Sir David Baragwanath, a New Zealand judge and former president of the United Nations Special Tribunal for Lebanon, said that terrorism should be prosecutable in UN tribunals, despite challenges in defining the crime and gaining international consensus.
“When you have Hezbollah drawing recruits from at least 127 states, causing chaos in at least 17 … the idea that you cannot have a crime, an international crime for terrorism, is in my opinion regrettable and incorrect,” he said.
The UN Special Tribunal for Lebanon, which has an ongoing mandate, is the first international tribunal to adjudicate on terrorism as an international crime. Baragwanath argued it should not be the last.
“What we need is a systemic response,” he said.
Baragwanath proposed that the United Nations Security Council should first criminalize terrorism—noting that partial attempts have already been made—and then create mechanisms for prosecution. This could be a general power for all states to prosecute, similar to the case of torture, or a “little, efficient terrorism court” tied to the UNSC’s Counter-Terrorism Committee Executive Directorate (CTED). The International Criminal Court would not be a suitable venue, he said, since it should focus on heavyweight crimes like crimes against humanity.
Describing his proposal as “two simple steps”, Baragwanath said “there is nothing in Article 24 or anywhere else in the [United Nations] Charter that stops the Security Council from legislating.”
When asked about the complications brought by UNSC infighting and veto power, he said he saw vetoes as a positive safeguard, and stressed that there was plenty of common ground.
“The Security Council in my opinion should be trusted to make the call,” Baragwanath said. “Take ISIS ... all states can pull together on the same boat to try and strangle ISIS.”
As for the longstanding debate over how to define terrorism, Baragwanath preferred a definition based on the 1937 Draft Convention for the Prevention and Punishment of Terrorism. This Convention predated the UN and was never entered into force. However, if there were controversial cases—he gave the examples of Nelson Mandela and the French Resistance—the “pragmatic” way out was not to have a definition on the books, and give UNSC leeway to construe it.
Baragwanath was lecturing Thursday at the University of Hong Kong on public international law. Besides terrorism, he also spoke generally on the development of the international legal order.
While Baragwanath supported international law solutions for almost every transnational problem—including climate change, trade, human rights protection, and more—he said he was mindful of the “subtleties” of local contexts. For example, he said the Special Tribunal for Lebanon “takes care not to infringe Lebanese values.”
Baragwanath also saw possibilities for energy and imagination: pointing to a 2010 judgment which he co-authored, along with the first president of the Special Tribunal Antonio Cassese, he said its arguments on inherent jurisdiction was an example of the law’s potential for “dynamism.”
For him personally, public international law was an exercise in comparison: having worked for most of his life in New Zealand, a common law jurisdiction, he had to adapt to working at the Special Tribunal where most of his colleagues—especially the Lebanese judges—had civil law backgrounds.
“The periscope of public international law,” Baragwanath said, helps him “to penetrate the cloud of my own predilections and theories in the common law.”
This event was also covered live on Twitter at @holmeschan_