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Research Article

From Punishment to Pre-emption: The Changing Nature of Regional Organizations’ Legal Responses to Terrorism, 1990–2010

Bernhard BlumenauCentre for the Study of Terrorism and Political Violence (CSTPV), University of St Andrews, Scotland, UKCorrespondence[email protected]

https://orcid.org/0000-0003-1072-3512

Abstract

This article examines regional organizations’ antiterrorism efforts across the globe from 1990 until 2010. Empirically, it provides a comprehensive overview of the legal responses developed. Analytically, it determines long-term patterns and regional differences in these treaties, examines bones of contention, and how these were overcome. This study shows that after the Cold War, all regions developed legal antiterrorism frameworks, but states continued to preserve their sovereignty by various means; and extraditing or trying suspects remained the compromise of choice. Importantly, these antiterrorism efforts marked a watershed. Measures shifted from an approach exclusively focused on punishing and deterring terrorists toward an emphasis on preemption.

Terrorism is a global phenomenon and with terrorists and their ideas as well as practices easily crossing borders, it has proved increasingly difficult for states to counter the threat on their own. Unsurprisingly, thus, over the past 30 years, international organizations (IOs) have been progressively involved in these efforts. While the roots of IO’s antiterrorism measures lie in the 1960s and 1970s, the end of the Cold War coincided with a change in the nature of terrorism itself and thus necessitated new responses.Footnote¹ For instance, the links between terrorism and organized crime (such as money laundering) became more prominent after the Cold War.Footnote² Moreover, whereas terrorist in earlier decades generally intended to survive their attacks, the proliferation of suicide attacks changed those equations.Footnote³ Now terrorists, expecting to die in the assault, did not fear punishment after their attacks anymore – which was the deterrence used in older antiterrorism treaties. Consequently, new methods to deprive them of the means to even commit their acts had to be developed. This article traces the evolution of this shift – from deterring to depriving terrorists; or to put it differently: from punishment to preemption. Owing to the extent of post-9/11 international antiterrorism efforts, it will focus on regional organizations as they are – at large – under-studied even though they adopted a host of conventionsFootnote⁴; and they provide microcosms of the global trends around terrorism. This emphasis also allows for a comprehensive assessment of the patterns in antiterrorism treaties, while acknowledging regional differences. The article will cover the 20 years from the end of the Cold War and the rise of Al-Qaeda and Islamist terrorism until the end of the first decade of the 2000s. This point was marked by yet another change of the terrorist threat with the advent of a new, hybrid terrorist group that combined traits of insurgency movements with more orthodox terrorism, while attracting foreign fighters from all around the globe: the Islamic State. This new challenge induced new international efforts and marked a shift away from a predominantly legal response toward one focused on military action.Footnote⁵ The time around 2010 thus provides a good end point for this study. Owing to the relatively recent nature of these efforts, most archival documentation on negotiations, states’ motivations and organizations’ agendas is not yet accessible. Because of this dearth of sources, as well as space limitations, this article will thus focus on the outcomes – the treaties negotiated – rather than the processes or motivations as they are difficult to infer without access to the archives. Nevertheless, as the first such overview, this study will provide important insights into the developments that manifested themselves in the legal treaties, the changes that occurred, and old patterns that persisted. As such, this article can serve as a point of departure for future research into IOs – and regional organizations more specifically – by helping to shape queries as to how these outcomes were achieved and for what purposes. At the same time, the scholarship on international organizations and their antiterrorism measures still features significant gaps. While recently, more studies have emerged that address the era in which such efforts first materialized,Footnote⁶ some important works also exist on the more contemporary period.Footnote⁷ Many of them were written by legal scholars, however, or focus on specific organizations, especially the United Nations (UN) and the European Union (EU).Footnote⁸ This article tackles this lacuna looking at five different regions: Africa, the Americas, the Arab and Islamic world, Asia, and Europe. All these areas experienced various kinds of terrorist attacks (and groups), and all of them responded somewhat differently within their own regional organizations. Yet, broader, transregional patterns still emerged.

There are two key terms that warrant defining. “Terrorism” despite its relevance and omnipresence remains difficult to delineate. In the absence of a consensus definition in international politics and scholarship alike, the following working definition was developed: terrorism is the deliberate threat or use of violence by non-state actors for political reasons. Its purpose is to instill fear within a broader audience, beyond the immediate targets, and to thereby blackmail governments and societies into complying with demands. When these acts concern at least two states – through the nature of the attack, demands, the perpetrators or victims – this will be called “international terrorism”. Consequently, “antiterrorism” as understood here encompasses legal and political responses to terrorism, whereas “counterterrorism” deals with actual police, intelligence, or military efforts. As shown elsewhere, there is also a debate regarding the definition of “international organizations” (IOs) in scholarship.Footnote⁹ Owing to the differences in organizations that exist in various regions, this study will use a loose working definition, which is borrowed from a recent study of international antiterrorism efforts:

IOs [are defined] as frameworks where several states come together somewhat regularly (rather than for bilateral visits), either in a loose setting […] or a more institutionalized one (for instance with a charter, a permanent secretariat and staff, a seat, dedicated buildings, and an assembly) to address specific issues (e.g., security, economics, environment, aviation, security politics, or a regional agenda). The emphasis here lies on governmental IOs—so the coming together of states.Footnote¹⁰

“Regional organizations” (ROs) for the purpose of this article will refer to IOs with a regional focus. Moreover, military alliances, such as NATO, will be excluded. Another obvious omission is the EU. As the epicenter of regional integration, Europe features the densest setting of cooperation, and the EU is heavily involved in antiterrorism efforts. At the same time, it is a highly integrated entity with sophisticated mechanisms for cooperation, decision-making, and implementation. This sui generis character makes it very difficult to compare the EU with other, far less integrated, ROs and therefore it will not be covered here.Footnote¹¹

Looking at scholarship, reports and treaty texts, this article thus sets itself two major tasks. One is predominantly empirical: The article will provide a comprehensive picture of ROs’ legal responses to terrorism in the time between around 1990 and 2010. It is the first such comprehensive study. Secondly, and analytically, this study will outline the shift in the nature of antiterrorism conventions, from predominantly deterring terrorists through prosecution, toward depriving them of their means to begin with. To do so, it will address key aspects of regional antiterrorism treaties and examine the global trends, patterns, and differences they encompass. Sovereignty is a key consideration in all international measures,Footnote¹² and it had been instrumental in shaping international responses to terrorism throughout the twentieth century.Footnote¹³ This article will show that states continued to preserve their freedom of action by old means: either by avoiding strict definitions, through the aut dedere aut iudicare (either to extradite or try) formula or by allowing for reservations to treaty obligations. Lastly, new developments – e.g. regarding human rights, and victims of terrorism – and their impact will also be addressed. The focus will be on binding legal agreements rather than declarations of intent or other modes of knowledge and best practices exchanges. In essence, this article thus answers two questions: what legal responses did ROs develop? And what were the key characteristics of these treaties? ().

Table 1. Regional antiterrorism conventions until 2010.

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The Americas

Historically, American states were the forerunners of regional multilateral antiterrorism efforts. In the early 1970s, they pioneered a convention against the kidnaping or assassination of diplomats and thus started a development that would – over time – see ROs around the globe adopt antiterrorism instruments.Footnote¹⁴ Since then, however, the development of new antiterrorism measures has stalled in this region. As dictatorships in South and Latin America crumbled toward the end of the Cold War, regional efforts gained momentum and the Organization of American States (OAS) held a series of conferences on terrorism in the mid-1990s. However, no new legal treaties were concluded.Footnote¹⁵ It was only the terrorist attack on the U.S., in 2001, that provided the impetus for a new instrument, the 2002 Inter-American Convention against Terrorism (IACT).Footnote¹⁶ This treaty revealed some changes in antiterrorism. Whereas in older conventions the focus lay very much on deterrence, through ensuring prosecution of perpetrators, the antiterrorism regime emerging after the Cold War and certainly after 9/11 put more emphasis on depriving terrorists of the money and equipment needed to even plan attacks. The focus had shifted from punishment to prevention. The IACT demonstrates this clearly with the emphasis lying on the financing of terrorism and money laundering (Arts. 4-6). Here, the OAS mirrored legal developments at the UN, but it went further than the 1999 UN Convention on the Financing of Terrorism which did not directly address money laundering. Yet the convention also tackled an old problem of intra-American cooperation: the political offense exception (POE) and asylum. Both notions had prevented more determined action previously as states could grant asylum or deny extradition requests by declaring an act a political one. Now, the convention made clear that asylum, refugee status, and the POE would not be acceptable reasons for not extraditing alleged terrorists (Arts, 11-13). Importantly, and as a novum vis-a-vis earlier conventions, the treaty also incorporated an obligation to respect human rights and fair treatment of the accused. With the demise of Latin American dictatorships and the revelation of the atrocities committed there in the name of fighting terrorism, the new emphasis on human rights can be seen as a direct response to these changes. Footnote¹⁷ Finally, the convention also included clauses for better technical cooperation and training amongst signatories, which went hand in hand with the setting up of a Financial Action Taskforce and again mirrored similar developments on a global level.Footnote¹⁸ However, some old problems persisted. One of them was the difficulty to define terrorism. Ultimately, the states agreed on listing treaties (in Art. 2) that dealt with certain offenses, rather than defining terrorism per se.Footnote¹⁹ Moreover, the convention did not contain an explicit obligation for states to extradite or try offenders.Footnote²⁰ Rather, the focus lay on cooperation and assistance. This was a consequence of the emphasis of the convention: to prevent or preempt terrorism rather than to punish terrorists afterwards. In sum, 9/11 was a defining moment for the OAS as it broke the previous impasse by developing a new convention and giving new impetus to antiterrorism cooperation.Footnote²¹ The focus on money-laundering and the financing of terrorism thus reflected what was perceived at the time to be one of the most urgent issues around terrorism. The new emphasis on human rights and minimum standards of fair process – by at least mentioning them in the text – reflected changes in the global political climate and was picked up by other regional conventions as well. The OAS thus continued a trend that had emerged in the 1970s: a sectoral approachFootnote²² and the avoidance of clearly defining terrorism to achieve maximum support from member states. But now the treaty also included human rights and due process considerations as well as the setting up of a bureaucratic infrastructure, such as contact points. In the early 2000s, American antiterrorism efforts had picked up speed again but also changed direction: from deterring to depriving. That trend reverberated across the globe. However, even in the region most directly affected by 9/11 certain obstacles for cooperation persisted.

Europe

Of all the regions, Europe – that is the EU and the Council of Europe (COE) – has developed the densest and most sophisticated antiterrorism response after the end of the Cold War. The terrorist attacks of 9/11 as well as those in Madrid (2004) and London (2005) provided further impetus. In 2003, the COE expanded its existing antiterrorism regime by means of an amendment to its 1977 Convention on the Suppression of Terrorism.Footnote²³ This Protocol extended the range of the Convention and was a legal follow-up to a series of Declarations and Recommendations made in the immediate aftermath of the 9/11 events. The protocol referred to the host of international anti-terrorism treaties concluded under the auspices of the UN (Art. 1) and included as offenses intentions to commit acts (rather than just attacks actually committed (Art. 2)). Thereby, these crimes became extraditable offenses subject to the accused not being at risk of torture or death penalties (Arts. 3 and 4). As with the OAS convention, the treatment of the suspects mattered as well. A European Committee on Crime Problems was also established (Art. 6) to watch over and facilitate the application of the Protocol (and Convention it related to). Finally, the procedure to add new offenses was simplified, and the treaty was opened to nonmember states of the COE. In the aftermath of the Madrid bombings – and two months before the 2005 London attacks – the COE again extended its legal antiterrorism framework by means of a new treaty, the 2005 Convention on the Prevention of Terrorism. With it, the emphasis of efforts had shifted, as the Convention’s title indicated. The treaty addressed the “prevention” and no longer only the “suppression” of terrorism. The 2005 treaty was remarkable for a variety of reasons. The preamble highlighted the focus (“propaganda”, “recruitment” and “training”) but also underscored the importance of looking after victims of terrorism, and the need to respect human rights, the rule of law, and other principles of democracy in countering terrorism. Interestingly, it also referred to international humanitarian law, thereby linking terrorism and armed conflict; a connection that European states had previously and deliberately not wanted to make.Footnote²⁴ The preamble also confirmed that there was no justification for terrorism – again a much clearer statement than most earlier conventions had taken – and provided a de facto definition of terrorism in its last paragraph. The ensuing articles fleshed out the details of the treaty’s scope with an emphasis on preventing terrorism, the cooperation of national agencies, but also ensuring interreligious and cross-cultural tolerance as well as public awareness campaigns on terrorism. While Art. 1 referred to international antiterrorism treaties to establish the Convention’s general scope of the crime, Arts. 5-7 highlighted the core offenses the Convention would address: “provocation” (or in other words: terrorist propaganda and incitement), recruitment, and training. Importantly, Art. 8 pointed out that it was not necessary for an act to be actually committed to be covered by this Convention as Art. 9 detailed those offenses that fell short of the actual commission of an attack and would yet be punishable. Nevertheless, the Convention also set limits to what states could do and obliged signatories to respect human rights and other democratic principles, to exercise proportionality and to not discriminate, act arbitrarily or practice racism (Art. 12). This principle of no discrimination was picked up again in Art 21, which also excluded cases from the extradition obligation where the suspect would face torture or the death penalty. Another outstanding characteristic of this convention, in comparison with others, was its focus on victims of terrorism and its obligation for member states to offer protection, financial help, and support to those targeted or their relatives (Art. 13). States were furthermore urged to render one another various forms of assistance and to reduce obstacles to prosecution. To do so, the convention referred to the gold standard of international antiterrorism treaties, the principle of aut dedere aut iudicare on several occasions (most prominently in Art. 18). Another cornerstone of European antiterrorism efforts since the 1970s, the reigning in of the political offense exception (POE), was also present in this Convention (Art 20) as any crime within the scope of the treaty was deemed not to be a political offense, and was hence extraditable.Footnote²⁵ The POE was, however, not completely abolished as states could make reservations to this, although these had to be actively renewed every three years (Art. 20 (5)) so they would not be automatically applicable forever. This was a small, but noteworthy, limitation of the POE. Not extraditing a person because of the POE would also still oblige the state to try the person itself: aut dedere aut iudicare, again, was the compromise to make it work. Finally, the Convention was not only open to COE members but also to other interested states (Art. 23). At the time of its adoptions, the 2005 COE Convention was one of the farthest going antiterrorism treaties in that it addressed the pre-commission stage of an attack, dealt with propaganda, radicalization, and training, and thus shifted the focus away from the punishment of acts committed to the prevention of such crimes yet to be executed. It also underscored the necessity to have a proportionate response to terrorism and to not compromise on core democratic, legal, and human rights principles. The inclusion of a duty of care toward the victims of such attacks was also a novum.Footnote²⁶

Also in 2005, the COE adopted another, broader, convention, one that, however, also affected its antiterrorism regime as it dealt with one of the foremost challenges in combatting terrorism at the time: the financing of terrorism. The 2005 Warsaw Convention (or Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism) followed a similar leitmotif to the 2005 Terrorism Convention by making it more difficult for terrorists to acquire the means to even commit terrorist acts. It, therefore, aimed at preempting rather than deterring terrorists. In that sense, the Warsaw Convention mirrored the 2002 OAS IACT instrument and tackled the interlinked problems of money laundering and the financing of terrorism in one treaty. The scope of the CoE treaty, however, went beyond terrorism and extended to all sorts of “serious crime”. The COE’s two-pronged approach on terrorism and its means provided the most extensive and sophisticated antiterrorism regimes in the world and went beyond the efforts of any other regional project of antiterrorism cooperation.

Another regional organization, the Organization of the Black Sea Economic Cooperation (BSEC), also produced a legal agreement on terrorism. In 2004, member states adopted an Additional Protocol on Combating Terrorism to the 1998 Agreement on Cooperation in Combating Crime, in Particular in Its Organized Forms.Footnote²⁷ In fact, terrorism had already occupied the BSEC members before 9/11.Footnote²⁸ The organization’s 1999 charter – giving the entity founded in 1992 legal personality – highlighted terrorism as a field of cooperation (in Art. 4), much like, the illicit trafficking of radioactive material.Footnote²⁹ To promote further cooperation in the fight against crime, BSEC member states adopted the Agreement on Cooperation in Combating Crime, in Particular in Its Organized Forms in 1998.Footnote³⁰ Here too, terrorism, was mentioned as an issue of concern, already in the preamble as well as the first of the crimes to be fought, listed in Art. 1 (1). The treaty established modes of cooperation, especially regarding the exchange of information as well as training. However, Art. 5 (3) strictly limited the applicability of the treaty as it allowed states to “reject a request for cooperation, if the compliance with the request for cooperation endangers the sovereignty, security, public order or other essential interests of its State, or if it is contrary to the legislation or to the international obligations of its State”. This provides quite an extensive loophole for countries not willing to cooperate. Against the backdrop of the 9/11 attacks, as well as the hostage crisis at a Moscow theater in 2002, BSEC negotiated the Additional Protocol, which dealt specifically with terrorism.Footnote³¹ The latter closed apparent loopholes in Art. 5 of the 1998 Agreement: Art. 12 of the Additional Protocol made no more reference to sovereignty and other hindrances for cooperation. Yet, while the preamble rejected terrorism in all its forms, the scope of the treaty was still ambiguous as no definition of “terrorism” was provided and Art. 1 mentioned UN antiterrorism instruments as the basis for delineating the crime. The preamble also mentioned human rights and the rule of law as factors to be respected but no further details were given, and no further reference was made in the actual treaty text. It dealt almost exclusively with the establishment of contact points, modes of exchanging information and other issues such as denying financial means, safe haven, or asylum to suspected terrorists. Interestingly, much like the Commonwealth of Independent States (CIS) treaty examined further below, the Additional Protocol also attended to the illicit trafficking of nuclear, biological, and chemical material. In general, the treaty was less ambitious than other regional treaties at the time as it did not deal with issues around extradition or prosecution but remained focused on the level of preventing or investigating acts of terrorism. It stayed well behind other European instruments. Moreover, the implementation of the Additional Protocol often faced obstacles based on diverging national interests and different security interests.Footnote³²

In essence, the European legal antiterrorism regime was diverse and built on decades of experiences. With 9/11 as well as the 2004 and 2005 attacks, COE states further refined their framework. They explored new avenues to reign in terrorism by starving it of its financial means while maintaining the rule of law and the respect for human rights. The emphasis remained on the principle of aut dedere aut iudicare – to ensure that suspects would not escape justice. This shows that despite their close integration, COE member states were not willing to sign up to unconditionalities. States wanted to be able to have the last word on how to deal with specific crises as sovereignty evidently remained a principle to behold. At the same time, Europe was part of the global trend that shifted the focus from punishment toward prevention.

Africa

Africa’s predominant RO – the Organization of African Unity (OAU), which was founded in 1963 and transformed into the African Union (AU) in 2002 – started addressing terrorism in the 1990s. While it had adopted a Convention for the Elimination of Mercenarism in Africa in 1977, the scope of this document was limited to non-nationals involved in armed conflict for money. Therefore, it – deliberately – did not cover acts of terrorism proper, which reflected the continent’s ambiguous relationship with the phenomenon: on the one hand, terrorism was an instrument employed by self-proclaimed national liberation movements (NLM) seeking self-determination, or by those denying it (the South African apartheid government, for instance). On the other hand, terrorism had become a challenge to newly independent states and their governments.Footnote³³ Moreover, the OAU members had been extremely devoted to safeguarding their sovereignty and the principle of nonintervention, and terrorism had hence constituted too divisive a topic, so that it had best been left alone.Footnote³⁴ Yet against a backdrop of geopolitical change and rising domestic challenges from religious terrorism, the OAU put the issue back on its agenda starting in 1992 when resolutions and a code of conduct were issued. These were important steps as they “marked a turning point and a paradigm shift in [the OAU’s] approach to terrorism [and] acknowledged terrorism as resulting from bad policies and poor interstate relations (among African states), rather than reiterating its usual finger-pointing at Israel, apartheid South Africa and the former colonial powers”.Footnote³⁵

However, those were political declarations and not legally binding treaties, and the assassination attempt on Egyptian President Hosni Mubarak in 1995 as well as the attacks on the American embassies in 1998 demonstrated just how pertinent the problem of terrorism remained to be.Footnote³⁶ This time, the OAU reacted to the challenges with a legally binding agreement: the Convention on the Prevention and Combating of Terrorism, or Algiers Convention of 1999. It was the foundation of a distinct continental antiterrorism framework in Africa. Importantly, it also provided a definition of “terrorism” (in Art. 1 (3)). This was a remarkable achievement considering the continent’s history, but also because other global and regional antiterrorism treaties lacked such definitions. Another noteworthy development in this Convention was its explicit “rejection of all forms of terrorism irrespective of their motivations”.Footnote³⁷ The preamble alone mentioned this conviction three times together with a reaffirmation that “terrorism cannot be justified under any circumstances and, consequently, should be combated in all its forms and manifestations”. These were strong words. Yet, the alleged complete rejection of terrorism was not that complete after all: the preamble already qualified it by underscoring the “legitimate right of peoples for self-determination and independence”; and the actual convention gave binding power to this exception in Art. 3: “the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination […] shall not be considered as terrorist acts”. These were old antiterrorism formulas from decades ago, and a reminder that states did not want to have their hands tied too tightly. In terms of content, the treaty called upon states to make certain acts punishable as grave crimes (Art. 2) and not to support terrorist groups directly or indirectly, nor to offer safe havens (Art. 4). Importantly, the Convention relied on the principle of aut dedere aut iudicare (Art. 4 (h)) as an integral aspect of ensuring prosecution. As a nod to human rights the convention also enshrined a minimum threshold for the rights of the accused (Art. 7) such as access to a lawyer, consular protection, and the preamble referred to the African Charter on Human and People’s Right. Yet, compared with other regional antiterrorism instruments, the human rights dimension was quite weak in this treaty. Interestingly, the Convention also linked organized crimes and terrorism, a nexus which other regional conventions would only acknowledge in the following years. As such, the explicit connection between money laundering and terrorism was going further even than the UN Terrorism Financing Convention, which was concluded in the same year. The Algiers Convention was at the time of its signing one of the most comprehensive regional antiterrorism conventions in existence. Certainly though, the reservations of Art 3 reduced the scope of the Convention significantly and offered states exits from obligations, while human rights were only superficially referenced. Yet, for an organization that had struggled to address terrorism previously, it was still a significant paradigm shift over the course of just half a decade.

When the African Union emerged from the OAU in 2000, terrorism did not figure prominently in the founding document of the organization although member states still stressed the “condemnation and rejection of […] terrorism”.Footnote³⁸ The 9/11 attacks catapulted it back on top of the agenda, however, and African leaders expressed their solidarity with the U.S. by means of their Dakar Declaration Against Terrorism of 17 October 2001.Footnote³⁹ Intergovernmental committees were also set up and support was offered to member states wishing to develop better antiterrorism strategies.Footnote⁴⁰ Moreover, the advent of suicide terrorism, amongst other developments in terrorism, shifted the focus of the negotiations onto the financing of terrorism and ways to prevent weapons of mass destruction being acquired by terrorists. Both of these were actions taken previously by the UN, too.Footnote⁴¹ On the legal level, in 2004, the AU supplemented the Algiers Convention with a protocol that updated it and provided for an implementation mechanism.Footnote⁴² The preamble of the protocol again underscored the determination to “combat terrorism in all its forms and manifestations” and yet, also again, qualified this by acknowledging that “the root causes of terrorism are complex and need to be addressed in a comprehensive manner”. Yet this notion again, was somewhat qualified by the following paragraph, which reconfirmed that “acts of terrorism cannot be justified under any circumstances”. It was a firm rejection but not one that was completely unconditional. As such, this formula was an attempt at squaring a well-known circle.Footnote⁴³ The protocol then reaffirmed the states’ obligation to prevent acts of terrorism, to set up national contact points, and to report on measures taken to fight terrorism. Another important clause was in Art. 3 (1) k) which highlighted some human rights standards as states agreed to “undertake […] to […] outlaw torture and other degrading and inhumane treatment […] of terrorist suspects”. However, signatories only “undertook” to reject those methods and it was not an outright prohibition. In terms of further institutionalization, the AU also set up an African Center for the Study and Research on Terrorism and other entities that would conduct research, provide training, exchange information and experiences, and develop best practices for member states’ officials.Footnote⁴⁴ In sum, the role of the AU was two-fold: on the one hand, it provided a legal basis for regional antiterrorism cooperation by means of the Convention and protocol. On the other hand, it intended to equip member states with the knowledge and training needed to combat terrorism effectively. However, in its antiterrorism endeavor, the continent faced similar hurdles to other regions of the world: the conflict between human rights and counterterrorism, a lack of resources, the reluctance of states to be too strictly bound, and the absence of an implementation mechanism to enforce the states’ obligations.

Consequently, with the end of the Cold War, and the new millennium in particular, Africa too saw new antiterrorism initiatives develop. In general, they followed broader global trends of reining in loopholes in the prosecution of terrorism and taking account of new trends in the nature of terrorism as such. Yet, much like other regions, African states continued to shy away from unconditional obligations and evidently wanted to have the last say in specific situations. Moreover, antiterrorism efforts faced great sensitivities around rejecting interventions into domestic affairs as well as an increasing preference of states for military counterterrorism.Footnote⁴⁵

The Arab and Islamic World

Arab states, too, had a long relationship with terrorism not least because of the Israel-Palestine issue and the use of terrorism by various parties to this conflict.Footnote⁴⁶ During the Cold War, their stance on terrorism was hence ambiguous and Arab states had been reluctant to condemn it unconditionally on the global stage.Footnote⁴⁷ Yet Arab rulers also faced a dilemma as, from the 1920s onwards already, many of them had seen their authority and rule challenged by various – often religious – groups.Footnote⁴⁸ With Islamist terrorism on the rise in the 1990s, the League of Arab States (or Arab League) began addressing this topic in earnest. After a counterterrorism strategy had been approved in 1994 and a Code of Conduct was agreed two years later, the Arabs states also adopted their own Convention on the Suppression of Terrorism (Arab Convention) in 1998.Footnote⁴⁹ As such it was one of the earliest regional post–Cold War antiterrorism conventions and not triggered by the events of 9/11. Against the mounting challenges to the established regimes in many Arab states, it was often seen as an attempt to preserve the status quo of those in power.Footnote⁵⁰ The treaty’s preamble invoked the “tenets of the Islamic Sharia”, human rights and a condemnation of “all forms of […] terrorism”. Yet, it maintained ambiguity on the complete denunciation of terrorism as it also underscored the right of NLM to use “whatever means” to rid themselves of foreign occupation.Footnote⁵¹ The definition of terrorism in Art. 1 is noteworthy as it included “any act or threat of violence, whatever its motives or purposes [triggered by a] criminal agenda, causing terror among people […]”. It did thus not make explicit reference to the political dimension of terrorism but, instead, underscored the criminal intent behind the act. As such it could be seen as an attempt to de-politicize the issue while also keeping it broad enough so states could (ab-)use it in a variety of situations. Art 2 then explicitly excluded acts committed in the context of national liberation and foreign occupation from the scope of the convention as long as these acts respected the principles of international law and did not “[prejudice] the territorial integrity of any Arab State”. This was quite a remarkable qualification, and it added a great deal of ambiguity to the definition. It meant that, at a time when Al-Qaeda still predominantly targeted “near enemies”,Footnote⁵² the definition used by the treaty also applied the Convention to any group operating against rulers in Arab states. Clearly, those were one of the target groups of the treaty and the support for self-proclaimed NLM had its limits when they would create troubles for signatories.Footnote⁵³ In general, with its definitional ambiguity, the Convention followed a trend that had affected antiterrorism efforts in IOs in previous decades.

The Convention also provided a long list of modes of cooperation to prevent terrorism, to prosecute, and to suppress it. This included an obligation to extradite or try (aut dedere aut iudicare in Art. 3 (II) 1) although Art. 6 (a) applied the POE to the convention and thus watered it down significantly. This was even more confusing as Art. 2 (b) stated that the POE should not apply to the offenses covered by this treaty. This level of ambiguity on NLM and the POE seemed to be a compromise that had to be found to ensure that all states would approve the instrument. In light of the proliferation of radicalization, the Arab League also adopted an amendment to its Convention in 2006, that included incitement and terrorist propaganda into the scope of the offense.Footnote⁵⁴

In sum, the Arab Convention was one of the earliest post–Cold War treaties and a symbol of an attempted show of unity in addressing the threat of terrorism. At the same time, it followed older patterns and left room for a host of exceptions, not least for NLM and the POE. States still had great discretion in dealing with individual cases.

Another regional association that attended to terrorism was the largest Islamic intergovernmental body, the Organization of the Islamic Conference (or since 2008, Organization of Islamic Cooperation, OIC).Footnote⁵⁵ This entity had a regionally more diverse membership, and the states – many of which were also members of the Arab League – had an equally ambiguous relationship with terrorism. And like Arab League members, OIC governments had become increasingly more challenged by religious and ethnic groups.Footnote⁵⁶ In the years leading up to 9/11 another factor became progressively important in shaping the OIC’s response to terrorism: the global association of Islam with terrorism. All these factors preceded the 2001 attacks and had influenced the OIC efforts in the 1990s, which consisted of political declarations and a code of conduct. With 9/11 action plans were added.Footnote⁵⁷ However, those were all political steps and the OIC’s first legally binding response to terrorism was its Convention on Combating International Terrorism that had been adopted two years before the 2001 attacks. Unsurprisingly, it mirrored the Arab Convention of the year before. Similarly to this convention thus, the OIC treaty followed two main objectives: defining “terrorism” and providing for closer cooperation in countering it. The treaty also referenced the Sharia,Footnote⁵⁸ however in a more explicit – and perhaps moderating – fashion by depicting it as hostile to violence and in support of human rights: “Pursuant to the tenets of the tolerant Islamic Sharia which reject all forms of violence and terrorism, and in particular specially those based on extremism and call for protection of human rights”.Footnote⁵⁹ It then followed a similar ambiguous pattern to the Arab Convention: rejecting terrorism in all its forms (preamble and Art. 1) while excluding acts by NLM as long as committed “in accordance with the principles of international law” (Art. 2), whatever those might be. Like the Arab Convention, the OIC treaty included calls for further cooperation, and a watered-down version of the principle of aut dedere aut iudicare (Art. 3 (B) 1). As it did not include obligations to make the offense punishable under domestic law there was hence still a possibility for offenders to escape punishment; and for states to have discretion in their responses to crises. And while the POE appeared to be cut back in Art 2 (1), Art 6 (6) ruled that extradition could be rejected “if the Crime for which extradition is requested is deemed by the laws enforced in the requested Contracting State as one of a political nature”. Much like the Arab Convention, the OIC treaty remained fuzzy and deliberately broad in defining the crime as well as the states’ obligations to extradite.Footnote⁶⁰ It appears that this was the only common denominator both organizations could agree on considering their broad, diverse, and occasionally antagonistic memberships. While both conventions at first glance seemed comprehensive, the nebulous definition of the offense would leave amble ambiguity for those states not wanting to cooperate. More importantly perhaps, they also provoked heavy criticism for their potential for harsh government policies under the guise of antiterrorism efforts, and a possible limitation of individual freedoms and human rights.Footnote⁶¹

A third regional organization, the Gulf Cooperation Council (GCC, or Gulf Council) adopted its own convention on terrorism in 2004. Yet, the text of the agreement was not publicized and little is known about its content other than that it deals with issues of information and intelligence exchange and matters of cooperation.Footnote⁶² The agreement was influenced by the increasing number of terrorist attacks within Gulf states, but continuing mistrust and rivalries amongst member states often prevented effective cooperation.Footnote⁶³ It is mentioned here for reasons of completeness but cannot be analyzed in detail.

In conclusion, Arab states produced some legal instruments to show their commitment to the struggle against terrorism, especially so as Islamist groups challenged the governments of several Arab states. Yet, those agreements were ambiguous and allowed for a multitude of interpretations and applications.

Asia

Asia, too, has a long history of terrorism and political violence. The emergence of Al-Qaeda only added another actor to a regional terrorist landscape that was already remarkably diverse.Footnote⁶⁴ The hijackings of 9/11 made a multilateral response increasingly more pressing, while the 2002 Bali attacks added further urgency to the matter. But even before then, the attack on the Indian parliament in late 2001 demonstrated the severity of the threat just as much as the Bangladesh bombing in 2005 and the Mumbai attacks of 2008. Terrorism was nothing new to many states in the region. But it had been a domestic concern predominantly. The trans- and internationalization of terrorism by Islamist groups, however, now led to growing demands for a multilateral response.Footnote⁶⁵

The South Asian Association for Regional Cooperation (SAARC) was the first Asian RO to adopt an antiterrorism treaty, already during the Cold War. Yet its ambitious antiterrorism plans fell victim to national rivalries and disputes. It took the events of 9/11 to produce a new impetus for the SAARC to amend its antiterrorism framework by means of the 2004 Additional Protocol to the 1987 Convention.Footnote⁶⁶ Interestingly, and as opposed to other regional treaties, the amendment refused to condemn terrorism no matter what its motivation and the preamble only called on members to “prevent and suppress terrorism in all its forms and manifestations”.Footnote⁶⁷ It listed international treaties relevant to this protocol as well as provided a de facto definition of terrorism (Art. 4). Yet, the major focus of the protocol lay on preventing and suppressing the financing of terrorism and money laundering (Arts. 1, 7-9) as well as on a host of modes of cooperation and knowledge exchanges. In that sense, the SAARC Protocol mirrored other regional treaties as well as the UN Terrorist Financing Convention. The protocol also reaffirmed the principle of aut dedere aut iudicare (Art. 13) and somewhat reigned in the POE (Arts. 15); although exceptions to the obligation to extradite continued to endure (Art. 17). In contrasts to other regional conventions, there was also no explicit duty to respect human rights or fair and due process in the dealings with suspects. Art. 19 merely mentioned “other rights and obligations and responsibilities of States and individuals under international law, in particular, […] international humanitarian law, and international human rights law”. This was a weaker obligation than elsewhere. Interestingly, the reference to international humanitarian law also suggested that terrorist acts that occurred during armed conflicts would be included, a notion that previously had been contentious globally.Footnote⁶⁸ Consequently, while the SAARC did update its antiterrorism framework it kept certain loopholes in it and refrained from a more rigid approach. And while the promotion of cooperation looked ambitious, it lacked commitment. This was due to the continuing animosity between some of its member states, notably India and Pakistan.Footnote⁶⁹ Differences between members were also reflected in the ambiguity of the treaty, for instance on the POE, and the lack of a proper implementation mechanism.Footnote⁷⁰ In sum, the protocol remained a paper tiger.

The Commonwealth of Independent Nations (CIS)Footnote⁷¹ – an organization founded in 1991 to keep the former members of the Soviet Union closely associated – also attended to terrorism prior to 9/11. However, as opposed to many other conventions examined in this article, the CIS Treaty on Cooperation in Combating Terrorism of 1999Footnote⁷² focused almost exclusively on assistance and cooperation and did not attend much to issues around extradition and prosecution. Its emphasis is on prevention and assistance, and not predominantly on prosecution as opposed to treaties in previous decades.Footnote⁷³ Its Art. 1 provided a rather broad and generic definition of “terrorism” but more than other regional instruments it focused on “technological terrorism”, which it defined as “the use or threat of the use of nuclear, radiological, chemical, or bacteriological (biological) weapons”. Interestingly, in Art. 4, the treaty reigned in the POE, by determining that “[i]n cooperating in combating acts of terrorism, including in relation to the extradition of persons committing them, the Parties shall not regard the acts involved as other than criminal”. Acts of terrorism would thus not be considered political, and no exception would apply to them. Nevertheless, the POE is more pertinent an obstacle for extraditions, and Art 5 (2) explicitly stated that these would not be covered by this document and should rather “be determined by the international agreements to which the Parties concerned are parties”. In this regard, this treaty was less ambitious than other regional conventions that explicitly provided the legal basis for extraditions; and thus provided a stronger limitation to the POE. Consequently, the aut dedere aut iudicare principle was also not referenced. The remainder of the treaty dealt almost exclusively with matters of cooperation in preventing or resolving terrorist crises and the protection of dangerous materials. This would even include the dispatch of specialized antiterrorism units (Art. 12) to help other parties with instances of terrorism. Importantly though, to protect the autonomy of states, Art. 9 emphasized that states could refuse to cooperate if they deemed the requests to “impair its sovereignty, security, social order or other vital interests or is in contravention of its legislation or international obligations”. Thus, while the CIS attended to terrorism earlier than other organizations, and before 9/11, the scope of its treaty was very limited and provided room for assistance if wanted, but with ample justification for states not to cooperate, if they so wished; and with no obligation to turn over suspected terrorists. Noteworthy is that the special emphasis on dangerous materials was something that was more pronounced here than in many other regional conventions. This might be the result of concerns after the end of the Cold War, that nuclear and other danger materials could fall into the hands of terrorists as the Soviet Union disintegrated and its successor states struggled with its legacy.Footnote⁷⁴

The Association of Southeast Asian Nations (ASEAN) was also concerned with terrorism. After the Jemaah Islamiyah-masterminded Bali bombings of 2002 and a foiled plot for a terrorist attack in Singapore, the threat of transnationally operating terrorist groups was evident and the need for coordinated action grew.Footnote⁷⁵ ASEAN thus issued two declarations on terrorism in the immediate aftermath of 9/11 and within three years, two ASEAN conventions were adopted: the Treaty on Mutual Legal Assistance in Criminal Matters (MLACM) of 2004 and the ASEAN Convention on Counter Terrorism (ACCT) of 2007. Compared with other regional instruments in existence by the time of its adoption, the MLACM was a rather unambitious treaty. It did not mention “terrorism” at all and provided predominantly for mutual assistance in criminal proceedings. Moreover, it had a rather extensive list of exceptions (Arts. 2 and 3), extraditions would not be covered, and it upheld the POE (Art. 3 (1) a and c). In that sense, the treaty was a distant echo of very limited regional cooperation agreements from the 1970s but fell short in comparison with more ambitious regional treaties of the early 2000s. Three years later, thus, ASEAN countries concluded negotiations for a dedicated antiterrorism convention. The 2007 ACCT now addressed the crime directly and remedied some of the limitations of the MLACM. The POE was deemed not to apply to any of the crimes covered in the treaty (Art. 14) and the aut dedere aut iudicare (Art. 13) principle applied to them as well. In theory, the ACCT thus ensured that a suspect could not escape justice. The rejection of the POE was also not qualified, which was a major step forward. Yet, the ASEAN members were not able to agree on a coherent definition of terrorism and instead, Art. 2 only listed relevant global antiterrorism treaties. What was hence the significance of the ACCT? Either, states were already party to these treaties and hence bound by their obligations. Or, by ratifying the ACCT they de facto bound themselves to them, which meant that states might just join the treaties in the first place. The impact of the ACCT thus lay in its symbolism but also its obligations regarding cooperation, and the POE and aut dedere aut iudicare formulas, which would often be farther going than in the treaties listed. Still, member states could not agree on condemning terrorism no matter what its causes. In this sense, ASEAN lacked behind other regional instruments. For, while the preamble reiterated “that terrorism, in all its forms and manifestations, committed wherever, whenever, and by whomsoever, is a profound threat to international peace and security” it did not explicitly reject it in this prominent position. This hesitation is duplicated by alluding to “the importance of identifying and effectively addressing the root causes of terrorism in the formulation of any counter terrorism measures” (Art. 6 (2)). A de facto condemnation is buried down far in the treaty text as Art. 9 (1) committed states to “[ensuring] that offenses covered in Article II of this Convention […] are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature”. This reflected the ambiguity of the whole treaty and that was likely the reason why it was adopted: it left some leeway to states to interpret it as they saw fit. To underscore this notion further, the treaty prominently placed emphasis on the principle of sovereignty and nonintervention (Arts. 3 and 4). In terms of cooperation, it listed (in Art. 6 a) a large array of measures including the financing and planning of terrorist acts, training, cross-border cooperation, and intelligence exchange. In that sense it followed the preventative approach that was prominent in other regional and global instruments – especially as regards terrorism financing – and responded to the new terrorist threat. The ACCT also highlighted the right to fair treatment of suspects, the respect of their human rights and consular protection (Art. 8). These principles were already stated in the preamble, giving them more prominence than in other conventions. As an outlier in the global antiterrorism landscape, the ACCT even attended to the situation of convicted terrorists. Normally, antiterrorism treaties would stop at the stage of trying suspects, but the ASEAN went farther and incorporated rehabilitative programs into the convention’s cope (Art. 11): “[t]he Parties shall endeavor to promote the sharing of best practices on rehabilitative programs [and] social reintegration […] with the objective of preventing the perpetration of terrorist acts”. This notion of ensuring that terrorist would be deradicalized and reintegrated, was – and remained indeed – an exception in global antiterrorism regimes.Footnote⁷⁶ Yet while obligations are important, it is equally vital for the success of any regime to have signatories stick to their duties. In this regard, the ASEAN was criticized for the lack of an enforcement mechanism – which is a rather common shortcoming of antiterrorism treaties. It allegedly also provided an easy way out for states not wanting to abide by their obligations considering the prominence given to the principles of sovereignty and nonintervention (Arts. 3 and 4). Mistrust amongst members existed in abundance and was also demonstrated in the states’ reluctance to collaborate.Footnote⁷⁷ Ultimately thus, these criticisms underscore the truism that the ACCT – just like any other treaty – is only as good as the willingness of states to abide by it.

A fourth Asian organization involved in antiterrorism efforts was the Shanghai Cooperation Organization (SCO), whose first legal efforts also predated the 9/11 attacks: its Convention on Combating Terrorism, Separatism and Extremism (CCTSE) was adopted in June 2001. The name already alluded to its ambitions not only to counter terrorism but also to address surrounding – and often closely related – problems. At the beginning, the Convention provided definitions of the three forms of political violence it intended to cover. This was done in Art. 1 by listing international antiterrorism treaties – as was common in other conventions too – and then by explicitly defining the three subjects of the Convention: terrorism, separatism, and extremism. Taken together, the CCTSE thus provided one of the broadest and most comprehensive delimitations of the phenomenon. Art. 1 also highlighted that the stipulations only applied to civilians not engaged in armed conflict and hence explicitly excluded armed conflicts from the scope of the Convention. Moreover, the preamble stated that the offenses in the treaty could not be justified under any circumstances. This unconditional rejection notwithstanding, Art. 3 excluded cases that were judged by the relevant state to be political and ideological. This qualification – a de facto POE – gave states some leeway in applying the treaty, or not. Much like other treaties, the Convention listed a – very extensive – number of modes of cooperation and exchange as well as policies aimed at stifling the financing of and training for terrorism. Importantly, Art. 9 enshrined limitations for cooperation: if a request conflicted with sovereignty, security, public order or national interests and policies as well as if the crime was not illegal in the requested state, there was no obligation to cooperate. States thus had an easy way out if they did not want to apply the Convention. Finally, as opposed to many other antiterrorism instruments at the time, the CCTSE made no mention of human rights or due and fair process. Art 16 merely stated that the Convention did not conflict with other international agreements to which countries were parties. In sum, the treaty was an outlier both in its ambitious agenda but also its complete negligence of human rights. While it did seem comprehensive at first glance regarding its scope, it certainly also contained enough loopholes for states not willing to be bound by it.

A few years later, the SCO adopted another treaty in 2009, the Convention of the Shanghai Cooperation Organization against Terrorism (CSCOT). This text was now solely dedicated to terrorism and the preamble highlighted again that “offenses covered by the present Convention cannot be justified under any circumstances” and should be prosecuted. But now the SCO brought its new convention in line with other antiterrorism treaties by “reiterating that all measures to prevent and combat terrorism should be taken based on the supremacy of law, democratic values, basic human rights and freedoms, as well as norms of international law”. No mention was made of fair or due process but at the very least “basic human rights” were acknowledged. Yet, “terrorism” and “terrorist acts” were defined in very broad terms (Art. 2 (3)) that offered the potential of a wide range of acts falling under the scope of this Convention. Certainly, this was a situation states could theoretically (ab)use against all sorts of political opponents. The Convention further provided for mutual assistance and cooperation and, in Art. 7, set out a broad collection of measures member states should take, including “imposing restrictive measures through legislation to guard against terrorist acts” (Art. 7 (6)). This clause, in particular, could be used to justify a variety of policies, including possibly stifling political opposition. Moreover, Art. 8 attended to measures against the financing of terrorism in line with developments elsewhere, while Art. 9 provided a broad list of acts that should be recognized as criminal offenses by all parties. Compared with other regional treaties, this was a very extensive compilation of offenses. The problem here was, of course, that a very broad understanding of “terrorism” could make it easier for states so inclined to abuse the cloak of anti- or counterterrorism efforts for a variety of other reasons, including to silence nonviolent opposition groups. The potential basis for such a policy could be seen for instance in Art. 10 (7): “[t]he provisions of this Article shall apply to cases when the structural units (representation offices, branches) of foreign legal entities acting in the territory of the Party are involved in offenses covered by this Convention”. As Russia, for instance, has a history of targeting foreign organizations, such as the British Council or the Friedrich Ebert Foundation, the Convention would give legal backing to such actions if they were to be executed under the guise of fighting terrorism.Footnote⁷⁸ Also, in contrast to other treaties, the focus of the CSCOT was very much on extradition rather than trying the culprit in the state where they were apprehended (Art. 11). In fact, paragraph 9 of this article only mentioned one case where extradition could be refused: when it concerned the state’s own citizens. Furthermore, the notion of aut dedere aut iudicare was weak. Art. 5 (3) – rather than having an expressed obligation to try the person – merely called on the state refusing extradition to “take necessary actions and determine the jurisdiction in respect of offenses covered by this Convention”. Quite obviously, extradition was the desired mode of cooperation of this treaty. Of course, from the point of view of states seeking maximum deterrence, this made sense, as their laws might be tougher, and the judicial process less forgiving, than in states that were not the scene of the crime and that merely arrested the alleged offender. This emphasis on extradition was probably also an expression of the mistrust that existed amongst states and in their respective legal systems and motives. Art 4 also limited the parties’ obligations to apply the Convention as it underscored the “principles of sovereignty, territorial integrity, and noninterference in each other’s internal affairs”; while Art. 17 (2) permitted that the “competent authority of the requested Party may refuse to execute the request if its execution may prejudice the sovereignty, national security or is contrary to its law”. Consequently, the CSCOT at first glance provided a basis for a variety of cooperation projects from mutual assistance to the harmonization of penal laws, to the creation of new laws, and even the dispatch of security personal to another state to aid in all sorts of investigations. Yet, safeguards for national sovereignty and interests implied persisting mistrust and were included to give states easy exit routes. And while the preamble mentioned human rights, no other reference to it was made as the protection of suspects was not of any concern to this instrument. In fact, as has been shown above, the CSCOT could also easily be exploited by authoritarian regimes wishing to restrain political opposition.Footnote⁷⁹

In sum thus, the Asian response to terrorism was as diverse as its countries. What is striking though is the fact that a multitude of treaties was developed after all to deal with the danger of terrorism. The content of these instruments was broadly similar to the responses of other regions: a focus on denying the terrorists the means to plan and execute their attacks by keeping better control over the financing of terrorism, an obligation (mostly) to extradite or prosecute those involved in terrorism-related responses and attempts to cut down the reasons that could make terrorism permissible. At the same time, though, states were jealously guarding their freedom of action against a backdrop of ongoing mistrust and hostility.

Conclusions

With the end of the Cold War, and the shift in geopolitical tectonics, the nature of terrorism too was in flux, as Islamist and other forms of terrorist violence – often coupled with suicide attacks – became more prevalent. This trend started before 9/11 and was reinforced by Al-Qaeda’s targeting of local regimes it considered as “near enemies”. But ethnic terrorism, changes in the nature of non-state political violence, and escalating numbers of attacks also prompted ROs such as the Arab League and OIS, OAU, BSEC, CIS, and SCO to develop new antiterrorism treaties already prior to the 2001 attacks. For most regions, however, a new wave of antiterrorism activities started after 9/11. One of the most common themes in them all was the shift from deterrence by punishment to pre-emption. States now increasingly addressed the lead-up to terrorist attacks, rather than focusing purely on the acts of terrorism themselves. Moreover, at a time when many terrorists were not expecting to survive their attacks, punishment had little sway in deterring them from their plans. Therefore, the financing of terrorism, money laundering, and the nexus between organized crime and terrorism became features of most regional antiterrorism treaties examined here. Depriving terrorists of their resources became hence the focus, rather than deterring them by means of ensured punishment alone. But the latter still played a part in most treaties as the continuing primacy of the aut dedere aut iudicare formula showed.

Despite this general shift in regional antiterrorism efforts, significant differences amongst and within regional IOs prevailed, however. Consequently, a few key observations can be made regarding the nature of RO’s antiterrorism efforts. Firstly, ROs took different stances on outlining the crime of terrorism. Some did not define the offense at all and merely listed relevant treaties (OAS, SAARC, BSEC, and the ACCT even pays attention to root causes still, an otherwise rather antiquated concept), while others took an extremely broad definition that could easily include a great deal of political actors (CSCOT, CIS Treaty). Most organizations’ treaties lay in between these extremes and condemned terrorism no matter what its causes. Yet, all but one (COE) of those qualified this unconditional rejection (for instance by making allowances for NLM as in the case of the OAU, AU, Arab League and OIS). Thus, while this was symbolic progress compared with those efforts negotiated during the Cold War – which often did not define terrorism at all and regularly made exceptions for NLM – most organizations still refused to outlaw terrorism completely. This suggests that much like in previous decades, for most states, a certain level of ambiguity in rejecting terrorism was the key to supporting a convention. Presumably, they continued to want their freedom of action preserved. Secondly, a similarly stubborn obstacle to strong and coherent antiterrorism efforts was the century-old political offense exception. Most treaties examined here continued a trend from the 1970s and tried to clip back the POE; but they did not abolish it completely. Only two conventions (ACCT, CIS TreatyFootnote⁸⁰) did not allow for exceptions at all, while the COE conventions permitted reservations to the duty not to apply the POE, but states would still have to try the suspects themselves when denying extradition. Borne out of suspicion amongst states in the nineteenth century, the POE had a long afterlife, as states continued to apply it in the twentyfirst century. Apparently, mistrust continued. The third observation is that aut dedere aut iudicare continued to be the gold standard of antiterrorism treaties as far as punishment was concerned. Yet even here, differences existed. While some instruments reigned in the ADAI obligation with the POE (e.g. the Arab League and SAARC), others (such as the CSCOT) had a focus on dedere (extradition) rather than iudicare (trying). The COE was amongst the farthest going as it applied ADAI in principle while excluding situations where suspects would have to fear torture or capital punishment. On the other end of the spectrum, the CIS, BSEC, or OAS did not refer to ADAI at all, which is more understandable when one considers the heavy focus on pre-emption and cooperation, rather than punishment in the conventions. As ADAI is closely linked with the POE and the definition of terrorism, the organizations’ different applications of the principle only highlight the divergence in defining and qualifying the threat. Ultimately, all of these depended on the member states’ willingness (or, reluctance) to limit their sovereignty. Fourthly, an old bone of contention of antiterrorism efforts had been the question whether or not to include situations of armed conflict. Again, this often related to whether certain acts of terrorism were permissible (e.g. when committed in situations of national liberation). Most conventions examined here were somewhat silent on this. Others made reference to principles of IHL (COE, SAARC, CSCOT), which could be seen as a hint that situations of armed conflict could be within the scope of these conventions. Yet no explicit mentioning of such a scenario was made. The only one that clearly excluded armed conflicts from its scope was the CCTSE. Fifthly, and the observation that brings all previous ones together: these many qualifications (or limitations) to the scopes of the treaties suggest that, much like throughout the twentieth century, states continued to cherish their sovereignty and were reluctant to having their hands tied. Ultimately though, any treaty is doing just that. Yet, on sensitive issues such as terrorism states have always been particularly keen to include loopholes that would prevent them from having to apply a convention if they did not want to do it.Footnote⁸¹ Therefore, some treaties explicitly mentioned sovereignty (CIS Treaty, the1998 BSEC treaty, ACCT, CCTSE, CSCOT) as a backstop. However, in light of the states’ historically jealous defense of their autonomy, what is more interesting, is perhaps that some post–Cold War instruments do not reference sovereignty explicitly. This might show the symbolic commitment to (and unity in) fighting terrorism together; or it demonstrates the states’ beliefs that enough other loopholes existed already. The lingering relevance of state autonomy is not just a consistent pattern in regional efforts, but it also affects the global level: a comprehensive UN convention against terrorism has been discussed since the 1970s, but is yet to emerge as a critical mass of common ground is yet to be found.Footnote⁸²

While all these five observations are not new to antiterrorism efforts, the conventions analyzed here also included genuinely new obligations. A sixth conclusion is hence that human rights have gained a much more prominent position in antiterrorism treaties than during the Cold War. Some organizations made explicit mention of HR in their treaties’ articles and hence enshrined an obligation to respect them (the 2002 OAS Convention, the 2005 COE Convention), while some treaties at least referred to international law pertaining to human rights in their articles (the 2004 Protocol to the 1999 OAU Convention, the 2004 SAARC Protocol, and the 2007 ACCT). Others embarked on a more symbolic approach only by merely referencing human rights in the – non-binding – preamble (the 1999 OAU Convention, the 1998 Arab Convention, the 1999 OIC Convention, the 2001 CCTSE, the 2004 BSEC Additional Protocol, and the 2009 CSCOT); others did not reference them at all (CIS Treaty). Still, human rights have become increasingly prominent in antiterrorism treaties and were a much more obvious consideration in responding to terrorism than in previous decades. In theory, at least, this would also set limits to states using antiterrorism treaties as a justification for state terror. However, the scope of some conventions could in fact still legitimate harsh responses toward alleged terrorists; and thus, possibly work as a cloak for state violence. While human rights started appearing on the radar screen of treaties, there is still a long way to go to properly enshrine and protect them. Seventhly, some conventions brought in entirely new considerations. On the one hand, for instance, the ACCT, addressed the post-arrest phase of the terrorist’s lifecycle by considering rehabilitation and reintegration efforts. On the other hand, the COE included the victims of terrorism into its deliberations and urged signatories to attend to them and their needs too. Again, some conventions were thus reflecting changes in the general environment around terrorism and the handling of the offense.

In sum, thus, legal responses to terrorism continued to reflect differences amongst states and between regions, as they were built upon legacies of earlier efforts but also included new considerations. Overall, they continued the path, set in the 1970s, toward producing legally binding – and ever tenser – antiterrorism obligations. This article was focused on legal responses, but some ROs not analyzed here took a softer approach by concentrating on capacity building, task forces, and knowledge exchanges only (e.g. the Caribbean Community, Organization for Security and Cooperation in Europe, Economic Community of West African States, Asia-Pacific Economic Cooperation forum, Pacific Islands Forum, ASEAN Regional Forum).Footnote⁸³ As most states are members in several ROs, these expertise-based approaches complemented rather than diminished other antiterrorism regimes. They added an extra layer of cooperation for those who wanted or needed it.

Ultimately though, any international obligation is only as strong as the willingness of states to respect or enforce it. Implementation mechanisms have always been the weak spot of any international treaty and the same applies to antiterrorism efforts. If states really do not want to abide by their obligations, there are very few ways to force them. Similarly, an adopted treaty is not the same as an applied treaty. If states do not ratify conventions, they are not bound by them. Consequently, while the adoption and content of the instruments was at the center of this article, some treaties have low ratification rates or come with many reservations. This demonstrates that the sheer conclusion of treaty negotiations might not signal as much progress as its content might imply.

In conclusion, the regional responses to terrorism since the end of the Cold War have developed, evolved, and tightened. Any region of the world now features some antiterrorism regime. And many treaties reflect new developments and changes. In theory, it is more and more difficult for terrorists to evade punishment, or to even plan their acts. In this sense, the article indicates some progress: a less permissive general international environment for terrorists and as shift toward pre-empting, and not only punishing, them. Yet, in the end, states are still masters of the treaties and the success of international antiterrorism measures – just as much as of climate action, for instance – hinges on a simple question: are states prepared only to talk the talk, or will they also walk the walk?

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 There was a brief but rather unsuccessful attempt by the League of Nations to adopt antiterrorism conventions in the 1930s. For earlier international antiterrorism efforts, some of them preceding the 1960s, see for instance, Richard Bach Jensen, The Battle against Anarchist Terrorism: An International History, 1878-1934 (Cambridge ; New York: Cambridge University Press, 2014); Ben Saul, Defining Terrorism in International Law, Oxford Monographs in International Law (Oxford ; New York: Oxford University Press, 2006); Bernhard Blumenau, The United Nations and Terrorism: Germany, Multilateralism, and Antiterrorism Efforts in the 1970s (Houndmills, Basingstoke, Hampshire ; New York, NY: Palgrave Macmillan, 2014); Silke Zoller, To Deter and Punish: Global Collaboration against Terrorism in the 1970s (New York: Columbia University Press, 2021); Bernhard Blumenau and Johannes-Alexander Müller, “International Organisations and Terrorism. Multilateral Antiterrorism Efforts, 1960–1990,” Terrorism and Political Violence (published online, 26 July 2021): 1–19.

2 See for instance, Alex P. Schmid, “The Links Between Transnational Organized Crime and Terrorist Crimes,” Transnational Organized Crime 2, no. 4 (1996): 40–82; Tamara Makarenko, “The Crime-Terror Continuum: Tracing the Interplay between Transnational Organised Crime and Terrorism,” Global Crime 6, no. 1 (February 2004): 129–45; Phil Williams, “Terrorist Financing and Organized Crime. Nexus, Appropriation, or Transformation?,” in Countering the Financing of Terrorism, ed. Thomas J. Biersteker and Sue E. Eckert (London ; New York: Routledge, 2006), 126–49; Steven Hutchinson and Pat O’Malley, “A Crime–Terror Nexus? Thinking on Some of the Links between Terrorism and Criminality,” Studies in Conflict & Terrorism 30, no. 12 (2007): 1095–1107.

3 This is not to say that in previous decades, terrorists could be certain to survive the attacks in the long term, with many states allowing capital punishments for such crimes. However, the commitment terrorists needed to have to deal with such a possible, eventual punishment is different to the level of indoctrination or fanaticism required to physically kill oneself directly in the act itself. If terrorists were arrested after they executed their attack, they could face the prospect of the death penalty, but they could also hope for a milder punishment, an amnesty, or for comrades to press them out of prison.

4 See .

5 See for instance, Anthony Dworkin, “Europe’s New Counter-Terror Wars,” Policy Brief (European Council on Foreign Relations, 1 October 2016); Kathleen Bouzis, “Countering the Islamic State: U.S. Counterterrorism Measures,” Studies in Conflict & Terrorism 38, no. 10 (3 October 2015): 885–97; Jasminder Singh, “Operation Tinombala: Indonesia’s New Counter-Terrorism Strategy,” RSIS Commentary, no. 251 (October 2016).

6 For some of these studies see footnote 1.

7 See for instance, Peter Romaniuk, Multilateral Counter-Terrorism: The Global Politics of Cooperation and Contestation (London ; New York: Routledge Chapman & Hall, 2010); Giuseppe Nesi, ed., International Cooperation in Counter-Terrorism: The United Nations and Regional Organizations in the Fight against Terrorism (Aldershot, England ; Burlington, VT: Ashgate, 2006); Ben Saul, ed., Research Handbook on International Law and Terrorism, Research Handbooks in International Law Series (Northampton: Edward Elgar Publishing, 2020); Daniel Silander, Don Wallace, and John Janzekovic, eds., International Organizations and The Rise of ISIL: Global Responses to Human Security Threats (London; New York: Routledge, 2016).

8 For the UN see for instance: Kendall W. Stiles, “The Power of Procedure and the Procedures of the Powerful: Anti-Terror Law in the United Nations,” Journal of Peace Research 43, no. 1 (1 January 2006): 37–54; Victor D. Comras, Flawed Diplomacy: The United Nations & the War on Terrorism (Washington, D.C: Potomac Books, Inc., 2010); Jane Boulden and Thomas George Weiss, eds., Terrorism and the UN: Before and after September 11 (Bloomington, IN: Indiana University Press, 2004); Blumenau, The United Nations and Terrorism. On the EU, see footnote 11 for an overview.

9 Blumenau and Müller, “International Organisations and Terrorism. Multilateral Antiterrorism Efforts, 1960–1990,” 1.

10 Blumenau and Müller, 1.

11 There is also an abundant literature readily available, see for instance, Cian C. Murphy, “The Legal Response to Terrorism of the European Union and Council of Europe,” in Research Handbook on International Law and Terrorism, ed. Ben Saul (Edward Elgar Publishing, 2020), 614–25; Raphael Bossong, Evolution of EU Counter-Terrorism: European Security Policy after 9/11 (London: Routledge, 2014); Monica Den Boer, “Counter-Terrorism, Security and Intelligence in the EU: Governance Challenges for Collection, Exchange and Analysis,” Intelligence and National Security, 22 January 2015; Javier Argomaniz, Oldrich Bures, and Christian Kaunert, EU Counter-Terrorism and Intelligence: A Critical Assessment (Taylor & Francis Group, 2015); Christian Kaunert, “Conclusion: Assessing the External Dimension of EU Counter-Terrorism – Ten Years On,” European Security 21, no. 4 (1 December 2012): 578–87; Javier Argomaniz, The EU and Counter-Terrorism: Politics, Polity and Policies After 9/11 (Routledge, 2011).

12 On the importance of sovereignty in international law, see for instance Antonio Cassese, International Law in a Divided World (Clarendon, Oxford: 1994), 92.

13 See for instance Zoller, To Deter and Punish, 6, 9; Blumenau, The United Nations and Terrorism, 1, 193, 200.

14 See footnote 1.

15 Enrique Lagos and Timothy D. Rudy, “Preventing, Punishing, and Eliminating Terrorism in the Western Hemisphere: A Post-9/11 Inter-American Treaty Latin America: Views on Contemporary Issues in the Region,” Fordham International Law Journal 26, no. 6 (2003): 1622.

16 Mirko Sossai, “The Legal Response of the Organization of American States in Combating Terrorism,” in Research Handbook on International Law and Terrorism, ed. Ben Saul, 2020, 627–28; For a detailed account of the genesis of the convention, see Lagos and Rudy, “Preventing, Punishing, and Eliminating Terrorism in the Western Hemisphere,” 1628–34.

17 Especially in Latin America dictatorships in Chile, Argentina, Guatemala and elsewhere had disguised state terror as counterterrorism, see Virginia Garrard-Burnett, Terror in the Land of the Holy Spirit: Guatemala Under General Efrain Rios Montt, 1982-1983 (Oxford ; New York: OUP USA, 2010); Wolfgang Deckers, ‘The Real State Terrorism’, Peace Review 7, no. 3–4 (1 January 1995): 321–26; Peter Kornbluh, The Pinochet File: A Declassified Dossier on Atrocity and Accountability, 2nd ed. (New York, NY: The New Press, 2013).

18 Sossai, “The Legal Response of the Organization of American States in Combating Terrorism,” 638.

19 See also Lagos and Rudy, “Preventing, Punishing, and Eliminating Terrorism in the Western Hemisphere,” 1631–32.

20 Lagos and Rudy, 1639–40.

21 Lagos and Rudy, “Preventing, Punishing, and Eliminating Terrorism in the Western Hemisphere.”

22 Rather than trying to negotiate a general or comprehensive convention which would lack specific focus and makes it hence easier to be dragged into the maelstrom of never-ending negotiations, a fate that had befallen the UN Comprehensive Convention project, see M. Hmoud, “Negotiating the Draft Comprehensive Convention on International Terrorism: Major Bones of Contention,” Journal of International Criminal Justice 4, no. 5 (1 November 2006): 1031–43.

23 For more information on this convention see Bernhard Blumenau, “Taming the Beast: West Germany, the Political Offence Exception, and the Council of Europe Convention on the Suppression of Terrorism,” Terrorism and Political Violence 27, no. 2 (2015): 310–30.

24 For more information see for instance, Blumenau, The United Nations and Terrorism; Zoller, To Deter and Punish.

25 For an account of earlier struggles with the POE, see for instance Blumenau, “Taming the Beast.”

26 The Convention was amended in 2015 with an Additional Protocol to reflect new developments – such as foreign fighters – but this instrument is, therefore, a response to ISIS and is beyond the scope of this article that deals with the immediate 9/11 environment.

27 See the text at http://www.bsec-organization.org/UploadedDocuments/StatutoryDocumentsAgreements/AddPrtTerrorism%20071120.pdf

28 Mitat Celikpala, “Escalating Rivalries and Diverging Interests: Prospects for Stability and Security in the Black Sea Region,” Southeast European and Black Sea Studies 10, no. 3 (1 September 2010): 287–302.

29 BSEC Charter of 1999, http://www.bsec-organization.org/UploadedDocuments/StatutoryDocumentsAgreements/CHARTERFourthEdition.pdf

30 For the text of the treaty see http://www.bsec-organization.org/UploadedDocuments/StatutoryDocumentsAgreements/CombatingCrimeAGREEMENT071120.pdf . For more information on how the BSEC dealt with terrorism see Ioannis Stribis, “The Evolving Security Concern in the Black Sea Economic Cooperation,” Southeast European and Black Sea Studies 3, no. 3 (1 September 2003): 130–62.

31 Stribis, 153–54.

32 Florina Cristiana Matei, “Combating Terrorism and Organized Crime: South Eastern Europe Collective Approaches,” RIEAS Research Paper, no. 133 (July 2009): 14–15.

33 For Africa’s encounters with terrorism during the Cold War, see Sharkdam Wapmuk, “ECOWAS: Emerging Regional Architecture for Counterterrorism and Counterinsurgency in West Africa,” in The Routledge Handbook of Counterterrorism and Counterinsurgency in Africa, ed. Usman A. Tar (Routledge, 2021), 318–19.

34 Martin Ewi and Anton Du Plessis, “Counter-Terrorism and Pan-Africanism: From Non-Action to Non-Indifference,” in Research Handbook on International Law and Terrorism, edited by Ben Saul (Edward Elgar Publishing, 2020), 654–58.

35 Ewi and Du Plessis, 659. See also Martin Ewi and Kwesi Aning, “Assessing the Role of the African Union in Preventing and Combating Terrorism in Africa,” African Security Review 15, no. 3 (1 January 2006): 36.

36 See for instance “Mubarak Narrowly Escapes Gunmen,” The Independent, 26 June 1995.

37 In the preamble.

38 Art. 4, principle o of the “Constitutive Act of the African Union,” 11 July 2000, https://au.int/sites/default/files/pages/34873-file-constitutiveact_en.pdf.

39 For a more comprehensive overview of the AU’s reaction to 9/11 see Ewi and Du Plessis, “Counter-Terrorism and Pan-Africanism,” 664–67.

40 “Dakar Declaration Against Terrorism,” 17 October 2001, https://www.refworld.org/docid/3deb22b14.html; Ewi and Aning, “Assessing the Role of the African Union in Preventing and Combating Terrorism in Africa,” 38.

41 E.g., the International Convention for the Suppression of the Financing of Terrorism of 1999, the 1980 Convention on the Physical Protection of Nuclear Material or, later, the International Convention for the Suppression of Acts of Nuclear Terrorism of 2005.

42 “Protocol to the OAU Convention on the Prevention and Combating of Terrorism,” 8 July 2004, https://au.int/sites/default/files/treaties/37291-treaty-0030_-_protocol_to_the_oau_convention_on_the_prevention_and_combating_of_terrorism_e.pdf.

43 Allieu Ibrahim Kanu, “The African Union,” in International Cooperation in Counter-Terrorism. The United Nations and Regional Organizations in the Fight Against Terrorism, ed. Giuseppe Nesi (Routledge, 2006), 175.

44 For an overview, see for instance Ewi and Aning, “Assessing the Role of the African Union in Preventing and Combating Terrorism in Africa,” 39–40, 42–43; J. Tochukwu Omenma and Moses Onyango, “African Union Counterterrorism Frameworks and Implementation Trends among Member States of the East African Community,” India Quarterly 76, no. 1 (2020): 103–19; Usman A. Tar and Anne Uchenna Ibobo-Eze, “African Union: Emerging Architecture for Regional Counterterrorism and Counterinsurgency in Africa,” in The Routledge Handbook of Counterterrorism and Counterinsurgency in Africa, ed. Usman A. Tar (Routledge, 2021), 299–314; Eugene Eji, “Mapping the Contours of Terrorism and Counterterrorism in Africa,” in The Routledge Handbook of Counterterrorism and Counterinsurgency in Africa, ed. Usman A. Tar (Routledge, 2021), 33–50.

45 Wapmuk, ‘ECOWAS’, 325–26.

46 See for instance Bruce Hoffman, Anonymous Soldiers: The Struggle for Israel, 1917-1947 (New York: Knopf Publishing Group, 2015); Boaz Ganor and Eitan Azani, “Terrorism in the Middle East,” in The Oxford Handbook of Terrorism, ed. Erica Chenoweth et al. (Oxford: Oxford University Press, 2019), 568–89,32; On the long history of terrorism in the Arab world, see also Fatemah Alzubairi, Colonialism, Neo-Colonialism, and Anti-Terrorism Law in the Arab World (Cambridge: Cambridge University Press, 2019), chap. 3.

47 Blumenau, The United Nations and Terrorism, chaps 3–5.

48 Alzubairi, Colonialism, Neo-Colonialism, and Anti-Terrorism Law in the Arab World, 82–83.

49 Mahmoud Samy, “The League of Arab States,” in International Cooperation in Counter-Terrorism: The United Nations and Regional Organizations in the Fight Against Terrorism, ed. Giuseppe Nesi (Farnham: Ashgate Pub., 2007), 155–60.

50 Alzubairi, Colonialism, Neo-Colonialism, and Anti-Terrorism Law in the Arab World, 78, 83–84.

51 “The Arab Convention on the Suppression of Terrorism” (United Nations, 1998).

52 See for instance Fawaz A. Gerges, The Far Enemy: Why Jihad Went Global, 2nd ed. (Cambridge: Cambridge University Press, 2009), chap. 1.

53 For more information on the background of this clause see Alzubairi, Colonialism, Neo-Colonialism, and Anti-Terrorism Law in the Arab World, 87–88.

54 “Amendment to the Arab Convention on the Suppression of Terrorism,” 2006, https://www.un-ilibrary.org/content/books/9789210477024s004-c015/read

55 For more information on the OIC see Katja Samuel, “The Legal Response to Terrorism of the Organization of Islamic Cooperation,” in Research Handbook on International Law and Terrorism (Edward Elgar Publishing, 2020).

56 See for instance, Mustafa Al Sayyid, “Mixed Message: The Arab and Muslim Response to ‘Terrorism’,” The Washington Quarterly 25, no. 2 (1 June 2002): 180; Lynn Welchman, “Rocks, Hard Places and Human Rights: Anti-Terrorism Law and Policy in Arab States,” in Global Anti-Terrorism Law and Policy, ed. Victor V. Ramraj et al. (Cambridge: Cambridge University Press, 2011), 622.

57 Mahmoud Hmoud, “The Organization of the Islamic Conference,” in International Cooperation in Counter-Terrorism: The United Nations and Regional Organizations in the Fight Against Terrorism, ed. Giuseppe Nesi (Farnham: Ashgate Pub., 2007), 161–64; Samuel, “The Legal Response to Terrorism of the Organization of Islamic Cooperation,” 647.

58 On the relevance of the Sharia, see for instance Samuel, “The Legal Response to Terrorism of the Organization of Islamic Cooperation,” 640–42.

59 “Convention of the Organisation of the Islamic Conference on Combating International Terrorism,” 1999, https://www.refworld.org/docid/3de5e6646.html

60 Hmoud, “The Organization of the Islamic Conference,” 164–67.

61 Alzubairi, Colonialism, Neo-Colonialism, and Anti-Terrorism Law in the Arab World, 84; Amnesty International, “The Arab Convention for the Suppression of Terrorism: A Serious Threat to Human Rights,” 31 January 2002, https://www.amnesty.org.uk/press-releases/arab-convention-suppression-terrorism-serious-threat-human-rights-0

62 Christian Koch, “The GCC as a Regional Security Organization,” International Reports of the Konrad Adenauer Stiftung, no. 10 (9 November 2010): 32, https://www.kas.de/en/web/auslandsinformationen/artikel/detail/-/content/der-golf-kooperationsrat-als-regionale-sicherheitsorganisation; “GCC Countries Sign Landmark Counterterrorism Agreement,” Arab News, 5 May 2004.

63 Rory Miller, “The Gulf Cooperation Council and Counter-Terror Cooperation in the Post-9/11 Era: A Regional Organization in Comparative Perspective,” Middle Eastern Studies 58, no. 3 (2022): 443.

64 Rohan Gunaratna and Gloria Cheung, “Regional Legal Responses to Terrorism in Asia and the Pacific,” in Research Handbook on International Law and Terrorism, by Ben Saul (Edward Elgar Publishing, 2020), 669–70.

65 Sherlyn Mae F. Hernandez, “The 2002 Bali Terror Attacks Aftermath: How Southeast Asia Became a Breeding Ground for Terrorism,” Journal of Asia Pacific Studies 6, no. 2 (August 2021): 175–76, 180–82; Shiv Kumar, Sudheer Singh Verma, and Shahbaz Hussain Shah, “Indo-US Convergence of Agenda in the New Indo-Pacific Regional Security Architecture,” South Asia Research 40, no. 2 (July 2020): 219–20.

66 For more information on the early SAARC efforts see Blumenau and Müller, “International Organisations and Terrorism. Multilateral Antiterrorism Efforts, 1960–1990.”

67 “Additional Protocol to the SAARC Regional Convention on Suppression of Terrorism,” 2004, https://www.jus.uio.no/english/services/library/treaties/04/4-02/prot-suppression-terrorism.xml

68 The reason is that acts that occur during armed conflict blurred the line between war crimes and terrorism and made the notion even broader, which is why, traditionally, such situations had often been excluded from antiterrorism treaties. See for instance Zoller, To Deter and Punish, 10.

69 Kumar, Verma, and Shah, “Indo-US Convergence of Agenda in the New Indo-Pacific Regional Security Architecture,” 220.

70 Gunaratna and Cheung, “Regional Legal Responses to Terrorism in Asia and the Pacific,” 678–80.

71 In fact, it is difficult to properly assign this group to a regional group as its member states include both European and Asian countries. In terms of numbers, population and territory, the majority of the current nine CIS member states falls into Asia and this is why it is included here.

72 Treaty on Cooperation among State Members of the Commonwealth of Independent States in Combating Terrorism of 1999, https://treaties.un.org/doc/db/terrorism/csi-english.pdf.

73 See also Armen Sanoyan, “Initiatives Taken by the Republic of Armenia in the Fight against Terror: Legislative Regulations and Intergovernmental Cooperation with the CIS States,” in Understanding and Responding to Terrorism, ed. Huseyin Durmaz et al. (Washington, DC: IOS Press, 2007), 180.

74 See for instance William Walker, “Nuclear Weapons and the Former Soviet Republics,” International Affairs 68, no. 2 (1992): 255–77; Steven E. Miller, “A Nuclear World Transformed: The Rise of Multilateral Disorder,” Daedalus 149, no. 2 (2020): 17–36.

75 Gunaratna and Cheung, “Regional Legal Responses to Terrorism in Asia and the Pacific,” 671–72.

76 It reflected national approaches, see Mohd Mizan Aslam and Rohan Gunaratna, Terrorist Rehabilitation and Community Engagement in Malaysia and Southeast Asia (London, New York: Routledge, 2021); Yosua Praditya Suratman, “The Effectiveness of De-Radicalization Program in Southeast Asia: Does It Work?; The Case of Indonesia, Malaysia, and Singapore,” Journal of ASEAN Studies 5, no. 2 (2017): 135–56.

77 Gunaratna and Cheung, “Regional Legal Responses to Terrorism in Asia and the Pacific,” 672–73.

78 See for instance Luke Harding and Allegra Stratton, “British Council Row Escalates as Russia Arrests Director,” The Guardian, 16 January 2008; Severin Weiland, “Westerwelle kritisiert russische Razzien bei Ebert- und Adenauer-Stiftung,” Der Spiegel, 26 March 2013.

79 For some thoughts on this see, e.g. Stephen Aris, “The Shanghai Cooperation Organisation: ‘Tackling the Three Evils’. A Regional Response to Non-Traditional Security Challenges or an Anti-Western Bloc?,” Europe-Asia Studies 61, no. 3 (2009): esp. 458–459.

80 Yet, this treaty did not actually address matters of prosecution or extradition so it is difficult to properly include it in the analysis here.

81 Indeed, this trend far preceded the 1990s, see Blumenau and Müller, “International Organisations and Terrorism. Multilateral Antiterrorism Efforts, 1960–1990.”

82 See e.g. Amrith Rohan Perera, “The Draft United Nations Comprehensive Convention on International Terrorism,” Research Handbook on International Law and Terrorism, 6 April 2020.

83 See for instance Dion E. Phillips, “Terrorism and Security in the Caribbean before and after 9/11,” in Armed Forces and Conflict Resolution: Sociological Perspectives, ed. Giuseppe Caforio, Gerhard Kümmel, and Bandana Purkayastha (Emerald Group Publishing Limited, 2008), 97–138; Edwin Bakker and Eelco Kessels, “The OSCE’s Efforts to Counter Violent Extremism and Radicalization That Lead to Terrorism: A Comprehensive Approach Addressing Root Causes,” Security and Human Rights 23, no. 2 (2012): 89–100; Usman A. Tar, ed., The Routledge Handbook of Counterterrorism and Counterinsurgency in Africa (London: Routledge, 2021); Gunaratna and Cheung, “Regional Legal Responses to Terrorism in Asia and the Pacific.”

From Punishment to Pre-emption: The Changing Nature of Regional Organizations’ Legal Responses to Terrorism, 1990–2010

Abstract

Table 1. Regional antiterrorism conventions until 2010.

The Americas

Europe

Africa

The Arab and Islamic World

Asia

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From Punishment to Pre-emption: The Changing Nature of Regional Organizations’ Legal Responses to Terrorism, 1990–2010

Abstract

Table 1. Regional antiterrorism conventions until 2010.

The Americas

Europe

Africa

The Arab and Islamic World

Asia

Conclusions

Disclosure statement

Notes

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