The Terrorism Paradox in International Criminal Law: Definitional Fragmentations and the ICC's Structural Limits

In this study, we examine why the crime of terrorism is absent as a distinct offense from the Rome Statute of the ICC. We analyse whether this omission is because of real technical issues or a deliberate political decision of States to retain certain room for maneuver. The methodology used is a qualitative doctrinal analysis of primary legal instruments (Rome Statute, UNSC Resolution 1373 and UNSC Draft Comprehensive Convention on terrorism) together with a review of theories of legal positivism, natural law, realism, constructivism and critical legal studies. It is found that the absence of a universal definition is not a technical mistake, but is instead a consequence of the political sphere, specifically of the warring notions of state and non-state violence. This lack of definition preserves the sovereignty of states and the principle of asymmetry in terms of accountability. Alternative attempts at achieving some measure of accountability for terrorism by prosecuting it as a form of crime against humanity or war crime under Articles 7 and 8 have proven difficult due to their frequent incompatibility with the nullum crimen sine lege doctrine, making justice appear to be subject to political determination. It is concluded that the disjunction between political condemnation of terrorism globally and patchy prohibition at law is best surmounted by a pragmatic process, the first step of which is codification, i.e., rules for application of the main ICC crimes to terrorism, the second of which will require incremental development of political will to advance both the convention and a Rome Statute amendment.