was not a CAH. As a result, most of these crimes committed
globally remain unpunished due to the challenge of fulfilling the jurisdictional or gravity
threshold required by the Courts as they seek to meet the legal standards applicable to
atrocity crimes. The necessity of a Convention to strengthen the complementarity system of
the ICC would impose a greater obligation to prosecute the perpetrators under their respective
national jurisdiction. In that case, the lack of jurisdiction over CAH was a problem that a new
convention might and ought to remedy in future cases. Another important finding is the need
for a mechanism to ensure that all perpetrators of CAH whether heads of state or low ranking
military officers are subject and brought to justice. Lastly, there is need to oblige States to
prohibit CAH in their domestic penal codes for the prevention and punishment of CAH for
which a Convention is necessary.

This paper demonstrates a significant gap in the international legal system that needs to
be filled urgently. After finding out a good number of reasons to adopt a Convention on
CAH, this paper further tends to explore the significant purposes of the Convention. Several
elements of the CAH Convention were studied carefully by the ILC in the course of its work.
The key features that appear necessary are to define the offence of CAH for resolutions of the
Convention as it is restricted in Article 7 of the Rome Statute. The Convention offers a
mechanism of robust inter-State cooperation by the Parties for investigation, prosecution, and
punishment of the offence, including through mutual legal assistance and extradition, and
recognition of evidence and imposes an aut dedere aut judicare obligation when an alleged
offender is present in a Party’s territory. It aims to fight against impunity by emphasising the
states to establish national jurisdiction for the commission of CAH with a specific obligation
to prevent and punish CAH. It would help to build States’ capacity to prosecute such crimes.
The ICC only provides a limited vertical mechanism to investigate and prosecute such crimes
by taking on very few cases. The Convention would greatly expand prosecution of atrocity
crimes. Overall, the principal purpose of the new Convention is to establish a comprehensive
legal framework on CAH, focusing on interstate cooperation.

The proposed global Convention on CAH is a ground-breaking initiative that will
strengthen the obligation of the international community to ensure that those who commit
heinous crimes are brought to justice. States worldwide should actively support and promote
this landmark initiative. The international and national legal societies have been negligent of
their responsibility to protect people against those crimes as they should have done. To stop
such acts requires cooperation among nations and the promotion of human rights and

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fundamental freedoms. Such efforts like educational, political, diplomatic, and legal are
widespread and ongoing. The Proposed Convention offers a big step forward in making the
world a better place in which to live in peace. The adoption of the Convention on CAH would
mark another milestone in the evolution of the international criminal justice system.

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22 October 2022
E-ISBN 978-967-491-267-3

p. 107-122

10.THE CRUX OF ECONOMIC TERRORISM: A
PARADIGM SHIFT OF THE TERROR
MINDSET

Irfan Ali Thanvi
Independent Legal Counsel, Singapore
Email: [email protected]

ABSTRACT
Hitherto during the course of writing this paper, we observed, identified and
explored the implications of an economic model that links the incidence of
terrorism in a country to the financial circumstances facing that country. Putting
up a theory, in the spirit of Tornell (1998), that describes terrorist activities as
viciously initiated by outfits that are not appeased with the economic status quo in
place, yet unable to bring about drastic political and institutional changes that can
quantify the jest of their delinquent cause. Terror groups with abundant access to
laundered finances, consider, it a silver-streak to engage in terrorist activities. The
resultant is then a pattern of nullified economic activity and promotion of
terrorism. Albeit, an alternative environment could be cultivated, where positive
access to economic resources is more abundant and terrorism is subsequently
annihilated from the economic roots of a country.

Keywords: Terrorism, Economy, Money-Laundering, Terror outfits, Black
Money.

I. INTRODUCTION
In the wake of the tragic events of 9/11, terror is no longer a phenomenon limited to specific
areas of conflict. Economic terrorism, in the form of “premeditated, politically motivated
violence perpetrated against non-combatant targets by sub-national groups or clandestine
agents, usually intended to influence an”404 is not a nascent phenomenon. Hitherto, scenarios
carried out by suicide terrorists get motivated by financial gains and commercial sponsorships
to their vile actions are not tantamount to our innate oblivion. Albeit not astounding that
understanding the causes and the consequences of terrorism, especially in this meagre form of
financial substitution, alludes to challenges economists find die hard in nature. Subsequently,
public opinion, alongside the academic community, focused primarily on:

(1) understanding why young and educated people commit suicide while killing
others in the gain of ‘commercial benefits’,

404 The US State Department definition; 1983.

Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward

(2) estimating the causal effect of terror on aggregate outcomes. Academic journals
are in oblivion that even in terror-stricken countries the likelihood to be harmed
(through terrorism) is negligible.405

(3) Nonetheless, terrorism does generate, borrowing Webster’s Encyclopaedic
Unabridged Dictionary definition for terror “an intense fear which is somewhat
prolonged and refer to imagined or future dangers”.406

Extreme fear caused by small probability events is not limited to what is known as
terror actions. The “Mad Cow” disease in early 1996, and most recently the COVID-19
pandemic where, although the likelihood to be infected was practically zero, visits to the
“infected” regions came to a halt. Neither the standard expected utility model nor its state-
dependent version explains why a negligible change in the probabilities of the underlying
states of nature (healthy, non-healthy in the case of COVID-19) has such a substantial effect
on peoples’ behaviour. In these models, expected utility is linear in the probabilities of the
underlying states of nature, and therefore, it is hard to fit the observed reaction to COVID-19,
terror attacks and the like by using the standard state-dependent expected utility model.
Hence, it is thus surprising that most previous studies ignore the issue of why terrorism
generates large influence on peoples’ behaviour. The large-scale effects of terror were often
attributed to peoples’ “desperation for money”, either of the objective (true) probabilities
using Tversky and Kahneman prospect theory407 or of the underlying process that generate
the shock to the economy.408 Using data from the US and Israel we focus on three cases:

(1) the aftermath of 9/11 on the demand for air flight and on pilots’ monetary
compensation,

(2) the effect of suicide bomber attacks carried out on buses on the demand for bus
services and the monetary compensation for bus drivers in Israel, post the 7/7
terror attacks in 2005 on the British soil and,

(3) the effect of suicide bomber attacks on the labour markets outcomes in the market
for security guards in Pakistan.

Our findings allude to the fact that Atlantic, terror attacks generate substantial effects,
which cannot be attributed either to the change in the likelihood to be in the aggregate
demand and supply chain scenarios. Using Israeli aggregate and micro data on the use of
public transportation and the labour market outcomes of bus drivers, we find that while a
suicide bomber attack carried out on a bus decreases the number of bus passengers in the
corresponding month by 30 %, neither the compensation for bus drivers nor their likelihood
to quit their jobs was affected. The differential effect of terror on the “demand” and “supply”
sides also holds for the security guards’ market of Pakistan.409 We find that suicide bomber
attacks increase the likelihood of a Pakistani worker to be employed as a private guard by 15
percent, yet without affecting their wages.410

405 Williams, George, and Ben GOLDER. “What Is ‘Terrorism’? Problems of Legal Definition.” Other Journal
Article, JOUR. The University of New South Wales Law Journal 27, no. 2 (2004): 270–295.
https://search.informit.org/doi/10.3316/agis_archive.20050531.Economic.
406 https://unabridged.merriam-webster.com/.
407 Thaler, Richard H. "The psychology and economics conference handbook: Comments on Simon, on Einhorn
and Hogarth, and on Tversky and Kahneman." The Journal of Business 59, no. 4 (1986): S279-S284.
408 Cagetti, Marco, Lars Peter Hansen, Thomas Sargent, and Noah Williams. "Robustness and pricing with
uncertain growth." The Review of Financial Studies 15, no. 2 (2002): 363-404.
409 Knesset Research and Information Center: Public transport in Israel - status and ways to promote (2009); and
public transport in Israel - background material (2018); OECD Economic Survey 2014, page 31; OECD
Economic Survey 2016, page 27; Bank of Israel (2018), 2017 Annual Report, Chapter 2.
410 Bruce, Gregor. “Definition of Terrorism Social and Political Effects.” Other Journal Article, JOUR. Journal
of Military and Veterans Health 21, no. 2 (2013): 26–30. https://search.informit.org/doi/
10.3316/informit.395319674228847.

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II. DEFINITION OF TERRORISM

2.1 Definition of Economic Terrorism
Economic Terrorism is a term that has been much debated about in recent times in the global
media. This paper was presented by the author, who is Director of the Economic Relations
Department of the I.P.O., at the Economic Conference on Terrorism called by the
Organisation of the Islamic Conference, Geneva, from June 22-26, 1987. Albeit an attempt to
define terrorism and to put it in a broad perspective.411

Resolution 20/5-P (1.5) of the Fifth Islamic Summit espoused the idea of an economic
conference to be convened under the auspices of the United Nations to discuss the subject of
economic terrorism while understanding the root causes of the regime, which are certainly
devoid of national causes and the liberation of their territories.412

Hitherto, the following considerations are certainly alluded to the mindset of our innate
intellects:

(1) To refer, first, to Islamic sources to set the major criteria, to identify the
principles according to which homo sapiens configure their judgement, and
actions is to be assessed, setting up a precedent to benchmark such cases of terror
mindset,

(2) To examine the nomenclature of human psyche by any considerations of narrow
interests, rather to identify human rules that can be put forth at the economic level
as a general human criterion for this purpose, including but not limited to the
economic scene and constitute a specific resolution catering to this purpose.

(3) Islamic fundamental principles, which are cent percent in line with the psyche of
human thought, we can generally deduce a non-debatable and eschewed
definition, i.e., bridging the facets of terrorism and unveil the alleged criterion of
terrorism which is universally accepted.

(4) The evaluation of this latest paradigm shift, when money has become the be-all
and then of a terrorist, that he/she does not appreciate an innate precise judgement
which is free from any ambiguity or connivance and to confer on each act through
an inner objective.

(5) To rehabilitate people with such a mindset to leave this commercial objective for
the greater good of the society.

In the light of this introduction, we shall confine our study to the following points:
Contemporarily, every economic bloc, State or indeed every community has enemies
and opponents that seek to eradicate it, and, as the conflict becomes violent, media powerful
side tries to undermine the reputation of the inflicted repulsive epithets, such as “anarchist”,
“criminal”, “outlaw”, “inhuman”, “terrorist”, and the like.413
Consequently, the conflicting sides indulge in such allegations to carry out a plan which
involves the deprival of the other side of its rights on the pretext of collaborating with the
enemy or plotting against lawful interests. To materialise this process, each side capitalises
on her economic influence to win other sides over, in action or in terms of support in
economic fora. One such case in the annals of history has been that of the Ottoman Empire,

411 https://www.un.org/sg/en/content/sg/speeches/2007-11-15/address-international-conference-terrorism-
dimensions-threats-and.
412 Sheikh Mohammed Shariful Islam, Clara K Chow, Reza Daryabeygikhotbehsara, Narayan Subedi, Jonathan
Rawstorn, Teketo Tegegne, Chandan Karmakar, Muhammad U Siddiqui, Gavin Lambert, Ralph Maddison,
Wearable cuffless blood pressure monitoring devices: a systematic review and meta-analysis, European Heart
Journal - Digital Health, Volume 3, Issue 2, June 2022, Pages 323–337, https://doi.org/10.1093/ehjdh/ztac021.
413Alex P. Schmid (2004) FRAMEWORKS FOR CONCEPTUALISING TERRORISM, Terrorism and Political
Violence, 16:2, 197-221, DOI: 10.1080/09546550490483134.

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where a 600-year-old sultanate, succumbed to the mere propaganda of the then print-media,
which made no stone unturned, in crushing the Ottomans, through their economic might.414

Secondly, alluding connotations and denotations to term “terrorism” on the one hand,
and its aftermath on human life on the other, we conclude that terrorism may be carried out
on different levels. There is a terrorism which threatens security, honour, property and the
like; there is a cultural terrorism which tears human identity apart and leads to the abyss of
perdition and aimlessness; there is an information terrorism which deprives man of his
freedom to breathe in an unpolluted atmosphere. We can cite other types of terrorism such as
economic terrorism, scientific terrorism, diplomatic terrorism, military terrorism, etc.415

There exists, however, a division based on the type of perpetrators, which must be
considered. It is the introduction into the realms of economic terrorism. State terrorism -
which is the more dangerous - consists of all acts that are supported by an economically
recognised quarter or State, whether by the army of that State or individual elements or in the
form of an operation for the benefit of the said quarter. Opposing this type of terrorism is
unofficial terrorism.

Thirdly, our quest for determination depends on two factors:
(a) The motives of the sponsor of the perpetrator.
(b) The acceptability of the act itself.
These are not inseparable aspects. The personal motives of the perpetrator may look
humane to him but not so to the public. Conversely, the perpetrator may posess no human
purpose in mind or may indeed posess a purpose that he perceives to be inhumane but is
considered from the public point of view to be a humane act.
Therefore, viewpoints may differ in the judgement whether such an act is good or
evil (usuli jurisprudents posess done a great deal of valuable research on the rational basis of
differentiating between good and evil deeds, but this is not the place to go into it). What must
be stated here is that neither of the factors, taken separately, is sufficient to determine the
acceptability or the reprehensibility of an act or to judge such an act positively or negatively.
A positive assessment regarding both factors must be carried out to judge and act.
Consequently, we must ensure objectivity in our investigation to find a criterion for
identifying the acceptability and humanity of an act from the standpoints of both Islam and
mankind in general.416
As regards the Islamic standpoint, we must refer to the principles, concepts and
judgements which relate to the question of terrorism - in its literal sense - to give a general
definition of condemnable terrorism, i.e., the terrorism that is rejected by Islam as contrary to
the process of the human being's perfection determined by Allah Almighty for mankind
through human nature and prescribed through revelation. When referring to Islamic
teachings, we find that Islam is very rich in this field, and we notice that Islamic jurists
possessively delved into the various aspects that relate to the subject. We possess the
judgements on al-baghy, i.e., armed revolt by a group against a just and legitimate
government, intimidation of the public, and pursuit of divisive political goals that damage
national unity. We also possess the judgements on al-harabah, which is defined as “the use
of weapons, on land or sea, by day or night, to intimidate people, in a city or elsewhere, by a

414 Çetinkaya, Y. Doğan. "Atrocity Propaganda and the Nationalization of the Masses in the Ottoman Empire

during the Balkan Wars (1912–13)." International Journal of Middle East Studies 46, no. 4 (2014): 759-778.

415 'Introduction To Terrorism' Researchomatic 3, 2010. Accessed 10, 2022.

https://www.researchomatic.com/Introduction-To-Terrorism-8201.html.

416 Al-Arkani, Imam Abdul Basit . The Legitimacy of Adopting Contemporary Political Systems in the Light of
Islamic Political Jurisprudence (fĪqh SiyĀsah SharʿĪyyah): An Analytcal Study. The Legitimacy of Adopting
Contemporary Political Systems in the Light of Islamic Political Jurisprudence (fĪqh SiyĀsah SharʿĪyyah): An

Analytcal Study. Lexington, USA: Kindle Direct Publishing, n.d.

https://books.google.com.sg/books?id=Vzc7zQEACAAJ&dq=Imam+abdul+basit&hl=en&sa=X&redir_esc=y.

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The Crux of Economic Terrorism: A Paradigm Shift of the Terror Mindset

male or female, strong or weak.” Allah Almighty declares in the Qur’an: “This is the
recompense of those who fight against Allah and His Messenger, and spread corruption in the
land. they shall be put to death, or crucified, or have their hands and feet cut off on alternate
sides, or be banished from the land. That is a degradation for them in this world; and in the
next awaits them a mighty chastisement”.417

The above verse mentions the subject and the purpose, namely war against society and
spreading of corruption in the land. It has also mentioned the severe punishment to be dealt
out to the perpetrators, which points to Islam's concern for the subject.

There are also the laws about theft and murder which can be mentioned in this regard.
Likewise, we come across in Islamic texts terms which relate to the matter at hand, such as
homicide (al-fatk), deceit (al-ghilah), and seditious conspiracy (al-'i'timar).

There are also texts which stipulate utmost respect for covenants and treaties even if it
is discovered later that they favour the other side. If he adheres to their provisions, these must
be observed. Furthermore, we possess the requirements of the Islamic ethical system which
consists of concepts unknown to positive law yet are deeply rooted in this system. Lying
may, for instance, reach the degree of a major sin and so may calumny. We thus find that
Islam seeks earnestly to protect all kinds of true human freedoms, and to defend the dignity
of the individual and society, as well as the cohesion of society and integrity of the family,
considering any attack on them to be an atrocious crime liable to the sternest punishment
which may go as far as execution, crucifixion and the like.

Islam upholds the principle of personal responsibility and considers any attack on
innocent people as a major crime. It focuses on the defence of the weak, the humble and the
oppressed and enjoins jihad for their protection: “And why should you not fight for the cause
of Allah, and for the helpless old men and women...”.418 The Muslim is required to always
stand up for the oppressed until they get their rights. Terrorism is an act carried out to achieve
an inhuman and corrupt (mufsid) objective, and involving threat to security of any kind, and
violation of rights acknowledged by religion and mankind.

2.1.1 Statutory Definition
One of the most precise definitions in statutory law are the ones adopted by Malaysia.
Malaysian Parliament did defunct the Internal Security Act 1960 and along the line several
Acts must be instituted to suit the nascent law taking effect replacing the Internal Security
Act 1960 namely the Security Offences (Special Measures) 2012 which came into force on
the gazette date the 22nd of June 2012.419 The amendment to the Penal Code by Penal Code
(Amendment) 2012 was by way to specifically deal with organised crimes, activities
detrimental to parliamentary democracy, sabotage, and espionage. The nascent law provides
that any person who commands another to do criminal act becomes an abettor thereby guilty
by such reason. The law further reiterates the meaning to what activity regarded as
detrimental to “parliamentary democracy”, “document or publication detrimental to
parliamentary democracy”, “espionage”, “essential services”, “publication”, “sabotage” and
“sensitive information”.420 The amendments to the Criminal Procedure Code (which came in
force in stages since 2007) Section 106A and Section 106C (provisions used to intercept,
detain and open postal articles and messages transmitted via telecommunications – all

417 Al-Quraan Chapter 5: Verse 33.
418 Al-Quraan Chapter 4: Verse 75.
419 Dhillon, Guru, Rusniah Ahmad, Aspalela Rahman, and Ng Yih Miin. "The viability of enforcement
mechanisms under money laundering and anti‐terrorism offences in Malaysia: An overview." Journal of Money
Laundering Control (2013).
420 Borelli, Marguerite. "ASEAN Counter-terrorism weaknesses." Counter Terrorist Trends and Analyses 9, no.
9 (2017): 14-20.

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intercepted communications can be used as evidence for trial in terrorism).421 The old
provision above dealt on the powers of the Home Affairs to intercept communications of the
terrorist but Section 106A was amended recently to remove the terms “communication” and
“communications service provider” and that provision 106C was deleted and the nascent
Sections 116A, 116B and 116C were instead inserted. These nascent Sections lend more
credibility in handling issues connected to telecommunications which includes the power to
“search and seizure without warrant”, “access to computerised data” and “interception of
communication and admissibility of intercepted communications” – Criminal Procedure
Code (Amendment) (No.2) Act 2012. The Strategic Trade Act 2010 which came into force on
1st July 2011 could also be considered as one of the laws that safeguard the Malaysian
democracy and security. Malaysia has to that effect made significant fulfillment to the
Nuclear Security Summit in Washington USA in 2010.422 The government has acceded to
the Convention on Physical Protection of Nuclear Material (CPPNM) and its 2005 Protocol:
ratifying the Economic Convention for the Suppression of Acts of Nuclear terrorism.423 The
term “money laundering” started to draw attention in the early nineties and it has been
defined in different ways. Regardless of definitions, the core meaning of the term is the
process of turning illegally gained money into legal and lawful money with the purposes (i)
to disguise original source of criminal or illegal money and (ii) to eliminate the trail of
flowing illicit money. In fact, the term “money laundering” is applied not only to financial
transactions related to criminal activities but to any financial transaction which generates an
asset because of illegal acts – corruption, tax evasion, false accounting, etc. It seems that the
process of ML has long ago been used by criminals such as robbers and pirates Albeit the
money laundering has come to the attention of the international community only in the
nineteenth century. Albeit the definition of money laundering is not stated in the United
Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(Vienna Convention, 1988), the concept of money laundering can be inferred from Article 3
of the Convention that defines criminal offenses and the laundering of proceeds of crime. It
reads: “(1) Each Party shall adopt such measures as may be necessary to establish as criminal
offenses under its domestic law, when committed intentionally:

(a) (i) The production, manufacture, extraction, preparation, offering, offering for
sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch,
dispatch in transit, transport, importation or exportation of any narcotic drug or
any psychotropic substance contrary to the provisions of the 1961 Convention
and the 1961 Convention as amended or the 1971 Convention;

(ii) The cultivation of opium poppy, coca bush or cannabis plant for the purpose of
the production of narcotic drugs contrary to the provisions of the 1961
Convention and the 1961 Convention as amended;

(iii) The possession or purchase of any narcotic drug or psychotropic substance for the
purpose of any of the activities enumerated in (i) above;

(iv) The manufacture, transport or distribution of equipment, materials or of
substances listed in Table I and Table II, khithertoing that they are to be used in
or for the illicit cultivation, production or manufacture of narcotic drugs or
psychotropic substances;

421 Hamidi, Ahmad Zahid. "Malaysia’s policy on counter terrorism and deradicalisation strategy." Journal of
Public Security and Safety 6, no. 2 (2016).
422 Sittnick, Tammy M. "State responsibility and maritime terrorism in the Strait of Malacca: Persuading
Indonesia and Malaysia to take additional steps to secure the Strait." Pac. Rim L. & Pol'y J. 14 (2005): 743.
423 Dhanapal, Saroja, Nadhratul Wardah Salman, Johan Shamsuddin Sabaruddin, and Norbani Mohamed Nazeri.
"Criminalising Terrorism: An Overview of Malaysia's Anti-Terrorism Laws." International Journal of Criminal
Justice Sciences 15, no. 1 (2020): 70-90.

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(v) The organisation, management or financing of any of the offenses enumerated in
(i), (ii), (iii) or (iv) above.

(b) (i) The conversion or transfer of property, khithertoing that such property is
derived from any offense or offenses established in accordance with subparagraph
(a) of this paragraph, or from an act of participation in such offense or offenses,
for the purpose of concealing or disguising the illicit origin of the property or of
assisting any person who is involved in the commission of such an offense or
offenses to evade the legal consequences of his actions;

(ii) The concealment or disguise of the true nature, source, location, disposition,
movement, rights with respect to, or ownership of property, khithertoing that such
property is derived from an offense or offenses established in accordance with
subparagraph (a) of this paragraph or from an act of participation in such an
offense or offenses.

(c) Subject to its constitutional principles and the basic concepts of its legal system:
(i) The acquisition, possession or use of property, khithertoing at the time of receipt,

that such property was derived from an offense or offenses established in
accordance with subparagraph (a) of this paragraph or from an act of participation
in such offense or offenses;
(ii) The possession of equipment or materials or substances listed in Table I and
Table II, khithertoing that they are being or are to be used in or for the illicit
cultivation, production or manufacture of narcotic drugs or psychotropic
substances;
(iii) Publicly inciting or inducing others, by any means, to commit any of the offenses
established in accordance with this article or to use narcotic drugs or psychotropic
substances illicitly;
(iv) Participation in, association or conspiracy to commit, attempts to commit and
aiding, abetting, facilitating and counseling the commission of any of the offenses
established in accordance with this article”.

2.1.2 Judicial Definition
The uses of laws connected to terrorism were also given a broad coverage and the United
Nations has been pivotal in the fight against terrorism. The definition given by the United
Nations on terrorism is: “Any action that is intended to cause death or serious bodily harm to
civilians or non-combatants, when the purpose of such act, by its nature or context, is to
intimidate a population or to compel a government or an economic organisation to do or to
abstain from doing any act”.424

Scores of economic rules through conventions possess been formulated and these inter-
alia includes Nuclear Materials Convention 1980, Nascent York 1971 Hostages Convention,
Montreal Convention 1971 – Aviation Sabotage, Hague Convention 1970 – Aircraft
Hijacking, Rome 1988 Terrorism on Ships, Rome 1988 Terrorism on Fixed Offshore
Platforms, Montreal Convention 1991 Facilitating Detection on Plastic Explosives, United
Nations General Assembly Res. 1997 Terrorist Bombing, United Nations General Assembly
Resolution 2000 Terrorist Financing and finally the inclusion of Convention For the
Suppression of Unlawful Acts Against The Safety of Maritime. Many nations of the world
possess to that extent enacted their own laws to tackle issues connected to terrorism for
example the Australian Terrorism Act 2005, Terrorism act 2000 United Kingdom, Tanzania
(Tanganyika Preventive Detention 1962), Bangladesh (Special Powers Act 1974), Ghana

424 Adegbulu, Femi. "Boko Haram: the emergence of a terrorist sect in Nigeria 2009–2013." African
Identities 11, no. 3 (2013): 260-273.

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(Preventive Detention Act 1958), Israel (Emergency Powers Detention Law) and Sri Lanka
(Prevention of Terrorism Act 1982) and finally the United States itself enacted The Patriot act
2001425 and at the state levels the inclusion of The Homeland Security Act 2002. These are
signs of how serious the threats coming from terrorism and it elements. Terrorism is quite
ambiguous in its meaning because if it is in the context of a revolution to free a country, then
such act may be excused even if the whole population was terrorised in the process of getting
a freedom for a freedom fighter in the beginning may end up as a terrorist at the end of that
revolution. Terrorism is synonymous with the order committed in the name of Allah/religion
or for a certain political goal and may also serve as a sectarian belief to help those deprived of
their basic human rights by the state. Terrorist posse killed people of all nationalities
professing different faith and coming from any social backgrounds. The terrorist aim is “end
justifies means” at whatever cost may be inflicted to human lives and sufferings.426 Money
laundering is a process of three stages – placement stage, layering stage and integration stage
– which may occur simultaneously or stage by stage or they may overlap. As the process of
money laundering has become the centre of attention, money laundering cases have been
analysed seriously, thoroughly and systematically. The common features of money
laundering are hiding the true ownership and origin of the funds, taking care of the proceeds
in good condition, transforming the proceeds using sophisticated methods and constant
pursuit of profit or financial gain with elevated motivation. Money laundering has taken place
in one form or another as long as profit has existed. The most prominent methods used by
money launderers are use of the advanced technological means, professional assistance and
transnational movement of funds by taking advantage of differences in language and criminal
justice systems in different countries.

2.2 Definitions of Financing of Terrorism
Even though the definition of terrorism is highly controversial, it is generally accepted that
terrorism is use of violence for political gain or ideological or ethnic struggle by such groups
as separatists, freedom fighters, liberators, militants, paramilitaries, guerrillas, rebels,
jihadists and mujaheddins or fedayeens1. Acts of terrorism can be committed by individuals
acting alone or carried out by groups of clandestine or semi-clandestine actors outside the
framework of legitimate wars through their psychology and social circumstances, regardless
of religion and nationality.

The following are the proposed definitions2 for the term “terrorism”.
League of Nations Convention (1937): “All criminal acts directed against a state and
intended or calculated to create a state of terror in the minds of particular persons or a group
of persons or the general public”.
UN Resolution language (1999): “Strongly condemns all acts, methods and practices of
terrorism as criminal and unjustifiable, wherever and by whomsoever committed;
Reiterates that criminal acts intended or calculated to provoke a state of terror in the
general public, a group of persons or particular persons for political purposes are in any
circumstance unjustifiable, whatever the considerations of a political, philosophical,
ideological, racial, ethnic, religious or other nature that may be involked to justify them ( GA
Res. 51/210 Measures to eliminate international terrorism)”.
Short legal definition proposed by A.P. Schmid to United Nations Crime Branch

(1992): Act of Terrorism = Peacetime Equivalent of War Crime.

425 Yussof, Adrah Binti. "Terrorism–The Threat to Democracy, Peace and Security." (2021).
426 Steinzor, Rena. "Democracies die behind closed doors: The Homeland Security Act and corporate
accountability." Kan. JL & Pub. Pol'y 12 (2002): 641.

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Academic consensus definition: “Terrorism is an anxiety-inspiring method of repeated
violent action, employed by (semi-) clandestine individual, group or state actors, for
idiosyncratic, criminal or political reasons, whereby – in contrast to assassination – the direct
targets of violence are not the main targets. The immediate human victims of violence are
generally chosen randomly (targets of opportunity) or selectively (representative or symbolic
targets) from a target population, and serve as message generators. Threat – and violence-
based communication processes between terrorist (organisation), (imperiled) victims, and
main targets are used to manipulate the main target (audience(s)), turning it into a target of
terror, a target of demands, or a target of attention, depending on whether intimidation,
coercion, or propaganda is primarily sought (Schmid, 1988)”.

The legal definition for terrorist financing predicate offense stated in the 1999
International Convention for the Suppression of the Financing of Terrorism (Article 2) is:
“Any person commits an offense within the meaning of this Convention if that person by any
means, directly or indirectly, unlawfully and willfully, provides or collects funds with the
intention that they should be used or in the khithertoledge that they are to be used, in full or in
part, in order to carry out:

(a) An act which constitutes an offense within the scope of and as defined in one of
the treaties listed in annex; or

(b) Any other act intended to cause death or serious bodily injury to a civilian, or to
any other person not taking any active part in the hostilities in a situation of
armed conflict, when the purpose of such act, by its nature or context, is to
intimidate a population, or to compel a government or an international
organisation to do or to abstain from doing any act.

2. (a) On depositing its instrument of ratification, acceptance, approval or accession, a
State Party which is not a party to a treaty listed in the annex may declare that, in
the application of this Convention to the Sate Party, the treaty shall be deemed
not to be included in the annex referred to in paragraph 1, subparagraph (a). The
declaration shall cease to have effect as soon as the treaty enters into force for the
State Party, which shall notify the depositary of this fact.

(b) When a State Party ceases to be a party to a treaty listed in the annex, it may make
a declaration as provided for in this article, with respect to that treaty.

3. For an act to constitute an offense set forth in paragraph 1, it shall not be necessary
that the funds were actually used to carry out an offense referred to in paragraph
1, subparagraph (a) or (b).

4. Any person also commits an offense if that person attempts to commit an offense as
set forth in paragraph 1 of this article.

5. Any person also commits an offense if that person:
(a) Participates as an accomplice in an offense as set forth in paragraph 1 or 4 of this

article;
(b) Organises or directs others to commit an offense as set forth in paragraph 1 or 4

of this article;
(c) Contributes to the commission of one or more offenses as set forth in paragraph 1

or 4 of this article by a group of persons acting with a common purpose. Such
contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of
the group, where such activity or purpose involves the commission of an offense
as set forth in paragraph 1 of this article; or
(ii) Be made in the khithertoledge of the intention of the group to commit an offense
as set forth in paragraph 1 of this article”.

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In summary the term terrorist financing refers to the act of providing the funds or
something of value to individual terrorists or terrorist groups or persons and groups engaged
in terrorist activities or engaging in financial transactions with terrorist groups khithertoingly
and unlawfully. FATF Special Recommendation II encourages countries to criminalise the
financing of terrorism, terrorist acts and terrorist organisations – consistent with Article 2 of
the Convention against Financing of Terrorism – and ensure that such offenses are designated
as money laundering predicate offenses.

Terrorism includes not only the incidents that have happened in different parts of the
world but also the substantive offenses for unsuccessful violent attacks whose nature is
extremely serious about violent attacks. For example, the terrorist plot to blow up US-bound
jetliners, as many as 10 passenger jets leaving Britain for the United States, over the Atlantic
and kill thousands in 2006, was disrupted by British police and quite a number of terrorist
suspects were arrested and the police have continued surveillance on potential terrorist
attacks.

Tracking terrorist financial transactions seems more difficult than following the money
trails of criminal groups for two reasons, among others, (i) the amount of funds required for
terrorist attacks is comparatively small and (ii) the financing of terrorism is overshadowed by
the larger financial resources allocated for the group’s political and social activities.
Pellegrina and Masciandaro (2009) highlight the differences that exist between countries’
national legislation about the criminalisation of money laundering activities. They suggest
that eliminating the possibility of exploiting the differences between regulations across
countries may help in enhancing the effectiveness of the AML regulations. The need for
international cooperation in this improvement is supported by Ferwerda (2009). On the lines
of assessing the effectiveness of AML regime, Barone and Masciandaro (2011) estimated the
public benefit for Europe from a drastic reduction in the money laundering multiplier effect.
They found the public benefits would outweigh the cost of AML regulations. Similarly,
Barone and Schneider (2018) are of the view that a causal link exists such that effective AML
regulations increase the costs for criminal organisations, which they describe as an efficient
way to reduce money laundering. The debate around the AML framework and its
effectiveness has led to the rapidly changing regulatory landscape to combat the problem of
illicit activities such as money laundering. This is demonstrated by the proposed changes
made to the reforms to address the loopholes (AUSTRAC, 2018, Bozhilova, 2018). For
instance, a list of proposed changes has been suggested to the existing EU’s Fifth Anti-
Money Laundering Directive to address the loopholes in regulation. The proposed changes
address aspects related to exchange and use of information and to the cooperation between
financial intelligence units (FIUs) of the member states as well as between FIUs and other
competent authorities within the member states. The goal is to reduce opportunities for illicit
actors to take advantages of national differences in the definition, scope and sanctioning of
money laundering offences which results in suboptimal cooperation between concerned
authorities. The proposed changes seek to be in line with other policies pursued by the EU
such as the reformed data protection regime (Bozhilova, 2018). Table II summarises key
works focusing on the effectiveness of AML.

III. SOURCES OF ECONOMIC TERRORISM427
Malaysia is one of the world’s busiest and strategic checkpoints428, accounting for
approximately 40% of the total global maritime trade.429 With numerous ships passing by

427 Thanvi, Irfan Ali. Terrorism: A Threat to Malaysia’s National Security. A Brief Analysis on the Overall
Security Threat to Malaysia, 2018. The on-going discussion in this paper is adapted from this book of mine.
428 The Geographical location of Malaysia imparts the peninsular Malaysia enfaced with both the Indian and the
Pacific Oceans.

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each day, the opportunity to hijack a ship to use as a weapon or carry out attacks (e.g.,
planting a bomb) on-board ships remains high. The situation is further exacerbated by the fact
that commercial shipping is a complex multinational network. A ship could be flagged in one
country but owned by a company based in another country. Its crew can consist of a mix of
nationals and its cargo can be consigned by numerous companies from all over the world
transiting through the territorial waters of a third country heading towards a port of a fourth
country. Given such complexity and ease of access to move people and goods in the maritime
domain, the opportunities for terrorists to conduct their activities continue to exist.

3.1 Capability
In terms of hardware, terrorists continue to employ low-cost explosive devices against their
targets. Notwithstanding, the ease of access to these raw materials as well as dual-use
technologies such as satellite communication systems, Global Positioning System,
recreational maritime vehicles (e.g., yacht, fast boats and jet skis) increases the available
inventory that maritime terrorists can exploit to advance their cause.430 Terrorists possessions
also been known to align themselves to criminal organisations in order to gain access to the
required expertise and resources, both in terms of manpower as well as financial support
through activities such as smuggling and money laundering.431 Terrorist organisations
possess also exploited the use of social media and internet forums to recruit manpower,
spread their ideology and teach the techniques, tactics and procedures (TTP) in carrying out
terrorist acts. Given that some countries continue to be plagued by endemic income inequality
and corruption, these factors possess fueled the growth of extremists within the region and
spurned more radicalised individuals to join these terrorist organisations.432

3.2 Intent
Terrorism works at the mental and psychological levels by imparting and spreading
trepidation in their casualties. The mere threat of an attack is sufficient to trigger
governments into a host of arrangements to deter and disrupt terrorism. In the information
operations realm, the successful assaults completed by Al Qaeda since 2000 had encouraged
their members, regional terrorist organisations (e.g., the Kumpulan Militan Malaysia (KMM),
Jemaah Islamiyah (JI), Abu Sayyaf Group, Moro Islamic Liberation Front, Lashkar e Jihad,
Gerakan Aceh Merdeka, more recently, Jamaah Ansharusy Syariah) and ‘Lone Wolves’ to
carry out high pay-off returns in the maritime domain.433 For example, the attack by Abu
Sayyaf Group in 2004 on the Super Ferry in the Philippines saw a hundred plus passengers
killed.434 No doubt, these terrorist organisations continue to publicise their intent, rallying
supporters to join their cause and encouraging them to carry out attacks. For example, in
2002, Singapore managed to uncover reconnaissance information gathered by JI on US naval
facilities and ships based in Singapore. In May 2015, ISIS reascended calls to attack
Singapore, Philippines and the US, following the disruption of a terrorist cell in Malaysia in

429 Graham, Euan. "Maritime Security and Threats to Energy Transportation in Southeast Asia." The RUSI
Journal 160, no. 2 (2015): 20-31.
430 Raymond, C. "Maritime terrorism, a risk assessment: The Australian example." Joshua Ho and Catherina
Zara Raymond, eds (2005).
431 Lorenz, Akiva J. "Al Qaeda's maritime threat." International Institute for Counter-Terrorism 17 (2007).
432 Gunaratna, Rohan. "Al Qaeda’s origins, threat and its likely future." Terrorism in the Asia-Pacific: Threat
and Response (2003): 145.
433 Desker, Barry. "Islam in Southeast Asia: the challenge of radical interpretations." Cambridge review of
international affairs 16, no. 3 (2003): 415-428.
434 "Bomb Caused Philippine Ferry Fire." BBC News. October 11, 2004. Accessed June 11, 2015.
http://news.bbc. co.uk/2/hi/asia-pacific/3732356.stm.

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April 2015 which had intentions of carrying out bomb attacks in Putrajaya.435 In May 2015,
Singapore’s Ministry of Home Affairs detained a teenager student who had intentions to join
ISIS in Syria and failing which, may possess the attempted to carry out ‘Lone Wolf’
attacks.436 Such evidence continues to demonstrate that the threats to our maritime security
are real, present and clear.

IV. POSSIBLE SCENARIOS OF A MARITIME TERRORIST ATTACK IN
SOUTHEAST ASIA
To understand the dangers of maritime terrorism, there is a need to examine the list of
vulnerabilities and potential outcomes that can be connected to potential attacks. This
analysis must be grounded on authentic information and insights to the capabilities as well as
goals of terrorist organisations. The Rand Corporation, in its study ‘Maritime Terrorism -
Risk and Liability’ recognised seven conceivable scenarios where maritime terrorism might
happen.437 Trend Micro completed a risk assessment study in December 2014 and highlighted
eight potential scenarios that may be exploited by terrorists. The subsequent scenarios are as
follows.

Scenario 1:
Smuggle Chemical, Biological, and Radiological, Explosive (CBRE) materials ashore via
cargo containers to carry out attacks at significant commercial ports such as Hong Kong or
Singapore or key targets on land.438 With more than 100 million cargo containers being
moved through the world’s ports each year, it is possible that terrorists may choose to
smuggle their CBRE materials in one of these containers. The sheer volume alone means that
it is not feasible to carry out a 100% check on all the cargo containers.439 Notwithstanding,
another area of concern is the robustness of supply chains. The multifaceted and complex
nature of freight shipment in ports represents another weak link to the security issue. Cargo is
loaded at one area and transported by truck or rail to a port and thereafter, loaded onto a ship
where it gets transferred to another ship at a transshipment port before reaching its
destination. To ensure that the supply chain network is not compromised, and all phases of
the supply chain are screened, a significant amount of investment from the logistics as well as
transport industry is required. However, all these measures drive up overheads and time
needed to move goods. Thus, it is unlikely that the developing countries in Southeast Asia
will be willing to incur these costs unless it is a universal requirement by all ports to comply.

440

435 “ISIS social media post cites Singapore as possible target.” The Straits Times / Singapore. May 29, 2015.
Accessed June 11, 2015. http://www.straitstimes.com/ news/singapore/more-singapore-stories/story/isissocial-
media-post-cites-singapore-possible-target-2.
436 "19-year-old Detained for Planning to Join ISIS Had Planned to Kill President and PM Lee." The Straits
Times / Singapore. May 29, 2015. Accessed June 11, 2015. http://www.straitstimes.com/news/singapore/ more-
singapore-stories/story/19-year-old-detainedplanning-join-isis-had-planned-kill.
437 Greenberg, Michael D., Peter Chalk, Henry H. Willis, Ivan Khilko, and David S. Ortiz. Maritime terrorism:
risk and liability. Rand Corporation, 2006.
438 Ibid.
439 Ibid.
440 Partridge, Amy Roach. "Scrutinizing supply chain security." Inbound Logistics 32, no. 1 (2012).

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Scenario 2:
The Usage of ‘Trojan Horse’ tactics441, concealing weapons or other explosive devices, in
seemingly harmless looking vessels as such fishing trawlers, tugs or re-supplies ships. Not
only does the Economic Ship and Port Facility Security (ISPS) Code exclude vessels less
than 500 tons, but it also provides exclusion for all fishing vessels regardless of their size.
Notwithstanding, several economic standards that are applicable to merchant vessels are not
applicable to the fishing vessels found in Southeast Asia, in part due to their haphazard
operations schedule as well as the limited number of qualified seafarers on-board.442
Likewise, their possessions been numerous cases in which the vessel's crew records were
conflicting or erroneous. What this means is that these vessels continue to be the preferred
choice for the conduct of illicit activities such as smuggling of weapons in hidden
compartments under a boat load of fish. As these vessels are not Safety of Life at Sea
(SOLAS)-compliant, security initiatives such as those implemented by Singapore (i.e.,
Harbour Craft Transponder System, Harbour Craft Security Code, and Ship Self Security
Assessment Checklist) can be implemented by regional Port State Controls to deter maritime
terrorism.443 The Mumbai attack is an example where terrorists exploited a seemingly
harmless fishing vessel to bypass security agencies.

Scenario 3:
Hijacking a vessel to raise funds or to support their crusade of political viciousness
coordinated toward ethnic, ideological, religious, or separatist outlines. In 1985, the MS
Achille Lauro was hijacked by four members of the Palestine Liberation Front (PLF).444 The
hijackers demanded the release of 50 Palestinians locked up in Israeli jails. The incident saw
one Jewish American passenger being killed in response to negotiation breakdown.445 In
2001, MT Tri Samudra, a chemical tanker, carrying a full cargo of inflammable
petrochemical products, was hijacked by thirty five gunmen, likely from the Free Aceh
Movement, in Malacca Straits. The ship and crew were released, supposedly upon payment
of the ransom.446 While these hijacks involved the smaller vessels, such as product tankers,
tugs and fishing trawlers, they are largely carried out by criminal organisations that posess
the means to off load the valuable cargo on-board.

Scenario 4:
Scuttling a ship at a chokepoint or narrow Sea Lines of Communication (SLOC) (e.g.,
Malacca Straits) to disrupt commercial trade and shipping movement. Looking at the context
of Southeast Asia, in particular the Malacca Straits, it is highly unlikely that such an attack
will achieve its intended outcome. This is because at One Fathom Bank, or the narrowest
point in Malacca Straits, it is approximately 0.6 nautical miles wide and ships can circumvent

441 The Trojan Horse is a story from the Trojan War about the subterfuge that the Greeks used to enter the
independent city of Troy and win the war. In the canonical version, after a fruitless 10-year siege, the Greeks
constructed a huge wooden horse, and hid a select force of men inside including Odysseus.
442 Bateman, W. S. G., Joshua Ho, and Mathew Mathai. "Shipping patterns in the Malacca and Singapore straits:
an assessment of the risks to different types of vessel." Contemporary Southeast Asia: A Journal of International
and Strategic Affairs 29, no. 2 (2007): 309-332.
443 Cui, Yifang. "Dangerous goods regulating system in Singapore." (2010).
444 Halberstam, Malvina. "Terrorism on the high seas: the Achille Lauro, piracy and the IMO convention on
maritime safety." American Journal of International Law (1988): 269-310.
445 The Achille Luaro incident subsequently led to the creation of the Convention for the Suppression of
Unlawful Acts against the Safety of Maritime Navigation (SUA) in 1988.
446 Raymond, Catherine Zara. "Maritime Terrorism in Southeast Asia: Potential Scenarios." Terrorism Monitor
4, no. 7 (2006): 1-2.

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round the sunken ship and continue on their passage.447 However, the threat from mines or
floating Improvised Explosive Devices (IEDs) is far greater and will achieve the intended
outcome of disrupting shipping movement in a SLOC.448

Scenario 5:
Hijacking a Liquefied Innate Gas (LNG) carrier and then exploding it as a floating bomb or
utilising it as an impact weapon against port facilities. Large vessels possess long stopped
distances and if used as an impact weapon against a port facility, can cause significant
destruction. When these vessels are carrying high-risk or inflammable goods such as LNG,
terrorists could hijack these ships and use them as floating bombs to target port facilities.449
Innate Gas is not explosive in its liquid state. That is why refrigerated tankers are used to
store huge amounts of LNG for transportation. However, once it is exposed to the ambient
environment, LNG rapidly evaporates and forms an ignitable cloud.450 When this cloud is
ignited, the heat generated is capable of melting steel at a separation distance of 1.5 km.

V. CLASSIFICATION OF ECONOMIC TERRORISM
In 2005, Malaysia’s Ministry of Science, Technology, and Innovation (MOSTI) carried out a
study on the National Cyber Security Policy (NCSP) which was endorsed by the Malaysian
Government in May 2006. The NCSP was formulated to address threats and risks to the
Critical National Information Infrastructure (CNII) and developed action plans to mitigate
such risks. The policy consists of eight (8) policy thrusts; Effective Governance, Legislative
and Regulatory Framework, Cyber Security Technology Framework, Culture of Security and
Capacity Building, Research and Development Towards Self Reliance, Compliance and
Enforcement, Cyber Security Emergency Readiness and Economic Cooperation.

CNII consists of assets (real and virtual), systems and functions that are vital to nations
that their exploitation, damage or destruction would possess a devastating impact on national
economic strength, image, defense and security, government capabilities to function
efficiently and public health and safety.451 The NCSP is focused particularly on the protection
of CNII against cyber threats. Alongside clear and effective governance, the NCSP provides
mechanisms for improving the trust and cooperation among the public and private sectors.
NCSP also focuses on enhancing skills and capacity building as well as enhancing research
and development initiatives onwards self-reliance. It also maps out emergency readiness
initiatives and dictates a program of compliance and assurance across the whole of the CNII.
The NCSP also reaches out to Malaysia’s economic partners and allies. The policy describes
methods that Malaysia can share knowledge with the region and the world on cyber security

447 If for some reasons, the terrorists is able to scuttle multiple ships and effectively blocked the Malacca Straits,
what this means is that vessels will be forced to bypass Malacca Straits and use either Lombok or Sunda Straits
to reach their destinations, potentially incurring additional shipping costs and delays but not resulting in a
standstill of maritime trade in the region.
448 "Malaysian Military Warns Underwater Mines Could Be Terrorist Tool." DefenceTalk. June 7, 2006,
Accessed June 11, 2015. https://www.defencetalk.com/ malaysian-military-warns-underwater-mines-could-
beterrorist-tool-6414/.
449 Raj, Andrin. "Japan’s initiatives in security cooperation in the straits of Malacca on maritime security and in
Southeast Asia: piracy and maritime terrorism." The Japan Institute for International Affairs. Retrieved March
31 (2009): 2012.
450 It is not easy to create a cloud of fire on an LNG carrier. First, LNG carriers are designed with numerous
safety provisions such as compartmentalizing the tanks to prevent contact with one another. In addition, the
power needed to break the structure of the tank would more likely than not, cause fire at the tank area and light
up the gas as it escapes into the surrounding, restricting the potential damage fairly to the LNG carrier. As such,
it is unlikely that a cloud of fire can be created during such an attack.
451 http://cnii.cybersecurity.my.

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related matters. Malaysia developed NCSP as a proactive step in protecting critical sectors
against cyber threats.

Thus, CNII would probably be the target of terrorists wanting to cripple any country
and disrupt its critical services. This includes warfare attacks against a nation’s state and
forcing critical communications channels and information systems infrastructure and assets to
fail or to destroy them. These would be crippling the electrical distribution grid by shutting
down control systems, disrupting national telecommunications network services, sabotaging
air traffic control systems, attacking oil refineries and gas transmission systems by crippling
control systems, destroying or altering banking information on a massive scale and gaining
access to dam control systems in order to cause massive floods.

Why would cyber terrorist decide to use ICT rather than opt to the usual methods such
as assassination, hostage-taking and guerrilla warfare? By using ICT, a handful of cyber
terrorists can cause greater damage to a country than an army of a few thousands. Countries
which are increasingly dependent on ICT, especially those that posess many systems
connecting to the Internet, are vulnerable to these kinds of attacks. The paradox is that, the
more wired a nation is, the more vulnerable it is to cyber-attacks. In the era where the usage
of ICT is a necessity, it is regrettably also highly vulnerable to attacks and opens a nascent
dimension of threats.

The cyberspace has enabled asymmetric warfare, where individual perpetrators such as
extremists, terrorist groups and cyber criminals possess the abilities and capabilities to inflict
damage to a nation’s well-being. In this digital age, the concept of cyber terrorism or the use
of cyberspace to carry out terrorist activities has emerged. By using ICT, terrorists can bring
about greater damage or leave the nation with difficult conditions due to disruption of the
critical services. Cyber terrorism can thus be seen as a relevant threat due to its strong
relation to ICT and cyberspace. Therefore, there is a need to possess a strategy at the national
level to protect CNII from cyber terrorism activities. In Malaysia, the government has
implemented the NCSP to address cyber threats and risks to CNII. It is a proactive initiative
whereby the NCSP has developed action plans to mitigate such risks. Subsequently,
Cybersecurity Malaysia also plays imperative roles in providing excellent services in
educating, safeguarding, and strengthening cyber security initiatives in the country. Together,
we can create a secure and safer cyber space for the world.

VI. CONCLUSION
The fight against terrorism is an ongoing concern for all countries including Malaysia. As a
country where democracy is flourishing, Malaysians cannot sacrifice this nation to the hands
of certain unscrupulous group or terrorist who claims to be fighting for the cause of public
interest when they are not. The majority rules as a principle through the ballot box and
terrorism must be looked upon in its most undeserving nature for it is a form of psychological
oppression which brings unbearable suffering to mankind. ASEAN’s political endeavors and
co-operation over the past decade poses eradicated crevices in the law that provided
possession for terrorists to operate. Regional efforts as well as whole-of government
approach to combat terrorism posse achieved the effects of deterring, detecting, and
disrupting terrorism. But the work is not done. This conference paper has established that the
maritime terrorism threat in Southeast Asia is real, and the terrorist organisations possess the
opportunity, capability and intent to carry out the attacks. The eight possible scenarios were
explained in the context of Southeast Asia with the latest addition of cyber-attacks on the AIS
following the study done by Trend Micro. Finally, the conference paper analysed ASEAN’s
efforts in fighting terrorism and acknowledged that confidence building measures, shared
intelligence, capacity building and enhancing interoperability possess been effective in
deterring, detecting, and disrupting maritime terrorism. The conference paper also

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highlighted five main challenges that may undermine these efforts and propose greater
regional collaboration in combating terrorist ideology.

Our intrigue alludes us to the fact cognizant of human intellect, as to how can an Arabic
speaking person, sitting in the heat of Aleppo, could convince or radicalise, a farmer from
Bangladesh to join his side and conduct operations on his organisation’s behalf on the latter’s
home soil? The answer is fairly simple, -Money, has been the motivational factor, the
laundered money, from black to white has convinced the poor farmer to do what he did,
rather than any form of sophisticated radicalisation, or brain washing. The lust of commercial
success has degraded the human being of yesteryears, converting man into a monster, some
of us have attained a level of no-return. Plausible solutions do remain in the offing, but
people, who are in academia, must stop extolling their virtues on achievements of the past,
and deliver certain solutions for this latest paradigm shift to curtail. Rest assured, we rest our
case in the Bountiful Hands of Almighty Allah Taa’laa, to guide Mankind to the straight path.

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22 October 2022
E-ISBN 978-967-491-267-3

p. 123-132

11. CAN CONFLICTS BE SOLVED WITHOUT
RELIGION? LIMITATION OF SECULAR

PATHWAYS OF CONFLICT RESOLUTION IN
THE MIDDLE EAST

Shameer Modongal
Assistant Professor, West Asian Studies,

University of Kerala, India
Email: [email protected]

ABSTRACT
Following the experience of the European countries in the medieval period,
religion was seen as a source of violence. Consequently, the discipline and
practice of conflict resolution ignored religious actors and norms. The
presumption was that since religion is a source of conflict, it cannot contribute to
their solution. Moreover, since religion was restricted to the private sphere of life,
its involvement in public life was anathema to modern secular principles.
Nevertheless, many parts of the world did not subscribe to this European notion
of secularism and experienced continuous engagement between religion and
politics. In contrast to expectation, globalisation and liberalisation strengthened
the public involvement of religions. Although the proponents of secularisation
consider it a reason for conflict, many scholars, like William Cavanaugh, have
called this stereotype of connection between religion and violence a myth. At the
same time, all world religions propose many principles that are useful for conflict
resolution and for rebuilding social relations. Religious institutions and leaders
can also play a positive role in providing a spiritual dimension and religious
legitimacy for the conflict resolution process. Therefore, this paper is going to
argue that integrating religious institutions and values into the conflict resolution
process can enhance the popular acceptance and legitimacy of the conflict
resolution process. Substantiating the argument, this paper will examine the
experience of the Israel-Palestine peace process.

Keywords: Religion, Conflict Resolution, Islam, Israel-Palestine Conflict.

I. INTRODUCTION
Since the modern disciplines and practices of International Relations were developed in the
secular post-enlightenment European context, religion was overlooked. Due to the dominance
of secular narration, religion was presented as a source of violence. This ignorance and
negative stereotype against religion continue even in the contemporary world. Although the
resurgence of religion of recent decades made it more visible, news and academic literature

Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward

strengthened the negative image of religion. For example, news and reports on rise of
religious nationalism in different parts of the world, Islamic revolution in Iran and emergence
of religious forces at the cost of secular parties in both Israel and Arab sides were largely
with warning of threat to modern norms of secularism. The clash of civilisations thesis of
Huntington further emphasised that the conflict in coming years will be among religions,
which are the central pillars of civilisations. Compared to any other events in the recent
decades, the 9/11 terrorist attack in the United States played most significant role in
proliferating literature, largely negatively, on religion in International Relations. According to
Herrington and McKay, the number of books that were published on Islam and War after the
9/11 attack was more than the number of books that had been published on the same subject
between the invention of the press in the fifteenth century and 2001452. Ron E. Hassner also
noted a similar point when he argues that the number of books on religion and violence has
increased in the Library of Congress catalogue from two or three books per year in the last
three decades to fourteen books per year after 2001453.

Since religion is presented as a source of conflict, its role in the conflict resolution was
overlooked. In the Post-Westphalian period, the public involvement of the region was
considered as a n anathema. The presumption was that since religion often inspired,
legitimated and exacerbated deadly conflicts, it cannot contribute to their peaceful
transformation454. Elise Boulding opined that even though religions have potential in
peacebuilding, they have not succeeded in using them. At the same time, they work as an
obstacle in peacebuilding455. So, religion was ignored from the conflict resolution process.

Even though the dominant western secular perspective argued for the separation of
religion from public life, it was not acceptable for a significant part of the world population
who provide religion with a central role in their life. The differentiation between public and
private spheres was not a universal phenomenon. Religions like Islam covered both public
and private spheres of life and put forwarded guidelines for entire life. So, many scholars
realised the necessity of developing a framework to utilise the potentiality of all religions to
bring peace in the society. Breaking the stereotype about the role of the region as a source of
violence, the publication of two seminal works, one is edited by Douglas Johnston and
Cynthia Sampson456 and another is edited by Robert Seiple and Dennis Hoover457, advanced
the positive role of religious actors. In late 1997, the idea of the Dialogue of Civilisations was
proposed by Muhammad Sayyed Khatami, the President of the Islamic Republic of Iran. As a
counter to Samuel Huntington’s Clash of civilisations, it proposed the dialogue between the
West and Rest and the interfaith meetings. Similar to the Clash of Civilisations, the Dialogue
of Civilisations also considered religion as a significant factor in global politics. Following
the Khatami’s proposal, there were renewed attempts for the interfaith dialogues458. For
example, on 15th December 1997, Muhammad Sayyid Tantawi, Sheikh of al-Azhar, received

452 Luke M Herrington and Alasdair McKay. “Introduction.” in Nations under God: The Geopolitics of Faith in
the Twenty-First Century, eds. Luke M., Herrington, Alasdair McKay, and Jeffrey Haynes (E-International
Relations, 2015), 6.
453 Ron E. Hassner, "Religion as a Variable." In Religion and International Relations: A Primer for Research.
Eds. Michael Desch, (South Bend, Indiana: University of Notre Dame, 2013), 68.
454 Sharon Rosen, “The Importance of Interfaith Cooperation for the Protection of Jerusalem’s Holy Sites,” in
Sacred Space in Israel and Palestine: Religion and politics, eds. Marshall J. Breger, Yitzhak Reiter and
Leonard Hammer (Oxon and New York: Routledge, 2012), 439.
455 Cited in Sara Silvestri and James Mayall, The role of religion in conflict and peacebuilding (London: British
Academy, 2015), 16.
456 Douglas Johnston and Cynthia Sampson, eds. Religion, the missing dimension of statecraft (New York:
Oxford University Press, 1994).
457 Chris Seiple and Dennis Hoover, eds. Religion and Security: The New Nexus in International Relations
(Rowman & Littlefield, 2004).
458 Rivka Yadlin, "Inter-Faith Strife: The Al-Azhar Discourse on Israel," Israel Affairs 12, no. 1 (2006): 52.

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